Question 119: If Employers provide an annual leave schedule after consulting their Employees about this issue and inform them of this schedule in advance, but Employees still do not take annual leave as scheduled, will they be paid for the unused annual leave days when they resign, lose their jobs or stop working as a result of other reasons? Why is that?

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Regarding this matter, labour law now does not have specific regulations and there are conflicted opinions. In this case, there is a point of view that Employers will not have to pay for the unused annual leave days because Article 111.2 of the Labor Code has granted Employers “the right to determine the annual leave schedule after consulting their Employees about this issue and Employers must inform the Employees of this schedule in advance”.From the legal perspective, one party’s right is the other party’s obligation. Therefore, this regulation should be interpreted that Employees are obliged to follow the annual leave schedule on which Employees’ opinions have been collected and which has been notified in advance.

However, as this is a controversial topic, to avoid possible risks, Employers should fully pay for the annual leave days that Employees have not taken. If Employers do not want to pay salary for these annual leave days, they should do the following to limit the risks that may occur:

  • Specify the annual leave schedule in the ILRs which are registered with the provincial labour management agencies;
  • Specify the annual leave schedule in the CLA after conducting the collective bargaining and obtaining the approval of the executive board of the grassroots trade union;
  • Specify the annual leave schedule in LCs with new Employees or in contract appendices with respect to current Employees;
  • Conduct the annual bargaining with the Employee collective and the executive board of the grassroots trade union on the annual leave schedule; and
  • During the time when Employees are still working, Employers must notify Employees of taking annual leave according to the prescribed schedule, otherwise their annual leave days will be withdrawn.