|
THE
NATIONAL ASSEMBLY
-------
|
SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
---------------
|
|
No.
45/2019/QH14
|
Hanoi , November 20, 2019
|
LABOR CODE
Pursuant to the Constitution of Socialist Republic of Vietnam;
The National Assembly
promulgates the Labor Code.
Chapter I
GENERAL PROVISIONS
Article 1.
Scope
The Labor Code sets forth labor
standards; rights, obligations and responsibilities of employees, employers,
internal representative organizations of employees, representative
organizations of employers in labor relations and other relations directly
related to labor relations; and state management of labor.
Article 2.
Regulated entities
1. Employees, trainees, apprentices
and other workers without labor relations.
2. Employers.
3. Foreign employees who work in Vietnam.
4. Other organizations and
individuals directly related to labor relations.
Article 3.
Definitions
For the purposes of this document,
the terms below shall be construed as follows:
1. “employee”
means a person who works for an employer under an agreement, is paid, managed
and supervised by the employer.
The legal
working age is 15, except for the cases specified in Section 1 Chapter XI of
this Labor Code.
2. “employer”
means an enterprise, agency, organization, cooperative, household or individual
who employs other people under agreements. An employer that is an individual
shall have full legal capacity.
3. “representative
organization of employees” means an internal organization voluntarily
established by employees of an employer which protects the employees’
legitimate rights and interests in labor relations through collective
bargaining or other methods prescribed by labor laws. Representative
organizations of employees include internal trade unions and internal employee
organizations.
4. Representative
organization of employers means a lawfully established organization which
represents and protects the employers’ legitimate rights and interests in labor
relations.
5. “labor
relation” means a social relation which arises in respect of the employment and
salary payment between an employee and an employer, their representative
organizations and competent authorities. Labor relations include individual
labor relation and collective labor relation.
6. “worker
without labor relations” means a person who works without an employment
contract.
7. “forced
labor” means to the use force or threat to use force or a similar practice to
force a person to work against his/her will.
8. “labor
discrimination” means discrimination on the grounds of race, skin color,
nationality, ethnicity, gender, age, pregnancy, marital status, religion,
opinion, disability, family responsibility, HIV infection, establishment of or
participation in trade union or internal employee organization in a manner that
affects the equality of opportunity of employment.
Positive
discrimination on the grounds of professional requirements, the sustainment and
employment protection for vulnerable employees will not be considered
discrimination.
9.
“sexual harassment” in the workplace means any sexual act of a person against
another person in the workplace against the latter’s will. “workplace” means
the location when an employee works under agreement or as assigned by the
employer.
Article 4. State policies on labor
1.
Guarantee the legitimate rights and interests of employees and workers without
labor relations; encourage agreements providing employees with conditions more
favorable than those provided by the labor laws.
2.
Guarantee the legitimate rights and interests of employers, to ensure lawful,
democratic, fair and civilized labor management, and to promote corporate
social responsibility.
3.
Facilitate job creation, self-employment and occupational training and learning
to improve employability; labor-intensive businesses; application of certain
regulations in this Labor code to workers without labor relations.
4. Adopt
policies on the development and distribution of human resources; improve
productivity; provide basic and advanced occupational training, occupational
skill development; assist in sustainment and change of jobs; offer incentives
for skilled employees in order to meet the requirements of national
industrialization and modernization.
5. Adopt
policies on labor market development and diversify types of linkage between
labor supply and demand.
6.
Promote dialogues, collective bargaining and establishment of harmonious, stable
and progressive labor relations between employees and employers.
7. Ensure
gender equality; introduce labor and social policies aimed to protect female,
disabled, elderly and minor employees.
Article 5. Rights and obligations of employees
1. An
employee has the rights to:
a) work;
freely choose an occupation, workplace or occupation; participate in basic and
advanced occupational training; develop professional skills; suffer no
discrimination, forced labor and sexual harassment in the workplace;
b) receive
a salary commensurate with his/her occupational skills on the basis of an
agreement with the employer; be provided with personal protective equipment and
work in an occupationally safe and healthy environment; take statutory sick
leaves, annual paid leaves and receive collective welfare benefits;
c)
establish, join an representative organization of employees, occupational
associations and other organizations in accordance with law; request and
participate in dialogues with the employer, implementation of democracy
regulations and collective bargaining with the employer; receive consultancy at
the workplace to protect his/her legitimate rights and interests; participate
in management activities according to the employer’s regulations;
d) refuse
to work if he/she finds that the work directly threatens his/her life or
health;
dd)
unilaterally terminate the employment contract;
e) go on
strike;
g)
exercise other rights prescribed by law.
2. An
employee has the obligations to:
a)
implement the employment contract, collective bargaining agreement and other
lawful agreements;
c) obey
internal labor regulations, the lawful management, administration and
supervision by the employer;
c)
implement regulations of laws on labor, employments, vocational education,
social insurance, health insurance, unemployment insurance, occupational safety
and health.
Article 6. Rights and obligations of employers
1. An
employer has the rights to:
a)
recruit, arrange and manage and supervise employees; give commendation and take
actions against violations of internal labor regulations;
b)
establish, join and operate in employer representative organization,
occupational associations and other organizations in accordance with law;
c)
request the representative organization of employees to negotiate the
conclusion of the collective bargaining agreement; participate in settlement of
labor disputes and strikes; discuss with the representative organization of
employees about issues related to labor relations and improvement of the
material and spiritual lives of employees;
d)
temporarily close the workplace;
dd)
exercise other rights prescribed by law.
2. An
employer has the obligations to:
a)
implement the employment contracts, collective bargaining agreement and other
lawful agreements with employees; respect the honor and dignity of employees;
b)
establish a mechanism for and hold dialogue with the employees and the
representative organization of employees; implement the regulations on
grassroots-level democracy;
c)
Provide basic training and advanced training in order to help employees improve
their professional skills or change their occupations;
d)
implement regulations of laws on labor, employments, vocational education,
social insurance, health insurance, unemployment insurance, occupational safety
and health; develop and implement solutions against sexual harassment in the
workplace;
dd)
Participate in development of the national occupational standards, assessment
and recognition of employees’ professional skills.
Article 7. Development of labor relations
1. Labor
relations are established through dialogue and negotiation on principles of
voluntariness, good faith, equality, cooperation and mutual respect of each
other’s the lawful rights and interests.
2.
Employers, employer representative organizations, employees and representative
organizations of employees shall develop progressive, harmonious and stable
labor relations with the assistance of competent authorities.
3. The
trade union shall cooperate with competent authorities in assisting the
development of progressive, harmonious and stable labor relations; supervising
implementation of labor laws; protecting the legitimate rights and interests of
employees.
4.
Vietnam Chamber of Commerce and Industry, Vietnam Cooperative Association and
other employer representative organizations that are lawfully established shall
represent, protect the lawful rights and interests of employers, and
participate in development of progressive, harmonious and stable labor
relations.
Article 8. Forbidden actions
1. Labor
discrimination.
2.
Maltreatment of employees, forced labor.
3. Sexual
harassment in the workplace.
4. Taking
advantage of occupational training or apprenticeships to exploit the trainees
or apprentices, or persuade or force them to act against the law.
5.
Employing untrained people or people without occupational training certificates
to do the jobs or works that have to be done by trained workers or holders of
occupational training certificates.
6.
Persuading, inciting, promising advertising or otherwise tricking employees
into human trafficking, exploitation of labor or forced labor; taking advantage
of employment brokerage or guest worker program to commit violations against
the law.
7.
Illegal employment of minors.
Chapter II
EMPLOYMENTS, RECRUITMENT AND EMPLOYEE
MANAGEMENT
Article 9. Employments and creation of employments
1.
Employment is any income-generating laboring activity that is not prohibited by
law.
2. The
State, employers and the society have the responsibility to create employment
and guarantee that every person, who has the work capacity, has access to
employment opportunities.
Article 10. Right to work of employees
1. An
employee shall have the right to choose his employment, employer in any
location that is not prohibited by law.
2. An
employee may directly contact an employer or through an employment service
provider in order to find a job that meets his/her expectation, capacity,
occupational qualifications and health.
Article 11. Employment plan
1.
Employers have the right to recruit employees directly or through employment
agencies or outsourcing enterprises.
2.
Employees shall not pay any employment cost.
Article 12. Responsibility of an employer for employee
management
1.
Prepare, update, manage, use the physical or electronic employee book and
present it to the competent authority whenever requested.
2.
Declare the employment status within 30 days from the date of commencement of
operation, and report periodically on changes of employees during operation to
the local labor authority under the People’s Committee of the province
(hereinafter referred to as “provincial labor authority") and to the
social security authority.
3. The
Government shall elaborate this Article.
Chapter III
EMPLOYMENT CONTRACT
Section 1. CONCLUSINO OF AN EMPLOYMENT CONTRACT
Article 13. Employment contract
1. An
employment contract is an agreement between an employee and an employer on a paid
job, salary, working conditions, and the rights and obligations of each party
in the labor relations.
A
document with a different name is also considered an employment contract if it
contains the agreement on the paid job, salary, management and supervision of a
party.
2. Before
recruiting an employee, the employer shall enter into an employment contract
with such employee.
Article 14. Forms of employment contract
1. An
employment contract shall be concluded in writing and made into two copies, one
of which will be kept by the employee, the other by the employer, except for
the case specified in Clause 2 of this Article.
An
employment contract in the form of electronic data conformable with electronic
transaction laws shall have the same value as that of a physical contract.
2. Both
parties may conclude an oral contract with a term of less than 01 month, except
for the cases specified in Clause 2 Article 18, Point a Clause 1 Article 145
and Clause 1 Article 162 of this Labor Code.
Article 15. Principles for conclusion of an employment
contract
1.
Voluntariness, equality, good faith, cooperation and honesty.
2.
Freedom to enter into an employment contract which is not contrary to the law,
the collective bargaining agreement and social ethics.
Article 16. Obligations to provide information before
conclusion of an employment contract
1. The
employer shall provide the employee with truthful information about the job,
workplace, working conditions, working hours, rest periods, occupational
safety and health, wage, forms of wage payment, social insurance, health
insurance, unemployment insurance, regulations on business secret,
technological know-how, and other issues directly related to the conclusion of
the employment contract if requested by the employee.
2. The
employee shall provide the employer with truthful information about his/her
full name, date of birth, gender, residence, educational level, occupational
skills and qualifications, health conditions and other issues directly related
to the conclusion of the employment contract which are requested by the
employer.
Article 17. Prohibited acts by employers during conclusion
and performance of employment contracts
1.
Keeping the employee’s original identity documents, diplomas and certificates.
2.
Requesting the employee to make a deposit in cash or property as security for
his/her performance of the employment contract.
3.
Forcing the employee to keep performing the employment contract to pay debt to
the employer.
Article 18. Competence to conclude employment contracts
1.
Employees may directly conclude their employment contracts, except for the
cases specified in Clause 2 of this Article.
2. In
respect of seasonal works or certain jobs which have a duration of less than 12
months, a group of employees aged 18 or older may authorized the representative
of the group to conclude the employment contract, in which case such employment
contract shall be effective as if it was separately concluded by each of the
employees.
The
employment contract concluded by the said representative must be enclosed with
a list clearly stating the full names, ages, genders, residences and signatures
of all employees concerned.
3. The
person who concludes the employment contract on the employer’s side shall be:
a) The
legal representative of the enterprise or an authorized person as prescribed by
law;
b) The
head of the organization that is a juridical person, or an authorized person as
prescribed by law;
c) The
representative of the household, artels or an organization that is not a
juridical person, or an authorized person as prescribed by law;
d) The
individual who directly hires the employee.
4. The
person who concludes the employment contract on the employee’s side shall be:
a) The employee
himself/herself if he/she is 18 or older;
b) The
employee aged 15 to under 18 with a written consensus by his/her legal
representative;
c) The
employee aged under 15 and his/her legal representative;
d) The
employee lawfully authorized by the group of employees to conclude the
employment contract.
5. The
person who is authorized to conclude the employment contract must not authorize
another person to conclude the employment contract.
Article 19. Entering into multiple employment contracts
1. An
employee may enter into employment contracts with more than one employer,
provided that he/she fully performs all terms and conditions contained in the
concluded contracts.
2. Where
an employee enters into employment contracts with more than one employer, his/her
participation in social insurance, health insurance and unemployment insurance
schemes shall comply with regulations of law on social insurance, health
insurance, unemployment insurance, occupational safety and health.
Article 20. Types of employment contracts
1. An
employment contract shall be concluded in one of the following types:
a) An
indefinite-term employment contract is a contract in which the two parties
neither fix the term nor the time of termination of the contract;
b) A
fixed-term employment contract is a contract in which the two parties fix the
term of the contract for a duration of up to 36 months from the date of its
conclusion.
2. If an
employee keeps working when an employment contract mentioned in Point b Clause
1 of this Article expires:
a) Within
30 days from the expiration date of the employment contract, both parties shall
conclude a new employment contract. Before such a new employment contract is
concluded, the parties’ rights, obligations and interests specified in the old
employment contract shall remain effective;
b) If a
new employment contract is not concluded after the 30-day period, the existing
employment contract mentioned in Point b Clause 1 of this Article shall become
an employment contract of indefinite term;
c) The
parties may enter into 01 more fixed-term employment contract. If the employee
keeps working upon expiration of this second fixed-term employment contract,
the third employment contract shall be of indefinite term, except for
employment contracts with directors of state-invested enterprises and the cases
specified in Clause 1 Article 149, Clause 2 Article 151 and Clause 4 Article
177 of this Labor Code.
Article 21. Contents of employment contracts
1. An
employment contract shall have the following major contents:
a) The
employer’s name, address; full name and position of the person who concludes
the contract on the employer’s side;
b) Full
name, date of birth, gender, residence, identity card number or passport number
of the person who concludes the contract on the employee’s side;
c) The
job and workplace;
d)
Duration of the employment contract;
dd) Job-
or position-based salary, form of salary payment, due date for payment of
salary, allowances and other additional payments;
e)
Regimes for promotion and pay rise;
g)
Working hours, rest periods;
h)
Personal protective equipment for the employee;
i) Social
insurance, health insurance and unemployment insurance;
k) Basic
training and advanced training, occupational skill development.
2. If the
employees’ job is directly related to the business secret, technological
know-how as prescribed by law, the employer has the rights to sign a written
agreement with the employee on the content and duration of the protection of
the business secret, technology know-how, and on the benefit and the
compensation obligation in case of violation by the employee.
3. If the
employee works in agriculture, forestry, fishery, or salt production, both
parties may exclude some of the aforementioned contents and negotiate
additional agreements on settlement in the case when the contract execution is
affected by natural disaster, fire or weather.
4. The
contents of the employment contract with an employee who is recruited to work
as the director of a state-invested enterprise shall be stipulated by the
Government.
5. The
Minister of Labor, War Invalids and Social Affairs elaborate Clauses 1, 2 and 3
of this Article.
Article 22. Annexes to employment contract
1. An
annex to an employment contract is an integral part of the employment contract
and is as binding as the employment contract.
2. An
annex to an employment contract may elaborate or amend certain contents of the
employment contract and must not change the duration of the employment
contract.
Where an
annex to an employment contract elaborates the employment contract in a manner
that leads to a different interpretation of the employment contract, the
contents of the employment contract shall prevail.
Where an
annex amends certain contents of the employment contract, it should clearly
states the amendments or additions, and the date on which they take effect.
Article 23. Effect of employment contract
An
employment contract takes effect as of the date on which the contract is
concluded by the parties, unless otherwise agreed by both parties or prescribed
by law.
Article 24. Probation
1. An
employer and an employee may include the contents of the probation in the
employment contract or enter into a separate probation contract.
2. The
probation contract must include the probation period and the contents specified
in Points a, b, c, dd, g and h Clause 1 Article 21 of this Code.
3.
Probation is not allowed if the employee works under an employment contract
with a duration of less than 01 month.
Article 25. Probationary period
The
probationary period shall be negotiated by the parties on the basis of the
nature and complexity of the job. Only one probationary period is allowed for a
job and the probation shall not exceed:
1. 180
days for the position of enterprise executive prescribed by the Law on
Enterprises, the Law on management and use of state investment in enterprises;
2. 60
days for positions that require a junior college degree or above;
3. 30
days for positions that require a secondary vocational certificate,
professional secondary school; positions of or for technicians, and skilled
employees;
4. 06
working days for other jobs.
Article 26. Probationary salary
The
probationary salary shall be negotiated by both parties and shall not be lower
than 85% of the offered salary.
Article 27. Termination of probationary period
1. Upon
the expiry of the probationary period, the employer shall inform the employee
of the probation result.
If the
result is satisfactory, the employer shall keep implementing the concluded
employment contract, if there is one, or conclude the employment contract.
If the
result is not satisfactory, the employer may terminate the concluded employment
contract or the probation contract.
2. During
the probationary period, either party has the right to terminate the concluded
probation contract or employment contract without prior notice and compensation
obligation.
Section 2. PERFORMANCE OF EMPLOYMENT CONTRACT
Article 28. Performance of works under an employment
contract
The works
under an employment contract shall be performed by the employee who directly
enters into the contract. The workplace shall be consistent with that indicated
in the employment contract, unless otherwise agreed upon by both parties.
Article 29. Reassignment of an employee against the
employment contract
1. In the
event of sudden difficulties such as natural disasters, fire, major epidemics,
implementation of preventive and remedial measures for occupational accidents
or diseases, electricity and water supply failures, or for reasons of business
and production demands, the employer may temporarily assign an employee to
perform a work which is not prescribed in the employment contract for an
accumulated period of up to 60 working days within 01 year, unless otherwise
agreed in writing by the employee.
The
employer shall specify in the internal labor regulations the cases in which the
employer may temporary reassign employees against the employment contracts.
2. In
case of temporarily reassignment of an employee specified in Clause 1 of this
Article, the employer shall inform the employee at least 03 working days in
advance, specify the reassignment period and only assign works that are
suitable for the employee’s health and gender.
3. The
reassigned employee will receive the salary of the new work. If the new salary
is lower than the previous salary, the previous salary shall be maintained for
30 working days. The new salary shall be at least 85% of the previous salary
and not smaller than the minimum wages.
4. In
case the employee refuses to be reassigned for more than 60 working days in 01
year and has to suspend the employment, he/she shall receive the suspension pay
from the employer in accordance with Article 99 of this Labor Code.
Article 30. Suspension of an employment contract
1. Cases
of suspension of an employment contract:
a) The
employee is conscripted into the army or militia;
b) The
employee is held in custody or detention in accordance with the criminal
procedure law;
c) The
employee is sent to a reformatory school, drug rehabilitation center or
correctional facility;
d) The
female employee is pregnant as specified in Article 138 of this Code;
dd) The
employee is designated as the executive of a wholly state-owned single-member
limited liability company;
e) The
employee is authorized to representative the state investment in another
enterprise;
g) The
employee is authorized to represent the enterprise’s investment in another
enterprise;
h) Other
circumstances as agreed by both parties.
2. During
the suspension of the employment contract, the employee shall not receive the
salary and benefits specified in the employment contract, unless otherwise
agreed by both parties or prescribed by law.
Article 31. Reinstatement of employees upon expiry of the temporary
suspension of the employment contract
Within 15
days from the expiry of the suspension period of the employment contract, the
employee shall be present at the workplace and the employer shall reinstate the
employee under the employment contract if it is still unexpired, unless
otherwise agreed by both parties or prescribed by law.
Article 32. Part-time employments
1. A
part-time employee is an employee who works for less than the usual daily,
weekly or monthly working hours as prescribed by labor laws, the collective
bargaining agreement internal labor regulations.
2. An
employee may negotiate part-time employment with the employer when enter into
an employment contract.
3. The
part-time employee shall be entitled to receive salary, equal rights and
obligations as a full-time employee; equal opportunity and treatment, and to a
safe and hygienic working environment.
Article 33. Revisions to employment contracts
1. During
the performance of an employment contract, any party who wishes to revise the
employment contract shall notify the other party of the revisions at least 03
working days in advance.
2. In
case where an agreement is reached between the parties, the revisions shall be
made by signing an annex to the employment contract or signing a new employment
contract.
3. In
case the two parties fail to reach an agreement on the revisions, they shall
continue to perform the existing employment contract.
Section 3. TERMINATION OF EMPLOYMENT CONTRACTS
Article 34. Cases of termination of an employment contract
1. The
employment contract expires, except for the case specified in Clause 4 Article
177 of this Code.
2. The
tasks stated in the employment contract have been completed.
3. Both
parties agree to terminate the employment contract.
4. The
employee is sentenced to imprisonment without being eligible for suspension or
release as prescribed in Clause 5 Article 328 of the Criminal Procedure Code,
capital punishment or is prohibited from performing the work stated in the
employment contract by an effective verdict or judgment of the court.
5. The
foreign employee working in Vietnam is expelled by an effective verdict or
judgment of the court or a decision of a competent authority.
6. The
employee dies; is declared by the court as a legally incapacitated person,
missing or dead.
7. The
employer that is a natural person dies; is declared by the court as a legally
incapacitated person, missing or dead. The employer that is not a natural
person ceases to operate, or a business registration authority affiliated to
the People’s Committee of the province (hereinafter referred to as “provincial
business registration authority”) issues a notice that the employer does not
have a legal representative or a person authorized to exercise the legal representative’s
rights and obligations.
8. The
employee is dismissed for disciplinary reasons.
9. The
employee unilaterally terminates the employment contract in accordance with
Article 35 of this Code.
10. The
employer unilaterally terminates the employment contract in accordance with
Article 36 of this Code.
11. The
employer allows the employee to resigns in accordance with Article 42 and
Article 43 of this Code.
12. The
work permit or a foreign employee expires according to Article 156 of this
Labor Code.
13. The
employee fails to perform his/her tasks during the probationary period under
the employment contract or gives up the probation.
Article 35. The right of an employee to unilaterally
terminates the employment contract
1. An
employee shall have the right to unilaterally terminate the employment
contract, provided he/she notices the employee in advance:
a) at
least 45 days in case of an indefinite-term employment contract;
b) at
least 30 days in case of an employment contract with a fixed term of 12 – 36 months;
c) at
least 03 working days in case of an employment contract with a fixed term of
under 12 months;
d) The
notice period in certain fields and jobs shall be specified by the government.
2. An
employee is shall have the right to unilaterally terminate the employment
contract without prior notice if he/she:
a) is not
assigned to the work or workplace or not provided with the working conditions
as agreed in the employment contract, except for the cases specified in Article
29 of this Labor Code;
b) is not
paid adequately or on schedule, except for the case specified in Clause 4
Article 97 of this Code.
c) is
maltreated, assaulted, physically or verbally insulted by the employer in a
manner that affects the employee’s health, dignity or honor; is forced to work
against his/her will;
d) is
sexually harassed in the workplace;
dd) is
pregnant and has to stop working in accordance with Clause 1 Article 138 of
this Labor Code.
e)
reaches the retirement age specified in Article 169 of this Labor Code, unless otherwise
agreed by the parties; or
g) finds
that the employer fails to provide truthful information in accordance with
Clause 1 Article 16 of this Labor Code in a manner that affects the performance
of the employment contract.
Article 36. The right of an employer to unilaterally
terminates the employment contract
1. An
employer shall have the right to unilaterally terminate an employment contract
in one of the following circumstances:
a) The
employee repeatedly fails to perform his/her work according to the criteria for
assessment of employees’ fulfillment of duties established by the employer. The
criteria for assessment of employees’ fulfillment of duties shall be
established by the employer with consideration taken of opinions offered by the
representative organization of employees (if any);
b) The
employee is sick or has an accident and remains unable to work after having
received treatment for a period of 12 consecutive months in the case of an
indefinite-term employment contract, for 06 consecutive months in the case of
an employment contract with a fixed term of 12 – 36 months, or more than half
the duration of the contract in case of an employment contract with a fixed
term of less than 12 months.
Upon
recovery, the employer may consider concluding another employment contract with
the employee;
c) In the
event of a natural disaster, fire, major epidemic, hostility, relocation or
downsizing requested by a competent authority, the employer has to lay off
employees after all possibilities have been exhausted;
d) The
employee is not present at the workplace after the time limit specified in
Article 31 of this Labor Code;
dd) The
employee reaches the retirement age specified in Article 169 of this Labor
Code, unless otherwise agreed by the parties;
e) The
employee is not present at work without acceptable excuses for at least 05
consecutive working days;
g) The
employee fails to provide truthful information during the conclusion of the employment
contract in accordance with Clause 2 Article 16 of this Labor Code in a manner
that affects the recruitment.
2. When
unilaterally terminating the employment contract in any of the cases specified
in Point a, b, c, dd and g Clause 1 of this Article, the employer shall inform
the employer in advance:
a) at
least 45 days in case of an indefinite-term employment contract;
b) at
least 30 days in case of an employment contract with a fixed term of 12 – 36
months;
c) at
least 03 working days in the case of an employment contract with a fixed term
of less than 12 months and in the cases stipulated in Point b Clause 1 of this
Article;
d) The
notice period in certain fields and jobs shall be specified by the government.
3. When
unilaterally terminating the employment contract in the cases mentioned in
Point d and Point e Clause 1 of this Article, the employer is not required to
inform the employee in advance.
Article 37. Cases in which an employer is prohibited from
unilaterally terminating an employment contract
1. The
employee is suffering from an illness or work accident, occupational disease
and is being treated or nursed under the decision of a competent health
institution, except for the cases stipulated in Point b Clause 1 Article 36 of
this Labor Code.
2. The
employee is on annual leave, personal leave, or any other types of leave
permitted by the employer.
3. The
employee is pregnant, on maternal leave or raising a child under 12 months of
age.
Article 38. Withdrawal of unilateral termination of employment
contracts
Either
party may withdraw the unilateral termination of an employment contract at any
time prior to the expiry of the notice period by a written notification,
provided that the withdrawal is agreed by the other party.
Article 39. Illegal unilateral termination of employment
contracts
The
unilateral termination of an employment contract will be illegal if it does not
comply with regulations of Article 35, 36 and 37 of this Labor Code.
Article 40. Obligations of the employee upon illegal
unilateral termination of the employment contract
The
employee who illegally unilaterally terminates his/her employment contract
shall:
1. Not
receive the severance allowance.
2. Pay
the employer a compensation that is worth his/her half a month’s salary plus
(+) an amount equal to his/her salary for the remaining notice period from the
termination date.
3. The
employee shall reimburse the employer with the training costs in accordance
with Article 62 of this Code.
Article 41. Obligations of the employer upon illegal
unilateral termination of the employment contract
1. The
employer that illegally unilaterally terminates an employment contract with an
employee shall reinstate the employee in accordance with the original
employment contract, and pay the salary, social insurance, health insurance and
unemployment insurance premiums for the period during which the employee was
not allowed to work, plus at least 02 months’ salary specified in the
employment contract.
After the
reinstatement, the employee must return the severance allowance or redundancy
allowance (if any) to the employer.
Where
there is no longer a vacancy for the position or work as agreed in the
employment contract and the employee still wishes to work, the employer shall negotiate
revisions to the employment contract.
Where the
employer fails to comply with the provisions on notice period in Clause 2
Article 36 of this Labor Code, the employer shall pay a compensation that is
worth the employee’s salary for the remaining notice period from the
termination date.
2. In
case the employee does not wish to return to work, in addition to the
compensation prescribed in Clause 1 of this Article, the employer shall pay a
severance allowance in accordance with Article 46 of this Code in order to
terminate the employment contract.
3. Where
the employer does not wish to reinstate the employee and the employee agrees,
in addition to the compensation mentioned in Clause 1 of this Article and the
severance allowance mentioned in Article 46 of this Labor Code, both parties
shall negotiate an additional compensation which shall be at least 2 months’
salary under the employment contract in order to terminate the employment contract.
Article 42. Obligations of the employer in case of changes
in structure, technology or changes due to economic reasons
1.
Changes in structure and technology include:
a)
Changes in the organizational structure, personnel rearrangement;
b)
Changes in processes, technology, equipment associated with the employer’s
business lines;
c)
Changes in products or product structure.
2.
Changes due to economic reasons include:
a)
Economic crisis or economic depression;
b)
Changes in law and state policies upon restructuring of the economy or
implementation of international commitments.
3. If the
change affects the employment of a large number of employees, the employer
shall develop and implement a labor utilization plan prescribed in Article 44
of this Labor Code. In case of new vacancies, priority shall be given to
retraining of the existing employees for continued employment.
4. If a
change due to economic reasons threatens to cause a large number of employees
to lose their jobs, the employer shall develop and implement a labor
utilization plan as prescribed in Article 44 of this Code.
5. In
case the employer is unable to create provide employment and has to resort to
dismissing employees, the employer shall pay them redundancy allowances in
accordance with Article 47 of this Labor Code.
6. The
dismissal of employees in the cases mentioned in this Article shall only be
implemented after a discussion with the representative organization of
employees (if any) and after giving prior notice of 30 days to the People’s
Committee of the province and the employees.
Article 43. Obligations of the employer in case of full
division, partial division, consolidation, merger of the enterprise; sale,
lease, conversion of the enterprise; transfer of the right to ownership or right
to enjoyment of assets of the enterprise or cooperative
1. In
case the full division, partial division, consolidation, merger of the
enterprise; sale, lease, conversion of the enterprise; transfer of the right to
ownership or right to enjoyment of assets of the enterprise or cooperative
affects the employment of a large number of employees, the employer shall
develop a labor utilization plan as prescribed in Article 44 of this Labor
Code.
2. The
current employer and the next employer shall implement the adopted labour
utilization plan.
3. The
laid off employees will receive redundancy allowances in accordance with
Article 47 of this Code.
Article 44. Labor utilization plan
1. A
labor utilization plan shall have the following contents:
a) The
names and number of employees to be retained, employees to be retrained for
further employment, and employees to be working on part-time basis;
b) The
names and number of employees to retire;
c) The
names and number of employees whose employment contracts have to be terminated;
d) Rights
and obligations of the employer, employee and relevant parties regarding
implementation of the labor utilization plan;
dd) The
measure and financial sources to implement the plan.
2. During
development of the labor utilization plan, the employer shall discuss with the
representative organization of employees (if any). The labor utilization plan
shall be made available to the employees within 15 days from the day on which
it is adopted.
Article 45. Noticing termination of employment contracts
1. The
employer shall send a written notice to the employee of the termination of
his/her employment contract, except for the cases specified in Clauses 4, 5, 6,
7, 8 Article 34 of this Labor Code.
2. In
case an employer that is not a natural person shuts down business operation,
the date of termination of the employment contract is the same date of the
notice of business shutdown.
In case
the provincial business registration authority issues a notice that the
employer does not have a legal representative or a person authorized to
exercise the legal representative’s rights and obligations according to Clause
7 Article 34 of this Labor Code, the date of termination of the employment
contract is the same date of the notice.
Article 46. Severance allowance
1. In
case an employment contract is terminated as prescribed in Clauses 1, 2, 3, 4,
6, 7, 9 and 10, Article 34 of this Code, the employer is responsible for paying
severance allowance to the employee who has worked on a regular basis for a
period of at least 12 months. Each year of work will be worth half a month’s
salary, except for the cases in which the employee is entitled to receive
retirement pension as prescribed by social insurance laws, and the cases
specified in Point e Clause 1 Article 36 of this Labor Code.
2. The
qualified period of work as the basis for calculation of severance allowance
shall be the total period during which the employee actually worked for the
employer minus the period over which the employee participated in the
unemployment insurance in accordance with unemployment insurance laws and the
period for which severance allowance or redundancy allowance has been paid by
the employer.
3. The
salary as the basis for calculation of severance allowance shall be the average
salary of the last 06 months under the employment contract before the
termination.
4. The
Government shall elaborate this Article.
Article 47. Redundancy allowance
1. Where
an employment contract is terminated according to Clause 11 Article 34 of this
Labor Code and the employee has worked on a regular basis for the employer for
at least 12 months, the employer shall pay a redundancy allowance to the
employee. Each year of work will be worth 01 month’s salary and the total
redundancy allowance shall not be smaller than 02 month’s salary.
2. The
qualified period of work as the basis for calculation of redundancy allowance
shall be the total period during which the employee actually worked for the
employer minus the period over which the employee participated in the
unemployment insurance in accordance with unemployment insurance laws and the
period for which severance allowance or redundancy allowance has been paid by
the employer.
3. The
salary as the basis for the calculation of redundancy allowance shall be the
average salary of the last 06 months under the employment contract before the
termination.
4. The
Government shall elaborate this Article.
Article 48. Responsibilities of the parties upon
termination of an employment contract
1. Within
14 working days following the termination of an employment contract, both
parties shall settle all payments in respect of the rights and interests of
each party. In the following cases, such period may be extended, but shall not
exceed 30 days:
a)
Shutdown of business operation of the employer that is not a natural person;
b)
Changes in the organizational structure, technology or changes due to economic
reasons;
c) Full
division, partial division, consolidation, merger of the enterprise; sale,
lease, conversion of the enterprise; transfer of the right to ownership or
right to enjoyment of assets of the enterprise or cooperative;
d)
Natural disasters, fire, hostility or major epidemics.
2.
Priority shall be given to payment of the employees’ salaries, social
insurance, health insurance, unemployment insurance, severance allowance and
other benefits under the collective bargaining agreement and employment
contracts in case of shutdown, dissolution or bankruptcy of an enterprise or
cooperative.
3. The
employer has the responsibility to:
a)
Complete the procedures for verification of duration of participation in social
insurance and unemployment insurance, return them and original copies of the
employee’s other documents (if any);
b)
Provide copies of the documents relevant to the employee’s work if requested by
the employee. The employer shall pay the cost of copying and sending the
documents.
Section 4. INVALID EMPLOYMENT CONTRACT
Article 49. Invalid employment contracts
1. An
employment contract shall be completely invalid in the following cases:
a) The
entire contents of the employment contract are illegal;
b) A
person concludes the employment contract ultra vires or against the rules for
employment contract conclusion specified in Clause 1 Article 15 of this Labor
Code;
c) The
work described in the employment contract is prohibited by law;
2. An
employment contract shall be partially invalid when part of its contents is
illegal but does not affect its remaining contents.
Article 50. Competence to invalidate employment contracts
People’s
Courts shall be entitled to invalidate employment contracts.
Article 51. Settlements upon invalidation of an employment
contract
1. Where
an employment contract is declared as partially invalid, it shall be dealt with
as follows:
a) The
rights, obligations and benefits of the parties shall be settled in accordance
with the collective bargaining agreement (or provisions of the law if there is
no collective bargaining agreement);
b) The
parties shall revise the invalidated part of the employment contract in
accordance with the collective bargaining agreement or labor laws.
2. In
case an employment contract is completely invalidated, the rights, obligations
and interests of the employee shall be settled in accordance with law. In case
an employment contract is concluded ultra vires, another contract shall be
concluded.
3. The
Government shall elaborate this Article.
Section 5. LABOR OUTSOURCING
Article 52. Labor outsourcing
1. Labor
outsourcing is an arrangement in which a worker enters into an employment
contract with an outsourcing enterprise, which subsequently dispatches the
worker to work for another employer (client enterprise) while maintaining labor
relations with the outsourcing enterprise with which the employment contract is
concluded.
2. Labor
outsourcing is a conditional business, requires the labor outsourcing license
and applies only to certain types of work.
Article 53. Labor outsourcing rules
1. The
maximum duration of labor outsourcing is 12 months.
2. The
client enterprise may employ an outsourced worker in the following cases:
a) The
employment is necessary for the sharp increase in labor demand over a limited
period of time;
b) The
outsourced worker is meant to replace another employee who is taking maternal
leave, has an occupational accident or occupational disease or has to fulfill
his/her citizen’s duties;
c) The
work requires highly skilled workers.
3. The
client enterprise may not employ an outsourced worker in the following cases:
a) The
outsourced worker is meant to replace another employee during a strike or
settlement of labor disputes;
b) There
is no agreement with the outsourcing enterprise on responsibility for
compensation for the outsourced worker’s occupational accidents and
occupational diseases;
c) The
outsourced worker is meant to replace another employee who is dismissed due to
changes in organizational structure, technology, economic reasons, full
division, partial division, consolidation or merger of the enterprise.
4. The
client enterprise must not dispatch an outsourced worker to another employer;
must not employ an employee dispatched by an enterprise that does not have the
labor outsourcing license.
Article 54. Outsourcing enterprises
1. An
outsourcing enterprise shall pay a deposit and obtain labor outsourcing
license.
2. The
Government shall provide for the issuance of labor outsourcing licenses, making
deposit, the types of work that allow dispatched labor.
Article 55. Labor outsourcing contracts
1. The
outsourcing enterprise and the client enterprise shall conclude a written labor
outsourcing contract, which is made into 02 copies, each of which shall be kept
by a party.
2. A
labor outsourcing contract shall have the following major contents:
a) The
work location, the vacancy which will be filled by the outsourced worker,
detailed description of the work, and detailed requirements for the outsourced
worker;
b) The
labor outsourcing duration; the starting date of the dispatch period;
c)
Working hours, rest periods, occupational safety and health at the workplace;
d)
Responsibility for compensation in case of occupational accidents and
occupational diseases;
dd)
Obligations of each party to the outsourced worker.
3. The
labor outsourcing contract shall not include any agreement on the rights and
benefits of employee which are less favorable than those stipulated in the
concluded employment contract between the employee and the outsourcing
enterprise.
Article 56. Rights and obligations of the outsourcing
enterprise
Apart
from the rights and obligations specified in Article 6 of this Labor Code, the
outsourcing enterprise also has the following rights and obligations:
1.
Provide an outsourced worker who meets the requirements of the client
enterprise and the employment contract signed with the employee;
2. Inform
the outsourced worker of the contents of the labor outsourcing contract;
3.
Provide the client enterprise with the curriculum vitae of the outsourced
worker, and his/her requirements.
4. Pay
the outsourced worker a salary that is not lower than that of a directly hired
employee of the client enterprise who has equal qualifications and performs the
same or equal work;
5. Keep
records of the number of outsourced workers, the client enterprise, submit
periodic reports to the provincial labor authority.
6. Take
disciplinary measures against the outsourced worker in cases where the client
enterprise returns the employee for violations against labor regulations.
Article 57. Rights and obligations of the client enterprise
1. Inform
and guide the outsourced worker to understand its internal labor regulations
and other regulations.
2. Do not
discriminate between the outsourced worker and its directly hired employees in
respect of the working conditions.
3. Reach
an agreement with the outsourced worker on night work and overtime work in
accordance with this Labor Code.
4. The
client enterprise may negotiate with the outsourced worker and the dispatch
enterprise on official employment of the outsourced worker while the employment
contract between the dispatch employee and the dispatch enterprise is still
unexpired.
5. Return
the outsourced worker who does not meet the agreed conditions or violates the
work regulations to the dispatch enterprise.
6.
Provide evidence of violations against work regulations by the outsourced
worker to the outsourcing enterprise for disciplinary measures.
Article 58. Rights and obligations of the outsourced worker
Apart
from the rights and obligations specified in Article 5 of this Labor Code, the
outsourced worker also has the following rights and obligations:
1.
Perform the work in accordance with the employment contract with the
outsourcing enterprise;
2. Obey
internal labor regulations, lawful management, administration and supervision
by the client enterprise;
3.
Receive a salary which is not lower than that of a directly hired employee of
the client enterprise who has equal qualifications and performs the same or
equal work;
4. File a
complaint with the dispatch enterprise in case the client enterprise violates
agreements in the labor outsourcing contract.
5.
Negotiate termination of the employment contract with the outsourcing
enterprise in order to conclude an employment contract with the client
enterprise.
Chapter IV
OCCUPATIONAL TRAINING
Article 59. Basic and advanced occupational training
1.
Workers are entitled to have vocational training; participate in national
assessment and recognition of occupational skills, develop occupational skills
that are suitable for their desires and abilities.
2. The
State encourages eligible employers to provide basic and advanced occupational
training for their employees and other employees by:
a) Establishing
occupational training centers or classes at the workplace in order to train,
retrain and develop occupational skills of the employees; cooperating with
vocational education institutions in providing occupational training at basic,
intermediate and college level, and other occupational training programs as per
regulations;
b)
Carrying out vocational assessments; participating in the occupational training
council; forecasting labor demand and develop the occupational standards;
organizing the assessment and recognition of occupational skills; developing
professional capacity of employees.
Article 60. Responsibilities of employers for provision of
basic and advanced occupational training and occupational skill development
1.
Employers shall develop annual basic and advanced occupation training and
occupational skill development plans for their employees and allocate budget
for implementation thereof; provide training for employees before reassigning
them.
2.
Employers shall submit annual reports on results of the basic and advanced
occupational training and occupational skill development they provide to the
provincial labor authority.
Article 61. Trainees and apprentices
1.
Trainees are employees who are recruited and trained by the employer at the
work place in order to work for the employer. The traineeship duration varies
according to the level of training as prescribed by the Law on Vocational
education.
2.
Apprentices are employees who are recruited and instructed to practice doing
their work by the employer in order to work for the employer. The maximum
duration of apprenticeship is 03 months.
3. An
employer who recruits trainees or apprentices in order to employ them is not
required to register such training activity, shall not charge fees for such training,
and shall sign traineeship or apprenticeship contracts in accordance with the
Law on Vocational education.
4. Every
trainee and apprentice shall be at least 14 years of age and healthy enough for
the traineeship or apprenticeship. Trainees and apprentices of the occupations
on the list of laborious, toxic and dangerous occupations or the list of highly
laborious, toxic and dangerous occupations promulgated by the Minister of
Labor, War Invalids and Social Affairs shall be at least 18 years of age,
except for arts and sports.
5. During
the traineeship or apprenticeship period, if an apprentice or trainee directly
performs or participates in performance of the work, he/she shall be paid a
salary at a rate agreed by both parties.
6. Upon
the expiry of the apprenticeship or traineeship period, both parties must enter
into an employment contract if the conditions stipulated in this Labor Code are
satisfied.
Article 62. Occupational training contract between an
employer and an employee, and occupational training costs
1. Both
parties must enter into an occupational training contract in case the employee
is provided with advanced training or retraining at home or abroad funded by
the employer or sponsorship from the employer’s partner.
The
occupational training contract shall be made into 02 copies, each of which
shall be kept by a party.
2. A
vocational training contract shall have the following major contents:
a) The
occupation in which training is provided;
b)
Location, time of training and salary for the training period;
c) The
work commitment period after training;
d) The
training costs and responsibility for reimbursement thereof;
dd)
Responsibilities of the employer;
e)
Responsibilities of the employee.
3.
Training costs include those specified in valid documents on payments for
trainers, training materials, training locations, equipment, practice
materials, other supportive expenses for the learner, the salary, social
insurance, health insurance and unemployment insurance premiums paid for the
learner during the training period. In case the employee receives the
training overseas, the training costs also include the travelling and living
expenses during the training period.
Chapter V
DIALOGUE AT WORKPLACE, COLLECTIVE
BARGAINING, COLLECTIVE BARGAINING AGREEMENTS
Section 1. DIALOGUE AT WORKPLACE
Article 63. Organization of dialogue at the workplace
1.
Dialogue at the workplace means the sharing of information, discussion between
the employer and employees or representative organization of employees
regarding the issues relevant to the rights and interests of the parties at the
work place in order to strengthen the understanding, cooperation and work out
mutually beneficial solutions.
2.
Dialogue at the workplace shall be held by the employer:
a) at
least once a year;
b)
whenever requested by one or both party;
c) in any
of the events specified in Point a Clause 1 Article 36, Articles 42, 44, 93,
104, 118 and Clause 1 Article 128 of this Labor Code.
3.
Employers, employees and representative organizations of employees are
encouraged to hold dialogues in occasions other than those specified in Clause
2 of this Article.
4. The
Government shall provide for organization of dialogue and implementation of
democracy regulations at the workplace.
Article 64. Contents of dialogue at the workplace
1.
Mandatory contents are specified in Point c Clause 2 Article 63 of this Labor
Code.
2. Apart
from the mandatory contents mentioned in Clause 1 of this Article, the parties
may include one or some of the following issues in the dialogue:
a)
Business performance of the employer;
b)
Performance of the employment contracts, collective bargaining agreement,
internal labor regulations, other commitments and agreements at the workplace;
c)
Working conditions;
d)
Requests of employees and representative organization of employees to the
employer;
dd)
Requests of employer to the employees and the representative organization of
employees;
e) Other
issues of concern to either or both parties.
Section 2. COLLECTIVE BARGAINING
Article 65. Collective bargaining
Collective
bargaining is a process of negotiation between a party that consists of one or
several representative organization of employees and another party that
consists of one or several employers or employer representative in order to
regulate working conditions, relationship between the parties and develop
progressive, harmonious and stable labor relations.
Article 66. Principles of collective bargaining
Collective
bargaining shall be carried out on the principles of voluntariness, good faith,
equality, cooperativeness, openness to the public and transparency.
Article 67. Issues for collective bargaining
The
parties may include one or some of the following issues in the collective
bargaining:
1.
Salary, bonus, allowances, pay rise, means and other benefits;
2. Labor
rates, working hours, rest periods, overtime work, rest breaks at work;
3.
Employment security for the workers;
4.
Occupational safety and health; implementation of the internal labor
regulations;
5.
Conditions and equipment of the representative organization of employees; the
relationship between the employer and the representative organization of
employees;
6.
Mechanism and methods for prevention and settlement of labor disputes;
7.
Assurance of gender equality, maternity protection, annual leaves; actions
against violence and sexual harassment in the workplace;
8. Other
issues of concern to either or both parties.
Article 68. The right to request collective bargaining of
the internal representative organization of employees
1. The
representative organization of employees has the right to request collective
bargaining whenever it reaches the minimum number of members as prescribed by
the Government.
2. In
case an enterprise has more than one internal representative organization of
employees that satisfies the requirements in Clause 1 of this Article, the one
that has the most members will have the right to request the collective
bargaining. Other representative organizations of employees may participate in
the collective bargaining if agreed by the requesting organization.
3. If
none of the employees‘ representative organizations of an enterprise satisfies
the requirements in Clause 1 of this Article, they may request collective
bargaining if their total number of members reaches the minimum number
specified in Clause 1 of this Article.
4. The
Government shall provide for settlement of disputes among the parties over the
right to request collective bargaining.
Article 69. Representatives of the parties to the
collective bargaining
1. The
number of representatives of each party participating in the collective
bargaining shall be agreed by the two parties.
2. The
participants of each party in the collective bargaining shall be decided by the
party.
In case
more than one representative organization of employees participate in the
collective bargaining as prescribed in Clause 2 Article 68 of this Labor Code,
they may negotiate the number of representatives of each organization.
In the
case specified in Clause 3 Article 68 of this Labor Code, the number of
representatives of each organization shall be negotiated by the organizations.
If an agreement cannot be reached, each organization shall decide the number of
its representative based on the ratio of its members to the total number of
members.
3. Each
party to the collective bargaining may invite representatives from its superior
organization and this has to be accepted by the other parties. The
representatives of each party to the collective bargaining must not exceed the
agreed quantity mentioned in Clause 1 of this Article, unless otherwise agreed
by the other parties.
Article 70. Collective bargaining procedures
1.
Whenever collective bargaining is requested by a representative organization of
employees in accordance with Article 68 of this Labor Code, the requested party
must not refuse to hold the collective bargaining.
Within 07
working days from the day on which the request and the agenda are received, the
parties shall agree upon the location and starting time for the bargaining.
The
employer shall prepare time, location and other conditions for holding
collective bargaining meetings.
The
collective bargaining must be held within 30 days from the day on which the
request is received.
2. The
duration of a collective bargaining must not exceed 90 days from its starting
day, unless otherwise agreed by the parties.
The
employees’ representatives shall be fully paid for the time spent participating
in the collective bargaining meetings. The time a member of the representative
organization of employees spends participating in the collective bargaining
meetings shall not be included in the time specified in Clause 2 Article 176 of
this Labor Code.
3. During
the course of collective bargaining, if the employee’s party requests the
employer’s party to provide information on the business performance and other
information relevant to the collective bargaining issues, with the exception of
business secrets, technological know-how of the employer, such information must
be provided within 10 days from the day on which such request is received.
4. Other
representative organizations of employees may discuss with the employees about
the contents, methods and results of the collective bargaining.
The
representative organization of employees may decide the time, location and
method of discussion or survey as long as it does not affect the enterprise’s
normal business operation.
The
employer must not obstruct or interfere with the discussion or survey held by
the representative organization of employees.
5.
Minutes of the bargaining meeting must be taken and it must specify the issues which
have been agreed upon by the parties and issues that remain controversial. The
minutes shall bear the signatures of the parties and the record maker. The
representative organization of employees shall make the minutes of the
collective bargaining available to all employees.
Article 71. Failed collective bargaining
1. A
collective bargaining is considered failed in any of the following
circumstances:
a) A
party refuses to participate in the collective bargaining or the collective
bargaining is not held within the time limit specified in Clause 1 Article 70
of this Labor Code;
b) An
agreement cannot be reached within the time limit specified in Clause 2 Article
70 of this Labor Code;
c) The
parties declare that the collective bargaining has failed before expiration of
the time limit specified in Clause 2 Article 70 of this Labor Code.
2. In
case the bargaining fails, the parties may initiate labor dispute settlement
procedures as prescribed in this Labor Code. During the labor dispute
settlement, the representative organization of employees must not call a
strike.
Article 72. Sectoral collective bargaining,
multi-enterprise collective bargaining
1. The
principles and contents of sectoral collective bargaining and multi-enterprise
collective bargaining shall comply with Article 66 and Article 67 of this Labor
Code.
2. The
procedures for holding sectoral collective bargaining and multi-enterprise
collective bargaining shall be negotiated by the parties, including collective
bargaining via a collective bargaining council specified in Article 73 of this
Labor Code.
3. In
case of a sectoral collective bargaining, the representatives shall be the
sectoral trade union and sectoral employer representative organizations.
In case
of a multi-enterprise collective bargaining, the representatives shall be
decided by the parties.
Article 73. Multi-enterprise collective bargaining via a
collective bargaining council
1. By
consensus, the parties to a multi-enterprise collective bargaining may request
the People’s Committee of the province where they are headquartered (or a
province they choose if they are headquartered in different provinces) to
establish a collective bargaining council.
2. Upon
receipt of the said request, the People’s Committee of the province shall issue
a decision to establish a collective bargaining council. A collective
bargaining council consists of:
a) A
chairperson who is chosen by the parties and has the responsibility to operate
the council and assist in the process of collective bargaining.
b) Representatives
appointed by each party. The number of representatives of each party who
participate in the council shall be agreed upon by the parties;
c)
Representatives of the People’s Committee of the province.
3. The
collective bargaining council shall hold the collective bargaining at the
request of the parties and shall be dismissed when a multi-enterprise
collective bargaining agreement is concluded or when the dismissal is agreed
upon by the parties.
4. The
Minister of Labor, War Invalids and Social Affairs shall provide for the
functions, duties and operation of collective bargaining councils.
Article 74. Responsibilities of the People’s Committees of
provinces in collective bargaining
1.
Provide training in collective bargaining skills for the parties to the
collective bargaining.
2.
Provide information and data about the economy, society, labor market and labor
relation in order to facilitate the process of collective bargaining.
3. Assist
the parties in reaching an agreement during the collective bargaining on its
own initiative or when requested by the parties. If no request is made by the
parties, the assistance shall only be provided if it is accepted by the
parties.
4.
Establish a collective bargaining council when requested by parties to the
multi-enterprise collective bargaining in accordance with Article 73 of this
Labor Code.
Section 3. COLLECTIVE BARGAINING AGREEMENTS
Article 75. Collective bargaining agreements
1. A
collective bargaining agreement means an agreement that is reached through a
collective bargaining and concluded in writing by the parties.
Collective
bargaining agreements include enterprise-level collective bargaining
agreements, sectoral collective bargaining agreements, multi-enterprise
collective bargaining agreements and other types of collective bargaining
agreements.
2. The
contents of a collective bargaining agreement must be contrary to the law, and
should provide for the terms and conditions that are more favorable to the
employees than those provided by law.
Article 76. Survey and conclusion of collective bargaining
agreements
1. Before
an enterprise-level collective bargaining agreement is concluded, its draft
must be made available for comment by all employees of the enterprise. An
enterprise-level collective bargaining agreement shall only be concluded if it
is voted for by more than 50% of the enterprise’s employees.
2. A
sectoral collective bargaining agreement shall be available for comment by all members
of the management boards of the representative organizations of employees of
the enterprises participating in the bargaining. A sectoral collective
bargaining agreement shall only be concluded if it is voted for by more than
50% of the voters.
A multi-enterprise
collective bargaining agreement shall be available for comment by all employees
of the enterprises participating in the bargaining or members of management
boards of the representative organizations of employees thereof. Only an
enterprise more than 50% of employees of which vote for the multi-enterprise
collective bargaining agreement may participate in its conclusion.
3. The
time and location for casting votes on a draft collective bargaining agreement
shall be decided by the representative organization of employees as long as it
does not affect the participating enterprises’ normal business operation. The
employers must not obstruct or interfere with process of voting on the draft
agreement by the representative organizations of employees.
4. A
collective bargaining agreement shall be concluded by legal representatives of
the parties.
In case a
multi-enterprise collective bargaining agreement is negotiated via a collective
bargaining council, it shall be concluded by the chairperson of the council and
legal representatives of the parties.
5. A copy
of the collective bargaining agreement shall be sent to every party and the
provincial labor authority in accordance with Article 77 of this Labor Code.
In case
of a sectoral or multi-enterprise collective bargaining agreement, each
employer and representative organization of employees of the participating
enterprises shall receive 01 copy.
6. After
a collective bargaining agreement is concluded, the employer must make publicly
available to their employees.
7. The
Government shall elaborate this Article.
Article 77. Sending the collective bargaining agreement
Within 10
days from the day on which a collective bargaining agreement is concluded, the
employer shall send 01 copy to the provincial labor authority in the same
province where the enterprise is headquartered.
Article 78. Effective date and effective period of
collective bargaining agreements
1. The
effective date of a collective bargaining agreement shall be agreed upon by the
parties and specified in the agreement itself. In case the parties do not agree
upon an effective date, the collective bargaining agreement shall be effective
on its conclusion date.
An
effective collective bargaining agreement shall be upheld by the parties.
2. An
enterprise-level effective collective bargaining agreement shall be binding on
the employer and all employees of the enterprise. An effective sectoral or
multi-level collective bargaining agreement shall be binding on all employers
and employees of the participating enterprises.
3. The
effective period of a collective bargaining agreement shall 01 – 03 years. The
specific effective period shall be agreed upon by the parties and specified in
the collective bargaining agreement. The parties may agree upon various effective
periods for different parts of a collective bargaining agreement.
Article 79. Implementation of enterprise-level collective
bargaining agreements
1. The
employer and the employees, including new employees who are employed after the
collective bargaining agreement has come into effect, shall be responsible for
the full implementation of the effective collective bargaining agreement.
2. Where
the rights, responsibilities and interests of the parties stipulated in the
employment contract which were concluded before the effective date of the
collective bargaining agreement are less favorable than those of respective
provisions provided in the collective bargaining agreement, the provisions of the
collective bargaining agreement shall prevail. Internal labor regulations of
the employer which are not conformable with the collective bargaining agreement
shall be revised accordingly. Provisions of the collective bargaining agreement
shall apply until such revisions are made.
3. Where
a party considers that the other party does not perform fully or violates the
provisions of the collective bargaining agreement, the former has the right to
request the latter to fully comply with the agreement, and both parties must
jointly settle the issue. In case of failure to settle the issue, either party
has the right to request settlement of the collective labor dispute in
accordance with the law.
Article 80. Implementation of an enterprise-level
collective bargaining agreement upon full division, partial division,
consolidation, merger of the enterprise; sale, lease, conversion of the
enterprise; transfer of the right to ownership or right to enjoyment of assets
of the enterprise
1. Upon
full division, partial division, consolidation, merger of the enterprise; sale,
lease, conversion of the enterprise; transfer of the right to ownership or
right to enjoyment of assets of an enterprise, the succeeding employer and
representative organization of employees mentioned in Article 68 of this Labor
Code shall consider revising the existing enterprise-level collective
bargaining agreement or concluding a new one, In consideration of the labor
utilization plan.
2. In
case a collective bargaining agreement expires because the employer ceases its
operation, the rights and interests of the employees shall be settled in
accordance with the law.
Article 81. Relationship between enterprise-level
collective bargaining agreements, sectoral collective bargaining agreements and
multi-enterprise collective bargaining agreements
1. In
case an enterprise-level collective bargaining agreement, multi-enterprise
collective bargaining agreement and sectoral collective bargaining agreement
provide for employees’ rights, obligations and interests differently, the most
favorable provisions shall apply.
2. An
enterprise which is subject to the governance of a sectoral collective
bargaining agreement or multi-enterprise collective bargaining agreement but
have not established enterprise-level collective bargaining agreements may
establish an enterprise-level collective bargaining agreement with more
favorable terms and conditions for employees than those stipulated in the
sectoral collective bargaining agreement or multi-enterprise collective bargaining
agreement.
3.
Enterprises that have not participated in any sectoral collective bargaining
agreement or multi-enterprise collective bargaining agreement are encouraged to
adopt more favorable provisions of a sectoral collective bargaining agreement
or multi-enterprise collective bargaining agreement.
Article 82. Revisions of collective bargaining agreements
1. A
collective bargaining agreement may only be amended by the parties through
collective bargaining on a voluntary basis.
The
process of revising a collective bargaining agreement shall be the same as that
of the negotiation and conclusion of a collective bargaining agreement.
2. In
case a change in law results in the collective bargaining agreement being
unsuitable with the new law, the parties must revise the collective bargaining
agreement accordingly within 15 days from the date on which the new legal
provisions come into effect. During the process of revising the collective
bargaining agreement, the rights and interests of the employees will be ensured
in accordance with the law.
Article 83. Expiry of collective bargaining agreements
Within 90
days prior to the expiry date of a collective bargaining agreement, the parties
may negotiate extension of the collective bargaining agreement or conclusion of
a new collective bargaining agreement. In case the parties agree on an
extension, a survey shall be carried out in accordance with Article 76 of this
Labor Code.
Where the
collective bargaining agreement expires while the negotiation process is still
on-going, it shall continue to be effective for a maximum duration of 90 days
from the expiry date, unless otherwise agreed by the parties.
Article 84. Extension of scope of sectoral collective
bargaining agreements or multi-enterprise collective bargaining agreements
1. When a
sectoral collective bargaining agreement or multi-enterprise collective
bargaining agreement applies to more than 75% of employees or more than 75% of
enterprises in the same field or sector in an industrial park, economic zone,
export-processing zone or hi-tech zone, the employers or representative
organizations of employees therein shall request a competent authority to issue
a decision to extend the scope of part or all of the collective bargaining
agreement to other enterprises in the same field or sector in that industrial
park, economic zone, export-processing zone or hi-tech zone.
2. The
Government shall elaborate Clause 1 of this Article; the procedures and
competence to decide the scope of collective bargaining agreements mentioned in
Clause 1 of this Article.
Article 85. Joining and withdrawing from a sectoral
collective bargaining agreements or multi-enterprise collective bargaining
agreement
1. An
enterprise may join a sectoral or multi-level collective bargaining agreement when
it is agreed by all employers and representative organizations of employees of
the participating enterprises, except for the cases specified in Clause 1
Article 84 of this Labor Code.
2. An
enterprise that is a member of a sectoral or multi-level collective bargaining
agreement may withdraw from it when the withdrawal is agreed by all employers
and representative organizations of employees of the participating enterprises,
unless it is facing business difficulties.
3. The
Government shall elaborate this Article.
Article 86. Invalid collective bargaining agreements
1. A
collective bargaining agreement shall be partially invalid if one or some of
its contents are contrary to the law.
2. A
collective bargaining agreement shall be entirely invalid in any of the
following circumstances:
a) The
entire contents of the collective bargaining agreement are illegal;
b) The
collective bargaining agreement was concluded by a person without due
competence;
c) The
procedures for negotiation and conclusion of the collective bargaining
agreement were not followed.
Article 87. Competence to declare a collective bargaining
agreement invalid
People’s
Courts shall be entitled to declare a collective bargaining agreement as
invalid.
Article 88. Handling of invalid collective bargaining
agreements
When a
collective bargaining agreement is declared invalid, the rights, obligations
and interests of parties specified in the invalid parts shall be handled in
accordance with the provisions of the law and other lawful agreements as
provided in the employment contract.
Article 89. Costs for negotiation and conclusion of
collective bargaining agreements
The costs
of negotiation, conclusion revision, sending an announcement of the collective
bargaining agreement shall be paid by the employer.
Chapter VI
SALARIES
Article 90. Salaries
1. A
salary is an amount the employer pays the employee under an agreement for a
work performed by the latter. Salary equals (=) base salary plus (+) allowances
and other additional amounts.
2. The
base salary must not fall below the statutory minimum wages.
3.
Employers shall pay salaries fairly without discrimination against genders of
employees who perform equal works.
Article 91. Statutory minimum wages
1.
Statutory minimum wages are minimum wages of workers who do the simplest jobs
in normal working conditions that are sufficient to support themselves and
their families, and appropriate for socio-economic development.
2.
Statutory minimum wages per month or per hour vary according to regions.
3. Statutory
minimum wages shall be adjusted according to minimum living standards of
workers and their families; the relation between statutory minimum wages and
usual salaries; consumer price index, economy growth rate; labor supply and
demand, productivity and financial capacity of enterprises.
4. The
Government shall elaborate this Article; decide and announce the statutory
minimum wages on the basis of proposals of National Salary Council.
Article 92. National Salary Council
1.
National Salary Council is an agency that provides counseling for the
Government regarding statutory minimum wages and salary-related issues.
2. The
Prime Minister shall establish the National Salary Council, whose members are
representatives of the Ministry of Labor, War Invalids and Social Affairs, Vietnam General Confederation of Labor, some central employer representative organizations
and independent experts.
3. The
Government shall provide for functions, tasks and organizational structure of
National Salary Council.
Article 93. Establishment of pay scales, payrolls and labor
productivity norms
1. Every
employer shall establish their worn pay scale, payroll and labor productivity
norms as the basis for recruitment and use of labor, negotiation and payment of
salaries.
2. The
labor rate shall be an average value that is achievable to most employees
without having to extend their normal working hours, and must be experimented
before officially introduced.
3. The
employer shall consult with the representative organization of employees (if
any) during establishment of the pay scale, payroll and labor productivity
norms.
The pay
scale, payroll and labor productivity norms shall be publicly posted at the
workplace before they are implemented.
Article 94. Salary payment rules
1.
Employers shall directly, fully and punctually pay salaries to their employees.
In the cases where an employee is not able to directly receive his/her salary,
the employer may pay it through a person legally authorized by the employee.
2.
Employers must not restrict or interfere their employees’ spending of their
salaries; must not force their employees to spend their salaries on goods or
services of the employers or any particular providers decided by the employers.
Article 95. Salary payment
1. The employer
shall pay the employee on the basis of the agreed salary, productivity and work
quality.
2. The
salary written in the employment contract and the salary paid in reality shall
be VND, unless the employee is a foreigner working in Vietnam.
3. Every
time salary is paid, the employer shall provide the employee with a note
specifying the salary, overtime pay, nightshift pay and deductions (if any).
Article 96. Salary payment forms
1. The
employer and employee shall reach an agreement on whether the salary is
time-based, product-based (piece rate) or a fixed amount.
2. Salary
shall be paid in cash or transferred to the employee’s personal bank account.
In case
of bank transfer, the employer shall pay the costs of account opening and
transfer.
3. The
Government shall elaborate this Article.
Article 97. Salary payment time
1. An
employer who receives an hourly, daily or weekly salary shall be paid after
every working hour, day or week respectively, or shall receive a sum within not
more than 15 days as agreed by both parties.
2. An
employee who receives a monthly or bi-weekly salary shall be paid after every
month or every two weeks respectively. The payment time shall be periodic and
agreed upon by both parties.
3. An
employee who receives a piece rate or a fixed amount shall be paid as agreed by
both parties. In case a task cannot be completed within one month, the employee
shall receive a monthly advance payment based on the amount of work done in the
month.
4. In
case of a force majeure event in which the employer is unable to pay the
employee on schedule after all remedial measures have been implemented, the
salary shall be paid within 30 days. In case a salary is paid at least 15 days
behind schedule, the employer shall pay the employee a compensation that is
worth at least the interest on the amount paid behind schedule at the latest
1-month interest rate quoted by the bank at which the employee’s salary account
is opened.
Article 98. Overtime pay, night work pay
1. An
employee who works overtime will be paid an amount based on the piece rate or
actual salary as follows:
a) On
normal days: at least 150%;
b) On
weekly days off: at least 200%;
c) During
public holidays, paid leave, at least 300%, not including the daily salary
during the public holidays or paid leave for employees receiving daily
salaries.
2. An
employee who works at night will be paid an additional amount of at least 30%
of the normal salary.
3. An
employee who works overtime at night will be paid, in addition to the salary
specified in Clause 1 and Clause 2 of this Article, an amount of at least 20%
of the day work salary of a normal day, weekend or public holiday.
4. The
Government shall elaborate this Article.
Article 99. Suspension pay
In case
of a suspension of work, the employee shall receive a suspension pay as
follows:
1. If the
suspension is at the employer’s fault, the employee shall be paid the full
salary under the employment contract;
2. If the
suspension is at the employee’s fault, the employee shall not receive the
salary. If this leads to suspension of work of other employees in the same
unit, they shall be paid an amount not smaller than the statutory minimum
wages;
3. In
case the suspension is caused by an electricity or water supply issue that is
not at the employer’s fault, or by a natural disaster, fire, major epidemic,
hostility, relocation requested by a competent authority, or for economic
reasons, both parties shall negotiate the salary as follows:
a) If the
suspension does not exceed 14 working days, the salary shall not fall below the
statutory minimum wages;
b) If the
suspension is longer than 14 working days, the salary shall be negotiated by
both parties and the salary for the first 14 days must not fall below the
statutory minimum wages.
Article 100. Salary payment through the contractor’s
foreman
1. Where
a contractor’s foreman or equivalent intermediary is employed, the employer who
is the principal owner must maintain a list of the names and addresses of such
persons accompanied by a list of their employees, and must ensure that their
activities comply with the law on salary payment and occupational safety and
health.
2. In
case the contractor’s foreman or equivalent intermediary fails to pay or pays
insufficient wages to the employees and does not ensure other rights and
interests of the employees, the employer who is the principal owner shall be
responsible for salary payment and for ensuring the rights and interests of the
employees.
In this
case, the employer who is the principal owner has the rights to request
compensation from the contractor’s foreman or equivalent intermediary, or to
request the competent authority to resolve the dispute in accordance with the
provisions of the law.
Article 101. Salary advances
1. An
employee may receive an interest-free salary advance in accordance with
conditions agreed on by the two parties.
2. The
employer must make the advance payment to the employee for the number of days
the employee temporarily leaves his/her work in order to perform duties of
citizens for a period of 01 week or longer, but the advance shall not exceed 01
month’s salary. The employee must reimburse the advance.
An
employee who is conscripted in accordance with the Law on Conscription may not
receive salary advance.
3. When
taking annual leave, an employee shall receive an advance payment of at least
salary for the entitled days of leave.
Article 102. Salary deductions
1. An
employer shall have the right to deduct from an employee’s salary only for the
compensation for the damage to the employer’s equipment and assets in
accordance with Article 129 of this Labor Code.
2. The
employee has the right to be aware of the reasons for the deduction.
3. Any
monthly deduction shall not exceed 30% of the net monthly salary of the
employee, after the payment of compulsory social insurance, health insurance,
unemployment insurance premiums and personal income tax.
Article 103. Pay rise
Pay rises
including increases in salary, pay grades, allowance, benefits and other types
of incentives for an employee shall be agreed on in the employment contract or
the collective bargaining agreement, or stipulated in the regulations of the
employer.
Article 104. Bonuses
1. A
bonus means an amount of money, a piece of property or item that is provided by
an employer for his/her employees on the basis of the business performance or
the employees’ performance.
2. A
bonus regulation shall be decided and publicly announced at the workplace by the
employer after consultation with the representative organization of employees
(if any).
Chapter VII
WORKING HOURS, REST PERIODS
Section 1. WORKING HOURS
Article 105. Normal working hours
1. Normal
working hours shall not exceed 08 hours per day or 48 hours per week.
2. An
employer has the right to determine the daily or weekly working hours and
inform the employees accordingly. The daily working hours shall not exceed 10
hours per day and not exceed 48 hours per week where a weekly basis is applied.
The State
encourages employers to apply 40-hour workweeks.
3.
Employers shall limit the time of exposure to harmful elements in accordance
with relevant National Technical Regulations and laws.
Article 106. Working hours at night
Working
hours at night is the period from 22 pm to 06 am.
Article 107. Overtime work
1.
Overtime work is the duration of work performed at any other time than during
normal working hours, as indicated in the law, collective bargaining agreement
or internal labor regulations of an employer.
2. An
employer has the right to request an employee to work overtime when all of the
following conditions are met:
a) The
employee agrees to work overtime;
b) The
number of overtime working hours of the employee does not exceed 50% of the
normal working hours in 01 day; in case of weekly work, the total normal
working hours plus overtime working hours shall not exceed 12 hours in 01 day,
and 40 hours in 01 month;
c) The
total overtime working hours do not exceed 200 hours in 01 year, except for the
cases specified in Clause 3 of this Article.
3. An
employer must not request an employee to work overtime exceeding 300 hours in
01 year in the following fields, works, jobs and cases:
a)
Manufacture, processing of textile, garment, footwear, electric, electronic
products, processing of agricultural, forestry, aquaculture products, salt
production;
b)
Generation and supply of electricity, telecommunications, refinery operation;
water supply and drainage;
c) Works
that require highly skilled workers that are not available on the labor market
at the time;
d) Urgent
works that cannot be delayed due to seasonal reasons or availability of
materials or products, or due to unexpected causes, bad weather, natural disasters,
fire, hostility, shortage of power or raw materials, or technical issue of the
production line;
dd) Other
cases prescribed by the Government.
4. When
organizing overtime work as prescribed in Clause 3 of this Article, the
employer shall send a written notification to the provincial labor authority.
5. The
Government shall elaborate this Article.
Article 108. Overtime working in special cases
In the
following cases, an employer has the right to request any employee to work
overtime on any day without limits on the overtime hours as prescribed in
Article 107 of this Labor Code and the employee must not decline:
1.
Execution of a conscription order for the purpose of national security or
national defense as prescribed by law;
2.
Performance of tasks necessary to protect human life or property of certain
organizations or individuals in the prevention and recovery of natural
disasters, fires, epidemics and disasters, unless those tasks threaten the
employees’ health or life as prescribed by occupational safety and health laws.
Section 2. REST PERIODS
Article 109. Rest breaks during working hours
1. An
employee who works for at least 06 hours per day under Article 105 of this Code
shall be given a rest break of at least 30 consecutive minutes. In case of
night work, the rest break shall be at least 45 consecutive minutes.
If a
shift lasts at least 06 consecutive hours, the rest break will be included in
the working hour.
2. In
addition to the rest break prescribed in Clause 1 of this Article, the employer
shall determine other short breaks and specify that in the internal labor
regulations.
Article 110. Breaks between shifts
An
employee who performs shift work is entitled to a break of at least 12 hours
before beginning another shift.
Article 111. Weekly breaks
1. Each
week an employee is entitled to a break of at least 24 consecutive hours.
Where it is impossible for the employee to have a weekly day off due to
the work cycle, the employer has the responsibility to ensure that on average
the employee has at least 04 days off per month.
2. The
employer has the right to determine and schedule the weekly breaks either on
Sunday or for another fixed day in a week, which must be recorded in the
internal labor regulations.
3. In
case a public holiday falls on an employee’s weekly break coincide with a
public holiday as prescribed in Clause 1 Article 112 of this Labor Code, he/she
will have compensatory time-off on the next working days.
Article 112. Public holidays
1.
Employees shall be entitled to fully paid days off on the following public
holidays:
a)
Gregorian Calendar New Year Holiday: 01 day (the 1st of January of
the Gregorian calendar);
b) Lunar
New Year Holidays: 05 days;
c)
Victory Day: 01 day (the 30th of April of the Gregorian calendar);
d)
International Labor Day: 01 day (the 1st of May of the Gregorian
calendar);
dd)
National Day: 02 days (the 2nd of September of the Gregorian
calendar and the previous or next day);
e) Hung
Kings Commemoration Day: 01 day (the 10th of the third month of the
Lunar calendar).
2.
Foreign employees in Vietnam are entitled to 01 traditional public holiday and
01 National Day of their country, in addition to the public holidays stipulated
in Clause 1 of this Article.
3. The
Prime Minister shall decide the specific public holidays mentioned in Point b
and Point dd Clause 1 of this Article on an annual basis.
Article 113. Annual leave
1. Any
employee who has been working for an employer for 12 months is entitled to
fully-paid annual leave, which is stipulated in his/her employment contract as
follows:
a) 12
working days for employees who work in normal working conditions;
b) 14
working days for employees that are minors, the disabled, employees who do
laborious, toxic or dangerous works;
c) 16
working days for employees who do highly laborious, toxic or dangerous works.
2. An
employee who has been working for an employer for less than 12 months will have
a number of paid leave days proportional to the number of working months.
3. An
employee who, due to employment termination or job loss, has not taken or not
entirely taken up his/her annual leave shall be paid in compensation for the
untaken leave days.
4. The
employer has the responsibility to regulate the timetable for annual leaves
after consultation with the employees and must give prior notice to the
employees. An employee may reach an agreement with the employer on taking
annual leave in instalments or combining annual leave over a maximum period of
up to 03 years.
5. When
an employee takes his/her annual leave before salary payment is due, he/she may
receive an advance in accordance with Clause 3 Article 101 of this Labor Code.
6. When
taking annual leave, should the employee travel by road, rail, water and the
travel days, the traveling time in excess to 02 days will be added to the
annual leave days, and this policy shall only be granted once for an annual
leave in a year.
7. The
Government shall elaborate this Article.
Article 114. Increased annual leave by work seniority
The
annual leave of an employee as prescribed in Clause 1 Article 113 of this Code
shall increase by 01 day for every 05 years of employment with the same
employer.
Article 115. Personal leave, unpaid leave
1. An
employee is entitled to take a fully paid personal leave in the following
circumstances, at long at is notified to the employer in advance:
a)
Marriage: 03 days;
b)
Marriage of his/her biological child or adopted child: 01 day;
c) Death
of his/her biological or adoptive parent; death of his/her spouse’s biological
or adoptive parent; death of spouse, biological or adopted child: 03 days.
2. An
employee is entitled to take 01 day of unpaid leave and must inform the
employer in the case of the death of his/her grandparent or biological sibling;
marriage of his/her parent or natural sibling.
3. The
employee may negotiate with his/her employer on taking unpaid leave other than
the leave stipulated in Clause 1 and Clause 2 of this Article.
Section 3. WORKING HOURS AND REST PERIODS FOR EMPLOYEES WHO
PERFORM WORK OF SPECIAL NATURE
Article 116. Working hours and rest periods for employees
who perform work of special nature
In
accordance with Article 109 of this Labor Code, relevant ministries and the
Ministry of Labor, Invalids and Social Affairs shall discuss and agree upon
working hours and rest periods special work in the areas of road, rail,
water or air transportation; oil and gas exploration and extraction at sea;
offshore work; in the fields of arts; use of radiation and nuclear engineering;
application of high-frequency waves; information technology; research and
application of technology; industrial design; diver’s work, work in mines;
seasonal production work and processing of goods by order; and work that
requires for 24/24 hours on duty, other works of special nature defined by the
Government.
Chapter VIII
LABOR DISCIPLINE AND MATERIAL
RESPONSIBILITY
Section 1. LABOR DISCIPLINE
Article 117. Labor discipline
Labor
discipline comprises provisions in the internal labor regulations on the
compliance in respect of time, technology, production and business management
that are imposed by the employer and prescribed by law.
Article 118. Internal labor regulations
1. Every
employer shall issue their own internal labor regulations. An employer that has
at least 10 employees shall have written internal labor regulations.
2. The
contents of the internal labor regulations shall not be contrary to labor laws
or to relevant legal provisions. The internal labor regulations shall
include the following key contents:
a)
Working hours and rest periods;
b) Order
at the workplace;
c)
Occupational safety and health;
d)
Actions against sexual harassment in the workplace;
dd)
Protection of the assets and technological and business secrets and
intellectual property of the employer;
e) Cases
in which reassignment of employees are permitted;
g)
Violations against labor regulations and disciplinary measures;
h)
Material responsibility;
i) The
person having the competence to take disciplinary measures.
3. Before
issuing or revising the internal labor regulations, the employer shall consult
the employee representative organization (if any).
4.
Employees must be notified of the internal labor regulations, and the major
contents must be displayed at the workplace where they are necessary.
5. The
Government shall elaborate this Article.
Article 119. Registration of internal labor regulations
1. An
employer that has at least 10 employees shall register the internal labor
regulations at the labor authority of the province where business registration
is applied for.
2. Within
10 days from the date of issuance of the internal labor regulations, the
employer must submit the application for registration of the internal labor
regulations.
3. If any
of the contents of the internal labor regulations is found contrary to the law,
within 07 working days from the date of receipt of the application, the
provincial labor authority shall notify and instruct the employer to revise it
and re-submit the application.
4. An
employer whose branches, units or business locations in different provinces
shall send the registered internal labor regulations to the labor authority of
those provinces.
5. The
provincial labor authority may authorize a district-level labor authority to
process an application for registration of internal labor regulations in
accordance with this Article.
Article 120. Application for registration of internal labor
regulations
An
application for registration of internal labor regulations shall consist of:
1. The application
form;
2. A copy
of the internal labor regulations;
3.
Comments of the representative organization of employees (if any);
4.
Documents of the employer that are relevant to labor discipline and material
responsibility (if any).
Article 121. Effect of internal labor regulations
The
internal labor regulations shall start to have effect after 15 days from the
day on which the satisfactory application is received by a competent authority
as prescribed in Article 119 of this Labor Code.
The
effect of the written internal labor regulations issued by an employee that has
fewer than 10 employees shall be decided by the employer.
Article 122. Principles and procedures for taking
disciplinary measures at work
1.
Disciplinary measures against an employee shall be taken in accordance with the
following regulations:
a) The
employer is able to prove the employee’s fault;
b) The
process is participated in by the representative organization of employees to
which the employee is a member;
c) The
employee is physically present and has the right to defend him/herself, request
a lawyer or the representative organization of employees to defend him/her; if
the employee is under 15 years of age, his/her parent or a legal representative
must be present;
d) The
disciplinary process is recorded in writing.
2. It is
prohibited to impose more than one disciplinary measure for one violation of
internal labor regulations.
3. Where
an employee commits multiple violations of internal labor regulations, he/she
shall be subjected to the heaviest disciplinary measure for the most serious
violation.
4. No
disciplinary measure shall be taken against an employee during the period when:
a) The
employee is taking leave on account of illness or convalescence; or on other
types of leave with the employer’s consent;
b) The
employee is being held under temporary custody or detention;
c) The
employee is waiting for verification and conclusion of the competent agency for
acts of violations, stipulated in Clause 1 and Clause 2 Article 125 of this
Labor Code;
d) The
employee is pregnant, on maternal leave or raising a child under 12 months of
age.
5. No
disciplinary measure shall be taken against an employee who commits a violation
of internal labor regulations while suffering from the mental illness or
another disease which causes the loss of consciousness ability or the loss of
his/her behavior control.
6. The
Government shall provide for the principles and procedures for taking
disciplinary measures at work.
Article 123. Time limit for taking disciplinary measures at
work
1. The
time limit for taking disciplinary measures against a violation is 06 months
from the date of the occurrence of the violation. The time limit for dealing
with violations directly relating to finance, assets and disclosure of
technological or business secrets shall be 12 months.
2. In
case the time limit stipulated in this Article has expired or is shorter than
60 days when the period stipulated in Clause 4 Article 122 of this Labor Code
expires, the former may be extended for up to 60 more days.
3. The
employer shall issue a disciplinary decision within the period specified in
Clause 1 and Clause 2 of this Article.
Article 124. Disciplinary measures
1.
Reprimand.
2.
Deferment of pay rise for up to 6 months.
3.
Demotion.
4.
Dismissal.
Article 125. Dismissal for disciplinary reasons
An
employer may dismiss an employee for disciplinary reasons in the following
circumstances:
1. The
employee commits an act of theft, embezzlement, gambling, deliberate infliction
of injuries or uses drug at the workplace;
2. The
employee discloses technological or business secrets or infringing the
intellectual property rights of the employer, or commits acts which are
seriously detrimental or posing seriously detrimental threat to the assets or
interests of the employer, or commits sexual harassment in the workplace
against the internal labor regulations;
3. The
employee repeats a violation which was disciplined by deferment of pay rise or
demotion and has not been absolved. A repeated violation means a violation
which was disciplined and is repeated before it is absolved in accordance with
Article 126 of this Code.
4. The
employee fails to go to work for a total period of 05 days in 30 days, or for a
total period of 20 days in 365 days from the first day he/she fails to go to
work without acceptable excuses.
Justified
reasons include natural disasters, fires; the employee or his/her family member
suffers from illness with a certification by a competent health facility; and
other reasons as stipulated in the internal labor regulations.
Article 126. Absolution of violations, reduction in the
duration of disciplinary measures
1. An
employee who commits a violation that is disciplined by reprimand, deferment of
pay rise or demotion will have the previous violation absolved after 03 months,
06 months or 03 years respectively from the day on which the disciplinary
measure is imposed if he/she does not commits any violation against internal
labor regulations.
2. Where
an employee who is disciplined by deferment of wage increase has completed half
of the duration of the disciplinary measure and has demonstrated improvement,
the employer may consider a remission.
Article 127. Forbidden actions when imposing disciplinary
measures in the workplace
1.
Harming the employee's health, life, honor or dignity.
2.
Applying monetary fines or deducting the employee’s salary wage.
3.
Imposing a disciplinary measure against an employee for a violation which is
not stipulated in the internal labor regulations or employment contract or
labor laws.
Article 128. Work suspension
1. An
employer has the right to suspend an employee from work if the violation is of
a complicated nature and where the continued presence of the employee at the
workplace is deemed to cause difficulties for the investigation. An
employee shall only be suspended from work after consultation with the
representative organization of employees to which the employee is a member.
2. The
work suspension shall not exceed 15 days, or 90 days in special circumstances.
During the suspension, the employee shall receive an advance of 50% of
his/her salary entitled prior to the suspension.
Upon the
expiry of the work suspension period, the employer shall reinstate the
employee.
3. Where
the employee is disciplined, he/she shall not be required to return the
advanced salary.
4. Where
the employee is not disciplined, the employer shall pay the full salary for the
work suspension period.
Section 2. MATERIAL RESPONSIBILITY
Article 129. Compensation for damage
1. An
employee who causes damage to equipment or otherwise damages the employer’s
assets shall have to pay compensation in accordance with labor laws or the
employer’s internal labor regulations.
In case
the damage caused by an employee is not serious, not deliberate and is worth
less than 10 months’ region-based minimum wage announced by the Government, the
employee shall have to pay a compensation of not more than his/her 03 months’ salary,
which shall be monthly deducted from his/her salary in accordance with Clause 3
Article 102 of this Code.
2. An
employee who loses the employer’s equipment or assets, or consumes the
materials beyond the set limits shall pay a compensation for damage in full or
in part at the market price or as stipulated in the internal labor regulations
or the responsibility contract (if any). In case this is caused by a natural
disaster, fire, war, major epidemic, calamity, or another force majeure event
which is unforeseeable and insurmountable, and all necessary measures and
possibilities for avoidance have been taken, the compensation shall not
required.
Article 130. Determination of compensation
1.
Consideration and decision on the level of compensation for damage shall be
based on the nature of the offence, the actual extent of damage, the situation
of the offender or the offender’s family, and financial capacity of the
employee.
2. The
Government shall provide for procedures and time limits for claiming damages.
Article 131. Complaints on labor disciplinary regulations
and material responsibility
If the
employee who is disciplined, suspended from work, or required to pay
compensation is not satisfied with the decision, he/she has the right to file a
complaint to the employer or a competent authority as prescribed by law, or
request settlement of the labor dispute in accordance with the procedures
stipulated by law.
The
Government shall elaborate this Article.
Chapter IX
OCCUPATIONAL SAFETY AND HEALTH
Article 132. Compliance with the law on occupational safety
and health
Employers,
employees, organizations and individuals involved in labor and business
operation shall comply with the regulations of the law on occupational safety
and health.
Article 133. Occupational safety and health program
1. The
Government shall decide on development of the National Programme on
Occupational Safety and Health.
2. The
People’s Committee of every province shall submit a provincial occupational
safety and health program to the People’s Council of the same province for
inclusion to the socio-economic development plan.
Article 134. Ensuring occupational safety and health at the
workplace
1.
Employers shall fully implement the measures for ensuring occupational safety
and health at the workplace.
2.
Employees shall comply with rules and procedures for occupational safety and
health, regulations of law, obtain knowledge and skills on assurance of
occupational safety and health at the work place.
Chapter X
PROVISIONS APPLICABLE TO FEMALE EMPLOYEES
AND ASSURANCE OF GENDER EQUALITY
Article 135. State policies
1.
Equality between male and female employees shall be ensured; necessary measures
for ensuring gender equality and prevention of sexual harassment in the
workplace shall be implemented.
2.
Employers are encouraged to enable both male and female employees to work
regularly, and to widely apply the systems of flexible working hours, part-time
work, or outwork.
3.
Necessary measures shall be implemented to create employment opportunities,
improve working conditions, develop occupational skills, provide healthcare,
and strengthen the material and spiritual welfare of female employees in order
to assist them in developing effectively their vocational capacities and
harmoniously combine their working lives with their family lives.
4. Tax
reductions shall be granted to employers who employ a large numbers of female
employees in accordance with the tax laws.
5. The
State shall develop plans and measures to open day care facilities and kindergartens
in areas where a large number of female employees are employed; develop various
forms of training to enable female employees to acquire additional occupational
skills that are suitable to their physical and physiological characteristics
and their motherhood roles.
6. The
Government shall elaborate this Article.
Article 136. Responsibilities of the employer
1. Ensure
gender equality and implementation of measures to promote gender equality in
recruitment, job assignment, training, working hours and rest periods, salaries
and other policies.
2.
Consult with female employees or their representatives when taking decisions
which affect their rights and interests.
3.
Provide appropriate bathrooms and toilets at the workplace for female
employees.
4. Assist
in building day care facilities and kindergartens, or cover a part of the
childcare expenses incurred by employees.
Article 137. Maternity protection
1. An
employer must not require a female employee to work at night, work overtime or
go on a long distance working trip in the following circumstances:
a) The
employee reaches her seventh month of pregnancy; or her sixth month of
pregnancy when working in upland, remote, border and island areas;
b) The
employee is raising a child under 12 months of age, unless otherwise agreed by
her.
2.
Whenever an employer is informed of the pregnancy of an female employee who is
doing a laborious, toxic or dangerous work, a highly laborious, toxic or
dangerous work or any work that might negatively affect her maternity, the
employer shall assign her to a less laborious or safer work, or reduce the
working hours by 01 hour per day without reducing her salary, rights or
benefits until her child reaches 12 months of age.
3. The
employer must not dismiss an employee or unilaterally terminate the employment
contract with an employee due to his/her marriage, pregnancy, maternity leave,
or nursing a child under 12 months of age, except for cases where the employer
that is a natural person dies or is declared incapacitated, missing or dead by
the court, or the employer that is not a natural person ceases its business
operation, declared by a provincial business registration authority that it
does not have a legal representative or a person authorized to perform the
legal representative’s rights and obligations.
Upon
expiration of the employment contract with female employee who is pregnant or
nursing a child under 12 months of age, conclusion of a new employment contract
shall be given priority.
4. During
her menstruation period, a female employee shall be entitled to a 30 minute
break in every working day; a female employee nursing a child under 12 months
of age shall be entitled to 60 minutes breaks in every working day with full
salary as stipulated in the employment contract.
Article 138. The right of pregnant female employees to
unilaterally terminate or suspend their employment contracts
1. Where
a female employee is pregnant and obtains a confirmation from a competent
health facility which states that if she continues to work, it may adversely
affect her pregnancy, she shall have the right to unilaterally terminate or
suspend the employment contract.
In case
of unilateral termination or suspension of the employment contract, a
notification enclosed with the aforementioned confirmation from the health
facility shall be submitted to the employer.
2. In
case of suspension of the employment contract, the suspension period shall be
agreed by the employer and the employee and must not be shorter than the period
specified by the health facility. If the rest period is not specified by the
health facility, both parties shall negotiate the suspension period.
Article 139. Maternity leave
1. A
female employee is entitled to 06 months of prenatal and postnatal leave; the
prenatal leave period shall not exceed 02 months.
In case
of a multiple birth, the leave shall be extended by 01 month for each child,
counting from the second child.
2. During
maternity leave, the female employee is entitled to maternity benefits as
prescribed by social insurance laws.
3. After
the maternity leave stipulated in Clause 1 of this Article expires, if so
demanded, the female employee may be granted an additional unpaid leave under
terms agreed upon with the employer.
4. The
female employee may return to work before the expiry of her statutory maternity
leave stipulated in Clause 1 of this Article after she has taken at least 04
months of leave, provided she has obtained a confirmation from a competent
health facility that the early resumption of work does not adversely affect her
health, the employer receives a prior notice of the early resumption and agrees
to the early resumption. In this case, besides the salary of the working days,
which is paid by the employer, the female employee shall continue to receive
the maternity allowance in accordance with social insurance laws.
5. A male
employee whose wife gives birth, an employee who adopts a child under 06 months
of age, a female employee who becomes a surrogate mother shall be entitled to
maternity leave in accordance with social insurance laws.
Article 140. Employment security for employees after
maternity
An
employee shall be reinstated to his/her previous work when he/she returns to
work after the maternity leave prescribed in Clauses 1, 3 and 5 Article 139 of
this Labor Code without any reduction in his/her salary, rights and benefits
before the leave. In case the previous work is no longer available, the employer
must assign another work to the employee with a salary not lower than the
salary he/she received prior to the maternity leave.
Article 141. Allowances for during period of care for sick
children, pregnancy and implementation of contraceptive methods
When an
employee takes leave to take care of a sick child aged under 07, have prenatal
care check-up, due to miscarriage, abortion, stillbirth, therapeutic abortion,
implementation of contraceptive methods or sterilization, the employee shall
receive allowance for the leave period in accordance with social insurance
laws.
Article 142. Jobs and works that are harmful to
child-bearing and parenting functions
1. The
Minister of Labor, War Invalids and Social Affairs shall promulgate the list of
jobs and works that are harmful to child-bearing and parenting functions.
2.
Employers must provide adequate information to their employees on the hazards
and requirements of the works to before the employees make their decisions;
ensure occupational safety and health of the employees when assign them any of
the works on the list mentioned in Clause 1 of this Article.
Chapter XI
EXCLUSIVE PROVISIONS CONCERNING MINOR
EMPLOYEES AND CERTAIN TYPES OF EMPLOYEES
Section 1. MINOR EMPLOYEES
Article 143. Minor employees
1. A
minor employee is an employee under 18 years of age.
2. A
person aged 15 to under 18 must not be assigned any of the works or to any of
the workplaces mentioned in Article 147 of this Labor Code.
3. A
person aged 13 to under 15 may only do the light works on the list promulgated
by the Minister of Labor, War Invalids and Social Affairs.
4. A
person under 13 may only do the works specified in Clause 3 Article 145 of this
Labor Code.
Article 144. Rules for employment of minors
1. Minor
employees may only do works that are suitable for their health in order to
ensure their physical health, mental health and personality development.
2. The
employer who has minor employees has the responsibility to take care of their
work, health and education in the course of their employment.
3. When
an employer hires a minor employee, the employer must have the consent of
his/her parent or guardian; prepare a separate record which writes in full of
his/her name, date of birth, the work assigned, results of periodical health
check-ups, and shall be presented at the request of the competent authority.
4.
Employers shall enable minor employees to have educational and vocational
training.
Article 145. Employment of employees under 15
1. When
employing a person under 15, the employer shall:
a)
Conclude a written contract with the employee and his/her legal representative;
b)
Arrange the working hours so as not to affect the employee’s study hours;
c) Obtain
the health certificate from a competent health facility which certifies that
the employee’s health is suitable for the work assigned, and provide periodic
health check-up for the employee at least once every 06 months;
d) Ensure
that the working conditions, occupational safety and health are suitable for
the employee’s age;
2. An
employer is only entitled to assign employees aged 13 to under 15 to do the
light works specified in Clause 3 Article 143 of this Labor Code.
3.
Employers must not hire people under 13 to do works other than sports and arts,
provided they do not affect their development of their physical health, mental
health and personality, and the employment is accepted by the provincial labor
authority.
4. The
Minister of Labor, War Invalids and Social Affairs shall elaborate this
Article.
Article 146. Working hours of minors employees
1. The
working hours of minor employees under 15 shall not exceed 04 hours per day and
20 hours per week. Employers must not request minor employees to work overtime
or at night.
2. The
working hours of employees aged 15 to under 18 shall not exceed 08 hours per
day and 40 hours per week. Employees aged 15 to under 18 may work overtime or
at night in certain works and jobs listed by the Minister of Labor, War
Invalids and Social Affairs.
Article 147. Prohibited works and workplaces for employees
aged 15 to under 18
1. A
person aged 15 to under 18 must not be assigned to the following works:
a)
Carrying and lifting of heavy things which are beyond his/her the physical
capacity;
b)
Production, sale of alcohol, tobacco and neuro-stimulants and other narcotic
substances;
c)
Production, use or transport of chemicals, gas or explosives;
d)
Maintaining equipment or machinery;
dd)
Demolition;
e)
Melting, blowing, casting, rolling, pressing, welding metals;
g) Marine
diving, offshore fishing;
h) Other
works that are harmful to the development of his/her physical health, mental
health or personality.
2.
A person aged 15 to under 18 must not be assigned to the following
locations:
a)
Underwater, underground, in caves, in tunnels;
b)
Construction sites;
c)
Slaughter houses;
d)
Casinos, bars, discotheques, karaoke rooms, hotels, hostels, saunas, massage
rooms; lottery agents, gaming centers;
dd) Any
other workplace that is harmful to the development of his/her physical health,
mental health or personality.
3. The
Ministry of Labor- Invalids and Social Affairs shall promulgate the lists
mentioned in Point h Clause 1 and Point dd Clause 2 of this Article.
Section 2. ELDERLY EMPLOYEES
Article 148. Elderly employees
1. An
elderly employee is a person who continues working after the age stipulated in
Clause 2 Article 169 of this Labor Code.
2.
Elderly employees are entitled to negotiate with their employer on reduction of
reduce their daily working hours or to work on a part-time basis.
3.
Employers are encouraged by the State to assign works that are suitable for
elderly employees in order to uphold their right to work and ensure efficient
utilization of human resources.
Article 149. Employment of elderly people
1. When
an elderly person is employed, both parties may agree on conclusion of multiple
fixed-term employment contracts.
2. In
case a person who is receiving retirement pension under the Law on Social
Insurance enters into a new employment contract, he/she shall receive salary
and other benefits prescribed by law and the employment contract in addition to
the benefits to which they are entitled under the pension scheme.
3.
Employer must not assign elderly employees to do laborious, toxic or dangerous
works, or highly laborious, toxic or dangerous works that are harmful to their
health, unless safety is ensured.
4.
Employers are responsible for taking care of the health of elderly employees at
the workplace.
Section 3. VIETNAMESE EMPLOYEES WORKING OVERSEAS, EMPLOYEES
OF FOREIGN ORGANIZATIONS AND INDIVIDUALS IN VIETNAM AND FOREIGN EMPLOYEES
WORKING IN VIETNAM
Article 150. Vietnamese employees working overseas,
employees of foreign organizations and individuals in Vietnam
1. The
State shall encourage enterprises, agencies, organizations, and individuals to
seek and expand the labor market for Vietnamese employees to work overseas.
Vietnamese
employees working overseas must comply with the law of Vietnam and the law of the host country except where an international convention to which Socialist
Republic of Vietnam is a signatory contains different provisions.
2.
Vietnamese citizens working in foreign organizations in Vietnam, in industrial zones, economic zones, export-processing zones, hi-tech zones, or working for
individuals who are foreign citizens in Vietnam shall comply with the law of Vietnam and shall be protected by law.
3. The
Government shall provide for the recruitment and management of Vietnamese
employees working for foreign entities in Vietnam.
Article 151. Requirements for foreigners to work in Vietnam.
1. A
foreign employee means a person who has a foreign nationality and:
a) is at
last 18 years of age and has full legal capacity;
b) has
qualifications, occupational skills, practical experience and adequate health
as prescribed by the Minister of Health;
c) is not
serving a sentence; does not have an unspent conviction; is not undergoing
criminal prosecution under his/her home country’s law or Vietnam’s law;
d) has a
work permit granted by a competent authority of Vietnam, except in the cases
stipulated in Article 154 of this Labor Code.
2. The
duration of a foreign employee’s employment contract must not exceed that of
the work permit. When a foreign employee in Vietnam is recruited, both parties
may negotiate conclusion of multiple fixed-term labor contracts.
3.
Foreign employees working in Vietnam shall comply with and shall be protected
by the labor law of Vietnam, unless otherwise prescribed by treaties to which Vietnam is a signatory.
Article 152. Requirements for employment of foreigners in Vietnam.
1.
Enterprises, organizations, individuals and contractors shall only employ
foreigners to hold positions of managers, executive directors, specialists and
technical workers the professional requirements for which cannot be met by
Vietnamese workers.
2.
Recruitment of foreign employees in Vietnam shall be explained and subject to
written approval by competent authorities.
3. Before
recruiting foreign employees in Vietnam, a contractor shall list the positions,
necessary qualifications, skills, experience and employment period of the
contract, and obtain a written approval from a competent authority.
Article 153. Responsibilities of employers and foreign
employees
1.
Foreign employees shall present their work permits whenever requested by
competent authorities.
2. Any
foreign employee working in Vietnam without a work permit shall be deported or
forced to leave Vietnam in accordance with immigration laws.
3. An
employer who hires a foreign employee without a work permit shall be liable to
penalties as regulated by the law.
Article 154. Work permit exemption for foreign employees in
Vietnam
A foreign
employee is not required to have the work permit if he/she:
1. Is the
owner or capital contributor of a limited liability company with a capital
contribution value conformable with regulations of the Government.
2. Is the
Chairperson or a member of the Board of Directors of a joint-stock company a
capital contribution value conformable with regulations of the Government.
3. Is the
manager of a representative office, project or the person in charge of the
operation of an international organizations or a foreign non-governmental
organization in Vietnam.
4. Enters
Vietnam for a period of less than 03 months to do marketing of a service.
5. Enters
Vietnam for a period of less than 03 months to a resolve complicated technical
or technological issue which (i) affects or threatens to affect business
operation and (ii) cannot be resolved by Vietnamese experts or any other
foreign experts currently in Vietnam.
6. Is a
foreign lawyer who has been granted a lawyer’s practicing certificate in Vietnam in accordance with the Law on Lawyers.
7. In one
of the cases specified in an international treaty to which the Socialist
Republic of Vietnam is a signatory.
8. Gets
married with a Vietnamese citizen and wishes to reside in Vietnam.
9. Other
circumstances specified by the Government.
Article 155. Duration of work permit
The
maximum duration of a work permit is 02 years. A work permit may be extended
once for up to 02 more years.
Article 156. Cases in which a work permit is invalid
1. The
work permit expires.
2. The
employment contract is terminated.
3. The
contents of the employment contract are inconsistent with the contents of the
work permit granted.
4. The
work performed is not conformable with the contents of the work permit granted.
5. The
contract that is the basis for issuance of the work permit expires or is
terminated.
6. The
foreign party issues a written notice which terminates the dispatch of the
foreign employee to Vietnam.
7. The
Vietnamese party or foreign organization that hires the foreign employee ceases
its operation.
8. The
work permit is revoked.
Article 157. Issuance, re-issuance and revocation of work
permits; notice of rejection of work permit issuance
The
Government shall specify the conditions and procedures for issuing, re-issuing,
revoking the work permit and issuance of the notice of rejection of work permit
issuance.
Section 4. DISABLED EMPLOYEES
Article 158. State policies on disabled employees
The State
shall protect the rights to work and to self-employment of disabled people;
adopt policies to encourage and provide incentives for employers to create work
for and to employ disabled people in accordance with regulations of law on
People with Disabilities.
Article 159. Employment of disabled people
1. Employers
shall provide reasonable accommodation with respect to working conditions,
working tools, and occupational safety and health measures that are suitable
for disabled employees and organize periodic health check-up for disabled
employees.
2.
Employers must consult with disabled employees before deciding on matters of
relevance to the rights and interests of disabled employees.
Article 160. Prohibited acts regarding employment of
disabled people
1. Assign
employees with work capacity reduction of at least 51%, serious or very serious
disabilities to work overtime or work at night, unless otherwise agreed by the
employees/
2. Assign
disabled employees to laborious, toxic or dangerous works on the list
promulgated by the Minister of Labor, War Invalids and Social Affairs without
their consent after they are properly informed of the works.
Section 5. DOMESTIC WORKERS
Article 161. Domestic workers
1. A
domestic worker is a worker who regularly carries out domestic work for one or
more than one households.
Domestic
work includes cooking, housekeeping, babysitting, nursing, caring for elders,
driving, gardening, and other work for a household which is not related to
commercial activities.
2. The
Government shall provide for employment of domestic workers.
Article 162. Employment contracts with domestic workers
1. The
employer shall enter into a written employment contract with the domestic
worker.
2. The
duration of the employment contract for the domestic worker is negotiated by
both parties. Either party has the right to terminate the employment
contract at any time provided that an advance notice of 15 days is given.
3. The
employment contract shall specify the salary payment method, period, working
hours, accommodation.
Article 163. Obligations of the employer
1. Fully
implement the agreement as indicated in the employment contract.
2. Pay
the domestic worker an amount of his/her social insurance and health insurance
premiums in accordance with the law for the domestic worker to manage insurance
by themselves.
3.
Respect the domestic worker’s honor and dignity.
4.
Provide clean and hygienic accommodation and dining place for the domestic
worker, where there is such an agreement.
5. Create
opportunities for the domestic worker to participate in educational and occupational
training.
6. Cover
the cost of the travel expenses for the domestic worker to return to their
place of residence at the end of his/her service, except in cases where the
domestic worker terminates the employment contract before its expiry date.
Article 164. Obligations of the domestic worker
1. Fully
implement the agreement as indicated in the employment contract.
2. Pay
compensation in accordance with the agreement or in accordance with the law in
cases of loss of or damage to the employer’s assets and property.
3.
Promptly notify the employer about risks of accident, dangers to health, life
and property of the employer’s family and himself/herself.
4. Report
to the competent authority if the employer commits acts of mistreating, sexual
harassment, extracting forced labor or any other acts against the law.
Article 165. Prohibited acts by the employer
1.
Mistreating, sexually harassing, extracting forced labor, and using force or
violence against the domestic worker.
2.
Assigning works to the domestic worker against the employment contract.
3.
Keeping personal papers of the domestic worker.
Section 6. OTHER TYPES OF WORKERS
Article 166. Workers in the fields of arts, sports, maritime,
air transport
Workers
in the fields of arts, sports, maritime, air transport shall have appropriate
basic and advanced training, occupational skill development training,
employment contracts, salaries, bonuses; working hours, rest periods, occupational
safety and health as prescribed by the Government.
Article 167. Working at home
An
employee may negotiate with his/her employer to perform certain works at home.
Chapter XII
SOCIAL INSURANCE, HEALTH INSURANCE AND
UNEMPLOYMENT INSURANCE
Article 168. Participation in social insurance, health
insurance and unemployment insurance
1.
Employers and employees shall participate in compulsory social insurance,
compulsory health insurance and unemployment insurance and enjoy the benefits
in accordance with provisions of the law on social insurance, health insurance
and unemployment insurance.
Employers
and employees are encouraged to obtain other kinds of insurance for employees.
2. The
employer shall not be required to pay salary for an employee when the employee
is on leave and receiving social insurance benefits, unless otherwise agreed by
both parties.
3. Where
an employee is not covered by compulsory social insurance, compulsory health
insurance or unemployment insurance, the employer shall, in addition to and at
the same time with salary payment, pay the employee an amount equal to the
compulsory social insurance, compulsory health insurance, unemployment
insurance premiums payable by the employer in accordance with regulations of
law on social insurance, health insurance and unemployment insurance.
Article 169. Retirement ages
1. An
employee who has paid social insurance for an adequate period of time as
prescribed by social insurance laws shall receive retirement pension when
he/she reaches the retirement age.
2.
Retirement ages of employees in normal working conditions shall be gradually
increased to 62 for males by 2028 and 60 for females in 2035.
From
2021, the retirement ages of employees in normal working conditions shall be 60
yeas 03 months for males and 55 years 04 months for females, and shall increase
by 03 months for males and 04 months for females after every year.
3. The
retirement ages of employees who suffer from work capacity reduction; doing
laborious, toxic or dangerous works; working in highly disadvantaged areas may
be younger by up to 05 years than the retirement ages specified in Clause 2 of
this Article, unless otherwise prescribed by law.
4.
Retirement ages of skilled employees and employees in certain special cases may
be older by up to 05 years than the retirement ages specified in Clause 2 of
this Article, unless otherwise prescribed by law.
5. The
Government shall elaborate this Article.
Chapter XIII
REPRESENTATIVE ORGANIZATIONS OF EMPLOYEES
Article 170. The right to establish, join and participate
in representative organizations of employees
1. Every
employee has the right to establish, join and participate in activities of
trade union in accordance with the Trade Union Law.
2.
Employees of enterprises are entitled to establish, join and participate in
activities of internal employee organizations in accordance with Articles 172,
173 and 174 of this Labor Code.
3. The
representative organizations of employees mentioned in Clause 1 and Clause 2 of
this Article shall have equal rights and obligations in protection of the
legitimate rights and interests of employees in labor relations.
Article 171. Internal trade unions in Vietnam’s trade union
system
1.
Internal trade unions in Vietnam’s trade union system shall be established in
organizations, units and enterprises.
2. The
establishment, dissolution, organization and operation of internal trade unions
shall comply with the Trade Union Law.
Article 172. Establishment, participation and operation of
internal employee organizations
1. The
internal employee organization in an enterprise shall be established after
registration is granted by a competent authority. The organizational structure
and operation of internal employee organizations shall comply with the
Constitution, law and internal regulations, adhere to the principles of
autonomy, democracy and transparency.
2.
Registration of an internal employee organization shall be cancelled if it acts
against its objectives and principles as prescribed in Point b Clause 1 Article
174 of this Labor Code, or the organization is undergoing division,
amalgamation, merger, or the enterprise is undergoing dissolution or
bankruptcy.
3. When
an internal employee organization wishes to join the trade union, the Trade
Union Law shall apply
4. The
Government shall provide for documents and procedures for registration; the
competence to grant and cancel registration, state management of finance and
assets of internal employee organizations; division, amalgamation, merger,
dissolution thereof; the right to association of employees in enterprises.
Article 173. Management board and members of internal
employee organizations
1. When
applying for registration, the number of members the internal employee
organization that are employees of the enterprise shall reach the minimum
number prescribed by the Government.
2. The
management board shall be elected by members of the internal employee
organization. Members of the management board shall be Vietnamese employees of
the enterprise who are not serving a sentence, do not have an unspent
conviction and are not undergoing criminal prosecution for breach of national
security, violations against freedom and democracy, infringement of ownership
defined in Criminal Code.
Article 174. Charter of internal employee organization
1. The
charter of an internal employee organization shall contain:
a) Name,
address and logo (if any) of the organization;
b) The
objectives of protecting the lawful rights and interests of the members in
labor relations in the enterprise; cooperating with the employer in resolving
issues relevant to the rights, obligations and interest of the employer and
employees; develop progressive, harmonious and stable labor relation;
c)
Requirements and procedures for joining and leaving the organization.
The
internal employee organization of an enterprise shall not simultaneously have
members that are ordinary employees and members that participate in the process
of making decisions relevant to working conditions, recruitment, labor
discipline, employment contract termination or employee reassignment;
d)
Organizational structure, tenure and representative of the organization;
dd) Rules
for organization and operation;
e)
Methods for ratifying decisions of the organization.
The
following issues shall be voted by the members under the majority rule:
ratification, revisions of the organization’s charter; election, dismissal of
the chief and members of the management board of the organization; division,
consolidation, merger, renaming, dissolution, association of the organization;
joining the trade union.
g)
Membership fees, sources of assets and finance, and the management thereof.
Revenues
and expenses of the internal employee organization shall be monitored, archived
and made available to its members.
h)
Members’ proposals and responses thereto.
2. The
Government shall elaborate this Article.
Article 175. Prohibited acts by the employer regarding the
establishment, operation of and participation in representative organizations
of employees
1. Any
act of discrimination against employees or members of the management board of
the representative organization of employees due to the establishment,
operation or participation in the representative organization of employees,
including:
a)
Requesting a person to participate, not to participate or to leave the
representative organization of employees in order to be recruited, have the
employment contract signed or renewed;
b)
Disciplining or unilaterally terminating an employment contract; refuses to conclude
or renew an employment contract; reassigning an employee;
c)
Discrimination by salary, working hours, other rights and obligations in the
labor relation;
d)
Obstructing, disrupting or otherwise impairing the operation of the
representative organization of employees.
2.
Interfering, influencing the establishment, election, planning and operation of
the representative organization of employees, including financial support or
other economic measures aimed to neutralize or weaken the functions of the representative
organization of employees, or discriminate between the representative
organizations of employees.
Article 176. Rights of members of the management board of a
representative organization of employees
1.
Members of the management board of a representative organization of employees
have the rights to:
a)
Approach employees at the workplace during the performance of the
organization’s duties, provided it does not affect the employer’s normal
operation.
b)
Approach the employer to perform the duties of the employees’ representative
organization;
c) Be
fully paid by the employer for performance of the duties of the representative
organization of employees during the working time in accordance with Clause 2
and Clause 3 of this Article;
d) Other
guarantees in labor relation and performance of the representative’s duties as
prescribed by law.
2. The
Government shall specify the minimum period of time the employer has to allow
all members of the management board of the representative organization of employees
to perform its duties according to the number of its members.
3. The
representative organization of employees and the employer may negotiate the
extra time and how the management board uses the working time to perform their
duties in a practical manner.
Article 177. Obligations of the employer to the internal
representative organization of employees
1. Do not
obstruct the employees from lawfully establishing, joining and participate in
activities of the internal representative organization of employees.
2.
Recognize and respect the rights of the lawfully established internal
representative organization of employees.
3. Enter
into a written agreement with the management board of the internal
representative organization of employees when unilaterally terminating the
employment contract with, reassigning or dismissing for disciplinary reasons an
employee who is a member of the management board. In case such an
agreement cannot be reached, both parties shall send a notice to the provincial
labor authority. After 30 days from the day on which such a notice is
sent to the labor authority in the locality, the employer shall have the right
to make the decision. In case of disagreement with the employer’s decision, the
employee and management board may request labor dispute settlement in
accordance with the procedures prescribed by law.
4. In
case the employment contract with an employee that is a member of the
management board of the internal employee representative organization expires
before the end of his/her term of office, the existing contract shall be
extended until the end of the term of office.
5. Other
obligations prescribed by law.
Article 178. Rights and obligations of the representative
organization of employees in labor relations
1. Enter
into collective bargaining with the employer in accordance with this Labor
Code.
2. Hold
dialogues at work in accordance with this Labor Code.
3.
Comment on the establishment; supervise the implementation of the pay scale,
payroll, labor rates, regulations on salary payment, rewards, internal labor
regulations, and other issue relevant to rights and interests of employees that
are members of the organization.
4.
Represent the employee during labor dispute settlement when authorized by the
employee.
5.
Organize and lead strikes in accordance with this Labor Code.
6.
Provide technical assistance for legally registered organizations in Vietnam to improve their knowledge about labor laws, procedures for establishment of the
representative organization of employees and performance of representative
activities in labor relation after registration is granted.
7. Be
provided a working location, information and other necessary facilities for
operation of the representative organization of employees by the employer.
8. Other
rights and obligations prescribed by law.
Chapter XIV
SETTLEMENT OF LABOR DISPUTES
Section 1. GENERAL PROVISIONS FOR SETTLEMENT OF LABOR
DISPUTES
Article 179. Labor disputes
1. A
labor dispute means a dispute over rights, obligations and interests among the
parties during the establishment, execution or termination of labor relation; a
dispute between the representative organizations of employees; a dispute over a
relationship that is directly relevant to the labor relation. Types of labor disputes:
a) Labor
disputes between the employee and the employer; between the employee and the
organization that sends the employee to work overseas under a contract; between
the outsourced worker and the client enterprise.
b)
Right-based or interest-based collective labor disputes between one or several
representative organizations of employees and the employer or one or several
representative organizations of employees.
2. A
right-based collective labor dispute of rights means a dispute between one or
several representative organizations of employees and the employer or one or
several representative organizations of employees in case of:
a)
Discrepancies in interpretation and implementation of the collective bargaining
agreement, internal labor regulations and other lawful agreements;
b)
Discrepancies in interpretation and implementation of labor laws; or
c) The
employer’s discrimination against the employees or members of the management
board of the representative organization of employees for reasons of establishment,
operation or participation in the organization; the employer’s interference or
influencing the representative organization of employees; the employer’
violations against amicable negotiation.
3. a)
Interest-based collective labor disputes include:
a) Labor
disputes that arise during the process of collective bargaining;
a) A
party refuses to participate in the collective bargaining or the collective
bargaining is not held within the time limit prescribed by law.
Article 180. Labor dispute settlement principles
1.
Respect the parties’ autonomy through negotiation throughout the process of
labor dispute settlement.
2.
Prioritize labor dispute settlement through mediation and arbitration on the
basis of respect for the rights and interests of the two disputing parties, and
respect for the public interest of the society and conformity with the law.
3. The
labor dispute shall be settled publicly, transparently, objectively, promptly,
and lawfully.
4. Ensure
the participation of the representatives of each party in the labor dispute
settlement process.
5. Labor
dispute settlement shall be initiated by a competent authority or person after
it is requested by a disputing party or by another competent authority or
person and is agreed by the disputing parties.
Article 181. Responsibilities of organizations and
individuals during labor dispute settlement
1. The
labor authority shall cooperate with the representative organization of employees
and representative organization of employees in giving instructions and
assisting the parties during the process of labor dispute settlement.
2. The
Ministry of Labor, Invalids and Social Affairs shall organize training to
improve the professional capacity of labor mediators and arbitrators for labor
dispute settlement.
3. The
provincial labor authority, when requested, shall receive and classify the
request for labor dispute settlement, provide instructions and assists the
parties during the process of labor dispute settlement.
Within 05
working days, the receiving authority shall transfer the request to the labor
mediators if mediation is mandatory; to the arbitral tribunal if the dispute
has to be settled by arbitration, or instruct the parties to file the petition
to the court.
Article 182. Rights and obligations of the two parties in
labor dispute settlement
1. During
the labor dispute settlement process, the two disputing parties have the rights
to:
a)
Participate directly or through a representative in the labor dispute
settlement process;
b)
Withdraw or change the contents of the request;
c)
Request for a change of the person in charge of labor dispute settlement where
there reasonable grounds for believing that the said person may not be
impartial or objective.
2. During
the labor dispute settlement process, the two parties have the responsibility
to:
a)
Promptly and adequately provide documents and evidence to support his/her
request;
b) Abide
by the agreement reached, decision of the arbitral tribunal, court judgment or
decision which when it comes into effect.
Article 183. Rights of competent labor dispute settlement
authorities and persons
Competent
labor dispute settlement authorities and persons shall, within their mandates,
have the rights to request the disputing parties, relevant organizations and
individuals to provide documents and evidence; request verification; and invite
witnesses and other relevant persons.
Article 184. Labor mediators
1. Labor
mediators shall be assigned by the provincial labor authority to mediate labor
disputes and disputes over vocational training contracts; assist in development
of labor relation.
2. The
Government shall provide for the standards, procedures for assignments,
benefits, working conditions and management of labor mediators; power and
procedures for outsourcing labor mediators.
Article 185. Labor Arbitration Council
1. The
President of the People’s Committee of the province shall issue the decision to
establish the Labor Arbitration Council, designate its chairperson, secretary
and labor arbitrators. The tenure of a Labor Arbitration Council is 05 years.
2. The
President of the People’s Committee of the province shall decide the number of
labor arbitrators which is at least 15. The number of labor arbitrators
nominated by each party shall be equal. To be specific:
a) At
least 05 labor arbitrators shall be nominated by the provincial labor
authority. The chairperson and secretary shall be officials of the provincial
labor authority;
b) At
least 05 labor arbitrators shall be nominated by the provincial trade union;
c) At
least 05 arbitrators shall be nominated the representative organizations of
employees in the province.
3.
Standards and working conditions of labor arbitrators:
a) A
labor arbitrator shall conversant with law, experienced in labor relations,
reputable and objective;
b) When
nominating labor arbitrators as prescribed in Clause 2 of this Article, the
provincial labor authority, provincial trade union and representative
organizations of employees may nominate their people or other people that fully
satisfy the standards for labor arbitrators.
c) The
secretary of the Labor Arbitration Council shall perform its regular duties.
Labor arbitrators may work on a full-time or part-time basis.
4.
Whenever a request for labor dispute settlement is received as prescribed in
Article 189, 193 and 197 of this Labor Code, the Labor Arbitration Council
shall establish an arbitral tribunal as follows:
a) The
representative of each disputing party shall choose 01 labor arbitrator from
the list of labor arbitrators;
b) The
labor arbitrators chosen by the parties as prescribed in Point a of this Clause
shall choose 01 other labor arbitrator as the chief of the arbitral tribunal;
c) In
case a labor arbitrator is selected by more than one disputing party, the
arbitral tribunal shall appoint 01 of the chosen arbitrators.
5. The
arbitral tribunal shall work on the principle of collectives and make decision
under the majority rule, except for the cases specified in Point c Clause 4 of
this Article.
6. The
Government shall provide for the procedures, requirements, procedures for
designation, dismissal, benefits and working conditions of labor arbitrators
and Labor Arbitration Councils; organization and operation of Labor Arbitration
Councils; establishment and operation of the arbitral tribunals mentioned in
this Article.
Article 186. Prohibition of unilateral actions during the
process of labor dispute settlement
None of
the disputing parties shall take unilateral actions against the other party
while the labor dispute is being settled by a competent authority or person
within the time limit specified in this Labor Code.
Section 2. COMPETENCE AND PROCEDURES FOR SETTLEMENT OF
INDIVIDUAL LABOR DISPUTES
Article 187. Competence to settle individual labor disputes
The
following agencies, organizations and individuals have the competence to settle
individual labor disputes:
1. Labor
mediators;
2. Labor
Arbitration Councils;
3. The
People’s Court.
Article 188. Procedures for the settlement of individual
labor disputes by labor mediators
1.
Individual labor disputes shall be settled through mediation by labor mediators
before being brought to the Labor Arbitration Council or the Court, except for
the following labor disputes for which mediation is not mandatory:
a)
Disputes over dismissal for disciplinary reasons; unilateral termination of
employment contracts;
b)
Disputes over damages and allowances upon termination of employment contracts;
c)
Disputes between a domestic worker and his/her employer;
d)
Disputes over social insurance in accordance with social insurance laws;
disputes over health insurance in accordance with health insurance laws ;
disputes over unemployment insurance in accordance with employment laws;
disputes over insurance for occupational accidents and occupational disease in
accordance with occupational safety and health laws;
dd)
Disputes over damages between an employee and organization that dispatches the
employee to work overseas under a contract;
e)
Disputes between the outsourced worker and the client enterprise.
2. The
Labor Arbitration Council shall complete the mediation process within 05
working days from the receipt of the request from the disputing parties or the
authority mentioned in Clause 3 Article 181 of this Labor Code.
3. Both
disputing parties must be present at the mediation meeting. The disputing
parties may authorize another person to attend the mediation meeting.
4. The
labor mediator shall instruct and assist the parties to negotiate with each
other.
In case
the two parties reach an agreement, the labor mediator shall prepare a written
record of successful mediation which bears the signatures of the disputing
parties and the labor mediator.
In case
the two parties do not reach an agreement, the labor mediator shall recommend a
mediation option for the disputing parties to consider. In case the
parties agree with the recommended mediation option, the labor mediator shall
prepare a written record of successful mediation which bears the signatures of
the disputing parties and the labor mediator.
Where the
two parties do not agree with the recommended mediation option or where one of
the disputing parties is absent for the second time without a valid reason
after having been legitimately summoned, the labor mediator shall prepare a
record of unsuccessful mediation which bears the signatures of the present
disputing parties and the labor mediator.
5. Copies
of the record of successful mediation or unsuccessful mediation shall be sent
to the disputing parties within 01 working day from the date on which it is
prepared.
6. In
case a disputing party fails to adhere to the agreements specified in the
record of successful mediation, the other party may request a Labor Arbitration
Council or the Court to settle the case.
7. In
case mediation is not mandatory as prescribed in Clause 1 of this Article, the
labor mediator fails to initiate the mediation by the deadline specified in
Clause 2 of this Article, or the mediation is unsuccessful as prescribed in
Clause 4 of this Article, the disputing parties may:
a)
request the Labor Arbitration Council to settle the dispute in accordance with
Article 189 of this Labor Code; or
b)
Request the Court to settle the dispute.
Article 189. Settlement of individual labor disputes by
Labor Arbitration Council
1. The
parties are entitled to, by consensus, request the Labor Arbitration Council to
settle the dispute in any of the cases specified in Clause 7 Article 188 of
this Labor Code. After the Labor Arbitration Council has been requested to
settle a dispute, the parties must not simultaneously request the Court to
settle the same dispute, except for the cases specified in Clause 4 of this
Article.
2. Within
07 working days from the receipt of the request mentioned in Clause 1 of this
Article, an arbitral tribunal shall be established.
3. Within
30 working days from the establishment of the arbitral tribunal, it shall issue
a decision on the settlement of the labor dispute and send it to the disputing
parties.
4. In
case an arbitral tribunal is not established by the deadline specified in
Clause 2 of this Article, or a decision on the settlement of the labor dispute
is not issued by the arbitral tribunal by the deadline specified in Clause 3 of
this Article, the parties are entitled to bring the case to Court.
5. In
case a disputing party fails to comply with the decision of the arbitral
tribunal, the parties are entitled to bring the case to court.
Article 190. Time limits for requesting settlement of
individual labor disputes
1. The
time limit to request a labor mediator to settle an individual labor dispute is
06 months from the date on which a party discovers the act of infringement of
their lawful rights and interests.
2. The
time limit to request a Labor Arbitration Council to settle an individual labor
dispute is 09 months from the date on which a party discovers the act of
infringement of their lawful rights and interests.
3. The
time limit to bring an individual labor dispute to the Court is 01 year from
the day on which a party discovers the act of infringement of their lawful
rights and interests.
4. In
case the requester is able to prove that the aforementioned time limits cannot
be complied with due to a force majeure event or unfortunate event, the
duration of such event shall not be included in the time limit for requesting
settlement of individual labor dispute.
Section 3. COMPETENCE AND PROCEDURES FOR THE SETTLEMENT OF
RIGHT-BASED COLLECTIVE LABOR DISPUTES
Article 191. Competence to settle right-based collective
labor disputes
1. The
following agencies, organizations and individuals have the competence to settle
right-based collective labor disputes:
a) Labor
mediators;
b) Labor
Arbitration Councils;
c) The
People’s Court.
2.
Right-based labor disputes shall be settled through mediation by labor
mediators before being brought to the Labor Arbitration Council or the Court.
Article 192. Procedures for settlement of right-based
collective labor disputes
1.
Procedures for the mediation of collective labor disputes are the same as the
procedures specified in Clauses 2, 3, 4, 5 and 6 Article 188 of this Labor
Code.
If
violations of law is found during settlement of the disputes mentioned in Point
b and Point c Clause 2 Article 179 of this Labor Code, the labor mediator shall
prepare a record and transfer the documents to a competent authority for
settlement as prescribed by law.
2. In
case the mediation is unsuccessful or the labor mediator fails to initiate the
mediation by the deadline specified in Clause 2 Article 188 of this Labor Code,
the disputing parties may:
a)
request the Labor Arbitration Council to settle the dispute in accordance with
Article 193 of this Labor Code; or
b)
Request the Court to settle the dispute.
Article 193. Settlement of right-based collective labor
disputes by Labor Arbitration Council
1. In
case the mediation is unsuccessful, the labor mediator fails to initiate the
mediation by the deadline specified in Clause 2 Article 188 of this Labor Code,
or a party fails to adhere to the agreements in the successful mediation
record, the disputing parties are entitled to, by consensus, request the Labor
Arbitration Council to settle the dispute.
2. Within
07 working days from the receipt of the request mentioned in Clause 1 of this
Article, an arbitral tribunal shall be established.
3. Within
30 working days from the establishment of the arbitral tribunal, in accordance
with labor laws, the registered internal labor regulations and collective
bargaining agreement, other lawful agreement and regulations, the arbitral
tribunal shall issue a decision on dispute settlement and send it to the
disputing parties.
If
violations of law is found during settlement of the disputes mentioned in Point
b and Point c Clause 2 Article 179 of this Labor Code, the arbitral tribunal
shall, instead of making a settlement decision, issue a record and transfer the
documents to a competent authority for settlement as prescribed by law.
4. While
the Labor Arbitration Council is settling a dispute at the request of the
parties as prescribed in this Article, the parties must not bring the same
dispute to Court.
5. In
case an arbitral tribunal is not established by the deadline specified in
Clause 2 of this Article, or a decision on the settlement of the labor dispute
is not issued by the arbitral tribunal by the deadline specified in Clause 3 of
this Article, the parties are entitled to bring the dispute to Court.
6. In
case a disputing party fails to comply with the decision of the arbitral
tribunal, the parties are entitled to bring the case to court.
Article 194. Time limits for requesting settlement of
right-based collective labor disputes
1. The
time limit to request a labor mediator to settle a right-based collective labor
dispute is 06 months from the date on which a party discovers the act of
infringement of their lawful rights.
2. The
time limit to request a Labor Arbitration Council to settle a right-based
collective labor dispute is 09 months from the date on which a party discovers
the act of infringement of their lawful rights.
3. The
time limit to bring a right-based collective labor dispute to the Court is 01
year from the day on which a party discovers the act of infringement of their
lawful rights.
Section 4. COMPETENCE AND PROCEDURES FOR THE SETTLEMENT OF
INTEREST-BASED COLLECTIVE LABOR DISPUTES
Article 195. Competence to settle interest-based collective
labor disputes
1.
Agencies, organizations and individuals who have the competence to settle
interest-based collective labor disputes include:
a) Labor
mediators;
b) Labor
Arbitration Councils.
2. An
interest-based collective labor dispute shall be settled through mediation by
labor mediators before it is brought to the Labor Arbitration Council or a
strike is organized.
Article 196. Procedures for settlement of interest-based
collective labor disputes
1.
Procedures for the mediation of interest-based collective labor disputes are
the same as the procedures specified in Clauses 2, 3, 4 and 5 Article 188 of
this Labor Code.
2. In
case of successful mediation, the labor mediator shall prepare a written record
of successful mediation which contains the agreements between the parties and
bears the signatures of the disputing parties and the labor mediator. The
record of successful mediation shall be as legally binding as the enterprise’s
collective bargaining agreement.
3. In
case the mediation is unsuccessful, the labor mediator fails to initiate the
mediation by the deadline specified in Clause 2 Article 188 of this Labor Code,
or a party fails to adhere to the agreements in the successful mediation
record:
a)The
disputing parties are entitled to, by consensus, request the Labor Arbitration
Council to settle the dispute in accordance with Article 197 of this Labor
Code; or
b) The
representative organization of employees is entitled to organize a strike
following the procedures specified in Articles 200, 201 and 202 of this Labor
Code.
Article 197. Settlement of interest-based collective labor
disputes by Labor Arbitration Council
1. In
case the mediation is unsuccessful, the labor mediator fails to initiate the
mediation by the deadline specified in Clause 2 Article 188 of this Labor Code,
or a party fails to adhere to the agreements in the successful mediation
record, the disputing parties are entitled to, by consensus, request the Labor
Arbitration Council to settle the dispute.
2. Within
07 working days from the receipt of the request mentioned in Clause 1 of this
Article, an arbitral tribunal shall be established.
3. Within
30 working days from the establishment of the arbitral tribunal, in accordance
with labor laws, the registered internal labor regulations and collective
bargaining agreement, other lawful agreement and regulations, the arbitral
tribunal shall issue a decision on dispute settlement and send it to the
disputing parties.
4. While
the Labor Arbitration Council is settling a dispute at the request of the
parties as prescribed in this Article, the representative organization of
employees must not call a strike.
In case
an arbitral tribunal is not established by the deadline specified in Clause 2
of this Article, or a decision on the settlement of the labor dispute is not
issued by the arbitral tribunal by the deadline specified in Clause 3 of this
Article, or the employer that is a disputing party fails to implement the
settlement decision issued by the arbitral tribunal, the representative
organization of employees that is a disputing party is entitled to call a
strike following the procedures specified in Articles 200, 201 and 202 of this
Labor Code.
Section 5. STRIKES
Article 198. Strikes
A strike
is a temporary, voluntary and organized stoppage of work by the employees in
order to press demands in the process of the labor dispute settlement. A strike
shall be organized and lead by the representative organization of employees
that has the right to request collective bargaining and is a disputing party.
Article 199. Cases in which employees are entitled to
strike
The
representative organization of employees that is a disputing party to an
interest-based collective labor dispute is entitled to call a strike following
the procedures specified in Articles 200, 201 and 202 in the following cases:
1. The
mediation is unsuccessful or the labor mediator fails to initiate the mediation
by the deadline specified in Clause 2 Article 188 of this Labor Code;
2. An
arbitral tribunal is not established or fails to issue a decision on the
settlement of the labor dispute; the employer that is a disputing party fails
to implement the settlement decision issued by the arbitral tribunal.
Article 200. Procedures for going on strike
1.
Conduct a survey on the strike in accordance with Article 201 of this Labor
Code.
2. Issue
a strike decision and strike notice in accordance with Article 202 of this
Labor Code.
3. Go on
strike.
Article 201. Survey on strike
1. Before
going on strike, the representative organization of employees that has the
right to call the strike as prescribed in Article 198 of this Labor Code shall
survey all employees or members of the management board of the representative
organization of employees.
2. The
survey involves:
a)
Whether the employee agrees or disagrees about the strike;
b) The
plan of the representative organization of employees according to Point b, c
and d Clause 2 Article 202 of this Labor Code.
3. The
survey shall be carried out by collecting votes, signatures or in another
manner.
4. The
time and method of survey shall be decided by the representative organization
of employees and notified to the employer at least 01 day in advance. The
survey must not affect the employer’s normal business operation. The employers
must not obstruct or interfere with the survey conducted by the representative
organization of employees.
Article 202. Strike decision and notice of starting time of
a strike
1. When
over 50% of the surveyed people agree to carry out a strike as prescribed in
Clause 2 Article 201 of this Labor Code, the representative organization of
employees shall issue a written strike decision.
2. The
strike decision shall contain:
a) The
survey result;
b) The
starting time and the venue for the strike;
c) The
scope of the strike;
d) The
demands of the employees;
dd) Full
name and address of the representative of the representative organization of
employees that organizes and leads the strike.
3. At
least 05 working days prior to the starting date of the strike, the
representative organization of employees shall send the strike decision to the
employer, the People’s Committee of the district and the provincial labor
authority.
4. At the
starting time of the strike, if the employer does not accept the demands of the
employees, the strike may take place.
Article 203. Rights of parties prior to and during a strike
1. The
parties have the right to continue negotiating settlement of the collective
labor dispute or to jointly request settlement of the dispute by mediation or
Labor Arbitration Council.
2. The
representative organization of employees that is entitled to organize a strike
as prescribed in Article 198 of this Labor Code has the rights to:
a)
Withdraw the strike decision before the strike; end the strike during the
strike.
b)
Request the Court to declare the strike as lawful.
3. The
employer has the rights to:
a) Accept
the entire or part of the demands, and send a written notice to the
representative organization of employees which organizes and leads the strike;
b)
Temporarily close the workplace during the strike due to the lack of necessary
conditions to maintain the normal operations or to protect the employer’s
assets.
c)
Request the Court to declare the strike as illegal.
Article 204. Cases of illegal strike
A strike
shall be considered illegal if:
1. It is
not the case specified in Article 199 of this Labor Code.
2. The
strike is not organized by a representative organization of employees that is
entitled to organize a strike.
3. The
strike is organized against the procedures in this Labor Code.
4. The
collective labor dispute is being settled by a competent authority or person in
accordance with this Labor Code.
5. The
strike takes places in the cases in which it is not permitted according to
Article 209 of this Labor Code.
6. The
strike takes place after a competent authority issues a decision to postpone or
cancel the strike according to Article 210 of this Labor Code.
Article 205. Notice of temporary closure the workplace
At least
03 working days before the date of temporary closure of the workplace, the
employer shall publicly post the decision on temporary closure of the workplace
at the workplace and notify the following organizations:
1. The
representative organization of employees that organizes the strike;
2. The
People’s Committee of the province where the workplace is located.
3. The
People’s Committee of the district where the workplace is located.
Article 206. Temporary closure of the workplace is not
prohibited:
1. 12
hours prior to the starting time of the strike as stated in the strike
decision.
2. After
the strike ends.
Article 207. Salaries and other lawful interest of
employees during a strike
1.
Employees who do not take part in the strike but have to temporarily stop
working due to the strike are entitled to work suspension allowance in
accordance with Clause 2, Article 99 of this Code as well as to other benefits
as stipulated in the labor laws.
2.
Employees who take part in the strike shall not receive salaries and other
benefits as prescribed by law, unless agreed otherwise by both parties.
Article 208. Prohibited acts before, during and after a
strike
1.
Obstructing employees exercising their right to strike; inciting, inducing or
forcing employees to go on strike; preventing employee who do not take part in
the strike from working.
2. Use of
violence; sabotaging equipment or assets of the employer.
3. Disrupting
public order and security.
4.
Terminating employment contracts, disciplining or reassigning employees or
strike leaders to other work or location workplace due to their preparation for
or involvement in the strike.
5.
Retaliating, inflicting punishment against employees who take part in strike or
against strike leaders.
6. Taking
advantage of the strike to commit illegal acts.
Article 209. Workplaces where strike is prohibited
1. Strike
is prohibited in workplaces where the strike may threaten national security,
national defense, public health or public order.
2. The
Government shall compile a list of workplaces where strike is prohibited as
mentioned in Clause 1 of this Article, and settlements of labor disputes that
arise therein.
Article 210. Decisions on postponing or cancelling a strike
1. When
deemed that a strike threatens to cause serious damage to the national economy
or public interest, threatens national security, national defense, public
health or public order, the President of the People’s Committee of the province
shall issue a decision to postpone or cancel the strike.
2. The
Government shall provide for postponing and cancelling strikes and settlement
of employees’ rights.
Article 211. Handling of unlawful strikes
Within 12
hours from the receipt of the notification that a strike is organized against
the regulations of Articles 200, 201 and 202 of this Labor Code, the President
of the People’s Committee of the district shall request the labor authority to
cooperate with the trade union at the same level and relevant organizations in
meeting the employer and the representative organization of employees,
assisting the parties in finding a solution and returning the normal business
operation.
Any
violations of law shall be dealt with or reported to a competent authority as
prescribed by law.
The
parties shall be assisted in following proper procedures for settling the labor
dispute.
Chapter XV
STATE MANAGEMENT OF LABOR
Article 212. Areas of State management of labor
1.
Promulgate and organize implementation legislative documents on labor.
2.
Monitor, make statistics and provide information on the labor supply and
demand, and the fluctuation thereof; make decision on salary policies; policies
plans on human resources, distribution and utilization of nationwide human
resources, vocational training and development; develop of a national level
framework for various levels of vocational training. Compile the list of
occupations that require workers who have undertaken vocational training or
have obtained the national certificate.
3.
Organize and conduct scientific research on labor, statistics and information
on labor and the labor market, and on the living standards and incomes of
workers; manage the quantity, quality or workers and labor fluctuation.
4.
Establish mechanisms for supporting development of progressive, harmonious and
stable labor relation; promote application of this Labor Code to workers
without labor relations; organize registration and management of internal
employee organizations.
5. Carry
out inspections; take actions against violations of law; handle labor-related
complaints; settle labor disputes as prescribed by law.
6. Seek
international cooperation in the area of labor.
Article 213. State management of labor
1. The
Government shall uniformly carry out the State management of labor nationwide.
2. The
Ministry of Labor, Invalids and Social Affairs shall be responsible to the
Government for state management of labor.
3. Other
Ministries and ministerial agencies, within their respective mandates, shall be
responsible for implementing and cooperating with the Ministry of Labor,
Invalids and Social Affairs in the state management of labor.
4.
People's Committees at all levels shall be responsible for the state management
of labor within their administrative divisions.
Chapter XVI
LABOR INSPECTION AND ACTIONS AGAINST
VIOLATIONS OF LABOR LAWS
Article 214. Contents of labor inspection
1.
Inspect compliance with labor laws.
2. Investigate
occupational accidents and violations against regulations on occupational
safety and health.
3.
Provide instructions on the application technical standards for working
conditions, occupational safety and health.
4. Handle
labor-related complaints and denunciation as prescribed by law.
5. Take
actions and request competent authorities to take actions against violations of
labor laws.
Article 215. Specialized labor inspection
1. The
competence to carry out specialized labor inspection is specified in the Law on
Inspection.
2.
Occupational safety and health inspections shall be carried out in accordance
with the Law on Occupational Safety and Health.
Article 216. Rights of labor inspectors
Labor
inspectors have the right to inspect and investigate within the scope of
inspection specified in the inspection decision.
A prior
notice is not required for surprise inspection decided by a competent person in
case of urgent threat to safety, life, health, honor, dignity of employees at
the workplace.
Article 217. Actions against violations
1. Any
person who violates of any provision of this Labor Code shall, depending on the
nature and seriousness of the violation, be held liable to disciplinary
actions, administrative penalties or criminal prosecution, and shall pay
compensation for any damage caused as prescribed by law.
2. Where
the Court has issued a decision which declares that a strike is illegal, any
employee who fails to return to work shall be held liable to labor disciplinary
measures in accordance with labor laws.
In case
an illegal strike causes damage to the employer, the representative
organization of employees that organizes the strike shall pay compensation as
prescribed by law.
3. Any
person who takes advantages of a strike to disrupt public order, sabotage the
employer’s assets, obstruct the execution of the right to strike, or incite,
induce or force employees to go on strike; retaliate or inflict punishment on
strikers and strike leaders, depending on the seriousness of the violation,
shall be held liable to administrative penalties or criminal prosecution, and
shall pay compensation for any damage caused in accordance with the law.
Chapter XVII
IMPLEMENTATION CLAUSES
Article 218. Exemption and reduction of procedures for
employers having fewer than 10 employees
Any
employer who has fewer than 10 employees shall follow regulations of this Labor
Code and shall be entitled to exemption and reduction of certain procedures
specified by the Government.
Article 219. Amendments to some Articles of labor-related
Laws
1.
Amendments to the Law on Social insurance No. 58/2014/QH13, which has been
amended by the Law No. 84/2015/QH13 and the Law No. 35/2018/QH14:
a)
Amendments to Article 54:
“Article
54. Conditions for receiving retirement pension
1. An
employee mentioned in Points a, b, c, d, g, h and i Clause 1 Article 2 of this
Law, except for the cases specified in Clause 3 of this, will receive
retirement pension if he/she has paid social insurance for at least 20 years
and:
a) He/she
has reached the retirement age specified in Clause 2 Article 169 of the Labor
Code;
b) He/she
has reached the retirement age specified in Clause 3 Article 169 of the Labor
Code and has at least 15 years’ doing the laborious, toxic or dangerous works
or highly laborious, toxic or dangerous works on the lists of the Ministry of
Labor, War Invalids and Social Affairs; or has at least 15 years’ working in
highly disadvantaged areas, including the period he/she works in areas with the
region factor of at least 0,7 before January 01, 2021;
c)
His/her age is younger than the retirement age specified in Clause 2 Article
169 of the Labor Code by up to 10 years and he/she has worked in coal mines for
at least 15 years; or
d) He/she
contracted HIV due to an occupation accident during performance of his/her
assigned duty.
2. An
employee mentioned in Points dd and e Clause 1 Article 2 of this Law will
receive retirement pension if he/she has paid social insurance for at least 20
years and:
a)
His/her age is younger than the retirement age specified in Clause 2 Article
169 of the Labor Code by up to 05 years, unless otherwise prescribed by the Law
on Military Officer of Vietnam’s Army, the Law of People’s Police, the Law on
Cipher and the Law on professional servicemen and women, national defense
workers and officials;
b)
His/her age is younger than the retirement age specified in Clause 3 Article
169 of the Labor Code by up to 05 years and he/she has at least 15 years’ doing
the laborious, toxic or dangerous works or highly laborious, toxic or dangerous
works on the lists of the Ministry of Labor, War Invalids and Social Affairs;
or has at least 15 years’ working in highly disadvantaged areas, including the
period he/she works in areas with the region factor of at least 0,7 before
January 01, 2021; or
c) He/she
contracted HIV due to an occupation accident during performance of his/her
assigned duty.
3. A
female employee that is a commune official or a part-time worker at the commune
authority and has paid social insurance for 15 to under 20 years and reaches
the retirement age specified in Clause 2 Article 169 of the Labor Code will
receive the retirement pension.
4. The
Government shall provide for special cases of retirement age.”;
b)
Amendments to Article 55:
“Article
55. Conditions for receiving retirement pension in case of work capacity
reduction
1. When
an employee mentioned in Points a, b, c, d, g, h and i Clause 1 Article 2 of
this Law resigns after having paid social insurance for at least 20 years will
receive a lower retirement pension than the rate specified in Points a, b, c
Clause 1 Article 54 of this Law if:
a)
His/her age is younger than the retirement age specified in Clause 2 Article
169 of the Labor Code by up to 05 years and he/she suffers from 61% to under
81% work capacity reduction;
b)
His/her age is younger than the retirement age specified in Clause 2 Article
169 of the Labor Code by up to 10 years and he/she suffers from at least 81%
work capacity reduction; or
c) He/she
has at least 15 years’ doing laborious, toxic and dangerous occupations or
highly laborious, toxic and dangerous occupations on the lists of the Minister
of Labor, War Invalids and Social Affairs and suffers from at least 61% work
capacity reduction.
2. When
an employee mentioned in Points dd and e Clause 1 Article 2 of this Law resigns
after having paid social insurance for at least 20 years and suffers from at
least 61% work capacity reduction will receive a lower retirement pension than
the rate specified in Points a and b Clause 2 Article 54 of this Law if:
a)
His/her age is younger than the retirement age specified in Clause 2 Article
169 of the Labor Code by up to 10 years;
b) He/she
has at least 15 years’ doing highly laborious, toxic and dangerous occupations
on the lists of the Minister of Labor, War Invalids and Social Affairs .”;
c)
Amendments to Clause 1 of Article 73:
“1. A
worker will receive retirement pension when he/she:
a)
reaches the retirement age specified in Clause 2 Article 169 of the Labor Code;
and
b) has
paid social insurance for at least 20 years.”.
2.
Amendments to Article 32 of the Civil Procedure Code No. 92/2015/QH13:
a)
Revisions of the title and Clause 1 of Article 32; addition of Clauses 1a, 1b
and 1c after Clause 1 of Article 32:
Article
32. Labor disputes and labor-related disputes within the jurisdiction of the
court
1.
Individual labor disputes between employees and their employers shall be
settled through mediation by labor mediators, unless the mediation is
unsuccessful, the parties do not adhere to the agreements specified in the
successful mediation record, or the mediation is not initiated by the labor
mediator by the deadline prescribed by labor laws, or the labor dispute is:
a) over a
dismissal for disciplinary reasons or unilateral termination of an employment
contract;
b) over
compensation and allowances upon termination of an employment contract;
c)
between a domestic worker and his/her employer;
d) over
social insurance in accordance with social insurance laws; over health
insurance in accordance with health insurance laws ; over unemployment
insurance in accordance with employment laws; over insurance for occupational
accidents and occupational disease in accordance with occupational safety and
health laws;
dd) over
damages between an employee and the organization that dispatches the employee
to work overseas under a contract;
e)
between the outsourced worker and the client enterprise.
1a. In
case both parties agree to bring an individual labor dispute to a Labor Arbitration
Council but an arbitral tribunal is not established by the deadline prescribed
by labor laws, the arbitral tribunal does not issue a decision on dispute
settlement or a party does not adhere to the decision issued by the arbitral
tribunal, the dispute may be brought to Court.1b. In case a right-based
collective labor dispute has been undertaken by a labor mediator but the
mediation is unsuccessful, a party does not adhere to the successful mediation
record, or the mediation is not initiated by the labor mediator by the deadline
prescribed by labor laws, the dispute may be brought to Court.
1c. In
case both parties agree to bring a right-based collective labor dispute to a
Labor Arbitration Council but an arbitral tribunal is not established by the
deadline prescribed by labor laws, the arbitral tribunal does not issue a
decision on dispute settlement or a party does not adhere to the decision
issued by the arbitral tribunal, the dispute may be brought to Court.”;
b) Clause
2 of Article 32 is annulled.
Article 220. Entry in force
1. This
Labor Code shall enter into force as of 1st of January 2021.
The Labor
Code No. 10/2012/QH13 ceases to have effect from the effective date of this
Labor Code
2. From
the effective date of this Labor Code, the employment contracts, collective
bargaining agreements, lawful agreements that are not contrary to this Labor
Code or provide for more favorable rights and conditions of employees than may
continue to have effect, unless the parties agree to revise them according to this
Labor Code.
3. Labor
policies for officials and public employees, and persons working in the
People’s Army, People’s Police forces, social organizations, and members of
cooperatives, workers without labor relations shall be regulated by other
legislative documents though certain regulations of this Labor Code may still
apply.
This
Labor Code is ratified by the 14th National Assembly of Socialist
Republic of Vietnam during its 8th session on November 20, 2019.
|
|
PRESIDENT OF THE NATIONAL ASSEMBLY
Nguyen Thi Kim Ngan
|