A Practical Analysis on Whether the "Large and Small Weekly Work System" Needs to Pay Overtime Pay on Public Holidays
Author | Zhang Shanhua Lawyer Team, Deng Minmin Lawyer
[Preface]
The "large and small weekly work system" referred to in this article refers to the working system that employers implement five days of work in a large week (Monday to Friday), six days in a small week (Monday to Friday + Saturday or Sunday), and alternate weeks.
At the same time, whether the "large and small weekly working system" needs to pay overtime is limited to the situation that the employer does not arrange compensatory rest and implements the standard working hour system (ie 8 hours a day, 40 hours a week). If the employer implements the irregular working system or the comprehensive working system, under the "large and small weekly working system", the general total hours do not exceed the legal working hours, and it is not controversial to arrange rest days without paying overtime pay, so this article does not analyze it.
Controversial views on the definition of "overtime"
[Viewpoint 1] According to the provisions of Article 44, paragraph 2 of the Labor Law, "If a laborer arranges work on a rest day but cannot arrange compensatory rest, he shall be paid no less than 200% of his salary," that is, as long as he arranges work on a rest day, he shall be overtime. If no compensatory rest is arranged, overtime wages shall be paid.
[Viewpoint 2] According to Article 38 of the Labor Law, employers shall ensure that workers have at least one day off per week. At the same time, Article 7 of the "Regulations of the State Council on the Working Hours of Employees" stipulates: "State organs and institutions implement unified working hours, and Saturdays and Sundays are weekly rest days.
Enterprises and public institutions that cannot implement the uniform working hours stipulated in the preceding paragraph may flexibly arrange weekly rest days according to actual conditions. "Overtime should be understood as working hours beyond the legal hours. The standard working hours system requires no more than 40 hours of work per week, so working more than
40hours per week is considered overtime.
[Viewpoint 3] Since the average number of working days per month is 21.75 days, under the large and small weekly working system, overtime is only counted if the accumulated working hours exceed 174 hours (21.75 × 8) per month.
Case search
In order to explore how referees understand overtime under the large and small week work system in judicial practice, we took relevant cases in Shenzhen as samples, and used keywords such as "large and small weeks" and "overtime pay" to search and sort out a total of 33 relevant cases through various legal search platforms.
By analyzing the calculation methods of overtime hours in case referees, we find that there are different calculation methods in various referees, even the same referee in similar cases. such as:
| trial court | case number | referee's point of view |
| Bao'an court | (2020) Guangdong 0306 Minchu 39609 | Li Jian has 2 weeks of working hours per month of 45 hours/week (7.5 hours × 6 days), exceeding the 40 hours/week agreement, and the excess 5 hours/week is overtime on rest days, that is, Li Jian10 hours of overtime on rest days every month。 |
| Longgang court | (2020) Guangdong 0307 Minchu No. 41818 | Because the defendant and the plaintiff agreed in the employment contract to work the standard working hours of 40 hours per week, that is, an average of 174 hours per month, the plaintiff required him to attend work on the rest day of the month for 2 days, that is, 178.125 hours per month [ (21.75 days + 2 days) × 7.5 hours]. In summary, this court holds that,If the defendant works two days a month on rest days, the average number of overtime hours on rest days per month is 4.125 hours。 |
| Shenzhen Intermediate Hospital | (2020) Guangdong 03 Minjian 6000 | Because Zhang ******'s salary is paid on a "monthly" basis,Only the part of the monthly working hours exceeding 40 hours/week × the natural number of weeks in the month can be used as overtime hours to calculate the rest day overtime wageFinally, although the attendance sheet submitted by Poly did not include the attendance records for June 2017, Poly confirmed that in June 2017, it also implemented large and small working days, with one day of work every other week on rest days.The overtime on the rest day of the month is 5.5 hours。 |
| Shenzhen Intermediate Hospital | (2018) Guangdong 03 Minxing No. 284 | 6 days in the big week, 5 days in the small week, 7.5 hours per day, 45 hours per big week, 37.5 hours per small week, and the calculation shows that there are about 5 hours of overtime on rest days per month。 |
| Shenzhen Intermediate Hospital | (2015) Shenzhong Falao Chu Zi No. 377 | Zhang Moumou works 45 hours per week, with two weeks per monthThe average monthly rest day overtime is 10 hours。 |
Through statistical analysis of the final results of the referee cases and the reasons for the referee, we found that among the 33 cases, 16 cases ultimately did not support overtime pay on rest days, and 17 cases ultimately supported overtime pay on rest days. Among the 16 cases that did not support overtime pay on rest days, 5 were rejected on the grounds that the worker did not provide evidence to prove the existence of overtime, 1 was rejected on the grounds that the legal working hours were not exceeded, and the remaining 10 were rejected on the grounds that the employer had paid wages including overtime wages on rest days (2 of them were because the worker did not raise an objection, and it was regarded that the monthly wage received by the worker included overtime wages on rest days, and the other was because the evidence in the case could prove that the agreed wages had been included or the employer had paid overtime wages).
The other 17 reasons for supporting overtime pay on rest days were all that the employer failed to provide evidence to prove that the agreed wages included overtime pay or that the employer had paid overtime pay or had arranged for vacation.
For a more intuitive understanding, we have excerpted the referee's views of some cases.
| number | trial court | case number | Referee points |
| Referee result:Overtime pay on rest days is not supported. | |||
| 1. | Longgang court | (2018) Guangdong 0307 Minchu No. 7348 | The "Salary Details" records that the plaintiff pays the defendant overtime wages every monthThe employment contract concluded by both parties clearly stipulates the defendant's monthly normal working hours wages and overtime wages. The defendant's claim for overtime wages on rest days lacks factual basis and is not supported. |
| 2. | Luohu court | (2021) Guangdong 0303 Minchu No. 16606 | This court holds that the WeChat chat records submitted by the defendant with Hu Xianjie, the staff member in charge of personnel of the plaintiff, show that the defendant had clearly known the plaintiff's working hour system at the beginning of his employment.The defendant did not raise any objection to the working hour system and the wages paid by the plaintiff during his tenure, so this court determined that the wages paid by the plaintiff to the defendant included overtime wages on rest days。 |
| 3. | Shenzhen Intermediate Hospital | (2021) Guangdong 03 Minjian No. 659 | The company's QQ chat records submitted by employees to the court of first instance show that,The employee has not responded to the weekly work notice issued by the Personnel Administration Commissioner, so it is impossible to determine the fact that the employee does work overtime during non-working hoursSecondly, according to the position of the employee, it belongs to the companySenior managers have the authority to arrange their own working hoursAt the same time, according to Article 3.2 of the employment contract, overtime must be applied to the company and approvedSelf-work during non-working hours is not considered overtimeIn summary, the employees' claims for overtime pay are not supported due to insufficient basis |
| 4. | Shenzhen Intermediate Hospital | (2020) Guangdong 03 Minjian No. 25126 | The employees claimed that there was overtime on their rest days.However, the WeChat records submitted to prove the claim were not checked with the original and could not be used as the basis for finding the facts. Moreover, Article 13, Item 12 of the employment contract between the two parties also stipulates that overtime needs to be applied for and approved before overtime can be worked. The employee did not provide evidence for this, so there is no basis for his claim of overtime pay on rest daysIt is not supported. |
| Referee result:Support rest day overtime pay | |||
5. | Luohu court | (2019) Guangdong 0303 Minchu No. 22822 | The plaintiff claims that it has paid the defendant's overtime wages in full for that period.However, if he fails to provide evidence to prove that he has paid the defendant's overtime wages in full for that period, he shall bear the adverse consequences of failing to provide evidenceThe court supports the defendant's claim for overtime pay between February 2017 and February 2019. |
| 6. | Shenzhen Intermediate Hospital | (2020) Guangdong 03 Minjian 25590 | First, the employment contract stipulates that Zhou Zhichang's working hours are standard working hours, that is, working 8 hours a day, 5.5 days a week, and at least one day off per week, and Article 4.1 of the Attendance Management System (Third Edition) also stipulates that "normal working hours are 5.5 days a week, and the total working hours per week are 44 hours, that is, 0.5 days of fixed overtime per week".In the absence of sufficient and valid evidence to the contrary, it is sufficient to determine that Zhou Zhichang worked overtime on rest days and statutory holidaysSecondly,Although the "Attendance Management System (Third Edition) " states that "0.5 days of fixed overtime shall be paid in accordance with the standards stipulated by national laws (already included in the standard salary approved by the hospital) ", but in the absence of further clear agreement, the existing evidence is insufficient to determine that the wages that have been paid include 0.5 days of fixed overtime on rest days and overtime wages on statutory holidays, and Meilai Hospital shall bear the corresponding adverse consequences of failure to provide evidence。 |
| 7. | Shenzhen Intermediate Hospital | (2011) Shenzhong Fumin Six Final Characters No. 568 | Regarding the payment of overtime wages, XX Company claims that Xiao Moumou's monthly salary includes overtime wages, and provides the "Job Application Form" to prove it. This court believes that the "Instructions for Admission" part below the "Job Application Form" is handwritten.× × Company has not provided evidence to prove that this part belongs to the content agreed upon by both parties, and Xiao Moumou has not confirmed this "entry instructions". Therefore, this court does not support × × Company's claim that Xiao Moumou's monthly salary includes overtime salary。 |
| 8. | Shenzhen Intermediate Hospital | (2018) Guangdong 03 Minjian No. 19249 | Regarding the second point of dispute, the appellant Shenzhen Zeneng Electronic Technology Co., Ltd. claimed that it was paid according to the monthly salary, but did not submit valid evidence to prove it. In this case, the employment contract between the two parties clearly stipulated that the working hours of the appellant Zhang Zhe were standard working hours, working 8 hours a day and 40 hours a week.Both parties admitted that the appellee Zhang Zhe worked for large and small weeks, and there was a situation of working on SaturdaysAt the same timeAppellant Shenzhen Zeneng Electronic Technology Co., Ltd. also failed to submit evidence to prove that it had arranged for appellant Zhang Zhe to take compensatory leaveTherefore, the court of first instance ruled that the appellant Shenzhen Zeneng Electronic Technology Co., Ltd. paid the appellant Zhang Zhe 3,000 yuan in overtime pay from November 15, 2017 to March 3, 2018, which did not violate the law. |
| 9. | Shenzhen Intermediate Hospital | (2021) Guangdong 03 Minjian No. 4463 | The content of the employment contract on working hours and salary payment methods is the format text printed and generated by the company, and is not used as a blank part. It cannot be confirmed that the content is determined after consultation with employeesThe employee's job position is a security guard, which does not belong to the situation of "reasonably arranging working hours and completing work tasks according to Party A's requirements". According to the company's proposition, employees work 12 hours a day (without deducting the meal time for two meals), work 6 days on weekends every month, and the responsibility package salary system is 2,800 yuan/month (no additional overtime pay will be calculated). It is calculated that the employee's unit time wage is lower than the minimum wage standard in Shenzhen. In summary, the company shall pay employees overtime wages for extended working hours and overtime wages for rest days. |
| 10. | Shenzhen Intermediate Hospital | (2019) Guangdong 03 Minjian No. 27891 | This court holds that,The pay slip submitted by the company in the first instance stating the monthly salary structure of the employees did not show any overtime pay itemsTherefore, this court does not accept the company's claim that overtime wages have been paid. |
Case search conclusion
From the overall judgment logic of the search case, it is not difficult to find that under the large and small week system, the core of the dispute is not whether overtime wages need to be paid for overtime on rest days, but how to determine and understand whether the monthly wages received by workers include overtime wages on rest days. For employers, if the large and small week working system is implemented, it should be noted that the monthly wages received by workers are clearly stipulated in the employment contract to include overtime wages on rest days (not lower than the minimum wage standard) and/or in the wage slips or other documents signed by the workers.
If the defense is only based on the fact that the worker has not raised an objection, there is still a large risk of losing the case. For workers, they should pay attention to collecting and preserving relevant evidence of the employer's implementation of the weekly work system and the factual evidence of their usual overtime, otherwise they may also face the risk of losing the case.
IV. Analysis of the Extension Problem
In the case that the employer needs to pay overtime wages on rest days, we have further explored the following issues:
Question oneHow long can a worker claim overtime pay?
Question twoCan the employer argue that the employee is not forced to terminate the employment contract without paying economic compensation on the grounds that the employer does not have the subjective intention to default on overtime pay?
1. How long can a worker claim overtime pay?
According to Article 27 of the Labor Dispute Mediation and Arbitration Law of the People's Republic of China, "The limitation period for applying for arbitration in a labor dispute is one year. The limitation period for arbitration is calculated from the date when the parties know or should know that their rights have been infringed....If there is a dispute over the arrears of labor remuneration during the existence of the labor relationship, the worker's application for arbitration is not subject to the limitation period of arbitration stipulated in the first paragraph of this article; however, if the labor relationship is terminated, it shall be filed within one year from the date of termination of the labor relationship.
"Overtime pay is labor compensation, and a special statute of limitations system applies, that is, the worker can submit it within one year after the termination of the contract labor, and the total time for overtime pay is not limited.
However, according to Article 42 of the Interpretation of the Supreme People's Court on the Application of Law in the Trial of Labor Dispute Cases (1) (Legal Interpretation [2020] No. 26): "If a laborer claims overtime pay, he shall bear the burden of proof for the existence of overtime.However, if the worker has evidence to prove that the employer has evidence of the existence of overtime, and the employer does not provide it, the employer shall bear the adverse consequences。
"And Article 15 of the" Shenzhen Employee Wage Payment Regulations "stipulates:" The employer shall make a wage payment table when paying wages.... The wage payment table shall be kept for at least two years. "
Under the weekly working system, the employee manual and/or employment contract of the general enterprise will clearly record the specific working hours, so the preliminary burden of proof for the existence of the fact that the worker has completed overtime is easy to do. According to the employer's obligation to keep the wage payment certificate for 2 years, for overtime wages within 2 years, the public employer needs to provide evidence to prove that overtime wages have been paid.
For overtime wages two years ago, employees must not only prove the existence of overtime facts, but also prove the specific amount of overtime wages. Otherwise, their claims for overtime wages two years ago will face the legal risk of failure to provide evidence。
The above two-year period generally refers to two years before the date of the worker's application for arbitration.
2. Can the employer argue that the worker is not forced to terminate the employment contract without paying economic compensation on the grounds that the employer does not have the subjective intention to default on overtime pay?
Under the large and small week working system, we believe that whether the employer has the subjective intention of defaulting on overtime pay is worth discussing, especially if the worker has never asked for overtime pay during the contract performance period, and the two parties have not clearly agreed on the specific payment time of overtime pay. Generally speaking, the employer implements the large and small week working system, and the worker should be aware of it during the performance period of the employment contract, and the worker will generally not raise objections during the performance period of the contract.
In the cases we searched, some cases rejected the claims of overtime pay directly on this ground.
From a subjective perspective, the employer's original intention should be to consider that the salary agreed with the employee has included the salary for work on rest days. If the employee believes that it is not included, we believe that this situation can be considered as a major misunderstanding between the two parties, and it should not be directly determined that the employer has the subjective intention of defaulting on overtime pay.
Then, if the employer does not have the subjective intention of defaulting on overtime pay, and the worker claims to terminate the contract on this ground, does the employer need to pay economic compensation? We believe that if the employer does not have the subjective intention of defaulting on overtime pay, the worker's claim for economic compensation for the termination of the employment contract on the grounds of failure to pay labor remuneration in full and on time should not be supported.
The Foshan Intermediate People's Court also held the above view in the (2021) Guangdong 06 Civil End No. 2353 case, holding that: "Regarding Huang Zhihao's overtime pay on Saturday, although Kangsida has not paid for 9 days, it is due to disputes between the two parties over overtime hours and overtime pay calculation standards, and it is not a malicious default.
And Huang Zhihao failed to submit evidence to prove that he had raised objections to Kangsida Company on the amount of wages during his tenure, so Kangsida Company's behavior does not belong to the situation that the employer does not pay the labor remuneration in full as stipulated in Article 38 (2) of the Employment Contract Law of the People's Republic of China. There is no reason for Huang Zhihao to exercise the right of unilateral termination to request Kangsida Company to pay economic compensation。
Therefore, the original judgment found that Kangsida Company did not need to pay Huang Zhihao the economic compensation for the termination of the labor relationship, and this court upheld it. "
However, in the cases we retrieved in Shenzhen, we have not seen the employer put forward the above defense claims. In the case of supporting overtime pay on rest days, if the employer does not pay, the economic compensation claim of the worker to terminate the employment contract is generally supported.
Lawyer Profile
Zhang Shanhua Lawyer
Director of the Management Committee of
Deputy Secretary of the Party Committee of Shenzhen Lawyer Industry
Arbitrator of Shenzhen Court of International Arbitration
Over the past 30 years, lawyer Zhang Shanhua has handled a large number of civil and commercial cases and government legal service projects, mainly in the fields of construction engineering, civil and commercial litigation and arbitration, and government legal services, especially in solving major difficulties and historical legacy problems and cases.
Lawyer Deng Minmin
Partner of
Corporate compliance officer (senior)
Deng Minmin is a partner of
. He has been engaged in legal services in a law firm since graduating in 2012. During his legal career of nearly 10 years, he has always focused on case research, represented a large number of civil and commercial litigation and arbitration cases, and provided continuous long-term legal services for dozens of enterprises and institutions. Has clear logical thinking, keen risk perception and dispute resolution capabilities.
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