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COUNCIL
OF MINISTERS
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
233-HDBT
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Hanoi,
June 22, 1990
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DECREE
ON LABOUR FOR ENTERPRISES WITH FOREIGN OWNED CAPITAL
In accordance with the Law on
Organization of the Council of Ministers of the Socialist Republic of Vietnam
dated 4 July, 1981;
In accordance with the Law on foreign Investment in Vietnam dated 29 December,
1987;
On the proposal of the Minister of Labour War Invalids and Social Affairs;
DECREES:
Article 1
Labour regulations for enterprises with foreign owned
capital in the Socialist Republic of Vietnam are hereby promulgated.
Article 2
The Ministers, Chairmen of State Committees, heads of other
bodies under the Council of Ministers, and chairmen of the people's committees
of the provinces, cities and special zones under central authority shall ensure
the implementation of this Decree.
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This Decree shall be of full force and effect as of the date
of its promulgation. All previously issued provisions which are inconsistent
with these regulations are hereby repealed.
FOR
OF THE COUNCIL OF MINISTER
VICE CHAIRMAN
Vo Van Kiet
REGULATIONS
ON LABOUR FOR ENTERPRISES WITH FOREIGN OWNED CAPITAL
(Issued with Decree No. 233-HDBT of the Council of Ministers dated 22 June
1990.)
Chapter I
GENERAL PROVISIONS
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These Labour Regulations shall apply to employment in
enterprises with foreign owned capital (hereinafter referred to as
enterprises), which are established and operating within the territory of the
Socialist Republic of Vietnam pursuant to the Law on foreign Investment in
Vietnam.
These
Regulations shall also apply to foreign employees in enterprises, unless
stipulated to the contrary in other laws.
Article 2
for the purposes of these Regulations the following terms
shall have the meanings ascribed to them hereunder:
1. Director
of the enterprise means the chief executive officer in charge of the management
and regulation of the enterprise. He, or a person authorized by him, shall, on
behalf of the enterprise, sign labour contracts and collective labour
agreements.
2. Labour
representative means the chairman or a person who is authorized by the
executive committee of the trade union or of an organization belonging to the
Vietnam General federation of Labour or, alternatively, where an enterprise
does not have a trade union organization, a person appointed by the employees
of the enterprise to represent them.
3. Collective
labour agreement means an agreement established through collective
negotiations, signed by the labour representative in the enterprise and the
director of the enterprise (or a person authorized by him), for the purpose of
providing gene ral conditions for employment and labour relations in the
enterprise.
4. Labour
contract means an employment agreement for remuneration signed by an employee
and the director of the enterprise (or a person authorized by him) in which the
parties commit to the terms and conditions of employment and adopt their
respectiv e rights and obligations in relation to labour relations.
5. Definite
term labour contract means a contract for a fixed period of time determined in
advance in the contract.
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Chapter II
LABOUR RECRUITMENT AND
TRAINING
Article 3
An enterprise is entitled to recruit Vietnamese citizens
aged eighteen (18) years or older in any of the following ways:
1. To recruit
from those who are introduced by the local labour office, and who meet the
criteria and qualifications required by the enterprise.
2. To engage
a labour supply company or an investment service company to recruit labour in
accordance with the criteria and qualifications specified by the enterprise.
3. In the
event that those who are introduced by the local labour office or through the
labour supply company or investment service company, do not meet the requirements
of the enterprise, the enterprise shall be entitled to publish widely an
advertisement for labour recruitment, and may even recruit persons who reside
in other localities provided the local labour office is informed.
Article 4
for the purpose of training, the enterprise may employ
workers aged sixteen (16) years or older. If, at the end of their training,
those workers are still under the age of eighteen (18) and the enterprise
requires them to work, it must obtain the approval of their parents or guardians.
Where those workers have no parents or guardians, approval shall be obtained
from the local labour office.
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Article 5
In the event that advanced technical, managerial or other
qualifications are required in respect of which Vietnamese personnel are not
available, the enterprise may recruit foreigners for a fixed period of time in
accordance with the procedures stipulated by the State of Vietnam. The
enterprise is obliged in doing so, however, to make and implement a plan to
train Vietnamese personnel to replace those foreign employees at the earliest
possible time.
Article 6
The enterprise shall, at its own expense, make a general
training plan. It may establish schools and training courses within the
enterprise and send its employees at all levels for training elsewhere in
Vietnam or overseas in order to improve their occupational skills. Local bodies
may co-operate with and support training plans which are of benefit to the
locality.
Chapter III
LABOUR CONTRACTS
Article 7
In every case of employment of a Vietnamese worker a labour
contract shall be negotiated and signed in writing by the employee and the
director, or a person authorized by him, of the enterprise.
A labour
contract shall be signed in accordance with the standard form issued by the
Ministry of Labour War Invalids and Social Affairs.
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A labour contract may be signed in any of the following
forms:
1. A definite
term labour contract.
2. An
indefinite term labour contract.
3. A labour
contract for a specific or seasonal job.
Where a
definite term labour contract has reached the time of expiry but the employee
wishes to continue working and neither side wishes the contract to end, it
shall become an indefinite term labour contract.
Article 9
Labour contracts which are mutually agreed upon and signed
by both parties shall comply with the provisions of the labour law and the
collective labour agreement, and shall contain the following essential
information: the work to be done; the place of work; salary and wages to be paid;
duration of the contract, rights of occupational safety and social insurance to
be provided in accordance with the provisions of the law, and conditions under
which any trial work shall be carried out.
Labour
contracts shall be made in duplicate, with each contracting party keeping one
copy.
Article 10
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The parties
may agree to sign a trial contract. The contents of each trial contract shall
include the essential information referred to in article 9 and the salary or
wage to be paid which shall be the equivalent of at least seventy (70) per cent
of the total salary or wage which would be paid to a permanent employee. During
the trial period, either party may terminate the contract without giving notice
or compensation. At the conclusion of the trial period the worker shall be
informed of the results o f the trial work. Where the trial period expires
without notice from the enterprise and the worker continues working, a labour
contract shall be considered to be in force.
Article 11
A labour contract shall be effective as of the date agreed
by the parties. Where the parties have not agreed on such a date the contract
will be deemed effective as of the date on which the worker actually commences
work or trial work.
Article 12
If, during performance of the labour contract, either party
wishes to amend it, that party shall give notice in advance to the other party
of its intention, and any change agreed shall be made in accordance with the
same principles and procedures original ly adopted in the signing of the
contract. Where the change is in relation to any of the items referred to in
article 9, a new labour contract shall be signed unless the circumstances
referred to in article 13 are applicable.
Article 13
1. Where necessitated by business, an enterprise may
transfer an employee to another working place or to other duties, provided this
is for no more than thirty (30) days and notice has been given. Where the transfer
is for more than thirty (30) days or to another locality, the consent of the
employee must be obtained and the terms and conditions must be agreed upon by
both sides. Where the employee does not consent, the transfer shall not take
place.
2. In an unexpected
or emergency case caused by force majeure, which prevents work from continuing
in the manner stipulated in the contract, the enterprise may transfer the
employee to other duties or another working place for a maximum period of sixty
(60) days. Where the transfer is for a period greater than sixty (60) days or
to another locality, the consent of the employee must be obtained and the terms
and conditions agreed upon by both sides. Where the employee does not consent,
he or she is entitled to allowances for temporary suspension of employment in
accordance with the provisions of clause 2 of article 44.
Article 14
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1. The
duration of the labour contract has expired or the work stipulated in the
contract has been completed.
2. Both
parties have agreed to terminate the contract.
3. The
investment license has expired or been canceled and, as a result, the enterprise
has been forced to cease operation, is dissolved or liquidated.
4. The
employee is sentenced for a term of at least six months imprisonment or
otherwise convicted by a court, with the result that he or she is forced to
discontinue work.
5. The employee
has died.
Article 15
The employee is entitled at any time, unilaterally, to
terminate an indefinite term labour contract, provided however that notice is
given as stipulated in article 18.
The employee
is entitled, unilaterally, to terminate other types of labour contracts in any
of the following cases:
1. Where the
enterprise fails to provide proper work as described in the labour contract,
except in the cases specified in article 13 of these Regulations.
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3. Where the
enterprise maltreats the employee.
4. Where, due
to poor health or a difficult family situation, the employee is unable to
perform his or her duties under the labour contract.
Unilateral
termination of labour contracts shall take place in accordance with paragraph
1, and notice shall be given in accordance with the provisions in article 18.
Where an
employee is obliged to carry out obligations imposed in accordance with laws or
is elected or nominated to certain public positions, suspension or termination
of the labour contract is to be agreed upon by the contracting parties. The
labour cont racts of employees who are detained by law enforcement agencies may
be suspended or terminated in accordance with the duration of detention.
Article 16
An enterprise is entitled, unilaterally, to terminate a
labour contract in any of the following cases:
1. The
employee repeatedly fails to carry out his or her duties in accordance with the
terms of the contract.
2. The
employee commits an offense of theft, embezzlement or any act in breach of any
other law, causing serious loss or damage to the property and interests of the
enterprise, or which amounts to a serious breach of internal discipline and enterprise
rules.
3. The
employee is physically disabled due to illness or an injury suffered in the
workplace for which he or she has had treatment for a period of at least six
months but from which he or she is still unable to recover.
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5. The
enterprise is forced to retrench employees as a result of the application of
new techniques and technology, or of the reorganization of production.
Where the
labour contract is terminated as a result of any of the above (apart from item
2), the enterprise shall give advance notice, as stipulated in article 18, and
shall consult with the labour representative in the enterprise. Where the
labour contr act is terminated, in accordance with items 4 and 5, the
enterprise shall give advance notice to the local labour office.
Article 17
Apart from those cases mentioned in item 4 of article 16, an
enterprise is not permitted, unilaterally, to terminate labour contracts with
female employees who are pregnant, on maternity leave, or nursing a child under
the age of twelve months; with employees who are on sick leave or absent under
a doctor's orders for no more than six months as the result of labour accidents
or occupational diseases; or with employees who are taking annual leave.
Article 18
The period of advance notice referred to in articles 15 and
16 shall be:
Indefinite
term labour contracts: at least sixty (60) days;
Definite term
labour contracts: at least thirty (30) days; and
Labour
contracts for a specific job or seasonal work: at least one day.
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Article 19
In the event that any of the conditions for the termination
of the labour contract or the giving of advance notice under the above articles
are breached, the party in breach shall be liable to compensate the other
party. The amount of compensation to be paid shall be in accordance with
regulations issued by the Ministry of Labour War Invalids and Social Affairs.
Article 20
No later than one week after termination of the labour
contract, each party shall make payment of all benefits owed, including
severance allowances and any other compensation. The enterprise shall return to
the employee his or her labour book and persona l documents and supply the
employee with necessary certificates as requested.
Article 21
The director of the enterprise, after consultation with the
labour representative, and on the basis of these Regulations shall publish internal
labour rules including any system of calculating bonuses and applying
penalties.
Where an
employee is in breach of internal labour rules the director of each enterprise,
depending on the nature and seriousness of the breach, shall have the power to
impose any one of the following forms of penalty:
A verbal
reprimand;
A partial or
full cut in bonus;
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Dismissal
(termination of the labour contract in accordance with clause 2 of article 16).
Article 22
The employee shall be entitled himself or through his
labour representative to make a complaint concerning the termination of his or
her labour contract or any penalty which is imposed. All complaints may be made
to the enterprise or authorized office fo r consideration and resolution in
accordance with the provisions of Chapter XI.
Chapter IV
COLLECTIVE LABOUR
AGREEMENTS
Article 23
The director of each enterprise, or a person authorized by
him, shall, on the basis of free and voluntary collective negotiation, together
with the labour representative, sign a collective labour agreement no later
than six months after the date of commen cement of its operation.
Each
collective labour agreement may include the following essential items: the
salary to be paid in respect of each type of occupation, working conditions,
occupational safety, social insurance, collective welfare, and other items
agreed upon by both pa rties.
Article 24
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Each
collective labour agreement shall be made in triplicate, with each party
keeping one copy, and the remaining copy being sent to the local labour office
for registration.
Article 25
Within fifteen (15) days from the date of receipt of the
collective labour agreement, the local labour office shall approve its
registration. The agreement shall be of full force and effect as of the date of
such approval. In the event that any provisio n contained in the agreement is
found to be contrary to these Regulations or labour laws, this shall not
operate to prevent the implementation of other terms of the agreement, and the
local labour office shall so inform the parties. Within ten (10) days of being
so informed, the contracting parties shall continue their negotiations to
resolve any remaining problems.
Article 26
Each signed collective labour agreement shall be for a
duration of one to three years. After the first three months of its
performance, each side has the right to request that amendments and additions
be made to its contents. Within fifteen (15) days from the date of receipt of a
request made by one side, both sides shall conduct negotiations on the
amendments and additions requested.
If, upon
expiry of the collective labour agreement, an extension is requested but
neither side requires a new agreement, the old agreement shall be deemed
renewed for the same duration as that of the previous agreement.
Article 27
The terms of the collective labour agreement shall be made
known to all employees of the enterprise concerned. from the date on which the
agreement becomes effective, all the parties shall strictly observe its terms.
Any problems which may arise in the course of its implementation shall be
resolved in a co-operative spirit, with mutual understanding, in acknowledgment
of the legitimate interests of both parties, and of the need for stable
production. Any dispute which may arise shall be settled in acco rdance with
the provisions for resolution of labour disputes contained in Chapter XI.
Chapter V
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Article 28
The employees of an enterprise are entitled to establish a
trade union and to engage in trade union activities in accordance with the Law
on Trade Unions and rules and on the basis of the rules of the General
federation of Labour of Vietnam.
Article 29
As a workers' organization, the trade union organization in
an enterprise has the function of protecting the legal rights and interests of
all employees, of representing the collective body of employees in resolving
problems between the employees and the enterprise, and of undertaking
collective negotiations to ensure the stability of labour relations in the
enterprise and promotion of production.
Article 30
The director of an enterprise shall respect the rights of
the employees to establish a trade union and to engage in trade union
activities. He shall also respect the role of trade unions, and shall provide
facilities and information and create favorable conditions for regular
consultation, collective bargaining, and implementation of the functions of the
trade union.
Chapter VI
WORKING HOURS AND
HOLIDAYS
Article 31
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2. The normal
working hours shall be reduced by at least one hour per day in respect of those
workers who are under eighteen (18) years of age, who perform heavy work, who
work in a dangerous or toxic environment, and female workers in their seventh
month of pregnancy or later or who are nursing babies under twelve (12) months
of age.
3. Night
shift hours are from 10 p.m. to 6 a.m.
4. Employees
are entitled to a break of at least thirty (30) minutes duration for each work
shift.
Article 32
When an enterprise requires overtime to be worked, it shall
seek the consent of the employee except in the following cases:
1. The work
is necessary to overcome the consequences of natural disasters or other mishaps
or to prevent accidents from occurring.
2. The work is
urgent because the enterprise is moving to a new location.
3. The work
is necessary to make up hours previously lost as a result of a stoppage of
operation due to force majeure.
The total
amount of overtime to be worked by an employee shall not exceed one hundred and
fifty (150) hours per year.
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In every week each employee shall have at least one fixed
day off (twenty four hours complete rest).
Where, due to
the nature of the work, it is impossible to arrange a day off, as mentioned
above, for an employee, the enterprise shall arrange for that day to be taken
the following week.
In respect of
specific jobs with special working conditions, it is permissible for the
employees to work longer shifts provided that satisfactory conditions for
equivalent days off have been recorded in the collective labour agreement.
Article 34
All employees shall be entitled to fully paid days off in
respect of official festivals and holidays:
Solar New
Year Holiday: one day (the first day of January each year);
Lunar New
Year Holidays: three days (the final day of the old year and the first two days
of the new Lunar year);
May Day: one
and a half days (the second half of the thirtieth day of April and the whole of
the first of May); and
National Day
of the Socialist Republic of Vietnam: two days (the second and third days of
September).
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Fully paid annual leave:
1. All
employees shall be entitled to at least eighteen (18) days fully paid leave
each year.
2. In
addition, employees shall also be entitled to at least five additional days
annual leave with full pay in the following cases:
They have
worked at the enterprise for a period of over ten (10) years;
They work in
remote isolated areas, or in a harsh climate;
They work in
hard, harmful or dangerous conditions; or
They are
under eighteen (18) years of age.
Article 36
Employees who have worked at the enterprise for at least
eleven months are entitled to take all the holidays stipulated in clause 1 of
article 35. The following periods of time shall be included in the length of
service of each employee:
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Maternity
leave taken by female employees;
Days which
are taken as leave for personal reasons with the approval of the director of
the enterprise; and
Days which
are taken as sick leave with the consent of the director.
Where a
labour contract is terminated after six months service, the employee shall
receive pro rata payment in lieu of annual leave calculated on the basis of the
applicable wage rate and the period of service.
Article 37
1. Female employees shall be given maternity leave of a
minimum of twelve weeks on full pay, six weeks of which must be taken after confinement.
Where,
following the expiry of maternity leave, the employee remains unfit to return
to work and this is confirmed by a medical certificate, she shall be entitled
to additional leave of not more than twelve weeks. During this period the
employee shall receive sick leave benefits as provided in article 46.
2. All female
employees nursing their babies under twelve months of age shall, under clause 2
of article 31, be given one hour's break per day in order to feed them.
Article 38
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Employees
shall be entitled, with the permission of the director of the enterprise, to
special unpaid leave for personal reasons for a duration agreed by the two
sides.
Chapter VII
WAGES AND SALARIES
Article 39
Wages and salaries (including hourly, daily, weekly or
monthly basis wages and salaries and contracted wages) shall be stated clearly
in labour contracts. They shall be calculated in accordance with the terms of
the collective labour agreement and shall be no less than the minimum salary to
be paid by enterprises with foreign owned capital, in accordance with the
amount announced each year by the Minister of Labour War Invalids and Social
Affairs following his consultation with both sides concerned.
Article 40
Employees shall be paid in accordance with their
productivity, quality of their work, the specific trades and industry in which
they work, their occupations, working conditions and living costs from time to
time, and shall be paid without regard to their sex or age.
Article 41
Employees who work night shifts shall be paid at a rate
fifty (50) per cent higher than the amount paid in respect of day shifts.
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Article 42
The enterprise shall pay directly their employees their
wages, salaries, and all other allowances as and when they fall due. All
payments shall be made at the workplace and shall be in cash.
Article 43
The salaries of the director (general director), the deputy
director (deputy general director) and all other key managers of the enterprise
shall be determined by the board of management of a joint venture enterprise or
the owner of an enterprise with one hundred (100) per cent foreign owned
capital.
Article 44
1. When an enterprise, in accordance with article 13,
temporarily transfers an employee to another working place or to other duties,
the employee shall be paid a sum which is no less than that which he or she was
paid in his or her previous job.
2. Where an
employee, through no fault of his own, is required to stop work temporarily,
the enterprise shall pay him or her an allowance equal to fifty (50) per cent
of his usual wage or salary.
Article 45
All employees shall be fully informed of all deductions
from their wages and salaries. Deductions must be in accordance with the labour
laws, the collective labour agreement or court decision. In the event that the
enterprise is declared bankrupt or is dissolved and liquidated, all wages and
salaries which are outstanding shall be paid immediately by way of priority
payment.
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SOCIAL INSURANCE
Article 46
Every month, each enterprise shall pay a contribution to
social insurance in a sum equivalent to ten (10) per cent of the amount of
total wages and salaries paid to its employees. This sum shall be applied as
follows:
1. Two per
cent to the local labour office for the purpose of unemployment benefits.
2. Eight per
cent to the social insurance fund established at the enterprise and
administered jointly by the representative of the director and the labour
representative in order to meet expenses which may arise as a result of:
Sickness,
labour accidents, occupational diseases (including leave taken and medical
expenses);
Pregnancy,
maternity and childcare; and
Burial and
funeral expenses (for those who die during the term of employment).
Article 47
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Old age
benefits;
Benefits paid
to persons permanently disabled, as a result of sickness, occupational
diseases, labour accidents or hazards; and
Burial and
funeral expenses (in respect of those who die while receiving old age pensions
or permanent disability benefits) and surviving benefits paid to relatives of
the deceased.
Chapter IX
OCCUPATIONAL HEALTH AND
SAFETY
Article 48
An enterprise shall be obliged to take all necessary
measures for labour safety, protection, and hygiene in accordance with the laws
on labour protection, health care, and environmental protection of Vietnam, and
with international standards and practices .
Any
production or business project may be carried out only after completion of all
procedures for labour protection, safety, hygiene, environmental protection and
proper disposal of waste, both inside and outside the enterprise and after the
enterprise ha s submitted a report to the local labour office.
In the event
that a labour accident occurs due to the fault of the enterprise, it shall, in
accordance with provisions of the Government, pay compensation to the victims,
or to their relatives in the event of death.
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The employment of women and persons under eighteen (18)
years of age for heavy, harmful or dangerous work is strictly forbidden.
Women who are
either pregnant or are nursing babies under twelve (12) months old and persons
under eighteen (18) years of age shall not be employed for night shift work or
be required to work overtime.
A list of
heavy, harmful, and dangerous occupations shall be issued by the Ministry of
Labour War Invalids and Social Affairs.
Article 50
The enterprise shall, on a regular basis, provide
information and instruction on measures for labour safety and hygiene, supply
employees with sufficient clothing and equipment necessary for their
protection, devise a plan for health care, arrange for periodic health
examinations to be carried out, and for preventative measures to be taken for
the protection of employees from disease, and shall prevent and eliminate any
dangers which may pose a threat to the life and health of the employees. The
enterprise shall make periodic reports on the status of its occupational safety
to the local labour office.
Each employee
shall be responsible for the strict implementation of all instructions and
measures on occupational safety and hygiene. If, whilst working, there is any
obvious and serious danger to his or her life and health, an employee shall be
entitled to leave the work place and immediately report the danger to a
responsible person.
Chapter X
LABOUR INSPECTION AND
CONTROL
Article 51
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Article 52
The labour inspector is responsible for securing the
enforcement of the labour laws, inspecting labour accidents, advising and
instructing the enterprise and employees, and for submitting reports to the
Minister of Labour War Invalids and Social Affairs.
Article 53
The labour inspector has the power:
To enter any enterprise
within his area of responsibility for the purpose of carrying out inspection
and control work;
To ask
questions of persons concerned, to demand that the director of the enterprise
produce documents and printed material which relate to the labour of the
enterprise and to copy, and obtain samples of all information required;
To require
the director to post announcements on labour laws; and
To request
that the director immediately implement all necessary measures, including the
temporary stoppage of the operation of machines, in order to eliminate any
dangers which threaten the health and safety of employees, and to take action
within a limi ted time, when required, for the strict implementation of rules
on occupational safety and hygiene.
Article 54
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Article 55
The enterprise shall be responsible for observing all
legitimate requirements of the inspector and is prohibited from obstructing
labour inspection and control activities.
Penalties for
breaches of the law in relation to inspection and control work shall be applied
in accordance with the Ordinance on Administrative Penalties proclaimed by the
State Council of the Socialist Republic of Vietnam.
Chapter XI
RESOLUTION OF LABOUR
DISPUTES
Article 56
The enterprise and employees may make complaint concerning
labour issues to authorized labour offices at all levels, including to the
Minister of Labour War Invalids and Social Affairs. All complaints shall be
responded to within fifteen (15) days from t he date of their receipt.
Article 57
All labour disputes shall be the subject of attempted
resolution by way of direct negotiation between the two sides, (the employees
and the enterprise, the labour representative and the director) which shall be
conducted in a spirit of conciliation, equal ity, fairness and respect for each
other's interests.
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A
conciliatory council comprised of an equal number of representatives of the two
sides and the local labour office acting as mediator;
An
arbitration council established and presided over by the local labour office or
an arbitrator selected by both sides; or
An arbitrator
appointed by the Minister of Labour War Invalids and Social Affairs.
The form of
conciliation and arbitration agreed upon by both sides shall have been recorded
in the collective labour agreement.
Where the
conciliation fails, and the arbitration is ineffective, either side may bring
the dispute before the People's Court for judgment.
The
procedures for consideration of the complaints, conciliation and arbitration
shall be stipulated by the Minister of Labour War Invalids and Social Affairs.
Chapter XII
FINAL PROVISIONS
Article 58
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Article 59
The Minister of Labour War Invalids and Social Affairs
shall ensure that practical guidance is provided and shall issue detailed
provisions, for the implementation of these Regulations.