Night Shift Work: How Are Employees Paid?

The old Labor Code stipulates that overtime pay at night is regulated in Article 61. According to Circular 13/2003/TT-BLDTBXH, which guides this regulation, for hourly-paid workers (monthly, weekly, daily, hourly), overtime pay at night is calculated by the actual hourly wage multiplied by 150%, 200%, or 300% and then by the number of overtime hours worked at night.

The actual hourly wage is determined based on the actual pay of the month in which the employee worked overtime (excluding overtime pay, night work pay, bonuses, and other non-salary-related income) divided by the actual number of working hours in the month (excluding overtime hours).

With the current Labor Code, the method of calculation has changed, becoming more specific to suit current conditions and benefit workers more. According to Article 97 of the Labor Code 2012, employees working overtime are paid salaries as follows:

a) On normal days, at least 150%;

b) On weekly rest days, at least 200%;

c) On public holidays, paid rest days, at least 300% not counting the salary for holidays and paid rest days for employees on daily wages.

Additionally, this Labor Code stipulates that employees working at night are paid an additional 30% of the wage calculated based on the wage unit or the regular workday wages.

Employees working overtime at night are paid in addition to the provisions in Clauses 1 and 2 of this Article, an extra 20% based on the wage unit or the regular workday wages.

As known, overtime is the period beyond normal working hours prescribed by law, collective labor agreement, or labor regulations (Clause 1, Article 106 of the Labour Code). Working at night is working from 10 PM to 6 AM the next morning (Article 105 of the Labour Code).

Thus, overtime from 10 PM to 6 AM the next morning is night overtime. To calculate night overtime pay for employees, first, calculate how much the employee is paid per hour of night overtime, then multiply by the number of overtime hours.

Consider the case of night overtime on ordinary days, there are currently several ways to understand and calculate this. If "L" is the wage unit (or actual hourly wage as referred to in Circular 13/2003/TT-BLDTBXH) then night overtime pay on ordinary days per hour can be calculated (at least) by one of the following methods:

Method 1: According to point a, clause 1, Article 97 of the Labour Code (overtime on ordinary days), employees receive L x 150%; according to clause 2, Article 97 of the Labour Code (working at night), employees receive an additional: L x 30%. According to clause 3, Article 97 of the Labour Code (night overtime), employees receive an additional L x 20%. Thus, according to this understanding, one hour of night overtime for an employee is calculated as: (L x 150%) + (L x 30%) + (L x 20%). This calculation results in one hour of night overtime on an ordinary day equivalent to 200% of the wage unit: L x 200%.

Method 2: Based on the guidance of Circular 13/2003/TT-BLDTBXH mentioned above, “similarly applied” to Article 97 of the current Labour Code, night overtime pay on ordinary days per hour is calculated using the formula: L x 120% x 130% x 150%. This calculation results in one hour of night overtime on an ordinary day equivalent to 234% of the wage unit: L x 234%.

Method 3: Still based on the guidance of Circular 13/2003/TT-BLDTBXH, the corresponding formula for clauses 1 and 2, Article 97 of the new Labour Code is: L x 130% x 150%. According to clause 3, Article 97 of the Labour Code, employees receive an additional L x 20%. Therefore, night overtime pay per hour on ordinary days is: L x 130% x 150% + (L x 20%). This calculation results in one hour of night overtime on an ordinary day equivalent to 215% of the wage unit: L x 215%.

Method 4: This method analyzes the calculation guidance of Circular 13/2003/TT-BLDTBXH to apply to the new regulations. The reason Circular 13/2003/TT-BLDTBXH provides the formula for night overtime pay (per hour) as L x 130% x 150% originates from the formula: (L + L x 30%) x 150%, where (L + L x 30%) (equivalent to: L x 130%) corresponds to the provisions in clause 2, Article 61 of the old Labour Code: “employees working at night as prescribed in Article 70 of this Code shall be paid an additional 30% minimum based on the wage unit calculation”, and then multiplied by 150%, 200%, or 300% according to clause 1, Article 61 of the old Labour Code.

With this method, under the new Labour Code, night overtime pay per hour on ordinary days is: (L + L x 20% + L x 30%) x 150% = L x 150% x 150%. This formula has some variations such as: L x 130% x 150% + (L x 20% x 150%) = (L x 150%) + (L x 150% x 30%) + (L x 150% x 20%). This calculation results in one hour of night overtime on an ordinary day equivalent to 225% of the wage unit: L x 225%.

Among the calculations above, the fourth method is the most reasonable, aligning with the spirit of Circular 13/2003/TT-BLDTBXH on calculating night overtime pay for employees. The general formula for calculating night overtime pay for employees can be the actual hourly wage multiplied by 50%, then by 150% or 200%, or 300%, and finally by the number of night overtime hours.

However, these methods are only for reference and temporarily because there is no official guidance from the competent authority. Recently, many businesses have struggled with how to correctly and reasonably calculate night overtime pay for employees.

To avoid confusion in paying night overtime to employees and ensuring the rights and obligations of employers and employees, employers can choose the most suitable method (possibly the fourth method mentioned above) for temporarily calculating for employees and clearly informing them that this is only a temporary calculation while awaiting official guidance from the competent authority; after receiving official guidance, a review will be conducted.

On the side of the competent authorities (the Government of Vietnam, Ministry of Labor - Invalids and Social Affairs), it is necessary to promptly issue guidance on this matter for uniform application, quickly bringing the law into effect.

According to Vietnam Law Newspaper

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