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NATIONAL
ASSEMBLY
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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Law No.
10/2012/QH13
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Hanoi, June
18, 2012
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LABOR CODE
Pursuant
to the 1992 Constitution of the Socialist Republic of Vietnam, which was
amended and supplemented under Resolution No. 51/2001/QH10;
The
National Assembly promulgates the Labor Code.
Chapter I
GENERAL
PROVISIONS
Article 1. Scope of regulation
The
Labor Code provides labor standards; rights, obligations and responsibilities
of employees, employers, employees’ representative organizations and employers’
representative organizations in industrial relations and other relations
directly related to industrial relations; and state management of labor.
Article 2. Subjects of application
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2.
Employers.
3.
Foreign employees who work in Vietnam.
4.
Other agencies, organizations and individuals directly related to industrial
relations.
Article 3. Interpretation of terms
In
this Code, the terms below are construed as follows:
1.
Employee means a person who is full 15 years or older, has the ability to
work, works under a labor contract, is paid with wage and is managed and
controlled by an employer.
2.
Employer means an enterprise, an agency, an organization, a cooperative, a
household or an individual that hires or employs employees under labor
contracts; if the employer is an individual, he/she must have full civil act
capacity.
3.
Employees’ collective means an organized group of employees working for the
same employer or in the same division within the organizational apparatus of an
employer.
4.
Representative organization of a grassroots-level employees’ collective means
the executive committee of the grassroots-level trade union or the executive
committee of the immediate higher-level trade union in a non-unionized
enterprise.
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6.
Industrial relation means a social relation arising from the hiring or
employment and wage payment between an employee and an employer.
7.
Labor dispute means a dispute over rights, obligations or interests which
arise between the parties in industrial relations.
Labor
dispute comprises individual labor dispute between an employee and an employer,
and collective labor dispute between an employees’ collective and an employer.
8.
Right-based collective labor dispute means a dispute between an employees’
collective and an employer which arises from different explanations and implementations
of the labor law, collective labor agreements, internal working regulations,
and other regulations and lawful agreements.
9.
Interest-based collective labor dispute means a labor dispute arising from
the request of an employees’ collective for the establishment of new working
conditions compared to those stipulated by the labor law, collective labor
agreement, internal working regulations, or other regulations and lawful
agreements reached in the negotiation process between the employees’ collective
and the employer.
10.
Forced labor means the use of force or threat to use force or other tricks
to force a person to work against his/her will.
Article 4. State policies on labor
1.
To guarantee the rights and legitimate interests of employees; to encourage
agreements providing employees with conditions more favorable than those
provided by the labor law; and to adopt policies which enable employees to
purchase shares and make capital contributions for production and business
development.
2.
To guarantee the rights and legitimate interests of employers, to ensure
lawful, democratic, fair and civilized labor management, and to promote their
social responsibility.
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4.
To adopt policies on the development and distribution of human resources; to
provide vocational training, training, retraining and improvement of
occupational knowledge and skills for employees, and give preferences for
employees with high professional and technical qualifications meeting the
requirements of national industrialization and modernization.
5.
To adopt policies on labor market development and diversify types of linkage
between labor supply and demand.
6.
To guide employees and employers to hold dialogues and collective bargains to
establish harmonious, stable and progressive industrial relations.
7.
To ensure gender equality principles; to stipulate the labor regime and social
policies to protect female employees as well as disabled, elderly and minor
employees.
Article 5. Rights and obligations of employees
1.
An employee has the following rights:
a/
To work, freely choose a job or occupation, to participate in vocational
training and to improve occupational skills and suffer no discrimination;
b/
To receive a wage commensurate with his/her occupational knowledge and skills
on the basis of an agreement reached with the employer; to receive labor
protection and work in assured conditions of labor safety and labor hygiene; to
take leaves according to the prescribed regime, paid annual leaves and enjoy
collective welfare benefits;
c/
To form and join and participate in activities of trade unions, occupational
associations and other organizations in accordance with law; to request and
participate in dialogues with the employer, implement democracy regulations and
be consulted at the workplace to protect his/her rights and legitimate interests;
and to participate in management activities according to the employer’s
regulations;
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e/
To go on strike.
2.
An employee has the following obligations:
a/
To perform the labor contract and collective labor agreement;
b/
To obey labor discipline and internal working regulations and follow lawful
administration of the employer;
c/
To implement the laws on social insurance and health insurance.
Article 6. Rights and obligations of employers
1.
An employer has the following rights:
a/
To recruit, arrange and manage employees according to the requirements of
production and business; to perform commendation work and handle violations of
labor discipline;
b/
To form, join and operate in occupational associations and other organizations
in accordance with law;
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d/
To temporarily close the workplace.
2.
An employer has the following obligations:
a/
To perform the labor contracts, collective labor agreement and other agreements
with employees, to respect the honor and dignity of employees;
b/
To establish a mechanism for and hold dialogue with the employees’ collective
at the enterprise and strictly implement the regulations on grassroots-level
democracy;
c/
To keep a labor management book and a wage book and produce them to competent
agencies upon request;
d/
To declare the use of labor within 30 days from the date of commencement of
operation, and report periodically on changes in the labor in the process of
operation to the local state management agency of labor;
e/
To implement other provisions of law on labor, social insurance and health
insurance.
Article 7. Industrial relations
1.
Industrial relations between an individual employee or the employees’
collective and an employer must be established through dialogue, negotiation
and agreement based on the principles of voluntariness, good faith, equality,
cooperation and mutual respect for each other’s rights and legitimate
interests.
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Article 8. Prohibited acts
1.
Discriminating on the basis of gender, race, skin color, social strata, marital
status, belief, religion, HIV infection, disabilities or for the reason
of establishing, joining trade unions and participating in trade union
activities.
2.
Maltreating employees and committing sexual harassment at the workplace.
3.
Forcing labor.
4.
Making use of apprenticeship or on-the-job training for the purpose of
self-seeking and exploiting labor, or enticing or compelling apprentices or
on-the-job trainees to carry out illegal activities.
5.
Using employees who have no vocational training or national occupational skills
certificates for the occupations or jobs which require employees who have
received vocational training or national occupational skills certificates.
6.
Enticing, promising or making false advertising to deceive employees or making
use of employment services or the sending of labor to work abroad under
contracts to commit illegal acts.
7.
Illegally using minor employees.
Chapter II
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Article 9. Employment and creation of employment
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 all people with working ability have access to
employment opportunities.
Article 10. The right of employees to work
1.
To work for any employer in any location that is not prohibited by law.
2.
To directly contact an employer or through an employment service institution in
order to find a job that meets his/her expectation, capacity, occupational
qualification, and health.
Article 11. The right of employers to recruit labor
An
employer has the right to recruit labor directly or through employment service
institutions and labor leasing institutions, to increase or reduce the number
of employees according to production and business requirements.
Article 12. State policies in support of employment
development
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Depending
on the socio-economic conditions of each period, the Government shall submit
the national target program on employment and vocational training to the
National Assembly for decision.
2.
To formulate the unemployment insurance policy and policies to encourage
self-employment and to assist employers who employ large numbers of employees
who are female, disabled and ethnic minority persons.
3.
To encourage and create favorable conditions for domestic and foreign
organizations and individuals to invest in production and business development
for employment creation.
4.
To support employers and employees to seek and expand overseas labor markets.
5.
To establish a National Employment Fund to provide concessional loans for
employment creation and other activities in accordance with law.
Article 13. Employment programs
1.
The People’s Committees of provinces and centrally run cities (below referred
to as provincial-level People Committees) shall develop and submit local
employment programs to the People’s Councils of the same level for decision.
2.
State agencies, enterprises, socio-political organizations and social
organizations and employers shall, within the scope of their respective tasks
and powers, participate in the implementation of employment programs.
Article 14. Employment service institutions
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2.
Employment service institutions include employment service centers and
employment service enterprises.
Employment
service centers are established and operate under the Government’s regulations.
Employment
service enterprises are established and operate under the Law on Enterprises
and must have a license to provide employment services granted by the
provincial-level state management agency of labor.
3.
Employment service institutions are entitled to collect charges and to tax
reduction and exemption in accordance the laws on charges and taxes.
Chapter III
LABOR
CONTRACT
Section 1. ENTRY INTO LABOR CONTRACTS
Article 15. Labor contract
Labor
contract is an agreement between an employee and an employer on a paid job,
working conditions and the rights and obligations of each party in industrial
relations.
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1.
A labor contract must be established in writing and made in two copies, one to
be kept by the employee and the other by the employer, except the case stated
in Clause 2 of this Article.
2.
For temporary jobs with a duration of under 3 months, the parties may enter
into a verbal labor contract.
Article 17. Principles of entry into a labor contract
1.
Voluntariness, fairness, good faith, cooperation and honesty.
2.
Freedom to enter into a labor contract which is not contrary to the law, the
collective labor agreement and social morality.
Article 18. Obligation to enter into a labor contract
1.
A labor contract must be directly entered into between an employee and an
employer before the employee is admitted.
For
an employee aged between full 15 years and under 18 years, the labor contract
must be entered into with the consent of his/her at-law representative.
2.
For a seasonal or specific job that has a duration of under 12 months, a group
of employees may authorize a member of the group to enter into a written labor
contract; in this case, such labor contract is effective in the same manner as
if it is entered into with each of the employees.
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Article 19. Obligation to provide information before
entering into a labor contract
1.
An employer shall provide an employee with information about the job,
workplace, working conditions, working hours, rest time, occupational safety and
hygiene, wage, forms of wage payment, social insurance, health insurance,
regulations on business confidentiality, technological confidentiality, and
other issues directly related to the entry into the labor contract as requested
by the employee.
2.
The employee shall provide the employer with information about his/her full
name, age, gender, residence address, education level, occupational skills and
qualification, health conditions and other issues directly related to the entry
into a labor contract as requested by the employer.
Article 20. Prohibited acts of employers when entering into
and performing labor contracts
1.
Keeping the employees’ original identity cards, diplomas and certificates.
2.
Requesting employees to make a deposit in cash or property as security for the
performance of labor contracts.
Article 21. Entry into labor contracts with more than one
employer
An
employee may enter into labor contracts with more than one employer, provided
that he/she fully performs all the contents of the entered contracts.
In
case an employee enters into labor contracts with more than one employer,
his/her participation in social insurance and health insurance complies with
the Government’s regulations.
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1.
A labor contract must be entered into in one of the following types:
a/
Indefinite-term labor contract;
An
indefinite-term labor contract is a contract in which the two parties do not
determine the duration and the time of termination of the contract.
b/
Definite-term labor contract;
A
definite-term labor contract is a contract in which the two parties determine
the duration and the time of termination of the contract within a period of
between 12 months and 36 months.
c/
A seasonal or work-specific labor contract that has a duration of under 12
months.
2.
When a labor contract stipulated at Points b and c, Clause 1 of this Article
expires and the employee continues working, within thirty (30) days from the
date of expiration of the contract, the two parties shall sign a new labor
contract; if no new labor contract is entered into, the contract entered into
under Point b, Clause 1 of this Article will become an indefinite-term labor
contract and the contract entered into under Point c, Clause 1 of this Article
will become a definite-term labor contract with a duration of 24 months.
In
case the two parties enter into a new labor contract with a definite term, only
1 additional definite-term labor contract may be signed; after that, if the
employee continues working, an indefinite-term contract must be entered into.
3.
It is prohibited to enter into a seasonal or work-specific labor contract of
under 12 months for a regular job which has a duration of more than 12 months,
except the case of temporary replacement of an employee who has taken leave for
military duty, pregnancy and maternity, sickness, labor accident or other
temporary leaves.
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1.
A labor contract must have the following principal contents:
a/
Name and address of the employer or the lawful representative of the employer;
b/
Full name, date of birth, gender, residence address, identity card number or
other lawful documents of the employee;
c/
Job and workplace;
d/
Term of the labor contract;
e/
Wage, form of wage payment, deadline for wage payment, wage-based allowances
and other additional payments;
f/
Regimes for promotion and wage raise;
g/
Working time, rest time;
h/
Labor protection equipment for the employee;
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j/
Training, retraining and occupational skill improvement.
2.
When an employee performs a job which is directly related to business or
technology secrets as prescribed by law, the employer may reach a written
agreement with the employee on the content and duration of protection of
business or technology secrets, and benefits and compensation in case of
violation by the employee.
3.
For employees working in agriculture, forestry, fishery or salt production,
based on the type of job, both parties may skip some principal contents of the
labor contract and reach additional agreements on settlement measures when the
contract performance is affected by natural disaster, fire or weather.
4.
The contents of a labor contract with an employee who is hired to work as director
of a state-invested enterprise are stipulated by the Government.
Article 24. Annexes to a labor contract
1.
An annex to a labor contract is an integral part of the labor contract and is
as valid as the labor contract.
2.
An annex to a labor contract details some provisions or amends or supplements
the contract.
In
case an annex to a labor contract details some provisions that lead to a
different understanding of the labor contract, the contents of the labor
contract prevail.
In
case an annex amends or supplements the labor contract, it must specify the
amended or supplemented provisions and the time it takes effect.
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A
labor contract takes effect on the date it is entered into by the parties, unless
otherwise agreed upon by both parties or provided by law.
Article 26. Probation
1.
An employer and an employee may reach agreement on the probation and the rights
and obligations of the two parties during the probation period. If reaching
agreement on the probation, the two parties may enter into a probation
contract.
A
probation contract must have the contents specified at Points a, b, c, d, e, g
and h, Clause 1, Article 23 of this Code.
2.
Employees working under seasonal labor contracts are not subject to probation.
Article 27. Probation period
The
probation period must be based on the nature and complexity of the job but
probation is applied only once for each job and assure the following
conditions:
1.
It does not exceed 60 days for posts which require professional and technical
qualification of collegial or higher level.
2.
It does not exceed 30 days for posts which require professional and technical
qualifications of intermediate vocational level, professional secondary level,
or for technical workers and skilled employees.
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Article 28. Wage during the probation period
The
wage for an employee during the probation period must be agreed upon by the two
parties but must be at least equal to 85% of the wage for the job.
Article 29. Expiry of the probation period
1.
If the probational job is satisfactory, the employer shall sign a labor
contract with the employee.
2.
During the probation period, each party may cancel the probation agreement
without prior notice and compensation if the probational job fails to meet the
requirements that have been agreed by the two parties.
Section 2. PERFORMANCE OF LABOR CONTRACTS
Article 30. Performance of jobs under a labor contract
The
jobs under a labor contract must be performed by the employee who has entered
into the contract. The workplace may be as indicated in the labor contract or
otherwise agreed upon between the two parties.
Article 31. Assignment of employees to perform jobs which
are not stated in labor contracts
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2.
When an employer temporarily assigns an employee to perform a job which is not
stated the labor contract, the employer shall inform the employee at least 3
working days in advance, clearly stating the duration of temporary work and the
assigned work which must be suitable to the health and gender of the employee.
3.
The employee who performs the job as stipulated in Clause 1 of this Article is
entitled to a wage for the new job; if the wage for the new job is lower than
the previous wage, he/she is entitled to the previous wage for 30 working days.
The wage for the new job must be at least 85% of the previous wage but not
lower than the regional minimum wage stipulated by the Government.
Article 32. Cases of suspension of a labor contract
1.
The employee is called up for military service.
2.
The employee is held in custody or detention in accordance with the criminal
procedure law.
3.
The employee is subject to a decision on application of the measure of
consignment to a reformatory, compulsory drug detoxification center or
compulsory education institution.
4.
The female employee is pregnant in accordance with Article 156 of this Code.
5.
Other cases as agreed upon by the two parties.
Article 33. Reinstatement of employees upon expiry of the
period of suspension of labor contracts
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Article 34. Part-time employees
1.
Part-time employee is a person who works for less than the normal daily or
weekly working hours as provided by the labor law, the collective labor
agreement of the enterprise or the sector or the employer’s regulations.
2.
An employee may negotiate with the employer on work on a part-time basis when
entering into a labor contract.
3.
Part-time employees are entitled to a wage and have the same rights and
obligations as full-time employees, and are entitled to equal opportunities and
to non-discrimination and assured labor safety and hygiene.
Section 3. MODIFICATION, SUPPLEMENTATION AND TERMINATION OF
LABOR CONTRACTS
Article 35. Modification and supplementation of a labor
contract
1.
During the performance of a labor contract, any party that requests to modify
or supplement the contents of the labor contract shall notify at least 3
working days in advance to the other party of the contents to be modified or
supplemented.
2.
In case the two parties can reach an agreement, the modification or
supplementation of the labor contract must be carried out by signing an annex
to the labor contract or signing a new labor contract.
3.
In case the two parties cannot reach an agreement on the modification or
supplementation of the labor contract, they shall continue performing the labor
contract already entered into.
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1.
The labor contract expires, except the case specified in Clause 6, Article 192
of this Code.
2.
The work stated in the labor contract has been completed.
3.
Both parties agree to terminate the labor contract.
4.
The employee fully meets the requirements on the time of payment of social
insurance premiums and the age of retirement stated in Article 187 of this
Code.
5.
The employee is sentenced to imprisonment or death or is prohibited from
performing the job stated in the labor contract under a legally effective
judgment or ruling of a court.
6.
The employee dies or is declared by a court to have lost civil act capacity, be
missing or dead.
7.
The individual employer dies or is declared by a court to have lost civil act
capacity, be missing or dead; the institutional employer terminates operation.
8.
The employee is dismissed under Clause 3, Article 125 of this Code.
9.
The employee unilaterally terminates the labor contract under Article 37 of
this Code.
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Article 37. The right of employees to unilaterally
terminate labor contracts
1.
An employee working under a definite-term labor contract, a seasonal labor
contract or performing a certain job of under 12 months may unilaterally
terminate the labor contract prior to its expiry in the following cases:
a/
He/she is not assigned to the job or workplace or is not given the working
conditions as agreed in the labor contract;
b/
He/she is not paid in full or on time as agreed in the labor contract;
c/
He/she is maltreated, sexually harassed or is subject to forced labor;
d/
He/she is unable to continue performing the labor contract due to personal or
family difficulties;
e/
He/she is elected to perform a full-time duty in a people-elected office or is
appointed to hold a position in the state apparatus;
f/
A female employee who is pregnant and must take leave as prescribed by a
competent health establishment;
g/
If he/she is sick or has an accident and remains unable to work after having
received treatment for 90 consecutive days, in case he/she works under a
definite-term labor contract, or for a quarter of the contract’s term, in case
he/she works under a labor contract for a seasonal job or a specific job of
under 12 months.
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a/
At least 3 working days in advance, in the case specified at Point a, b, c or
g, Clause 1 of this Article;
b/
At least 30 days in advance for a definite-term labor contract; at least 3
working days for a seasonal or work-specific labor or a specific job of under
12 months in the case specified at Point d or e, Clause 1 of this Article;
c/
In the case specified at Point f, Clause 1 of this Article, a prior notice
should be given to the employer in accordance with Article 156 of this Code.
3.
An employee working under an indefinite-term labor contract may unilaterally
terminate the labor contract provided that he/she informs such to the employer
at least 45 days in advance, except the case specified in Article 156 of this
Code.
Article 38. The right of employers to unilaterally
terminate labor contracts
1.
An employer may unilaterally terminate a labor contract in the following cases:
a/
The employee often fails to perform his/her job stated in the labor contract;
b/
The employee is sick or has an accident and remains unable to work after having
received treatment for 12 consecutive months, in case he/she works under an
indefinite-term labor contract, or for 6 consecutive months, in case he/she
works under a definite-term labor contract, or more than half the term of the
labor contract, in case he/she works under a labor contract for a seasonal job
or a specific job of under 12 months.
When
the employee’s health has recovered, he/she must be considered for continued
entry into the labor contract;
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d/
The employee is absent from the workplace after the time limit specified in
Article 33 of this Code.
2.
When unilaterally terminating a labor contract, the employer shall notify the
employee in advance:
a/
At least 45 days, for indefinite-term labor contracts;
b/
At least 30 days, for definite-term labor contracts;
c/
At least 3 working days, for seasonal or work-specific labor contracts of under
12 months as stipulated at Point b, Clause 1 of this Article.
Article 39. Cases in which an employer is prohibited from unilaterally
terminating a labor contract
1.
The employee is sick or has a work accident or occupational disease and is
being treated or nursed under the decision of a competent health establishment,
except the case specified at Point b, Clause 1, Article 38 of this Code.
2.
The employee is on annual leave, personal leave or any other types of leave
permitted by the employer.
3.
The employee is a female referred to in Clause 3, Article 155 of this Code.
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Article 40. Cancellation of unilateral termination of a
labor contract
Each
party may cancel its unilateral termination of the labor contract at any time
prior to the expiry of the time limit for prior notice by a written notification,
provided that such cancellation is agreed by the other party.
Article 41. Illegal unilateral termination of a labor
contract
The
unilateral termination of a labor contract is illegal in the cases which do not
comply with Articles 37, 38 and 39 of this Code.
Article 42. Obligations of an employer when unilaterally
terminating a labor contract illegally
1.
To reinstate the employee in accordance with the original labor contract; to
pay the wage and social insurance and health insurance premiums for the period
during which the employee was not allowed to work, plus at least 2 months’ wage
in accordance with the labor contract.
2.
In case the employee does not wish to return to work, in addition to the
compensation stipulated in Clause 1 of this Article, the employer shall pay a
severance allowance in accordance with Article 48 of this Code.
3.
In case the employer does not want to reinstate the employee and the employee
agrees, in addition to the compensation stipulated in Clause 1 of this Article
and the severance allowance stipulated in Article 48 of this Code, the two
parties shall negotiate on an additional compensation which must be at least
equal to 2 months’ wage in accordance with the labor contract in order to
terminate the labor contract.
4.
In case the position or job agreed in the labor contract is no longer vacant
and the employee still wishes to work, the employer shall pay the compensation
stipulated in Clause 1 of this Article and both parties shall negotiate to
modify and supplement the labor contract.
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Article 43. Obligations of an employee when unilaterally
terminating a labor contract illegally
1.
Not to be entitled to a severance allowance and to compensate the employer half
of a month’s wage in accordance with the labor contract.
2.
If violating the provision on the time of prior notice, to compensate the
employer an amount equivalent to the employee’s wage for working days without
prior notice.
3.
To reimburse training costs to the employer in accordance with Article 62 of
this Code.
Article 44. Obligations of an employer in case of changing
structure, technology or economic reasons
1.
In case there is a change in the structure or technology that affects the
employment of many employees, the employer shall elaborate and implement a labor
utilization plan in accordance with Article 46 of this Code. In case new jobs
are created, priority must be given to re-training these employees for
continued employment.
In
case the employer cannot create new jobs and have to dismiss employees, the employer
shall pay job-loss allowances to the employees in accordance with Article 49 of
this Code.
2.
In case more than one employee face the risk of unemployment for economic
reasons, the employer shall elaborate and implement a labor utilization plan in
accordance with Article 46 of this Code.
In
case the employer cannot employ and have to dismiss employees, the employer
shall pay job-loss allowances to the employees in accordance with Article 49 of
this Code.
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Article 45. Obligations of an employer in case of merger,
consolidation, split or separation of enterprises or cooperatives
1.
In case of merging, consolidating, splitting or separating an enterprise or a cooperative,
the succeeding employer shall continue employing the existing workforce and
modify and supplement the labor contracts.
In
case the existing workforce cannot be fully employed, the succeeding employer
shall elaborate and implement a labor utilization plan in accordance with
Article 46 of this Code.
2.
In case of transferring asset ownership or use rights of an enterprise, the
preceding employer shall elaborate a labor utilization plan in accordance with
Article 46 of this Code.
3.
In case of dismissing an employee in accordance with this Article, the employer
shall pay a job-loss allowance to the employee in accordance with Article 49 of
this Code.
Article 46. Labor utilization plan
1.
A labor utilization plan must have the following principal contents:
a/
The lists and numbers of employees to be further employed and employees to be
re-trained for continued employment;
b/
The list and number of employees to be retired;
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d/
Measures and financial sources for implementing the plan.
2.
The labor utilization plan must be elaborated with the participation of the
representative organization of the grassroots-level employees’ collective.
Article 47. Responsibilities of an employer in case of
terminating labor contracts
1.
At least 15 days before the date of expiry of a definite-term labor contract,
the employer shall give a written notice of the time of termination of the
contract to the employee concerned.
2.
Within 7 working days after termination of a labor contract, the two parties
shall make all payments related to the interests of each party; in special
cases, this time limit may be extended but must not exceed 30 days.
3.
The employer shall complete the confirmation procedure and return the social
insurance book and other papers of the employee which are kept by the employer.
4.
In case an enterprise or a cooperative has its operation terminated, is
dissolved or goes bankrupt, the payment of wages, severance allowances, social
insurance, health insurance, unemployment insurance and other benefits of its
employees according to the collective labor agreement and signed labor
contracts will be prioritized.
Article 48. Severance allowance
1.
In case a labor contract terminates in accordance with Clause 1, 2, 3, 5, 6, 7,
9 or 10, Article 36 of this Code, the employer shall pay a severance allowance
to the employee who has worked regularly for full 12 months or longer at the
rate of half of a month’s wage for each working year.
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3.
The wage used for the calculation of severance allowance is the average wage in
accordance with the labor contract during 6 months preceding the time the
employee loses his/her work.
Article 49. Job-loss allowance
1.
An employer shall pay a job-loss allowance to an employee who loses his/her job
under Article 44 or 45 of this Code and has worked regularly for the employer
for 12 months or longer. The job-loss allowance is equal to 1 month’s wage for
each working year, but must not be lower than 2 months’ wage.
2.
The working period used for the calculation of job-loss allowance is the total
time during which the employee actually works for the employer minus the time
during which the employee benefits from unemployment insurance in accordance
with the Law of Social Insurance and the working period for which the employer
has paid a severance allowance to the employee.
3.
The wage used for the calculation of job-loss allowance is the average wage in
accordance with the labor contract during 6 months preceding the time the
employee loses his/her job.
Section 4. INVALID LABOR CONTRACTS
Article 50. Invalid labor contracts
1.
A labor contract is wholly invalid in one of the following cases:
a/
The whole contents of the labor contract are illegal;
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c/
The job agreed upon in the labor contract is prohibited by law;
d/
The contents of the labor contract limit or prevent the employee from
exercising the right to establish and join trade unions and participate in
trade union activities.
2.
A labor contract is partially invalid when one of its contents is illegal but
does not affect the remaining contents of the labor contract.
3.
In case part or the whole of the labor contract provides the employee’s
benefits lower than those provided by the labor law, internal labor regulations
and collective labor agreement that are currently effective or the contents of
the labor contract limit other rights of the employee, such part or the whole
of the labor contract is invalid.
Article 51. Competence to declare labor contract to be
invalid
1.
The labor inspectorates and people’s courts are competent to declare labor
contracts to be invalid.
2.
The Government shall provide the order and procedures for labor inspectorates
to declare labor contracts to be invalid.
Article 52. Handling of invalid labor contracts
1.
A labor contract which is declared to be partially invalid will be handled as
follows:
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b/
The invalid part of the labor contract must be modified and supplemented to
conform with the collective labor agreement or the labor law.
2.
A labor contract which is declared to be wholly invalid will be handled as
follows:
a/
In case it is signed by an incompetent person as specified at Point b, Clause
1, Article 50 of this Code, the state management agency of labor shall guide
the parties to re-sign it;
b/
The rights, obligations and benefits of the employee will be settled in
accordance with law.
3.
The Government shall detail this Article.
Section 5. LABOR LEASE
Article 53. Labor lease
1.
Labor lease means that an enterprise licensed for labor lease recruits an
employee to work for another employer and the employee is managed by the hiring
employer while still maintaining industrial relations with the leasing
enterprise.
2.
Labor lease is a conditional business line applicable only to certain jobs.
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1.
A labor leasing enterprise shall pay a deposit and obtain a license for labor
lease.
2.
The duration of labor lease must not exceed 12 months.
3.
The Government shall provide the licensing of labor lease, the payment of
deposits and the list of jobs allowed for labor lease.
Article 55. Labor leasing contract
1.
The labor leasing enterprise and the hiring party shall sign a written labor
leasing contract, which is made in 2 copies, each to be kept by one party.
2.
A labor leasing contract must contain the following principal contents:
a/
Location of the workplace, working position for the leased employee, detailed
description of the job and specific requirements for the leased employee;
b/
Duration of the lease; the starting time of the lease;
c/
Working time, rest time, occupational safety and hygiene conditions at the
workplace;
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3.
The labor leasing contract must not contain any agreement on the rights and
benefits of the employee that are less favorable than those agreed upon in the
labor contract signed between the employee and the labor leasing enterprise.
Article 56. Rights and obligations of a labor leasing
enterprise
1.
To ensure supply of a skilled employee who meets the requirements of the hiring
party and the labor contract signed with the employee.
2.
To inform the leased employee of the contents of the labor leasing contract.
3.
To sign a labor contract with the employee in accordance with this Code.
4.
To provide the hiring party with a brief personal record of the leased employee
and his/her demands.
5.
To perform the obligations of an employer in accordance with this Code; to pay
wage, wage for public holidays and annual leaves, wage of work suspension,
severance allowance, job-loss allowance; compulsory social insurance, health
insurance and unemployment insurance premiums for the employee in accordance
with law.
To
ensure that the wage of the leased employee is not lower than that of a normal
employee of the hiring party who has the same qualification and performs the
same job or job of equal value.
6.
To make a dossier stating the number of leased employees, the hiring party and
leasing charges, and report them to the provincial-level state management
agency of labor.
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Article 57. Rights and obligations of the hiring party
1.
To inform and guide the leased employee to understand its internal working
regulations and other regulations.
2.
Not to discriminate between the leased employee and its own employees regarding
working conditions.
3.
To negotiate with the leased employee on working at night or overtime when such
working is not included in the labor leasing contract.
4.
Not to sub-lease the leased employee.
5.
To negotiate with the leased employee and the labor leasing enterprise in order
to officially employ this employee in case the labor contract between the
leased employee and the labor leasing enterprise have not yet expired.
6.
To return to the labor leasing enterprise the leased employee who fails to meet
the requirements as agreed or who violates labor discipline.
7.
To provide evidence of the leased employee’s violation of labor discipline for
the labor leasing enterprise to consider and discipline such employee.
Article 58. Rights and obligations of a leased employee
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2.
To comply with the internal labor regulations, labor discipline, the lawful
management and the collective labor agreement of the hiring party.
3.
To be paid with a wage not lower than that of employees of the hiring party who
have the same qualification and perform the same job or job of equal value.
4.
To lodge a complaint with the labor leasing enterprise when the hiring party
violates agreements in the labor leasing contract.
5.
To exercise the right to unilaterally terminate the labor contract with the
labor leasing enterprise in accordance with Article 37 of this Code.
6.
To negotiate to sign a labor contract with the hiring party after terminating
the labor contract with the labor leasing enterprise.
Chapter IV
APPRENTICESHIP,
TRAINING AND RETRAINING FOR VOCATIONAL QUALIFICATION AND SKILL IMPROVEMENT
Article 59. Apprenticeship and vocational training
1.
An employee is entitled to choose an occupation and apprenticeship at a
workplace which is appropriate to his/her employment demand.
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Article 60. Responsibilities of an employer for training
and retraining for vocational qualification and skill improvement
1.
An employer shall prepare annual training plans and budgets and organize
training for improving vocational qualifications and skills for his/her current
employees and training for employees before switching them to perform other
jobs.
2.
An employer shall report on the results of vocational qualification and skill
improvement training to the provincial-level state management agency of labor
in its annual report on labor.
Article 61. Apprenticeship and on-the-job training to work
for the employer
1.
An employer that recruits apprentices or on-the-job trainees to work for the
employer does not have to register such vocational training activity and may
not collect tuition fees.
In
this case an apprentice or on-the-job trainee must be at least full 14 years
old and have appropriate health conditions required by the relevant occupation,
except for some occupations specified by the Ministry of Labor, War Invalids
and Social Affairs.
The
two parties shall enter into a vocational training contract, which must be made
in 2 copies, each to be kept by one party.
2.
During the period of apprenticeship or on-the-job training, if the apprentice
or the on-the-job trainee directly makes, or participates in the making of,
qualified products, he/she must be paid with a wage by the employer at a level
agreed by the two parties.
3.
Upon the expiry of the apprenticeship or on-the-job training period, the two
parties shall enter into a labor contract in accordance with this Code.
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Article 62. Vocational training contract between an
employer and an employee and job training expenses
1.
The two parties shall enter into a vocational training contract in case the
employee will be trained for vocational qualification and skill improvement or
re-trained at home or abroad with the employer’s fund, including the fund
donated by the employer’s partner.
A
vocational training contract must be made in 2 copies, each to be kept by one
party.
2.
A vocational training contract must have the following principal contents:
a/
The trained occupation;
b/
Training venue; training period;
c/
Training expenses;
d/
The period during which the employee commits to working for the employer after
training;
e/
Responsibility to reimburse training expenses;
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3.
Training expenses are those accompanied by valid documents on payment for
trainers, training materials, training venues, machinery and equipment,
practicing materials, support for learners and wages and social insurance and
health insurance premiums paid for learners during the training. In case an
employee is sent to a foreign country for training, training expenses also
include travel and living expenses during the period of overseas stay.
Chapter V
DIALOGUE
AT WORKPLACE, COLLECTIVE BARGAINING, COLLECTIVE LABOR AGREEMENTS
Section 1. DIALOGUE AT WORKPLACE
Article 63. Purposes and forms of dialogue at workplace
1.
Dialogue at workplace aims at sharing information and strengthening
understanding between employers and employees for the building of industrial
relations at workplace.
2.
Dialogue at workplace is conducted through direct communication between
employees and employers or between the representatives of the employees’
collectives and employers, ensuring the implementation of the regulations on
grassroots-level democracy.
3.
Employers and employees are obliged to implement the regulations on
grassroots-level democracy at workplace in accordance with the Government’s
regulations.
Article 64. Issues of dialogue at workplace
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2.
Performance of labor contracts, collective labor agreement, internal
regulations and other commitments and agreements at workplace.
3.
Working conditions.
4.
Requests of individual employees and the employees’ collective to the employer.
5.
Requests of the employer to individual employees and the employees’ collective.
6.
Other issues which concern the two parties.
Article 65. Conducting of dialogue at workplace
1.
Dialogue at workplace must be conducted once every 3 months or at the request
of either party.
2.
Employers are obliged to arrange venue and other physical conditions for
dialogue at workplace.
Section 2. COLLECTIVE BARGAINING
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Collective
bargaining is the discussion and negotiation between the employees’ collective
and the employer in order to:
1.
Build harmonious, stable and progressive industrial relations;
2.
Establish new working conditions as a basis for the signing of the collective
labor agreement;
3.
Resolve problems and difficulties in the exercise of rights and performance of
obligations by each party in industrial relations.
Article 67. Principles of collective bargaining
1.
Collective bargaining must be carried out on the principles of good faith,
equality, cooperativeness, publicity and transparency.
2.
Collective bargaining must be carried out on a periodical or unexpected basis.
3.
Collective bargaining must be carried out at a place agreed upon by two
parties.
Article 68. The right to request collective bargaining
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2.
In case either party cannot participate in the bargaining meeting at the time
as agreed upon, it may request to postpone the bargaining for a maximum of 30
days counted from the date of receipt of the request for collective bargaining.
3.
In case one party refuses the bargaining or does not conduct the bargaining
within the time limit stated in this Article, the other party may carry out the
procedures to request labor dispute settlement in accordance with law.
Article 69. Representatives for collective bargaining
1.
Representatives for collective bargaining are provided as follows:
a/
The representative for the employees’ collective in collective bargaining at
the enterprise level is the representative organization of the grassroots-
level employees’ collective; the representative for the employees’ collective
in collective bargaining at sectoral level is the representative of the
executive committee of the sectoral trade union;
b/
The representative of the employer in collective bargaining at the enterprise
level is the employer or a representative of the employer; the representative
on the employer’s side in collective bargaining at the sectoral level is the
representative of the sectoral employers’ representative organization.
2.
The number of persons of each party to attend a bargaining meeting must be
agreed by the two parties.
Article 70. Issues for collective bargaining
1.
Wages, bonuses, allowances and pay rise.
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3.
Ensuring employment for employees.
4.
Ensuring occupational safety and hygiene; implementation of the internal
working regulations.
5.
Other issues that concern the two parties.
Article 71. Process of collective bargaining
1.
The process of preparation for collective bargaining is provided as follows:
a/
At least 10 days before a collective bargaining meeting, at the request of the
employees’ collective, the employer shall provide information about the
production and business situation, except business and technology secrets of
the employer;
b/
Collection of comments of the employees’ collective.
The
bargaining representative of the employees’ collective shall directly collect
comments of the employees’ collective or indirectly through a conference of
employees’ delegates on the employees’ proposals to the employer and the
employer’s proposals to the employees’ collective;
c/
Notification of issues for collective bargaining.
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2.
The process of conducting collective bargaining is provided as follows:
a/
Organization of a collective bargaining meeting.
The
employer shall hold a collective bargaining meeting at the time and venue
agreed by the two parties.
Collective
bargaining meetings must be recorded in minutes which must specify issues that
have been agreed upon by the two parties, the tentative time for signing an
agreement on the agreed issues; and issues on which opinions remain divergent.
b/
Minutes of collective bargaining meetings must be signed by the representative
of the employees’ collective, the employer and the preparer of the minutes.
3.
Within 15 days after the end of a collective bargaining meeting, the bargaining
representative of the employees’ collective shall publicly announce the minutes
of the meeting to the employees’ collective for information and collect votes
of the employees’ collective on the agreed issues.
4.
In case the negotiation does not succeed, either party may continue requesting
bargaining or carry out the procedures for labor dispute settlement in
accordance with this Code.
Article 72. Responsibilities of the trade union, the
employer’s representative organization and the state management agency of labor
in collective bargaining
1.
To organize training in collective bargaining skills for persons to participate
in collective bargaining.
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3.
To provide and exchange information relating to the collective bargaining.
Section 3. COLLECTIVE LABOR AGREEMENTS
Article 73. Collective labor agreements
1.
Collective labor agreement is a written agreement between the employees’
collective and the employer on working conditions which have been agreed upon
by the two sides through collective bargaining.
Collective
labor agreements include enterprise-level collective labor agreement,
sectoral-level collective labor agreement and other types of collective labor
agreement as stipulated by the Government.
2.
The content of a collective labor agreement must not be against the labor law
and must be more favorable for the employees than what is provided by law.
Article 74. Signing of a collective labor agreement
1.
A collective labor agreement is signed by the representative of the employees’
collective and the employer or the representative of the employer.
2.
A collective labor agreement may be signed only when the parties have reached
the agreement at the collective bargaining meetings and:
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b/
Over 50% of the representatives of the executive committee of the
grassroots-level trade union or the immediate higher-level trade union vote for
the issues for collective bargaining, in case of signing a sectoral-level
collective labor agreement;
c/
For other types of collective labor agreement, the Government’s regulations
must be complied with.
3.
Once the collective labor agreement is signed, the employer shall inform it to
all of his/her employees.
Article 75. Sending of the collective labor agreement to
state management agencies
Within
10 working days from the date of signing, the employer or the employer’s
representative shall send a copy of the collective labor agreement to:
1.
The provincial-level state management agency of labor, for enterprise- level
collective labor agreements.
2.
The Ministry of Labor, War Invalids and Social Affairs, for sectoral- level
collective labor agreements and other types of collective labor agreement.
Article 76. Effective date of a collective labor agreement
The
effective date of a collective labor agreement must be indicated in the
agreement. In case the effective date is not indicated in the agreement, the
effective date is the date of its signing.
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1.
The parties may modify and supplement the collective labor agreement within the
following time limit:
a/
After 3 months of implementation, if the collective labor agreement has an
effective duration of under 1 year;
b/
After 6 months of implementation, if the collective labor agreement has an
effective duration of between 1 year and 3 years.
2.
In case there are changes in legal provisions that make the collective labor
agreement no longer conform to the law, the two parties shall modify and
supplement the collective labor agreement within 15 days after the changed
legal provisions take effect.
Pending
the modification and supplementation of the collective labor agreement, the
rights and interests of the employees comply with the provisions of law.
3.
The modification and supplementation of a collective labor agreement must be made
as for the signing of a collective labor agreement.
Article 78. Invalid collective labor agreement
1.
A collective labor agreement is partially invalid if one or more of its
contents is/are contrary to law.
2.
A collective labor agreement is wholly invalid in any of the following cases:
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b/
The agreement is signed by an incompetent person;
c/
The signing of the agreement did not follow the prescribed collective
bargaining process.
Article 79. Competence to declare a collective labor
agreement to be invalid
People’s
courts have competence to declare collective labor agreements to be invalid.
Article 80. Handling of an invalid collective labor
agreement
When
a collective labor agreement is declared to be invalid, the rights, obligations
and interests of the parties in the invalid part(s) must be addressed in
accordance with law and lawful agreements in labor contracts.
Article 81. Expiry of a collective labor agreement
Within
3 months before the expiry of a collective labor agreement, the two parties may
bargain an extension of the duration of the collective labor agreement or enter
into a new one.
In
case the collective labor agreement expires during the bargaining process, it
must continue to be implemented for maximum 60 days.
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All
expenses for bargaining, signing, modification, supplementation, sending and
announcement of a collective labor agreement must be covered by the employer.
Section 4. ENTERPRISE-LEVEL COLLECTIVE LABOR AGREEMENTS
Article 83. Signing of an enterprise-level collective labor
agreement
1.
Persons to sign an enterprise-level collective labor agreement are provided as
follows:
a/
A representative of the grassroots-level employees’ collective, for the
employees’ collective’s side;
b/
The employer or a representative of the employer, for the employer’s side.
2.
An enterprise-level collective labor agreement must be made in 5 copies, of
which:
a/
Two copies must be kept by the two sides;
b/
One copy must be sent to the state agency specified in Article 75 of this Code;
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Article 84. Implementation of an enterprise-level
collective labor agreement
1.
The employer and employees, including new employees who are employed after the
collective labor agreement takes effect, shall fully implement the agreement.
2.
In case the rights, obligations and interests of the parties stipulated in a
labor contract signed before a collective labor agreement takes effect are less
favorable than those provided in the collective labor agreement, the provisions
of the collective labor agreement apply. Labor regulations of the employer
which do not comply with the collective labor agreement must be amended to be
consistent with the collective labor agreement within 15 days after the
collective labor agreement takes effect.
3.
In case a party considers that the other party does not perform fully or
violates the collective labor agreement, the former may request full compliance
with the agreement by the latter, and both parties shall jointly consider and resolve
the issue. In case of failure to resolve the issue, either party may request
settlement of the collective labor dispute in accordance with law.
Article 85. Validity duration of an enterprise-level
collective labor agreement
An
enterprise-level collective labor agreement has a validity duration of between
1 year and 3 years. For an enterprise which signs a collective labor agreement
for the first time, the validity duration of this agreement can be under 1
year.
Article 86. Implementation of a collective labor agreement
in case of transfer of ownership, right of management, right of use of an
enterprise, merger, consolidation, split or separation of an enterprise
1.
In case of transfer of ownership, the right to manage, or the right to use an enterprise
or merger, consolidation, split or separation of an enterprise, the succeeding
employer and the representative of the employees’ collective shall base on the
labor utilization plan to consider choosing whether to continue the
implementation of or modify and supplement the old collective labor agreement,
or enter into a new one.
2.
In case the validity of a collective labor agreement is terminated because the
employer ceases its operation, the interests of employees must be settled in
accordance with the labor law.
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Article 87. Signing of a sectoral-level collective labor
agreement
1.
Representatives to sign a sectoral-level collective labor agreement are
provided as follows:
a/
The representative of the employees’ collective is the chairperson of the
sectoral-level trade union;
b/
The representative of the employer is the representative of the employers’
representative organization who has participated in the sectoral-level
collective bargaining.
2.
A sectoral-level collective labor agreement must be made in 4 copies, of which:
a/
Two copies must be kept by the two parties;
b/
One copy must be sent to the state agency specified in Article 75 of this Code;
c/
One copy must be sent to the intermediate higher-level trade union.
Article 88. Relationship between enterprise-level and
sectoral-level collective labor agreements
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2.
An enterprise subject to a sectoral-level collective labor agreement which has
not yet elaborated its own collective labor agreement may elaborate its own
collective labor agreement with terms more favorable for employees than those
of the sectoral-level collective labor agreement.
3.
Enterprises within a sector which have not acceded to the sectoral-level
collective labor agreement are encouraged to implement the sectoral-level collective
labor agreement.
Article 89. Validity duration of a sectoral-level
collective labor agreement
A
sectoral-level collective labor agreement has a validity duration of between 1
year and 3 years.
Chapter VI
WAGES
Article 90. Wages
1.
Wage is a monetary amount which is paid by an employer to an employee to do a
job as agreed by the two parties.
Wage
includes a wage amount which is based on the work or title, wage allowance(s)
and other additional payments.
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2.
A wage must be paid to an employee based on labor productivity and quality of
the work performed.
3.
An employer shall pay equal wages without gender-based discrimination to
employees doing a job of equal value.
Article 91. Minimum wage
1.
Minimum wage is the lowest payment for an employee who performs the simplest
job in normal working conditions and must ensure the employee’s minimum living
needs and his/her family.
The
minimum wage must be determined on a monthly, daily and hourly basis by region
or sector.
2.
Based on the minimum living needs of an employee and his/her family, the social
and economic conditions and wage level in the labor market, the Government
shall announce the regional minimum wage based on the recommendations of the
National Wage Council.
3.
The sectoral minimum wage must be determined through collective bargaining
within the sector and recorded in the sectoral-level collective labor agreement
but must not be lower than the regional minimum wage announced by the
Government.
Article 92. The National Wage Council
1.
The National Wage Council is an advisory body of the Government, which is
composed of representatives of the Ministry of Labor, War Invalids and Social
Affairs, Vietnam General Confederation of Labor and the central employers’
representative organization.
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Article 93. Formulation of wage scales, wage tables and
determination of labor norms
1.
Based on the principles of formulation of wage scales, wage tables and labor
norms stipulated by the Government, an employer shall formulate the wage scale,
wage table and labor norms for use as the basis to employ and use labor, to
negotiate wage levels in labor contracts, and to pay wages to employees.
2.
When formulating the wage scale, wage table and labor norms, an employer shall
consult the representative organization of the grassroots-level employees’
collective and publish this information at the workplace of the employees
before implementation, and concurrently send them to the district-level state
management agency of labor of the locality in which the employer’s production
and business establishments are located.
Article 94. Forms of wage payment
1.
An employer may select the form of wage payment based on working time, products
or piecework. The selected form of wage payment must be maintained for a
certain period of time. Any change in the form of payment must be informed by
the employer to the employee at least 10 days in advance.
2.
Wage may be paid by cash or via the employee’s personal account opened at a
bank. In case the wage is paid into the bank account, the employer shall
negotiate with the employee on any fees related to the opening and maintenance
of the account.
Article 95. Wage payment period
1.
Employees enjoying hourly, daily or weekly wages must be paid after the working
hour, day or week or paid in a lump sum as agreed by the two parties, provided
that wages are paid in a lump sum at least every 15 days.
2.
Employees enjoying monthly wages must be paid once a month or once every half
of the month.
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Article 96. Principles of wage payment
An
employee must be paid with a full wage in a direct and timely manner.
In
special cases in which an employer cannot pay a wage on time to an employee,
the employer may not postpone the payment for more than 1 month and shall pay
the employee with an additional amount at least equal to the deposit interest rate
announced by the State Bank of Vietnam at the time of wage payment.
Article 97. Wage for overtime work and night work
1.
An employee who performs overtime work must be paid according to the wage unit
or wage for his/her current job as follows:
a/
On normal days, at least equal to 150%;
b/
On weekends, at least equal to 200%;
c/
On public holidays and paid leave days, at least equal to 300%, excluding the
wage for public holidays and paid leave days of employees who receive daily
wages.
2.
An employee who performs night work must be paid with an additional amount at
least equal to 30% of the wage calculated according to the wage unit or the
wage for a job performed during normal workdays.
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Article 98. Wage in case of work suspension
In
case an employee has to suspend working, he/she shall be paid as follows:
1.
If due to the fault of the employer, the employee is entitled to payment of the
full wage;
2.
If due to his/her fault, he/she is not entitled to payment of wage; other
employees in the same unit who also have to suspend the work are entitled to
the wages as agreed upon by the two parties, provided that those wages are not
lower than the regional minimum wage stipulated by the Government;
3.
If due to power or water incidents rather than the fault of the employer,
employees or for other objective reasons such as natural calamity, fire,
dangerous epidemic, enemy sabotage, relocation of the operation place upon
request of a competent state agency, or for economic reasons, the wage for work
suspension must be agreed by the two parties but must not be lower than the
regional minimum wage stipulated by the Government.
Article 99. Payment of wage via foreman
1.
In case foremen or similar intermediary persons are used, the employer who is
the principal owner must have a list and addresses of these people together
with a list of employees working with them, and must ensure that they comply
with the law on wage payment and occupational safety and hygiene.
2.
In case a foreman or similar intermediary person fails to pay wages or pays
insufficient wages and fails to ensure other interests of employees, the
employer who is the principal owner shall pay wages to, and to ensure such
interests of, the employees.
In
this case, the employer who is the principal owner may request compensation
from the foreman or similar intermediary person, or request a competent state
agency to resolve the dispute in accordance with law.
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1.
An employee may be given a wage in advance according to the conditions agreed
upon by the two parties.
2.
An employer shall advance a wage amount to an employee corresponding to the
number of days off which the employee takes to perform citizens’ obligations
from 1 week to 1 month at most. The employee shall refund this advance amount,
except the case that he/she performs military services.
Article 101. Deductions from wages
1.
An employer may only make deductions from the wage of an employee for
compensation for damage of tools and equipment of the employer in accordance
with Article 130 of this Code.
2.
An employee is entitled to know the reasons for his/her wage deductions.
3.
Monthly deductions must not exceed 30% of the monthly wage of an employee after
having paid compulsory social insurance, health insurance and unemployment
insurance premiums and income tax.
Article 102.
Allowances, subsidies, rank promotion and wage raise Allowances, subsidies,
rank promotion, wage raise and other incentives for employees must be agreed in
the labor contracts and the collective labor agreement or stipulated in the
regulations of the employer.
Article 103. Bonuses
1.
Bonus is a sum of money paid by an employer to his/her employees on the basis
of annual business results and the level of work performance of employees.
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Chapter VII
WORKING
TIME AND REST TIME
Section 1. WORKING TIME
Article 104. Normal working time
1.
Normal working time must not exceed 8 hours per day or 48 hours per week.
2.
An employer may determine the working time on an hourly, daily or weekly basis;
in case of working on a weekly basis, the normal working time must not exceed
10 hours per day and not exceed 48 hours per week.
The
State encourages employers to apply 40 working hours per week.
3.
The working time must not exceed 6 hours per day for employees who perform
extremely heavy, hazardous or dangerous jobs on a list issued by the Ministry
of Labor, War Invalids and Social Affairs in coordination with the Ministry of
Health.
Article 105. Working hours at night
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Article 106. Overtime work
1.
Overtime is time worked in addition to normal working hours prescribed in the
law, collective labor agreements or internal working regulations.
2.
An employer may request an employee to work overtime upon fully meeting the
following conditions:
a/
Obtaining the employee’s consent;
b/
Ensuring that the number of overtime working hours of the employee does not
exceed 50% of the normal working hours per day; in case of applying regulations
on weekly work, the total of normal working hours and overtime working hours
must not exceed 12 hours per day; does not exceed 30 hours per month and the
total of overtime working hours must not exceed 200 hours per year, except some
special cases as stipulated by the Government in which overtime working hours
must not exceed 300 hours per year;
c/
After each period with many consecutive days of working overtime within a
month, the employer shall arrange compensatory days off for the employee.
Article 107. Working overtime in special cases
An
employer may request an employee to work overtime in any days and the employee
may not refuse in the following cases:
1.
Implementing a call-up or mobilization order to ensure national defense or security
in an emergency state of national defense or security as provided by law;
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Section 2. REST TIME
Article 108. Rest breaks during working hours
1.
An employee who works for 8 hours consecutively or 6 hours under Article 104 of
this Code is entitled to a break of at least 30 minutes in the middle of working
which must be counted in the working hours.
2.
An employee who works at night is entitled to a break of at least 45 minutes in
the middle of working which must be counted in the working hours.
3.
Besides the breaks in the middle of working prescribed in Clauses 1 and 2 of
this Article, the employer shall determine other short breaks and include them
in the internal working regulations.
Article 109. Breaks between shifts
Employees
who work in shifts are entitled to a break of at least 12 hours before moving
to another shift.
Article 110. Weekly breaks
1.
Every week, an employee is entitled to a break of at least 24 consecutive
hours. In case it is impossible for an employee to have a weekly break due to
the cycle of work, the employer shall ensure the employee have at least 4 days
off on average in a month.
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Article 111. Annual leave
1.
An employee who has been working for an employer for full 12 months is entitled
a fully paid annual leave as stated in his/her labor contract as follows:
a/
Twelve working days for an employee working in normal conditions;
b/
Fourteen working days for an employee doing a heavy, hazardous or dangerous
job; or an employee working in a place with harsh living conditions on the list
issued by the Ministry of Labor, War Invalids and Social Affairs in
coordination with the Ministry of Health, or for minor or disabled employees;
c/
Sixteen working days for an employee doing an extremely heavy, hazardous or
dangerous job; an employee working in a place with extremely harsh living
conditions on the list issued by the Ministry of Labor, War Invalids and Social
Affairs in coordination with the Ministry of Health.
2.
An employer may decide on a timetable for annual leaves of employees after
consulting employees and shall notify it in advance to them.
3.
An employee may reach an agreement with the employer on taking annual leave in
installments or combining annual leaves of maximum every three years.
4.
When taking annual leave, if an employee travels by road, railway or waterway
and the return trip takes more than 2 days, the travel days from the 3rd day
onward will be added to the annual leave and this will be applied for only one
annual leave in a year.
Article 112. Annual leave increased based on the length of
employment
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Article 113. Advance payment of wage and travel expenses
for annual leave
1.
When taking annual leave, an employee are entitled to an advance payment at
least equal to the wage to be paid for leave days.
2.
Travel expenses and the wage paid for traveling days can be agreed by the two
parties.
Employees
who come from lowland areas and work in mountainous, deep-lying, remote, border
or island areas and employees who come from mountainous, deep-lying, remote,
border or island areas and work in lowland areas are entitled to travel
expenses and wages for traveling days paid by their employers.
Article 114. Payment for untaken leave days
1.
An employee who, due to employment termination, job loss or for other reasons,
has not taken or fully not taken annual leave is entitled to a cash payment for
the untaken leave days.
2.
An employee who has worked for under 12 months may have annual leave days in
proportion to the time of working. In case of not taking leave, he/she is
entitled to a cash payment for these untaken leave days.
Section 3. PUBLIC HOLIDAYS, PERSONAL LEAVE AND UNPAID LEAVE
Article 115. Public and New Year holidays
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a/
Calendar New Year Holiday: 1 day (the first day of January of the calendar
year);
b/
Lunar New Year Holidays: 5 days;
c/
Victory Day: 1 day (the thirtieth day of April of each calendar year);
d/
International Labor Day: 1 day (the first day of May of each calendar year);
e/
National Day: 1 day (the second day of September of each calendar year);
f/
Commemorative Celebration of Vietnam’s Forefather - Kings Hung: 1 day (the
tenth of March of the lunar year).
2.
Foreign employees in Vietnam, in addition to the public holidays stipulated in
Clause 1 of this Article, are entitled to 1 traditional new year holiday and 1
national day of their country.
3.
In case a holiday referred to in Clause 1 of this Article falls on a weekend,
employees are entitled to take the following day off as compensation.
Article 116. Personal leave, unpaid leave
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a/
Marriage: 3 days;
b/
Marriage of his/her child: 1 day;
c/
Death of a blood parent or a parent of his/her spouse, his/her spouse or child:
3 days.
2.
An employee may take 1 day off without pay and shall inform the employer when a
paternal or maternal grandparent or blood sibling dies; his/her father or
mother gets married; or a blood sibling gets married.
3.
An employee may discuss and agree with the employer on unpaid leave in addition
to the leaves specified in Clauses 1 and 2 of this Article.
Section 4. WORKING TIME AND REST TIME FOR PEOPLE DOING
SPECIAL JOBS
Article 117. Working time, rest time for persons doing
special jobs
For
special jobs in road, railway, waterway and airway transportation, petroleum
prospecting and exploitation at sea; offshore work; arts; use of radiation and
nuclear techniques; application of high-frequency waves; divers’ jobs, work in
pit mines; seasonal production work and processing of goods under orders; and
work that requires 24/24 hours on duty, specialized ministries and agencies
shall specifically stipulate working time and rest time after consulting the
Ministry of Labor, War Invalids and Social Affairs and ensure compliance with
Article 108 of this Code.
Chapter VIII
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Section 1. LABOR DISCIPLINE
Article 118. Labor discipline
Labor
discipline means regulations on compliance with time requirements, technology
and production and business administration as stipulated in the internal
working regulations.
Article 119. Internal working regulations
1.
An employer employing 10 or more employees must have internal working
regulations in writing.
2.
The contents of internal working regulations must not be contrary to the labor
law and other relevant laws. The internal working regulations contain the
following principal contents:
a/
Working time and rest time;
b/
Order at workplace;
c/
Occupational safety and hygiene at workplace;
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e/
Employees’ violations of labor discipline, forms of dealing with violations of
labor discipline, and material responsibilities.
3.
Before the issuance of the internal working regulations, an employer shall
consult the representative organization of the grassroots-level employees’
collective.
4.
The internal working regulations must be notified to employees and their key
contents must be displayed at necessary places in the workplace.
Article 120. Registration of internal working regulations
1.
An employer shall register its internal working regulations with the
provincial-level state management agency of labor.
2.
Within 10 days from the date of issuance of the internal working regulations,
an employer shall submit a dossier for registration of the internal working
regulations.
3.
Within 7 working days from the date of receipt of a dossier for registration of
the internal working regulations, if the internal working regulations have
contents contrary to law, the provincial-level state management agency of labor
shall notify and instruct the employer to make necessary amendments and
supplements and the regulations must be re-submitted for registration.
Article 121. Dossier for registration of internal working
regulations
A dossier
for registration of the internal working regulations must comprise:
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2.
Documents of the employer related to labor discipline and material
responsibilities;
3.
Minutes of comments of the representative organization of the grassroots-level
employees’ collective;
4.
The internal working regulations.
Article 122. Validity of internal working regulations
The
internal working regulations will be effective 15 days after the date the provincial-level
state management agency of labor receives the registration dossier of the
internal working regulations, except the case specified in Clause 3, Article
120 of this Code.
Article 123. Principles and order for handling violations
of labor discipline
1.
The handling of a violation of labor discipline is provided as follows:
a/
The employer shall prove the fault of the employee;
b/
The representative organization of the grassroots-level employees’ collective
must participate in the handling;
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d/
The handling of the violation of labor discipline must be recorded in the
minutes.
2.
It is prohibited to impose more than one form of discipline for a single
violation of labor discipline.
3.
For an employee who simultaneously commits more than one violation of labor
discipline, it is only allowed to apply the highest form of discipline
corresponding to the most serious violation.
4.
Labor discipline may not be imposed for violations committed by an employee who
is currently:
a/
Taking sickness or convalescence leave or a leave with the employer’s consent;
b/
Kept in custody or temporary detention;
c/
Waiting for results of verification and conclusion of a competent agency for
acts of violation specified in Clause 1, Article 126 of this Code;
d/
A female employee and pregnant or on maternity leave; rearing a child under 12
months of age.
5.
No labor discipline will be imposed on an employee who violates the internal
working regulations while suffering a mental disorder or another disease which
deprives him/her of the capacity to perceive or control his/her acts.
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1.
The statute of limitations for handling a violation of labor discipline is 6
months from the date the violation is committed. The statute of limitations for
handling a violation of labor discipline directly related to finance and assets
or disclosure of technological or business secrets is 12 months.
2.
Upon expiry of the period specified at Points a, b or c, Clause 4 of Article 123,
if the statute of limitations for handling violations of labor discipline has
not yet expired, the employer may immediately handle the case, and if the
statute of limitations has expired, it may be extended but for no more than 60
days from the expiry date mentioned above.
Upon
expiry of the period specified at Point d, Clause 4 of Article 123, if the
statute of limitations has expired, it may be extended for no more than 60 days
from the date of expiry mentioned above.
3.
Decisions on handling violations of labor discipline must be issued within the
time limits specified in Clauses 1 and 2 of this Article.
Article 125. Forms of handling of violations of labor
discipline
1.
Reprimand.
2.
Prolongation of the wage rise period for no more than 6 months; removal from
office.
3.
Dismissal.
Article 126. Application of dismissal as a form of
discipline
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1.
An employee commits an act of theft, embezzlement, gambling, intentional
infliction of injury, use of drugs inside the workplace, disclosure of
technological or business secrets or infringement of intellectual property
rights of the employer, or acts which cause serious damage or threaten to cause
serious damage to the assets or interests of the employer;
2.
An employee who has been subject to the disciplinary measure of prolonging the
wage rise period commits recidivism when the disciplinary record has not yet
been written off or an employee who has been subject to the disciplinary
measure of removal from office commits recidivism;
Recidivism
means that an employee re-commits the same violation for which he/she has been
disciplined while his/her disciplinary record has not yet been written off
under Article 127 of this Code.
3.
An employee has been absent from work without permission for a total of 5
working days within 1 month or 20 days within 1 year without plausible reasons.
Plausible
reasons include natural disaster, fire, illness of the employee or his/her next
of kin with certification by a competent health establishment and other events
defined in the internal working regulations.
Article 127. Writing off of disciplinary records, reduction
of the duration of labor discipline
1.
After 3 months for an employee who is reprimanded or after 6 months for an
employee who is subject to the disciplinary measure of prolonging the wage rise
period counting from the date his/her violation is handled, the employee concerned
will have his/her disciplinary record be automatically written off if he/she
does not commit recidivism. For an employee who is subject to the disciplinary
measure of removal from office and commits another violation of labor
discipline after 3 years, he/she will not be regarded as having committed
recidivism.
2.
An employee who is subject to the disciplinary measure of prolonging the wage
rise period and has served half of the duration of the discipline showing
progress may be considered by the employer for a reduction of such duration.
Article 128. Prohibited acts when handling violations of
labor discipline
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2.
Applying a fine or wage reduction instead of a disciplinary measure.
3.
Disciplining an employee who has committed a violation which is not defined in
the internal working regulations.
Article 129. Work suspension
1.
An employer may suspend an employee from working if the employer considers that
the case of violation is complex and any continued performance of the work by
the employee can cause difficulties to verification work. Work suspension may
only be applied after the representative organization of the grassroots-level
employees’ collective has been consulted.
2.
The period of work suspension must not exceed 15 days, or 90 days in special
cases. During the period of work suspension, the employee is entitled to 50 per
cent of the wage he/she receives prior to the suspension.
Upon
the expiry of the period of work suspension, the employer must receive the
employee back to his/her work.
3.
In case the employee is disciplined, he/she is not required to reimburse the
wage advanced to him/her.
4.
In case the employee is not disciplined, the employer shall pay the full wage
for the period of work suspension.
Section 2. MATERIAL RESPONSIBILITIES
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1.
An employee who causes damage to tools and equipment or the assets of the
employer shall pay compensation in accordance with law.
In
case due to negligence an employee causes a minor damage valued at no more than
10 months’ regional minimum wage announced by the Government and applied at the
employee’s workplace, the employee shall pay compensation of no more than 3
months’ wage which shall be deducted monthly from his/her wage in accordance
with Clause 3, Article 101 of this Code.
2.
An employee who loses tools, equipment or assets of the employer or other
assets assigned to him/her by the employer, or uses supplies in excess of the
permitted norms shall compensate the whole or a part of the damage at the
market price; in case a contract of responsibility has been signed, the amount
of compensation must comply with such contract; in case the damage is caused by
a natural disaster, fire, enemy sabotage, epidemic, calamity or another
objective event which is unforeseeable and irremediable and every necessary
measure has been taken to full ability, no compensation is required.
Article 131. Principles, order and procedures for
compensation
1.
Consideration and decision on the levels of compensation must be based on the
fault, the actual level of damage, the actual family conditions, personal
records and property of the employee concerned.
2.
The order, procedures and statute of limitations for compensation comply with
Articles 123 and 124 of this Code.
Article 132. Complaints about labor discipline and material
responsibilities
An
employee who is handled for violation of labor discipline, suspended from work,
or required to pay compensation in accordance with the regime of material
responsibilities and is not satisfied with the handling decision, may file a
complaint with the employer or a competent agency stipulated by law, or request
settlement of a labor dispute according to the procedures stipulated by law.
Chapter IX
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Section 1. GENERAL PROVISIONS ON OCCUPATIONAL SAFETY AND
HYGIENE
Article 133. Compliance with the law on occupational safety
and hygiene
All
enterprises, agencies, organizations and individuals related to labor and
production shall comply with the law on occupational safety and hygiene.
Article 134. State policies on occupational safety and
hygiene
1.
The State shall invest in scientific research and provide assistance for
establishments which manufacture occupational safety and hygiene tools and
equipment and personal protection equipment.
2.
To encourage development of occupational safety and hygiene services.
Article 135. Occupational safety and hygiene program
1.
The Government shall decide on the national program on occupational safety and
hygiene.
2.
Provincial-level People’s Committees shall formulate and submit local
occupational safety and hygiene programs to the same-level People Councils for
decision, and include them in their socio-economic development plans.
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1.
The Ministry of Labor, War Invalids and Social Affairs shall assume the prime
responsibility for, and coordinate with other ministries, sectors and
localities in, elaborating, issuing, and guiding the implementation of national
technical regulations on occupational safety and hygiene
2.
Based on the national standards and technical regulations and local technical
regulations on occupational safety and hygiene, employers shall elaborate
internal working regulations and procedures for each type of machine, equipment
and workplace to ensure occupational safety and hygiene.
Article 137. Assurance of occupational safety and hygiene
at workplace
1.
In case of new construction, expansion or innovation of buildings and
facilities to manufacture, use, preserve and store machines, equipment,
supplies and substances which have strict requirements on occupational safety
and hygiene, investors or employers shall prepare plans on occupational safety
and hygiene measures at workplace and for the environment.
2.
The manufacture, use, preservation and transportation of machines, equipment,
supplies, energies, electricity, chemicals, plant protection drugs as well as
the change of technology and import of new technology must comply with
promulgated or applied national technical regulations or standards on
occupational safety and hygiene at the workplace.
Article 138. Employers’ and employees’ obligations for
occupational safety and hygiene
1.
An employer has the following obligations:
a/
To ensure that the workplace meet the requirements on space, airiness, dust,
steam, toxic gas, radiation, electricity of magnetic field, heat, moisture,
noise, vibration and other harmful factors as prescribed in relevant technical
regulations. These factors must be checked and measured on a regular basis;
b/
To ensure safe and hygienic working conditions for machines, equipment and
workshops as required by the promulgated or applied national technical
regulations or standards on occupational safety and hygiene at workplace;
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d/
To examine and maintain machines, equipments, workshops and warehouses on a
periodical basis;
e/
To display signboards of instructions for occupational safety and hygiene for machines,
equipment and workplaces at easy-to-read and -see locations at the workplace;
f/
To consult the representative organization of the grassroots-level employees’
collective when planning and implementing activities to ensure occupational
safety and hygiene.
2.
An employee has the following obligations:
a/
To observe regulations, processes and internal rules on occupational safety and
hygiene which are relevant to assigned jobs;
b/
To use and maintain equipped personal protection equipment and occupational
safety and hygiene tools at the workplace;
c/
To promptly report to responsible persons when discovering risks of labor
accident, occupational disease, toxic or dangerous incidents; to participate in
first aid and overcoming the consequences of labor accidents as requested by
the employer.
Section 2. LABOR ACCIDENTS AND OCCUPATIONAL DISEASES
Article 139. Occupational safety and hygiene officers
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2.
Occupational safety and hygiene officers must be trained in occupational safety
and hygiene.
Article 140. Handling of incidents and response to
emergency cases
1.
In handling incidents and responding to emergency cases, an employer shall:
a/
Develop a plan to deal with incidents and respond to emergency cases and
organize periodical drills;
b/
Provide technical and medical equipment to ensure timely response and first aid
when a labor incident or accident occurs;
c/
Immediately take remedies or issue orders to stop the operation of machines,
equipment and workplaces which have risks of causing labor accidents or
occupation diseases.
2.
An employee may refuse to work or leave the workplace while still having the
full wage paid and not being regarded as violating labor discipline when he/she
is fully aware of the danger of labor accident or occupational diseases or
serious threat to his/her life or health, and shall immediately report to the
direct supervisor. The employer may not order employees to continue performing
such work or to return to such workplace if the danger has not been eliminated.
Article 141. In-kind allowances for employees working in
dangerous and hazardous conditions
Employees
working in dangerous and hazardous conditions are entitled to in-kind
allowances provided by employers according to regulations of the Ministry of
Labor, War Invalids and Social Affairs.
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1.
Labor accident is an accident that causes injury to any bodily part and
function of an employee or causes death, and occurs during the performance of
work and in connection with the performance of a job or task.
This
provision also applies to apprentices, on-the-job trainees and employees on
probation.
2.
Victims of labor accidents must be promptly provided with first aid and
adequate treatment.
3.
All labor accidents, occupational diseases and serious incidents happening at
workplace must be notified, investigated, documented, statistically calculated
and reported on a regular basis according to the Government’s regulations.
Article 143. Occupational diseases
1.
Occupational disease is an illness caused by the harmful working conditions of
an occupation on an employee.
The
Ministry of Health shall assume the prime responsibility for, and coordinate with
the Ministry of Labor, War Invalids and Social Affairs in, issuing a list of
occupational diseases after consulting the Vietnam General Confederation of
Labor and the employers’ representative organization.
2.
An employee suffering an occupational disease must be provided with adequate
treatment and regular checks-up and have a separate medical record.
Article 144. Employers’ responsibilities for labor
accidents and occupational diseases of employees
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2.
To pay full wages under labor contracts to employees who have labor accidents
or suffer occupational diseases during the medical treatment period.
3.
To pay compensations to employees who have labor accidents or suffer
occupational diseases in accordance with Article 145 of this Code.
Article 145. Rights of employees who have labor accidents
or suffer occupational diseases
1.
An employee who participates in compulsory social insurance is entitled to the
benefit regime for labor accidents and occupational diseases as provided by the
Law on Social Insurance.
2.
For an employee subject to compulsory social insurance whose employer has not
paid social insurance premiums to the social insurance agency, the employer shall
pay an amount of money equal to the regime for labor accidents and occupational
diseases as provided by the Law on Social Insurance.
The
payment may be paid in a lump sum or on a monthly basis as agreed upon by the
parties.
3.
An employee who has a labor accident or suffers an occupational disease not due
to his/her fault and loses 5% or more of his/her working ability is entitled to
compensation by his/her employer as follows:
a/
At least equal to one and half month’s wage stipulated in the labor contract in
case of losing between 5% and 10% of the working ability, then an additional
0.4 month’s wage stipulated in the labor contract for every increase of 1% in
case of losing between 11% and 80% of the working ability;
b/
At least equal to 30 months’ wage stipulated in the labor contract in case of
losing 81% or more of the working ability, or to family members of the employee
who dies from a labor accident.
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Article 146. Prohibited acts in occupational safety and
hygiene
1.
Making cash payments instead of providing in-kind allowances to employees.
2.
Concealing or falsely declaring or reporting on labor accidents and
occupational diseases.
Section 3. PREVENTION OF LABOR ACCIDENTS AND OCCUPATIONAL
DISEASES
Article 147. Technical appraisal of machines, equipment and
supplies subject to strict labor safety requirements
1.
Machines, equipment and supplies subject to strict labor safety requirements
must be appraised by a technical labor safety appraisal institution before they
are put into operation and must be appraised on a periodical basis when they
are in use.
2.
The Ministry of Labor, War Invalids and Social Affairs shall issue a list of
machines, equipment and supplies subject to strict labor safety requirements.
3.
The Government shall stipulate conditions on technical labor safety appraisal
service institutions.
Article 148. Occupational safety and hygiene plans
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Article 149. Personal protection equipment in work
1.
An employee doing a dangerous or toxic job must be adequately provided with and
shall use personal protection equipment in the working process according to the
regulations of the Ministry of Labor, War Invalids and Social Affairs.
2.
Personal protection equipment must meet applicable quality standards.
Article 150. Training in occupational safety and hygiene
1.
Employers and occupational safety and hygiene officers shall participate in
training courses and take examinations and tests on occupational safety and
hygiene conducted by occupational safety and hygiene training service
institutions, for which they will be granted certificates.
2.
An employer shall organize training in occupational safety and hygiene for
employees, apprentices and on-the-job trainees upon recruitment and work
arrangement; and provide guidance on occupational safety and hygiene
regulations for visitors to workplaces managed by the employer.
3.
An employee who performs a job subject to strict occupational safety and
hygiene requirements shall participate in a training course and take a test on
occupational safety and hygiene in order to obtain a certificate.
4.
The Ministry of Labor, War Invalids and Social Affairs shall provide conditions
on occupational safety and hygiene training service institutions and develop a
framework curriculum on occupational safety and hygiene training; and a list of
jobs subject to strict occupational safety and hygiene requirements.
Article 151. Information on occupational safety and hygiene
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Article 152. Health care for employees
1.
Based on health criteria for each type of work, an employer shall recruit and
arrange work for employees.
2.
Annually, an employer shall organize periodical health checks-up for employees,
including apprentices and on-the-job trainees, obstetrics and gynecology checks
for female employees, and health checks-up at least once every 6 months for
employees doing heavy and harmful jobs and disabled, minor and elderly
employees.
3.
An employee who works in conditions with risks of occupational disease must
have occupational disease checks according to regulations of the Ministry of
Health.
4.
An employee who has a labor accident or suffers an occupational disease shall
undergo a medical assessment to determine his/her level of injury or disability
and the level of working ability loss, and is entitled to treatment, care and
working ability rehabilitation in accordance with law.
5.
After having a labor accident or suffering an occupational disease, if still
continuing to work, an employee shall be assigned to a work suitable to his/her
health based on the conclusion of the Labor Medical Assessment Council.
6.
An employer shall manage health records of employees and general observation
records according to regulations of the Ministry of Health.
7.
An employer shall provide employees who work at a workplace exposed to toxic
and infectious factors with sterilization and disinfection measures upon
completion of the working hours.
Chapter X
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Article 153. State policies toward female employees
1.
To protect the female employees’ right to employment equality.
2.
To encourage employers to create conditions for female employees to have
regular employment, and to extensively implement systems of flexible working
hours, part-time work or home-based work for female employees.
3.
To introduce measures to create employment opportunities, improve working
conditions, raise vocational qualifications and healthcare, and increase
material and spiritual welfare for female employees in order to assist them in
effectively bringing into play their vocational capacity and harmoniously
combining their working lives with family lives.
4.
To formulate policies on tax reductions for employers using many female
employees in accordance with tax laws.
5.
To develop various forms of training which are favorable for female employees
to acquire standby vocational skills suitable to their physical and
physiological characteristics and their motherhood function.
6.
The State shall develop plans and measures to organize crèches and
kindergartens in areas with large numbers of female employees.
Article 154. Obligations of employers toward female
employees
1.
To ensure gender equality and implement measures to promote gender equality in
recruitment, employment, training, working time, rest time, wages and other
policies.
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3.
To ensure sufficient bathrooms and appropriate toilets in the workplace.
4.
To assist and support in building crèches and kindergartens, or cover part of
childcare expenses at crèches and kindergartens incurred by female employees.
Article 155. Protection of maternity for female employees
1.
An employer may not mobilize female employees to work at night, work overtime
or go on a long working trip in the following cases:
a/
The employee is in her seventh month of pregnancy, or in her sixth month of pregnancy
in case of working in a mountainous, remote, distant, border or island area;
b/
The employee is nursing a child under 12 months of age.
2.
A female employee who performs heavy work, upon reaching her seventh month of
pregnancy, is entitled to be transferred to a lighter work or have her daily
working time reduced by 1 hour while still receiving her full wage.
3.
An employer may neither dismiss a female employee nor unilaterally terminate
the labor contract with a female employee for the reason of her marriage,
pregnancy, maternity leave, or that she is nursing a child under 12 months of
age, except the case in which the employer is an individual who dies, or is
declared by a court to have lost his/her civil act capacity, or to be missing
or dead, or the employer is an institution that ceases operation.
4.
Labor disciplinary measures may not applied to a female employee during the
time of pregnancy or maternity leave as provided by the law on social
insurance, or nursing a child under 12 months of age.
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Article 156. Right of pregnant employees to unilaterally
terminate or postpone labor contracts
In
case a pregnant employee has a certificate of a competent health establishment
which states that continued work will adversely affect her pregnancy, she may
unilaterally terminate the labor contract or temporarily postpone the
performance of the labor contract. The period for the female employee to give
advance notice to the employer depends on the period determined by the
competent health establishment.
Article 157. Maternity leave
1.
A female employee is entitled to 6 months of prenatal and postnatal leave.
In
case a female employee gives birth to twin or more babies, counting from the
second child upward, for each child the mother is entitled to 1 more month off.
Prenatal
leave must not exceed 2 months.
2.
During the maternity leave, a female employee is entitled to maternity policies
provided by the law on social insurance.
3.
After the maternity leave period stipulated in Clause 1 of this Article, if a
female employee wishes, she may take additional leave without pay as agreed
upon with the employer.
4.
Before the expiration of her maternity leave stipulated in Clause 1 of this
Article, a female employee may return to work if she so wishes and the employer
so agrees provided that she has a certificate from a competent health
establishment that early resumption of work will not adversely affect her
health and she has taken at least 4 months of maternity leave.
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Article 158. Guarantee of employment for female employees
after maternity leave
A
female employee shall be guaranteed the old employment when she returns to work
after taking the maternity leave as provided in Clauses 1 and 3, Article 157 of
this Code. In case the old employment is no longer available, the employer
shall arrange another employment for her with a wage not lower than that paid
to her before her maternity leave.
Article 159. Allowances for leave for caring a sick child,
for pregnancy checks-up and for applying contraceptive measures
When
taking leaves for pregnancy check-up, miscarriage, abortion, dead or diseased
fetus in womb, for applying contraceptive measures, caring a sick child who is
under 7 years of age or for nursing an adopted child under 6 months of age, a
female employee is entitled to social insurance allowance in accordance with
the law on social insurance.
Article 160. Prohibited work for female employees
1.
Work that is harmful to child bearing and nursing functions as specified in the
list of jobs issued by the Ministry of Labor, War Invalids and Social Affairs
in coordination with the Ministry of Health.
2.
Work that requires the body constantly immersed in water.
3.
Regular underground work in mines.
Chapter XI
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Section 1. MINOR EMPLOYEES
Article 161. Minor employees
A
minor employee is an employee under 18 years of age.
Article 162. Employment of minors
1.
An employer may only employ minors in work suitable to their health so as to
ensure their physical, spiritual and personality development, and shall take
care of minor employees regarding their work, wage, health and training in the
course of their employment.
2.
When employing minors, an employer shall keep a separate register fully
recorded with the name, date of birth, work assigned, results of periodical
medical checks of each minor employee, and shall present it at the request of a
competent state agency.
Article 163. Principles of employment of minors
1.
Employment of minors is prohibited in heavy, toxic and dangerous jobs or in
workplaces or jobs which may adversely affect their personality, as determined
in the list issued by the Ministry of Labor, War Invalids and Social Affairs in
coordination with the Ministry of Health.
2.
The working time of minor employees aged from full 15 years to under 18 years
must not exceed 8 hours per day and 40 hours per week.
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3.
Persons aged from full 15 to under 18 years may work overtime and at night in
some occupations and jobs stipulated by the Ministry of Labor, War Invalids and
Social Affairs.
4.
An employer may not employ minors to manufacture and trade in alcohol, wine,
beer, cigarettes, stimulants and other habit-forming substances.
5.
An employer shall create opportunities for minor employees and employed persons
aged under 15 years to receive general education.
Article 164. Use of employees aged under 15 years
1.
An employer may only employ persons aged from full 13 to under 15 years in
light jobs according to the list issued by the Ministry of Labor, War Invalids
and Social Affairs.
2.
When employing a person aged from full 13 to under 15 years, an employer shall comply
with the following provisions:
a/
To sign the labor contract with his/her at-law representative and with the
consent of the person aged from full 13 to under 15 years;
b/
To arrange working hours which do not overlap the school hours of the child;
c/
To ensure the working conditions and occupational safety and hygiene suitable
to his/her age.
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When
employing persons aged under 13 years, an employer shall comply with Clause 2
of this Article.
Article 165. Prohibited jobs and workplaces for minor
employees
1.
Employment of minors is prohibited in the following jobs:
a/
Carrying and lifting of heavy objects which are beyond a minor’s physical
strength;
b/
Manufacture, use or transportation of chemicals, gas and explosives;
c/
Maintenance of equipment and machines;
d/
Demolition of construction works;
e/
Melting, blowing, casting, rolling, molding and welding of metals;
f/
Sea diving, offshore fishing;
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2.
Employment of minors is prohibited in the following workplaces:
a/
Underwater, underground, in cave and in tunnel;
b/
Construction site;
c/
Slaughter house;
d/
Casino, bar, dance hall, karaoke parlor, hotel, hostel, sauna, massage room;
e/
Other workplaces which are harmful to the health, safety or morality of minor
employees.
3.
The Ministry of Labor, War Invalids and Social Affairs shall issue the lists
referred to at Point g, Clause 1, and Point e, Clause 2, of this Article.
Section 2. ELDERLY EMPLOYEES
Article 166. Elderly employees
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2.
Elderly employees are entitled to reduced daily working hours or to the regime
of part-time work.
3.
In the last working year before retirement, elderly employees are entitled to
reduced normal working hours or to the regime of part-time work.
Article 167. Employment of elderly employees
1.
When necessary, an employer may reach agreement with an elderly employee who
has sufficient health conditions on the extension of the labor contract or the
conclusion of a new labor contract in accordance with the provisions of Chapter
III of this Code.
2.
If, after retirement, an elderly employee is employed under a new labor
contract, he/she still enjoys the rights and interests agreed upon in the labor
contract, in addition to the rights and benefits under the retirement regime.
3.
An employer may not employ elderly employees in heavy or dangerous jobs or jobs
exposed to toxic substances that adversely affect their health, except in
special cases as stipulated by the Government.
4.
An employer is responsible for taking care of the health of elderly employees
at the workplace.
Section 3. VIETNAMESE EMPLOYEES WORKING ABROAD, EMPLOYEES
OF FOREIGN ORGANIZATIONS AND INDIVIDUALS IN VIETNAM, FOREIGN EMPLOYEES WORKING
IN VIETNAM
Article 168. Vietnamese employees working abroad, employees
of foreign organizations and individuals in Vietnam
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Vietnamese
employees working abroad shall comply with the laws of Vietnam and host
countries, unless otherwise provided by treaties to which Vietnam is a
contracting party.
2.
Vietnamese citizens working in foreign enterprises in Vietnam, working in
industrial parks, economic zones, export processing zones, in foreign or
international agencies and organizations in Vietnam, or working for foreign
citizens in Vietnam shall comply with Vietnamese laws and are protected under
law.
Article 169. Conditions for foreign citizens to work in
Vietnam
1.
A foreign citizen wishing to work in Vietnam must fully meet the following
conditions:
a/
Possessing full civil act capacity;
b/
Possessing technical and professional qualifications and skills and health
appropriate to the work requirement;
c/
Not being a criminal or subject to penal liability examination according to
Vietnamese and foreign laws;
d/
Possessing a work permit granted by a competent Vietnamese state agency, except
the cases specified in Article 172 of this Code.
2.
Foreign employees working in Vietnam shall comply with the labor law of Vietnam
and treaties to which Vietnam is a contracting party which have different
provisions, and are protected by Vietnamese law.
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1.
Domestic enterprises, agencies, organizations, individuals and contractors may
only employ foreign citizens in such positions as manager, managing director,
expert and technical worker which Vietnamese employees are still unable to fill
to meet production and business requirements.
2.
Foreign enterprises, agencies, organizations, individuals and contractors
shall, before employing foreign citizens to work in the territory of Vietnam,
explain their labor demands and obtain written approval from competent state
agencies.
Article 171. Work permits for foreign citizens to work in
Vietnam
1.
A foreign employee shall produce his/her work permit when carrying out
immigration procedures and upon request of a competent state agency.
2.
Any foreign citizen working in Vietnam without a work permit shall be deported
from Vietnam according to the Government’s regulations.
3.
Any employer employing foreign citizens without work permits shall be handled
in accordance with law.
Article 172. Foreign citizens working in Vietnam who are
exempt from work permit
1.
Capital-contributing members or owners of limited liability companies.
2.
Members of the Board of Directors of joint-stock companies.
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4.
Those who stay in Vietnam for under 3 months to offer services for sale.
5.
Those who stay in Vietnam for under 3 months to deal with complicated technical
or technological problems that adversely impact or are at risk of exerting
adverse impacts on production and business activities and these problems cannot
be handled by Vietnamese and foreign experts who are currently in Vietnam.
6.
Foreign lawyers possessing a professional practice license in Vietnam in
accordance with the Law on Lawyers.
7.
It is in accordance with a treaty to which Vietnam is a contracting party.
8.
Those who are studying and working in Vietnam, provided that the employer shall
notify their employment to the provincial-level state management agency of
labor 7 days in advance.
9.
Other cases as stipulated by the Government.
Article 173. Validity duration of work permits
The
maximum validity duration of a work permit is 2 years.
Article 174. Cases of termination of validity of work
permits
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2.
The labor contract terminates.
3.
The content of the labor contract is not consistent with the content of the
granted work permit.
4.
The contract in the field of business, trade, finance, banking, insurance,
science and technology, culture, sports, education or medicine expires or
terminates.
5.
There is a written notice of the foreign side of the termination of sending of
foreign citizens to work in Vietnam.
6.
The work permit is revoked.
7.
The enterprise, organization or partner in Vietnam or the foreign
non-governmental organization in Vietnam ceases operation.
8.
The foreign employee is sentenced to imprisonment, dies, or is declared to be
dead or missing by a court.
Article 175. Grant, re-grant and revocation of work permits
The
Government shall specify conditions for the grant, re-grant and revocation of
work permits for foreign citizens working in Vietnam.
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Article 176. State policies for disabled employees
l.
The State protects the rights to work and to self-employment of disabled
persons, and shall formulate policies to encourage and provide incentives for
employers to create jobs for and employ disabled persons in accordance with the
Law on Persons with Disabilities.
2.
The Government shall stipulate the policy on providing concessional loans from
the National Employment Fund for employers who employ disabled persons.
Article 177. Employment of disabled persons
1.
An employer shall ensure working conditions, working tools and occupational
safety and hygiene suitable to disabled employees and take regular care for
their health.
2.
An employer shall consult disabled employees before deciding on matters
involving their rights and interests.
Article 178. Prohibited acts in employment of disabled
persons
1.
Employing a disabled person who has lost 51% or more of his/her working ability
to work overtime and at night.
2.
Employing a disabled person to perform a heavy or dangerous job or a job
exposed to toxic substances on the list issued by the Ministry of Labor, War
Invalids and Social Affairs in coordination with the Ministry of Health.
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Article 179. Domestic employees
1.
Domestic employee is a person who regularly does housework for one or more
families.
Housework
includes cooking, housekeeping, babysitting, caring for sick persons, caring
for the elderly, driving, and gardening and other housework which is not
related to commercial activities.
2.
This Code does not apply to employees who do housework in the form of
piecework.
Article 180. Labor contracts for domestic employees
1.
An employer shall sign a written labor contract with a domestic employee.
2.
The duration of a labor contract for a domestic employee may be negotiated by
both parties. Either party may unilaterally terminate the labor contract with
an advance notice of 15 days.
3.
The two parties shall agree and clearly write in the labor contract the form
and time of wage payment, daily working hours and accommodation.
Article 181. Obligations of an employer
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2.
To pay to the domestic employee his/her social insurance and health insurance
as provided by law to enable the latter to self-manage his/her insurance.
3.
To respect the honor and dignity of the domestic employee.
4.
To provide a clean and hygienic accommodation for the domestic employee, if so
agreed.
5.
To create opportunities for the domestic employee to receive education and
vocational training.
6.
To pay travel expenses for the domestic employee to return home at the end of
his/her service, except the case in which the domestic employee terminates the
labor contract ahead of time.
Article 182. Obligations of a domestic employee
1.
To fully implement the agreements in the labor contract signed by both parties.
2.
To pay compensation as agreed upon or provided by law in case of damaging or
losing the property of the employer.
3.
To timely notify the employer of any possibilities and risks of accident, safety,
health, life and property of the employer’s family and his/her own.
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Article 183. Prohibited acts of an employer
1.
Mistreating, sexually harassing, forcing labor and using violence against the
domestic employee.
2.
Assigning work to the domestic employees not in accordance with the labor
contract.
3.
Keeping personal documents of the domestic employee.
Section 6. OTHER TYPES OF EMPLOYEES
Article 184. Persons working in the fields of arts and
physical training and sports
Persons
who work in the fields of arts and physical training and sports are entitled to
some suitable regimes related to vocational training age, entry into labor
contracts, working time, rest time, wage, wage-related allowances, bonus and
occupational safety and hygiene as stipulated by the Government.
Article 185. Employees performing home-based work
1.
Employees may negotiate with employers to regularly perform home- based work.
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Chapter XII
SOCIAL
INSURANCE
Article 186. Participation in social insurance and health
insurance
1.
Employers and employees shall participate in compulsory social insurance,
compulsory health insurance and unemployment insurance and are entitled to the
benefits in accordance with the social insurance and health insurance laws.
Employers
and employees are encouraged to participate in other different forms of social
insurance for employees.
2.
When an employee is absent from work and covered by social insurance, the
employer is not required to pay a wage to the employee.
3.
For an employee who is not covered by compulsory social insurance, compulsory
health insurance and unemployment insurance, the employer shall simultaneously
pay to the employee a wage and an amount which is equivalent to the level of
contribution to compulsory social insurance, compulsory health insurance and unemployment
insurance, and annual leave payments in accordance with regulations.
Article 187. Age of retirement
1.
An employee who meets the conditions on the period of payment of social
insurance stipulated by the law on social insurance is entitled to a pension
when reaching full 60 years of age, for males, or full 55 years of age, for
females.
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3.
An employee who has high professional and technical qualifications or who performs
management work and some other special cases may retire at an age not over 5
years older than the age specified in Clause 1 of this Article.
4.
The Government shall detail Clauses 2 and 3 of this Article.
Chapter XIII
TRADE
UNIONS
Article 188. The role of trade unions in industrial
relations
1.
Grassroots level trade unions play the role of representing and protecting the
rights and legitimate interests of trade union members and employees;
participate in negotiating, signing and supervising the implementation of
collective labor agreements, wage scales and wage tables, labor norms, wage
payment regulations and bonus regulations, internal working regulations,
democracy regulations in enterprises, agencies or organizations; participate in
and assist the settlement of labor disputes; hold dialogues and cooperate with
employers to build harmonious, stable and progressive industrial relations in
enterprises, agencies or organizations.
2.
Immediate higher-level trade unions shall assist grassroot-level trade unions
in performing their functions and tasks specified in Clause 1 of this Article;
and propagate, educate and improve understanding of employees on the labor law
and trade union law.
3.
At non-unionized workplaces, immediate higher-level trade unions shall perform
the duties specified in Clause 1 of this Article.
4.
Trade unions at a level shall work with state management agencies of the same
level and the employers’ representative organization to discuss and deal with
labor-related issues.
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1.
Employees of enterprises, agencies and organizations have the right to
establish, join and operate trade unions in accordance with the Law on Trade
Union.
2.
Immediate higher-level trade unions have the rights and responsibilities to
mobilize employees to join trade unions and establish grassroots-level trade
unions at enterprises, agencies or organizations; they also have the right to
request employers and local labor state management agencies to create favorable
conditions for and support the establishment of grassroots-level trade unions.
3.
When the grassroots-level trade union is established in accordance with the Law
on Trade Union, the employer shall recognize and create favorable conditions
for activities of the grassroots-level trade union.
Article 190. Prohibited acts of employers related to the
establishment, joining and operation of trade unions
1.
Obstructing or causing difficulties to employees in the establishment, joining
and operation of trade unions.
2.
Coercing employees to establish, join and operate a trade union.
3.
Asking employees not to join or to withdraw from a trade union.
4.
Discriminating employees regarding wages, working time and other rights and
obligations in industrial relations to obstruct employees in the establishment,
joining and operation of trade unions.
Article 191. Rights of grassroots-level trade union
representatives in industrial relations
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2.
To visit workplaces to meet employees within the scope of responsibility which
they represent.
3.
At non-unionized workplaces, immediate higher-level trade union representatives
shall exercise the rights provided in this Article.
Article 192. Responsibilities of employers toward trade
unions
1.
To create favorable conditions for employees to establish, join and operate
trade unions.
2.
To collaborate and create favorable conditions for immediate higher-level trade
unions to propagandize, mobilize and develop trade union members, establish
grassroots-level trade unions and arrange full-time trade union representatives
at enterprises, agencies or organizations.
3.
To ensure conditions for grassroots-level trade union activities as provided in
Article 193 of this Code.
4.
To coordinate with grassroots-level trade unions to formulate and implement
democracy regulations and coordination mechanism regulations which are suitable
to the functions and tasks of each side.
5.
To consult the executive committee of the grassroots-level trade union before
issuing regulations related to the rights, obligations and benefits of and policies
related to employees.
6.
When an employee who is a part-time trade union representative is still in
his/her trade union tenure while his/her labor contract expires, that labor
contract must be extended until the end of the trade union tenure.
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If
failing to reach such agreement, the two parties shall report it to a competent
agency or organization. Only after 30 days after notifying the case to the
local state management agency of labor, may the employer make decision and
he/she shall take responsibility for his/her decision.
If
disagreeing with the employer’s decision, the executive committee of the
grassroots-level trade union and the employee concerned may request labor dispute
settlement in accordance with the procedures and order provided by law.
Article 193. Assurance of conditions for trade union
activities at enterprises, agencies and organizations
1.
A grassroots-level trade union shall be provided by the employer with an office
and information and given necessary conditions for trade union activities.
2.
A part-time trade union representative may use working time for trade union
activities according to the Law on Trade Union and have his/her wage paid by
the employer.
3.
A full-time trade union representative at an enterprise, agency or organization
has his/her wage paid by the trade union and shall be ensured by the employer
with collective welfare benefits like other employees of the enterprise, agency
or organization as stated in the collective labor agreement or the employer’s
regulations.
Chapter XIV
SETTLEMENT
OF LABOR DISPUTES
Section 1. GENERAL PROVISIONS ON SETTLEMENT OF LABOR
DISPUTES
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1.
To respect and guarantee self-negotiation and self-determination by the parties
in settling their labor dispute.
2.
To ensure conciliation and arbitration on the basis of respect for the rights
and interests of both disputing parties, and respect for the common interest of
the society and non-violation of the law.
3.
To guarantee publicity, transparency, objectiveness, timeliness, quickness and
lawfulness.
4.
To ensure participation of the representative of each party in the labor
dispute settlement process.
5.
To settle a labor dispute firstly through direct negotiation by the two parties
in order to harmoniously resolve their interests, stabilize production and
business and assure social order and safety.
6.
The settlement of a labor dispute shall be conducted by a competent agency,
organization or person after either party makes a written request due to the
fact that the other party refuses to negotiate or the two parties do not
negotiate successfully or the two parties negotiate successfully but either
party does not implement the agreement.
Article 195. Responsibilities of agencies, organizations
and individuals for settling labor disputes
1.
The state management agency of labor shall coordinate with the trade union and
the employers’ representative organization in providing guidance and assistance
to the parties during the labor dispute settlement.
2.
The Ministry of Labor, War Invalids and Social Affairs shall organize training
to raise professional capacity for labor conciliators and arbitrators in the
labor dispute settlement.
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Article 196. Rights and obligations of two parties in labor
dispute settlement
1.
During the labor dispute settlement, the two parties have the following rights:
a/
To participate directly or through a representative in the settlement process;
b/
To withdraw or change the content of their written request;
c/
To request change of the person in charge of settling the labor dispute if they
have grounds to believe that such person may not be impartial or objective.
2.
During the labor dispute settlement, the two parties have the following
obligations:
a/
To promptly and fully provide all documents and evidence to prove their
request;
b/
To abide by the reached agreement, the judgment or ruling which has taken legal
effect.
Article 197. Powers of agencies, organizations and persons
competent to settle labor disputes
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Article 198. Labor conciliators
1.
Labor conciliators are appointed by the state management agency of labor of a
district, town or provincial city to conciliate labor disputes and disputes
over vocational training contracts.
2.
The Government shall stipulate criteria for and competence to appoint labor
conciliators.
Article 199. Labor Arbitration Council
1.
The chairperson of a provincial-level People’s Committee may decide to
establish the Labor Arbitration Council, which consists of the chairperson who
is the head of the state management agency of labor, a secretary and members
who are the representatives of the provincial-level trade union and the
employers’ representative organization. The number of members of the Labor Arbitration
Council must be an odd number and not exceed seven.
In
case of necessity, the chairperson of the Labor Arbitration Council may invite
representatives of relevant agencies and organizations and persons with
experience in local industrial relations.
2.
The Labor Arbitration Council may conciliate the following collective labor
disputes:
a/
Interest-related collective labor disputes;
b/
Collective labor disputes occurring at employing units where strikes are
prohibited on the list stipulated by the Government.
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4.
Provincial-level People’s Committees shall provide necessary working conditions
for the operation of the Labor Arbitration Council.
Section 2. COMPETENCE AND PROCESS FOR SETTLEMENT OF
INDIVIDUAL LABOR DISPUTES
Article 200. Agencies and persons competent to settle
individual labor disputes
1.
Labor conciliators.
2.
People’s Courts.
Article 201. Order and procedures for settlement of
individual labor disputes by labor conciliators
1.
Individual labor disputes must go through the conciliation conducted by labor
conciliators before going to a court for settlement, except the following labor
disputes:
a/
Disputes over disciplinary measures of dismissal or unilateral termination of
labor contract;
b/
Disputes over compensation for damage and allowance upon termination of labor
contract;
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d/
Disputes over social insurance in accordance with the law on social insurance,
over health insurance in accordance with the law on health insurance;
e/
Disputes over compensation between employees and enterprises or non-business
units sending employees to work abroad under contracts.
2.
Within 5 working days from the date of receiving a conciliation request, the
labor conciliator shall complete the conciliation.
3.
Both disputing parties must be present at the conciliation meeting. The
disputing parties may authorize their representatives to attend the
conciliation meeting.
The
labor conciliator shall instruct the parties to negotiate. In case the two
parties can reach an agreement, the labor conciliator shall prepare a record of
successful conciliation.
In
case the two parties cannot reach any agreement, the labor conciliator shall
recommend a solution to the parties for consideration. In case the two parties
agree with the recommended solution, the labor conciliator shall prepare a
record of successful conciliation.
In
case the two parties do not agree with the recommended solution or one of the
disputing parties is absent without a plausible reason after having been duly
summoned for two times, the labor conciliator shall prepare a record of
unsuccessful conciliation.
The
record of unsuccessful conciliation must bear the signatures of the present
party and the labor conciliator.
Copies
of the record of successful or unsuccessful conciliation must be sent to both
disputing parties within 1 working day from the date the record is prepared.
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Article 202. Statute of limitations for requesting
settlement of individual labor disputes
1.
The statute of limitations for requesting a labor conciliator to settle an
individual labor dispute is 6 months, counting from the date of discovering an
act which is claimed by each disputing party to infringe upon its rights and
legitimate interests.
2.
The statute of limitations for bringing an individual labor dispute to a court
is 1 year counting from the date of discovering an act which is claimed by each
disputing party to infringe its rights and legitimate interests.
Section 3. COMPETENCE AND PROCESS FOR SETTLEMENT OF
COLLECTIVE LABOR DISPUTES
Article 203. Agencies, organizations and persons competent
to settle collective labor disputes
1.
Agencies, organizations and persons competent to settle right-based collective
labor disputes include:
a/
Labor conciliators;
b/
Chairpersons of People’s Committees of districts, towns or provincial cities
(below referred to as chairperson of district-level People’s Committees);
c/
People’s Courts.
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a/
Labor conciliators;
b/
The Labor Arbitration Council.
Article 204. Procedures for settling collective labor
disputes at grassroots level
1.
The conciliation procedures for collective labor disputes comply with Article
201 of this Code. A record of conciliation must clearly indicate the type of
the collective labor dispute.
2.
In case of unsuccessful conciliation or if either party does not implement the
agreement written in the record of successful conciliation, the following
provisions must be complied with:
a/
For right-based collective labor disputes, any disputing party may request
settlement by the chairperson of the district-level People’s Committee;
b/
For interest-based collective labor disputes, any disputing party may request
settlement by the Labor Arbitration Council.
3.
In case the labor conciliator fails to conduct the conciliation within the time
limit specified in Clause 2 of Article 201 of this Code, any disputing party
may request settlement by the chairperson of the district-level People’s
Committee.
Within
2 working days after receiving a request for settlement, the chairperson of the
district-level People’s Committee shall identify whether the dispute is
right-based or interest-based.
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If
it is an interest-based collective labor dispute, the chairperson of the
district-level People’s Committee shall promptly guide the disputing parties to
make a request for settlement in accordance with Point b, Clause 2 of this
Article.
Article 205. Settlement of right-based collective labor
disputes by chairpersons of district-level People’s Committees
1.
Within 5 working days after receiving a request for settlement of a right-based
collective labor dispute, the chairperson of a district-level People’s
Committee shall conduct the labor dispute settlement.
2.
Representatives of the two disputing parties must be present at the labor
dispute settlement meeting. When finding it necessary, the chairperson of the
district-level People’s Committee may invite representatives of other relevant
agencies and organizations to the meeting.
The
chairperson of the district-level People’s Committee shall base himself/herself
on the labor law, collective labor agreement, registered internal working
regulations and other lawful regulations and agreements to consider and settle
the labor dispute.
3.
In case the two parties disagree with the decision of the chairperson of the
district-level People’s Committee or the chairperson of the district- level
People’s Committee fails to settle the labor dispute within the time limit, any
disputing party may request settlement by a court.
Article 206. Settlement of interest-based collective labor
disputes by the Labor Arbitration Council
1.
Within 7 working days from the date of receiving a request, the Labor
Arbitration Council shall complete the conciliation.
2.
Representatives of the two disputing parties must be present at the meeting of
the Labor Arbitration Council. If finding it necessary, the Labor Arbitration
Council may invite representatives of relevant agencies and organizations to
the meeting.
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If
the two parties can reach an agreement or agree with the recommended solution,
the Labor Arbitration Council shall prepare a record of successful conciliation
and concurrently issue a decision to recognize the agreement of the two
parties.
In
case the two parties cannot reach an agreement or either disputing party is
absent without a plausible reason after having been duly summoned for two
times, the Labor Arbitration Council shall make a record of unsuccessful
conciliation.
The
record of unsuccessful conciliation must bear the signatures of the present
party and the chairperson and the secretary of the Labor Arbitration Council.
Copies
of the record of successful or unsuccessful conciliation must be sent to both
disputing parties within 1 working day from the date the record is prepared.
3.
Five days after the Labor Arbitration Council makes the record of successful
conciliation, if either party does not implement the agreement, the employees’
collective may carry out procedures for going on strike.
In
case the Labor Arbitration Council makes a record of unsuccessful conciliation,
after 3 days, the employees’ collective may carry out procedures for going on
strike.
Article 207. Statute of limitations for requesting
settlement of right-based collective labor disputes
The
statute of limitations for requesting settlement of a right-based collective
labor dispute is 1 year counting from the date of discovering an act which is
claimed by either party to infringe upon its rights or legitimate interests.
Article 208. Prohibition of unilateral acts pending
settlement of collective labor disputes
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Section 4. STRIKES AND STRIKE SETTLEMENT
Article 209. Strikes
1.
Strike is a temporary, voluntary and organized work stoppage of an employees’
collective in order to achieve their demands in the process of labor dispute
settlement.
2.
A strike can only be carried out for interest-based collective labor disputes
and after the expiry of the statute of limitations specified in Clause 3,
Article 206 of this Code.
Article 210. Organization and leadership of strikes
1.
In a unionized place, a strike must be organized and led by the executive
committee of the grassroots-level trade union.
2.
In a non-unionized place, a strike must be organized and led by the
higher-level trade union at the request of employees.
Article 211. Sequence of going on strike
1.
Collecting opinions of the employees’ collective.
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3.
Going on strike.
Article 212. Procedures for collecting opinions of the
employees’ collective
1.
In unionized places, opinions of members of the executive committee of the
grassroots-level trade union and heads of production teams must be collected;
in non-unionized places, opinions of heads of production teams or employees
must be collected.
2.
Opinions may be collected by ballot or signatures.
3.
Issues put up for opinions on going on a strike include:
a/
The option suggested by the executive committee of the trade union on the
contents specified at Points b, c and d, Clause 2, Article 213 of this Code;
b/
The employee’s agreement or disagreement to go on strike.
4.
The time and method of collecting opinions on going on a strike must be
determined by the executive committee of the trade union and notified to the
employer at least 1 day in advance.
Article 213. Notification of the starting time of a strike
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2.
A decision to go on strike must include:
a/
The outcome of the collection of opinions on going on strike;
b/
The starting time and place for the strike;
c/
Scope of the strike;
d/
Demands of the employees’ collective;
e/
Full name of the representative of the executive committee of the trade union
and contact address for settlement.
3.
At least 5 working days prior to the starting date of the strike, the executive
committee of the trade union shall send the decision to go on strike to the
employer; and simultaneously send its copies to the provincial-level state
management agency of labor and the provincial-level Federation of Labor.
4.
By the starting time of the strike, if the employer does not accept the demands
of the employees’ collective, the executive committee of the trade union may
organize and lead the strike.
Article 214. Rights of the parties prior to and during a
strike
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2.
The executive committee of the trade union has the rights to:
a/
Withdraw the decision to go on strike if the strike has not happened yet or to
stop the strike if it is happening;
b/
Request a court to declare the strike is legal.
3.
The employer has the rights to:
a/
Accept the demands entirely or in parts, and send a written notice of his/her
acceptance to the executive committee of the grassroots-level trade union that
organizes and leads the strike;
b/
Temporarily close the workplace during the strike due to shortage of conditions
to maintain normal operations or to protect the assets;
c/
Request a court to declare the strike is illegal.
Article 215. Cases in which a strike is illegal
1.
A strike does not arise from an interest-based collective dispute.
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3.
A strike occurs when the dispute is being settled or has not been settled by an
agency, organization or person in accordance with this Code.
4.
A strike occurs in a strike-prohibited enterprise listed by the Government.
5.
A strike occurs when there is a decision to postpone or stop the strike.
Article 216. Notice of the decision on temporary closure of
the workplace
At
least 3 working days before the date of temporary closure of the workplace, the
decision on temporary closure must be publicly posted up at the workplace and
notified by the employer to the following agencies and organizations:
1.
The executive committee of the trade union that organizes and leads the strike.
2.
The provincial-level trade union.
3.
The employers’ representative organization.
4.
The provincial-level state management agency of labor.
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Article 217. Prohibited cases of temporary closure of the
workplace
1.
Twelve hours prior to the starting time of the strike notified in the decision
to go on strike.
2.
After the employees’ collective stops striking.
Article 218. Wages and other lawful interests of employees
during a strike
1.
Employees who do not take part in a strike but have to stop working because of
the strike shall be paid with a work suspension allowance under Clause 2,
Article 98 of this Code and other benefits stipulated by the labor law.
2.
Employees taking part in a strike may not be paid with wages or other benefits
stipulated by law, unless otherwise agreed by both parties.
Article 219. Prohibited acts before, during and after a
strike
1.
Obstructing employees to exercise their right to go on strike or instigating,
dragging or forcing employees to go on strike, and preventing non-strikers from
going to work.
2.
Using violence; sabotaging machines, equipment and assets of the employer.
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4.
Terminating the labor contracts with, imposing labor disciplinary measures on
or transferring employees and strike leaders to other jobs or other locations
due to their preparation for or involvement in the strike.
5.
Taking revenge actions on employees who are on strike or leaders of the strike.
6.
Taking advantage of strikes to commit other illegal acts.
Article 220. Cases in which strikes are prohibited
1.
Strike is prohibited in units which are essential for the national economy and
in which strikes can threaten the national security, defense, health and public
order as listed by the Government.
2.
State management agencies shall periodically organize meetings to listen to
opinions of employees’ collectives and employers in order to timely provide
support and respond to the legitimate demands of the employees’ collectives.
Article 221. Decisions to postpone or cancel strikes
When
considering that a strike may cause serious damage to the national economy and
public interests, the chairperson of the provincial-level People’s Committee
may decide to postpone or cancel such strike and assign competent agencies and
organizations to deal with such strike.
The
Government shall stipulate the postponement and cancellation of strikes and
settlement of interests of the employees’ collectives.
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1.
The chairperson of a provincial-level People’s Committee may issue a decision
declaring a strike violates the prescribed sequence and procedures and
immediately notify the chairperson of the district-level People’s Committee
when the organization and leadership of the strike do not comply with Articles
212 and 213 of this Code.
2.
Within 12 hours from the time of receiving the notification of the chairperson
of the provincial-level People’s Committee, the chairperson of the
district-level People’s Committee shall assume the prime responsibility for,
and coordinate with the state management agency of labor and the trade union of
the same level and other relevant agencies and organizations in, holding a
meeting directly with the employer and the executive committee of the
grassroots-level trade union or higher-level trade union for consulting and
supporting the parties to find solutions and resume normal production and
business operations.
Section 5. COURTS TO CONSIDER THE LEGITIMACY OF A STRIKE
Article 223. Request for a court to consider the legitimacy
of a strike
1.
During a strike or within 3 months from the date a strike comes to an end,
either party may submit a written request to a court for consideration of the
legitimacy of the strike.
2.
The written request must contain the following principal details:
a/
Date of the request;
b/
Name of the court to receive the request;
c/
Name and address of the requester;
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e/
Name and address of the employer of the employees’ collective on strike;
f/
Issues brought to the court for settlement;
g/
Other information that the requester finds necessary for the settlement.
3.
The request must be enclosed with copies of the decision to go on strike,
decision or conciliation record of a competent agency or organization engaged
in the settlement of the collective labor dispute, documents and evidence
related to the consideration of the legitimacy of the strike.
Article 224. Procedures for sending a written request to a
court for consideration of the legitimacy of a strike
Procedures
for sending and receiving a written request and performing the obligation to
provide documents and evidences to a court for consideration of and ruling on
the legitimacy of a strike are similar to those for submitting and receiving a
written request and performing the obligation to provide documents and evidence
at a court provided in the Civil Procedures Code.
Article 225. Jurisdiction to consider the legitimacy of a
strike
1.
The provincial-level People’s Court of the locality in which a strike takes
place has jurisdiction to consider the legitimacy of the strike.
2.
The Supreme People’s Court has jurisdiction to settle complaints about
decisions on the legitimacy of strikes.
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1.
The panel to consider the legitimacy of a strike comprises three judges.
2.
The panel to settle a complaint about a decision on the legitimacy of a strike
comprises three judges appointed by the President of the Supreme People’s
Court.
3.
The change of a judge who is a member of the panel to consider the legitimacy
of a strike must comply with the Civil Procedures Code.
Article 227. Procedures for processing a written request
for consideration of the legitimacy of a strike
1.
Upon receipt of a written request, the president of the provincial-level
People’s Court shall decide to form a panel to consider the legitimacy of the
strike and assign one judge to take main charge of settling the written
request.
2.
Within 5 working days after receiving a written request, the judge assigned to
take main charge of settling such request shall issue a decision to consider
the legitimacy of the strike. The decision to hold a hearing to consider the
legitimacy of the strike must be immediately sent to the executive committee of
the trade union, the employer and relevant agencies and organizations.
3.
Within 5 working days after issuing a decision to consider the legitimacy of a
strike, the panel to consider the legitimacy of the strike shall open a hearing
to consider the legitimacy of the strike.
Article 228. Termination of consideration of the legitimacy
of a strike
A
court may terminate consideration of the legitimacy of a strike in the
following cases:
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2.
The disputing parties have reached an agreement on the settlement of the strike
and file a written request for the court to terminate the settlement;
3.
The requester does not show up after having been duly summoned for two times.
Article 229. Participants in a hearing to consider the
legitimacy of a strike
1.
The panel to consider the legitimacy of a strike must be chaired by the
assigned judge; the court clerk shall take the minutes of a hearing.
2.
Representatives of the employees’ collective and the employer.
3.
Representatives of other agencies and organizations as requested by the court.
Article 230. Postponement of a hearing to consider the
legitimacy of a strike
1.
The judge assigned to chair the hearing to consider the legitimacy of a strike
or the panel to consider the legitimacy of a strike may decide to postpone the
hearing in a way similar to the postponement of a court hearing provided in the
Civil Procedure Code.
2.
The postponement of a hearing to consider the legitimacy of a strike must not
exceed 3 working days.
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1.
The chairperson of a hearing to consider the legitimacy of a strike announces
the decision to hold a hearing to consider the legitimacy of the strike and
summarizes the written request.
2.
The representatives of the employees’ collective and the employer give their
views.
3.
The chairperson may request to hear opinions of representatives of other
organizations and agencies attending the meeting.
4.
The panel considering the legitimacy of the strike discusses and makes decision
by majority vote.
Article 232. Ruling on the legitimacy of a strike
1.
The ruling of a court on the legitimacy of a strike must clearly state the
reason and grounds to conclude on the legitimacy of the strike.
The
ruling of a court on the legitimacy of a strike must be publicly announced at
the court hearing and immediately sent to the executive committee of the trade
union, the employer and the people’s procuracy of the same level. The
employees’ collective and the employer shall implement the ruling of the court
but may also file complaints according to the procedures provided by this Code.
2.
After the ruling of the court on the legitimacy of a strike is announced, if
the strike is ruled to be illegal, the employees on strike shall immediately
stop going on strike and return to work.
Article 233. Handling of violations
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In
case an illegal strike causes damage to the employer, the damage must be
compensated in accordance with law by the trade union that leads the strike.
2.
Those who take advantage of a strike to cause public disorder, sabotage machines
and assets of the employer; those who prevent or instigate, drag or force
employees to go on strike, take revenge on strikers and leaders of the strike
shall, depending on the seriousness of their violations, be administratively
sanctioned or examined for penal liability; and, if causing any damage, shall
pay compensations in accordance with law.
Article 234. Order and procedures for settling complaints
about rulings on the legitimacy of a strike
1.
Within 15 days after receiving the ruling on the legitimacy of a strike, the
executive committee of the trade union or the employer may lodge a written
complaint with the Supreme People’s Court.
2.
Upon receiving a complaint about the ruling on the legitimacy of a strike, the Supreme
People’s Court shall request in writing the court that has considered the
legitimacy of the strike to forward the whole file of the case to it for
consideration.
3.
Within 3 working days after receiving the Supreme People’s Court’s written
request, the court that has issued the ruling on the legitimacy of the strike
shall forward the whole file of the case to the Supreme People’s Court for
consideration.
4.
Within 5 working days after receiving the file, a panel shall settle the
complaint about the ruling on the legitimacy of the strike.
The
ruling of the Supreme People’s Court is the final binding decision on the
legitimacy of the strike.
Chapter XV
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Article 235. Contents of state management of labor
State
management of labor covers the following principal contents:
1.
Promulgating and implementing legal documents on labor.
2.
Monitoring, making statistics and providing information on labor supply and
demand and fluctuations of labor supply and demand; making decision on policies,
master plans and plans on human resources, vocational training, development of
vocational skills, formulation of the national vocational qualification
framework and distribution and utilization of labor in the whole society.
Issuing a list of jobs that require employees who have been vocationally
trained or possess national vocational skills certificate;
3.
Organizing and conducting scientific research on labor and statistics and
information on labor and the labor market and on the living standards and
income levels of employees;
4.
Building mechanisms and institutions to support the development of harmonious,
stable and progressive industrial relations.
5.
Inspecting, examining and settling complaints and denunciations and handling
violations of the labor law; and settling labor disputes in accordance with
law.
6.
International cooperation in the field of labor.
Article 236. Competence of state management of labor
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2.
The Ministry of Labor, War Invalids and Social Affairs shall take
responsibility before the Government for performing the state management of
labor.
Ministries
and ministerial-level agencies shall, within the ambit of their tasks and
powers, perform and coordinate with the Ministry of Labor, War Invalids and
Social Affairs in performing the state management of labor.
3.
People’s Committees at all levels shall perform the state management of labor
within their respective localities.
Chapter XVI
LABOR
INSPECTION, HANDLING OF VIOLATIONS OF LABOR LAW
Article 237. Responsibilities of the state inspectorates of
labor
The
inspectorates of the Ministry of Labor, War Invalids and Social Affairs and
provincial-level Departments of Labor, War Invalids and Social Affairs have the
following main responsibilities:
1.
To inspect compliance with the labor law;
2.
To investigate labor accidents and violations of occupational safety and
hygiene;
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4.
To settle labor-related complaints and denunciations in accordance with law;
5.
To handle according to their competence or propose competent agencies to handle
violations of labor law.
Article 238. Labor inspection
1.
The inspectorates of the Ministry of Labor, War Invalids and Social Affairs and
provincial-level Departments of Labor, War Invalids and Social Affairs shall
perform the function of specialized inspection of labor.
2.
The inspection of occupational safety and hygiene in the fields of radiation,
oil and gas exploration and exploitation, means of transport by rail, waterway,
road and air; and units of the armed forces must be carried out by state
management agencies in charge of these fields with the cooperation of the
specialized labor inspectorates.
Article 239. Handling of violations in the field of labor
Violators
of the provisions of this Code shall, depending on the seriousness of their
violations, be disciplined, administratively sanctioned or examined for penal
liability; and, if causing any damage, shall pay compensations in accordance
with law.
Chapter XVII
IMPLEMENTATION PROVISIONS
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1.
This Code takes effect on May 1, 2013.
The
June 23, 1994 Labor Code, Law No. 35/2002/QH10 Amending and Supplementing a
Number of Articles of the Labor Code No. 35/2002/QH10, Law No. 74/2006/QH11
Amending and Supplementing a Number of Articles of the Labor Code, and Law No.
84/2007/QH11 Amending and Supplementing a Number of Articles of the Labor Code
cease to be effective on the date this Code takes effect.
2.
From the date this Code takes effect:
a/
The signed labor contracts, collective labor agreements, and other lawful
agreements and any agreements which are more favorable for employees than the
provisions of this Code may continue to be performed.
Any
agreements which are inconsistent with the provisions of this Code must be
amended and supplemented;
b/
The duration of maternity leave provided in Law No. 71/2006/QH11 on Social
Insurance must be implemented in accordance with this Code.
For
female employees that take maternity leave before the effective date of this
Code, if until May 1, 2013, they are still on maternity leave in accordance
with Law No. 71/2006/QH11 on Social Insurance, the duration of their maternity
leave complies with this Code.
3.
Labor policies for cadres, civil servants, public employees, members of the
People’s Army and People’s Public Security forces and other social organizations,
and members of cooperatives comply with other laws but, depending on each
category, some provisions of this Code may be applied.
The
Government shall promulgate specific wage policies for application to cadres,
civil servants, public employees and other members of the People’s Army and
People’s Public Security forces.
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Employers
using under 10 employees shall comply with the provisions of this Code, but are
entitled to a reduction of or exemption from a number of criteria and
procedures as stipulated by the Government.
Article 242. Implementation detailing and guidance
The
Government and competent agencies shall detail and guide articles and clauses
as assigned in this Code.
This
Code was passed on June 18, 2012, by the XIIIth National Assembly of
the Socialist Republic of Vietnam at its 3rd session.-
CHAIRMAN OF THE NATIONAL ASSEMBLY
Nguyen Sinh Hung