Some company employees cannot work according to a standard working hour due to their particular nature of work. Thus, to control the employment cost, the companies may apply for special working hour systems, namely the comprehensive working hour system and the flexible working hour system with the labor administrative authorities. Though the companies can adopt different measures of work and rest for the employees pursuant to the approval of the labor administrative authority (hereafter referred to as "special working hour employees"), they still need to properly arrange for the holiday and rest of these employees to safeguard their rights while enhancing the productivity of the company. This article seeks to illustrate the issue from two perspectives, the rest and holiday the special working hour employees are entitled to, and the measures a company can adopt to manage their rest days and holidays properly.
I. Mandatory rest days and holidays
A company should have a clear knowledge of the rest days and holidays of the special working hour employees so as to better arrange their rest days and holidays.
Weekends (rest days)
The legal concept corresponding "weekends" is "rest days", meaning the employees taking two days off each week (usually on Saturdays and Sundays). Pursuant to Article 39 of the Labor Law of the People's Republic of China (hereafter referred to as "the Labor Law"): "Enterprises which cannot abide by the stipulations in Article 36 and Article 38 of this law, upon the permission of the labor administrative authorities, can adopt alternative work and rest measures." Therefore, the company can adopt the work-rest measures of "continuous work, continuous rest, shifts, make-up rest days, or flexible working hours" for the employees subject to special working hour systems. Thus, it is not compulsory that these employees should rest on the weekends, and a company will not be required to pay overtime wages only because these employees worked on weekends.
Nevertheless, if a company arranges the special working hour employees to work on weekdays and on weekends without rest, then there is the risk that overtime wages shall be paid. For example, for employees who are subject to the comprehensive working hour system, if they work continuously and his/her average working hours during the comprehensive working hour calculation cycle exceed the legally stipulated standard working hour, the company is to pay the employee 150% of his salary according to the prolonged working time payment standard set out in the Labor Law.
Though it is not mandatory that the special working hour employees should rest on the rest days, they are still entitled to the statutory holidays. Thus, if a company requires special working hour employees to work on statutory holidays, the company may need to pay them overtime wages.
When calculating the remuneration for employees who works during statutory holidays, a company needs to differentiate the employees subject to the comprehensive working hour system (hereafter referred to as "the comprehensive working hour employees") from the employees subject to the flexible working hour system (hereafter referred to as "the flexible working hour employees"). For the comprehensive working hour employees, a company shall pay them three times their remuneration for their working during the statutory holidays. However, for the flexible working hour employees, the payment standard varies from one city to another. For example, according to the Shanghai Municipal Enterprise Remuneration Payment Measures, companies shall pay the flexible working hour employees three times their daily/hourly wages if they are required to working during statutory holidays; yet according to the Beijing Remuneration Payment Regulations, no overtime wages are required for the flexible working hour employees who work on statutory holidays.
Like the standard working hour employees, the special working hour employees are entitled to statutory annual leaves if the conditions set out in the laws and regulations are met. The actual days of the annual leaves are to be calculated according to the Employee Paid Annual Leave Regulations promulgated by the Chinese State Council. For the unused statutory annual leave, a company shall pay the employees three times their remuneration pursuant to the aforementioned Regulation.
A company may give its employees benefit annual leaves in addition to the statutory annual leaves. If there are company policies regarding the payment for the unused benefit annual leaves, or agreements between the company and its employees regarding the issue, the payment for unused annual leaves are to be made according to the policy or the agreement.
In addition, the special working hour employees may also be entitled to family leave, marriage leave, bereavement leave, and so on. A company is to implement national and regional laws and regulations regarding these holidays.
II. How to arrange the rest and holidays
As the working time of the special working hour employees cannot be measured by the standard working hour, or because they need to work flexibly or continuously, they cannot rest on the weekends or the statutory holidays like the standard working hour employees. Nevertheless, the company still need to perform its obligations pursuant to the Article 6 of the Ministry of Labor's Approval Measures regarding the Flexible Working Hour System and the Comprehensive Working Hour System to guarantee the employees' rights to rest and holidays while making sure the production and working tasks are completed by adopting measures such as continuous work, continuous rest, shifts, make-up rest days, and flexible working time under the pretext that the employees suggestions are listened to, and that their health is guaranteed. We suggest that a company consider adopting the following measures to properly arrange the rest and holidays of the special working hour employees based on its business situation and the nature of the employees' work.
Arrange the workload
To make sure that the special working hour employees can rest after they complete their work, a company is to arrange their workload properly. For the comprehensive working hour employees, their working hours within the comprehensive working hour calculation cycle shall correspond with the legally stipulated standard working hour. This is clearly set out in Article 5 of the Ministry of Labor's Approval Measures regarding the Flexible Working Hour System and the Comprehensive Working Hour System. Thus, the companies are to arrange these employee's workload properly so that they can rest outside of working hours.
As for the flexible working hour employees, though their working hours are flexible, a company still need to arrange their workload properly. According to the stipulations from the Ministry of Labor's Letter of Reply to the Questions regarding the Employee Working Hours, a company shall determine the employees' work quotas or other performance ratings according to the standard working hour system, so as to arrange the employees' rest. Therefore, a company is to refer to the standard working hour system when arranging the workload for the flexible working hours employees as well, to make sure that they can get rest outside of working hours.
Utilize make-up rest days and shifts
Generally, make-up rest days are compensatory rest days given to the standard working hour employees who worked on their rest days. When the concept is used on comprehensive working hour employees and flexible working hour employees, it carries a different meaning, because there is no "overtime during rest days" for these employees. For example, the aviation traffic control staff (if subject to comprehensive working hour system with approval) usually work consecutively before they can rest. If these employees continue to work on their days of rest, it is necessary that the company give them make-up rest days so that they get enough rest.
For the flexible working hour employees such as drivers or janitors, arranging them to work in shifts is a way to ensure that they can rest while not working. For instance, long-distance drivers can rest when they are not driving, and the janitors can rest or do other things when they are not on duty. We suggest that the companies set out rules for shifts and rest in company policies, and provide that the rest time between shifts will not be regarded as working hours; also, the policy is to be signed by each employee after it goes through democratic and publicize procedure. In addition, the companies may set up necessary rest facilities in the working venues, so that the employees can rest between shifts.
Manage annual leaves
As mentioned in the preceding paragraphs, the special working hour employees are entitled to statutory annual leaves if the conditions set out in laws and regulations are met. They may also be entitled to benefit annual leave according to company policy. However, the flexible working hour employees do not need to abide by standard working time, making it hard for companies to grasp their actual state of work and rest. If a flexible working hour employee took time off work, but did not apply for annual leave with the company, they may sue for the remuneration of unused annual leave afterwards. To ensure that employees can rest outside of working hours, and to avoid unnecessary disputes, we suggest that companies take the initiative to arrange the special working hour employees to enjoy their annual leave during the slack season of its business and production, and keep a record of the used annual leave. Moreover, the company shall not assign the employees any working task during their annual leave, so that they can actually rest.
In summary, a company is to properly arrange the rest and holidays for the comprehensive working hour and flexible working hour employees pursuant to both national and local laws and regulations. Only in this way can the health and work-life balance of these employees be ensured. If the companies do not guarantee the rest and holidays of these employees, it would cause legal risks. For example, even when a company has already gained approval for special working hour systems, the actual working hour system implemented may still be deemed as not conforming with the characteristics of the comprehensive working system/flexible working hour system, making it difficult to apply for the extension of the approval for the working system, incurring administrative discipline, or resulting in payment of overtime wages.
Editor: Normand Gauthier