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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No:
198-CP
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Hanoi,
December 31, 1994
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DECREE
PROVIDING DETAILED REGULATIONS AND GUIDANCE FOR
IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LABOR CODE ON LABOR CONTRACT
THE GOVERNMENT
Pursuant to the Law on
Organization of the Government on the 30th of September 1992;
Pursuant to the Labor Code on the 23rd of June 1994;
At the proposal of the Minister of Labor, War Invalids and Social Affairs,
DECREES:
Chapter I
SUBJECTS AND SCOPE FOR
APPLICATION OF LABOR CONTRACT
Article 1.-
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a/ The State-run enterprises,
private enterprises, joint stock companies, limited liability companies;
cooperatives (with laborers who are not co-op members), and individuals and
households which employ laborers;
b/ The administrative and
specialized agencies, people's organizations and other political and social
organizations which employ laborers who are not public and State employees;
c/ The economic organizations of
the People's Army and People's Public Security Force which employ laborers who
are not officers, non-commissioned officers and soldiers;
d/ The enterprises with
foreign-invested capital established under the Law on Foreign Investment in
Vietnam; the enterprises operating inside export processing zones and industrial
parks; the foreign individuals, organizations and agencies, or international
organizations based in Vietnam;
e/ The Vietnamese enterprises,
organizations and individuals operating in the territory of Vietnam and
employing foreign laborers, except otherwise provided for by international
agreements that the Socialist Republic of Vietnam has signed or acceded to;
g/ The organizations and
individuals that employ laborers who are pensioners, houseworkers and public
and State employees to do jobs which are not banned by the Regulation on Public
Employees.
2. The following cases are not
regulated by labor contracts stipulated by Article 4 of the Labor Code:
a/ The public and State
employees who are working in administrative and specialized agencies of the
State;
b/ The State employees who have
been appointed as directors, deputy directors and chief accountants at
State-run enterprises;
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d/ The officers,
non-commissioned officers and combatants of the People's Army or the People's
Public Security Force;
e/ The employees at a number of
businesses or in special areas under the Ministry of Defense and the Ministry
of the Interior, they shall follow the guidance of the Ministry of Defense and
the Ministry of the Interior upon agreement with the Ministry of Labor, War
Invalids and Social Affairs;
g/ The members of people's
organizations, other political and social organizations and cooperatives,
including the cadres detailed for Party, trade union and youth work at the
enterprises.
Chapter II
FORMS, CONTENTS AND
TYPES OF LABOR CONTRACT
Article 2.-
The forms and contents of labor contracts made in accordance with Articles 28
and 29 of the Labor Code are provided as follows:
- The written and signed labor
contract shall be made in the form issued and managed in a unified manner by
the Ministry of Labor, War Invalids and Social Affairs.
- The labor contract whether
written or verbal must ensure the contents stipulated in Article 29 of the
Labor Code.
In case of a verbal contract,
the two parties to it shall agree on a third party witness if they deem it
necessary.
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1. The labor contract without
definite term is one that does not spell out a closing date.
This type of labor contract is
applied to jobs which are regular and stable for one year or more.
2. The labor contract with terms
of from one to three years is one that spells out a fixed period of one or two
or three years; this type of contract is applied for jobs which have a definite
closing date.
3. The labor contract for a
season or for a certain job lasting less than one year is applied for jobs
which are temporary and are to be completed in several days or serveral months
or less than one year, or for temporary replacement of employees who have to
discharge military duty or other citizen duties stipulated by law, who take
maternity leave, who are temporarily detained or jailed, or for cases of
temporary suspension of labor contract agreed upon by both parties.
Chapter
III
SIGNING, CHANGING,
TEMPORARILY SUSPENDING AND TERMINATING LABOR CONTRACT
Article 4.-
The signing of a labor contract under Articles 30 and 120 of the Labor Code is
stipulated as follows:
1. The labor contract is signed
directly between the laborer and the employer, or between the employer and the
legally mandated representative of a group of laborers. In case it is signed by
the legally mandated representative, a list with the name, age, permanent
address, profession and signature of each laborer must be attached. This labor
contract has the validity of one signed separately with each of the laborers,
and is applied only to do a certain job which is seasonal, or which will
terminate in less than one year, or which has a definite term of from one to
three years.
2. The laborer can sign many
labor contracts with many employers if he/she is capable of implementing those
contracts. For labor contracts which are signed with pensioners or with
organizations or individuals that employ less than 10 laborers or which are for
jobs lasting less than three months, the benefits of the laborers are included
in their wage (work payment).
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Article 5.-
The employer and the laborer shall agree on the probation which, according to
Article 32 of the Labor Code, is as follows:
1. The probation period shall
not exceed 60 days for jobs with a professional title which require
professional standards and techniques of university level or higher.
2. The probation period shall
not exceed 30 days for jobs with a professional title which require laborers of
secondary professional standard, technical workers and specialized staffs.
3. The probation period shall
not exceed six days for other laborers.
4. At the end of the probation
for jobs stipulated in Items 1, 2 and 3, the employer has the responsibility to
announce the result to the laborer. If he/she has passed it is not notified of
the result while continuing his/her work, he/she shall automatically become an
official laborer, and the two parties have to sign a labor contract.
Article 6.-
The validity and the modifications of the labor contract under Article 33 of
the Labor Code are provided as follows:
1. The written labor contract
shall become effective from the date of its signing or from a date agreed upon
by both parties; the verbal labor contract shall become effective from the date
the contracted laborer starts work.
2. In the course of the
implementation of the labor contract, if a party proposes a change to its
content without the consent of the other party, either the signed contract
shall continue to be implemented or both parties may agree to terminate it, in
accordance with Articles 37 and 38 of the Labor Code.
Article 7.-
The temporary transfer of laborers to jobs outside their profession under
Article 34 of the Labor Code is provided as follows:
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2. In the event the employer
transfers the laborer to a job which is not in line with his/her profession for
a total of more than 60 days a year, he/she must have the consent of the
laborer; if the laborer does not accept it and is consequently suspended,
he/she shall be entitled to payment stipulated in Item 1, Article 62, of the
Labor Code.
Article 8.-
The temporary deferment of the implementation of the labor contract under
Article 35 of the Labor Code is provided as follows:
1. The temporary deferments of
the implementation of the labor contract which are agreed by both parties,
shall occur in the following cases:
a) The laborer applies to go and
study in the country or abroad.
b) The laborer applies to go and
work for a definite period for a organization, agency or individual in the
country or abroad.
c) The laborer is transferred to
work full time at the council of a State-run enterprise.
d) The laborer requests an
unpaid leave to solve his/her personal affairs.
2. At the end of the temporary
deferment of the implementation of the labor contract in cases stipulated in
Points (a) and (c), Item 1, Article 35, of the Labor Code, the laborer has to
report to work, and the employer shall have to give him/her a job. If the
laborer has reported to work on time and still has to wait for assignment,
he/she is entitled to salary as stipulated in Item 1, Article 62, of the Labor
Code.
If the laborer fails to report
to work for more than 7 days after the end of the temporary deferment of
his/her labor contract without a plausible reason, he/she shall be dealt with
in accordance with the provision of Point (c), Item 1, Article 85, of the Labor
Code.
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a) If the temporary detainment or
custody is directly related to the labor relations:
- At the end of his/her
temporary detainment or custody, or when the Court rules that he/she is not
guilty, his/her employer shall reinstate him/her in his/her old job, and pay in
full his/her salary and other benefits which are his/her due during his/her
temporary detainment or custody, in accordance with Decree No 197-CP of the
31st of December 1994 of the Government which gives detailed provisions and
guidance for the implementation of a number of articles of the Labor Code on
salary.
- In case the laborer is proved
guilty but is exempted from prosecution or imprisonment by the Court, or is not
banned from doing the old job by the Court, his/her employer shall, depending
on the nature and degree of his/her offence, assign him/her to his/her old job
or to a new one.
b/ If the temporary detainment
or custody of the laborer is not directly related to the labor relations, at
the end of his/her temporary detainment or custody, his/her employer shall
assign him/her to his/her old job or to a new one.
Article 9.-
If the laborer unilaterally terminates the labor contract, he/she shall have to
compensate for the expenditure for his/her professional training, in accordance
with Item 3, Article 41 of the Labor Code.
Article
10.- The severance allowance at the termination of the labor contract under
Article 42 of the Labor Code:
1. The laborer shall be paid a
severance allowance at the end of his/her labor contract, in accordance with
the provisions of Articles 36, 37 and 38, or Item 1, Article 41, of the Labor
Code. The employer shall have to pay him/her a severance allowance for the
period he/she has worked for the enterprise, agency, organization or an
individual.
In case the termination of the
labor relations is done under the provisions of Item 1 of Article 17, Item 2 of
Article 41, Points (a) and (b), Item 1, of Article 85 and Article 145 of the
Labor Code, the laborer shall not be paid the severance allowance.
2. The fund for severance
allowance:
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b) For non-business agencies,
organizations or individuals, it is defrayed by self-generated sources.
3. The working time for
calculating severance allowance:
a) The working time for
calculating severance allowance is the total length of time the laborer has
practically spent on working for the employer under the laborer contracts,
including verbal contracts.
b) For a laborer who was once a
State employee and who now is still working for his/her of unit, the total
working time for calculating his/her severance allowance is the total time
length of his/her work at that unit.
c) In case the laborer spent
time working for other units of the State sector before working for an enterprise,
agency or organization, these units are responsible for paying his/her
severance allowance for the time he/she worked for them. This sum of money
shall be issued by the old unit to pay for the laborer upon notice of the unit
where the laborer is working. In case the old unit has been dissolved or is
meeting with financial difficulties, the severance payment shall be covered by
the State budget.
d) Apart from the above-said
period, the following periods of time are also accounted as working time of the
laborer:
- The probation or
apprenticeship at the enterprise, agency or organization (if any);
- The period of time during
which the enterprise or agency organizes in-service training courses or sends
laborers elsewhere for training;
- The time of leave and rest the
laborer takes under social insurance policy and the Labor Code;
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- The period of time the laborer
spends on training and practice at the enterprise;
- The period of time of
temporary deferment of the implementation of the labor contract as stipulated
in Article 35 of the Labor Code shall be agreed upon by both parties;
- The period of time for which
the laborer is wrongly fined or has his/her labor contract unilaterally
terminated;
- The period of time during
which the laborer is temporarily suspended under the provisions of Article 92
of the Labor Code.
4. The wage plus wage subsidies
(if any) for calculating severance allowance are stipulated in Decree No 197-CP
of the 31st of December 1994 of the Government giving detailed provisions and
guidance for the implementation of a number of articles of the Labor Code on
wages.
5. The odd months are calculated
as follows:
- The period of from one month
to seven months is taken as six working months;
- The period of from 7 months to
12 months is taken as a working year.
6. The laborer shall be paid a severance
allowance at the level stipulated in Item 1, Article 42 of the Labor Code,
directly and wholly at his/her place of work and in time as provided for by
Article 43 of the Labor Code.
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The time limit for the payments
related to the interest of each of the parties shall follow the provisions of
Article 43 of the Labor Code.
With regard to the following
special cases: the laborer has worked in different enterprises stipulated in
Point (c), Item 3, Article 10 of this Decree; the enterprise has terminated its
operation, or one of the two parties has suffered from natural calamity or
fire, which necessitates the payment of severance allowance and compensation
and the clearance of othe debts, the payment and clearance shall not last for
more than 30 days from the date of the termination of the labor contract.
Chapter IV
IMPLEMENTATION
PROVISIONS
Article
12.- The labor contracts, which were signed prior to the effective date of
the Labor Code and embody contents which are not compatible with the Labor
Code, must be amended and/or supplemented; which provisions are more beneficial
to the laborer than those of the Labor Code shall continue to be implemented.
The amendments and supplements to the laborer contract must be done within six
months at the latest from the effective date of this Decree; beyond that date,
all the labor contracts made prior to the 1st of January 1995, must automatically
comply with the provisions of the Labor Code and this Decree.
The public and State employees
who are regularly working in State-run enterprises shall change to work under
the regime of labor contracts without definite terms.
Article
13.- This Decree takes effect as from the 1st of January 1995. Decree No.
165-HDBT of the 12th of May 1992, of the Council of Ministers, which gives
detailed provisions for the implementation of the Ordinance on Labor Contract
and other Government documents on labor contract, is now annulled.
Article
14.- The Ministers, the Heads of the agencies at ministerial level, the
Heads of the agencies attached to the Government, and the Presidents of the
People's Committees of the provinces and cities directly under the Central
Government are responsible for implementing this Decree.
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ON
BEHALF OF THE GOVERNMENT
PRIME MINISTER
Vo Van Kiet