The Ministry of Labor issued the Lao-Dong-2-1060130937 Circular of May 3, 2017 (hereinafter, the “Circular”) to communicate that after an employer obtains the consent of workers to work during their rest days, the workers may choose to take supplemental leave as negotiated between the employer and the workers
It was first pointed out in the Circular that under Article 36 of the Labor Standards Law, after obtaining the consent of workers to work on their rest days, the employer shall pay the wages for the work on rest days in accordance with Article 24, Paragraphs 2 and 3 of the Labor Standards Law. This is the statutory obligation imposed on employers under the Labor Standards Law.
It was further pointed out in the Circular that “after” workeres have worked during their rest days, they may still choose to supplement their leave. To the extent that the employee’s rights and interests and the employer’s human resource allocation are not undermined, both the employer and the employee may reach an agreement on the criteria for the supplemental leave, duration of the supplemental leave and unfinished leave hours.
However, if workers working on their rest days do not choose to take supplemental leave, the employer shall still pay the wages for their work on rest days. If an employer unilaterally requires that workers working on rest days can only choose to take supplemental leave, this violates the Labor Standards Law. In case of any dispute concerning the right to claim rest-day wages between the employer and the employee, the employer shall assume the burden of proof.