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Experts suggest that a reasonable mechanism for arranging annual leave time should be established to realize the real coordination between the annual leave arrangement of employers and the wishes of workers, which not only takes into account the orderly progress of production and operation, but also achieves the effect of relaxing workers and maintaining and restoring their working ability .
The Spring Festival has just passed, and after enjoying long or short vacations, workers have returned to work one after another.
The reporter's investigation found that some companies arranged for workers to take annual leave by extending the Spring Festival holiday, and combined the Spring Festival holiday and annual leave, so that workers, especially those from other places, would have more time to enjoy the reunion year. Secondly, it also meets the actual production needs of the company, which is a "best of both worlds" approach.
However, some workers did not buy into this arrangement—"It is my right to take annual leave, shouldn't I decide the time of vacation independently?"
Use the extended Spring Festival holiday to offset annual leave
Zhang Yang from Tianjin worked as the design director of the management department in a real estate development company. Not long ago, the company dismissed him on the grounds of "optimization". I will take 7 more days off and pay the salary normally, but this is not a time I decide on my own, can it be regarded as my annual leave? Can I claim the untaken annual leave wages from the company?”
Like Zhang Yang, many workers also have doubts about whether the extended Spring Festival holiday arranged by the employer is equivalent to taking annual leave.
The reporter consulted the website of China Judgment Documents and found that, under the premise of normal payment of wages, the courts usually regard the extended Spring Festival holiday as the laborers have enjoyed annual leave.
In October 2015, 18-year-old Xie Hua joined a food company in Haikou, Hainan. In December 2018, he resigned from the company and claimed 1,377.8 yuan in wages for untaken annual leave in 2018.
In the lawsuit, the food company stated that the company gives Xie Hua annual leave in the form of extending the Spring Festival holiday every year. From 2015 to 2018, the annual leave time is 14 days, 12 days, 13 days, and 12 days respectively. The holidays are the annual leave enjoyed by Xie Hua, which has exceeded the number of days of paid annual leave that Xie Hua should enjoy.
"Because the company extended the Spring Festival holiday and deducted the statutory holidays for the Spring Festival that year, Xie Hua had already enjoyed 4 days of annual leave during the Spring Festival. In addition to the 4 days of paid annual leave he applied for by himself, there was no such thing as annual leave that should have been taken but not taken." Handling the case. Based on this, the judge did not support Xie Hua's request for the company to pay the untaken annual leave wages.
The employer's overall arrangement of annual leave is based on the law
Wang Xudong, a lawyer at Beijing Dongwei Law Firm, analyzed that based on the right to rest, a basic right granted to citizens by the Constitution, paid annual leave is also accompanied.
In practice, the focus of dispute between workers and employers is whether the company has the right to make arrangements for annual leave.
In this regard, the first paragraph of Article 5 of the "Regulations on Paid Annual Leave for Employees" has clearly stipulated that "the unit shall arrange the annual leave for employees according to the specific conditions of production and work, and considering the wishes of the employees themselves."
Wang Xudong said that it can be seen that although workers have the right to take annual leave, annual leave is not the only way for workers to apply to employers, and employers can also take the initiative to arrange it.
Xiao Zhu, executive dean and professor of the Law School of China Institute of Labor Relations, further explained that according to this regulation, the employer has the final decision to arrange annual leave, so it has the right to take the initiative to arrange annual leave by extending the Spring Festival holiday.
In addition to the Spring Festival, employers can also arrange annual leave at other times.
Then, how to reflect the personal wishes of workers in the arrangement of annual leave?
According to Xiao Zhu, according to the "Regulations on Paid Annual Leave for Employees", employers should consider the wishes of employees when arranging annual leave, but the regulations do not clearly stipulate that employers should negotiate with employees in arranging annual leave.
In judicial practice, whether the holidays arranged by the company as a whole can be regarded as annual leave is usually based on whether the company has fulfilled its obligation of notification to let employees know the nature of the holiday.
The company needs to bear the burden of proof for the claim that the employee "has taken annual leave".
Zhang Junhui, who works as a clerk in a clothing and clothing company, filed an arbitration application with the Labor and Personnel Dispute Arbitration Commission because the employer did not arrange for him to take the 2022 annual leave. During the period of March 15th, the staff will be on vacation for 15 days.
The Labor and Personnel Dispute Arbitration Committee believes that although the Spring Festival holiday listed in the "2022 Spring Festival Holiday Notice" submitted by the company is longer than the statutory Spring Festival holiday, it does not indicate that the holiday includes paid annual leave, and the company cannot submit other evidence to prove that Zhang Junhui's February Due to the payment of wages and the fact that he was aware of the annual leave arrangement, the company’s claims were not accepted, and the company was ruled to pay Zhang Junhui the untaken annual leave wages.
What should I do if the employee does not want to take vacation during the annual vacation period arranged by the employer?
Xiao Zhu said that if the employer arranges for the employee to not take annual leave due to his own reasons and in writing, the employer can only pay the salary income during the normal working period.
Both the arrangement of the employer and the will of the laborer should be taken into account
"The purpose of the annual leave system is to protect the right of workers to rest, to allow them to enjoy a longer period of rest and vacation, to maintain and restore their ability to work, and to mobilize their enthusiasm for work." Wang Xudong mentioned that the workers themselves Willingness is one of the factors for taking annual leave. At the same time, it should also be considered that no matter when it is arranged, as long as the leave is guaranteed, the purpose of allowing workers to rest has been achieved.
However, Article 5 of the "Regulations on Paid Annual Leave for Employees" also clarifies that it is a statutory obligation for employers to arrange for employees to take annual leave according to their own business conditions. Even if employees do not apply, it cannot be regarded as giving up annual leave.
As for some employers in the dispute claiming that employees have been arranged to take annual leave by means of group building and group outings, Xiao Zhu believes that annual leave is to protect the right of employees to rest and vacation outside of work, and should be the time for employees to leave their jobs. A right to relax.
After all, group outings arranged by employers are not the time for workers to freely control rest and relaxation, so they cannot be confused with or even deducted from annual leave.
Xiao Zhu said that the "Regulations on Paid Annual Vacations for Employees" only gives employers the right to coordinate and arrange annual vacation time, not the way of vacation. The right to decide how to spend the vacation should be fully given to workers.
Xiao Zhu suggested that in the future, in terms of improving the annual leave system, a reasonable mechanism for arranging annual leave time should be established, so as to realize the real coordination between the annual leave arrangement of the employer and the wishes of the laborers, which not only takes into account the orderly progress of production and operation, but also achieves Workers relax their bodies and minds, maintain and restore their working ability.
(The interviewees in this article are all pseudonyms)
Shi Lina