Question 75. Must the Employer pay the Employee for working overtime on the annual leave days specified by the Employer?


As prescribed by the Labour Code, if the Employee has to work extra hours on fully-paid days off, the Employee will be paid for overtime work with the rate of at least 300% excluding the daily wage of the fully-paid days off[1]. In addition, the Labour Code also prescribes that the Employee who has spent full 12 months working for the Employer will be entitled to annual leave with full pay as prescribed in the LC[2]. The Employer may schedule the annual leave days after consulting with the Employee and this schedule must be notified in advance to him or her[3]. In the light of that, if the Employer asks the Employee to work on the annual leave days that the Employer imposed after consulting and announced to the Employee in advance (and the Employee’s consent on overtime has been obtained), the Employer must pay the Employee for his or her overtime work.

However, it should be noted that if the Employee requests to take annual leave but then he or she decides to go work on these leave days due to job demands (voluntarily or at the direct manager’s request), this will not be considered as working overtime on fully-paid days off as mentioned above. From the legal perspective, the Employer (presented by the enterprise’s legal representatives) do not have any formal request that the Employee works overtime on the annual leave days they are allowed to take; on the other hand, the Employer does not issue any written regulation specifying those days, which the Employee goes to work, are paid days off. Therefore, in this case, the Employee will get paid just like a normal working day without any payment for extra hours.

[1] Article 98.1 (c) of the Labour Code

[2] Article 113.1 of the Labour Code

[3] Article 113.4 of the Labour Code