Answer:
1.Overtime salary for public holidays
Pursuant to the labour law, the Employee is entitled to leave work for 11 days during the following holidays and New Year holidays[1]: (i) one day for Solar New Year (1 January); (ii) five days for Lunar New Year; (iii) one day for Victory Day (April 30th); (iv) one day for International Labour Day (May 1); (v) two day for National Day (September 2 plus the immediately preceding or immediately following day); and one day for Hung King’s death anniversary (10th day of the third lunar month).
In cases where the Employer requires the Employee to work overtime on the holidays as aforesaid and, if the Employee so agrese, the Employer shall pay the Employee overtime salary[2] and holiday salary[3]. In which:
| Overtime pay | = | Hourly salary actually paid for normal working day | x | 300% (at least) | x | Number of overtime hours |
The hourly salary actually paid for the normal working day is the actual salary paid for the work done by the Employee of the day, week or month in which the Employee is working overtime divided by the number of total actual working hours in such day, week or month (not exceeding the normal working day in the month and excluding overtime hours)[4].
- Holiday salary will be the salary recorded in the LC of the immediately preceding month, divided by the number of ordinary working days in the month[5].
Thus, it can be simply understood that the Employer is obliged to pay the Employee 100% of the holiday salary plus at least 300% of the normal salary in case of requiring the Employee to work on holidays.
2. Plan to arrange compensatory leave instead of paying overtime salary for holidays
The Labour Code and guiding documents have not yet allowed the Employer to arrange compensatory leave instead of paying overtime salary for public holidays. Accordingly, compensatory leave is only allowed if the Public holidays and Tet holidays falling on weekends[6]. In this case, the Employee will enjoy compensatory leave on the following day.
Therefore, arranging compensatory leave for the Employee to take after overtime during holidays does not fall into the said case. Applying compensatory leave in lieu of overtime salary is not in accordance with the law related to the said content. In this regard, the expert of the Payroll Department under the DOLISA of Ho Chi Minh City commented that the Employee should not be provided with compensatory leave rather than overtime salary.
The risk of compensatory leave arrangement beyond the said case may lead the Employer to suffer the following administrative fines for failure to pay the Employee overtime salary[7]:
- Between VND10,000,000 and VND20,000,000 for any breach involving between 1 to 10 Employees;
- Between VND20,000,000 and VND40,000,000 for any breach involving between 11 and 50 Employees;
- Between VND40,000,000 and VND60,000,000 for any breach involving between 51 and 100 Employees;
- Between VND60,000,000 and VND80,000,000 for any breach involving between 101 and 300 Employees; and
- Between VND80,000,000 and VND100,000,000 for any breach involving 301 Employees or more.
In addition, the Employer is obliged to pay the Employee full overtime salary plus the interest on the insufficient and/or late overtime payment calculated at the highest interest rate of demand deposits of the State-owned commercial banks announced at the time of imposing penalties on the offence even if compensatory leave has been provided to the Employee because this leave period is not deemed as the fact that the Employer has fulfilled his or her obligation to pay the Employee overtime salary.
[7]Article 16.2 and Article 16.5 of Decree 28/2020/NĐ-CP dated 01/03/2020
[6] Article 115.3 of the Labour Code
[5]Article 26.2 of Decree 05/2015/NĐ-CP dated 12/01/2015
[4]Article 14.4 (c) of Circular 47/2015/TT-BLĐTBXH dated 16/11/2015 amending Circular 23/2015/TT-BLĐTBXH dated 23/06/2015
[2]Article 98.1 (c) of the Labour Code
[3]Article 67.2 of Decree 145/2020/NĐ-CP dated 14/12/2020
[1]Article 112.1 of the Labour Code
