Does it violate the labor law to work six days a week and eight hours a day as stipulated in the labor contract?

Does it violate the labor law to work six days a week and eight hours a day (excluding lunch break) as stipulated in the labor contract?

This article is more than 6000 words long. In the spirit of "the more the truth is argued, the more clear it will be", it will be a self-directed and self-performed offensive and defensive war. See below:

Any enterprise is supported by employees, so it is necessary to properly handle the relationship with employees, which also includes legal relations, such as compensation for non-competition, legal termination of labor contracts, protection of female employees in the third phase, restrictions on the proportion of labor dispatch, etc ... Therefore, it can be said objectively that the labor law regulates every day of enterprise operation.

Similarly, it is no exaggeration to say that as long as corporate clients who serve as lawyers are engaged in securities listing business, investment and financing mergers and acquisitions business, corporate consulting business or daily litigation business, almost all of them have to dabble in labor law or even "have two brushes".

Once the labor dispute turns against each other, some employees may "hold a magnifying glass" to examine and dig all legal issues of the enterprise, including labor law issues, and may file labor arbitration and follow-up litigation accordingly, claiming various expenses and compensation.

The hypothetical scenario in this paper is that employees file a labor arbitration after being dismissed, claiming that their working hours exceed the upper limit of the Labor Law, and overtime pay is not paid on rest days according to the "eight hours a day and six days a week" agreed in the labor contract, and overtime pay is not paid at night, which is different from that agreed in the labor contract. ......

However, the result of labor arbitration is far from the employees' purpose, so employees bring a lawsuit to the people's court, which has caused great trouble to the company.

Based on the above simulation scenarios, the author tries to crack the reasons why employees are sued one by one by citing laws and combining precedents. The following officially begins:

catalogue

1. The plaintiff's claim of "overtime pay on rest days" has no factual basis.

(a) a day off every week does not violate the mandatory provisions of the state.

(2) The plaintiff's extension of working hours on the sixth working day every week did not violate the mandatory provisions of the state.

(3) The plaintiff misunderstood the calculation method of "overtime pay on the sixth working day every week"

(4) The plaintiff's salary has included the salary for extending working hours on the sixth working day every week.

2. The defendant did not violate the labor contract to extend the plaintiff's working hours.

Three. The wage structure and standard agreed by the plaintiff in the labor contract have been legally changed in actual performance.

Upper guide bearing

1. The plaintiff's claim of "overtime pay on rest days" has no factual basis.

Voice-over: employees insist that Saturday is a rest day, and going to work on Saturday is overtime. But we are a small and micro enterprise. In order to survive, we have been working continuously for six days since the first day of our business. So, what is a "rest day" in the legal sense? Are we really breaking the law? Please see below:

On the third page of the civil complaint, the plaintiff said: "According to Article 36 of the Labor Law,' the state practices a working-hour system in which the working hours of laborers do not exceed eight hours a day and the average working hours do not exceed forty-four hours a week.' Therefore, the one-day rest per week agreed in the labor contract is invalid in principle, because it violates the mandatory provisions of the state ... "The plaintiff's above explanation of the labor law misinterprets the spirit of the law and is taken out of context. China's labor legal system has never stipulated that one day of rest is not allowed in a week.

Article 38 of the Labor Law of People's Republic of China (PRC) (revised 20 18) (hereinafter referred to as the Labor Law) stipulates: "The employing unit shall ensure that workers have at least one day off every week." In addition, according to Article 7 of the State Council's Regulations on Working Hours of Employees (revised by 1995), "State organs and institutions practice unified working hours, with Saturdays and Sundays as weekly rest days. /Enterprises and institutions that cannot implement the unified working hours stipulated in the preceding paragraph can flexibly arrange weekly rest days according to actual conditions. "

It can be seen that it is completely legal for the defendant to arrange for the plaintiff to work six days a week and have a rest 1 day, that is, the plaintiff's schedule according to the law and the contract is to work six days a week and have a rest 1 day.

Voice-over: The employee said that the working hours stipulated in our labor contract were too long, which violated the upper limit of 14 hours per week stipulated in the labor law. Are we really wrong? Please see below:

(2) The plaintiff's extension of working hours on the sixth working day every week did not violate the mandatory provisions of the state.

Article 36 of the Labor Law stipulates: "The state implements a working-hour system in which the working hours of laborers do not exceed eight hours a day and the average working hours per week do not exceed forty-four hours." That is, the upper limit of normal working hours stipulated in the labor law is 44 hours, and overtime constitutes an extension of working hours.

The labor contract signed by the original defendant stipulated that the plaintiff worked 6 days a week and 8 hours a day, that is, 48 hours a week; The plaintiff's working hours exceeding 4 hours per week can be understood as extended working hours, that is, the total extended working hours per month is 16 hours.

Article 41 of the Labor Law stipulates: "Due to the needs of production and operation, the employer may extend the working hours after consultation with the trade unions and laborers, generally not exceeding one hour per day; If it is necessary to extend the working hours for special reasons, the working hours shall not exceed three hours a day and thirty-six hours a month under the condition of ensuring the health of the workers. "

The full-time working hours of the working day (i.e. the sixth working day of each week) extended by the plaintiff are 8 hours, which does not exceed the legal limit; The plaintiff's monthly extension of working hours totaled 16 hours, which was also in compliance with the law.

Voice-over: Well, we admit that working hours over 44 hours a week belong to overtime, so how to calculate overtime pay according to law? Please see below:

The first and second items of Article 44 of the Labor Law stipulate: "In any of the following circumstances, the employer shall pay the wages higher than the wages of the workers in normal working hours according to the following standards: (1) If the workers are arranged to work longer hours, they shall pay the wages not less than 150% of the 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; ......"

According to the requirements of the civil complaint, the plaintiff misinterpreted the sixth working day of each week as a rest day, so as to calculate the extended working time salary of that day according to the provisions of the second paragraph of Article 44 above, according to 200% of the normal working time salary. However, as mentioned above, the provisions in Item 1 of Article 44 above are applicable to this Japanese working day, and the salary for extended working hours is calculated at 150% of the salary for normal working hours.

Voice-over: employees now say that the monthly salary does not include overtime pay for those hours a week. Employees who have been on the job for so long have no objection. Now, after leaving the company, it will be the general ledger. Is there any legal support? Please see below:

(4) The plaintiff's salary has included the salary for extending working hours on the sixth working day every week.

The labor contract signed by the original defendant stipulated that the defendant would pay the plaintiff a monthly salary, and the corresponding plaintiff would work 6 days a week and 8 hours a day. The plaintiff joined the company on May 4, 2020 and left the company on October 6, 2020. She worked according to the above working hours, and the working hours were 165438. The plaintiff never raised any objection. It can be seen that the original defendant and the defendant have repeatedly confirmed that the plaintiff's monthly salary includes the salary of normal working hours and the salary of extended working hours on the sixth working day every week in the form of written agreement and actual compliance.

Voice-over: In addition to legal argumentation, the support of case-like views is also very important. Therefore, we search and provide two kinds of cases for the reference of judges (although we trust the professional level of judges very much, we still have to do our work seriously). Please see below:

Many effective judgments also adopt the view that "the agreed monthly salary can include overtime pay". Examples are as follows:

For example, in the case of (20 18) Guangdong 0 1 14 3585 in the early Republic of China, the Huadu District People's Court of Guangzhou held: "On the issue of overtime pay. Yin Weidong claimed that the basic salary agreed by both parties at the time of joining the company was 5,000 yuan, which was a performance 500 yuan. The salary does not include overtime pay, and the evidence submitted is insufficient. According to the salary payment records, since Yin Weidong joined the company, Expo Company and Hongxun Company have been paying salaries at the standard of 5,000 yuan/month, including overtime pay. Yin Weidong has objections to the composition and payment method of wages, but his monthly salary has never been proposed to Expo Company and Hongxun Company, which should be regarded as the actual agreement between the two parties on the monthly salary of workers based on actual performance, that is, the total amount of wages paid includes wages for normal working hours and overtime hours.

Secondly, the court of first instance converted Yin Weidong's salary according to Yin Weidong's attendance and monthly salary, and the salary standard of normal working hours per month was not lower than the minimum wage standard of Guangzhou in the same period, which met the wage payment standard.

Thirdly, Yin Weidong's monthly salary level is equivalent to the overall industry salary level of this position, and his income is in line with the normal income level of this industry. Therefore, Yin Weidong's claim that overtime pay during the existence of labor relations lacks factual and legal basis, and the court of first instance does not support it. The Guangzhou Intermediate People's Court upheld the original judgment in the second instance of the above case.

For another example, in the case of (20 18) No.9775, Liao02 Minzhong, Dalian Intermediate People's Court held: "On the issue of overtime work on Saturday and Sunday. It was agreed that the appellant would work six days a week. The appellee claims that the monthly salary paid to the appellant already includes the salary for going to work on Saturday, and the appellant does not recognize this claim. We believe that the appellant is well aware of the workload on Saturday and his monthly salary. Even after deducting Saturday's salary, the appellant's monthly income is not lower than the minimum wage. Therefore, it should be considered that the two sides have reached a consensus that the monthly salary includes Saturday's work salary, and there is nothing wrong with the court of first instance not supporting the appellant's claim. "

Voice-over: The above cases show that the people's courts are also very concerned about whether the monthly wages for normal working hours after the conversion of overtime wages are lower than the local minimum wage. In that case, we should also discuss it. Please see below:

Moreover, during the plaintiff's employment, the monthly salary of normal working hours after conversion is much higher than the minimum wage standard in this city. According to the current effective notice of * * Municipal People's Government on adjusting the minimum wage standard for enterprise employees in our city (20 18), "Our city implements the minimum wage standard for enterprise employees in Class II areas announced by the provincial government, that is, the minimum wage standard for full-time employees is 1720 yuan/month, ...". The defendant did not evade the minimum wage standard in this city in disguise, which is in line with the compliance point of the people's court in the above judicial precedent.

2. The defendant did not violate the labor contract to extend the plaintiff's working hours.

Schreiber: We really didn't arrange for employees to work overtime on weekdays, so we can't claim for what we didn't do. Please see below:

Six days, eight hours a day. The defendant strictly abided by the working hours agreement and never arranged for the plaintiff to extend the working hours. In the arbitration stage, in order to facilitate the judge to find out the facts, the defendant voluntarily downloaded the attendance record of the plaintiff's nailing punch card software and submitted it to the arbitration commission.

As the nailing software only keeps the attendance data of the last three months, the defendant only downloaded the attendance records of the plaintiff in June 65438+ 10 and June 65438+ 10 in 2020 when preparing the evidence materials in the arbitration stage, and submitted them again in this lawsuit (see defendant's evidence 4). The defendant could not recover and submit attendance data before 10.

Schreiber: I didn't know it until I used nailing software. It turns out that it only keeps the attendance data of the last three months! I really can't provide employees' attendance records before that, which is not subjective, but objective. However, how to prove to the judge who has never used nailing that this is the reason for nailing? Please see below:

The fact that "nailing punch card software only keeps the attendance data of the last three months" can be confirmed according to the statements of the parties in other litigation cases.

For example, in the judgment of (20 19) Guangdong 06 Minzhong No.6513, Foshan Intermediate People's Court wrote: "...... 2065438+08 April-September attendance record is a nailed record, which was nailed for Guangdong micro-medicine pharmacy at one time before arbitration. In order to prove its authenticity, Yuewei Pharmacy actively cooperated with the court of first instance to send a letter to the nail company, requesting to provide Yang Shaomei's attendance record. However, at the time of sending the letter, Yang Shaomei had left her job for more than three months, and the information had been emptied in the background of the nail company. "

For another example, in the judgment of caseNo. (20 19) Hu 0 1 Minzhong 13073, the Shanghai No.1 Intermediate People's Court wrote: "Jin Feng Company claims that John Yang's attendance is based on the attendance of the third-party nailing application software. Because john young left his job for more than three months, the attendance system automatically deleted all attendance records, so it was impossible to confirm john young's attendance. "

The attendance record of nailing in these two months shows that the time for the defendant to punch out of work on several working days is obviously later than that agreed by the original defendant at 18:00, such as 20:06 on September 9, 2020 and 23:46 on October 23, 2020, and the punching place is about/kloc-from the defendant's domicile (that is, the plaintiff's workplace). The plaintiff interpreted this as going to the restaurant there for dinner after work, and punching in overtime on the spot after dinner. The arbitration commission refused to accept this explanation.

However, based on the defendant's inability to provide attendance data before June 5438+00, 2020, the Arbitration Commission directly determined that the defendant arranged the plaintiff to work overtime (the Arbitration Commission deducted five so-called "overtime hours" that were difficult for the plaintiff to win the trust in the above two months when calculating overtime), which misinterpreted the evidence rules and constituted an error in the application of the law.

Voice-over: As the employee filed a lawsuit with the court, the court is now fully hearing the case. If the discussion and judgment of the Labor Arbitration Committee are unfavorable to us, as long as we can find the basis, then we should defend what we should defend and fight for it. Please see below:

Article 6 of People's Republic of China (PRC) Labor Dispute Mediation and Arbitration Law stipulates: "In the event of a labor dispute, the parties have the responsibility to provide evidence for their claims. If the evidence related to the disputed matter belongs to the management of the employer, the employer shall provide it; If the employer does not provide it, it shall bear the adverse consequences. "

The plaintiff claims that the defendant should provide corresponding evidence when arranging overtime, and it is not enough to believe only one side of the story; On the contrary, in order to assist the Arbitration Commission to find out the facts, the defendant voluntarily provided the nailed attendance records of the last two months of the plaintiff's term of office. As for the attendance records from May to September, 2020, the defendant could not master the management for objective reasons, but failed to provide them for subjective reasons, so the defendant should not bear the adverse consequences of not providing evidence.

Although the evidence related to the disputed matters once belonged to the management of the employer, if the employer cannot provide it for objective reasons now, it does not need to bear adverse consequences. The reference cases are as follows:

Voice-over: Our opinions may not be authoritative enough, so find a similar case to make up for it. Please see below:

In the case of (20 19) Su 06 12 People's Republic of China (PRC) No.7812, Nantong Tongzhou District People's Court held that "Tongzhou No.2 Construction Company, as an employer, should establish a roster of employees for future reference according to the provisions of People's Republic of China (PRC) Labor Law and People's Republic of China (PRC) Labor Contract Law. At present, Tongzhou No.2 Construction Company has provided. Although Tongzhou Erjian Company failed to provide attendance records and salary payment records, there are objective reasons for the company's restructuring, and the time limit for litigation in this case has already exceeded the statutory preservation and inspection period, so Tongzhou Erjian Company should not bear the adverse consequences of failing to provide evidence. "

More importantly, the fact that the defendant arranged the plaintiff to work overtime can not be proved by the nail attendance record alone.

Judicial precedents in various places also hold this view.

Voice-over: Strengthen our point of view with similar cases! Please see below:

For example, in the case of (2020) Guangdong 0 1 Minzhong 90 12, the Guangzhou Intermediate People's Court held: "Regarding the fact that Gao claimed that there was a delay in overtime, because the attendance record only proved Gao's punching time, there was no relevant evidence to prove whether Gao was engaged in the work arranged by Xingfang Company."

For another example, in caseNo. (2020)67 17, the Shanghai No.2 Intermediate People's Court held: "It is difficult to distinguish which time is used for work and which time is used for rest adjustment according to attendance records, and other evidence is needed to confirm each other, such as objectively reflecting the work results of working hours. Jiang Ying did not provide further evidence in this regard, so it is difficult to identify the work during overtime only based on attendance records. "

Three. The wage structure and standard agreed by the plaintiff in the labor contract have been legally changed in actual performance.

Voice-over: the actual wage standard is inconsistent with the labor contract agreed in that year. Should it be common? Is it necessary to re-sign the labor contract once it is adjusted in practice? Please see below:

& niobium