The notice of the Spring Festival holiday in 2024 has been issued, and all units are encouraged to arrange employees to rest on New Year’s Eve in combination with paid annual leave and other systems. Seeing this, is there a string of question marks in everyone’s mind: Can the unit uniformly arrange the statutory annual leave? Is it necessary to use legal annual leave for New Year’s Eve rest? Can the unit arrange welfare leave such as reunion leave and reunion leave? …… Recently, two cases tried by Beijing No.1 Intermediate People’s Court were related to the Spring Festival holiday. Let’s follow the judge and see what is the correct way to arrange employees’ Spring Festival vacation.
(Image source network intrusion)
A brief introduction to the case
Case 1: Zhao claimed that he did not take annual leave during his employment, and appealed to a company to pay the annual leave salary from February 26, 2018 to January 14, 2020. The company advocates that employees should take annual leave in a unified way during the Spring Festival every year. Zhao has finished his statutory annual leave and does not need to pay the annual leave salary. To this end, the company submitted the notice of Spring Festival holiday over the years, which stated that the company began to have a holiday every year from the 25th of the twelfth lunar month, and made up classes after the Spring Festival. Zhao did not recognize the authenticity of the notice, and said that during the Spring Festival, he took vacations according to normal legal holidays.
Case 2: Dong appealed to a company to pay the annual leave salary from August 17, 2020 to May 11, 2021. The company claims that Dong has finished his annual leave during the above period and submitted a notice of Spring Festival holiday. The notice showed: "The company arranged a holiday from February 6, 2021 (the 25th day of the twelfth lunar month) to February 21, 2021 (the 10th day of the first month), with a total of 16 days, and officially went to work on February 22. ….. February 8, 9, 10, 18 and 19 are legal working days, and employees’ legal annual leave is given priority to deduct the Spring Festival holiday. " Dong recognized that he had read the notice and that he had not been on duty during the Spring Festival according to the notice. The company also paid Dong’s salary during the above period according to the salary standard of normal work.
Two | case statement
In the above two cases, the company claimed that employees were arranged to take legal annual leave during the Spring Festival, and there was no need to pay employees wages for not taking legal annual leave. But the results of the two cases are completely different. For case 1, the court held through trial that although the number of days for employees to take holidays in the notice of Spring Festival holiday submitted by the company was more than the national unified holiday arrangement, the nature of the extra holidays was not clearly defined as annual leave, and the arrangement of making up shifts for holidays in the notice did not conform to the nature of annual leave. Zhao did not recognize the holiday notice, so the court rejected the company’s claim that Zhao had taken annual leave, and determined that the company should pay the salary for the annual leave. For the second case, the court held through trial that the company sent a notice of Spring Festival holiday to all employees according to the specific conditions of production and work, and clearly defined the nature of holidays beyond the unified holiday arrangement as "using annual leave deduction". Dong read the notice, did not raise any objection to the company, and actually did not go to work during this period. During the holiday period, the company paid wages according to the salary standard of normal work. Therefore, the company’s overall arrangement for Dong’s annual leave is in compliance with laws and regulations, and it should be considered that Dong’s annual leave has been taken, and the company does not need to pay the annual leave salary.
Iii. Reasoning by case
I. Nature of annual leave
Annual leave refers to the right of workers to keep their jobs and take paid leave every year after they have worked for a certain number of years. The annual leave system is of great significance for ensuring workers’ rest, mobilizing their work enthusiasm and building a harmonious and stable employment relationship.
Annual leave can be divided into statutory annual leave and welfare annual leave. Statutory annual leave refers to the legal leave right of workers stipulated by labor laws and regulations, and its application should comply with the relevant provisions of laws and regulations. China’s "Labor Law", "Regulations on Paid Annual Leave for Employees" and "Implementation Measures for Paid Annual Leave for Enterprise Employees" have made specific provisions on the application of statutory annual leave. Welfare annual leave is the welfare of paid rest given to workers by the employer in addition to the statutory annual leave, which is regulated by the employer in the form of rules and regulations.
Two, the employer can co-ordinate arrangements for employees to take annual leave.
For the statutory annual leave, the first paragraph of Article 5 of the Regulations on Paid Annual Leave for Employees stipulates: "The unit shall make overall arrangements for annual leave for employees according to the specific conditions of production and work and taking into account the wishes of employees themselves." According to this regulation, the employer has the right to make overall arrangements for employees to take annual leave, and the employee’s own wishes should be taken into account when making overall arrangements. It is worth noting that considering the wishes of employees themselves does not necessarily mean that consensus is needed.
For welfare annual leave, since it belongs to welfare, how to apply it specifically belongs to the scope of the employer’s independent employment management right, and the unit will make clear the number of days, conditions and order of leave through rules and regulations. As vacations are important matters directly related to employees’ vital interests, rules and regulations must be formulated through democratic procedures and publicized or informed to workers before they are binding.
Third, the reasonable overall arrangement of employees’ annual leave tips
1. To make overall arrangements for employees to take annual leave, a written notice shall be issued and delivered or informed to employees. In reality, many units often allow employees to take vacations by verbal notice or acquiescence when arranging their employees’ Spring Festival vacations, or although there is a written notice of vacation, they have not submitted evidence of delivery or notification to employees. This kind of irregular behavior is not conducive to ensuring employees’ rest, nor to standardizing employment management.
2. Leave notice should specify the nature of leave. Both statutory annual leave and welfare annual leave can be used to arrange paid rest for employees. If the unit arranges employees to take vacations during the Spring Festival, it shall specify the nature of the vacation in the vacation notice. When arranging employees to take legal annual leave, it is necessary to specify which dates belong to arranging employees to take legal annual leave, and specify the year to which they belong. For those who are not clearly defined as statutory annual leave in the notice, they can only be identified as welfare leave given by the unit to employees. For some units to specify reunion leave, reunion leave and special Spring Festival leave in the holiday notice, it is also a welfare leave in nature.
3. Under special circumstances, the employee’s consent is required. The Regulations on Paid Annual Leave for Employees stipulates that if the unit really cannot arrange annual leave for employees or arrange annual leave across one year due to work needs, it shall obtain the consent of the employees themselves. Therefore, for the statutory annual leave, if the unit arranges employees’ leave across years, it should pay attention to obtaining the consent of the employees themselves.
Four | law link
Article 45 of the Labor Law of People’s Republic of China (PRC), the state practices the system of paid annual leave. Workers who have worked continuously for more than one year are entitled to paid annual leave. The specific measures shall be formulated by the State Council.
Article 5 of the Regulations on Paid Annual Leave for Employees shall make overall arrangements for annual leave for employees according to the specific conditions of production and work and taking into account the wishes of employees themselves.
Annual leave can be arranged centrally or in sections within one year, generally not across years. If it is really necessary for the unit to arrange annual leave for employees across the year due to the characteristics of production and work, it can be arranged across one year.
If the unit really cannot arrange annual leave for its employees due to work needs, it may not arrange annual leave for employees with the consent of the employees themselves. For the number of days of annual leave that an employee should take, the unit shall pay the annual leave salary according to 300% of the employee’s daily salary.
Original title: "Is it necessary to use legal annual leave for New Year’s Eve rest? 》
Read the original text