배움과 공유의 시간

Based on the above-mentioned agenda, let's look at the issue of proving and distributing overtime costs in case of labor litigation.
1 Workers claiming overtime pay submitted rudimentary evidence: Some of the original absenteeism and tardiness records signed by the department manager in the above agenda have been obtained and submitted by the worker, and this record lists weekend overtime work every week.
2 The Company presents evidence that overtime work does not exist: In the above issue, it has submitted a wage statement signed by the worker. However, due to the wide gap between the number of working days on the wage statement and the number of absenteeism and absenteeism and tardiness records submitted by the workers, the court did not acknowledge its veracity.
3 If the company fails to verify paragraph 2 and also fails to submit a valid absenteeism and tardiness record, the court shall acknowledge the claim of overtime work by the workers based on paragraph 1.

As soon as employee dissatisfaction builds up and opinions begin with the company, it should be considered that employee evidence collection begins. In particular, overtime costs are the most frequently filed item at the time of retirement, so the company needs to pay attention to the following points to ensure that unfavorable evidence does not leak:
o If overtime expenses are not accurately calculated and paid, the workbook should be written, e-mail, Weissin, or the work group should be posted to order extra work.
o the act of specifying Saturday's normal work schedule in the labour contract, or employment rules;
o Write overtime hours on the wage table and other wage items (e.g. overtime pay, etc.) instead of overtime expenses;
an act of payment
o After overtime is completed, the written evidence provided in other name (benefit, subsidy) other than the cost of overtime is not included in the report;
the act of leaving behind

3. Working-level measures for overtime management

(1) Establishing an approval system for overtime review and approval - Control of unbridled overtime work

Article 41 of the Labor Law of China states, "User may extend working hours after consultation with the public and workers, by the need for production management." In other words, overtime refers to the task that the user gives instructions and the staff accepts and proceeds. It is not acceptable for a worker to work overtime on his own, despite the absence of a company's demand.
If the company has a overtime review approval system, the employee must obtain the company's approval in advance if he or she is unable to complete the normal work duties during normal working hours, otherwise it cannot be recognized as overtime. In other words, it can be recognized as a overtime work only if the company has arranged the overtime work or if the employee has applied for approval from the company in advance.
The company should avoid unnecessary disputes caused by lack of an arrangement or uncertainty of the arrangement by clarifying the implementation of the overtime review and approval system, without going through the overtime review process, and by making it clear that the overtime work is not subject to payment for an hour.

[Example] Are overtime work recognized in the absenteeism and tardiness record table?
Mr.Wang remained alone in the office every day and worked hard even after work hours had passed. After two full years of service, Mr.Wang tendered his resignation for a former job and at the same time charged the company with two years of overtime expenses. The company was incomprehensible. Because he never asked Wang to work overtime, and he voluntarily stayed in the office after work. In addition, for two years Mr.Wang had never asked the company for overtime. Therefore, the company replied that overtime payment was not necessary.
(labor arbitration result)
Mr. Wang's absenteeism and tardiness records show that he spent more than eight hours each day at the company
but there's evidence that he worked at the company after work
I didn't been submitted. The company has a clear overtime screening and approval system, but applies for overtime work.
Instead, he stayed at the company to handle business. So, Mr. Wang's behavior is...
I reject the claim because it does not belong to overtime.

As shown in the above example, a simple absenteeism and tardiness record can only prove that the employee has been in the company for a company.
Only. However, if the company does not have a "work permit system," the company will be in a difficult position to prove that its employees did not work overtime by using other evidence in the event of a labor action.

[working-level measures]

1 The employment rules stipulate the overtime review and approval system.
The overtime work shall be carried out after obtaining approval from the supervisor in advance using the application for overtime work.
[Example] "The company does not advocate extra work for the employees. The extra work of the staff must be done by the company.
It shall be approved or arranged and shall be approved by the company or by an employee without the company.
Voluntary overtime is not recognized as overtime."

2 A work permit system shall be specified in the labor contract.
In addition to the employment rules, the labor contract stipulates the approval system for overtime work. There is a legal risk if there is no commitment to labor contracts individually concluded 1:1 and only to employment rules. This is because if the employment rules are invalidated (e.g., employee's signature on notice, non-acquisition, etc.) the legal effect is lost.

(2) Preferred arrangements for alternative vacations

Labor laws stipulate that if extra work is given on weekends off (Tuesday and Sunday), alternative leave should be granted first. The legislative purpose is to ensure workers' right to rest first. Therefore, if overtime is ordered on the day of rest, the user may arrange the alternative leave as a priority, and in the event of a failure of the replacement vacation, the obligation to pay the overtime fee is incurred.
Since weekend overtime costs are 200 percent, it is necessary to control overtime spending first by choosing an alternative vacation. In some cases, employees refuse to arrange alternative vacations for the company after weekend overtime and ask for 200 percent of overtime fees, but there is no legal basis. However, in the case of certified and technical workers, replacement leave is generally applied to office management and business positions, as they often refuse to work overtime on weekends unless they are paid 200%.
The expiration date of alternative vacation days for overtime work on weekends is in accordance with company regulations, but it is often required to be used within three months. The legal acceptance of alternative vacations is limited to weekend overtime, and not to weekdays or legal holidays. It is a violation of labor law to grant them alternative leave when they accumulate extra work without paying extra work after ordering them to work on a weekday work.

[ Opinion on a Little Problem Related to the Thorough Implementation of Labor Law ]
Article70 If a worker is required to work on a day off, the employee shall first be given an equal amount of time off.
If it is necessary and cannot be granted a substitute vacation, based on the provisions of Article 44 (2) of the Labor Act,
Workers should be paid a premium wage (200%) of overtime hours.

(3) Rational arrangement of overtime pay riders

Except for some areas (acidity), most areas, such as Gangso-seong, Guangdong, and Shanghai, are recognized by the law enforcement agencies when the number of overtime workers is agreed within reasonable limits. For example, if a wage item is divided into several categories, the basic wage is set at approximately 70 per cent of the total, and the remainder is paid by various allowances, subsidies, and variable performance benefits, and if the basic wage is promised on the labor contract as a period of overtime, the expenditure on overtime can be reduced as much. It is important to note that, if an arrangement is not made, there is a risk that the entire wage will be recognized as a non-regular overtime period.

(4) Setting the fixed residual cost

In the case of an employee who works overtime for a certain amount of time each day, such as the driver or the production supervision of a factory, or the company that is required to work on Saturday, the total remaining hours of the month shall be set in advance and paid as a fixed overtime rate. This means that extra work is paid in advance, and the regular wage is reduced by that much, thus lowering the number of overtime
On the other hand, if a fixed overtime fee corresponding to the remaining work time of 20 hours per month is paid, an additional supplement to the overtime fee is required if the actual overtime time exceeds 20 hours.

[Example] Saturday Anti-Japanese Service Anbashi, Set Fixed Residual Expenses
For employees with a basic salary of 2,000元, the hourly overtime rate is 2000/21/75/8 =11.5元. If you work extra four hours every Saturday, it will be four hours by five times by 20 hours by 11.5 by 2 = 460 hours.
Therefore, if the basic salary of 2,000元 + fixed overtime (five hours on Saturday) is paid 460 = = 2,460위 and the wage statement states the extra work cost on Saturday, it is deemed to have been calculated and paid in advance. Without doing this, for example, if the overtime pay is set at 300元, the employee may at any time request for a supplementary payment for the difference of 160元.
Meanwhile, for example, in anticipation of a four-hour shift on Saturday, the company would have to pay an additional 20 hours per month in advance in the form of fixed overtime, but if the business conditions had actually worked eight hours on Saturday, the company would have to pay the difference from the actual overtime.

(5) Using the special working hours system - Conditions for obtaining approval from the Bureau of Labor

In the case of drivers, out-of-the-box salesmen, and advanced management jobs, the irregular work system can free them from the obligation to pay overtime. Even if it is a temporary work system, some regions, including Shanghai, Shenzhen and Honam provinces, require 300 percent of overtime pay for overtime work on legal holidays, while others are not required to pay overtime fees, whether on weekends or on legal holidays.
The comprehensive calculation work time system calculates the total amount on a given period of time, and the obligation to pay overtime costs is 150 per cent for the time that is exceeded. Compared to the standard working hours system, there is no need to pay 200% overtime for weekend overtime work, and it is possible to save a significant amount of overtime money if operated in an off-season way by reducing working hours and increasing them during peak seasons.

(6) Arrangements for labor contracts for effective working hours

The hairdresser doesn't do haircuts all day long, and when there's no customer, she's in the office.
Rest. If no arrangement is made, there is a risk that overtime charges will be filed upon retirement, saying that the entire office hours were working hours. To prevent this, a store, a hair salon, etc.
If the work intensity is not high, the atmosphere is high, and the rest area is available during the waiting period.
At the time of joining the company, the contract states that "the effective working hours of the staff are * hours per day."