When employees work overtime at night, what is the mechanism to pay them to ensure their legitimate rights? If the night shift takes place during weekends, holidays, and Tet, how will it be calculated? In the following article, ASL LAW will explain in detail the regulations on the payment of wages for overtime employees working at night in Vietnam.
Article 106 of the Labor Code 2019 stipulates the night working hours as follows: "Nighttime working hours are counted from 22:00 to 6:00 of the next day."
Normal working hours depend on the employer but usually are from 8:00 am to 17:00, 17:30, or 18:00 every day.
Accordingly, at the end of the normal working time of the enterprise (for example, 17:30), the period from the end of that administrative working hour to before 10 pm, if the employee works at the request of the enterprise, will be counted in the regular overtime regime.
If the employees work from 22:00 onwards, it will be counted as night overtime.
Clause 2, Article 98 of the Labor Code 2019 stipulates the salary for working at night as follows:
"1. Employees who work overtime are paid according to the salary unit price or the actual salary paid according to the work they are doing as follows:
a) On weekdays, at least equal to 150%;
b) On weekly rest days, at least 200%;
c) On public holidays, Tet holidays, and days off with pay, at least equal to 300%, excluding the salary for holidays, Tet holidays, and days off with pay for employees receiving a daily salary.
2. Employees who work at night shall be paid at least 30% of the salary calculated according to the salary unit price or the actual salary paid according to the work of the normal working day.
3. Employees who work overtime at night, in addition to paying wages as prescribed in Clauses 1 and 2 of this Article, are also entitled to an additional 20% of the salary calculated according to the salary unit price or the salary according to the daytime work on a normal working day or on a weekly holiday or on a public holiday."
Thus, when employees work at night, they will be paid at least 30% of the salary calculated according to the unit price or the salary according to the work of the normal working day together with an additional payment of 20% of the salary calculated according to the salary unit price or salary according to the work performed during the day of a normal working day or of a weekly rest day or of a public holiday or New Year.
In addition, for cases where employees work overtime on a compensatory day off on a public holiday or Tet holidays that coincide with a weekly day off, Article 25 of Decree No. 05/2015/ND-CP stipulates that employees who work overtime on compensatory days off when a public holiday coincides with a weekly rest day as prescribed in Clause 3, Article 115 of the Labor Code, shall be paid overtime pay as the weekly day off.
Regulations on payment of wages to employees who work overtime at night
Over time employees working at night will have different pay regimes depending on actual circumstances.
For example, for employees who work in shifts, 2 shifts during the day and afternoon that they do not work, but they do the night shift. So, is that case according to the law to be counted as working overtime?
In that case, will the employee only be paid as a regular shift, or will they receive a pay increase when working overtime at night?
In most special cases, the payment of working regime wages, including wages for official work as well as wages for overtime, night shifts, etc., will depend on the labor regulations of the company as well as the agreement between the company and the employee.
Judging which side is right and which is wrong will be very difficult if the situation is not completely clear as in the case of businesses dividing the working session into 3 shifts as above.
In addition, the application of the night shift wage calculation regime for employees is also very complicated, because according to an article by Thu vien Phap luat, employees work overtime at night but do not work overtime in the days (from about 18:00 to 22:00) will be applied a salary of 200% for each hour of the night shift.
Meanwhile, if the employee works overtime at night and also works overtime during the day, a salary of 210% will be applied for each hour of the night shift.
Another case is that when an employee works overtime at night from 18:00 to 22:00 and the next working day is a public holiday, from 22:00 to 24:00 of the previous day, the employee will be entitled to an increase of at least 30% of the salary compared with the normal daytime salary equivalent to 200% or 210% as mentioned above, and from 24:00 to 6:00 of the following day, employees will be applied at least 300% (overtime salary on holidays and Tet holidays) + 30% (working at night) + 20% x actual salary paid for work done during the day on holidays and New Year (300%) = 390%.
Originally published September 4, 2022
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
