In the golden September, as the Mid Autumn Festival and National Day holidays are approaching, topics such as the pros and cons of "compensatory leave", "compensatory leave" and "overtime pay" have sparked a new round of public discussion. In this context, we cannot help but ponder: how to safeguard the legitimate rights and interests of workers while balancing the needs of economic and social development? The original intention and current situation of the "compensatory leave" system? How can we further solve the controversial issue of "compensatory leave" in rational discussions? It is worth exploring.

What is the "yes" and "no" of the compensatory leave system?

In practice, the broad concept of compensatory time off includes two concepts: "compensatory time off" and "compensatory time off", which mainly exist in the following three situations:

(1) The State Council's compensatory leave policy for the entire population

National compensatory leave refers to the State Council adjusting a specific public holiday to another time in order to achieve the purpose of taking consecutive days off during statutory holidays. For example, according to the "National Holiday and Memorial Day Holiday Measures", the National Day holiday lasts for 3 days. However, in order to ensure more ample travel time for the whole nation and stimulate consumption, the State Council usually provides compensatory leave to achieve the seven day National Day holiday.

(2) Internal compensatory leave within the enterprise

According to the "Approval Measures of the Ministry of Labor on the Implementation of Flexible Working Hours and Comprehensive Calculation of Working Hours in Enterprises", for special working hour systems such as flexible working hours and comprehensive calculation of working hours, enterprises can adopt methods such as centralized work, centralized rest, rotation and adjustment of rest time, flexible working hours, etc. to ensure employees' rights to rest and vacation and the completion of production and work tasks.

(3) Compensatory leave for overtime on rest days

In the strict sense of the law, compensatory time off does not equal compensatory time off. Compensatory time off refers to the rest time that workers take to make up for their work on rest days. In 1994, the Labor Law incorporated compensatory time off into the law. According to the provisions of the Labor Law, if an employee works overtime on a rest day, the employer should prioritize arranging compensatory time off equivalent to the overtime hours.

Therefore, the original intention of the compensatory leave system is to avoid the "fragmentation" of holidays and ensure that workers can travel or have sufficient rest during holidays through "zero inventory consolidation"; The second is to flexibly respond to the work needs of different employers, adjust workers' working hours, and ensure a balance between workers' right to rest and completing work tasks. However, in practice, the system of compensatory leave or compensatory leave is difficult to be fully and effectively implemented due to the weak awareness of the right to rest of some workers, lax law enforcement or supervision, imperfect employer system and other comprehensive factors, so that it frequently causes public debate. Therefore, we should call on all parties to jointly promote the renewal and improvement of the system.

2. Protection of Workers' Rights and Interests: Can compensatory time off be used as a substitute for overtime pay?

According to Article 44 of the Labor Law of the People's Republic of China (hereinafter referred to as the "Labor Law") and the viewpoint of the Ministry of Human Resources and Social Security, whether compensatory leave or compensatory leave can replace overtime pay needs to be analyzed according to different situations:

If overtime is required during statutory holidays, the employer shall pay no less than 300% of the salary as compensation, and cannot arrange compensatory leave as a substitute for paying overtime pay to the employee.

Secondly, for those who work overtime on rest days, the employer should prioritize arranging compensatory leave equivalent to the overtime hours; If it is not possible to arrange compensatory leave for workers, they should be paid a wage compensation of not less than 200% of their salary. However, according to Article 38 of the Labor Law, employers should ensure that employees have at least one day off per week, so employers should not arrange for employees to work continuously for a long time.

Thirdly, if overtime is delayed on working days, the employer shall pay no less than 150% of the salary as compensation. In principle, arranging compensatory leave cannot replace paying overtime pay to the employee.

At the same time, according to Article 41 of the Labor Law: "Employers may extend working hours due to production and business needs, after consultation with the trade union and workers, generally not exceeding one hour per day; if it is necessary to extend working hours for special reasons, the extension of working hours shall not exceed three hours per day, but not exceeding thirty-six hours per month, under the condition of ensuring the health of workers." Therefore, in the event that an employer arranges overtime in violation of legal provisions, workers have the right to refuse overtime.

Is there a "loophole" in the management of compensatory leave by employers from a legal perspective?

(1) Overtime on statutory holidays and extended working days cannot be replaced by compensatory time off as overtime pay

According to Article 44 of the Labor Law, if an employer arranges for employees to work overtime on statutory holidays or on extended workdays, they shall pay overtime pay. However, in practice, many employers adopt the method of arranging compensatory time off instead of overtime pay, which does not comply with labor laws and regulations.

(2) The zero tolerance system for compensatory leave is illegal

In practice, some employers set a validity period for the compensatory leave time obtained by employees after overtime work, stipulating that not using it within a certain period is considered as giving up. This practice clearly violates the legislative spirit of Article 44 of the Labor Law, depriving workers of their right to rest and request compensation.

Why do the public have mixed opinions on the compensatory leave system, and how should the law respond?

Although compensatory leave can allow workers to arrange their vacation time more flexibly, promote the development of consumption and tourism industries, etc., the main reason why the public has been discussing the compensatory leave system is that it essentially exchanges working days and rest days, and the total number of holidays for workers has not increased. Instead, they have to bear the trouble brought by the adjustment. At the legal level, we believe that efforts should be made to increase the number of statutory holidays, ensure the system of paid leave, and optimize the system of compensatory leave.

Firstly, there are currently 11 statutory holidays in China, which is at a moderate level globally. The "National Tourism and Leisure Development Outline (2022-2030)" jointly issued by the National Development and Reform Commission and the Ministry of Culture and Tourism proposes to "optimize the distribution pattern of national holidays and statutory holidays". Therefore, with the development of society, in order to further optimize the well-being of the people, the number of statutory annual leave days can be gradually increased appropriately.

Secondly, the paid leave system can balance compensatory leave to a certain extent. According to the Regulations on Paid Annual Leave for Employees, employees are entitled to 5 to 15 days of paid annual leave per year based on their length of service. However, in practice, due to differences in the operating models and production tasks of employers, as well as imperfect departmental and unit systems, the paid annual leave system is sometimes difficult to fully implement. Therefore, the annual leave system should be further implemented by promoting the concept of paid annual leave, increasing supervision efforts, broadening the channels for safeguarding rights, and improving legal provisions, in order to legally protect workers' right to rest.

Finally, the compensatory leave system can be optimized through more flexible holiday arrangements. For example, on the basis of ensuring necessary statutory holidays, allowing workers to independently arrange part of their vacation time according to their own needs. This not only avoids the rigid adjustment of vacation time, but also maximizes the effectiveness of valuable vacation time.

5. The "dilemma" of statutory holidays and compensatory leave and legal breakthroughs


Given the fragmented nature of statutory holidays in China, without compensatory time off, it is difficult for workers to have sufficient time to plan long-distance travel, visit relatives and friends, etc; Taking compensatory time off can lead to issues such as extending the duration of continuous work in a short period of time and disrupting the original work rhythm. In the face of the dissatisfaction caused by the current system of compensatory leave, we need to look at this problem with a more open and inclusive attitude. It is difficult to meet the wishes of all people whether they are transferred or not.

However, the compensatory leave system is not a fixed law, but should be continuously adjusted and improved with the development of the times and the progress of society. In the process of protecting workers' right to rest through relevant laws and policies, we should listen to public opinion and make scientific decisions. On the one hand, we should improve and refine relevant systems and policy provisions, implement paid leave systems, and promote innovation in enterprise leave systems, such as encouraging enterprises to implement flexible work systems, remote work and other new work models, to provide workers with more flexible work arrangements and rest time; On the other hand, while strengthening the supervision and inspection of the implementation of working hour and vacation systems by employers, efforts should be made to promote the establishment and improvement of channels and mechanisms for workers' rights protection, ensuring that workers can easily seek judicial remedies when their right to rest is violated.

Tips and Suggestions

Defending workers' right to rest is an important part of maintaining personal health, work life balance, and legally granted rights. Therefore, it is necessary to raise awareness of rights protection, fully understand the legal provisions on working hours, overtime, paid annual leave, sick leave, maternity leave and other rest rights, as well as the relevant systems of employers. In case of infringement of the right to rest, pay attention to collecting and preserving relevant evidence, such as overtime records, work emails, etc. In case of unsuccessful negotiation, one can file a complaint with the labor supervision department or seek legal assistance to safeguard their legitimate rights and interests.