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COUNCIL OF
MINISTERS
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SOCIALIST REPUBLIC
OF VIET NAM
Independence - Freedom – Happiness
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No. 165-HDBT
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Hanoi, May 12, 1992
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DECREE
ON
LABOUR CONTRACTS MAKING DETAILED PROVISIONS FOR THE IMPLEMENTATION OF THE
ORDINANCE ON LABOUR CONTRACTS
THE COUNCIL OF MINISTERS
Pursuant to the Law on the Organization of
the Council of Ministers dated 4 July 1981;
Pursuant to the Ordinance on Labour Contracts dated 30 August 1990;
On the recommendation of the Minister of Labour War Invalids and Social
Affairs.
DECREES
Chapter I.
GENERAL
PROVISIONS
Article 1.
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(a) Employees working in State run economic
units, State defense enterprises, and economic units of the people's armed
forces, excluding persons who have been appointed to positions in the State
public service;
(b) Employees in non-State economic units,
private businesses, or family owned businesses;
(c) Employees working in Government offices
at the central level, at the level of the provinces or district, and at
equivalent levels, excluding persons who have been appointed to positions in
the State public service;
(d) Vietnamese employees working for foreign
individuals, organizations, and establishments located in Vietnam, excluding
enterprises with foreign capital to which the provisions of Decree 233-HDBT of
the Council of Ministers dated 22 June 1990 apply.
2. A labour contract shall not apply to the
following:
(a) Persons who have been appointed to the
State public service pursuant to the provisions of Decree 169-HDBT of the
Council of Ministers dated 25 May 1991;
(b) Persons who have been appointed as
directors, chief accountants, and other persons employed in State run economic
units, and who receive salaries from State funds (for example, public health
workers and teachers);
(c) Persons belonging to the people's armed
forces: standing army, police, security forces; persons working in occupations
or special locations under the control of the Ministry of National Defense, the
Ministry of Interior, with the approval of the Ministry of Labour War Invalids
and Social Affairs;
(d) Persons working in Party organizations,
public communities, and social organizations pursuant to separate regulations.
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The labour contract
shall include the following essential matters in accordance with the provisions
contained in article 5 of the Ordinance:
1. All terms required by the laws on working
hours and breaks; occupational safety and hygiene; social insurance.
2. All terms mutually agreed upon including:
- Specification of the job, the level of
expertise and the level of technology required for the job;
- Wages or salaries adequate for the specific
type of job;
- Date of commencement, duration of any trial
period, and duration of the labour contract (if any);
- Specific location of the job.
3. All other terms mutually agreed upon which
are advantageous to the employee.
Article 3.
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1. All labour contracts for indefinite terms,
for terms exceeding one year, in respect of workers who are under fifteen (15)
years of age, and in respect of workers who perform heavy work, or who work in
toxic or dangerous environments, shall be in writing.
2. Labour contracts for specific or seasonal
jobs, for a term of less than one year, shall be oral or written.
Article 4.
A labour contract
shall be deemed to be void and of no effect in accordance with the provisions
contained in article 8 of the Ordinance in the following circumstances and
shall be dealt with as follows:
1. Where one party to the labour contract
does not have the requisite legal capacity such as the mentally ill, persons
evading the law, persons sentenced to jail, or prevented by the Court from
carrying on the same business, persons under the age of fifteen (15) years
without the consent of his or her father, mother, or legal guardians, and in
the other circumstances referred to in clause 1 of article 8 of the Ordinance.
2. Where labour inspectors have concluded
that a labour contract is totally void and that a labour contract shall have to
be terminated.
3. Where labour inspectors have concluded a
labour contract is partly invalid, both parties are required to agree on the
amendment of those parts of the labour contract which are invalid.
4. A labour contract shall be deemed to be
void as from the date of signing.
Chapter II.
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Article 5.
The responsibilities
of each party when entering into a labour contract shall be as follows:
1. An employee shall express his desire to
work either orally or by way of written application supported by a labour book
(if any).
2. An employer shall notify an employee of
the requirements of the job in relation to health, skills, wages, occupational
safety and hygiene conditions, internal labour regulations, and any other
rights which the employee is entitled to.
Article 6.
The procedure for
entering into a labour contract in accordance with the provisions of article 9
of the Ordinance is stipulated as follow:
1. A labour contract shall be signed directly
between the employer or person with authority and the employee or
representative of a group of employees who must be accompanied by documents
stating the name, age, home address, occupation, and signature of each
employee. In the case of a labour contract which is agreed to orally, the
employer must reach an agreement directly with each employee.
2. An employee may be party to more than one
labour contract with more than one employer provided that he is able to perform
fully all labour contracts to which he is a party.
Article 7.
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1. An indefinite term labour contract is a
contract which does not have terms previously agreed upon and can be terminated
at any time in accordance with the provisions of the law.
2. A definite term labour contract is a
contract for a term which is in excess of one year and stated in the contract.
3. A labour contract for a specific or
seasonal job is a contract for a term which is less than one year.
Article 8.
The contracting
parties to a labour contract in accordance with the provisions of article 12 of
the Ordinance are stipulated as follows:
1. The employer must be the head or the legal
representative of a corporation or the owner of a business in an economic
sector.
If the employer is a family or an individual,
the employer must have legal residency and be capable of ensuring the salaries
and other working conditions of employees.
2. An employee shall be a Vietnamese person
over fifteen (15) years of age who is capable of working. If the employee is
under fifteen (15) years of age, consent must be obtained from his or her
father, mother or legal guardian.
Article 9.
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1. In respect to the duration of a trial
period :
(a) For simple jobs, the duration shall not
exceed five days.
(b) For complicated jobs which involve
management, technology, and business, the duration shall not exceed thirty (30)
days.
2. At the end of the trial period the
employer must make a report on the results of the trial period. Where the
employer fails to make a report, the labour contract shall be deemed to remain
effective; if the trial period is agreed upon in a separate contract, that
contract shall convert to a labour contract.
3. The salary which shall apply during a
trial period shall be at least seventy (70) per cent of the normal level for
the job.
Article 10.
A labour contract
shall, in accordance with the provisions of article 14 of the Ordinance, be of
full force and effect in the following circumstances:
A labour contract shall take effect as from
the date of its signing or the date on which both parties agree.
As from the date a labour contract takes
effect, an employer has the right to terminate the labour contract if an
employee is absent from work, except in special cases. Conversely, if no work
is assigned to an employee, wages must still be paid for those days when the
employee is not working in accordance with the provisions of article 18 of this
Decree.
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In accordance with
the provisions of article 15, a labour book is stipulated as follows:
1. A labour book records changes in the work
of an employee, is the basic certificate used by the employee for the purpose
of obtaining work, and shall be the basis upon which the policies of the labour
law regime are determined.
2. A labour book shall be issued to the
persons referred to in clause 1 of article 1 of this Decree; it shall not be
issued to persons who enter into labour contracts for a specific or seasonal
job, or for jobs having a term of less than one year, or oral contracts.
3. Labour books shall be issued and
administered nationally by the Ministry of Labour War Invalids and Social
Affairs.
Chapter III.
PERFORMANCE
OF, TRANSFER OF, SUSPENSION OF, AND TERMINATION OF A LABOUR CONTRACT
Article 12.
In accordance with
the provisions of article 18 of the Ordinance, the reasons for the temporary
transfer of an employee to another place of work or another job are stipulated
as follows:
1. If, due to the requirements of production
or business, an employer has to transfer an employee to another place of work
or another type of job for more than thirty (30) days in one year (in total),
the employer must obtain the consent of the employee. If an employee does not
give his consent, the employer must not transfer the employee. If, due to the
fault of the employer, an employee has to stop work, the employee is entitled
to an allowance in accordance with the stop work provisions referred to in
clause 1 of article 18 of this Decree.
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If an employer does not comply with the stop
work provisions referred to clauses 1 and 2 of article 12 above, an employee
shall have the right to unilaterally terminate the labour contract.
3. If an employer temporarily transfers an
employee in accordance with the provisions of clauses 1 and 2 of article 18 of
the Ordinance, and the employee does not comply, the employee shall not be
entitled to the wages or salary payable during the period of not working, and
the employer shall have the right to unilaterally terminate the labour
contract.
Article 13.
In accordance with
the provisions of clauses 2 and 4 of article 19 of the Ordinance, the
performance of a labour contract shall be suspended in the following cases:
1. The employee has to carry out obligations
regulated by the law such as : representative duties in the National Assembly
and people's committees, jury duties, participation in the organization of
elections; giving evidence to a Court; military service; duties as a Party
member; duties in emergency situations such as natural disasters and fires.
2. In other circumstances agreed by both
parties: the employee requests to undertake studies locally or studies
overseas; is required to work for a specified period overseas; requests to take
holidays without pay.
In accordance with article 19 of the
Ordinance and article 13 of this Decree, in the case of the suspension of the
performance of a labour contract, an employee shall have the right to return to
his place of work to perform the labour contract agreed upon after the expiry
of or during the term of the period of suspension. An employer has the
responsibility to arrange for the employee to return to his former job, and, if
a different job is assigned to the employee, both parties must enter into a new
labour contract; if the employee has to stop work temporarily, he shall be
entitled to an allowance in accordance with the stop work provisions referred
to in article 18 of this Decree, or to terminate the labour contract in
accordance with the provisions of article 22 of the Ordinance.
Article 14.
Where a labour
contract is terminated in accordance with the provisions of articles 21, 22 and
24 of the Ordinance on Labour Contracts, the parties must give notice of the
termination either in writing or orally within the following time periods:
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2. In the case of definite term labour
contracts which are for a term exceeding one year, at least thirty (30) days.
3. In the case of labour contracts for a term
exceeding three months but less than one year, at least five days.
4. In the case of labour contracts for a term
not exceeding three months, at least one day.
The above notice periods for termination
commence from the date of receipt of written notice in relation to labour contracts
in writing and from the date of oral notice in relation to oral labour
contracts.
Article 15.
In accordance with
points (c) and (d) of clause 2 of article 21 of the Ordinance, an employee
shall have the right to unilaterally terminate a labour contract before the
expiry of the notice period in the following circumstances:
1. The employer mistreats the employee or the
employer's conduct offends the dignity and honor of the employee.
2. The employee is unable to continue
performing the contract for the following reasons:
(a) The employee, or his or her family has
changed the location of his or her place of residence;
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(c) The employee has to nurse a wife,
husband, father, mother, or child, as the case may be, who has been ill for
three consecutive months.
Article 16.
In accordance with
point (a) of clause 1 of article 22 of the Ordinance, an employer shall have
the right to unilaterally terminate a labour contract in the following
circumstances:
1. Depending on the form of the labour
contract, an employee, due to his own fault, has repeatedly, over a period of
one to three months, failed to carry out his or her duties in accordance with
the terms of the labour contract agreed upon.
2. The employee stops work without proper
reasons on three days in one month or on ten (10) days in one year (in total).
Article 17.
In accordance with
articles 23 and 25 of the Ordinance, the compensation and benefits to which an
employee is entitled upon the termination of the labour contract are stipulated
as follows:
1. In cases where both parties agree to the
termination of a labour contract in accordance with the provisions of article
23 of the Ordinance, an employee is entitled to the benefits stipulated in the
provisions of article 19 of this Decree.
2. In cases where an employer terminates the
labour contract in breach of the provisions of articles 21, 22, and 23 of the
Ordinance, and of article 10 of this Decree, the employer must pay compensation
for damages suffered by the employee in the following cases:
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(b) The level of compensation referred to
above and in clause 1 of article 25 of the Ordinance shall be calculated
according to the level of wages (salary) and wage allowances (if any) in force
at the time of the termination of the labour contract or prior to the employee
becoming ill or injured.
Article 18.
In accordance with
clause 2 of article 25 of the Ordinance, the stop work allowance is stipulated
as follows:
1. Where the work stoppage is due to the
fault of an employer, the employer must pay a stop work allowance in a sum
equal to the wages (salary) and wage allowances received by the employee just
prior to the work stoppage.
2. Where the work stoppage is due to a
natural disaster, fire, sudden stoppage of business operations, the
implementation of preventive measures and occupational safety controls, or
industrial accident, the employee shall be entitled to a stop work allowance in
a sum equal to at least seventy (70) per cent of the wages (salary) and wage
allowances received by the employee just prior to the work stoppage.
3. Where the work stoppage is due to the
fault of an employee, the employee shall not be entitled to a stop work
allowance and must pay for any damage caused to the employer in accordance with
a regime for material responsibility stipulated by the State.
Article 19.
In accordance with
clause 2 of article 25 of the Ordinance, an employee shall be entitled to a
retrenchment allowance or other benefits as follows:
1. In cases where a labour contract is
terminated in accordance with the provisions of clause 5 of article 20, points
(a), (b), and (c) of clause 2 of article 21, and point (d) and (e) of clause 1
of article 22 of the Ordinance, or of clauses 1 and 2 of article 12, and clause
2 of article 17 of this Decree: the employee shall be entitled to a
retrenchment allowance in a sum equal to fifty (50) per cent of the monthly
wages (salary) and wage allowances (if any) for every year that he was employed
by the employer.
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If the employee is, in the case of a male,
forty-five (45) or, in the case of a female, forty (40) years of age or more,
and has been working with the employer for five consecutive years or more, the
employee shall be entitled to an additional allowance in a sum equal to wages
(salary) and wage allowances (if any) for at least two months.
2. In cases where a labour contract for a
specific or seasonal job for a term exceeding three months but less than one
year is terminated in accordance with the provisions of clause 1 of this
article, the employee shall be entitled to an allowance in a sum equal to wages
(salary) and wage allowances (if any) for one month.
3. The retrenchment allowance shall be
calculated on the basis of the wages (salary) and wage allowances referred to
in clause 2 of article 17 of this Decree, and shall be paid in a lump sum
directly to the employee. In addition to the calculated allowance, an employee
who has been employed for more than one year shall be entitled to an allowance
(in respect of boat, coach, luggage, eating expenses) for the return of the
employee to his or her place of residence, in accordance with the regime in
force.
4. The allowances referred to above shall be
paid by the employer from an allowance fund of the entity. The fund shall be
established from deductions from the entity's profits. The Ministry of Finance
shall co-ordinate with the Ministry of Labour War Invalids and Social Affairs
to provide guidance for the establishment and use of the fund.
5. In every case where a labour contract is
terminated, the employee shall also be entitled to social insurance benefits in
accordance with State regulations.
Article 20.
In accordance with
the provisions of article 26 of the Ordinance, the responsibilities of each
party upon terminating a labour contract are stipulated as follows:
1. The employer shall return all files and
documents, and provide the necessary certificates to the employee at his
request; the employer shall settle all entitlements to wages, retrenchment
allowance, compensation, or other benefits with the employee (if any).
2. The employee shall return all files,
documents, equipment, and facilities used for carrying out the job, and settle
all outstanding debts (if any).
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Chapter IV.
RESOLUTION
OF LABOUR DISPUTES AND DEALING WITH BREACHES
Article 21.
The entities
responsible for the resolution of labour disputes shall include:
1. A labour reconciliation board of the
establishment shall have the responsibility of reconciling disputes between the
employer and the employee. The members of the board shall consist of equal
numbers of representatives of the employer and the executive committee of the
trade union (if any) or of the elected labour collective. The number of members
on the board shall be in proportion to the number of employees at the
establishment. Each party shall appoint representatives to the positions of
chairman and secretary of the board at each alternate meeting. The term of
office of the reconciliation board shall follow the term of office of the
executive committee of the trade union of the establishment.
2. A labour arbitration board shall include:
(a) Labour arbitration boards in provinces
and cities under central authority; and labour arbitration boards in districts
where it is considered necessary;
(b) Labour arbitration boards at central
level.
The labour office at each level shall form
and act as chairman of the labour arbitration board at the same level. The
members of the arbitration board shall consist of equal numbers of
representatives of the labour office, the trade union, and the employer. The
roster of members of the arbitration board shall be approved by the people's
committee on the recommendation of the labour office at the equivalent level;
the board shall nominate a member to be secretary.
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The responsibilities of labour arbitration
boards at all levels shall be determined by the Ministry of Labour War Invalids
and Social Affairs.
Article 22.
Labour reconciliation
boards at all establishments shall be responsible to receive petitions, and to
resolve all labour disputes in accordance with the stipulated procedures within
fifteen (15) days after receipt of a petition.
Boards shall invite both parties concerned to
a meeting to listen to their submissions; and if either one of the parties is
not present, in the absence of no proper reasons, the meeting of the board
shall still proceed, and if there are proper reasons, the meeting shall be
adjourned. In the event that the parties concerned do not consent to the
decision reached by the board, each party concerned shall have the right to
apply for an appeal within ten (10) days after the date the board issues its
decision; the reconciliation board shall have the responsibility of
transferring all the files relating to the dispute to an arbitration board at
an immediately higher level within five days after receipt of the appeal
application.
Article 23.
Labour arbitration
boards shall be responsible to conduct the arbitration in accordance with the
stipulated procedures, and resolve all labour disputes within thirty (30) days
after receipt of the files of a dispute from a labour reconciliation board. In
the case of a complicated dispute, the period for resolution can be extended by
ten (10) days provided that the decision of the chairman of the labour
arbitration board is obtained and sent to the parties concerned.
After inspecting and examining the matter,
the labour arbitration board shall reconcile the differences and resolve the
dispute directly with both parties concerned. In the event that the parties do
not agree with the decision of the arbitration board, they shall have the right
to appeal to a labour arbitration body at a higher level.
Article 24.
The decisions of
labour arbitration boards and the reconciliation statements of labour
reconciliation board of every establishment shall be implemented within ten
(10) days after receipt of the decision or statement by the parties. If the
decisions are not carried out voluntarily by the parties, the labour dispute
shall be referred to a court for judgment (unless the parties concerned have
applied for an appeal against the decision of the labour arbitration body at
the time).
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PROVISIONS
ON IMPLEMENTATION
Article 25.
1. Any labour
contract entered into before the coming into force of the Ordinance on Labour
Contracts shall be terminated if it is not in accordance with the provisions of
the Ordinance in whole or in part, provided that within three months after this
Decree becomes effective, the contract is re-entered into, amended, or added
to.
2. All employees working for organizations or
individuals in economic sectors must enter into a labour contract.
Article 26.
This Decree shall be
effective as of the date of its signing. This Decree shall repeal Decree 24-CP
dated 13 March 1963, Circular 184-TTg dated 16 July 1974, Decision 217-HDBT
dated 14 November 1987, and Decrees 27 and 28-HDBT dated 9 March 1988. Any
other official statements of the Council of Ministers which are inconsistent
with this Decree are hereby repealed.
Article 27.
The Minister of
Labour War Invalids and Social Affairs shall be responsible to guide the
implementation of this Decree.
Article 28.
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FOR THE COUNCIL OF
MINISTERS
VICE CHAIRMAN
Phan Van Khai