The October holiday season is already over, yet a significant number of people never did enjoy the pleasure of the holidays and perhaps were even putting in overtime - willingly or unwillingly. Thirty percent of workers perform overtime on statutory holidays, among which, only 26% receive the appropriate overtime pay according to Chinese Labor Law regulations; another 19.5% receive overtime compensation merely at the same rate as regular pay; and the remaining 53.9% basically do not receive any overtime pay whatsoever. People who do not receive overtime pay have at times reached up to 71.3% of workers, who usually never raise a ruckus. Yet, no matter if one is a white collar or a blue collar worker, we are all confronted with the "overtime dues blues."
However for a long time Chinese Labor Law has been very clear: Regular overtime is pay at time and a half ; rest day overtime is pay at double time; and statutory holiday overtime is pay at triple time.
It also allows employees to file grievances with local labor inspection and arbitration agencies. Never the less, it is no secret that many employers have long resisted complying with this regulation, which leaves the majority of employees to quietly suffer workplace violations.
Therein lies the crux of the matter: Employees tacitly approves unpaid overtime work. Thus, the problem stands to fester. In today's job market, labor supply exceeds demand, so when a worker challenges business interests, clearly she is in a weak position. Further, when finding honest and stable work is not easy, who will dare to take a righteous position and demand overtime pay? Workers know what's what when it comes to overtime pay and making a living for oneself, neither of which are to be taken lightly.
In addition, relevant laws and regulations are not sound, while the Ministry of Labor's inspection branch does not extensively investigate nor seek out Labor Law violators. This is also a major cause for the blues. However, the law regarding statutory holiday overtime pay is enshrined in these very Labor Law regulations, but it is lacking in details on how investigations are to be handled, how law violators are to be punished, and how workers collect their pay. There are no clear answers in the law. Regarding the regulation for overtime pay, the Ministry of Labor's inspection branch mostly goes by a "if not reported then not investigated" attitude, and certain lower level staff are indeed lacking in taking thorough, practical and sensible protective measures.
Chinese Labor Law does oblige employers to pay overtime pay, and there are safeguards to protect employees interests, but we need to move away from the "If people do not file complaints, bureaucrats cannot be blamed" attitude. The government should take more action such as a coming forth with specific and operable implemental rules to enforce the payment of overtime, implement more rigorous investigations by the Ministry of Labor to ensure a decrease of violations, and build up a system of safeguards to protect employee legal rights and interests. At the same time, Ministry of Labor investigators should increase inspections with heavier fines for violations against employers. Regarding to those employer who neglect worker rights and fail to pay workers overtime in full amount, they should be punished. And the costs of penalties should greatly exceed the benefit of withholding employees' well-deserved overtime pay. Moreover, labor unions' function should be fully utilized, so that they will truly become the major vehicle to protect worker rights.
10-12-2006
*Many thanks to our wonderful volunteer translator David.
