Câu hỏi 1: Thời gian đi đường có được tính thêm vào thời gian nghỉ hàng năm của người lao động không?

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Câu hỏi 1: Thời gian đi đường có được tính thêm vào thời gian nghỉ hàng năm của người lao động không?

Khi nghỉ hằng năm, nếu người lao động có thời gian đi đường, di chuyển bằng các phương tiện vận chuyển đường dài, thì thời gian đó có thể sẽ được xem xét tính thêm ngoài những ngày nghỉ hằng năm như được thỏa thuận tại hợp đồng lao động.

1. Điều kiện để thời gian đi đường được tính thêm

Thời gian đi đường được tính thêm vào ngày nghỉ hằng năm của người lao động (ngoài các ngày phép hằng năm được hưởng nguyên lương mà người lao động được phép nghỉ theo thỏa thuận) khi thỏa mãn đủ các điều kiện sau[1]:

1.1. Người lao động sử dụng một trong các phương tiện đường bộ, đường sắt hoặc đường thủy để đi và về trong thời gian nghỉ phép hằng năm. Như vậy, các phương tiện đường hàng không sẽ không được áp dụng theo quy định này;

1.2. Số ngày đi đường cho cả đi và về phải trên 02 ngày. Theo đó, thời gian đi đường được cộng thêm vào ngày nghỉ hằng năm chỉ bắt đầu tính từ ngày thứ 03 trở đi. Lưu ý rằng cách tính ngày đi đường nói trên sẽ không ngoại trừ ngày nghỉ hằng tuần, ngày nghỉ lễ và các ngày nghỉ khác có hưởng lương. Trên thực tế, để đảm bảo cho việc chính xác và công bằng, người sử dụng lao động thường yêu cầu người lao động cung cấp các giấy tờ chứng minh để xem xét (ví dụ như vé xe ô tô, vé tàu hỏa); và

1.3.Việc tính hưởng thêm thời gian đi đường vào ngày nghỉ hằng năm sẽ chỉ được áp dụng cho một lần nghỉ trong năm. Thông thường, lịch nghỉ phép năm sẽ được thực hiện trong năm dương lịch, cụ thể là từ ngày 01/01 đến hết ngày 31/12 của năm tương ứng (cũng có nhiều doanh nghiệp quy định lịch nghỉ hàng năm sẽ được thực hiện trong năm tài chính ví dụ như từ ngày 01/04 đến hết ngày 31/03 của năm sau) và theo đó, người lao động sẽ được người sử dụng lao động tính thêm ngày nghỉ đi đường vào ngày nghỉ hằng năm trong đợt nghỉ của năm đó.

Ví dụ: Công ty X quy định ngày nghỉ hằng năm của người lao động được tính từ ngày 01/04 đến ngày 31/03 của năm sau. Trong năm 2018, lịch nghỉ lễ, tết của Công ty X là từ ngày 14/02/2018 đến ngày 20/02/2018.

Theo đó, nhân viên A đã xin nghỉ phép hằng năm vào các ngày 12 và 13/02/2018 để về quê ở Nghệ An ăn tết. Như kế hoạch, nhân viên A sẽ di chuyển bằng xe ô tô, bắt đầu khởi hành vào ngày 11/02/2018 (Chủ Nhật) và trở về vào ngày 19/02/2018. Tổng thời gian cả đi và về ước tính là 03 ngày, bao gồm cả ngày nghỉ hằng tuần và ngày nghỉ lễ.

Do: (i) trong suốt đợt nghỉ năm 2017 (từ ngày 01/04/2017 đến ngày 31/03/2018), Công ty X chưa tính và áp dụng quy định ngày đi đường cho bất kỳ trường hợp nghỉ hằng năm nào của nhân viên A; và (ii) theo các vé xe được nhân viên A cung cấp, thời gian đi đường cả đi và về là trên 02 ngày, nên Công ty X đã cộng thời gian đi đường là 01 ngày (được tính từ ngày thứ 03 trở đi) vào ngày nghỉ hằng năm cho nhân viên A.

2. Tiền tàu xe và tiền lương cho những ngày đi đường

Nói chung, tiền tàu xe và tiền lương cho những ngày đi đường sẽ do người lao động và người sử dụng lao động tự thoả thuận với nhau[2]. Riêng đối với những người lao động miền xuôi làm việc ở vùng cao, vùng sâu, vùng xa, biên giới, hải đảo và người lao động ở vùng cao, vùng sâu, vùng xa, biên giới, hải đảo làm việc ở miền xuôi thì người sử dụng lao động có nghĩa vụ phải thanh toán tiền tàu xe và tiền lương những ngày đi đường cho người lao động mà không được thỏa thuận với người lao động như trên. Trong đó, tiền lương cho những ngày đi đường sẽ được tính theo tiền lương làm căn cứ để trả cho người lao động trong các ngày nghỉ hằng năm. Theo đó, số tiền được xác định theo tiền lương ghi trong hợp đồng lao động của tháng trước liền kề, chia cho số ngày làm việc bình thường trong tháng theo quy định của người sử dụng lao động ghi trong nội quy lao động hay thỏa ước lao động tập thể, nhân với số ngày người lao động được hưởng thêm ngày đi đường theo nguyên tắc tại Điều 26.2 Nghị định 05/2015/NĐ-CP ngày 12/01/2015.

Hiện nay, các quy định của pháp luật lao động chưa có một hướng dẫn nào cụ thể hơn về khái niệm “người lao động miền xuôi làm việc ở vùng cao, vùng sâu, vùng xa, biên giới, hải đảo và người lao động ở vùng cao, vùng sâu, vùng xa, biên giới, hải đảo làm việc ở miền xuôi” để căn cứ thanh toán tiền tàu xe, tiền lương những ngày đi đường cho người lao động khi nghỉ phép hằng năm. Vì vậy, trong trường hợp xét thấy người lao động có nơi sinh sống hoặc nơi làm việc ở các vùng không thuộc các tỉnh, thành trung tâm, người sử dụng lao động nên gửi văn bản tham khảo ý kiến của Bộ Lao động – Thương binh và Xã hội hay Sở Lao động – Thương binh và Xã hội tỉnh/ thành phố về vấn đề này trước khi thực hiện để tạo cơ sở rõ ràng hơn cho việc áp dụng và thực hiện.

Ngoài ra, khi người sử dụng lao động chi trả lợi ích về tiền tàu xe, tiền lương cho người lao động theo quy định nói trên, về mặt pháp lý, để có thể được xem là chi phí hợp lệ cho người sử dụng lao động để người sử dụng lao động được khấu trừ về mặt thuế thu nhập doanh nghiệp, người sử dụng lao động nên quy định rõ về việc chi trả này trong thỏa ước lao động tập thể của mình. Trường hợp chưa có thỏa ước lao động tập thể thì nên quy định nội dung này trong hợp đồng lao động hay phụ lục hợp đồng lao động.

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