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【CASE】The Agreement Stating “Automatically Give up Annual Leave” is Invalid

2015-February-6       Source: Newsgd.com

Wang was employed by A company in Jan 2010 after his graduation in 2009.

Wang was employed by A company in Jan 2010 after his graduation in 2009. According to the regulation of A company's handbook: "employee who works continuously for more than 1 year, can enjoy 10 days of annual vacation with pay. If the employee does not use up all his annual vacation days, he is regarded as abandoning the vacation automatically." As a manufacturing company with over working sometimes, in 2013, wang only took 7 days of annual vacation with pay.

In the early 2014, wang resigned from the company and required the company to pay the wages as 300% of the benchmark pay the 2013 to him for that 3 days annual vacation he did not take. In the court of arbitration, the company argued that "employee handbook" stated clearly that the annual days that are not taken is a waiver, and as a result, the company was not responsible for the wages for those annual leave.

According to the provisions of article 4 of the "Labor Contract Law", the contents of "employee handbook" shall be legal, and the regulation conflicting with the current laws and regulations is invalid, which cannot serve as the ground of management. The annual vacation with pay is the legal right of employee, which shall be protected and arranged by the employer. If the employer does not arrange the employee to take annual leave, it shall pay 300% of salary to the employee; if the employer arranges the annual leave for the employee who rejects the annual leave, the employee can pay wages as its normal work. In this case, the regulation of the company handbook stating “automatically give up annual vacation with pay” should be invalid, whereby the defense of the company is difficult to get the support.

(This information is provided by Lawyer Kelly Xie from Guangdong KaiTong Law Firm in friendship. It is not any legal opinion or legal grounds addressed to any organization or individual. For inquiry, please contact Kelly via email at Kelly_xie@ktlf.com.cn or by phone on 13926185641.)


Editor: 王凯

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