Consultation:

His unit belongs to the theatrical performance unit. Therefore, Mr. Zhang only took a day off during the 7 Day Spring Festival holiday. Now the unit has arranged to make up for rest instead of paying overtime. However, Mr. Zhang questioned that he thought that according to the national law, the unit should pay overtime for the staff during the Spring Festival, and he had the right to refuse to make up for the rest.

Reply:

Mr. Zhang's arrangement for the rest of his unit should be said to be illegal, but Mr. Zhang's request is not entirely appropriate.

    《條例》第十三條規(guī)定了用人單位安排勞動(dòng)者在法定標(biāo)準(zhǔn)工作時(shí)間以外工作的：

(1) to arrange for workers to extend their working hours beyond the statutory standard working hours of Japan, pay wages in accordance with 150% of the hourly wage standard that is not lower than that of the laborers themselves.

(2) to arrange the workers to work on the day of rest, but can not arrange the rest, and pay 200% wages according to the wage standard of no less than the worker's own day or hour.

(3) arrangements for workers to work on statutory holidays should be paid according to 300% of the daily or hourly wage standards of workers.

According to the above provisions, we can find that when employers and workers fail to reach an agreement on overtime compensation, only when the workers are arranged on the break day, can the employer replace payment of overtime pay by arranging compensation.

    針對(duì)張先生的問題，春節(jié)長假七天中初一、初二和初三屬法定假期，只能采用支付300％加班費(fèi)的方式補(bǔ)償；而初四到初七屬于休息日的調(diào)整，因此用人單位可以安排補(bǔ)休。勞動(dòng)法律對(duì)于在法定休假日安排加班的情形禁止采用補(bǔ)休是有其意義的，法定節(jié)假日不同于雙休日，其意更在于舉國歡慶，因而即使采取了補(bǔ)休，也無法彌補(bǔ)勞動(dòng)者精神文化生活的損失。但不管怎樣，勞動(dòng)者休息的權(quán)利和要求享受加班費(fèi)的權(quán)利都受到法律保護(hù)，用人單位切不可隨意替換，違法用工。