How to determine the salary during the suspension period?
2024 08/23
Case Overview
Cao established a labor relationship with Company A. In June 2023, Cao's left hand was injured by equipment while working. On the same day, Cao was hospitalized for treatment. The hospital's diagnosis of the injury recommended that Cao stop work and rest for 6 months. Later, it was determined by the social security bureau in the location of Company A that the accident injury suffered by Cao was a work-related injury. During the period when Cao suffered from an accident injury and needed to suspend work for treatment, Company A paid him wages during the suspension period based on Cao's average salary (excluding overtime pay) for the twelve months prior to the injury in June 2023. However, Cao believed that Company A's exclusion of his overtime pay resulted in a decrease in his wages during the suspension period, and therefore applied for labor arbitration to request Company A to reissue his wages during the suspension period.
The Labor Dispute Arbitration Committee believes that overtime pay is the portion of the salary provided by the worker that exceeds the normal working conditions. If Cao did not provide normal labor during the suspension period, overtime pay should not be included in the calculation. Therefore, Cao's request for overtime pay to be included in the salary standard during the suspension period is unfounded and not supported by law. Cao refused to accept the arbitration award and filed a lawsuit. The first instance people's court believes that the purpose of establishing the system of suspension of work and salary retention is to ensure that the living standards of injured workers during medical treatment are not affected by work-related injuries. Article 33 of the Work Injury Insurance Regulations also stipulates that during the suspension of work and salary retention period, the original salary and welfare benefits remain unchanged. Due to a work-related injury, Cao was unable to work normally and received overtime pay. Therefore, from a fair perspective, the average salary (including overtime pay) of Cao in the 12 months prior to his injury was used as the basis for calculating the salary during the suspension period. There is no impropriety in ruling that Company A should compensate Cao with the salary during the suspension period.
Lawyer analysis
The focus of the dispute in this case is whether the salary standard for the suspension period includes overtime pay. Due to the lack of clear provisions on this issue in the Work Injury Insurance Regulations, there are two different views in judicial practice in various regions. One view holds that the nature of the salary treatment during the suspension period belongs to the remuneration obtained by the worker for providing normal labor, while overtime pay is the income obtained by the worker for providing additional labor, which does not belong to the scope of normal working hours salary. Moreover, overtime cannot occur during the suspension period, so the suspension period salary should not include overtime pay. For example, Shanghai and Zhejiang provinces both hold this view; Another viewpoint holds that the original salary and welfare benefits refer to the "average salary and welfare benefits" of the injured worker in the twelve months before the injury. Overtime pay also belongs to the category of wages, and workers who are unable to work normally due to work-related accidents should receive overtime pay. Therefore, the salary standard during the suspension period should include overtime pay, as held by Guangdong Province.
In summary, there are different judicial standards in various regions regarding whether the salary standard for workers during the suspension period includes overtime pay. It is recommended that employers follow the judicial standards in their location when determining the salary for workers during the suspension period. If there is no relevant judicial precedent in the local area to refer to, negotiate with the worker to determine or use the average salary (including overtime pay) of the worker in the 12 months before the injury as the basis for calculating the salary during the suspension period.
Cao established a labor relationship with Company A. In June 2023, Cao's left hand was injured by equipment while working. On the same day, Cao was hospitalized for treatment. The hospital's diagnosis of the injury recommended that Cao stop work and rest for 6 months. Later, it was determined by the social security bureau in the location of Company A that the accident injury suffered by Cao was a work-related injury. During the period when Cao suffered from an accident injury and needed to suspend work for treatment, Company A paid him wages during the suspension period based on Cao's average salary (excluding overtime pay) for the twelve months prior to the injury in June 2023. However, Cao believed that Company A's exclusion of his overtime pay resulted in a decrease in his wages during the suspension period, and therefore applied for labor arbitration to request Company A to reissue his wages during the suspension period.
The Labor Dispute Arbitration Committee believes that overtime pay is the portion of the salary provided by the worker that exceeds the normal working conditions. If Cao did not provide normal labor during the suspension period, overtime pay should not be included in the calculation. Therefore, Cao's request for overtime pay to be included in the salary standard during the suspension period is unfounded and not supported by law. Cao refused to accept the arbitration award and filed a lawsuit. The first instance people's court believes that the purpose of establishing the system of suspension of work and salary retention is to ensure that the living standards of injured workers during medical treatment are not affected by work-related injuries. Article 33 of the Work Injury Insurance Regulations also stipulates that during the suspension of work and salary retention period, the original salary and welfare benefits remain unchanged. Due to a work-related injury, Cao was unable to work normally and received overtime pay. Therefore, from a fair perspective, the average salary (including overtime pay) of Cao in the 12 months prior to his injury was used as the basis for calculating the salary during the suspension period. There is no impropriety in ruling that Company A should compensate Cao with the salary during the suspension period.
Lawyer analysis
The focus of the dispute in this case is whether the salary standard for the suspension period includes overtime pay. Due to the lack of clear provisions on this issue in the Work Injury Insurance Regulations, there are two different views in judicial practice in various regions. One view holds that the nature of the salary treatment during the suspension period belongs to the remuneration obtained by the worker for providing normal labor, while overtime pay is the income obtained by the worker for providing additional labor, which does not belong to the scope of normal working hours salary. Moreover, overtime cannot occur during the suspension period, so the suspension period salary should not include overtime pay. For example, Shanghai and Zhejiang provinces both hold this view; Another viewpoint holds that the original salary and welfare benefits refer to the "average salary and welfare benefits" of the injured worker in the twelve months before the injury. Overtime pay also belongs to the category of wages, and workers who are unable to work normally due to work-related accidents should receive overtime pay. Therefore, the salary standard during the suspension period should include overtime pay, as held by Guangdong Province.
In summary, there are different judicial standards in various regions regarding whether the salary standard for workers during the suspension period includes overtime pay. It is recommended that employers follow the judicial standards in their location when determining the salary for workers during the suspension period. If there is no relevant judicial precedent in the local area to refer to, negotiate with the worker to determine or use the average salary (including overtime pay) of the worker in the 12 months before the injury as the basis for calculating the salary during the suspension period.
