The performance salary during the vacation period is "0", the official statement is made!
2024-08-17
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Recently, a netizen posted a message asking for help, saying that because she was on maternity leave and not working, the company deducted all her performance-based salary. Is this reasonable?
After the post was published, it sparked heated discussions among netizens:
Many people think it is normal not to have to work during vacation and not to receive performance-based wages.
Some people believe that during maternity leave, employees will receive basic salary plus maternity allowance.
Some people also said that their companies’ salaries, performance and year-end bonuses were still being paid.
In fact, regarding this issue, the Shenzhen Human Resources and Social Security Bureau once shared a real case. Let’s take a look at it.
In 2018, Zhuang joined a health care institution in Shenzhen to engage in nursing work. The two parties signed a labor contract and agreed that the labor remuneration would be "3,000 yuan salary for normal working hours + performance salary."
On September 21, 2020, Zhuang gave birth naturally and enjoyed maternity leave from August 21, 2020 to February 14, 2021.
During her maternity leave, the agency only paid Zhuang a monthly salary of 3,000 yuan on the grounds that she did not attend full service during her leave.
As repeated negotiations and communication between the two parties failed, Zhuang submitted a labor arbitration application in April 2021, requesting the agency to make up the difference in her maternity leave salary based on her average monthly salary before childbirth (8,000 yuan/month).
In response, the agency argued:
1. During Zhuang's maternity leave, 80 days are bonus leave, not maternity leave. Therefore, she should not be entitled to the same salary, welfare benefits and full attendance bonus as during the maternity leave. Even if it is necessary to pay her salary during the maternity leave in addition, only the difference of 98 days of maternity leave salary shall be paid.
2. In the health care industry, it is an industry practice not to pay employees performance wages during maternity leave. There is nothing wrong with the institution paying Zhuang maternity leave wages according to the normal working hours wage standard agreed upon by both parties.
The Arbitration Committee held that:
1. If a female employee enjoys maternity leave according to law, the employer shall regard her as providing normal labor and pay her wages. The employer shall not reduce her wages due to childbirth.
2. During the maternity leave period of female employees in accordance with the law, their maternity allowance shall be paid by the employer in full-term according to the original wage standard of the employee, and the original wage standard refers to the average monthly wage of the female employee in the 12 months before she enjoys the maternity leave in accordance with the law. The average monthly wage in the first 12 months is calculated based on all labor remunerations that the female employee should receive, including hourly wages or piece wages and monetary income such as bonuses, allowances, and subsidies.
3. Female employees who give birth to children in accordance with the provisions of laws and regulations are entitled to 80 days of bonus leave, and the employer should pay the normal salary and benefits during this period. The maternity leave enjoyed by female employees will not affect their welfare benefits and full attendance awards.
The arbitration committee ruled that the institution should pay the difference in wages during Zhuang's maternity leave according to her average salary in the 12 months before giving birth (8,000 yuan/month).
Relevant legal basis
Article 5 of the Special Provisions on Labor Protection for Female Employees
Employers shall not reduce the wages of female employees, dismiss them, or terminate their labor or employment contracts due to pregnancy, childbirth, or breastfeeding.
Article 13 of the Guangdong Provincial Implementation Measures
Female employees who take maternity leave or family planning surgery leave in accordance with regulations shall enjoy the maternity insurance benefits stipulated by the state and the province. If an employer fails to participate in maternity insurance or fails to pay maternity insurance premiums, resulting in female employees being unable to enjoy maternity insurance benefits, the employer shall pay the female employees the expenses in accordance with the maternity insurance benefit standards stipulated by the province and the pooling area; if the maternity allowance is lower than the original salary standard of the female employee, the employer shall also make up the difference.
The original wage standard for female employees mentioned in the preceding paragraph refers to the monthly average wage of female employees in the 12 months before they enjoy maternity leave or family planning surgery leave in accordance with the law. The monthly average wage of the first 12 months is calculated based on all labor remuneration that female employees should receive, including time wages or piece wages and monetary income such as bonuses, allowances, and subsidies. If the monthly average wage of the first 12 months is lower than the normal working hours wage of female employees, it shall be calculated based on the normal working hours wage standard. If a female employee has worked for the employer for less than 12 months before enjoying the leave, it shall be calculated based on the number of months she actually worked.
Article 30 of the Guangdong Provincial Population and Family Planning Regulations
For couples who give birth to children in accordance with laws and regulations, the woman is entitled to 80 days of bonus leave and the man is entitled to 15 days of paternity leave. Salaries will be paid during the stipulated leave, and welfare benefits and full attendance awards will not be affected.
Parents who give birth to children in accordance with laws and regulations are entitled to ten days of childcare leave each year when their children are under three years old. The sharing of labor costs during the holidays shall be implemented in accordance with relevant national and provincial regulations.
Article 17 of the Guangdong Provincial Regulations on Maternity Insurance for Employees
The maternity allowance that employees enjoy in accordance with regulations shall be paid in advance by the employer in accordance with the employee's original salary standard, and then the medical insurance agency shall transfer it to the employer in accordance with regulations. Cities at or above the prefecture level with conditions may have the medical insurance agency entrust a financial institution to directly pay the maternity allowance to employees.
If an employee has already received maternity allowance, it is deemed that the employer has paid the corresponding amount of wages. If the maternity allowance is higher than the employee's original wage standard, the employer shall pay the remaining amount of the maternity allowance to the employee; if the maternity allowance is lower than the employee's original wage standard, the employer shall make up the difference.
Maternity benefits enjoyed by employees in accordance with the law are exempt from personal income tax in accordance with regulations.
The original wage standard of employees mentioned in this article refers to the average monthly wage of the employees in the 12 months before they enjoy maternity leave or family planning surgery leave according to law. If the employees have worked for less than 12 months before they enjoy leave according to law, the wage standard shall be calculated based on the actual number of months they have worked.
It should be noted thatMaternity leave pay and maternity benefitsare different.
Maternity leave pay
The wages paid by the company to employees during their maternity leave. The entity that pays wages to employees is the employer.
Maternity Benefit
National laws and regulations stipulate that working women should be given living expenses during the period when they leave their jobs due to childbirth. The main body responsible for paying maternity allowances for employees is the social security agency.
Calculation formula: Maternity allowance = employer's monthly average payment base ÷ 30 days × number of maternity leave days
If a female employee has already enjoyed maternity allowance, medical subsidies and other benefits during her maternity leave.
When "Maternity Allowance ≥ Maternity Leave Wage", the employer does not need to pay maternity leave wages to the employee. Otherwise, the employer needs to make up the difference.
Female employee A's monthly maternity allowance is RMB 8,000, while her average salary in the 12 months before her maternity leave is RMB 8,500. The employer needs to make up the difference of RMB 500.
Female employee B’s monthly maternity allowance is 8,000 yuan, while her average salary in the 12 months before maternity leave was 7,500 yuan. The employer cannot deduct the 500 yuan that exceeds the average salary.
(Source: Guangdong Federation of Trade Unions Media Center compiled from Shenzhen Human Resources and Social Security Bureau, China Accounting News, Sina Weibo, netizens’ comments, etc.)
(Source: China Workers Network)
