Question 62: Must Employers pay Employees for their overtime work if they have to work on the annual leave days specified by Employers?

As prescribed by labour law, if Employees have to work extra hours on fully-paid days off, they will be paid for overtime work with the rate of at least 300% excluding the daily wage of the fully-paid days off[1]. In addition, labour law also prescribes that Employees who have spent full 12 months working for Employers will be entitled to annual leave with full pay as prescribed in LCs[2]. Employers may re-schedule the annual leave days after consulting with Employees and this schedule must be notified in advance to them[3]. As such, if Employers have provided an annual leave schedule after consulting their Employees about this issue and inform them of this schedule in advance, but then request Employees to work on these annual leave days (Employees’ consent has been obtained), Employers must pay Employees for their overtime work.

However, it should be noted that if Employees request to take annual leave and then go to work on these leave days due to the job demands (voluntarily or at the immediate manager’s request), this will not be considered as working overtime on fully-paid days off as mentioned above. It is because from the legal perspective, Employers (enterprises’ legal representatives) do not have any request for overtime work on the annual leave days that Employees have requested to take; at the same time, Employers do not have any written regulation specifying that the days Employees go to work are paid days off. Therefore, in this case, Employees will get paid just like a normal working day without any payment for extra hours.

[1]Article 97.1 (c) Labor Code

[2]Article 111.1 Labor Code

[3]Article 111.2 Labor Code