Can Employees Who Work At Irregular Hours Advocate Overtime Pay?

Recently, readers Cui Huaixing called the newspaper to ask whether employees who work at irregular hours could claim overtime pay.

He said that in August 2015, the logistics company arranged for him to work as a loader and signed a 2 year labor contract through recruitment.

After he went to work, he knew that the company was approved by the labor administrative department of its district, and the untimed man hour system was applied to the staff of the shipper, loader and other posts.

Cui Wei Xing said that for more than a year, he basically had no fixed commuting time.

Sometimes, the duty manager calls, even if it is midnight, he must rush to load and unload goods.

"I work on average more than 8 hours a day, and even have to work on statutory holidays, but I haven't got a penny for overtime."

Choi said he was looking for a company to ask for overtime but was refused.

He would like to know whether, according to the law or policy, can employees like him carry out overtime pay?

Interviewed by Pan lawyer, after understanding the situation, he said that from the existing state regulations, employees who worked on irregular working hours did not have overtime pay.

The thirteenth provision of the Provisional Regulations on Wage Payment promulgated by the Ministry of labor stipulates: (1) when the employing unit arranges the workers to extend their working hours beyond the statutory standard working hours in accordance with the law, the wages of the labourers shall be paid according to the 150% of the worker's hourly wage stipulated in the labor contract; (2)

According to the law, where workers are arranged to work on rest days, and they can not arrange compensatory breaks, wages shall be paid in accordance with 200% of the workers' daily or hourly wage standards, which are not lower than those stipulated in the labor contracts. (3) the employing units shall arrange for workers to work on statutory holidays in accordance with the law, and shall pay the wages of workers according to the 300% of the workers' daily or hourly wage standards, which are not lower than those stipulated in the labor contracts.

However, this provision also stipulates that "the workers who implement the system of irregular working hours shall not enforce the above provisions."

In view of this, the employees who are not working regularly have no overtime pay, whether they are normal working days plus or rest days and overtime on statutory holidays.

However, in reality, there are a few places that require overtime work in statutory holidays. For example, the "payment method for wages of enterprises in Shanghai" stipulates that the labor and social security department has not been approved by the administrative department of labor and social security.

The employing unit shall pay wages in accordance with 300% of the daily or hourly wage standards of the workers.

For the overtime wages of irregular working hours, the seventeenth provision of the wage payment in Beijing stipulates that "the system of irregular work done by the employing units is not applicable to the provisions of the fourteenth provisions of this regulation". Therefore, when the company practices an irregular working system, Cui Huai's readers will not enjoy working overtime on normal working days and rest days.

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However, this is not to say that after the company has implemented the irregular working system, it can arbitrarily ask the employees to work overtime without paying overtime wages. According to the provisions of the comprehensive calculation work hour system and the irregular working system of enterprises in Beijing, for the employees who are not working regularly, enterprises should reasonably determine the workers' labor quota or other assessment standards according to the standard working hour system, so as to ensure the workers' right to rest.

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