배움과 공유의 시간

03 Residual work management

The most confusing aspect of Korean businesses doing business in China is overtime work. This is because it operates a legal system that is quite different from Korea. For example, senior management positions, such as general account, are also theoretically included in the payment of overtime expenses, and while the nationwide increase rate of overtime fees is the same, the setting method of calculating overtime expenses (based amount) varies from region to region. Thus, in China, how to agree on the criteria for overtime fees in labor contracts, how to establish a pre-submission system for overtime work in-house, and how to effectively control overtime work by department and occupation are becoming very important tasks.

1. Basic rules for overtime expenses

1 Regulations for overtime work
o calculation formula for overtime expenses: number of overtime pay calculators (base) × premium rate
o overtime hours: the overtime hours shall be within one hour per day and the extra hours for special reasons shall not exceed 36 hours per month.
o Restrictions: Female workers and breastfeeding workers over seven months of pregnancy are not permitted to arrange overtime and night labor.
o Subject: Unlike Korea, all employees, including senior management positions, are eligible for overtime payment. Management cannot replace overtime expenses by paying administrative allowances.

a two-day overtime rate
o Standard working hours: applied differently by weekdays, weekends, and legal holidays
o Comprehensive calculation work hour system: 150% premium rate applied uniformly, weekday or weekend
o Non-regular work hours: flexible work hours with no fixed commuting hours, no overtime fees

Standards for overtime payment in the working hours system
Weekdays overtime weekend overtime work extra work
150% of standard working hours, 200% and 300%
150% and 300% of total calculation work hours
Extra work expenses for irregular work days are not applied (but in some regions, such as Shanghai, Shenzhen, and Honam provinces, 300% overtime pay is required during legal holidays.

Pay-rate wage system by number of production
• Weekdays = unit price × 150% • weekend = unit price × 200% • legal holiday = unit price × 300%
[Example] Production of 12 pieces of clothing daily by the company’s agreed-upon labor standard with the workers
If the unit price is 3元 per point, per unit price for overtime work:
12 points after production completion, unit price of 4.5 per weekday, weekend special work 6근, legal holiday 9元

3 Number of overtime pay calculators (基数) - Variation by region

The overtime rate is unified across the country, but the overtime rate calculators have different rules for different provinces. There are no rules for keeping overtime pay-per-mission rules, such as "pay-as-you-go rules" and "work-contract ordinances" in each province.
Except for provinces where some "ordinary wages" such as Shandong Province are paid by non-regular workers, the number of overtime expenses can be agreed on in labor contracts. However, it is important to note that an arrangement must be made within reasonable limits to be legally valid.
In the case of an entity that is located in an area where the contract for overtime pay is available, wage items that are paid on a fixed monthly basis, such as basic salary and job allowance, are included in the non-regular period of overtime work, but performance benefits, allowances and subsidies that vary from month to month are excluded from the arrangement. If the arrangement is not made, it is necessary for the entity to carefully review local regulations and make arrangements for the number of overtime expenses in the labor contract, because there is a risk that the entire ordinary wage will be recognized as the number of overtime pay in the event of a labor action.

Rules for setting up overtime payers by region

a dragon in a jockeyed area for extra work.
1 Labor and management may agree on the scope of "normal working hours wages" such as "normal working hours wages" as overtime pay, and "normal working hours wages" such as Guangdong Province. The two sides can promise "normal working-hour wages" as basic wages, while other allowances, subsidies and performance-based pay do not belong to "normal working-hour wages."
Basic salary, job salary, and job/technical allowance, which are fixed monthly payments such as Beijing, are all required to be made as overtime pay for fixed wage items in February. However, performance bonuses, incentives, and overtime pay, which are paid on a monthly basis, can be excluded from the number of overtime expenses.
the cost of overtime in the previous month's wages.
As the deductible amount becomes the overtime rate, the promised Shandong province "Wage in the previous month" becomes the non-regular worker, the remaining amount minus the overtime cost from the previous month's wage table becomes the number of overtime pay. Therefore, the number of overtime pay varies from month to month.
4 o commensurate with position
extra work expenses
Arrangements can be made by flagging.
o In the absence of an agreement, 70 per cent of the monthly wage for normal attendance is set as the period of overtime expenses, o In the event of an agreement between labor and management on "normal wages," the term of overtime fees, is enforced according to the agreement;
o If there is no arrangement, "70%" of the total wage (excluding overtime expenses) received on normal business trips is set as the basis for overtime expenses (most injury-related companies do not make an arrangement, but follow this approach)
5 o Agreements can be made in labor contracts
o In the absence of an agreement, the wage is usually paid overtime
Kang So-sung, o In case of an agreement between labor and management, follow the agreement.
(3) o Calculation according to the wages of the workers in the previous 12 months, if there is no arrangement;
(explanation) Allow reasonable arrangements between enterprises and employees. Once the agreement goes into effect, it's binding on both

4 Example of calculating overtime costs
The overtime costs are calculated according to the employee's hourly wage. The hourly wage is calculated according to the number of days of monthly wage calculation.

Hourly = Monthly wage ÷ Monthly wage calculation days (21.75) ÷ 8 hours

[Case]
The monthly salary is 7,000 won, basic wage is 5,000 won, and the number of overtime pay is agreed as basic wage. Employees work nine hours of legal holidays on Oct. 1, five hours of holiday work on Oct. 17 and two hours of overtime on Oct. 20 (Monday)

Cost of overtime calculation method overtime
9 hours, 5000 hours, 21.75 days, 8 hours, 9 hours, 3 hours, and 775.86 hours on Oct. 1 (Lawful Public Holiday)
5 hours, 5 hours, 5000.7521.75 days, 8 hours, 5 hours, 200%, 287.35 on October 17th (Tuesday)
9 hours, 5000元÷21.75 days, 8 hours, 2 hours, 150% 86.21 hours, October 20th
Total 1,149.42元

2. Residual work cost effective and burden of proof

(1) Intermediating labor disputes

The "poetry" of labor arbitration has 1 general prescription and 2

1 General prescription
The "protest" of a labor action shall be for one year, and the party may know that his rights are violated, or
Of course, it is calculated from the date it is considered to be known. That is, when it comes to self-rights,
If a labor action is to be filed within one year of retirement and no labor action is filed within one year of retirement,
The opportunity to be relieved of the rights that have been infringed is forfeited.
2 Special prescription
What is related to labor remuneration (wage) is that workers are employed because of worries about losing their jobs.
Some people are reluctant to file lawsuits. In light of this, the Arbitration for Labor Disputes Act is called "labor conservatism."
As far as is concerned, it is exceptionally stipulated that one year’s "time-to-day" restriction is not imposed.
In other words, within one year of retirement, there is no need to pay for all periods of labor (including overtime expenses) while in office.
In response, in theory, a lawsuit can be filed retrospectively without limits.

[Management Arbitration Act for Labor Disputes]
Article27 The time limit of applying for a labor dispute is one year. The time limit for arbitration shall be calculated from the date on which the party is aware or rightly aware that the right has been infringed.
 Regulations for General Time Effect
In the event of a dispute arising from a delay in payment of labor remuneration during the life of the relationship, the application of arbitration by the worker shall not be limited to the effective period ("one year") of arbitration set out in paragraph 1 of this Article. However, if the labor relationship is terminated, the application shall be made within one year of the end of the labor relationship.
 Regulations for Special Time Effect

Retroactive claim period for overtime expenses
Labor remuneration belongs to a "special time limit" that is not limited to a one-year arbitration period for the duration of the labor relationship, so a worker may apply for labor arbitration for any remaining work during his or her previous tenure within one year after retirement. However, since the term of preservation of the user’s wage payment evidence is stipulated in the Regulations for Paid Payment, the user is liable to verify only within the two-year retention period, when a labor dispute arises due to the labor compensation issue.
In other words, if the worker completes the basic burden of proof for overtime work, the user shall be responsible for proving that the claim on the part of the worker is groundless in accordance with the wage payment evidence, absenteeism and overtime work approval table, etc.
However, if more than two years are exceeded, the user must prove by submitting evidence to prove his claim, such as a statement of wage payment, as the period of preservation has expired. Realistically, it is difficult for workers to prove by submitting evidence related to labor remuneration two years ago, so retrospective claims for overtime are generally accepted for two years.

[Terminal Payment Settlement Regulations (1994)]
Article6 The company must record in writing the amount, date and recipient's explanation and signature of the wages paid to the workers, and shall also preserve them for more than two years to prepare for the examination.

(2) Distribution of burden of proof in case of overtime expenses

After the Labor Contract Act went into effect, the Supreme People's Court issued the Judicial Analysis (3) in September 2010, putting a Bree Ike in the case for overtime fees, as companies faced management pressure due to reckless overtime claims by workers. He imposed the burden of proof on workers for the existence of extra work. If workers fail to submit basic evidence proving that they are working overtime, for example, absenteeism and tardiness records, shift records, notice of overtime work, journal of work and wage statements, the company denies it, it will end up losing workers.
The fear of the Supreme People's Court's Court Justice's interpretation (3) has put a brake on the worker's lawsuit for overtime fees, as the workers were held accountable for the existence of overtime work. However, workers’ burden of proof only requires "a rudimentary level."
If a worker completes the "initial burden of proof" by submitting some solid evidence of overtime work (such as a company seal or a report on overtime work, or a report on overtime that has been signed by the head of the department, etc.), then the obligation to prove to the company that maintains the records of workers' work is transferred.