The Ministry of Labor of the Republic of China issued an explanation for the “Five-Day Work Week” plan on May 3 which also took effect from the same day. If a worker works on a rest day but due to personal factors does not complete all the working hours agreed with the employer, the actual working hours can be included in the monthly overtime 46-hour limit.
The new labor plan of “Five-Day Work Week” has been implemented for over four months. The side of employers has protested many times against the “Do-One, Give-Four” mechanism on rest days. “Do-One, Give-Four” mechanism means when a worker works 1 hour on a rest day, the overtime pay should be computed as four hours. And, the calculation of overtime working hours into the monthly overtime limit is also based on the “Do-One, Give-Four” mechanism. Many employers believe the plan is unreasonable which may seriously affect the operation of their companies.
The Ministry of Labor issued an explanation on May 3 to relax restrictions. If a worker works on a rest day but due to personal factors does not complete all the working hours agreed with the employer, the monthly overtime working hours should be calculated on the basis of actual working hours. The employer does not need to pay the worker according to the “Do-One, Give-Four” mechanism.
The officials of the Ministry of Labor emphasized that the way overtime working hours on rest days are calculated depend on whether it is due to personal factors that a worker is not able to complete the agreed hours with the employer. It must be due to personal factors of the worker that the overtime working hours can be included as actual working hours in the monthly overtime working hours.
For example, a worker had agreed to work 8 hours on a rest day. But, due to worker’s personal factors, such as illness or family matters, he only worked for 5 hours. As a result, 5 actual working hours can be calculated into the monthly overtime working hours. However, if it is because of the employer’s factors, for instance, there is not that much work to do, so that the worker only worked for 5 hours, 8 hours should still be calculated into the monthly overtime working hours.
The explanation of the Ministry of Labor this time expresses that if a worker agrees to work on a rest day but due to personal factors is not able to provide labor service, the employer can calculate the overtime working hours on the basis of actual working hours. The worker can also ask for a leave of absence based on the personal reason according to the Regulations of Leave-Taking of Workers. This explanation has greatly increased the flexibility of calculating overtime working hours on rest days.
The explanation also recommends that it is advisable to stipulate in the collective agreement, the labor contract or the work rules the handling methods, including the notification procedure, whether or not to ask for a leave of absence, etc., if a worker is not able to provide labor service due to personal factors. If you have any questions about the relevant provisions of overtime work on rest days, or if you have any requirements on making changes or amendments in the work rules or labor contracts, please contact the professional team of our company.
