Reliant Holiday Calendar 2023
Introduction
China’s State Council recently released an official announcement for the 2023 holiday schedule. At Reliant we have noticed that many foreign workers in China find the holiday schedule confusing. This is understandable and the essay below is our effort at clearing up that confusion so that foreign workers have a better idea of when they should have to work, when they should have time off, and how they should be paid. So as to make those matters clear the essay also contains an explanation of the rules around overtime pay and shifted rest, and of the various work hours systems used in China. These latter explanations may also prove useful in contexts independent of statutory holidays.
The Announcement
China’s State Council’s Announcement of the Arrangement of Some Holidays for 2023 (国办发明电〔2022〕16号) (hereafter Announcement) can be found here: http://www.gov.cn/zhengce/content/2022-12/08/content_5730844.htm.
The Announcement details the following holidays for 2023:
(1) New Year - 31 DEC 2022 to 2 JAN 2023, 3 days total holidays and shifted rest days
(2) Spring Festival - 21 JAN through 27 JAN, with two shifted work days on 28 JAN SAT and 29 JAN SUN, 7 days total holidays and shifted rest days
(3) Tomb-Sweeping Festival - 5 APR, 1 day total holiday
(4) Labor Day - 29 APR through 3 MAY, with two shifted work days 23 APR SUN and 6 MAY SAT, 5 days total holidays and shifted rest days
(5) Dragon Boat Festival - 22 JUN through 24 JUN, with one shifted work day 25 JUN SUN, 3 days total holidays and shifted rest days
(6) Mid-Autumn Festival and National Day - 29 SEP to 6 OCT, with 7 OCT SAT and 8 OCT SUN as shifted work days, 8 days total holidays and shifted rest days
Rules of the Game
If you want to understand how the China Holiday Schedule Game is played, there are a few rules to note. First, the holiday schedule is based on a version of the standard working hours system in which workers work eight hours per day MON through FRI and have scheduled rest on SAT and SUN. For entities or individual workers who are not on the standard working hour system, and/or who are but do not have a MON through FRI work schedule, the official holiday calendar will need to be modified. (More on working hours systems below.)
This leads to rule two, the official holiday calendar confusingly conflates shifted rest days and actual legal holidays making it appear that there are many more legal holiday days off work than there actually are. This can be seen in that for each of the six items above, all but (3) Tomb-Sweeping Festival refer not simply to holidays (放假) but to holidays and shifted rest (放假调休). This comes into clearer perspective when looking at how each of these holidays is defined. These definition are in the Decision of the State Council on Amending the "Measures for National Holidays and Memorial Days" (hereafter Decision). It merits comparing the details of the Announcement with those of the Decision. The holidays for all citizens (see the link above to understand how/why holidays that apply to all citizens also apply to non citizens working in China) as detailed in the Decision are defined as follows:
(1) New Year's Day, 1 day off (1 JAN);
(2) Spring Festival, 3 days off (1st, 2nd and 3rd day of the 1st month of the lunar calendar);
(3) Tomb-Sweeping Festival, 1 day off (the day of Tomb-Sweeping Festival on the lunar calendar);
(4) Labor Day, 1 day off (1 MAY);
(5) Dragon Boat Festival, 1 day off (the day of Dragon Boat Festival on the lunar calendar);
(6) Mid-Autumn Festival, 1 day off (the day of Mid-Autumn Festival on the lunar calendar);
(7) National Day, 3 days off (1, 2, and 3 OCT).
The magic that makes the 11 legal holidays in the Decision into the 27 total days off listed in the Announcement takes two main forms: one (rule 2.1), the rest days of SAT and SUN are counted as part of the total holidays/time off and shifted rest (放假调休); two (rule 2.2), the work days that are shifted to before or after the actual holidays are also counted as part of the total holidays/time off and shifted rest (放假调休). While counting rest days as days off is not unreasonable focusing on total time off and ignoring shifted extra work days is rather disingenuous.
A third rule, but one which is much more favorable to workers, is that when a legal holiday falls on a rest day, this doubling up of days off is accounted for by giving workers an extra day off so that they lose no rest due them (Decision 6).
How does this work in practice with each holiday in 2023?
Separating the Wheat from the Chaff
New Year
For the New Year holiday, the actual legal holiday, 1 JAN, falls on a SUN, thus an extra rest day is given on 2 JAN MON, and the rest day of 31 DEC SAT and the holiday of 1 JAN SUN are combined with it to count as 3 days off. Only 1 JAN is a legal holiday. If you normally work SUN, then you would only get 1 JAN SUN off.
Spring Festival
For Spring Festival, the actual legal holidays are 22 JAN SUN, 23 JAN MON, and 24 JAN TUE. Because 22 JAN SUN falls on a rest day an extra rest day is given (rule three). That extra rest day can be seen as 25 JAN WED. Then the work days of 26 JAN THU and 27 JAN FRI are shifted to 28 JAN SAT and 29 JAN SUN. Also note that there is no clear rule as to which day is shifted to which, thus one could argue that the extra rest day for 22 JAN SUN could be that given on 27 JAN FRI and that the shifted rest could be for work on 25 JAN WED and 26 JAN THU. As long as the numbers of days off work out which day shifts to which is trivial. But here there is one more issue. For those on the standard working hours system with a MON through FRI work schedule there will be 7 days of continuous work from 28 JAN SAT to 3 FEB FRI. This violates the stipulation in Article 38 of the Labor Law of the People’s Republic of China (hereafter LL ) that “The employing unit shall guarantee that its staff and workers have at least one day off in a week.” The only answer we can provide to the questions this raises is the famous one given by Carl Schmitt in his Political Theology: “Sovereign is he who decides on the exception” (p.5).
Tomb-Sweeping Festival
Here things are simple and straightforward, there is a 1 day holiday that falls on a work day, APR 5 WED.
Labor Day
For the Labor Day holiday the legal holiday is only 1 day, 1 MAY MON. 29 APR SAT and 30 APR SUN are simply rest days. Then the work days of 2 MAY TUE and 3 MAY WED are shifted to 23 APR SUN and 6 MAY SAT.
Dragon Boat Festival
For Dragon Boat Festival the legal holiday is 22 JUN THU. What should be a work day on 23 JUN FRI is shifted to 25 JUN SUN.
Mid-Autumn Festival
For Mid-Autumn Festival the legal holiday is 29 SEP FRI. The rest of the holiday from 1 OCT SUN to 6 OCT is the National Day holiday arrangement. 30 SEP SAT is a rest day.
National Day
For National Day there are three days of legal holiday 1 OCT SUN, 2 OCT MON, and 3 OCT TUE. As 1 OCT SUN falls on a rest day, an extra rest day is given (rule 3). We can see this as 4 OCT WED. Then the work days of 5 OCT THU and 6 OCT FRI are simply shifted to 7 OCT SAT and 8 OCT SUN. Here again, as above for the Spring Festival, we can only turn to the wisdom of Carl Schmitt to explain why there are 7 days of continuous work (7 OCT SAT through 13 OCT FRI) arranged when LL 38 should guarantee at least one day of rest per week.
How does all that affect my pay?
Working Hours Systems and Overtime Compensation
The ways that holiday related schedule changes affect pay can be complicated so we cannot cover all the possibilities here, but we can give some basic background that can help you to figure out the specifics of your situation. If you are on the standard working hours system and work MON through FRI with SAT and SUN as rest days, and if you have full attendance and exactly follow the schedule in the Announcement, then you should be paid in full.
If you have any deviation from the official schedule then it becomes important to understand how overtime pay works in China. To understand how overtime pay works it necessary to have an understanding of working hours systems. China has three working hours systems: standard, comprehensive, and non-fixed. As mentioned above, the schedule in the Announcement is based on a version of the standard working hours system where work is 8 hours per day MON through FRI with SAT and SUN as rest days. This is the standard working hours system as it is supposed to be implemented by state organs (国家机关) and quasi-public institutions (事业单位), but where employing units and quasi-public institutions are unable to follow this unified schedule, flexibility in arranging rest days is allowed (State Council Regulations on Working Hours 7). This means that even if you do not work a MON through FRI schedule you can still be on the standard working hours system. In fact, the parameters of the system are that workers work no more than 6 days a week, no more than 40 hours in a week, and no more than 8 hours in a day (State Council Regulations on Working Hours 3; LL 38, 43, 44; 我国工作时间标准规定汇集 [hereafter Collection] 1).
It is not that work beyond the limits in the standard working hours system is prohibited, except in the case of the failure to provide at least 1 day of rest per week (LL 38, but see the explanations for Spring Festival and National Day 2023 above for … irony), rather, such work generates the need for overtime compensation. For extended hours, those are hours on a work day beyond 8 hours, compensation is to be at 1.5 times the normal rate, and this compensation must be paid as wages; there is no option to substitute shifted rest time for extended hours time worked (LL 44; Interim Provisions on Wage Payments [hereafter IPWP] 13; Collection 2). For work on rest days, the preference is for shifted rest on a work day to be given in a ratio of 1:1. If shifted rest cannot be arranged, then compensation needs to be at 2 times the normal rate. Finally, for work on statutory holidays there is no option for compensatory shifted rest, compensation must be paid as wages and at 3 times the normal rate. What is important to note here is that of the 27 total days off listed in the Announcement the triple pay rate for holiday overtime only applies to the 11 actual statutory holidays.
For the comprehensive working hours system the period for calculation of hours need not be a week but can be a week, month, season, or year. Over that period, no matter what it is, the average working hours per day and working days per week should be basically be the same as those in the standard working hours system. Overtime works differently for the comprehensive working hours system. Under the comprehensive working hours system there are only two types of overtime, that paid at 1.5 times normal and that paid at 3 times normal. As with the standard working hours system, the triple pay rate only applies to work on statutory holidays (those 11 out of the 27 above). In all other cases, the 1.5 times normal rate applies, and there is no option for shifted rest in lieu of overtime pay. That said, use of the comprehensive working hours system only applies to selected professions (for example, transport, fisheries, construction, salt production, tourism, etc.) where there is a need to work continuously or there are seasonal limitations. Furthermore, there is a need for approval from local labor administrative authorities for the comprehensive working hours system to be legally implemented (IPWP 13;《劳动部关于印发〈关于企业实行不定时工作制和综合计算工时工作制的审批办法〉的通知》劳部发 [hereafter Approval Measures] 5, 7; Collection 4).
For the non-fixed working hours system, there are no overtime payments (IPWP 13). The use of the non-fixed working hours system is limited to senior managers, sales and field staff, long-distance transportation workers, and some loading and unloading personnel in railways, ports, and warehouses. As with the comprehensive working hours system, there is a need for approval from local labor administrative authorities for the non-fixed working hours system to be legally implemented (IPWP 13; Approval Measures 4, 7; Collection 4).
Pay Calculations
To fully understand overtime pay it is important to understand how to calculate hourly and daily pay rates. Luckily there is an official formula to convert monthly wages into daily and hourly wages. To get the daily wage divide the monthly salary by 21.75. Then to get the hourly wage divide the daily wage by 8. Of course, for those who are contracted to work less than 40 hours in a week further calculations may be necessary, but Reliant is unaware of any further authoritative guidance for such calculations.
A further area in which Reliant is unaware of authoritative guidance is the question of how to interpret the 3 times normal pay due for work on a legal holiday. Reliant normally uses the following schema: for workers who normally do not work on the day on which the legal holiday falls, but are asked to work on any of the actual days of a legal holiday, the worker should get three extra days' wages per day of such work. If the worker normally does work on the day of the legal holiday, then the worker would only get two extra days' wages per day of such work, as the initial one day's wage is included in the monthly wage. However, some will argue that even those who normally work on the day on which the legal holiday falls should also receive three extra days' wages per day of such work on legal holidays.
Conclusion
The key to overtime and holiday pay is, despite calendrical contortions, workers should get a number of days off equal to the number of all their normal rest days plus the number of legal holidays, or should be paid appropriately for overtime. If you are having trouble figuring out how the above applies to your individual situation there are several ways Reliant can help you. Add WeChat ID Reliant-CN and/or scan the QR code below for more information.
References
State Council Regulations on Working Hours
国务院关于职工工作时间的规定
“Announcement”
Announcement of the Arrangement of Some Holidays for 2023
国务院办公厅关于2023年部分节假日安排的通知
国办发明电〔2022〕16号
http://www.gov.cn/zhengce/content/2022-12/08/content_5730844.htm
“Decision”
Decision of the State Council on Amending the "Measures for National Holidays and Memorial Days"
国务院关于修改《全国年节及纪念日放假办法》的决定
“LL”
Labor Law of the People’s Republic of China
中华人民共和国劳动法
Carl Schmitt. Political Theology: Four Chapters on the Concept of Sovereignty, George Schwab (trans.), Chicago: University of Chicago Press, 1922/2005
https://syllabus.pirate.care/library/Carl%20Schmitt/Political%20theology_%20Four%20chapters%20on%20the%20concept%20of%20sovereignty%20(461)/Political%20theology_%20Four%20chapters%20on%20the%20c%20-%20Carl%20Schmitt.pdf
“Collection”
Collection of Standards and Regulations on Working Hours in My Country
我国工作时间标准规定汇集
http://www.mohrss.gov.cn/ldgxs/LDGXlaodongbiaozhun/LDGXLgongshixiujia/201011/t20101124_86616.html
“IPWP”
Interim Provisions on Wage Payments
工资支付暂行规定
劳部发〔1994〕489号
http://www.mohrss.gov.cn/xxgk2020/gzk/gz/202112/t20211228_431557.html
“Approval Measures”
Notice of the Ministry of Labor on Printing and Distributing the “Approval Measures for Enterprises to Implement the System of Non-Fixed Hours of Work and the System of Composite Calculation of Working Hours”
《劳动部关于印发〈关于企业实行不定时工作制和综合计算工时工作制的审批办法〉的通知》
劳部发〔1994〕503号
https://www.waizi.org.cn/doc/122316.html
Notice on Annual Monthly Average Salary and Working Hours Conversion Method
关于职工全年月平均工作时间和工资折算问题的通知
劳社部发〔2008〕3号
Reliant Services
Reliant (Beijing) Legal Consulting Co. Ltd. (统一社会信用代码: 91110105MA01TB1F5Y) provides labor dispute, labor contract, work permit, resident permit, stay permit, and visa solutions. Contact us for more information:
WeChat ID: Reliant-CN
Reliant’s Official Wechat account: ReliantInfo
Main Articles
Wreck of The Old 37 or How not to quit your job
Explains why giving 30 days notice is usually not the best way to quit your job
Labor Dispute … Got a plan? You'll need one
Explains several important factors in China labor disputes
Why Your “Work Visa” Won't Work
Explains why you don’t have a “work visa,” what you do have, and how you got it
Why Employer Fines are not Fine
Explains why it is not fine for employers to impose fines on their workers
Is it legal to work for an “agency” if you teach at a school?
Explains the legal issues for foreigners in the education industry who work for an “agency”
Is it legal to dock pay for time in quarantine?
Explains why neither dogs' tails nor worker wages should be docked
Why wasn’t my residence permit renewed?
Explains how work permit can be renewed and residence permit not
Can your employer cancel your visa without your passport?
Explains when and how leaving a job can put your right to stay in China in jeopardy
Work Permit cancelled. What about my Residence Permit？
Explains different practices for dealing the Residence Permit when changing jobs in China
Reliant on the Law
My employer won’t give me release documents. Is that legal?
Labor Contract Termination
Breach Penalties
Severance Pay
Who keeps your work permit card?
Work Permit is Proof of Labor Relationship
Wages in a work stoppage
Documents you need to legally work in China (EEAL 41; RAEFC 8)
Do you have to carry your passport？
Types of Visas EEAL 16; RAEEF 5, 6, 7
Types of Residence Permits EEAL 30; RAEEF 15, 16
EEAL 21, 31, 36; RAEEF 21, Denial of visas, RPs and stay permits
EEAL 33; RAEEF 26; RAEFC 20; Post Resignation Reporting Requirements
LCL 19, 20, 21, 37, 39, 40, 83; Probation
LCL 17, 81; Mandatory Labor Contract Clauses
LCL 26, 27, 28, 86; Labor Contract Invalidity
Damages for Unlawful Termination when Labor Union not Informed
Annual Leave Basics
Official Wage Conversion Method
State Council Regulations on Working Hours
Maternity Leave Basics
Sick Leave National Standards
Measures for National Holidays and Memorial Days
IPWP 6; Right to Wage Records
IPWP 7; Pay at Least Monthly, Pay Prior to Off Days
IPWP 9; Lump Sum Wage Payment at End of Labor Relationship
IPWP 14; Workers’ Wages Priority in Bankruptcy
Housing Subsidies are Wages
National Notice on Epidemic Labor Relations 2020-5
LCL 2; Scope of Applicability
LCL 3; Principles
LCL 4, 38.4, 80; Employer Rules
LCL 10; Contract and Labor Relationship
LCL 14; RAEFC 17; Open-Ended Labor Contracts
LCL 16, 35, 81; Worker Rights to the Labor Contract
LCL 30 Payment in Full and On Time
LCL 32, 38, 88; Worker Health and Safety
LCL 33, 34; Employer Name Changes, Mergers etc.
LCL 41, 46.4; Mass Layoffs
LCL 42, 45; Circumstance for Extension of Labor Contract
LCL 44.1, 46.5; Severance for Non- renewal
LCL 47, 87; LCL ImpRegs 25; Severance Calculations
LCL 82; Double Wages for No Written Contract
LCL 85; RLSS 26; Labor Inspection Orders to Pay
LCL 90, 91; Responsibilities of Workers to Compensate Employers
LCL Implementation Regulations 10; Transfer Maintains Seniority
LCL Implementation Regs 18; Worker's Reasons to End Contract
LCL Implementation Regs 21; Termination at Retirement
LCL Implementation Regs 24; Required Release Letter Content
LCL Implementation Regulations 26; LCL 38 & Breach Penalties
RAEFC 6; Limits on Positions for Foreigners
RAEFC 7; Requirement for Clearly-Defined Employer etc.
RAEFC 8; Must have WP and RPw, Change Status in Special Cases
RAEFC 17; Foreign Workers’ Contract Max 5 Years
RAEFC 18; WP Should End at End of Contract
RAEFC 20; Employer Obligation for WP and RPw Cancellation
RAEFC 22; Basic Employment Conditions
RAEFC 23; Employer Must be Same as on WP
RAEFC 29; Penalties for WP Fraud
RAEFC 33; Individuals Cannot Employ Foreigners
EEAL 19; Visa Invitation Letters
EEAL 20; Port Visas
EEAL 22; Visa Exemption
EEAL 28; Prohibitions on Foreigners Exiting China
EEAL 29; Visa Extension
EEAL 30; RP Processing and Validity Times
EEAL 32; RP Extensions, Leave on RP Expiry
EEAL 33; RAEFC 19; Ten Day Rule for RP Updates
EEAL 34; Legal Basis for Stay Permits
EEAL 36; EEA Final Decisions on RPs, SPs, Visas
EEAL 37; Scope and Duration of Residence/Stay
EEAL 39; Accommodation Registration
EEAL 40; Births and Deaths
EEAL 41; WP and RPw to Needed to Work
EEAL 43; Unlawful Employment
EEAL 48; Rights for PR holders
EEAL 58, 59, 60: Investigation and Interrogation
EEAL 62, 63, 64; Repatriation
EEAL 73,74; Fraudulent Entry Exit/Entry Documents
EEAL 76; Penalties for Minor Infractions
EEAL 78; Penalties for Illegal Residence (Overstay)
EEAL 80; Penalties for Illegal Employment
EEAL 81; Exit Within a Time Limit & Deportation
RAEEF 19; Applying on Behalf of Others at EEA
RAEEF 22; Part-Time Work on Student RP
RAEEF 23; Exit Permit if no Passport
LL 38, 41, 42, 43, 44; Rest and Overtime
CL 320; Visa Fraud
CL 35; Deportation
CL 201; Embezzlement
Stay Permits Issued for Humanitarian Reasons
Work Injury Insurance Regulations 14; Eligibility
Work Injury Insurance Regulations 17; Time Limit
RLSS 11; Scope of Labor Inspection
Opinions on “Work Injury Insurance Regulations” - Way to Work
Copyright Notice版权声明
This article is the author's original, non-profit work product. The original author and publishing information must be retained in any reproductions. For commercial use, please contact the author: info@reliant.org.cn.
本文为作者原创，非盈利性质的转载须保留作者和原文网址。商业用途请联系info@reliant.org.cn。