Interpretation of this article on the employer to arrange for workers to work overtime restrictions.
This article stipulates three meanings
I. Employers shall not force workers to work overtime:
In order to guarantee the combination of work and rest for workers, to maintain their physical and mental health, and to ensure that they have the necessary time for cultural recreation and scientific and technological learning, and to enable them to have the necessary time to take care of their household chores, to educate their children, and to improve their health and living environment, the Constitution of our country stipulates that citizens have the The right to rest. In order to protect the citizens' right to rest, the labor law provides a complete system of working hours and rest and vacation.
At present, China's working hours and rest and vacation system are mainly embodied in the following three aspects:
1. The implementation of the eight-hour working day for workers
The Labor Law of 1994 provides a complete stipulation on the eight-hour working day. That is, the State implements a working hour system in which workers may not work more than eight hours a day or forty-four hours a week on average, and employers should ensure that workers have at least one day of rest a week, which is the standard legal working time. The working hours of piece-rate workers should be calculated with reference to the eight-hour working hour system, and their labor quotas and piece-rate compensation standards should be reasonably determined. Of course, if an enterprise is unable to implement the eight-hour working day and the system of at least one day's rest per week due to its production characteristics, it may, with the approval of the labor administrative department, implement other work and rest methods, but such other work and rest methods must ensure that the workers' right to rest is fully and effectively safeguarded.
In 1995, the State Council promulgated and put into effect the "Regulations of the State Council on the Working Hours of Employees", which further stipulated the eight-hour working day on the basis of the labor law. That is, employees work forty hours a week. Where labor is performed under special conditions and where there are special circumstances that require an appropriate reduction in working hours, these shall be carried out in accordance with the relevant State regulations; this refers mainly to a working time system of fewer than the standard number of working day hours under conditions that are seriously hazardous to health and poor labor conditions, as well as under conditions that provide special protection for female workers and underage workers. State organs and institutions implement uniform working hours, with Saturdays and Sundays as weekly rest days; enterprises and institutions that are unable to implement Saturdays and Sundays as weekly rest days may flexibly arrange for weekly rest days in accordance with the actual situation.
2. Provision of legal holidays, annual leave and family visit leave for workers and other leave systems
On New Year's Day, the Spring Festival, International Labor Day, National Day, and other vacations provided for by laws and regulations, employers must arrange for workers to take leave.
The State implements a system of paid annual leave. Workers who have worked continuously for more than one year are entitled to paid annual leave. Annual leave means that workers are entitled to a continuous period of rest within a certain period of time each year to retain their jobs and wages.
According to the Provisions of the State Council on Employee's Family Visit, the conditions for enjoying the employee's family visit leave are that any employee who has worked for one year or more in the state organs, people's organizations, and the nationally-owned enterprises and institutions, and who is not with his or her spouse and cannot be reunited on the official leave day, can enjoy visiting his or her spouse; and if he or she is not with his or her parents and cannot be reunited on the official leave day, he or she can enjoy visiting his or her parents. (c) Family leave. Employee's family visit leave refers to the time when the employee is reunited with his/her spouse and parents. In addition travel leave is granted according to actual needs.
3. Restrictions on Overtime Work
Overtime work, also known as extended working hours, means that the employer, after a certain procedure, requires the workers to work more than the maximum number of working hours per day and days per week stipulated by laws and regulations.
In order to protect the right to rest and physical health of workers, China strictly restricts employers from extending the working hours of workers, and the labor law clearly stipulates that employers shall not extend the working hours of workers in violation of the provisions of the labor law. This means that, in general, employers may not arrange for workers to work overtime at will.
The employer arranges for workers to work overtime, according to the provisions of the labor law, need to pay attention to the following issues: (1) first of all, due to the employer's production and management needs, really need to extend the working hours. Production and business needs mainly refers to the urgent production tasks, must be continuous production, transportation or business. (2) Secondly, it must be negotiated with and agreed to by the labor union. If an employer decides to arrange for workers to work overtime, it shall explain to the labor union the reasons for arranging overtime, the number of people involved, and the duration of the overtime, and obtain the union's consent before extending the working hours. If the labor union does not agree, workers may not be forced to work overtime. (3) Again, workers must be consulted. If an employer decides to arrange for workers to work overtime, the employer shall further consult with the workers, because overtime work takes up the workers' rest time, and overtime work may be arranged only if the workers agree to do so voluntarily. If the worker does not agree, he or she may not be forced to work overtime. This is because a worker's right to rest is a legal right that cannot be taken away by anyone except in accordance with legal procedures. (4) In addition, the length of overtime work arranged by the employer must comply with the restrictive provisions of the Labor Law. According to the provisions of the Labor Law, the employer shall strictly control the limit of extended working hours by arranging for workers to work overtime, which generally shall not exceed one hour per day; if it is necessary to extend the working hours for special reasons, the extended working hours shall not exceed three hours per day under the condition of protecting the health of the workers, but shall not exceed thirty-six hours per month. (5) Finally, under normal circumstances, employers are not permitted to require their employees to work overtime at will; however, in the event of emergencies that jeopardize public ****safety and the public interest, the law permits employers to extend the working hours of their workers to appropriately break the above provisions. According to the labor law and relevant state regulations, the employer arranges for overtime work only in the following cases, which are not subject to the above conditions: in the event of natural disasters, accidents, or for other reasons, people's lives, health and property safety are seriously threatened and need to be dealt with in an urgent manner; in the event of a breakdown of production equipment, transportation routes, or public **** facilities, which affects the production and the public interest, and must be repaired in a timely manner; and in the event of the necessity to The use of legal holidays or public holidays during the shutdown period for equipment overhaul, maintenance; in order to complete the urgent task of national defense, or to complete the state in the unplanned arrangements for other urgent production tasks, as well as commercial, supply and marketing enterprises in the completion of the acquisition, transportation, processing of agricultural and sideline products emergency tasks; laws and administrative regulations provide for other circumstances.
Of course, the state also has certain restrictions on overtime workers. According to the labor law and other relevant state regulations on the special protection of female workers and underage workers, employers are prohibited from arranging overtime work for underage workers, pregnant female workers and female workers breastfeeding infants of less than 12 months outside the normal working day.
At present, the phenomenon of forcing workers to work overtime is widespread in a considerable number of labor-intensive enterprises. Some employers force workers to work fourteen or five hours a day on the pretext of fulfilling orders, seriously damaging their health and infringing on their legitimate rights and interests. Some employers coerce workers to work overtime by withholding bonuses, imposing heavy fines and other forms of internal discipline. The heads of some employers arrange work assignments before the end of the workday, and workers have no choice but to settle for less in order not to lose their jobs. This law addresses these issues by clearly stipulating that employers may not force workers to work overtime, or else they will be held legally responsible.
Second, the employer shall not force the workers to work overtime in disguise
In practice, the employer shall force the workers to work overtime in disguise, which is mainly manifested in the employer's unreasonable and unscientific labor quota standards, which makes it impossible for most of the workers to complete the production tasks within the standard working hours of the eight-hour working hours, and in order to complete the work tasks stipulated by the employer and to obtain the labor remuneration enough to maintain their basic life. In order to complete the work tasks stipulated by the employer and receive labor remuneration sufficient to maintain their basic livelihood, the workers are forced to extend their working hours beyond the standard working hours, thus forcing them to work overtime in disguise.
Labor quota refers to the amount of labor that should be consumed to produce a unit of product or complete a certain amount of work, or to produce a product or complete a certain amount of work in a unit of time, under certain production and technical conditions, using scientific and reasonable methods. Labor quotas are generally estimated on the basis of past practical experience in completing the work or similar work, or based on the statistics of the production of similar products, and formulated through collation and analysis, or through the analysis of the technical and organizational conditions of the production, on the basis of tapping the potential for production and the reasonableness of operating procedures, and formulated by tracking the relevant operations in the workplace throughout the working day. In order to ensure that the quota level can be scientific, advanced and reasonable, in the formulation of the quota must meet three requirements: First, to determine the consumption of a product or a job, there must be a scientific basis; scientific basis refers to the design documents, process documents, quality standards, the past quota to complete the situation of the statistics, the same industry and the same type of work under similar conditions, such as the quota of information. Secondly, we should summarize and promote the advanced experience of labor saving, tap the potential of improving labor productivity, and ensure the advancement of the quota level. Third, to ensure the unity of the same work quota and different work (including different production units, different types of work, different products) quota level of balance.
The formulation of scientific and reasonable labor quota standards is extremely important to safeguard the legitimate rights and interests of workers. According to the provisions of the labor law and relevant administrative regulations, the employer shall reasonably determine the labor quotas and piece-rate compensation standards for piece-rate workers based on the standard working hours of eight hours per day and forty hours per week. This means that the labor quotas for piece-rate workers should be based on the fact that the majority of workers are able to complete their work within the statutory working hours of eight hours per day and 40 hours per week under normal working conditions. Exceeding this standard shall be recognized as an unreasonable standard of labor fixing.
According to the above provisions, the employer shall have the right to independently determine the labor quotas and piece-rate compensation standards for workers who are paid on a piece-rate basis, but the labor quotas or piece-rate compensation standards shall be formulated in accordance with the principles of science and reasonableness; the labor quotas and piece-rate compensation standards shall be kept stable after they have been determined, and the employer may appropriately adjust the labor quotas in accordance with the needs of the production and operation, but the labor quotas shall be adjusted in the same manner as the majority of the workers can work within the statutory working hours. be limited to the actual amount that can be accomplished by the majority of workers within the legal working hours, and shall not be adjusted arbitrarily. On this basis, the formulation of scientific and reasonable labor standards, in accordance with the provisions of this Law, the employer shall be strictly enforced.
Before the 1990s, the management of labor quotas was carried out by the state labor security department in conjunction with the competent departments of enterprises. The state set up a labor quota management committee composed of experts from various fields and department heads, the relevant departments of the State Council formulated industrial labor quota standards, and enterprises formulated enterprise standards in accordance with the "national standards" and "ministerial standards". 1989 the Ministry of Labor and the National Reform and Development Commission jointly issued the "National Labor Standards" and the "National Standards". The Ministry of Labor and the National Reform Commission jointly issued the Opinions on Strengthening the Work of Labor Quotas and Standards, pointing out that enterprises should strengthen the work of labor quotas and standards, and putting forward specific requirements for the establishment, improvement and formulation of labor quotas and standards. However, with the institutional reforms and the abolition of ministries and commissions, the departments specifically responsible for the formulation and management of labor quotas disappeared, and from the central to the local levels, government departments and relevant industry associations did not inquire about the issue of labor quotas for enterprises, and the formulation and management of labor quotas were basically in an unorganized state. In this disordered state, some employers, instead of scientifically determining labor quotas on the basis of job evaluation, set a predetermined wage amount in advance and then converted it into a quota, setting many standards for labor quotas that even skilled workers could not complete within eight hours; some employers, especially non-public enterprises, arbitrarily raised their labor quotas and lowered the wages of their workers in disguise, so that many workers were forced to "voluntarily" accept the labor quotas. Some employers, especially non-public enterprises, arbitrarily increase the labor quotas and lower the wages of workers in disguise, so that many workers are forced to "voluntarily" accept overtime work for a longer period of time, and the employers do not need to pay them overtime wages according to the legal standard; some employers take overtime work as a kind of "corporate culture", and make it related to the employees' "dedication Some other employers regard overtime as a kind of "corporate culture" and link it to the employees' "professionalism", salary, renewal of labor contract, and job promotion. According to the Shanghai Federation of Trade Unions survey of 1,000 workers in the city, 26.3% of them believed that the enterprise labor quotas were too high or high, and of the 109 employees who were paid piece-rate wages, 92 were required to work overtime frequently due to failure to meet the labor quotas, of which 70.6% worked overtime for less than one hour, 24% worked overtime for less than two hours, and the rest, 5.4%, worked overtime for more than two hours. In 2005, the Standing Committee of the National People's Congress (NPC) found during its labor law enforcement inspection that it was very common for some enterprises to arbitrarily revise their labor quotas, and that "workers were unable to complete their quota tasks within eight hours of work" and had to choose to "voluntarily work overtime".
In response to the above phenomenon, the Labor Contract Law clearly stipulates in this article that employers shall not force workers to work overtime in disguise. If the employer violates the above provision, it shall bear certain legal responsibilities according to this law and the relevant provisions of labor laws and regulations. Meanwhile, according to Article 4 of this Law, when an employer formulates, modifies or decides on the management system of labor quota standards, it shall be discussed by the workers' congress or all the workers, put forward proposals and opinions, and determine them through equal consultation with the trade unions or representatives of the workers; in the process of the implementation of the labor quota standards, the trade unions or the workers, if they think that the employer's labor quota standards are inappropriate, they have the right to put forward their proposals to the employer and make modifications and improvements through consultation. The labor union or employees have the right to propose to the employer that the labor quota standards are inappropriate, and through consultation to make changes and improvements.
Third, the employer arranges for the workers to work overtime, shall pay their overtime pay
Overtime pay refers to the labor remuneration received by the workers who continue to produce labor or work beyond the prescribed working hours in accordance with the needs of the production and work of the employer. By working overtime, workers extend their working hours and increase the amount of extra labor, and should be reasonably remunerated. For the workers, overtime pay is a kind of compensation for the excessive labor; for the employers, the payment of overtime pay can effectively restrain the employers from arbitrarily extending the working hours and protect the legitimate rights and interests of the workers. According to the labor law and relevant state regulations, the employer shall pay the wage compensation higher than the wage of the worker's normal working hours, i.e. overtime pay, in case the employer extends the worker's working hours. This article affirms the legislative spirit of the labor law and other relevant state regulations on the payment of overtime compensation.
According to the provisions of Article 44 of the Labor Law, the specific standards for the payment of overtime compensation are as follows: if a worker is arranged to work longer hours during a standard working day, a wage compensation of not less than 150 percent of the wage shall be paid; if a worker is arranged to work on a rest day, and if it is not possible to arrange for a compensatory break, a wage compensation of not less than 200 percent of the wage shall be paid; if a worker is arranged to work on a statutory vacation, a wage compensation of not less than 300 percent of the wage shall be paid. less than three hundred percent of the wages.
Extending the working hours and rest days of workers beyond the standard working hours and arranging for workers to work on statutory vacations are all taking up the workers' rest time, and should be strictly limited, and the payment of wages and remuneration higher than the normal working hours is one of the restrictive measures taken by the state. However, the organization of work for workers in the three situations mentioned above is not exactly the same; for example, the rest of workers on statutory vacations is of greater significance to them than the usual days and rest days, and affects their spiritual, cultural and sports life and other social activities, which cannot be compensated for by compensatory time off, and should therefore be paid at a higher rate of pay. When an employer arranges for workers to work overtime in the above circumstances, it shall pay overtime compensation in strict accordance with the provisions of the Labor Law and this Law. Overtime belonging to which situation, should implement the provisions of the law on such cases, can not be confused with each other, can not be replaced, otherwise are in violation of the labor law and this law, are a violation of the rights and interests of the workers, shall bear legal responsibility in accordance with the law.
According to the provisions of this Article, forcing a worker to work overtime in disguise shall be regarded as an extension of the worker's working hours in violation of the provisions of the Labor Law. The worker may, in accordance with the relevant provisions of the Labor Law and this Law, demand that the employer pay him back wages for overtime work done in order to fulfill more than a reasonable number of labor quotas.
Article 72 Employers and workers must participate in social insurance and pay social insurance premiums in accordance with the law.
Article 73 Workers shall be entitled to social insurance benefits in accordance with the law under the following circumstances:
(1) retirement;
(2) illness or injury;
(3) work-related disability or occupational disease;
(4) unemployment;
(5) childbirth.
2. The Labor Contract Law stipulates:
Article 17 A labor contract shall have the following provisions:
(1)~(6) omitted;
(7) social insurance;
(8)~(9) omitted.
Article 38 A worker may terminate the labor contract if the employer does any of the following:
(i)~(ii) omitted;
(iii) fails to pay social insurance premiums for the worker in accordance with the law;
(iv)~(vi) omitted.
From this, we can see that the employer should participate in social insurance in accordance with the law from the date of the establishment of labor relations with workers. The clause in your employer's labor contract that requires workers to pay social insurance premiums only after one year of employment violates the above provisions of the Labor Law and the Labor Contract Law.
Attachment:
Social insurance*** has five types of insurance: 1. pension insurance; 2. unemployment insurance; 3. medical insurance; 4. work injury insurance; 5. maternity insurance.
Payment of social insurance premiums is based on the average monthly salary of on-the-job workers in the province where the insured person lives in the previous year, and is paid monthly in accordance with the following ratios
(1) Pension insurance premiums: the unit pays 20%, and the individual pays 8%.
(2) Unemployment insurance premiums: 2% for the unit and 1% for the individual.
(3) Medical insurance premiums: 8% for the unit and 2% for the individual.
(4) Worker's compensation insurance premiums: units pay, individuals do not pay.
(5) Maternity insurance premium: the unit pays, the individual does not pay.
To participate in social insurance, some places require all five types of insurance, while others only require three types of insurance: pension insurance, unemployment insurance and medical insurance.
Addresses and contact numbers of labor security supervision departments at all levels in Beijing
Dongcheng District Labor Supervision Brigade: No. 27 Jiaodaokou South Street, Dongcheng District, 64041222
Xicheng District Labor Supervision Brigade: No. 20 Xizhimen South Xiaojie, Xicheng District, 66180004
Chongwen District Labor Supervision Brigade: No. 1, Changqingyuan, Chongwen District, 67188956
City of Chongwen District Labor Supervision Brigade: No. 1, Changqingyuan, Chongwen District 67188956
Xuanwu District Labor Inspection Brigade: No. 24, Zixin Road, Xuanwu District 63539996
Chaoyang District Labor Inspection Brigade: No. 34 Xiaoyun Road, Chaoyang District 64678220
Haidian District Labor Inspection Brigade: No. 275, Beisihuan Middle Road, Haidian District 82373060
Fengtai District Labor Inspection Brigade: No. 1, Article 3, Dong'an Street, Fengtai Town, Fengtai District 63812540
Shijingshan District Labor Inspection Brigade: No. 68878442, West Exit of Yangzhuang, Shijingshan District
Mentougou District Labor Inspection Brigade: No. 13, Xinqiao South Street, Mentougou District 69831534
Fangshan District Labor Inspection Brigade: No. 5, Liangxiang West Road, Fangshan District 89367054
Tongzhou District Labor Inspection Brigade: No. 85, Canal East Street, Tongzhou 81537029
Shunyi District Labor Inspection Brigade: No. 89445756, Shiyuan West Road, Shunyi District
Huairou District Labor Inspection Brigade: No. 21, Yingbin Middle Road, Huairou District 69641730
Daxing District Labor Inspection Brigade: No. 5, Dongdajie Huangcun, Daxing District 69241320
Daxing District Labor Inspection Brigade: No. 5, Dongdajie Huangcun, Daxing District 69241320
Yanqing County Labor Inspection Brigade: No. 80, Gaota Street, Yanqing County 69101155
Miyun County Labor Inspection Brigade: No. 32, A, Xinxilu, Miyun County 69041504
Changping District Labor Inspection Brigade: No. 3, Govt. Street, Changping District 69744520
Pinggu District Labor Inspection Brigade: No. 1, Fuqianxi Street, Pinggu District 89941730
Daxing District Labor Inspection Brigade: No. 1, Fuqianxi Street, Huairou District No. 1, Fuqian West Street 89985416
To find a lawyer to consult is to charge, reflect the effect of the situation will be more direct, the best and fastest way is through the media exposure. A reminder, collect evidence, working time overtime time regulations of the documents and so on. You can also directly file a labor arbitration