Regulations on calculating annual leave in case of lump sum salary-Văn Phòng Luật Sư Trương Quyền

Currently, when employees and employers enter into contracts with each other, the agreement contents related to the form of salary payment are indispensable contents. As noted in Article 96 of the 2019 Labor Code, it is stipulated as follows:

1. How is contract salary understood?

– The employer and employee agree on the form of payment, which can be based on time, product or contract.

– The salary that the employee receives will be paid in cash or through the employee's personal account opened at the bank that the employee chooses or at the bank specified by the company;

In the case of salary payment through the employee's personal account opened at a bank, the employer is responsible for paying all fees related to opening the account and transferring salary. Thus, contract wages are also one of the forms allowed by law for employers to fulfill their obligation to pay wages to employees.

To better understand what the concept of a piece wage is, readers can refer to point c, Clause 1, Article 54 of Decree 145/2020/ND-CP: The piece wage paid to workers receiving piece wages depends on the sector. the quality of work and the time that the employer has assigned to the employee.

In fact, this form of salary is commonly used for jobs that are not long-term and stable but are temporary and seasonal in nature.

2. Regulations on calculating annual leave in case of salary:

Annual leave for workers is a benefit recognized by the state. Pursuant to Clause 1 and Clause 2, Article 113 of the 2019 Labor Law stipulates the cases in which employees are considered for annual leave calculation:

– Case 1: Considering the working time of the employee, he must ensure that he works for a full 12 months for one employer. Only when this factor is present will the employee be entitled to annual leave with full pay according to the labor contract as follows:

+ For employees participating in work under normal conditions, they are entitled to a maximum of 12 working days off;

+ In case the employee is a minor, a disabled person, or doing heavy, toxic or dangerous work, the number of days off will be increased by 2 days compared to those working in normal conditions, specifically: 14 days;

+ The maximum day off is 16 working days applicable to people doing particularly heavy, toxic and dangerous work;

– Case 2: To ensure fairness and rights of employees, employees who have worked less than 12 months still have the right to annual leave according to regulations. Annual leave for employees in this case will be calculated proportionally to the number of months worked.

– Also according to the provisions of Clause 3, Article 113, there are certain cases where employees are still entitled to annual leave, specifically: + In cases where the employee quits or loses his or her job but has not yet received annual leave or has not yet received it. If all annual leave days are taken, the employer must be responsible for paying the corresponding salary for the employee's untaken days off;

+ When it is time for annual leave but the salary payment period has not yet come, the employee has the right to request the employer to advance salary in accordance with regulations;

+ In fact, employers need to have separate incentives for employees who have to travel by road, rail, or waterway on annual leave, with the number of days on the road including back and forth. more than 2 days, from the third day onwards extra travel time will be counted in addition to the annual holiday. This calculation method is only applicable once a year.

Thus, the employee's annual leave is considered based on the employee's time and working conditions, not the company's salary payment method. Employees who receive salary in the form of a piece salary are still entitled to normal annual leave if they ensure the conditions stated and analyzed in this section.

3. Regarding working time to calculate annual leave days:

According to Article 65 of Decree 145/2020/ND-CP dated December 14, 2020 of the Government detailing and guiding the implementation of a number of articles of the Labor Code on working conditions and labor relations:

– The first time to be considered is the period of time during which the employee learns a trade or vocational training if the employee, at the end of the period of vocational training or vocational training, stays to work for the employer;

– When the parties sign a probationary contract, the probationary period during which the employee continues to work for the employer after the probationary period expires is also counted in the number of annual leave days;

– Paid personal leave time for employees;

– The law allows employees to take unpaid leave if agreed by the employer and the cumulative leave period will not exceed 1 month per year;

– If an occupational accident or occupational disease occurs during the working process, the time off for the employee to recover will be counted in the annual leave days but must not accumulate more than 6 months;

– For time off due to illness, the cumulative amount must not exceed 2 months/year;

– If female employees are enjoying maternity leave, the time off to enjoy this benefit must also be included in the employee's working time;

– For individuals participating in the tasks of the employee representative organization at the facility, it is counted as working time;

– During the process of participating in labor, if the employee's work is stopped or has to quit without the employee's fault, this time the employee is still recorded;

– During the time off, work was temporarily suspended, but the employer later concluded that there was no violation or no labor disciplinary action.

Thus, according to Clause 1 and Clause 2, Article 113, Article 114 of the Labor Code and Article 66 of Decree 145/2020/ND-CP mentioned above, the number of days of annual leave for employees is calculated as follows:

+ For employees working less than 12 months: Number of days of annual leave = (Number of days of annual leave: 12) x Number of actual working months

In there:

– The number of annual leave days for employees is from 12 to 16 days depending on working conditions and employees (stipulated in Clause 1 and Clause 2, Article 113 of the 2019 Labor Code).

– In case of working less than a full month: If the total number of working days and paid leave days of the employee accounts for 50% of the normal working days in the month, it is counted as 01 working month.

+ For employees working for 12 months or more:

Number of days of annual leave = (Number of days of annual leave + Number of days of leave based on seniority (if any)

In there:

– The number of annual leave days for employees is from 12 to 16 days depending on working conditions and employees.

– The number of days off based on seniority is determined as follows: For every 05 years of working for the same employer, 01 day will be increased.

4. What is the penalty if the company does not approve annual leave for employees?

Pursuant to Clause 1 and Clause 2, Article 18 of Decree 12/2022/ND-CP, individuals or organizations that violate regulations on working hours and rest hours will be subject to fines. down here:

– Case 1: There will be a fine from 2 million VND to 5 million VND when the employer commits the following acts:

+ The employer does not ensure that employees are given personal leave or unpaid leave as recognized by law;

+ For organizations that allow employees to work overtime and where their head office is located, organizing overtime from over 200 hours to 300 hours in a year without this enterprise notifying the department in writing Invalids and social workers know information;

– Case 2: If the employer violates the law on weekly or annual leave or Tet holidays, the fine will be increased from 10 million VND to 20 million VND.