Legal risks of different working hours calculation systems | enterprise risk control
With the development of social life, there is a big difference in the calculation mode of labor hours between different industries. In addition to the traditional standard working hours system, the comprehensive calculation working hours system and the non-fixed working hours system provide enterprises with a more flexible new choice. This article will compare the legal risks of different working hours calculation systems, so that enterprises can make the best choice according to their own circumstances.
一、Comparison of the applicable premises of different working hours
1. Standard working hour system: The standard working hour system has no applicable preconditions for the enterprise, and the laborer and the enterprise can directly agree on the working hour calculation method of the standard working hour system in the contract, without the examination and approval of the relevant administrative authorities.
2. Comprehensive calculation of working hours system: If the enterprise and the laborer sign a contract and stipulate that the comprehensive calculation of working hours system is applied directly or in disguised form to calculate the working hours of the laborer and calculate the wages and salaries of the laborer, if the enterprise is directly under the central Government, it shall be examined by the competent department of the industry under The State Council and submitted to the Ministry of Human Resources and Social Security under The State Council and other administrative departments for approval; If it is a local enterprise, the specific examination and approval measures shall be formulated by the labor administrative department of the people's government of the provinces, autonomous regions and municipalities directly under the Central Government and reported to the labor administrative department of The State Council for the record. At present, the enterprise generally needs to report to the local district and county labor protection bureau for approval. Without approval, the scope cannot be arbitrarily expanded.
In general, enterprises that intend to apply for the comprehensive working hour system should provide the following application materials: application form (including basic information such as the nature and characteristics of the enterprise, business scope and scale, as well as the types and reasons for applying for the implementation of the special working hour system); Business license of enterprise legal person or business license, registration certificate and photocopies thereof; The posts, number of people, application period and cycle for which the special working hours system is implemented; Toxic and harmful posts shall submit testing reports issued by occupational safety and health technical service institutions; The implementation plan for the special working hour system formulated by consensus with the workers; The opinions of the workers' congress (workers' congress) or the trade union on the implementation plan, and the enterprises without a trade union, shall be signed and approved by the workers applying for positions.
It should be noted that in some special circumstances, the comprehensive working hour calculation model adopted by the enterprise that has passed the application may also be revoked. Specifically, there are the following situations: the approval decision made by the approval authority beyond the statutory authority; The approval decision made by the examination and approval authority in violation of the legal procedure; The approval decision made by the examination and approval authority on an enterprise that is not qualified to apply or fails to meet the statutory requirements; An enterprise that has been approved to implement special working hours violates these Provisions and refuses to make corrections after receiving administrative punishment; The enterprise obtains the approval decision by cheating, bribery or other improper means. It should also be noted that the application of the comprehensive working hour system is subject to period restrictions, and enterprises need to pay attention to timely renewal or suspension of the application of the comprehensive calculation working hour system when the period expires, otherwise it will be regarded as unauthorized use of the special working hour system without approval, which will lead to relevant administrative penalties.
3. No-time working hours system: the no-time working hours system and the comprehensive calculation working hours system belong to the special working hours system, and their pre-approval conditions and approval forms are the same as those of the comprehensive calculation working hours system. I will not go into details here.
二、Comparison of calculation methods of different working hours
1. Standard working hour system: Employees applying the standard working hour system shall be calculated in strict accordance with the daily working hours and weekly working hours stipulated by law. The working hours shall not exceed 8 hours per day, the working hours shall not exceed 44 hours per week, and the working hours must be 1 day off per week. The details of salary payment for employees of the enterprise shall be negotiated between the workers and the enterprise.
2. Comprehensive calculation hours system: When applying to the administrative organ for the application of comprehensive calculation hours system, enterprises need to determine the period of comprehensive calculation hours applied. The common cycle includes the cycle in which the working hours are calculated comprehensively by week; The cycle for calculating working hours in a comprehensive manner is monthly; The cycle for calculating working hours on a quarterly basis; The cycle for calculating working hours is calculated on a yearly basis. The total working hours that employees are required to meet in each cycle are agreed to, and in addition to ensuring that employees have 1 day off per week, employees are not limited to working more than 8 hours continuously within the range of total working hours, and can work up to 11 hours continuously. However, it should be noted that the relaxation of the restrictions on working hours is limited to the agreed range of total working hours. Once the working hours within the working period of the worker is expired, the enterprise still needs the worker to extend the working hours, and the extended working hours have a maximum limit. Among them, the weekly period shall not exceed 15 hours and the monthly period shall not exceed 36 hours; If the period is monthly, it shall not exceed 36 hours; If the period is quarterly, it shall not exceed 108 hours; The annual period shall not exceed 360 hours. It should also be emphasized here that the employees of enterprises applying the comprehensive calculation hours system are essentially the same as the employees of enterprises under the standard working hours system in terms of average working hours. That is, companies cannot require employees to exceed the average weekly working time limit of 44 hours per cycle. CGT is simply a way of scheduling work hours rather than a way in which companies can force employees to work endlessly.
3. Non-fixed working hours system: Employees who apply to the non-fixed working hours system do not have the calculation of working hours in essence, but the employee's labor results are used as the basis for calculating salaries. However, the general non-scheduled working hours system needs to be similar to the average daily working hours and average weekly working hours of the standard working hours system, and ensure that employees have at least one day off per week.
三、Comparison of overtime pay for different working hours
Before analyzing the calculation of overtime pay, it is necessary to distinguish the rest time of several different workers stipulated by law. In general, workers can be given statutory leave time is divided into: rest days, statutory holidays, paid annual leave. Rest days are mainly reflected in the workers' weekends, while legal holidays are strictly stipulated by our country's administrative regulations, limited to the provisions of the "National Festival and Memorial Day holiday measures" : New Year's Day (Gregorian calendar January 1); Spring Festival (the first day of the first lunar month, the second day, the third day); Tomb-sweeping Day (lunar Qingming Day); Labor Day (May 1, Gregorian calendar); Dragon Boat Festival (lunar Dragon Boat Festival day); Mid-Autumn Festival (lunar Mid-Autumn Festival day); National Day (October 1, 2, 3, Gregorian calendar). Some holidays applicable to special targets have the following provisions: Women's Day (March 8), women have half a day off; Youth Day (May 4), youth over 14 years old have half day off; Children's Day (June 1), children under 14 years old have 1 day off; The anniversary of the founding of the Chinese People's Liberation Army (August 1), active soldiers have a half-day holiday. The paid annual leave is calculated according to the employee's working years, and the employee negotiates with the enterprise when to take the leave under the legal framework.
The reason why the above three common breaks are distinguished is that different kinds of employees are required to work during the rest time, and the overtime pay required by the enterprise is different:
(1) Standard working hour system: Enterprise employees applying the standard working hour system, strictly distinguish between working days and rest days, work on rest days, and the enterprise does not arrange for workers to take compensable rest, the enterprise shall pay not less than 200 percent of the wage remuneration. Where workers are arranged to work on statutory holidays, the enterprise shall pay no less than 300 percent of the wages. It should be noted here that the extra overtime pay required by the company to work on statutory holidays cannot be offset by vacation transfer in essence.
2. Comprehensive calculation of working hours system: Employees who apply the comprehensive calculation of working hours system do not distinguish between working days and rest days in the same cycle, that is, within the total working hours range agreed in the contract, and ensure the basic rest time stipulated by law for employees of the enterprise, there is no problem of calculation of overtime pay. However, it should be noted that if the worker's total working hours exceed the specified working hours in the same wage calculation cycle, the excess part shall be paid for overtime in accordance with 150% of the salary. However, if the employees of the enterprise who apply the comprehensive working hour system work on statutory holidays, the enterprise still needs to pay the wages according to the standard of 300 percent of the wages.
3. Non-scheduled working hours system: Employees who apply to the non-scheduled working hours system do not distinguish between working days and rest days within the same cycle, that is, except for the basic rest time stipulated by law for employees of enterprises, there is essentially no calculation problem of overtime pay for workers working except legal holidays. When workers work on statutory holidays, regulations on whether to pay overtime pay vary according to local policies of the Ministry of Human Resources and Social Security. For example, according to Article 13 of the Measures for the Payment of Wages by Enterprises in Shanghai, workers who are approved by the administrative department of human resources and social security to implement the irregular working hours system are arranged to work by enterprises on statutory holidays, and the enterprises shall pay wages and remuneration in accordance with the standard of 300 percent of wages. However, Article 15 of the "Jilin Province Enterprise Wage Payment Measures" stipulates that if the human resources and social security departments approve the implementation of the irregular working hours system, even if the enterprise requires it to work on legal holidays, it does not need to pay 300 percent of the standard overtime pay.
四、Other differences
For the special working hours system (including the non-fixed working hours system and the comprehensive calculation of working hours system), after receiving the approval of the approval authority, the enterprise should be publicized in the unit, the general publicity period is not less than 15 working days. At the same time, after the approval of the implementation of the special working hours system of the post, the enterprise shall inform the workers, in the signing of the labor contract, the nature of the job, the nature of the working hours, and the rest and vacation, labor remuneration and other contents. For workers who have already signed labor contracts, relevant contents shall be loaded in the original labor contracts.
