Is overtime counted if compensatory time off is taken?

Mr. Tran Song Thao (Hanoi) asked, should the overtime hours of employees on Sunday be counted towards the total overtime hours of no more than 200 hours in a year?

According to Mr. Thao's understanding, if an employee has been given compensatory leave for overtime and has been paid the difference in overtime, then those overtime hours are not counted towards the total overtime hours which cannot exceed 200 hours in a year, is that correct?

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Regarding this issue, Lawyer Tran Van Toan, Khanh Hung Law Office - Hanoi Bar Association responded as follows:

Point b, Clause 2, Article 106 of the Labor Code stipulates that the number of overtime hours of employees must not exceed 50% of the normal working hours in 1 day. In case of applying the weekly working regulations, the total number of normal working hours and overtime hours must not exceed 12 hours in 1 day; not exceed 30 hours in 1 month and the total must not exceed 200 hours in 1 year, except for some special cases prescribed by the Government in which overtime hours must not exceed 300 hours in 1 year.

Point b, Clause 1, Article 4 of Decree No. 45/2013/ND-CP dated May 10, 2013 of the Government stipulates that overtime work on holidays, Tet and weekly days off must not exceed 12 hours in 1 day.

According to Article 110 of the Labor Code, each week, employees are entitled to one day off on Sunday or any other fixed day of the week. Weekly days off must be clearly stated in the internal regulations (of the enterprise) or collective labor agreement. In special cases where the labor cycle makes it impossible to have a weekly day off, the enterprise is responsible for ensuring that employees have an average of at least 4 days off per month.

Pursuant to Point b and Point c, Clause 1, Article 97 of this Code, employees working overtime on weekly days off shall be paid at least 200% of the unit price of salary or salary according to the job being done.

The issue Mr. Thao asked is related to the regulation in Point b, Clause 2, Article 106 of the Labor Code on the total number of overtime hours not exceeding 200 hours in 1 year.

According to the lawyer, if the company only organizes overtime on 1 Sunday, and does not organize overtime for many consecutive days in a month, then in this case the company only has to pay overtime wages according to the provisions of Point b, Clause 1, Article 97 of the Labor Code for Sundays. Current labor laws do not stipulate compensatory leave in this case. However, the number of overtime hours the employee works on that Sunday must be counted in the total number of overtime hours, not exceeding 200 hours in 1 year.

In case an employee works overtime on Sunday, the company pays the full overtime salary on Sunday as prescribed in Point b, Clause 1, Article 97 of the Labor Code and settles the compensation day off on the following Tuesday, the overtime hours the employee works on that Sunday shall not be counted in the total overtime hours, not exceeding 200 hours in 1 year.

* Information in this column is for reference only and cannot be used as a document in legal proceedings.