My company produces seasonal agricultural products so the workload and production time frame are unstable. If I register fixed working hours for my company with the labor authority, will my employees be considered working overtime when they work beyond registered working hours though their total working time is under 195 hours per month? What are conditions for requesting an employee to work overtime?
As per Article 104 of the 2012 Labor Code, the normal working time must not exceed 8 hours per day or 48 hours per week. An employer may set an hourly, daily or weekly working time frame for employees. In case of a weekly working time frame, the normal working time must not exceed 10 hours per day and 48 hours per week.
An employee who works under 195 hours per month but over 10 hours per day will have the time working beyond the working time frame of 10 hours per day or 48 hours per week regarded as overtime working hours and get paid by the employer for overtime work.
Your company may state in its internal working regulations that employees working in shifts are entitled to an hour-based working time frame, in which a day shift lasts from 06:01 to 21:59 hours of the same day, while a night shift lasts from 22:00 hours of a day to 06:00 hours of the next day.
However, as stated above, your company must ensure that normal working time does not exceed 10 hours per day and 48 hours per week.
As per the 2012 Labor Code, your company may request an employee to work overtime when fully meeting the following conditions:
(i) Obtaining the employee’s consent;
(ii) Ensuring that the employee’s overtime working hours does not exceed half of normal working hours per day. In case of applying a weekly working time frame, normal working hours plus overtime working hours must not exceed 12 per day, 30 per month and 200 per year, except some special cases specified by the Government in which total overtime working hours must not exceed 300 per year.
The Government prescribed in Decree 45 dated May 10, 2013, that the total overtime working time ranges between over 200 and 300 hours per year, specifically as follows:
• Overtime work may be organized in the following cases:
(i) Production and export processing of being textile, garment, leather footwear, agricultural, forest and aquatic products;
(ii) Electricity generation and supply, provision of telecommunications services, oil refining, water supply and drainage;
(iii) Other cases in which urgent work must be done without delay.
• When organizing overtime work, the employer must notify such in writing to the specialized agency assisting the provincial-level People’s Committee in performing the state management of labor in the locality.
(iii) After each period of overtime work through many consecutive days in a month, the employer must arrange compensatory days off for employees.
Specifically, your company is obliged to arrange compensatory days off for employees who agree to work overtime through a period of up to seven consecutive days. If failing to do so, your company has to give overtime pay in accordance with relevant regulations.-