Overtime Payment Must Be Paid For The Rest Work.

In 2011, Feng was hired as a tanker driver by a building material company in Shenyang. According to the labor contract, Feng went to work at 8 o'clock every morning, and left work at 8 o'clock the next day. After 24 hours, he worked for 24 hours. On Saturday, Sunday and holidays, he arranged the schedule accordingly. Every year from December 25th to February 25th, the building materials company shut down in winter, and Feng has a rest.

After two years of work, Feng went to court for building materials, asking for more than 8 hours a day and overtime pay for holidays.

The court of first instance held that the characteristics of the concrete industry determine the concrete site operation of the plaintiff's post. The task is not always at all times. Therefore, the plaintiff's working hours in the defendant unit are not all working hours. Therefore, the court does not support the "overtime pay" outside the 8 hour working hours advocated by the plaintiff and the overtime pay on public holidays. But even in the form of rotation, workers should enjoy statutory overtime pay.

The court of first instance supported Feng's overtime work during the statutory holidays, totaling 2244 yuan. After the verdict of the first instance, Feng submitted an appeal. The court of second instance, after hearing the case, dismissed the appeal and upheld the original judgment.

The case of overtime pay has always been a hot topic in labor dispute trials. According to statistics, cases involving overtime claims have accounted for 20% to 30% of the total number of labor disputes, while the calculation of overtime pay for special industries and post workers is the difficulty of such cases. Workers can work overtime on statutory holidays, and employers can not be relieved of their overtime pay by way of adjustment.

Chen Xiantao, a lawyer of Wanjia law firm in Liaoning, points out that the forty-fourth section of the Labor Law lists several cases where employers should pay wages higher than the normal working hours of workers: arranging wages for workers to extend their working hours, paying wages that are not less than 150% of wages, arranging workers to work on a break day, and not arranging compensatory breaks, paying wages that are not less than 200% of wages; arranging statutory holidays for workers to work, and paying wages that are not less than 300% of wages. It can be seen from the above that only overtime on rest days can be arranged for the rest. Overtime and overtime pay should be paid for extended overtime and statutory holidays.

If a large number of laborers do not get overtime pay if they have been working overtime on statutory and public holidays, they may complain to the local labor supervision department at the same level.

The above overtime pay is calculated in accordance with the normal situation. For some special jobs, there are special laws.

" labour law "The thirty-ninth article stipulates:" the enterprise can not carry out the thirty-sixth law of this law because of the characteristics of production (the State implements the working hour system that the worker works no more than 8 hours per day, the average weekly working time does not exceed 44 hours), and thirty-eighth (the employer should guarantee that the worker should rest at least 1 days a week), and after the approval of the labor administrative department, other work and rest methods can be implemented.

What kind of work is an exception? According to the thirty-ninth article of the labor law, the examination and approval procedures for the implementation of the irregular working system and the comprehensive calculation work hour system for enterprises (hereinafter referred to as " methods of examination and approval "There is a clear stipulation on this.

It is stipulated that senior management, field workers, salesmen, some duty officers and other workers and staff members in enterprises, long-distance drivers, taxi drivers and workers in railway, port and warehouses who are unable to work in accordance with standard working hours and other workers who need to work in a flexible way, as well as workers who are required to work in a special way, can carry out other work and rest methods such as irregular working hours or comprehensive calculation of working hours. In such sectors as transportation, railways, posts and telecommunications, water transport, aviation, fishery, etc., workers who need continuous operations due to their special working nature, and workers engaged in geological and resource exploration, construction, salt making, sugar making, tourism and other industries restricted by seasonal and natural conditions, can carry out comprehensive calculation of working hours. "Examination and approval procedures"

" methods of examination and approval "Stipulates that the workers who are working on the above two kinds of work should, on the basis of ensuring the health of workers and fully listening to the opinions of staff and workers, adopt appropriate ways such as centralized work, concentrated rest, rest and rest, flexible working hours and other appropriate ways to ensure the workers' right to rest and vacation and the completion of production and work tasks. The above two types of work units need to be approved by the labor administrative department, and they will still be counted as overtime if they exceed the total working hours.