Paid Annual Leave for Employees
Related articles:
Overtime Payment and Statutory Holiday
Full Content of Labor Contract Law (Part 4)
Article 1 These Implementation Measures are formulated for the purpose of implementing the Employees' Paid Annual Leave Regulations (hereinafter referred to as the "Regulations").
Article 2 These Measures are applicable to enterprises, private non-enterprise units , labour-employing individual industrial and commercial households (hereinafter collectively referred to as the "Employing Units") within territory of the People's Republic of China and the employees having an employment relationship with the Employing Units.
Article 3 Employees who have worked continuously for 12 months or more are entitled to paid annual leave (hereinafter referred to as "Annual Leave").
Article 4 The number of days of Annual Leave entitled by an employee shall be determined according to the employee's accumulated length of employment. Accumulated length of employment shall cover the employee's length of employment with the same or different Employing Units as well as any time regarded as such by the law, the administrative regulation or the State Council provisions.
Article 5 The days of Annual Leave which may be taken by a new employee who satisfies the requirement of Article 3 in the current year shall be calculated by reference to the number of calendar days that he/she has been employed by current Employing Unit, and if the result is less than 1 day, it will not count towards Annual Leave.
The calculation formula is: (the number of calendar days he/she has been employed by current Employing Unit ÷ 365) × the days of Annual Leave he/she is entitled to for one year employment.
Article 6 Employees are entitled to leaves such as home-return leave, marriage leave, bereavement leave and maternity leave as provided by the state, as well as paid leave due to work-related injury which shall not count towards paid Annual Leave.
Article 7 Where an employee has taken winter and summer vacations that exceeds his/her Annual Leave for the year, he/she shall not be entitled to Annual Leave for the year. Where the number of days of winter or summer vacations taken by the employee for work reason is less than the days of paid Annual Leave, his/her Employing Unit shall make good to him/her the balance of the Annual Leave.
Article 8 Where any of the circumstances prescribed in item (2), (3), (4) or (5) of Article 4 of the Regulations presents itself after an employee has taken the annual paid leave of that year, he/she shall not be entitled to the paid Annual Leave of next year.
Article 9 An Employing Unit may, after consideration of the employees' preference, plan the Annual Leave of its employees as a whole in light of the actual production and work situation. Where an Employing Unit cannot give Annual Leave to an employee or decides to postpone the Annual Leave to the next year due to the need of work, it must obtain the consent of the employee concerned.
Article 10 Where an Employing Unit, with the consent of the employee, gives no Annual Leave to him/her or gives him/her such number of days of Annual Leave that falls short of the Annual Leave due, then in respect of the number of days of the Annual Leave of the current year that has not been taken, it shall pay the employee 300% of his/her daily income for each day of the Annual Leave not taken, which includes the income to be paid by the Employing Unit to the employee per day in normal working days.
An Employing Unit shall give Annual Leave to its employees. Where any employee gives a notice in writing to the effect that he/she choose not to take the Annual Leave because of personal reason, the Employing Unit may only pay the employee a sum that is equal to what he/she makes on regular working days.
Article 11 The daily salary for the purpose of calculating the payment in lieu of Annual Leave for an employee shall be calculated by dividing his/her monthly salary by the number of working days in a month (21.75 days).
The monthly salary aforementioned refers to the average of 12 months' salary (excluding overtime payment) received by the employee before the Employing Unit makes him/her payment in lieu of Annual Leave. Where the employee has been employed for less than 12 months, the average salary shall be calculated by reference to the actual number of months.
Employees are entitled to salary during Annual Leave that is on par with what he/she receives during regular working days. Where an employee is paid piece-rate wages, or processing royalties or other wages calculated by reference to accomplishment, the calculation and payment of daily wages shall be calculated by reference to the provisions under paragraph 1 and 2.
Article 12 Where an Employing Unit dissolves or terminates the labour contract with an employee, and there is Annual Leave outstanding that has not been taken by the employee in the current year, the Employing Unit shall calculate the outstanding Annual Leave by reference to the actual length of time that the employee has worked during the year, and shall pay a sum in lieu of the Annual Leave not yet taken. However no payment shall be made in respect of any outstanding Annual Leave that is less than one full day.
The calculation formula aforesaid is: (The number of calendar days he/she has been employed by current Employing Unit in the current year ÷ 365) × the days of Annual Leave he/she is entitled to for 1 year employment - number of Annual Leave days that has been taken.
No deduction shall be made in the future where the number of Annual Leave days that the Employing Unit has arranged for the current year exceeds the number of Annual Leave days calculated.
Article 13 Where the number of days of Annual Leave and the sums paid in lieu of any untaken Annual Leave under the labour contract, the collective contract or the articles of association of an Employing Unit are more favourable than the those provided under the law, the Employing Unit shall execute according to the agreement or the articles.
Article 14 Where any employee of any labour dispatch unit satisfy the conditions under Article 3, he/she will be entitled to Annual Leave.
In relation to an employee dispatched by the labour dispatch unit, where during the term of the contract, the number of days when he/she is out of work and receives wages for his/her labour under the law exceeds the number of days of Annual Leave he/she is entitled to for the year, he/she shall not be entitled to the Annual Leave for the year. Where it is less than the number of days of Annual Leave he/she is entitled to for the year, the labour dispatch unit and the Employer Unit shall negotiate with each other and arrange to make up for the outstanding days of Annual Leave for the employee dispatched.
Article 15 The labour administration authorities of the local People's Government above the county level shall supervise the implementation of the Regulations and these Measures by the Employing Units.
Where any Employing Unit does not arrange for the employees to take Annual Leave and does not pay the employees a sum in lieu of the Annual Leave according to the Regulations and these Measures, the labour administration authorities of the local People's Government above the county level shall order the Employing Unit to rectify within a given time according to its ambit of duty and authority. Where any such rectification overdue after the given period, then apart from ordering the Employing Unit to pay the sum in lieu of Annual Leave outstanding, the authorities shall also order the Employing Unit to pay compensation in the sum of the in lieu amount outstanding. Where the Employing Unit refuses to pay the sum in lieu of Annual Leave outstanding and compensation decided by the administration, the labour administration authorities shall apply with the People's Court for mandatory enforcement.
Article 16 Where any dispute arises between the employee and the Employing Unit in relation to Annual Leave, such dispute shall be handled according to labour dispute provisions.
Article 17 Where it is otherwise stipulated under the law, administrative regulations of the State Council, these Measures shall be applicable to organisations, non-enterprise units, social organisations and employees with whom they have a labour relationship.
Annual Leave of sailors shall be executed according to the PRC Sailors Rules.
Article 18 In these Measures, "year" refers to the Gregorian calendar.
Article 19 These Measures shall be effective as of the date of promulgation.