Answer:
The Labour Code does not provide any regulations for the Employer to add on 04 weekly days off in the month that the Employee has not taken (due to business demands, the Employer cannot arrange for the Employee to take leave) to the next month. On the other hand, on the Labour Code basis, the purpose of the weekly days off is to give the Employee a break to recharge his or her batteries to ensure that the work is performed in his or her best condition. Thus, in principle, the Employer must ensure weekly rest days for the Employee at least 24 hours per week as prescribed in the LC or at least 04 days leave per month if the Employee is not allowed to take weekly leave due to the labour cycle in order to ensure the Employee’s health is best recovered.
Adding on 04 untaken weekly days off of a month to the next month may be considered as contrary to the spirit of the Labour Code and the Employer may be subjected to an administrative sanction of from VND20,000,000 to VND40,000,000 depending on the number of Employees involved as prescribed Articles 5.1 and 17.2 of Decree 28/2020/ND-CP of the Government.
If the Employer cannot arrange for the Employee to take weekly leave according to the above-mentioned principle due to business demands, they must fully pay the Employee for the overtime hours that the Employee has spent working in that weekly rest day (at least comparable to 200% of the wage unit price or the actual wage for the current job) because these working hours of the weekly rest day are those beyond the normal working hours as prescribed in Article 107 of the Labour Code. Of note, when requesting the Employee to work overtime, the Employer must get the Employee’ consent and ensure that his or her overtime hours must not exceed 50% of the normal working hours in one day; and if the work regime is applied on a weekly basis, then the total of the normal working hours plus overtime hours must not exceed 12 hours/day; 40 hours/month, and 200 hours/year (except for some particular cases specified by the Government, they may work overtime for up to 300 hours/year).
If the Employer does not follow the above principle and just pay the Employee for the overtime hours calculated at the normal salary rate, this may be considered as a violation of the Labour Code and the Employer may be administratively sanctioned for not paying overtime wage in accordance with Articles 5.1 and 16.2 of the Decree 28/2020/ND-CP of the Government with the penalty level of from VND10,000,000 to VND100,000,000 depending on the number of Employees involved.
