is working on a rest day considered overtime or on duty?

2024-10-04

brief introduction to the case

cao joined a ship repair company in shanghai on january 1, 2012, and served as the director of the company's auto repair branch after 2018. the last labor contract signed by both parties is an open-term labor contract. on january 7, 2023, the company sent a notice of termination of the labor contract to cao. the notice read: "due to major changes in the company's operating conditions, the company has decided to dissolve early. according to the provisions of article 44 of the labor contract law and on november 22, 2022, the company’s employee representative conference decided to notify you that the labor contract with the company will be terminated on december 31, 2022.” subsequently, cao applied to the labor and personnel dispute arbitration commission for arbitration and required the company to pay from january 1, 2012 to. overtime pay for rest days during december 31, 2022.

during the trial, cao said that he worked overtime on weekends in accordance with the company's requirements. although he could rest, he had too much work and was busy all the time. he was not on duty and was completely consistent with his daily work. he should be paid overtime pay in accordance with the law. for more than ten years after joining the company, the company has been avoiding paying overtime pay in the form of duty allowance. the company argued that due to the particularity of the industry involved, it arranged personnel to come to the unit in turns on weekends. there were no specific work tasks. they were just responding to possible emergencies or maintaining services. if there was something to do, it was okay to do it. there is a difference between resting on the sofa in the office and going to work normally. the company also paid duty allowances in accordance with regulations, and the standard of duty allowances was also raised, from 50 yuan to 100 yuan/day. the nature of this behavior is on duty rather than overtime. during his tenure, cao never raised any objection to the company regarding the working mode and payment situation of weekend duty.

focus of controversy

is cao's attendance on rest days considered overtime or on duty?

processing results

the labor and personnel dispute arbitration commission did not support cao’s request to make up for overtime wages from 2012 to 2022.

case analysis

article 41 of the "labor law of the people's republic of china" stipulates that due to production and operation needs, the employer may extend working hours after consultation with the trade union and workers, generally not more than 1 hour per day; if the working hours need to be extended due to special reasons under the conditions of protecting the health of workers, extended working hours shall not exceed 3 hours per day, but shall not exceed 36 hours per month. article 44 stipulates that under any of the following circumstances, the employer shall pay wages higher than the wages of workers for normal working hours according to the following standards: (1) if workers are arranged to extend their working hours, the employer shall pay no less than 100% of wages. one hundred and fifty percent of the salary; (2) if workers are arranged to work on rest days and compensatory leave cannot be arranged, a salary of no less than 200% of wages shall be paid; (3) workers are arranged to work on statutory holidays those who work shall be paid no less than 300% of the salary. it can be seen from the above regulations that overtime means that due to production and operation needs, the employer arranges for workers to continue to perform their jobs outside of legal working hours after consultation with the trade union and workers. on-duty is not a legal concept. on-duty generally means that employees bear certain responsibilities for non-productive and non-professional work outside of normal working hours according to the requirements of the employer. there is currently no clear legal regulation to adjust this. this abnormal working method can be collectively referred to as on-duty. in the case of overtime, the employer needs to pay the prescribed wages according to different overtime hours, while in the case of on-duty work, the employee is required to complete the work tasks within the prescribed time and perform his actual work responsibilities. during the on-duty period it cannot simply be calculated based on working hours. specific situations can be handled based on actual conditions.

the difference between overtime work and on-duty work: first of all, overtime work and on-duty work are different in work characteristics and tasks. although overtime work and on-duty work both bear certain responsibilities outside the legal working hours, overtime work is due to the production and operation needs of the unit and is borne by the labor force. the employee continues to perform his or her job at the original job position and during non-working hours; while on-duty workers are required to undertake certain non-productive and non-professional work during non-working hours due to certain special reasons. secondly, the legal norms for overtime and on-duty adjustments are different. overtime is subject to adjustments by the "labor law of the people's republic of china", "labor contract law of the people's republic of china" and other relevant laws and regulations; while on-duty work currently has no clear legal norms to adjust it. thirdly, the basis for payment of overtime and on-duty pay is different. overtime pay is clearly stipulated by relevant laws and regulations such as the labor law of the people's republic of china and the interim provisions on wage payment. the calculation of overtime pay also involves the working hour system, payment standards, and actual work. time, wage standards, etc., the employer shall record in writing the amount, items, time, personal names, etc. of wages paid to workers, and keep workers’ attendance records for two years for future reference; while duty pay is not clearly stipulated in laws and regulations, in general this shall be governed by the rules and regulations formulated internally by the employer. finally, overtime work and on-duty work have different time limits. the length of overtime work is limited by the labor law of the people's republic of china. generally, it cannot exceed 1 hour per day. if working hours need to be extended due to special reasons, the working time must be extended under the conditions of protecting the health of the workers. the time limit shall not exceed 3 hours per day and 36 hours per month; however, there are no relevant regulations limiting the length of duty.

the minutes of the 2016 shanghai high people's court meeting on several issues regarding the handling of labor disputes clearly stated: 3. several issues regarding unit duty (1) in the following circumstances, workers who request the unit to pay overtime benefits will not be supported: 1. due to the safety of the unit, firefighting, holidays, etc. need to be on duty that is temporarily arranged by the unit or arranged by the system and has nothing to do with the employee's own job. 2. the unit arranges workers to perform duty tasks related to their own jobs, but they are allowed to rest during the duty period. (2) in the above situation, if there are provisions in the unit's rules and regulations, or there are stipulations or practices in the collective contract, individual collective agreement, or labor contract, they may be followed. in judicial practice, the key points to distinguish between on-duty and overtime work are: whether the labor tasks of the worker during the period of employment are the same as his/her own job, whether the worker can rest during the period of employment, and whether the labor force has lost its freedom. specific to this case, the auto repair branch where cao works has a total of more than 20 workers who are responsible for the repair and maintenance of the company's vehicles. due to the special nature of the positions involved, 2 to 3 people are assigned to work in the unit in turns every weekend to ensure in response to possible business emergencies, cao was not engaged in management work attached to his duties during his rest days. the company also provided a place for rest. unlike working days, there were no incidents that required timely handling. employees who work shifts on weekends are free to rest. therefore, cao’s attendance on weekends should be regarded as on-duty work rather than overtime work. regarding remuneration during duty hours, the company has formulated clear rules and regulations. employees who take turns working on weekends will receive subsidies. the standard of subsidies has gradually increased from 50 yuan/day in the early days to 80 yuan/day and 100 yuan/day. among them, employees in leadership positions and the allowance standards for general employees are the same. the rules and regulations were formulated through democratic procedures and have been delivered to employees in writing. the applicant has also signed for the rules and regulations. regarding the payment mode of duty allowance specified in the rules and regulations, which has been going on for more than 10 years since 2012, cao has never raised any objection. it can also be considered that cao recognized that his attendance on rest days was actually on duty rather than overtime, and that he recognized the internal regulations on duty allowances. in summary, cao’s claim after leaving his job that his attendance during breaks constituted overtime work and overtime pay was ultimately not supported.

source: shanghai human resources and social security bureau

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is working on a rest day considered overtime or on duty?

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