Determination Of Overtime Pay After Irregular Working Hours

If the two parties fail to change the contract after the expiration of the irregular working system, they will continue to perform the contract according to the original contract. The worker claims that the right and duty is determined according to the standard working hour system and the overtime payment shall be paid according to the standard working hour system, which has no legal basis.

In 2010, the plaintiff Zhang Yue signed a labor contract with the defendant, Beijing foreign enterprise marketing consultant Co., Ltd. (Beijing foreign company), which agreed that the contract period was from April 2, 2010 to April 7, 2014, and the working hours were irregular working hours.

In September 10, 2009, the approval of the defendant's Beijing foreign company's special working hours was approved, with a period of three years.

In December 27, 2013, the defendant applied for the irregular working system again, and passed the examination and approval in December 30th of the same year for a period of three years.

The plaintiff held that after the expiration of the examination and approval in September 10, 2012, the defendant had not made timely examination and approval, and the two sides should deal with it according to the standard working hours.

Disputes arise between the two parties, and the plaintiff applies for arbitration. The plaintiff disagrees with the arbitration award and appealed to the court.

The Plaintiff alleged that in 2010, the defendant at the entry office often delayed overtime work during the work. The defendant did not pay the overtime payment in full, and the plaintiff refused to accept the arbitration award. He sued the court to order the defendant to pay 35395.8 yuan overtime.

The defendant argued that the plaintiff should not pay overtime pay according to the law because of the irregular working hours.

According to the trial of the people's Court of Heping District of Tianjin, the special time limit of the defendant is due to expire in September 10, 2012 during the performance of the labor contract. However, the job and work contents of the plaintiff have not changed. They should be deemed to continue to perform the contract according to the original agreement, and the defendant should undertake the corresponding administrative responsibility when he has not done so.

The plaintiff insisted that the working hours should be calculated according to the standard working hours and the overtime payment should be paid according to the time limit of the irregular work hours.

The plaintiff lodge an appeal against the first instance judgment.

According to the trial of the first intermediate people's Court of Tianjin, although the examination and approval process has expired, the two sides have not changed the contract, but still continue to perform according to the contents of the contract.

If the appellant fails to go through the examination and approval procedures in time, he shall bear the corresponding legal liability.

On this basis, it is required that there is no legal basis for determining the rights and obligations of the two parties according to the standard working hours and paying the corresponding overtime fees accordingly.

The judgment dismissed the appeal and upheld the original judgment.

This case is a labor dispute dispute case. The focus of the dispute is whether workers can decide whether they can exceed the time limit for examination and approval.

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According to labor law and regulations, the types of working hours in China are divided into standard working hours and special working hours.

Standard working hours are prescribed by law and work hours in normal circumstances.

It is the main form of man hour system and the basis for calculating other types of working hours.

The standard working hours in China are 8 hours per day and 40 hours per week, based on the decision of the State Council in 1995 to amend the provisions of the State Council on the working hours of workers.

The special working time corresponds to the standard working time, which is suitable for special cases, and the time of work and rest is also different from the standard working time.

The thirty-ninth provision of the labor law stipulates that enterprises can not implement standard working hours because of their production characteristics, or they can not guarantee workers to rest at least one day a week.

Special working hours include shortening working hours, working hours at irregular intervals, working hours and working hours.

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The fifth provision of implementing the regulations of the State Council on the working hours of workers "stipulates that the system of irregular working hours can not be carried out because of the nature of work or the limitation of production characteristics, and it can not be implemented for 8 hours per day and 40 hours per week.

An enterprise with irregular working hours shall perform the trial procedures, and the workers who are not working regularly after approval shall not be restricted by the standard of the extended working hours stipulated in the forty-first article of the labor law and the standard of the extension of working time in the month.

However, the irregular working system does not mean that the employer can set the working hours arbitrarily without any restrictions.

For workers who are not working regularly, enterprises should reasonably determine their labor quota or other assessment standards according to the standard working hour system, so as to arrange workers to rest.

Administrative license is a kind of beneficial administrative act, and the legal consequence caused by administrative license is that the administrative organ grants the administrative counterpart to engage in a specific behavior.

According to the basic theory of administrative law, the administrative counterpart should bear the corresponding administrative responsibility or criminal responsibility if the license is not stopped in due course after the expiration of the license, but this does not mean that the contract terms of the labor contract signed by the administrative counterpart and the third party on the basis of the license will be invalid.

If an enterprise fails to implement the system in time or fails to make timely application according to the regulations after the expiration of its expiration date, the administrative responsibility shall be borne in accordance with the provisions of the labor contract law and the labor security supervision regulations. For the workers, the wage system should be determined according to the actual situation of their work and the labor contract, and if the working position and work content of the laborers have not changed, it is not appropriate to deny the contract agreement between the two parties for the implementation of irregular working hours.

In this case, the plaintiff was appointed as an irregular working system with the defendant after entering the post in 2010, and the special working hours for the work hours of the post were also approved by the relevant administrative departments.

During the performance of the labor contract between the plaintiff and the defendant, the examination and approval has expired, but the two parties have not changed the contract. The two parties' agreement on the irregular working system is still in place, and the original contract is still being fulfilled.

If the defendant fails to go through the examination and approval procedures in time, he shall bear corresponding legal liabilities.

The plaintiff claims that the working hours calculated according to the standard working hours are insufficient according to the time limit of the irregular work hours.