Ms. Nguyen Thi Thuy Nga (in Long An Province) would like to ask: If the holiday fall on weekly day off, the employee will be compensated a day off on the next day, so if the employee who goes to work on that compensation day off, how his/her salary will be calculated?. Is he/she still arranged compensation day off? Ms. Nga intends to propose to the company the employee who goes to work on a compensation day off which is Sunday (because the Sunday is a public holiday) will be paid 200% of the salary and arranges another unpaid day off for the employee in the month. Is it correct according to regulations? Lawyer Tran Van Toan, The Khanh Hung Law’s Office – The Hanoi Bar Association answers Ms. Nguyen Thi Thuy Nga as follows:
Clause 1, Clause 3, Article 115 of the Labor Code stipulates that employees are entitled to fully paid days off on the following public and New Year holidays:
- Calendar New Year Holiday: 1 day (the first day of January of the calendar year);
- Lunar New Year Holidays: 5 days;
- Victory Day: 1 day (the thirtieth day of April of each calendar year);
- International Labor Day: 1 day (the first day of May of each calendar year);
- National Day: 1 day (the second day of September of each calendar year);
- Commemorative Celebration of Vietnam’s Forefather - Kings Hung: 1 day (the tenth of March of the lunar year).
In case a holiday referred to in Clause 1 of this Article falls on a weekend, employees are entitled to take the following day off as compensation.
Clause 5, Article 25 of Decree No. 05/2015 / ND-CP of the Government stipulates, employees who work overtime on holidays falling on the weekly days-off as prescribed in Article 110 of the Labor Code shall be paid overtime salary. Employees who work overtime on compensation days off for the holidays falling on a weekly rest days under the provisions of clause 3 of Article 115 of the Labor Code shall be paid overtime salary on weekly rest days
According to this provision, if an employee works on a weekly day off on the same day as a public holiday on the next day of the holidays, he / she will be paid overtime as if working overtime on the weakly day off.
Point b, Clause 1, Article 97 of the 2012 Labor Code stipulates that the employee who works overtime on weekends shall be paid at least 200% of the salary rate or the salary based on the job he is working.
Therefore, in case the company where Ms. Nguyen Thi Thuy Nga works arranges employees to work on compensation days off on weekend that coincide with holidays and New Year holidays (the day following holidays or Tet holidays), they must pay overtime for employees is at least 200% calculated according to the salary unit price or salary according to the job that the company is applying.
Based on the provisions of Point c, Clause 2, Article 106 of the Labor Code guided in Clause 3, Article 4 of Decree No. 45/2013 / ND-CP dated May 10, 2013 of the Government, after each additional working time of 7 consecutive days in a month, the employer must arrange for employees to take time off work to compensate for the time they have not taken leave. In case there is not enough time to make up for compensation, the overtime pay must be paid as prescribed in Article 97 of the Labor Code.
In case the company where Ms. Nguyen Thi Thuy Nga works does not mobilize the employees to work for up to 7 consecutive days in a month and has paid them to work on days off to compensate for weekly day off which coincide with holidays and New Year holidays. as provided for in Point b, Clause 1, Article 97 of the Labor Code, which is equal to 200% of the salary, it is no longer necessary to arrange uncompensated leave for employees..
Lawyer Tran Van Toan
The Khanh Hung Lawyer’s Office, The Hanoi Bar Association