Expert: It is necessary to increase the cost of illegal activities for enterprises, "not allowing rest, not daring to rest, not taking rest"! Annual leave has become a "paper right" system | Annual leave | Enterprises
Some companies take paid annual leave, saying that they are not allowed to take it, dare not take it, and cannot take it
Experts believe that implementing the paid annual leave system requires increasing the cost of illegal activities
The child's wish to go to the grassland to play was not realized until the start of school, because Li He, who works at an e-commerce company in Chaoyang District, Beijing, has not been allowed to take annual leave.
Due to the company being in the stage of business transformation and one of the three colleagues in the department being on maternity leave, Li He's two requests for annual leave were rejected by the company on the grounds of "special periods".
"In order to maintain this job, there is nothing but helplessness." There are many employees like Li He who find it difficult to enjoy paid annual leave freely. Although the annual leave system has already been clearly defined in laws and regulations such as the Labor Law and the Regulations on Paid Annual Leave for Employees, for many employees, this right seems more like a "welfare" and even depends on the "face" of the unit.
Huang Leping, Director of the Beijing Yilian Labor Law Assistance and Research Center, pointed out in an interview with the Legal Daily that paid annual leave is a legal right granted to employees, and employers should not affect or even deprive employees of their legitimate rights and interests for any reason. We should revise and improve relevant laws and regulations, increase the cost of illegal activities for enterprises, and provide solid legal protection for implementing the paid annual leave system and safeguarding the legitimate rights and interests of workers.
Annual leave has become a "paper right"
Li Yanpeng, who works as a sales representative at a media company in Beijing, has not taken any annual leave for three years since joining the company. The company promises to accumulate the annual leave that has not been taken each year, but he himself does not know when he can wait until the day when he can take the annual leave.
Article 45 of the Labor Law stipulates that the state implements a paid annual leave system. Employees who work continuously for more than one year are entitled to paid annual leave. The specific measures shall be formulated by the State Council.
Article 2 of the Regulations on Paid Annual Leave for Employees, which came into effect on January 1, 2008, stipulates that employees of government agencies, organizations, enterprises, public institutions, private non enterprise units, and individual industrial and commercial households with employees who have worked continuously for more than one year shall enjoy paid annual leave. The unit shall ensure that employees enjoy annual leave. Employees enjoy the same salary income during their annual leave as during normal working hours.
However, such a worker's right, which has been written into laws and regulations, has frequently encountered difficulties in implementation in practice, and has been roast by some workers as a "paper right" that needs to see the mood of the unit.
"Can I take annual leave smoothly at work?" In response to this question, the reporter randomly interviewed four employees who all stated that the company has an annual leave system, but there are many "restrictions".
"I hardly ever take annual leave if I want to, and in the end, it's all arranged by the company," Mr. Liu, who works in the health and wellness industry, told reporters. Although the company allows employees to take annual leave, they must seek approval in advance, and the time is coordinated by the company, not decided by themselves. They not only have to stagger the time with other colleagues, but also cannot take annual leave during critical periods of busy business in the company.
Article 5 of the Regulations stipulates that units shall arrange annual leave for employees in a coordinated manner based on the specific production and work conditions, and taking into account the wishes of the employees themselves.
However, several workers in the interview admitted that when arranging annual leave, the unit often only considers the actual operating situation, and only "notifies" the employees' wishes. If the employees have objections to this, it is likely that they will not be able to take leave.
Article 5 of the Regulations stipulates that if a unit is unable to arrange annual leave for employees due to work needs, with the consent of the employees themselves, they may not arrange annual leave for employees. For the annual leave days that employees should take but have not taken, the unit shall pay the annual leave salary compensation at 300% of the employee's daily wage income.
The reporter learned that in practice, some units and employees have agreed to exchange annual leave for compensation, but most of the expenses are set by the units themselves. For example, Ms. Zhang, who works at a restaurant in Dongcheng District, Beijing, revealed to reporters that her restaurant has promised to provide a subsidy of 100 yuan per day if employees do not take annual leave. Some people are willing to voluntarily give up their annual leave in order to earn more income.
Arranging annual leave arbitrarily is suspected to be illegal
Compared to not taking the previous year's vacation, Liang Chen, who works at a real estate company in Haidian District, Beijing, is even more miserable because he was late for work and had already been deducted two days of annual leave by his employer.
"The unit stipulates that being late for 5 minutes is counted as being late once, and if there are 3 times in total, one day will be deducted from the annual leave." Liang Chen has communicated with the unit multiple times about this matter, but the unit stated that it is a company rule and policy, and if the annual leave is deducted, he will also be fined if he is late again.
Regarding this, Hu Wei, a lawyer from Beijing Gaowen Law Firm, pointed out that paid annual leave for employees is a right to rest that is clearly granted to employees in laws and regulations such as the Labor Law, Labor Contract Law, and the Regulations. Therefore, it is illegal for companies to link employee tardiness with the deduction of annual leave using so-called internal regulations and has no legal effect.
Regarding the behavior of some units imposing fines on employees for being late and other issues, Huang Leping pointed out that fines are only the administrative penalty power of administrative organs, and employers, as civil entities operating in accordance with the law, do not enjoy the administrative penalty power. The "Regulations on Rewards and Punishments for Enterprise Employees" issued by the State Council in 1982 stipulated that state-owned enterprises and urban collective enterprises have the right to impose fines on employees, but this regulation was abolished in 2008. Therefore, any fines imposed by enterprises on employees for any reason are unfounded by law.
During the interview, the reporter learned that there are still some units that have the problem of arbitrarily arranging paid annual leave.
Chen Pingping, who works for a company in Daxing District, Beijing, told reporters that her unit organizes two team building tours annually with the theme of "enhancing employee understanding and enhancing team cohesion". However, the time spent participating in team building activities is deducted from the annual leave, and employees do not have the right to choose independently. Therefore, she has never taken long-term leave. If she wants to travel with children, she can only choose to take sick leave instead.
Zhang Chao's unit directly uses annual leave as a tool to motivate employees. According to internal regulations, employees with high performance rankings can receive rewards for increasing their annual leave days, while those with poor performance will be deducted some of their annual leave days.
The Labor Contract Law grants enterprises the right to formulate rules and regulations, and guarantees the effectiveness of the system's implementation. Professor Liu Junhai from the Law School of Renmin University of China reminds that the law clearly stipulates that the necessary prerequisite for enterprises to establish rules and regulations is "in accordance with the law". Article 80 of the Labor Contract Law stipulates that if an employer's rules and regulations directly related to the vital interests of workers violate laws and regulations, the labor administrative department shall order correction and give a warning; If it causes damage to workers, they shall be liable for compensation. This means that the internal rules and regulations of the enterprise must be consistent with national laws and cannot exceed the law. In the face of the company's arbitrary arrangement of annual leave for employees, employees should actively protect their rights.
Taking multiple measures to promote the implementation of the system
In July of this year, the General Office of the State Council forwarded a notice from the National Development and Reform Commission on measures to restore and expand consumption, which clearly stated the need to fully implement the paid annual leave system.
As soon as the news came out, many netizens shared their experiences of being harassed by their employers during their annual leave online.
"The reason why the paid annual leave system has always been difficult to implement is due to various reasons." Huang Leping found in his research that enterprises with poor implementation of the paid annual leave system are mainly private enterprises, and many enterprises intend to achieve maximum profits at the least cost. Implementing the paid annual leave system will undoubtedly increase enterprise costs. Compared to enterprises, workers are in a disadvantaged position, and employees are also concerned that the issue of annual leave may affect their work. Therefore, they often compromise on the unit's requirement not to allow annual leave. The punishment for enterprises not implementing the paid annual leave system is relatively light in current relevant laws and regulations. Article 7 of the Regulations stipulates that if a unit does not arrange for employees to take annual leave and does not provide annual leave salary compensation, the labor administrative department shall order it to make corrections within a specified period of time. For those who fail to make corrections on time, in addition to ordering the unit to pay annual leave wages, the unit shall also pay compensation to the employees according to the amount of annual leave wages. However, compared to factors such as enterprise benefits and labor costs, the compensation amount is too small, making the cost of illegal activities very low. In reality, some companies even directly use compensation to replace employee annual leave.
In Huang Leping's view, in order to truly implement the paid annual leave system, multiple measures need to be taken together to improve it.
"Firstly, it is necessary to enhance the discourse power of workers in labor relations, and trade union organizations should provide more legal support to workers." Huang Leping pointed out that Article 6, Paragraph 2 of the Regulations stipulates that trade union organizations should protect the annual leave rights of employees in accordance with the law. Therefore, trade unions should fully play their role by convening employee representative conferences and other forms within the legal framework to formulate implementation rules for the paid annual leave system in their own units. This will serve as a bridge between employers and workers in the process of negotiating paid annual leave. Once disputes arise between the two parties, trade unions should actively mediate such disputes and provide necessary legal assistance when workers seek to protect their rights.
The relevant departments should also increase the publicity efforts of enterprises, especially small and medium-sized private enterprises, to promote the paid annual leave system, so that employers understand that paid annual leave is a right explicitly granted to employees by law. Enterprises cannot affect or even deprive employees of their legitimate rights and interests for any reason, and establish the concept of paid annual leave.
Relevant departments should continue to increase their efforts in labor supervision and law enforcement, increase spot checks and inspections on the implementation of the paid annual leave system for enterprise employees, and establish a smooth mechanism for safeguarding their rights, encouraging workers to actively protect their rights.
Considering the current issue of low illegal costs, Huang Leping hopes to improve laws and regulations, revise and improve the relevant punishment mechanisms of the Regulations, and clarify and increase the standards for illegal enterprises to pay compensation to employees. In addition, measures such as improving the credit evaluation system, including including multiple illegal enterprises on the integrity blacklist, and collaborating with other departments to impose certain restrictions on illegal enterprises in terms of loans, taxes, etc., can be taken to increase the cost of illegal activities for enterprises.
