VI In human resource management, mobilizing employees to work outside of office hours is often considered an optimal solution to meet urgent orders or handle work backlogs. However, the line between optimizing productivity and violating working hour standards is very thin. Overtime regulations are not merely about extending working hours to increase income or ensure project progress; they are sensitive legal issues directly related to occupational health and safety. A thorough understanding of these legal limits not only helps businesses operate lawfully and avoid unnecessary dispute risks but also protects the legitimate rights of employees. Let’s explore the key points of current overtime regulations with Pham Consult.
- What is Overtime work?
Overtime is the period of work performed outside of normal working hours as prescribed by law, collective bargaining agreements, or internal labor regulations.
- Conditions for Utilizing Overtime Work
According to Clause 2, Article 107 of the 2019 Labor Code and Article 59 of Decree No. 145/2020/ND-CP, employers may utilize overtime work if they meet all of the following requirements:
– Employee consent must be obtained regarding the duration, location, and specific tasks of the overtime work, except for cases specified in Article 108 of the 2019 Labor Code.
– Ensure that overtime hours do not exceed 50% of normal working hours in a single day. If a weekly working hour system is applied, the total of normal and overtime hours must not exceed 12 hours per day, 40 hours per month.
– Ensure that overtime hours do not exceed 200 hours per year, except for cases specified in Clause 3, Article 107 of the 2019 Labor Code.
- Limits on Overtime Hours
Article 60 of Decree 145/2020/ND-CP specifies the limits on overtime hours as follows:
(i) Total overtime hours shall not exceed 50% of normal working hours in one day for standard workdays, except for cases (ii) and (iii) below.
(ii) If a weekly working hour system is applied, the total of normal and overtime hours shall not exceed 12 hours per day.
(iii) For part-time employees as defined in Article 32 of the Labor Code, the total of normal and overtime hours shall not exceed 12 hours per day.
(iv) Total overtime hours shall not exceed 12 hours per day when working on public holidays, Tet, or weekly days off.
(v) The time periods specified in Clause 1, Article 58 of Decree 145/2020/ND-CP are deducted when calculating the total monthly and yearly overtime hours to ensure compliance with Article 107 of the 2019 Labor Code.
- Overtime in Special Cases
As previously mentioned, overtime requires employee consent. However, under Article 108 of the 2019 Labor Code, employers have the right to request overtime on any day without hourly limits, and employees cannot refuse in the following cases:
– Executing mobilization orders for national defense and security as prescribed by law.
– Performing tasks to protect human life or the assets of agencies, organizations, or individuals in the prevention or rectification of consequences caused by natural disasters, fires, dangerous epidemics, or catastrophes, except where there is a risk to the life or health of the employee as prescribed by occupational safety and health laws.
- Cases Allowed Up to 300 Overtime Hours Per Year
Clause 2, Article 107 of the 2019 Labor Code stipulates that employers must ensure an employee’s overtime hours do not exceed 200 hours per year. However, Clause 3, Article 107 of the 2019 Labor Code permits employers to utilize up to 300 overtime hours per year in certain industries, occupations, tasks, or cases as follows:
– Production and processing for export of textiles, garments, leather, footwear, electrical and electronic products, and processing of agricultural, forestry, salt, and aquatic products.
– Electricity generation and supply, telecommunications, oil refining; water supply and drainage.
– Cases requiring high professional or technical qualifications where the labor market cannot provide adequate or timely supply.
– Urgent work that cannot be delayed due to the seasonal nature or timing of raw materials/products, or to resolve unforeseen objective factors (weather, natural disasters, fire, power shortage, raw material shortage, or technical issues in the production line).
When organizing overtime under Clause 3, Article 107, employers must notify the provincial labor authority in writing.
When organizing overtime work under Clause 3, Article 107, the employer must provide written notification to the specialized labor agency under the Provincial People’s Committee.
In addition to the cases mentioned above, Article 61 of Decree 145/2020/ND-CP further stipulates cases where overtime work between 200 and 300 hours per year may be organized:
– Urgent and non-delayable tasks arising from objective factors directly related to public service activities in state agencies and units, except for the cases specified in Article 108 of the Labor Code.
– Provision of public services; medical examination and treatment services; educational and vocational training services.
– Direct production and business activities at enterprises where the normal working hours do not exceed 44 hours per week.
When organizing overtime work from over 200 to 300 hours per year, the employer must notify the Department of Labor, Invalids and Social Affairs at the following locations:
– The location where the employer organizes the overtime work of 200 to 300 hours per year;
– The location of the head office, if the head office is located in a province or centrally-run city other than the location where the overtime work is organized.
– Notification must be submitted no later than 15 days from the date of implementing the overtime work of 200 to 300 hours per year.
– In cases where the employer’s head office is located or the overtime work is organized within a High-Tech Park, the notification must be sent to the Management Board of said High-Tech Park.
- Calculation of Overtime Pay
According to Article 98 of the 2019 Labor Code, overtime pay is calculated as follows:
(i) Employees working overtime shall be paid based on the piece rate or the actual current salary as follows:
– On normal workdays: At least 150%;
– On weekly days off: At least 200%;
– On public holidays, Tet, or paid leave days: At least 300%, excluding the daily salary for that holiday or paid leave day for employees receiving daily wages.
(ii) Employees working at night shall be paid an additional amount of at least 30% of the salary calculated based on the piece rate or the actual salary of a normal workday.
(iii) Employees working overtime at night shall, in addition to the payments specified in points (i) and (ii) above, be paid an additional 20% of the salary calculated based on the piece rate or the salary for work performed during the day of a normal workday, weekly day off, or public holiday.
