Lunar Tet 2020 Duty, Teacher

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Regarding your inquiry, LEGAL SECRETARY provides the following explanation:

Pursuant to Circular 28/2009/TT-BGDDT and Circular 15/2017/TT-BGDDT, the annual leave time for primary, secondary, and high school teachers includes summer break, Lunar New Year holiday, semester breaks and other holidays as stipulated by the Labor Code.

Clause 5, Article 73 of the Education Law 2005 also stipulates that teachers are entitled to summer break, Lunar New Year holiday, semester breaks as prescribed by the Minister of Education and Training, and other holidays as stipulated by the Labor Code.

According to Clause 1, Article 115 of the Labor Code 2012, employees are entitled to leave from work and full pay during the Lunar New Year holiday.

Thus, the upcoming Canh Ty Lunar New Year 2020 is a legal holiday. Therefore, during this time, teachers will be granted leave, enjoying the full holiday period as stipulated by the Education Law 2005, the Labor Code 2012 and during the Tet holiday, teachers will still receive full pay as prescribed.

The issue arises: What if a teacher refuses to be on duty during Tet? And if they do, what are their benefits?

Firstly, as stated above, Tet holiday policies for teachers are explicitly outlined in the law. During this time, teachers are entitled to leave and full pay. Therefore, if a Principal forces a teacher to be on duty during Tet, depending on the nature and severity, the Principal may be subject to administrative penalties as stipulated in point b, Clause 3 and Clause 4, Article 14 of Decree 95/2013/ND-CP:

- A fine of 20 - 25 million VND: Forcing teachers to work overtime (specifically being on duty during Tet) without their consent.

- A fine of 25 - 50 million VND: Forcing teachers to work beyond 12 hours/day during holidays, Tet, and annual leave.

Secondly, concerning the benefits when being on duty during Tet.

As per regulations, nobody has the right to compel teachers to stay on duty at school during holidays, summer breaks, or Tet. However, the school can negotiate with teachers regarding on-duty arrangements during Tet, in which case teachers will be paid for overtime work as stipulated in Clause 2, Article 12 of Public Employee Law 2010.

Entitled to overtime pay, night work pay, travel allowances and other policies as per legal regulations and the public service provider’s regulations.

Hence, when being on duty during Tet, teachers will receive overtime pay, night work pay, travel allowances, and other benefits as per legal regulations and the public service provider’s regulations. Specifically, pursuant to Article 97 of the Labor Code 2012 (guided by Article 25 of Decree 05/2015/ND-CP):

Article 97. Overtime pay and night work pay

1. Employees working overtime shall be paid according to the wage unit price or their current wage as follows:

a) On regular days, at least 150%;

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

c) On public holidays, paid leave days, at least 300% excluding wages for these holidays, paid leave days for employees receiving daily wages.

2. Employees working at night shall receive additional pay of at least 30% of the wage unit price or their current wage for a regular working day.

3. Employees working overtime at night shall, in addition to being paid as stipulated in clauses 1 and 2 of this Article, receive an additional 20% of the wage unit price or their current wage for daytime work.

Thus, when teachers are on duty during the Tet holidays, they will be paid an additional amount equivalent to 300% of the holiday wage, and if on duty during the night of Canh Ty Lunar New Year 2020, the total wage they receive will be 390% of the normal working day's wage.

Moreover, when arranging Tet duties, the school leadership must comply with the following conditions:

- Ensure that overtime hours do not exceed 50% of the regular working hours in one day. In cases of weekly working regulations, the total regular and overtime work hours should not exceed 12 hours in one day; not over 30 hours in one month and a total of no more than 200 hours in one year, except in special cases prescribed by the Government of Vietnam where overtime may not exceed 300 hours in one year;

- After each period of continuous overtime in a month, the school leadership must arrange compensatory days off for the time missed.

Toan Trung

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