(1) Staff of government agencies and institutions

The Civil Service Law stipulates that civil servants can arrange compensatory time off for overtime work, but there is no provision for paying overtime wages, and the Labor Law does not apply to civil servants. Therefore, civil servants who work overtime have no right to ask for overtime pay.

(2) Private non-enterprise units work overtime.

The Labor Law does not include private non-enterprise units in the scope of adjustment, so it is controversial whether the provisions of the Labor Law on overtime pay are applicable to private non-enterprise units. The author believes that private non-enterprise units have been included in the scope of adjustment of the labor contract law. From a legal point of view, private non-enterprise units should also be included in the scope of adjustment of the labor law. The law urgently needs to clarify whether the provisions of the labor law can be applied in the current situation.

(3) Hourly workers

The hourly worker depends on whether the two sides have formed a labor relationship. For part-time employment, it belongs to labor relations. Generally, both parties have a clear agreement on working hours. If they work outside the agreed working hours and cannot offset other working hours, they should pay overtime pay. For temporary hourly workers, the so-called? Do some work? The two sides did not explicitly agree on working hours, but agreed on hourly work remuneration, and calculated labor remuneration according to actual working hours after completing certain work tasks. The author believes that this kind? Do some work? The relationship between the two parties is a labor relationship, not a labor relationship, so it is not subject to the adjustment of labor law, and overtime pay is not required for working hours exceeding 8 hours.

(4) Labor dispatch and employment

Article 62 of the Labor Contract Law stipulates the employer's obligation to pay overtime wages. Therefore, in the form of labor dispatch, if workers work overtime, the employer must pay overtime, and the dispatching unit does not have to pay overtime.

(5) Identification of overtime work of the doorman in reception room

The doorman in the reception room has its particularity. Some people eat and live in the reception room. In practice, there are also cases where the doorman in the reception room advocates working 24 hours a day and demands overtime pay. In practice, there are cases that support the doorman to eat and live in the reception room for 2 hours every day. In the author's opinion, for enterprises with normal 8-hour working system, considering the working hours and the time before and after work, the doorman must be in working condition, so it is reasonable to support the doorman who lives in the reception room 1 hour before work and 1 hour after work as appropriate. For doormen who are not in the reception room, overtime pay can be paid according to their actual overtime hours.

(6) Overtime work of senior managers

Whether senior managers can ask for overtime pay is a complicated problem. There is no special provision in our country's laws, but there is an overtime exemption system abroad. In the fair labor standards act of the United States, for employees in certain industries or some special employees, employers can be exempted from applying for overtime compensation, and those who usually engage in senior administrative, management or professional positions can be exempted from applying for overtime pay. Hong Kong's Employment Ordinance, which regulates labor relations, does not apply to non-manual employees whose monthly salary exceeds HK$ 65,438+00,500. The author thinks it is necessary to introduce overtime exemption system to senior managers with higher annual salary system in China.

Three, the determination and calculation of overtime wage calculation base

1, the provisions of relevant laws and regulations on the calculation base of overtime pay

At present, China's labor law, labor contract law and other laws, administrative regulations and judicial interpretations have not clearly stipulated the calculation standard of overtime pay. Article 44 of the Labor Law only stipulates that overtime pay shall be paid at 150%, 200% and 300% of the salary. Interpretation of Article 44 of the Interpretation of Several Provisions of the Labor Law of People's Republic of China (PRC) issued by the former Ministry of Labor: Here? Salary? It refers to the basic salary stipulated by the employer, but what is it? Basic salary? How big its connotation and extension are, the relevant opinions are not clear.

Article 54 of the Regulations of Guangdong Province on Wage Payment? Normal working hours pay? According to the explanation, it refers to the labor remuneration that the employer should pay according to law for the normal labor provided by the laborer within the legal working hours. Excluding the following items: 1, extended working hours and wages; 2. Allowances under special working environments and conditions such as middle shift, night shift, high temperature, low temperature, underground, toxic and harmful; 3. Employee benefits stipulated by laws, regulations and the state. This article also does not clearly define the connotation and extension of the calculation base of overtime pay. The former Ministry of Labor's Interpretation of the Regulations on Handling Labor Disputes in Enterprises in People's Republic of China (PRC)? Welfare? According to the explanation, it refers to the expenses used by the employer to subsidize employees and their families and organize collective welfare undertakings, including collective welfare funds, transportation subsidies for employees to and from work, travel expenses for visiting relatives, heating subsidies, and subsidies for living difficulties. In some places, if the calculation base of overtime pay is not clear, 70% of the average salary will be used as the calculation base of overtime pay.

2. Can both parties reach an agreement on the calculation base of overtime pay?

China's existing laws do not prohibit or allow both parties to agree on the calculation base of overtime pay. The author thinks that in view of the national conditions of surplus labor force in China, workers often only have the right to agree or disagree when signing contracts, but not the right to negotiate on an equal footing. If both parties are allowed to freely agree on the calculation base of overtime pay, it will easily damage the rights of workers. For example, the labor contracts of both parties stipulate that the monthly salary of workers for normal working hours (and it is agreed to use this as the calculation base of overtime pay) is 1000 yuan, and the workers also have bonuses and subsidies of 1500 yuan. So the hourly wage for normal working hours is 2500 yuan? 2 1.75? 8= 14.37 yuan, and the hourly wage for overtime at ordinary times is 1000 yuan? 2 1.75? 8? 150%=8.6 yuan. It is obviously unreasonable that the wages of workers who work overtime 1 hour are not as high as the hourly wages of normal working hours. The author believes that in principle, employers and individual workers should be prohibited from determining the calculation base of overtime pay. ? The basis for calculating overtime pay shall be agreed upon in the collective labor contract by the employing unit after collective consultation with trade unions and workers' representatives? Is a better choice. First, this practice does not conflict with the superior law, which does not prohibit both parties from agreeing on the calculation base of overtime pay. Second, it is reasonable. The calculation standard of overtime pay is negotiated collectively by employers, trade unions and workers' representatives, so trade unions and workers' representatives are more powerful than individual workers, and both sides can negotiate on an equal footing to determine a base that is satisfactory to both sides. Third, this practice is very operational. Due to the irregular wage payment of employers and various wage items, there are still many disputes in judicial practice about whether some items belong to the category of normal working hours. Taking the calculation base agreed in the collective contract as the standard is conducive to avoiding disputes between the two parties on normal working hours, and is also conducive to the determination of the calculation base of overtime wages by arbitration and judicial departments.

3. The author's views on the calculation base of overtime pay.

According to? Agreement is superior to law? The principle that employers, trade unions and workers' representatives collectively negotiate to determine the calculation base of overtime pay should take precedence over the law? Standard wage? Applicable.

When determining the calculation base of overtime pay without agreement, we should first exclude items that do not belong to wages, such as beverage expenses paid by the employer, collective welfare expenses, transportation subsidies for employees to and from work, travel expenses for visiting relatives, heating subsidies, subsidies for living difficulties, etc. Secondly, wages outside normal working hours should be excluded, such as quarterly bonus, half-year bonus, year-end bonus, double salary at the end of the year and business commission for quarterly, semi-annual and annual settlement; Finally, the nature of the monthly fixed salary project is discussed. If it is not determined by normal working hours, workers may not get it and should not be included in the calculation base of overtime pay.

Fourth, the burden of proof for overtime pay.

1, overtime burden of proof

This is a headache for judicial practice and the most controversial issue in the trial. Judicial practice is generally considered as follows:

First, the laborer gives evidence on the basic facts of overtime (such as the number of working days on the payroll exceeds 2 1 day and the overtime notice issued by the employer), but the standard of proof should not be too high, as long as the judge has reason to believe that overtime exists, then the employer gives evidence on the specific time, overtime standard and overtime amount of overtime.

Secondly, the employer shall bear the burden of proof for the working hours of the workers two years before the claim date. Because the employer has the obligation to keep the salary payment table for two years, the salary payment table should include the name of the paying unit, the calculation and payment time of salary, the name of the employee, the normal working hours, overtime hours, standard salary and overtime salary, as well as the deduction items, amount, salary account number and other records. If the employer can't provide evidence to prove the actual working hours of the laborer, the judicial practice department generally accepts the laborer's claim about overtime hours on the grounds that the employer can't provide evidence. If the demands of workers are obviously beyond the reasonable scope, the court will make adjustments as appropriate.

Finally, the laborer should bear the burden of proof for the working hours of two years before the date of claim. Two years ago, workers demanded overtime pay. Because the employer only has the obligation to keep the salary payment table for two years, the laborer should prove the fact of overtime work two years ago. If the laborer cannot provide evidence, the overtime pay will not be supported.

2. Identification of the authenticity of overtime hours.

The proof standard of overtime hours is also a headache for practical departments. Many employers do not have attendance records, but electronic attendance, or punch-in attendance without the signature of workers, and workers do not recognize it. Because electronic attendance records are easy to be modified, employers can't prove that they were originally generated by computers, so judicial practice departments generally don't accept electronic attendance records. Similarly, there is also the possibility of forgery for punch-in attendance without employee's signature (employee's name is company manager), so the judicial practice department generally refuses to accept it. The author believes that electronic attendance is a common phenomenon and the embodiment of modern management, which should be recognized by law. However, due to the possibility of forgery of electronic attendance records, the proof standard of electronic attendance records should not be too high, and it is not necessary to reach a sufficient level. If there is other evidence to prove that a record in the electronic attendance record is true, for example, a worker did not come to work on a certain day, and the employer submitted a leave note, the electronic attendance record also showed that there was no attendance record on that day. If a considerable number of attendance records can be mutually verified with other evidence, the authenticity of electronic attendance records can be accepted. For electronic attendance records and punch-in records that are not confirmed by workers' signatures, judicial practice departments should check them carefully as far as possible and ask more questions to see if there is anything consistent with the attendance records. If there are many places that can be mutually verified, then the authenticity of electronic attendance records and punch records should be accepted, rather than all rejected.

3. My opinion on the distribution of burden of proof for overtime pay.

If there is a dispute over overtime payment, the burden of proof can be distributed as follows: (1). The employing unit shall provide evidence for the fact that the laborer has received overtime pay. (2) If the employer delays the payment of overtime pay, and the laborer claims that the employer is in arrears without reason, the employer shall provide evidence on the reasons for the delay in payment of overtime pay. (3) If the laborer claims that the wage standard as the calculation base of overtime pay is higher than the wage agreed in the labor contract or actually received, he shall provide evidence on the wage standard he claims. (4) If there is a dispute over the reduction of labor remuneration by the employer, the employer shall bear the burden of proof. (5) If the laborer claims overtime and the employer denies overtime, the employer shall bear the burden of proof for the fact that the laborer goes to work normally; If the employer proves that the employee has not worked overtime with the electronic attendance confirmed by the employee, it shall adopt the electronic attendance of the employer; If the employer cannot prove the normal working hours of the workers, it shall adopt the overtime hours advocated by the workers, but if the claims of the workers are obviously beyond the reasonable range, it shall make corresponding adjustments. Although the employer's attendance record does not have the employee's signature, it is supported by other evidence (such as salary payment information, leave slip, business trip record, etc.). ), which can be used as evidence to identify employees' working hours. (6) If the laborer claims that the employer is in arrears or deducts overtime wages, the employer shall bear the burden of proof for the wage payment table within two years from the date when the laborer applies for labor arbitration, but if the laborer has evidence to prove that he has claimed rights from the employer before applying for labor arbitration, the employer shall bear the burden of proof for the wage payment table within two years from the date when the laborer first claims rights. The wage payment table mentioned in the preceding paragraph shall include the name of the payment unit, the calculation and payment time of wages, the names of employees, normal working hours, overtime hours, standard wages and overtime wages, as well as records such as deduction items, amounts and wage account numbers.

Verb (abbreviation of verb) restrictions on recourse for overtime pay

According to Article 27 of the Labor Dispute Mediation and Arbitration Law of People's Republic of China (PRC), overtime pay is subject to special arbitration limitation, and workers claim that the limitation of overtime pay is calculated from the date of dissolution or termination of labor relations, not from the date when wages should be paid. In practice, it is wrong to apply the two-year statute of limitations to overtime pay. If the employer explicitly refuses to pay overtime wages during the existence of labor relations, the time limit for applying for arbitration of overtime wages shall be counted from the date of refusal.

Six, the determination of monthly salary

In practice, some employers have agreed with the workers in the labor contract to implement a package salary system or a monthly salary of RMB (including overtime), but there is no agreement on how much overtime time to include. In practice, no matter how many hours workers work overtime, they will be paid according to the agreed monthly salary. Is this agreement valid? Others have not agreed in the labor contract to implement the package salary system, but there is other evidence to prove that the paid wages include overtime wages. For example, the monthly payroll shows that no matter how many days a worker goes to work (30 days in some months and 22 days in some months), the employer pays the worker the same amount of fixed salary. In this case, can it be considered that both sides have implemented the package salary system?

Some people think that the above two methods can be considered effective, that is, the employer does not need to pay overtime wages, but after conversion [basic hourly wage = agreed wage? (2 1.75 days? 8 hours+agreed time outside legal working hours? 150% or 200%), which is valid if the basic hourly wage is not lower than the minimum wage. If it is lower than the minimum wage, it shall be supplemented according to the minimum wage. According to this opinion, the express and implied monthly subscription system of both parties is effective and can include overtime pay beyond the statutory maximum overtime of 36 hours.

Another opinion also believes that it is effective for both parties to agree that overtime pay should be included in the monthly salary, because this kind of behavior is not prohibited by law. However, it is considered that the overtime included in the monthly salary should not exceed 36 hours, and the employer should pay overtime pay separately for overtime exceeding 36 hours. If there is no clear agreement between the two parties to include overtime pay, even if there is evidence that both parties have been paying overtime pay on a monthly basis, it cannot be considered that the employer has paid overtime pay, that is, the monthly payment system can only be applied if both parties clearly agree. Under the monthly salary system, the basic hourly wage of overtime pay calculation base is determined as follows:

1. If the agreed working hours exceed the legal working hours within 36 hours, the hourly wage = the agreed wage? (2 1.75 days? 8 hours+agreed time outside legal working hours? 150% or 200%);

2. If the agreed working hours exceed the legal working hours of 36 hours, the hourly wage = the agreed wage? (2 1.75 days? 8 hours +36 hours? 150% or 200%);

3. If the legal working hours of overtime include normal working days and rest days to extend working hours and cannot be distinguished, half of the legal working hours of overtime can be calculated according to the standard of normal working days, generally according to the standard of rest days.

Overtime wages shall be calculated according to the standards prescribed by law and the basic hourly wages of workers who work more than 36 hours per month as agreed. If the basic salary calculated by the above method is lower than the legal minimum wage, the agreement is invalid. Workers' wages are based on the minimum wage. If overtime pay exceeds the legal working hours, it shall be calculated according to the minimum wage according to the standards prescribed by law.

In the past, the judicial practice in Shenzhen was based on the second opinion, but now it is based on the first opinion. I am inclined to the second opinion.

Seven, the employer arrears, deduction of overtime wages, whether the workers can propose to terminate the labor contract and ask for economic compensation for the termination of the labor contract.

Overtime wage disputes often involve workers being forced to terminate their labor relations. Can the economic compensation for the termination of labor relations on the grounds that the employer has deducted or defaulted on overtime pay be supported? The essence of this problem is that the employer only owes overtime wages to the workers. If overtime pay is not paid in accordance with the standards prescribed by law and there is no refusal to pay overtime pay, can workers be forced to terminate their labor relations? According to Article 15 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases, workers cannot terminate labor relations on this ground and demand economic compensation for the termination of labor relations. Article 15 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases stipulates:? If the employing unit forces the employee to terminate the labor contract under any of the following circumstances, it shall pay the employee labor remuneration and economic compensation, and may also pay compensation: (3) Deducting or delaying the employee's salary without reason; (4) Refusing to pay overtime wages to laborers; ? . ? Obviously, items (3) and (4) of this judicial interpretation stipulate wages and overtime wages respectively. The wages referred to in item (3) do not include overtime wages. The book Understanding and Application of Judicial Interpretation of Labor Disputes in the Supreme People's Court, edited by Huang Songyou, also holds that the employee can not propose to the employer to terminate the labor contract if he is only in arrears with the employee's wages and remuneration for extended working hours, and only if the employer explicitly refuses to pay the employee's wages and remuneration for extended working hours, or the employer explicitly refuses to pay it, the employee can propose to terminate the labor contract with the employer accordingly and claim to pay the employee's wages and remuneration for extended working hours. According to the book's explanation, the laborer must prove that he claims unpaid overtime pay from the employer, but the employer explicitly refuses and can exercise the right of compulsory termination.

However, the Labor Contract Law makes no distinction. Paragraph 2 of Article 38 of the Labor Contract Law stipulates that if the employer fails to pay the labor remuneration in full and on time, the employee may exercise the right of compulsory termination. There is no clear distinction between overtime wages and wages, and there is no distinction between deduction, default and refusal to pay. How to understand it here? Timely? And then what? Full amount? Whether the employer is in arrears or deducts the employee's salary 1 minute, or is in arrears 1 day, the employee can terminate the labor relationship. If this understanding is correct, then the rights of workers are too great, which actually gives them greater rights to terminate at any time. As long as the laborer doesn't want to work in the employer, he can find fault with the employer in the payment of wages, thus dissolving the labor relationship and demanding compensation. The author believes that due to the provisions of the labor contract law? Timely? 、? Full amount? It is not clear, so Article 15 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases is not invalid after the promulgation of the Labor Contract Law, and there should still be room for application. Can we consider it? Timely? 、? Full amount? Make a limited explanation, that is, as stipulated in Article 15 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases? Deduction, unreasonable breach of contract, refusal to pay? To explain whether it exists? Not timely enough? Behavior, suggested that the relevant departments as soon as possible.

The judicial practice departments in Shenzhen generally take the following measures:

1. Before the implementation of the Labor Contract Law, if the employer defaults, deducts the basic salary (excluding overtime pay) for no reason, or pays the laborer labor remuneration below the minimum wage, and the laborer requests to terminate the labor contract and ask the employer to pay economic compensation, it shall be supported.

2. Before the implementation of the Labor Contract Law, if a worker asks the employer to terminate the labor contract and ask the employer to pay economic compensation because the employer has not paid the overtime pay in full, it shall prove that he has asked the employer to pay the overtime pay difference and the employer explicitly refused it, or the employer explicitly refused to pay the overtime pay difference.

3. After the implementation of the Labor Contract Law, it shall be handled in accordance with the provisions of Article 38 of the Labor Contract Law.

4. If the overtime pay difference requested by workers includes the time before and after the implementation of the Labor Contract Law, different standards and treatment principles should be adopted in different sections to support the economic compensation requested by workers.

Eight, the root causes and countermeasures of overtime wage disputes

Judging from the labor law and related supporting laws and regulations, the national legislation is based on the abolition of overtime and adopts the legislative model of restricting overtime. The restrictive measures adopted are: 1, and the principle of tripartite consultation is implemented. Employers can only organize overtime work after consultation with trade unions and workers. 2, shall not exceed the statutory time limit. Generally, the daily working hours shall not exceed 1 hour. If it is necessary to extend the working hours for special reasons, the working hours shall not exceed 3 hours per day and 36 hours per month under the condition of ensuring the health of the workers. 3. Determine higher overtime pay. Overtime arranged at ordinary times is not less than 150% of hourly wage, overtime arranged on rest days is not less than 200% of daily or hourly wage, and overtime on legal holidays is not less than 300% of daily or hourly wage. However, judging from the labor dispute cases accepted by the courts in recent years, employers basically do not consult with trade unions and workers when arranging overtime. Overtime beyond the statutory 36 hours is everywhere, and it is also a chicken feather scale angle that pays workers overtime wages in full in strict accordance with the standards of labor law. What is the reason for this result? Why is there a general violation of the law? Is there something wrong with our legislation or our law enforcement? In my opinion, the law does not blame the public, and law enforcement is powerless in the face of widespread illegal acts. Is there anything wrong with our legislation? Does China's labor legislation stipulate working hours and overtime pay beyond China's current national conditions? Is this superstructure incompatible with the current economic base? From what I have learned, not only enterprises are keen on overtime, but even regard overtime as a kind of? Corporate culture? Moreover, a considerable number of migrant workers are keen to work overtime in order to get higher overtime pay, and there have also been complaints that enterprises do not arrange overtime. Then, what are the reasons why enterprises and some workers are keen to work overtime, which is also the root of the overtime dispute. The author believes that the phenomenon of overtime is the product of many contradictions in society, economy, politics and culture, and has many reasons and manifestations. To sum up, there are mainly the following reasons: 1, the contradiction between the uncertainty of work tasks and the relatively fixed labor force. Market economy does not produce according to the plan, but according to the contract order quantity, so once the order quantity suddenly increases in a certain period of time, overtime is inevitable. 2. The high cost of employing and laying off employees leads enterprises to be unwilling to recruit enough employees and solve the shortage of staff by working overtime. 3, in order to extract the surplus value of employees. Mainly manifested in not paying overtime pay or not paying overtime pay in full. 4. Some enterprises have poor management ability and unscientific tasks, and often arrange overtime. Some global enterprises have to arrange overtime to cope with the work in other regions. Some migrant workers with low basic wages have to work overtime to increase their income in order to survive.

In view of the fact that a large number of enterprises work overtime for more than 36 hours a month and some workers ask for overtime, the author thinks that the legal restrictions on overtime in China are too dead, which is not suitable for the existing national conditions and can be relaxed appropriately. Looking at foreign legislation, the time limit for extending working hours in the United States is relatively loose. It's just that the big aspect stipulates that the working time per week should not exceed 60 hours. The United States implements a 40-hour working week five days a week, that is, overtime does not exceed 20 hours a week and 80 hours a month. Singapore also stipulates that overtime work should not exceed 72 hours per month. The international labor convention also stipulates that workers only need to have a 24-hour uninterrupted rest time at least once a week. The author thinks that the following technical measures can be taken without amending Article 41 of the Labor Law: that is, the monthly extended working hours stipulated in Article 41 of the Labor Law shall not exceed 36 hours, which should be interpreted as the monthly extended working hours shall not exceed 36 hours. In addition, it is stipulated that overtime work on rest days shall not exceed 32 hours [that is, 8 rest days per month and 4 rest days (4? 8=32 hours) can be used as overtime]. In this way, 68 hours of overtime work per month can basically meet the needs of most enterprises, basically solve the contradiction between the uncertainty of work tasks and the relatively fixed labor force, and also avoid the embarrassment that a large number of enterprises violate the law but fail to get legal sanctions to damage legal authority.

In view of the problem that some enterprises have not paid overtime wages in full, the Labor Contract Law and the Labor Security Supervision Regulations only stipulate that the labor administrative department shall order the employer to pay compensation according to the standard of more than 50% 100% of the payable amount, but do not give the workers the right to claim the above compensation in civil proceedings, and can only ask for an additional 25% of the economic compensation. The author thinks that employers should distinguish between malicious default, deduction and? Unintentional breach of contract, deduction? The difference. Some enterprises don't want to deliberately default or deduct the overtime pay of workers, but have misunderstandings about the calculation base of overtime pay. For example, whether there are misunderstandings in housing subsidies, food subsidies, attendance rewards, etc. It should be included in the calculation base of overtime pay, but the relevant laws do not clearly stipulate the calculation base of overtime pay, which is easy to misunderstand. If the employer maliciously defaults or deducts the overtime wages of the workers, the author believes that because the labor department is often absent, the workers should be given the right to claim the above compensation in civil litigation. In view of the disputes caused by the unclear calculation base of overtime pay, the relevant departments should strengthen legislative or judicial interpretation and make it clear as soon as possible to avoid such disputes. In addition, the study of foreign legislation shows that overtime pay in China is also high, and foreign countries generally tend to extend working hours to get 150% of normal wages. In order to fully realize the legislative purpose of workers' right to rest and discourage workers from working overtime, we can consider appropriately lowering the payment standard and increasing the punishment for employers' underpayment.

In view of the fact that quite a few enterprises in our country have no trade unions, and most of them are actually controlled by enterprises, it is unrealistic to ask for overtime to negotiate with trade unions, and trade unions cannot represent the true meaning of workers. Therefore, it is better to promote the collective contract system and solve this problem with the collective consultation system of employees. If there is no collective negotiation, only the consent of the workers is needed.