52.I am an employee. What kind of paid annual leave do I get?

Answer: Paid annual leave refers to the paid leave that employees, who meet certain conditions, are entitled to for their health, well-being, and work-life balance. Whether employees are entitled to annual leave treatment from their employer should first depend on the type of their employment contract; casual workers are not entitled to paid annual leave.¹

The number of days of paid annual leave for full-time employees on permanent, fixed term, work assignment contracts, and labor dispatch contracts, as well as full-time employees on irregular and general work hours, shall be determined based on their individual consecutive work days for their employers and accumulative service years, according to the Regulations on Paid Annual Leave for Employees.

Employees with less than one year of continuous service are not yet entitled to paid annual leave. Employees who have worked continuously for more than one year recently shall be entitled to various levels of paid annual leave according to their accumulative service years, as follows: 1) 5 days of annual leave for employees whose accumulative service years are more than 1 year but less than 10 years; 2) 10 days of annual leave for employees whose accumulative service years are more than 10 years but less than 20 years; 3) 15 days of annual leave for employees whose accumulative service years are more than 20 years.²

Exceptions to the aforementioned rules are: employees who enjoy winter and summer vacations (such as school teachers), employees who have had more than 20 days of paid personal leave, employees with an accumulative service of more than 1 year and less than 10 years who have taken sick leave for more than two months, employees with an accumulative service of more than 10 years and less than 20 years who have taken sick leave for more than three months, and employees who have accumulative service more than 20 years and who have had over 4-month sick leave. In these exceptional cases, an employee is not entitled to paid annual leave of the year.³

It is worth noting that although the precondition of “one year of continuous work” for annual leave stipulated by law theoretically includes the period of time before the current employment,⁴in practice, the policy generally implemented by enterprises is basically one year of continuous work for current employer, because it is not easy for an employee to realize the ¡°seamless continuity¡± of employment relationships between two employers in practice. ⁵ For example, if an employee joins their current employer after two months’ break following termination with their previous employer, the service years of the employee in the previous employer can not be continuously included into their service years for the current employer. In addition, the condition of “one year of continuous work” also means that an employee who resigns within one year has no right to claim any unused annual leave pay.⁶

Another practical problem with paid annual leave is the treatment of overlapping other holidays. First of all, public holidays and weekend days are not absorbed by paid annual leave.⁷For example, if an employee takes 10 days of paid annual leave that spans two weekend days, the employee will be counted as having used 8 days of paid annual leave instead of 10 days. Similarly, paid annual leave should not be absorbed by other leave periods, including sick leave, bereavement leave, and maternity leave.

Employers have the right to arrange annual leave for employees according to the needs of production and operation, but it shall reasonably consider the opinions and requirements of employees.⁸

At present, there are different decisions in courts around the county on whether full-time employees on irregular work hours and general work hours have the right to paid annual leave. One way is to consider that the employees under the workhour system of irregular and general work hours have the same right to paid annual leave as other types of full-time employees;⁹the other way is to consider that irregular and general work hours, as special forms of employment, do not apply to the entitlement of paid annual leave.¹⁰

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Mr. Wangdong

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.

Email: wangdong@royalaw.com

1
Li Jingru and Inner Mongolia Entry-Exit Inspection and Quarantine Bureau of the People’s Republic of China, Inner Mongolia Entry-Exit Inspection and Quarantine Bureau Organ Service Center Labor Dispute Retrial Review and Trial Supervision Civil Ruling Inner Mongolia Autonomous Region High Court Civil Ruling (2019) No.3801. ¡°According to Article 2 of the Implementation Measures for Regulations on Paid Annual Leave for Employees and Article 2 of the Reply of the General Office of the Ministry of Human Resources and Social Security on Relevant Issues Concerning the Implementation Measures for the Regulations on Paid Annual Leave for Employees (No.149, 2009), the hours of casual employees are different from those of full-time employees and they are not entitled to paid annual leave.¡±
2
Article 3 of the Regulations on Paid Annual Leave for Employees in 2008.
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Article 4 of the Regulations on Paid Annual Leave for Employees in 2008.
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The Reply of the General Office of the Ministry of Human Resources and Social Security on the Implementation Measures for Paid Annual Leave for Employees (No.149, 2009) stipulates that “12 months of continuous work” includes both the circumstances of 12months of continuous work for the same employer and 12 months of continuous work for different employers.
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Civil Judgment of the First Instance of the Labor Dispute between He Mouying and Guangzhou Hengsheng International Travel Service Co., Ltd. Civil Judgment of the People’s Court of Haizhu District, Guangzhou City, Guangdong Province (2020) Yue 0105 Min Chu No. 20193. ¡°This Court holds that as long as a worker has worked continuously for more than one year, they meet the requirement for annual leave. For example, workers must work continuously for one year for the same employer or work seamlessly for more than one year for different employers before they are entailed to annual leave.¡±
6
Civil Judgment of the Second Instance of Labor Dispute between Yang Limin and Guodu Security Branch of Beijing Security Service Corporation Civil Judgment of the Second Intermediate People’s Court of Beijing (2022) Jing 02 Min Zhong No.7564. ¡°Concerning unused annual leave pay, because Yang Limin has worked in Guodu Branch for less than one year¡¡.the Court does not support this claim.¡± However, there are also cases on the contrary: Ningbo Jinlai Machinery Manufacturing Co., Ltd., Civil Judgment of the Second Instance of Hu Qiangquan Labor Dispute Civil Judgment of Ningbo Intermediate People’s Court of Zhejiang Province (2020) Zhe 02 Min Zhong No.470. ¡°Because Hu Qiangquan’s work in Jinlai Company is less than one year, the average monthly wage should be calculated based on the actual working months¡¡ therefore, Jinlai Company should pay Hu Qiangquan annual leave pay.¡±
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Article 3 of the Regulations on Paid Annual Leave for Employees in 2008.
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Article 9 of the Implementation Measures for the Regulations on Paid Annual Leave for Employees in 2008 stipulates that employers shall make overall arrangements for annual leave according to the specific conditions of production and work and taking into account the wishes of employees themselves. If the employer is unable to arrange annual leave for employees or arrange annual leave across one year due to business needs, it shall obtain the consent of the employees themselves.
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Xiao Haiyan and other civil judgments of the second instance of labor disputes Civil Judgment of the Third Intermediate People’s Court of Beijing (2022) Jing 03 Min Zhong No.312, even workers with irregular s also have the right to take annual leave. Whether workers enjoy paid annual leave is not related to the applicable system. Hubei Zhengda Co., Ltd. and Huang Dongfang Labor Dispute Civil Judgment of Second Instance Civil Judgment of Suizhou Intermediate People’s Court of Hubei Province (2022) E 13 Min Zhong No.329. According to Article 45 of the Labor Law of the People’s Republic of China and Article 3 of the Implementation Measures for the Regualtions on Paid Annual Leave for Employees, employees who have worked continuously for more than 12 months are entitled to paid annual leave, which does not exclude the right to paid annual leave for workers who work irregularly according to the s system.
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According to the provisions of Article 11 of Zhejiang Provincial Labor and Social Security Department’s Opinions on Implementing the System of Paid Annual leave for Employees (No.36, 2009), the rule of three-time wages for unused annual leave does not apply to employees who have been approved to implement the system of irregular work hours. The civil ruling of retrial review and trial supervision of labor disputes between Wang Guoqing and Beijing Zhenzhong Taxi Co., Ltd., the civil ruling of Beijing High Court (2021) Jinminshen No.4771. ¡°and Wang Guoqing was on the irregular workhour system. It is not improper (for the lower courts) not to support Wang Guoqing’s claim for payment of wages, overtime pay, and unused annual leave pay against Zhenzhong Company.¡±

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52.I am an employee. What kind of paid annual leave do I get?

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