Can Overtime Work Be Used Instead Of Overtime Pay During The Spring Festival Overtime?

Consultation:

His unit belongs to the theatrical performance unit. Therefore, Mr. Zhang only took a day off during the 7 Day Spring Festival holiday. Now the unit has arranged to make up for rest instead of paying overtime. However, Mr. Zhang questioned that he thought that according to the national law, the unit should pay overtime for the staff during the Spring Festival, and he had the right to refuse to make up for the rest.

Reply:

Mr. Zhang's arrangement for the rest of his unit should be said to be illegal, but Mr. Zhang's request is not entirely appropriate.

    《条例》第十三条规定了用人单位安排劳动者在法定标准工作时间以外工作的：

(1) to arrange for workers to extend their working hours beyond the statutory standard working hours of Japan, pay wages in accordance with 150% of the hourly wage standard that is not lower than that of the laborers themselves.

(2) to arrange the workers to work on the day of rest, but can not arrange the rest, and pay 200% wages according to the wage standard of no less than the worker's own day or hour.

(3) arrangements for workers to work on statutory holidays should be paid according to 300% of the daily or hourly wage standards of workers.

According to the above provisions, we can find that when employers and workers fail to reach an agreement on overtime compensation, only when the workers are arranged on the break day, can the employer replace payment of overtime pay by arranging compensation.

    针对张先生的问题，春节长假七天中初一、初二和初三属法定假期，只能采用支付300％加班费的方式补偿；而初四到初七属于休息日的调整，因此用人单位可以安排补休。劳动法律对于在法定休假日安排加班的情形禁止采用补休是有其意义的，法定节假日不同于双休日，其意更在于举国欢庆，因而即使采取了补休，也无法弥补劳动者精神文化生活的损失。但不管怎样，劳动者休息的权利和要求享受加班费的权利都受到法律保护，用人单位切不可随意替换，违法用工。