比较法视野下带薪年休假的法律规制:全球趋势与本土问题

The Comparison and Selection of the System of Paid Annual Leave in the Global Perspective

据国际劳工组织雇佣条件数据库数据显示,带薪年休假法律规制的国际共识为:劳动者连续工作1年,可以享受每年不少于2周的年休假;允许将年休假与法定外休假合并使用;为了限制雇主滥用年休假安排的主导权,严格限制分割使用和累积使用年休假;允许以支付工资替代年休假,强调应在放假前向劳动者支付年休假工资;重视对青年劳动者和女性劳动者的特殊保障,通常给予其附加年休假或者其他休假特权。在经济下行压力加大的时代背景下,我国年休假立法应在凸显年休假劳动报偿属性的同时,充分发挥其涵养劳动力以及平衡工作与家庭生活的制度功能,有效提高年休假利用率。

In the Employment Conditions Database of the International Labour Organization,the consensuses reached by regulations and laws of 156 countries on paid annual leave are as follows:the labourer working for 1 year continuously may enjoy at least 2 weeks of annual leave per year;the annual leave can be enjoyed together with other leaves other than statutory leaves. To limit the employers ’dominant right in annual leave arrangement, it is strictly restricted to take annual leave in a split or accumulated manner. It is allowed to pay salary in lieu of the paid annual leave, and the employers are required to pay the labourer salaries of the annual leave before the labourer takes annual leave. Emphasis shall be placed on the special guarantee provided for the young and female labourers, which is generally reflected in additional annual leave or other leaves. Facing the increasing economic downturn pressures,China should gradually dilute the labour compensation property and give full play to the system function of cultivating the labour and balancing the work and family in making legislation for annual leave, so as to ensure an effective paid annual leave system for the labourers and effectively improve the annual leave utilization rate.