(a) arrange for workers to extend their working hours, and pay no less than 0.50% of their wages;
(2) If workers are arranged to work on rest days but cannot be arranged for compensatory time off, they shall be paid a salary of not less than 200% of their wages;
(3) If workers are arranged to work on legal holidays, they shall be paid no less than 300% of their wages.
If the company fails to pay overtime wages to employees in accordance with the above provisions, employees can defend their rights through the following legal channels:
(a) may apply to the labor dispute mediation committee of the unit for mediation. The labor dispute mediation committee consists of workers, employers and trade union representatives. If an agreement is reached through mediation, the parties shall perform it.
(2) If mediation fails, apply to the Labor Arbitration Commission for labor arbitration. The parties may also directly file an arbitration with the Labor Arbitration Commission, and mediation is not a necessary procedure for labor arbitration. The party requesting arbitration shall submit a written application to the labor dispute arbitration committee within 60 days from the date of occurrence of the labor dispute. The arbitration award shall generally be made within 60 days after receiving the arbitration application. If there is no objection to the arbitration award, the parties must perform it. The labor arbitration award is enforceable. If one party fails to perform the award, the other party may apply to the court where the Labor Arbitration Commission is located for enforcement. It can be seen that arbitration has stronger judicial guarantee than mediation.
(3) Anyone who refuses to accept the arbitration award may bring a lawsuit to the people's court. What needs to be reminded here is that arbitration is a necessary procedure for litigation. If a party directly brings a lawsuit to the court without a ruling of the Labor Arbitration Commission, the people's court will not accept it. The time limit for bringing a lawsuit to the court is: within/0/5 days from the date of receiving the labor arbitration award.
(4) In addition to the above legal channels, employees can also take the form of administrative law enforcement, that is, report to the supervision department of the Labor and Social Security Bureau where the unit resides.
Lawyer's tip: (1) You can't arrange compensatory holidays on legal holidays.
Some employers arrange employees to work overtime on legal holidays, and it is illegal to replace the system overtime pay with compensatory time off. According to the provisions of relevant labor laws and regulations: legal holidays are paid holidays, and if the employer arranges workers to work on legal holidays, it shall pay the workers no less than 300% of the daily or hourly wages agreed in the labor contract, and cannot arrange compensatory holidays.
(2) Employees who implement flexible working hours can also ask for overtime pay. Article 39 of the Labor Law stipulates: "If an enterprise cannot implement the provisions of Article 36 due to its production characteristics, it may take other measures for work and rest with the approval of the labor administrative department".
"Other work and rest measures" refers to "irregular working hours system" and "comprehensive working hours system". "Flexible working hours" is a working system that is not determined by the standard working hours system. Enterprises determine the working hours and rest time of employees by reasonably determining their labor quotas or other assessment standards. The "comprehensive working hours system" takes weeks, months, quarters and years as cycles respectively, but the stipulated condition is that "the average daily working hours and the average weekly working hours should be basically the same as the legal standard working hours".
Employees with irregular working hours are arranged to work on legal holidays, and enterprises need to pay overtime.
(3) In the labor contract or the internal rules of the enterprise, the clauses such as "overtime required for the normal operation of the enterprise, the enterprise does not need to pay overtime wages" are invalid.
Some enterprises make provisions similar to the above clauses in labor contracts or employee codes, arguing that employees have no right to claim overtime pay from enterprises after signing such contracts. The "Labor Law" clearly stipulates that "overtime pay should be paid", and all terms of the enterprise labor contract should comply with the provisions of the "Labor Law", and the terms that violate the provisions of the "Labor Law" have no legal effect. Therefore, similar clauses stipulated in the labor contract or employee handbook should be invalid. Even if there is such an agreement in the signed labor contract, employees can still claim overtime pay from the unit.
legal ground
Article 41 of the Labor Law of People's Republic of China (PRC) * * * Due to the needs of production and operation, the employer may extend the working hours after consultation with the trade unions and workers. 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, but not more than 36 hours per month under the condition of ensuring the health of the workers.
Article 42 Under any of the following circumstances, the extension of working hours shall not be restricted by the provisions of Article 41 of this Law: (1) Natural disasters, accidents or other reasons threaten the life, health and property safety of workers and require emergency treatment; (two) the production equipment, traffic lines and public facilities are out of order, which affects production and public interests and must be repaired in time; (3) Other circumstances stipulated by laws and administrative regulations.
Article 25 of the Labor Security Supervision Regulations, if an employer violates the labor security laws, regulations or rules to extend the working hours of laborers, the administrative department of labor security shall give it a warning and order it to make corrections within a time limit, which can be calculated according to the standard of 100 yuan and below 500 yuan, and impose a fine.