Is It Not Entitled To Enjoy The Annual Leave After One Year'S Disqualification?

Brief introduction of the case

In May 2008, Xiao Yang, director of workshop in a factory, introduced to a certain auto parts company and signed a two-year labor contract through his friend's introduction.

In November 3, 2008, Xiao Yang submitted an application for 5 days' leave to the human resources department of the auto parts company, but it was not approved until the end of November.

According to the auto parts company holiday system, "because of the company's business and business needs, the employee's annual leave time is up to November 30th each year, and the annual salary is not paid for the full holiday, and the salary is paid in November."

Xiao Yang thought that the company did not arrange his vacation because of business needs, nor did he raise any objection.

But when he got the payroll in November, Xiao Yang found that the company did not pay the wages of its unpaid vacation according to the number of days off.

In this regard, the Ministry of human resources explained that employees who had worked in the company for only one year were entitled to annual leave. Xiao Yang entered the company in May 2008, so there was no annual leave, and the unit did not pay three times the number of days of annual leave.

Xiao Yang believed that his rights and interests had been infringed, and he submitted arbitration to the labor dispute arbitration committee on the second day.

Arbitration result

After mediation, the auto parts company paid the annual leave for Xiao Yang on the annual vacation days (3 days) and 300% daily wages.

Meanwhile, the labor dispute arbitration committee has corrected the illegal provisions in the vacation system of the auto parts company.

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Expert comment

Focus one: must work in the current work unit for a full year to have the right to annual leave?

In the forty-fifth provision of the labor law promulgated in 1994, it is clear that the system of paid annual leave in China should be implemented, and the workers who enjoy continuous work for more than one year will be entitled to paid annual leave.

Since then, the regulations promulgated by the State Council on the annual leave with pay for employees and the implementation method of paid annual leave for employees of Enterprises promulgated by the Ministry of human resources and social security have been put into effect in January 1, 2008 and September 18, 2008.

So far, the system of paid annual leave in China has been improved.

According to the above law, workers who meet the following conditions can enjoy paid annual leave:

1. establish labor relations with enterprises in People's Republic of China, private non enterprise units, and individual industrial and commercial households with employees.

2. continuous work for more than 12 months;

3. without the following circumstances:

(1) employees enjoy the winter and summer holidays according to law, and their vacation days are more than

(2) employees should ask for a leave of absence for more than 20 days, and the unit does not deduct wages according to the regulations.

(3) cumulative workers who have worked for 1 years or less than 10 years will ask for sick leave to accumulate for more than 2 months.

(4) cumulative workers who have worked for 10 years or less than 20 years will ask for sick leave to accumulate for more than 3 months.

(5) employees who have accumulated more than 20 years' work shall have a sick leave for more than 4 months.

(6) employees have enjoyed the same year.

The focus of this case is on the different interpretations of the above second items (i.e. 12 months' continuous work) by auto parts company and Xiao Yang.

The auto parts company believes that it has clearly stipulated in its internal rules and regulations that "employees who work in this unit for more than one year will enjoy paid annual leave" and that their own rules and regulations have already entered into force in accordance with the law. Xiao Yang signed a labor contract with the company in May 2008 and did not meet the conditions for taking leave of absence.

Xiao Yang believes that the second day after he terminates labor relations with his original unit, he goes to the auto parts company to report to work. Social insurance has not been interrupted, and the continuous working time has been more than 7 years.

On the surface, the two sides are reasonable, so how do we understand the continuous work for more than 12 months?

The author believes that in the third provision of the implementation method of paid annual leave for enterprise employees, there is no modification and restriction on "continuous work for 12 months", but the auto parts company has imposed a "same employer" restriction on the vacation system. This practice actually damages the rights and interests of the workers who have worked for less than one year in new units, and is not in conformity with the law.

Therefore, Xiao Yang should be entitled to paid annual leave.

Meanwhile, the labor dispute arbitration committee has made corrections to the illegal provisions of the auto parts company's leave system.

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Focus two: how to calculate the number of new employees' annual leave days?

According to the salary of enterprise employees

According to the third provision of the annual regulations on paid annual leave for employees, workers have accumulated 1 years of work for less than 10 years, and 5 days of annual leave; 10 years of annual leave for 10 years and less than 20 years; and 20 days of annual leave for 10 days.

The national statutory holidays and rest days do not include annual leave.

If a worker works continuously in the same employer for more than one year, the employer can determine the number of days of annual leave for workers in accordance with the above provisions.

For workers who are less than one year of work in the same employer, and the total number of workers who work continuously for one year, their annual vacation days can be stipulated according to the fifth provision of the implementation method of annual leave for enterprise employees. The new employees and workers have been working continuously for more than 12 months. When the number of days of annual leave is converted according to the days remaining in the unit, the part less than 1 days after conversion is not entitled to annual leave.

In this case, Xiao Yang worked in the auto parts company in May 2008 and accumulated a continuous working time of over 7 years, so Xiao Yang left the "calendar days" remaining in the auto parts company in 2008 for 245 days.

According to the regulations, the annual vacation days for Xiao Yang should be 5 days, so the annual vacation days for Xiao Yang in the auto parts company should be (245/365) 5 days, 3.35 days.

Because of 0.35 days less than 1 days, Xiao Yang's annual vacation days are 3 days.

Focus three: how should the wages be paid if the employee's annual leave is not full?

The calculation and payment of annual annual leave for employees has always been a more intractable problem of employers' human resources managers, and is also a problem that can easily lead to conflicts between employers and employees and cause labor disputes.

The author thinks that the calculation and payment of annual salary for employees' annual leave should be analyzed and determined through the following situations:

1. if the employing unit arranges employees to take full annual leave in accordance with the law, the employee shall enjoy the same wage income as the normal working period during the annual leave period, and the employer shall not make any corresponding deduction according to the internal regulations.

2. the employing unit shall arrange for employees to take their annual leave in accordance with the law, but the employees will only pay their wages during their normal working period because of their own reasons and the written annual leave.

3. employers need to arrange annual leave for employees over the years because of the characteristics of production and work. After consultation with employees, they can arrange for 1 years, and do not have to pay 300% annual vacation pay.

4. the employing unit does not arrange for employees to take their annual leave due to their work needs. If agreed by the workers themselves, the employer shall pay the annual vacation pay according to 300% of the daily wage income of the workers according to the number of days off the employees should rest.

Xiao Yang in this case submitted an annual leave application to the Ministry of human resources on the 3 day of November 2008. According to the company's leave system, the auto parts company did not approve Xiao Yang's leave, and should pay 300% of the annual leave pay with the November salary.