□ Our reporter Zhu Ningning
Near the Qingming holiday, many people have no plans to travel. Since this year’s Qingming holiday coincides with Wednesday, a short day has made many people give up the idea of going out for a holiday directly. In fact, in the past, the practice of "taking a break" to make up a small holiday also attracted many people to "spit", and related topics often rushed to hot search. Therefore, for a long time, there has been a constant call for implementing the paid annual leave system and realizing off-peak travel.
As early as 1994, China established the legal system of paid annual leave in the Labor Law. In 2008, the State Council promulgated the Regulations on Paid Annual Leave for Employees (hereinafter referred to as the Regulations), which clarified the rights of employees to paid annual leave in the form of the State Council Order. However, for a long time, the implementation of paid annual leave for employees in practice is worrying, especially the situation that employees in manufacturing enterprises enjoy paid annual leave is very unsatisfactory, and even becomes a "paper right".
"China is accelerating the construction of a new development pattern with the domestic big cycle as the main body and the domestic and international double cycles promoting each other. The new development pattern needs to establish an effective system to expand domestic demand and fully implement paid annual leave. " Wang Xianyong, a professor at the School of Civil and Commercial Economics of China University of Political Science and Law, pointed out in an interview with the reporter of Rule of Law Daily that speeding up the process of amending the law and amending the Regulations in a timely manner will provide legal protection for the paid annual leave to truly land and protect the rights of workers.
Many factors make it impossible to realize paid annual leave effectively.
According to a survey data of the Ministry of Human Resources and Social Security, nearly half of the people did not enjoy paid annual leave. According to calculate length, a working employee, China’s per capita paid annual leave is about 10 days, but in fact, the per capita paid annual leave is only 6.29 days, and the employees in private enterprises are even less than 4 days. More than 72% of the employees in private enterprises have not fully enjoyed the Chinese New Year leave.
"The statutory obligation of the employer to take paid annual leave has been transformed into an alternative economic compensation obligation, which directly leads to the failure to realize paid annual leave." Analyzing the reasons for the difficulty in landing paid annual leave, Wang Xianyong believes that this is one of the main reasons.
According to the Regulations, if an employer fails to arrange annual leave or pay alternative economic compensation, the labor administrative department shall order it to make corrections within a time limit. If it fails to make corrections within the time limit, in addition to ordering the employer to pay annual leave salary, the employer shall also pay compensation to the workers according to the amount of annual leave salary. However, this provision is somewhat "deformed" in reality. In practice, it often happens that paid annual leave is equal to money compensation. Taking into account various factors such as enterprise benefits and labor shortage, some employers calculate the "economic account" and directly use compensation instead of giving employees a holiday, while some workers are willing to voluntarily give up paid annual leave and replace it with monetary compensation for overtime pay.
In addition, in Wang Xianyong’s view, the implementation mechanism of administrative intervention in labor disputes is difficult to achieve effectively, which is also an important reason why paid annual leave cannot be fully implemented.
"According to the regulations, the labor administrative department shall investigate the legal consequences of illegal acts through labor inspection. However, labor inspection alone cannot effectively implement the legal system of paid annual leave. " Wang Xianyong said, on the one hand, in the face of a large number of employers and all kinds of illegal acts within the scope of the labor law, labor inspection is often inadequate. On the other hand, because the supervision cost and litigation risk should be borne by the labor administrative department, it is easy to lead to the subjective reluctance of the labor administrative department to intervene in supervision, hoping that the workers can solve it through labor arbitration or litigation.
Give full play to the role of paid annual leave to promote the development of tourism market
"Better rest" is to "work better". Paid annual leave not only helps to safeguard the workers’ right to rest and vacation, but also improves their quality of life. In 2022, the National Federation of Trade Unions’ "Network Special Survey of Workers’ Quality of Life" data showed that nearly 60% of workers thought that "more leisure time and richer spiritual and cultural life" was the main embodiment of the quality of life, ranking second only to income.
At the same time, off-peak vacations can also ease holiday traffic congestion and further stimulate tourism consumption. According to a survey, 76.31% of employees in manufacturing enterprises want to travel, read, watch exhibitions or watch movies during their leisure time due to their high work intensity, and increase spending on cultural and leisure activities in the future.
In 2015, "Opinions of the Central Committee of the Communist Party of China and the State Council on Building Harmonious Labor Relations" regards the implementation of paid annual leave as an important task in building harmonious labor relations with China characteristics. In December 2019, the National Development and Reform Commission, the Ministry of Human Resources and Social Security and other nine departments jointly issued the "Implementation Opinions on Improving the Holiday Travel Environment and Promoting Tourism Consumption", proposing to intensify efforts to implement paid vacations for employees and promote off-peak travel. The 14th Five-Year Plan clearly proposes to improve the holiday system and fully implement the paid vacation system.
"From a micro point of view, the implementation of paid vacation may affect the interests of enterprises, but from a macro point of view, the implementation of paid vacation is an important means to promote tourism recovery and promote consumption, and it is also an important method to solve the obvious high and low peaks of tourism and the unbalanced allocation of public service resources." Hu Bin, member of the Expert Committee on the Rule of Law of the Ministry of Culture and Tourism and executive director of the zhejiang university city college Research Center on the Rule of Law of Culture and Tourism, believes that at present, the top-level design of the paid vacation system is basically available, and the key is to implement it. He suggested that the system should promote the docking of paid vacation with incentive tourism and welfare tourism, appropriately solve the worries of enterprises, and take the implementation of paid vacation as an important basis for enterprise rewards and punishments, credit and rating. At the same time, we should also promote the content of paid leave to be written into the labor format contract and enter the collective labor negotiation.
It is worth mentioning that during the two sessions of the National People’s Congress this year, many deputies paid attention to the issue of paid annual leave.
Wu Guoping, deputy to the National People’s Congress and chairman of Wuxi Nianhuawan Cultural Investment Development Co., Ltd., proposed that the paid vacation system should be truly implemented, so as to fundamentally solve the problem of balance in the off-peak season and improve the satisfaction of tourists in the peak season.
Jiang Guangping, member of Chinese People’s Political Consultative Conference, vice-chairman of the All-China Federation of Trade Unions and secretary of the Secretariat, suggested in the Proposal on Really Implementing the System of Paid Annual Leave that policies related to paid annual leave should be enforced, regulations on enterprises violating legal responsibilities should be improved, constraints on the implementation of annual leave should be strengthened, it is forbidden for enterprises to cancel employees’ annual leave by agreement unless there are special circumstances, and clear provisions should be made for cases where enterprises really cannot arrange employees’ annual leave due to work needs. At the same time, he suggested increasing the cost of illegal activities and appropriately raising the standard of administrative punishment for illegal activities. Strengthen the accountability of labor inspection departments, pay attention to the supervision function of trade unions, promptly punish enterprises and enterprise leaders who violate the provisions of paid annual leave for employees, and demand rectification within a time limit to effectively safeguard the rights and interests of employees.
It is suggested that the Regulations on Paid Annual Leave for Employees be revised in due course.
"The reason why employers want to give workers paid annual leave for a certain period of time is because annual leave is for workers to live ‘ The normal life that ordinary people should have ’ The minimum working conditions necessary to maintain the minimum living standard of workers. " Talking about why workers should be given paid annual leave for legal days, Wang Xianyong pointed out that paid annual leave has surpassed the private rights and interests of both employers and employees and entered the category of social public interest, which belongs to the scope of labor standards.
In his view, to fully implement paid annual leave, it is necessary to establish the principle of compulsory paid annual leave, change the current paid annual leave system model, and build an implementation mechanism for fully implementing paid annual leave.
"China’s current legal system of paid annual leave adopts the institutional model of confirming rights, setting alternative economic compensation obligations and administrative intervention in labor disputes. Under this model, whether the employer fails to fulfill its legal obligations in violation of the law or fulfills its legal obligations according to law, paid annual leave may not be effectively realized. " Wang Xianyong said. In view of this, he suggested that the "Regulations" should be revised in a timely manner, and the implementation mechanism of the right to paid annual leave with multiple comprehensive mechanisms should be established through the revision of the law.
Regarding the key points of amending the law, Wang Xianyong pointed out that, first, it is clear that paid annual leave has the dual attributes of labor standards and claims. The benchmark of paid annual leave is a compulsory public law obligation borne by the employer to the state. Implement the principle that paid annual leave must be taken, and establish an administrative law enforcement implementation mechanism for the benchmark of paid annual leave. Secondly, the disputes over paid annual leave between workers and employers return to labor disputes, including the disputes over annual leave requesting actual leave, annual leave requesting payment of annual leave salary and annual leave requesting payment of alternative monetary compensation. Third, the law can authorize the labor administrative department to intervene in the paid annual leave dispute through administrative mediation. Fourth, trade unions help workers realize their rights and interests of paid annual leave through representative mechanism and legal supervision mechanism.
Comics/Li Xiaojun