Asked by: Pharmaceutical Legal
Hello Lawyer. For the goal of ensuring normal function of factory's electric equipment at night, we arrange some qualified employees to be on duty at the factory. The duty persons could take rest at night normally except necessary working under emergency. We company does not include the duty work when calculating overtime work and pay for duty allowance, emergency allowance at night and meal allowance according to the duty work. Under this circumstance, we would like to know that:
1.Shall this night duty work be calculated into overtime work? Shall duty work at statutory holiday be calculated as overtime work and be paid for three times salary?
2.If the duty work is not overtime work, shall employee's emergency work during duty, such as emergency repair at night, be calculated into overtime work?
3.If the duty work is not overtime work, is it legal to pay for duty allowance or arrangement for shift leave?
Answered by: RDL-Shanghai Attorney Bella Bai
1.According to the given background, employee could take rest at night duty, which is not overtime work in principle. As for the duty at statutory holiday, if it is irrelevant to employee's own work which is arranged by company due to security or fire safety occasionally, it shall not be calculated as overtime work, which shall not be paid either.
2.According to Shanghai's legal practice, it depends on case situation. If the duty work is not employee's own work which is relevant to security and fire safety, it shall not be categorized as overtime work; if it is own work, since employee could take rest at duty, it shall not be considered as overtime work, either. However, it is noted that if the emergency repair work is frequent at night, which means that employee could take rest in principle but actually works frequently, and also the labor intensity of duty work is as much as normal work, there is relatively high risk of being recognized as OT.
3.If not recognized as OT, company could only pay duty allowance instead of OT pay. According to Shanghai's regulations, the benefits on it could be paid based on company's regulations, collective contracts, labor contract or customary practice. Similarly, if there are provisions in company's regulations or customary practice on shift leave, arranging for shift leave also complies with the requirement of laws and regulations.