Ask – Answer: The salary for the employees who work the night shift (the third shift) to the morning of the weekly day off or the morning of a public holiday or tet

Phan Thi Nhi

29/09/2022

(Source: baochinhphu.vn)

Question:

At our company’s factory, we have employees who work night shifts from 10 p.m. to 6 a.m. the next morning. Accordingly, If they start working at 22:00 the day before and leave at 6 a.m. on public holidays and tet (for example, they start working at 22:00 on April 29^th to 6:00 on April 30^th – public holidays) or weekends (e.g.: employees start working at 10 p.m on Saturday and finish shift at 6 a.m on Sunday), How will their salary be calculated? Do we have to pay them for the extra hours?

Answer:

Salary for working at night starting from 22:00 the day before a public holiday to 6:00 on the public holiday:

Pursuant to the regulations on the public holidays’ leave in Article 112, Labor Code 2019:

“Article 112. Public holidays’ leave

1. Employees shall be entitled to fully paid days off on the following public holidays:

a) Gregorian Calendar New Year Holiday: 01 day (the 1st of January of the Gregorian calendar);

b) Lunar New Year Holidays: 05 days;

c) Victory Day: 01 day (the 30th of April of the Gregorian calendar);

d) International Labor Day: 01 day (the 1st of May of the Gregorian calendar);

dd) National Day: 02 days (the 2nd of September of the Gregorian calendar and the previous or next day);

e) Hung Kings Commemoration Day: 01 day (the 10th of the third month of the Lunar calendar).

2. Foreign employees in Vietnam are entitled to 01 traditional public holiday and 01 National Day of their country, in addition to the public holidays stipulated in Clause 1 of this Article.

3. The Prime Minister shall decide the specific public holidays mentioned in Point b and Point dd Clause 1 of this Article on an annual basis.”

Accordingly, the current public holidays and tet are specifically fixed in the Labor Code 2019 or by the Prime Minister’s Decision issued annually according to actual conditions. Therefore, employees who work during the public holidays and tet, which are fixed by laws or the Prime Minister’s decision, are considered to be working overtime on public holidays and tet.

Thus, if employees work from 10:00 p.m. on the day before a public holiday or tet to 6:00 a.m. on such day, the period from 0:00 a.m to 6:00 a.m will be considered overtime working on such holiday or tet. Therefore, the company must pay them overtime in accordance with Article 98 Labor Code 2019.

For example: Employees start working from 10:00 p.m on April 29^th to 6 a.m on April 30^th. Whereby,

• From 10:00 p.m to 12:00 p.m on April 29^th, the total salary is 130% including 100% of the normal working day salary and 30% of the normal working day salary for the night shift working.
• From 0:00 a.m to 6:00 a.m on April 30^th, the salary is 390%.

Salary for working at night starting from 10:00 p.m the day before a weekly day off to 6:00 on the a weekly day off:

Pursuant to the regulations on weekly day off in Article 111, Labor Code 2019:

“Article 111. Weekly breaks

1. Each week an employee is entitled to a break of at least 24 consecutive hours. Where it is impossible for the employee to have a weekly day off due to the work cycle, the employer has the responsibility to ensure that on average the employee has at least 04 days off per month.

2. The employer has the right to determine and schedule the weekly breaks either on Sunday or for another fixed day in a week, which must be recorded in the internal labor regulations.

3. In case a public holiday falls on an employee’s weekly break coincide with a public holiday as prescribed in Clause 1 Article 112 of this Labor Code, he/she will have compensatory time-off on the next working days.”.

The current law only requires employers to provide employees with a break of at least 24 consecutive hours per week. As a result, the laws allow employers to decide and define the weekly day off specifically in the labor regulations.

Thus, if employees work from 10:00 p.m. on the day before a weekly day off to 6:00 a.m. on such weekly day off (e.g. Sunday), but employer still ensures 24 consecutive hours off for employees per week determined from 6:00 a.m. on Sunday to 6:00 a.m. on the following Monday, the above night shift time will be considered as the normal working time. Therefore, the period from 00:00 a.m to 6:00 a.m. on Sunday is still a part of normal working time, employer can pay the total salary is 130% including 100% of the normal working day salary and 30% of the normal working day salary for the night shift working.  

Employers should clearly specify the policy of weekly day off within the Company’s labor regulations to avoid any confusion from employees about how to calculate salary for night shift work on a weekly day off versus a public holiday and tet. The employer also should clearly clarify the weekly day off in the regulation for employees working the third shift is determined to be 24 consecutive hours from 6:00 a.m on Sunday to 6:00 a.m on the following Monday (assuming the weekly day off of the majority is Sunday).

In case, accidentally or intentionally, the employer does not pay overtime or does not pay enough overtime salary to the employee, the employer may be subject to the following sanctions:

• A penalty ranging from 10 to 100 million, depending on the number of employees being violated in each case according to the following acts: “not paying or not paying enough overtime salary to employee; not paying or not paying enough salary to employee work at night” (Articles 6.1 and 17.2 of Decree 12/2022/ND-CP).
• Remedial measures: Forcing the employer to pay the full salary plus the interest of the late payment or underpayment to the employee calculated at the highest interest rate on demand deposits of state-owned commercial banks published at the time of sanction (Article 17.5a Decree 12/2022/ND-CP).

Executor: Phan Thi Nhi, Ngo Binh An