Question 53: Pursuant to Article 110 of the Labor Code, Employees are entitled to take a rest of 24 hours per week as a minimum. If Employees cannot take a rest weekly due to the labour cycle, Employers must ensure that Employees have a rest of at least 4 days/month on average. As such, may Employers add 4 days of this month to 4 days of the next month? Or if Employers cannot arrange for Employees to take a rest due to business demands, can they pay Employees for the 4 rest days? If it is allowed by law, can Employers pay for these rest days using the salary level?

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Labour law does not have any regulations allowing Employers to add the 4 weekly rest days of this month (Employees cannot take these rest days due to business demands) to the next month. Besides, the purpose of the weekly rest days, as defined by labour law, is to help Employees recover their working abilities to make sure the job is performed better. Therefore, in principle, Employers must ensure that Employees have a weekly rest of at least 24hrs/week as specified in LCs or at least 4 days/month if Employees cannot take weekly rests due to the labour cycle in order to recover Employees’ health.

It may be considered as contrary to the spirit of labour law for Employers to add the 4 weekly rest days of this week to the next month, and they may be subject to an administrative sanction of VND1,000,000 to VND30,000,000, depending on the number of Employees involved as prescribed in Article 14.2 of Decree No. 95/2013/NĐ-CP.

If Employers cannot arrange for Employees to take weekly rest days according to the above principle due to business demands, they must fully pay Employees for the overtime hours that Employees have spent working in these weekly rest days (at least 200% the unit wage or the job-based salary) because these hours are the working time beyond the normal working hours as prescribed in Article 106 of the Labor Code. Of note, when requesting Employees to work overtime, they must get Employees’ consent and ensure that their overtime hours must not exceed 50% of the normal working hours in one day; and if the work regime is applied on a weekly basis, then the total of the normal working hours plus overtime hours must not exceed 12 hours/day; 30 hours/month, and 200 hours in one year (except for some particular cases specified by the Government, up to 300 hours/year). After each period of overtime work for a maximum of (7) consecutive days in a month, Employers will arrange for Employees to take some time off in compensation for the time they did not rest.

If Employers do not follow the above principle and just pay Employees for the overtime hours calculated at the normal salary level, this may be considered a violation of labour law and Employers may be administratively sanctioned for not paying overtime wage in accordance with Article 13.3 of Decree 95/2013/NĐ-CP with the penalty level of VND10,000,000 to VND100,000,000, depending on the number of Employees involved.