VI Can a company stipulate an annual leave policy that is different from the Labor Code? How is the time considered working time to calculate the number of annual leave days of employees regulated? What rights do employees have? Through today’s article, let’s learn about this issue with Pham Consult!
Can a company stipulate an annual leave policy that is different from the Labor Code?
According to Article 4 of the 2019 Labor Code, the following is stipulated:
State policy on labor
1. Ensure the legitimate and legal rights and interests of employees and workers without labor relations; encourage agreements that ensure employees have more favorable conditions than those prescribed by the law on labor.
2. Ensure the legitimate rights and interests of employers, manage labor in accordance with the law, democracy, fairness, civilization and enhance social responsibility.
According to Article 113 of the 2019 Labor Code, annual leave is stipulated as follows:
– Employees who have worked for 12 months for an employer are entitled to annual leave with full salary according to the labor contract as follows:
+ 12 working days for employees working in normal conditions;
+ 14 working days for employees who are minors, employees with disabilities, employees working in arduous, toxic, or dangerous occupations or jobs;
+ 16 working days for employees working in especially arduous, toxic, or dangerous occupations or jobs.
– Employees who have worked for less than 12 months for an employer are entitled to annual leave in proportion to the number of months worked.
– In case of resignation or job loss without taking annual leave or not taking all annual leave days, the employer shall pay salary for the days not taken.
– The employer is responsible for regulating the annual leave schedule after consulting with the employee and must notify the employee in advance. The employee may negotiate with the employer to take annual leave in multiple times or combine leave for a maximum of 03 years at a time.
– When taking annual leave before the salary payment date, the employee shall be paid in advance according to the provisions of Clause 3, Article 101 of this Code.
– When taking annual leave, if the employee travels by road, rail, or waterway and the number of days for both going and returning is more than 02 days, from the 03rd day onwards, the travel time shall be calculated in addition to the annual leave days and shall only be calculated for 01 leave in a year.
In addition, Article 114 of the 2019 Labor Code stipulates as follows: For every 5 years of working for an employer, the number of annual leave days of employees as prescribed in Clause 1, Article 113 of the 2019 Labor Code shall be increased by 1 day.
Thus, the law allows companies to agree on more favorable terms than the Law. If the company stipulates an annual leave policy that is different from the Labor Code in a direction that is more favorable than the law, it is still allowed. On the contrary, if the company stipulates an annual leave policy that is different from the Labor Code in a direction that is not favorable to employees, causing loss of employee rights, then that agreement is contrary to the law and is not allowed.
How is the time considered working time to calculate the number of annual leave days of employees regulated?
According to Article 65 of Decree 145/2020/ND-CP, the time considered as working time to calculate the number of annual leave days of employees is as follows:
– Apprenticeship and internship time as prescribed in Article 61 of the Labor Code if after the end of the apprenticeship and internship period the employee works for the employer.
– Probationary period if the employee continues to work for the employer after the end of the probationary period.
– Paid personal leave according to Clause 1, Article 115 of the Labor Code.
– Unpaid leave if agreed by the employer but not more than 01 month in a year.
– Time off due to work-related accidents or occupational diseases but not more than 6 months in a year.
– Time off due to illness but not more than 02 months in a year.
– Time off for maternity benefits according to the provisions of the law on social insurance.
– Time spent performing the tasks of the organization representing employees at the facility that is considered working time according to the provisions of the law.
– Time off work or time off work not due to the employee’s fault.
– Time off due to temporary suspension from work but later concluded that there was no violation or no labor discipline.
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