落实企业带薪年休假的地方立法路径分析——以陕西为例

Analysis of Local Legislative Ways to Implement Paid Annual Leave for Enterprises——a Case Study of Shaanxi Province

带薪年休假是缩短工作时间、分享工作机会以及促进就业的行之有效的劳动法律制度。当前,我国法律和相关行政解释虽然对年休假有所规范,但制度供给仍明显不足:一方面,《劳动法》及其相关行政配套措施仍然存在诸多法律漏洞,年休假争议处理常常陷入"无法可依"的境地;另一方面,各地方法规设计差异较大,"同案不同判"的现象在年休假争议处理中相当普遍,成为制约落实年休假制度的症结所在。实现年休假立法的科学化,应以国际化的视角,在总结凝炼制度共识的基础上,提出本地立法的完善路径。其关键要素包括:应严格年休假取得资格,在服务年资内增加出勤率的要求;为提高休假利用率,应完善计划年休制度;明确规定年休假累积使用的最长期限或者累积使用的次数,允许将年休假与非法定休假合并使用。

Paid annual leave is an effective labor law system to shorten working hours, share job opportunities and promote employment. At present, annual leave is regulated by relevant laws and administrative interpretations in China, but the system is still obviously insufficient. On the one hand, many loopholes still exist in the Labor Law and relevant administrative supporting measures, and dispute settlement has always fallen into a state of lawlessness;on the other hand, the design of laws and regulations varies greatly from place to place, causing different judgments on the same case and restricting the implement of the paid annual system subsequently. In order to realize the scientificalization of annual leave legislation, it is proposed to put forward the perfect path of local legislation from an international perspective on the basis of summarization of the system consensus. Key elements include strictly qualifying for annual leave and increasing attendance within service life, perfecting the system of planned annual leave to improve its utilization rate,specifying the longest period or cumulative number of annual leave clearly and allowing the combination of annual leave and non-statutory leave.