Regulations on Overtime Work Duration

According to the report by Ms. Le Thi Tuyet (tuyetlebn@...), Ms. Tuyet's company previously mobilized employees to work overtime at night for up to 4 hours/day. After applying the regulation of paying an additional 20% of the night overtime wage according to Clause 3, Article 97 of the 2012 Labor Code, the company mobilized for night overtime from 5 hours to 6 hours/day. Ms. Tuyet asked whether the company’s increase in night overtime hours is compliant with the regulations.

Lawyer Le Van Dai, Khanh Hung Law Office - Hanoi Bar Association responds to Ms. Tuyet as follows:

Overtime Pay

Before May 1, 2013, according to Article 61 of the 1994 Labor Code, employees working overtime were paid as follows: On regular days, they were paid at least 150% of the regular hourly wage; On weekly rest days or holidays, they were paid at least 200% of the regular hourly wage.

If working overtime at night (from 10:00 PM to 6:00 AM or from 9:00 PM to 5:00 AM depending on the climate zone), they were also paid an additional at least 30% of the daytime wage.

From May 1, 2013, overtime pay and night work pay are regulated in Article 97 of the 2012 Labor Code as follows:

Employees working overtime are paid based on the wage unit price or the current job wage: On regular days, at least 150%; On weekly rest days, at least 200%; On holidays, paid rest days, at least 300%, not including the holiday wage for employees who are paid by the day.

Employees working at night are paid an additional at least 30% of the wage based on the wage unit price or the current job wage of regular working days.

Employees working overtime at night, in addition to being paid according to the above regulation, are also paid an extra 20% of the wage based on the wage unit price or the current job wage of regular daytime work.

Thus, employees working overtime at night under the new regulation are paid higher (20%) compared to the previous regulation.

Overtime hours must not exceed 50% of regular working hours

Before May 1, 2012, according to Article 70 of the 1994 Labor Code and from May 1, 2012, according to Article 105 of the 2012 Labor Code, night working hours are counted from 10:00 PM to 6:00 AM the next day (8 hours). Employees working overtime from 10:00 PM to 6:00 AM the next day are considered to be working night overtime.

Article 69 of the 1994 Labor Code stipulated that employers and employees could agree on overtime, but not exceeding 4 hours in 1 day. Currently, according to Point b, Clause 2, Article 106 of the 2012 Labor Code, employers must ensure that employees' overtime hours do not exceed 50% of the regular working hours in 1 day; in the case of weekly work regulation, the total of regular working hours and overtime hours must not exceed 12 hours in 1 day.

If the situation reported by Ms. Le Thi Tuyet is correct, the current mobilization of employees to work night overtime from 5 hours to 6 hours in 1 day by the company is a violation of Point b, Clause 2, Article 106 of the 2012 Labor Code mentioned above.

The calculation of wages for employees working night overtime must comply with Article 105 of the 2012 Labor Code. It is not permissible to use the reason that night overtime pay under the current regulation is 20% higher than the previous regulation to increase night overtime hours.

Lawyer Le Van Dai

Khanh Hung Law Office, Hanoi Bar Association

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