50.How do I calculate overtime pay under the special workhour systems (such as irregular work hours)?

Answer: Special workhour systems include casual hours, irregular, and general work hours. They have different rules for calculating overtime pay.

The practices of courts vary from place to place on whether the overtime pay to casual employees is applicable or not. One approach, as held by the courts of Guangdong Province and Shenzhen City, is that casual employees’ overtime pay is applicable for public holidays only but not for overtime on weekdays and weekends;¹ The other approach, as adopted in Bejing, Jinan City in Shandong Province, and Nanning City in Guangxi, is not to recognize casual employees’ right to any overtime pay at all. ²Another way is to stipulate the minimum wage standard for casual public holidays by local laws and regulations. For example, Beijing stipulates that the minimum hourly wage standard for casual workers on public holidays during 2022-2023 is RMB 59, and there is no need to implement the overtime wage rules for public holidays.³

Article 13 of the Provisional Regulations on Wage Payment stipulates that if the work hours of employees under the general workhour system exceed the standard work hours in an accounting cycle, the exceeding hours shall be applied overtime wages, which shall include three kinds of overtime wages, namely, weekdays, weekend days and public holidays. In addition, the 1995 Ministry of Labour¡¯s Opinions on the implementation of the Labour Law, as well as local decisions, holds that employees should be paid three times overtime wages for working on public holidays, regardless of whether their total work hours during the accounting period exceed the standard work hours.⁴ 309) , article 62,” For worker on irregular and general work hours, their work days in weekend are considered as normal weekdays; When workday happens to be public holiday, their pays should apply item 3 of section 44 of the Labor Law.¡± Ma Dawei v. Lingzhi Fashion (Tianjin) Co., Ltd. and other labor disputes Beijing High Court Civil Ruling (2016) Jing Min Shen No.2381. The court seems to imply that employees on general work hours should be paid overtime wages for public holidays. Qingzhou Ginza Mall Co., Ltd., Li Xiaofeng Labor Dispute Civil Judgment of Second Instance Civil Judgment of Weifang Intermediate People’s Court of Shandong Province (2023) Lu 07 Min Zhong No.1666. Li Jiezhu v. Guangzhou Nanlian Air Catering Co., Ltd. (Guangzhou Intermediate People’s Court of Guangdong Province, Civil Judgment (2011) S.Z.F.M.Y.Z.Z. No.749). ¡°For the staff who implement the workhour system of general work hours, the work hours in weekends (other than public holiday) shall be considered as normal work hours. However, the hours worked that are exceeding the stand work hours shall be considered as overtime hours.¡± [/notes]At present, courts around the country are basically consistent in implementing this provision.

The overtime wage rule for employees on irregular work hours is also the abovementioned Article 13, which stipulates that ¡°workers under the system of irregular work hours are not subject to the above provisions.¡± This rule is puzzling. At present, courts around the country have three types of understanding. One approach, as held by the Shenzhen Courts, is that employees on irregular work hours have no right to claim overtime wages for weekdays and weekend days, but have the right to overtime wages for public holiday.⁵The second view is that employees on irregular work hours are entitled to overtime wages for public holidays, and whether overtime wages can be obtained for weekdays and weekend days depends on whether the total work hours exceed the standard work hours in the accounting cycle.⁶The third view is, as held by the Guangdong Provincial High Court, to deny any overtime wage rights of employees on irregular work hours, and that the aforementioned rule completely excludes the overtime wage rights of employees on irregular work hours for their work in weekdays, weekend days and public holidays.⁷

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Mr. Dong Wang has been in practice for over 20 years, specializing in business law, including employment law, commercial law, company law, and intellectual property law. Mr. Wang has earned respect and trust from his clients due to his professionalism, fidielty, and kindness.

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1
The labor dispute appeal case between Hong Anyun and Guangdong Southern Newspaper Media Group Co., Ltd., Guangzhou Intermediate People’s Court of Guangdong Province issued the Civil Judgment (2011) S.Z.F.M.Y.Z.Z. No.2049 and No.2050. The court supported the casual worker¡¯s overtime wage on public holidays, but rejected the request for overtime wage on weekdays and weekend days.
2
Lin Zhenmei and Guangxi Nanguo Logistics Co., Ltd. Employment contract Dispute Appeal Case Nanning Intermediate People’s Court of Guangxi Zhuang Autonomous Region Civil Judgment (2017) Gui 01 Min Zhong No.3930. Civil Judgment of the Second Instance of the Labor Dispute between Wang Dingshu and the Infrastructure Maintenance Center of the Civil Aviation Administration of China Civil Judgment of the Second Intermediate People’s Court of Beijing (2018) Jing 02 Min Zhong 9593 (in this case, the court even considered that casual work did not constitute employment relationship and rejected all requests for overtime wages). Civil Judgment on the Labor Dispute between Wei Guangxin and Donghao Automobile Company Civil Judgment of Jinan Intermediate People’s Court of Shandong Province (2020) Lu 01 Min Zhong No.5963.
3
Beijing stipulates that from September 1, 2023, the hourly minimum wage for casual employees is RMB 26.4 per hour, and the hourly minimum wage for casual employees on public holidays is RMB 62 per hour. Article 18 of the 2007 Regulations on Payment of Wages in Beijing stipulates that casual workers are not subject to the rule of triple overtime pay when working on public holidays.
4
The former Ministry of Laobor, ¡°the Opinions on Several Issues Concerning the Implementation of the Labor Law of the People’s Republic of China ” (Laobufa ⁴1995
5
In the labor dispute case of Xie v. Shenzhen Travel Co., Ltd., Nanshan District People’s Court Civil Judgment (2009) Shen Nan Fa Min Yi (Lao) Chu Zi No.787. The court held that Article 13 of the Provisional Regulations on Wage Payment should be interpreted as that overtime wages on weekdays and weekend days are not supported under the irregular workhour system, but public holiday overtime wages should be paid. Li Meiyi, Haikou Xinhua Zhengda Airport Service Co., Ltd. Shenzhen Branch, etc. Civil Judgment of Second Instance of Labor Dispute Civil Judgment of Shenzhen Intermediate People’s Court of Guangdong Province (2021) Yue 03 Min Zhong No.6207. The Second Intermediate Court of Chongqing released the fifth typical case of labor dispute: the case of labor dispute between Feng Mou-mou and Chongqing Mou-mou Human Resources Management Consulting Co., Ltd. and a branch of China National Tobacco Corporation in Chongqing. In this case, the court held that overtime wages should be paid on public holidays (but it is not clear whether overtime wages on weekend days are supported). Li Jin and Beijing Dawang Food Co., Ltd. Taiyuan Branch Labor Dispute Retrial Shanxi Provincial People¡¯s High Court Civil Ruling (2022) Jin Min Shen No.328. ¡°Employees on irregular work hours are not entitled to overtime wages fxcept for public holidays work.¡± Chen Kaiqi and Deyou Real Estate Brokerage Co., Ltd. Shenzhen Branch Employment contract Dispute Trial Supervision Civil Ruling Shanghai High Court Civil Ruling (2021) Hu Min Shen No.1128. The court only supports overtime wages on public holidays, but not on weekdays and weekend days.
6
Xie Yulong, Guangxi Guanyang Rural Commercial Bank Co., Ltd. and other civil applications for retrial review of labor disputes Civil Ruling of the High Court of Guangxi Zhuang Autonomous Region (2022) Guimin Shen No.5355. The Guangxi High Court held that the hours the employee on irregular hours worked on weekdays and weekend days did not exceed the standard hours. Therefore, it does not support overtime wages on weekdays and weekend days, but supports the request for overtime wages on public holidays.
7
People’s Court Daily, October 22, 2015, 6th edition: Case Selection, (2015) YZMZZ No.0686, Tianjin First Intermediate People’s Court rules the case of Meng Tong v. Tianjin Suning Yunshang labor dispute. ¡°According to Article 13 of the Provisional Regulations on Wage Payment, workers on the system of irregular work hours are not entitled to overtime wages. That is to say, for overtime hours employees work on weekdays, weekend days, and public holidays, the employers are not obligated to pay overtime wages.¡± Civil Ruling on Labor Dispute Retrial Review and Trial Supervision between Liu Zhenshu and Beijing Brothers Moving Service Co., Ltd. Civil Ruling of Beijing High Court (2021) Jing Min Shen No.5189. ¡°His role is on irregular work hours, thus his claims for overtime wages on weekend days and public holidays lack legal basis.¡± Civil Ruling on Retrial Review and Trial Supervision of Labor Disputes between Su Jijin and Shandong Yantai Dongda Labor Affairs Service Center Civil Ruling of Shandong High Court (2020) Lu Min Shen 11446 No. Civil Ruling on Labor Dispute Appeal and Application for Retrial between Hu Zongyin and Chongqing Chuangang Logistics Group Co., Ltd. Civil Ruling of Chongqing High Court (2020) Yu Min Shen No.3096. Li Hao, Jiangsu Jingdong Information Technology Co., Ltd. Labor Dispute Retrial Review and Trial Supervision Civil Ruling Guangdong Provincial People¡¯s High Court Civil Ruling (2019) Yue Min Shen No.11195. The court held that the irregular workhour system does not apply overtime wages for public holidays. Mao Shiju, Hezhang County Power Supply Bureau Labor Dispute Retrial Review and Trial Supervision Civil Ruling Guizhou Provincial People¡¯s High Court Civil Ruling (2018) Qian Min Shen No.1122. Chen Guojun and Chengdu Quancheng Debang Logistics Co., Ltd. Civil Ruling on Labor Dispute Retrial Review and Trial Supervision Civil Ruling of Sichuan Provincial People¡¯s High Court (2020) CMS No.2768. Labor Dispute between Jiang Qianhe and Jiangsu Nanjing Long-distance Bus Passenger Transport Group Co., Ltd. Civil Ruling of Jiangsu Provincial People¡¯s High Court (2017) Sumin Shen No.3991.

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50.How do I calculate overtime pay under the special workhour systems (such as irregular work hours)?

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