Headlines 30/10/2018 13:56 CH

New highlights of Decree No. 148 providing guidance on 2012 Labor Code available in full

Quý Nguyễn

THƯ VIỆN PHÁP LUẬT would like to present to you all new highlights of the Decree No. 148/2018/ND-CP amending and supplementing the Decree No. 05/2015/ND-CP providing guidance on the 2012 Labor Code.

1. Person authorized to conclude an employment contract within a family household and organization without legal personality

As provided by the new regulation, the person authorized to act as the legal representative of a family household or an entity will be entitled to sign an employment contract on the employer side, instead of the householder or the head of that entity who usually signs the employment contract in most cases. 

2. Contractual terms and conditions

- With regard to the pay grade promotion or the pay raise, the Decree adds cases in which both contracting parties may negotiate about whether the employer’s statutes or the collective bargaining agreement are applied.

- With regard to the working and rest time, the Decree adds cases in which both contracting parties may negotiate about compliance with labor rules, statutes of the employer, the collective bargaining agreement and/or legislative regulations.

(It is not necessary to specify the working time in an employment contract). 

3. Regulations on employment contracts with elderly employees

If an employer has no demand or the elderly employee does not meet required health standards, both parties will negotiate for (instead of “carry out”) termination of the employment contract.

4. Employer’s obligations arising in case of any changes in the organizational structure, technologies or any change made for economic reasons 

The Decree sets out the new regulation under which the employer is bound to inform in writing the provincial-level regulatory authority in charge of labor affairs of the abovementioned changes (including guidance on details of the notification form). 

5. Regulation on the working period used as a basis for calculation of resignation or dismissal allowances

- The period of probation or internship is not assumed as an employee's total actual working time upon calculation of these allowances.  

- The period of paid leave from work for performing a citizen’s obligations as provided by regulations in force is the time length of an employee’s actual working for an employer.

- For the purpose of calculation of these allowances, the allowed period is the time length of payment of unemployment insurance contributions which is the period of an employee’s participation in the unemployment insurance (currently, there is none of regulations on this matter).  

- The Decree adds cases in which the employer is permitted to extend the time of processing of an employee’s claim for their interests upon termination of an employment contract to the maximum duration of 30 days, including the followings:

Merger, amalgamation, splitting and separation of an enterprise or cooperative, transfer of the property rights under Article 45 of the Labor Code.

6. Base pay rate serving as a basis for calculation of salary or wage paid an employee on leave

Base pay rate serving as a basis for calculation of salary or wage paid an employee on annual leaves, public or national holidays or paid personal business leaves is the pay agreed upon in an employment contract (instead of the pay specified in the employment contract in the preceding month) divided by the number of normal working days in a month as per the employer's regulations, and multiplied by the number of annual days-off, national, public holidays or paid personal business leaves. 

7. The Decree adds the regulation on the base pay rate serving as a basis for calculation of compensation in case of unilateral termination of employment contract in breach of laws

8. Registration of labor rules

Provincial-level regulatory authorities in charge of labor affairs are not bound to inform in writing (simply inform) the employer in case of any rules in violation of laws.

9. Procedures for imposition of labor disciplinary actions

- The employer only has to ensure that the notification of invitation to the meeting about disciplinary actions is received by participants before the meeting takes place (unlike existing regulations, the Decree does not require that the notification of invitation must be sent at least 5 working days before the meeting). 

- In the absence of any participant without good and sufficient reasons, the employer may hold that meeting at their discretion and does not have to obey the existing regulation under which at least 3 times of invitation to the meeting are required.

The Decree No. 148/2018/ND-CP is going to be in force on December 15, 2018.

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