The Vietnam Labour Code 2012 has been promulgated on Jun 18th 2012 and put into effect since May 1st, 2013. There have been a number of changes in labour regulations in Vietnam reflected in the new labour code compared with the previous labour code in labour contract regulations, work permit in Vietnam for foreigners, salary policy regulations, work and rest time regulations, and retirement age for different working groups. Below is the full Vietnam Labour Code 2012. For legal advice on labour regulations in Vietnam, our employment and labour lawyers at ANT Lawyers could assist.
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NATIONAL ASSEMBLY |
SOCIALIST REPUBLIC OF VIET NAM |
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Law No. 10/2012/QH13 |
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LABOR CODE
Pursuant to the Constitution 1992 of the Socialist Republic of Vietnam amended and supplemented under the Resolution No. 51/2001/QH10;
The National Assembly promulgates the Labor Code.
Chapter I
GENERAL PROVISIONS
Article 1. Scope of regulation
The Labor Code specifies the labor standards; the rights, obligations and responsibilities of the employees, the employers, the labor representative organizations, the employer representative organizations in the labor relation and other relations directly related to the labor relation, the State management of labor.
Article 2. Subjects of application
1. The Vietnamese employees, apprentices, interns and other employees specified in this Code.
2. The employers.
3. Foreign employees working in Vietnam.
4. Other individuals, agencies and organizations directly related to the labor relation.
Article 3. Interpretation of terms
In this Code, the following terms are construed as follows:
1. Employees are people from 15 years old and above, capable of working, working under labor contracts, receiving salaries and subject to the management of the employers.
2. The employers are enterprises, agencies, organizations, cooperatives, households and individuals hiring, employing employees under labor contracts. The individuals must be sufficiently capable of civil acts.
3. The labor collectives are organized collectives of the employees working for one employer or in one division under the organizational structure of the employer.
4. The internal labor representative organizations are the executive board of the internal Union or the executive board of the direct superior Union if the internal Union has not been established
5. The employer representative organizations are organizations legally established to represent and protect the lawful rights and interests of the employers in the labor relation.
6. Labor relation is the social relation occurring while hiring or employing, paying salaries between the employee and the employer.
7. Labor dispute is the dispute over the rights, obligations and interests arising in the labor relation.
The labor disputes include the personal labor dispute between the employee and the employer, and the collective labor dispute between the labor collective and the employer.
8. Collective labor dispute over rights is the dispute between the labor collective and the employer arising out of the inconsistent explanation and implementation of the law provisions on labor, the collective labor agreement, the labor regulations and other lawful agreements and regulations.
9. The collective labor dispute over interests is the labor dispute arising when the labor collective requests the establishment of new working conditions compared to the law provisions on labor, the collective labor agreement, labor regulations and other lawful agreements and regulations during the negotiation between the labor collective and the employers.
10. Coercive labor is the use of force, the threat to use force or other tricks to coerce other people to work involuntarily.
Article 4. The State policies on labor
1. Ensuring the legitimate rights and interests of the employees; encouraging agreements that ensure more favorable conditions for the employees than that in the law provisions on labor; encouraging employees to purchase stocks and contribute capital to the production and business development.
2. Ensuring the lawful rights and interests of the employers, managing labor in a legal, democratic, equitable, civilized manner, and enhance the social responsibilities.
3. Facilitating the employment creation, self-employment, vocational training and learning towards employment opportunities, facilitating the production and business that attract a lot of labor.
4. Planning the development and distribution of labor force; providing vocational training and skill improvement courses for employees, offering incentives to employees with great professional expertise that satisfy the modernization and industrialization requirements of the country.
5. Planning the labor market development, diversifying the means of connection between the labor supply and demand.
6. Guiding the communication and collective negotiation between employees and employers, building stable, progressive and harmonious labor relations.
7. Ensuring the gender equality; imposing labor regulations and social policies in order to protect female employees, disabled employees, elderly employees and underage employees.
Article 5. Rights and duties of employees
1. The employees are entitled to:
a) Work, independently select works, vocations, get vocational training and improvement without discrimination;
b) Receive salaries consistently with the vocational skills and grade on the basis of the agreement with the employer; receive work protection, work in safe and hygienic conditions; take official leave, paid annual leave and enjoy collective benefits;
c) Establish, join and participate in activities of the Union, professional organizations and other organizations as prescribed by law; request and participating in discussions with the employer, exercise the democratic regulation and get consultancy at workplaces in order to protect the lawful rights and interests; participate in the management under the regulations of the employer.
d) Unilaterally terminate the labor contract as prescribed by law;
dd) Be on strike.
2. The employees are responsible to:
a) Perform the labor contract and the collective labor agreement;
b) Observe the labor discipline, labor regulations and obey the lawful management of the employer;
c) Implement the law provisions on social insurance and law provisions on medical insurance.
Article 6. Rights and obligations of employers
1. The employers are entitled to:
a) Employ, arrange and manage labor according to the demand for production and business; commend and discipline for violations of labor discipline;
b) Establish, join and participate in the activities of professional organizations and other organizations as prescribed by law;
c) Request the labor collective to discuss, negotiate and conclude the collective labor agreement; participate in settling labor disputes and strikes; discuss with the Union about the problem in labor relations, improve the material and mental life of the employees;
d) Temporarily shut down the workplace.
2. The employers are responsible to:
a) Perform the labor contract, collective labor agreement and other agreements with employees, respect the honor and dignity of employees;
b) Establish the mechanism and discuss with the labor collective at the enterprise and strictly observe the internal democratic regulations;
c) Make the labor management book, salary book and present them at the request from competent agencies;
d) Declare the employment within 30 days as from starting the operation, periodically make and send reports on the change in the labor status during the operation to local State labor management agencies;
dd) Implement the law provisions on social insurance and law provisions on medical insurance.
Article 7. Labor relations
1. Labor relation between the employee or the labor collective with the employer is established through communication, negotiation and agreement in a voluntary, affable, equitable, cooperative manner, in which the lawful rights and interests are mutually respected.
2. The Union, the employer representative organizations shall join the State agencies in building the stable, progressive and harmonious labor relations, supervising the implementation of law provisions on labor; protecting the lawful rights and interests of employees and the employers.
Article 8. Prohibited acts
1. Discrimination by sex, race, social class, marital status, belief, religion, discrimination against HIV sufferers, disabled people or against the reasons for establishing, joining and participate in the Union activities.
2. Maltreatment of employees, sexual harassment at workplaces.
3. Coercive labor.
4. Exploiting vocational training and apprenticeship to make profit, exploit labor or entice, coerce the vocational learners, apprentices into committing unlawful acts.
5. Using untrained employees or employees without national vocational certificates to do the jobs that required trained employees or employees with national vocational certificates
6. Deceitfully enticing and advertising in order to cheat employees or exploiting the employment services to contractually send employees abroad to commit unlawful acts.
7. Illegally using underage labor.
Chapter II
EMPLOYMENTS
Article 9. Employments and employment creation.
1. Employments are activities that generate incomes that the law does not prohibit
2. The State, the employers and the society are responsible to create employments and ensure that everyone capable of working is offered employment possibilities.
Article 10. The right to work of employees
1. The employee is entitled to work for any employer at any place that the law does not prohibit.
2. The employee may directly contact the employee or via the employment services to seek employment towards their expectations, vocational grade and health.
Article 11. The right to employ of employers
The employer is entitled to employ labor directly or via employment services, or outsourcing service providers. The employer is entitled to increase or decrease the labor depending on the production and business demand.
Article 12. The State policies on employment development support
1. The State shall determine the target for employment increase in the five-year and the annual socio-economic development plans.
Depending on the socio-economic condition in each period, the Government shall present the National Assembly to approve the National program of vocational training and employment.
2. Establishing the policies on unemployment insurance and incentives for employees to create self-employment, support employers that employ females, disabled people or people from ethnic groups.
3. Encouraging and facilitate the investment in production and business development of domestic, foreign organizations and individuals in order to create more employments.
4. Supporting employers and employees to seek and expand the labor markets overseas.
5. Establishing the National fund of employments to grant preferential loans for employment creation and other activities as prescribed by law.
Article 13. Employment programs
1. People’s Committees of central-affiliated cities and provinces (hereinafter referred to as provincial People’s Committees) shall establish and present the local employment programs to the People’s Council at the same level for approval.
2. Other employers, State agencies, enterprises, socio-political organizations, social organizations, within their scope of duties and authority, are responsible to participate in the employment programs.
Article 14. Employment service organizations
1. Employment service organizations shall provide consultancy, offer employments and provide vocational training to employees; supply and recruit labor at the request of the employer; collect and provide information about the labor market, and perform other duties as prescribed by law.
2. Employment service organizations include employment service centers and enterprises providing employment services.
Employment service centers are established and operated in accordance with the Government’s provisions.
The enterprises providing employment services are established and operated as prescribed by the Law on Enterprise and must obtain the Licenses to provide employment services issued by provincial State labor management agencies.
3. Employment service organizations are eligible for collecting fees, for tax exemption and reduction as prescribed by law provisions on fees and law provisions on tax.
Chapter III
LABOR CONTRACT
Section 1. LABOR CONTRACT CONCLUSION
Article 15. Labor contract
A labor contract is an agreement between the employee and the employer on the paid job, the work conditions, the rights and obligations of each party in the labor relation.
Article 16. Form of labor contracts
1. A labor contract must be concluded in writing and made into 02 copies, the employee shall keep 01 copy, the employer shall keep 01 copy, except for the case prescribed in Clause 2 this Article.
2. For temporary jobs with terms under 03 months, the parties may conclude verbal contracts.
Article 17. Principles of labor contract conclusion
1. Voluntary, equitable, affable, cooperative and truthful.
2. The contract is freely concluded without violating the law, the collective labor agreement and social ethics.
Article 18. Responsibilities for labor contract conclusion
1. Before recruiting, the employer and the employee must directly conclude the labor contract.
In case the employee is from 15 to 18 years old, the labor contract conclusion must be agreed by the legal representative of the employee.
2. For casual works and regular works with terms under 12 months, the employee group may authorize an employee in the group to conclude the written contract; in this case, the validity of the contract is equal to each person.
The labor contract concluded by the authorized person must be enclosed with the list specifying the full names, ages, genders, residences, occupations and signatures of every employee.
Article 19. Responsibilities to provide information before the labor contract conclusion
1. The employer must provide information for employees about the work, work location, work conditions, working hours, break time, labor safety, labor hygiene, salary, method of salary payment, social insurance, the provisions on business secret protection, technical know-how and other issues directly related to the labor contract conclusion requested by the employee.
2. The employee must provide information for the employer about their full name, gender, residence, educational background, vocational skills, health condition and other issues directly related to the labor contract conclusion requested by the employer.
Article 20. The prohibited acts committed by the employer during the conclusion and performance of the labor contract
1. Keeping the originals of the identity papers, certificates and qualifications of the employee.
2. Requesting the employee to mortgage cash or property for the labor contract performance.
Article 21. Concluding labor contracts with multiple employers.
The employee may conclude contracts with multiple employers as long as they can ensure the implementation of the concluded contents.
For contracts concluded with multiple employers, the social insurance, medical insurance of the employee must comply with the Government’s provisions.
Article 22. Kinds of labor contracts
1. The labor contract must be concluded in one of the following kind:
a) Labor contracts without fixed term;
The labor contract without fixed term is a contract in which both parties do not specify the term and the expiry date of the contract.
b) Fixed-term labor contracts;
The fixed-term labor contract is a contract in which both parties specify the term and the expiry date of the contract within 12 to 36 months.
c) Casual labor contracts or regular labor contracts with terms under 12 months.
2. In case the employee keeps working when the labor contract prescribed in Point b and Point c Clause 1 this Article expires, both parties must conclude the new labor contract within 30 days as from its expiry date; if the new labor contract is not concluded, the contracts concluded as prescribed in Clause 1 this Article shall be come a labor contract without fixed term, and the contract concluded as prescribed in Point c Clause 1 this Article shall be come a labor contract with a fixed term of 24 months
The new labor contract being a fixed-term contract shall be concluded only one more time. After that, if the employee keeps working, the labor contract without fixed-term must be concluded.
3. It is prohibited to conclude casual labor contracts or regular labor contracts with terms under 12 months to do regular works from 12 months and above, except for temporary replacement of employees doing military service, taking maternity leave, suffering from sickness or occupational accidents, or taking other temporary leave.
Article 23. Labor contract contents
1. The labor contract must include the following contents:
a) Name and address of the employer or the legal representative;
b) The full name, date of birth, gender, residence, ID number or other legal papers of the employee;
c) The work and working location;
d) The labor contract term;
dd) The salary, method of salary payment, salary payment term, allowance and other additional pays;
e) The grade increase, salary increase regime;
g) The working hours, break time;
h) The labor protection equipment for the employee;
i) Social insurance and medical insurance.
k) The vocational training and improvement courses.
2. In case the employee doing works directly related to the business secret, technical know-how as prescribed by law, the employer is entitled to reach a written agreement with the employee on the contents and term of business secret, technical know-how protection, the interests and compensation for the employee’s violations.
3. For employees working in the agriculture, forestry, fishery, salt industries, both parties may remove a number of primary contents from the labor contract and reach additional agreements on the settlement in case the contract performance is affected by natural disasters, fire and weather.
4. The contents of labor contracts with employees being hired as directors in the enterprise contributed by the State must comply with the Government’s provisions.
Article 24. Labor contract annex
1. The labor contract annex is part of the labor contract and as valid as an labor contract.
2. The labor contract annex is to specify a number of terms or to amend and supplement the labor contract.
In case the labor contract Annex specify a number of labor contract terms that leads to different interpretation of the labor contract, the labor contract contents shall apply.
In case the labor contract annex amends and supplements the labor contract, the amendments, supplements and date of effect must be specified.
Article 25. Labor contract effect
The labor contract takes effect as from the date of conclusion unless otherwise agreed by both parties or prescribed by the law.
Article 26. Probation
1. The employer and the employee may reach the agreements on the probation, the rights and obligations of both parties during the probation. If the probation is agreed, the probation contract may be concluded.
The probation contract includes the contents prescribed in Point a, b, c, d, dd, g and h Clause 1 Article 23 of this Code.
2. The employees working under casual labor contract do not have to undergo probation.
Article 27. Probation duration
Only one probation is given for a job. The probation duration varies according to the nature, the complication of the work and must satisfy the following conditions:
1. Within 60 days for works that demand college education or further;
2. Within 30 days for works that demand vocational intermediate education, technical workers, professional workers.
3. Within 6 working days for other works.
Article 28. Probation salary
The employee’s salary during the probation is agreed by both parties but must be at least 85% of the official salary.
Article 29. Probation expiry
1. If the probation is passed, the employer must conclude the labor contract with the employee.
2. During the probation, each party is entitled to terminate the probation without prior notice and without compensation if the probation fails to satisfy the requirements agreed by both parties.
Section 2. LABOR CONTRACT PERFORMANCE
Article 30. Doing works under the labor contract
The work under the labor contract must be done by the employee that concluded the labor contract. The working location must comply with the labor contract or other agreements between both parties.
Article 31. Transferring employees to do other works than in the labor contract
1. Upon sudden difficulties from natural disasters, fire, epidemics, from the implementation of preventive and remedial measures for occupational accidents and occupational illness, from electricity or water supply system malfunctions, or from the production and business demands, the employer is entitled to temporarily transfer the employee to do other work than in the labor contract within 60 cumulative working days in a year, unless otherwise agreed by the employee.
2. When the employee is temporarily transferred to other works than in the labor contract, the employer must notify the employee in advance at least 03 days, specify the duration and arrange works suitable for the employee’s health and gender.
3. The employee doing the works prescribed in Clause 1 this Article shall be paid for the new work. If the new work salary is lower than that of the old one, the old salary is kept within 30 working days. The new work salary must be at least 85% of that of the old one but must not be lower than the local minimum salary prescribed by the Government.
Article 32. Cases of labor contract suspension
1. The employee have to do military service
2. The employee is detained as prescribed by law provisions on criminal procedures.
3. The employee have to implement the decision on compulsory treatment and education in reformatories, detoxification centers or educational facilities.
4. The pregnant female employees prescribed in Article 156 of this Code.
5. Other cases agreed by the parties.
Article 33. Re-employing employees after the labor contract suspension expires.
Within 15 days as from the labor contract suspension expires as prescribed in Article 32 of this Code, the employee must be present at the workplace and the employee must re-employ the employee, unless otherwise agreed by the parties.
Article 34. Employees working shorter hours
1. The employees working shorter hours are employees that work less than the usual working hours by day or by week specified in the law provisions on labor, collective labor agreement, professional collective labor agreement or the employer’s provisions.
2. The employee may reach an agreement with the employer on the shorter working hours when concluding the labor contract.
3. The employee working shorter hours shall have the salary, rights and obligations similarly to that of other full-time employees, shall have equitable opportunities, labor safety and labor hygiene conditions without discrimination.
Section 3. AMENDING, SUPPLEMENTING, TERMINATING LABOR CONTRACT
Article 35. Amending and supplementing labor contract
1. During the performance of labor contract, the party that demands to amend and supplement the labor contract must notify to the other party in advance at least 3 working days of the contents being amended and supplemented.
2. If the agreement is reached, the amendment and supplement of the labor contract must be carried out by concluding the labor contract annex or concluding the new labor contract.
3. If the agreement on the amendment and supplement of the labor contract cannot be reached, the concluded labor contract shall continue to be performed.
Article 36. Cases of labor contract termination
1. The labor contract expires, except for the case prescribed in Clause 6 Article 192 of this Code.
2. The work under the labor contract is done.
3. Both parties agree to terminate the labor contract.
4. The employee satisfies the requirements of about social insurance duration and pension age as prescribed in Article 187 of this Code.
5. The employee is condemned to imprisonment, to death or prohibited from doing the work in the labor contract according to the legal judgment and decision from the Court.
6. The employee dies, is declared dead, missing or incapable of civil acts by the Court.
7. The employer being an individual dies, is declared dead, missing or incapable of civil acts by the Court; the employer not being an individual stops the operation.
8. The employee is disciplinarily dismissed as prescribed in Clause 3 Article 125 of this Code.
9. The employee unilaterally terminates the labor contract as prescribed in Article 37 of this Code.
10. The employer unilaterally terminates the labor contract as prescribed in Article 38 of this Code; the employer dismisses the employee due to changes in the mechanism, technology or for some economic reasons, or merger, separation of enterprises, cooperatives.
Article 37. The right to unilaterally terminate the labor contract of employees
1. The employee working under the fixed-term labor contract, casual labor contract or regular labor contract with term under 12 months is entitled to unilaterally terminate the contract sooner in the following cases:
a) The employee is not provided with the right work, the workplace or the working conditions as agreed in the labor contract;
b) The salary is not adequately or punctually paid as agreed in the labor contract;
c) The employee suffers from maltreatment, sexual harassment, coercive labor;
d) The employee or their family encounters difficulties that the labor contract cannot continue to be performed;
dd) The employee is elected to perform specialized duties at elective agencies or designated to hold a position in the State mechanism;
e) The pregnant female employee has to quit job under the direction from competent medical examination and treatment facilities.
g) The employees suffering from sickness or accidents cannot recover after 90 consecutive days of treatment for employees working under fixed-term labor contracts, or one fourth of the contract term for employees working under casual labor contract or regular labor contract with term under 12 months.
2. When unilaterally terminate the labor contract as prescribed in Clause 1 this Article, the employee must notify the employer:
a) At least 3 working days for the cases prescribed in Point a, b, c and g Clause 1 this Article;
b) At least 30 working days for fixed-term labor contracts, 03 working days for casual labor contracts or regular labor contracts with term under 12 months regarding the cases prescribed in Point d and dd Clause 1 this Article;
c) For the cases prescribed in Point e Clause 1 this Article, the advance notice time must comply with the provisions in Article 156 of this Code.
3. The employees working under labor contracts without fixed term are entitled to unilaterally terminate the labor contract but the employer must be notified in advance at least 45 days, except for the case prescribed in Article 156 of this Code.
Article 38. The right to unilaterally terminate the labor contract of the employer
1. The employer is entitled to unilaterally terminate the labor contract in the following cases:
a) The employee regularly fails to complete the works according to the labor contract;
b) The employee suffering from sickness or accidents cannot recover after 12 consecutive months of treatment for labor contracts without fixed term, after 06 months for employees working under fixed-term labor contracts, or over one half of the contract term for employees working under casual labor contract or regular labor contract with term under 12 months
When the employee recovers, he/she may be considered to conclude the new contract.
c) The employer have to reduce the production and vacancies after taking all measures to overcome the consequences from natural disasters, fire or other force majeure;
d) The employee fails to be present at the workplace after the duration prescribed in Article 33 of this Code.
2. When unilaterally terminating the labor contract, the employer must notify the employee:
a) At least 45 days for labor contracts without fixed term;
a) At least 30 days for fixed-term labor contracts;
c) At least 30 working days for the case prescribed in Point b Clause 1 this Article and for casual labor contracts or regular labor contracts with term under 12 months.
Article 39. The employer must not unilaterally terminate the labor contract in the following cases:
1. The employee is undergoing treatment for sickness or occupational accidents, occupational illness under the decision from the competent medical examination and treatment facility except for the case prescribed in Point b Clause 1 Article 38 of this Code.
2. The employee is on annual leave, personal leave and other leave permitted by the employer.
3. The female employees prescribed in Clause 3 Article 155 of this Code.
4. The employee is on maternity leave as prescribed by law provisions on social insurance.
Article 40. Canceling the unilateral termination of the labor contract
Each party is entitled to cancel the unilateral termination of the labor contract before the advance notice time limit expires. The cancellation must be made in writing and agreed by the other party
Article 41. Illegal unilateral termination of the labor contract
The illegal unilateral termination of the labor contract is the labor contract termination contrary to Article 37, 38 and 39 of this Code.
Article 42. Obligations of the employer when illegally unilaterally terminating the labor contract
1. Re-employing the employee under the concluded labor contract and pay the salary, social insurance, medical insurance for the days the employee is banned from working plus the salary of at least 02 months under the labor contract.
2. In case the employee does not wish to continue working, the employer must give the severance pay as prescribed in Article 48 of this Code apart from the compensation prescribed in Clause 1 this Article.
3. In case the employer does not wish to re-employ the employee and the employee agrees, both parties shall reach the agreement on the extra compensation equal to the salary of at least 02 months under the labor contract apart from the compensation prescribed in Clause 1 this Article and the severance pay as prescribed in Article 48 of this Code.
4. If no vacancy for the position in the labor contract is available but the employee still wishes to continue working, both parties must negotiate to amend and supplement the labor contract apart from the compensation prescribed in Clause 1 this Article.
5. For violations of the advance notice time, the employee must be paid a compensation equivalent to the his/her salary of the unnoticed days.
Article 43. Obligations of the employee when illegally unilaterally terminating the labor contract
1. Being ineligible for severance pay and paying compensation equivalent to the half-month salary under the labor contract to the employee.
2. For violations of the advance notice time, the employer must be paid a compensation equivalent to the employee’s salary of the unnoticed days.
3. The training cost must be returned to the employer as prescribed in Article 62 of this Code.
Article 44. Obligations of the employer in case of changes in the mechanism, technology or economic reasons
1. In case of changes in the mechanism, technology that affect the employment of multiple employees, the employer is responsible to devise and implement the employment plan as prescribed in Article 46 of this Code; if new positions are available, the employees must be retrained and employed.
In case the employer cannot create new employments that the employees must be dismissed, the employer must give the redundancy pay to the employees as prescribed in Article 49 of this Code.
2. If the employee faces the risk of unemployment or dismissal for some economic reasons, the employer must devise and implement the employment plan as prescribed in Article 46 of this Code.
In case the employer cannot create new employments that the employees must be dismissed, the employer must give the redundancy pay to the employee as prescribed in Article 49 of this Code.
3. The dismissal of multiple employees prescribed in this Article is only carried out after the discussion with the internal labor representative organization and the provincial State labor management agency must be notified in advance 30 days.
Article 45. Obligations of the employer when merging, dividing, separating the enterprise or the cooperative
1. For the merger, division, separation of the enterprise or cooperative, the succeeding employer must be responsible to continue employing the existing employees and carry out the labor contract amendment and supplement.
In case there are not enough vacancies for the existing employees, the succeeding employer must be responsible to continue devising and implementing the employment plan as prescribed in Article 46 of this Code.
2. For ownership transfers or property use right transfers, the preceding employer must devise the employment plan as prescribed in Article 46 of this Code.
3. In case the employer dismisses the employee as prescribed in this Article, the employer must give the redundancy pay to the employee as prescribed in Article 49 of this Code.
Article 46. Employment plan
1. The employment plan must include the following contents:
a) The list and quantity of the employees being directly employed, the employees being retrained for re-employment;
b) The list and quantity of the retired employees;
c) The list and quantity of the employees being transferred to work shorter hours; the dismissed employees;
d) The measures and financial sources for implementing the plan.
2. The plan development must be participated by the internal labor representative organization.
Article 47. Obligations of the employer when terminating the labor contract
1. At least 15 days before the expiry date of the fixed-term labor contract, the employer must notify the employee in writing of the expiry date of the labor contract.
2. Within 07 working days as from terminating the labor contract, both parties are responsible to fully pay the amounts related to each party’s interests. This time limit may be longer if necessary but must not exceed 30 days.
3. The employer is responsible to complete the procedures for certifying and returning the social insurance book and other papers of the employee that have been kept by the employer.
4. In case the enterprise or cooperative is shut down, dissolve or bankrupt, the salary, severance pay, social insurance, medical insurance, unemployment insurance and other benefits of the employee under the collective labor agreement and the signed labor contract shall be paid first.
Article 48. Severance pay
1. When the labor contract terminates as prescribed in Clause 1, 2, 3, 5, 6, 7, 9 and 10 Article 36 of this Code, the employer is responsible to give the severance pay to the regular employees that have been worked for 12 months or more. A half- month salary shall be paid for each working year.
2. The working time for severance pay calculation is the total duration that the employee has actually worked for the employer excluding the time the employee has taken the unemployment insurance as prescribed in the Law on Social insurance and the time the employer paid the severance pay.
3. The salary for severance pay calculation is the average salary under the labor contract of the preceding 06 months before the employee is dismissed.
Article 49. Redundancy pay
1. The employer is responsible to give the redundancy pay to the dismissed regular employees that have worked for 12 months or more as prescribed in Article 44 and 45 of this Code. 1-month salary is paid for each working year but must not be lower than the salary of 02 months.
2. The working time for redundancy pay calculation is the total duration that the employee has actually worked for the employer excluding the time the employee has taken the unemployment insurance as prescribed in the Law on Social insurance and the time the employer paid the severance pay.
3. The salary for redundancy pay calculation is the average salary under the labor contract of the preceding 06 months before the employee is dismissed.
Section 4. LABOR CONTRACT INVALIDATION
Article 50. Labor contract invalidation
1. The labor contract is totally invalidated in one of the following cases:
a) The entire labor contract contents are illegal;
b) The labor contract is concluded by incompetent persons;
c) The works in the concluded labor contract is prohibited by law;
d) The labor contract restricts or obstructs the right to establish, join and participate in the Union activities of the employee.
2. The labor contract is partially invalidated when part of it violates the law provisions but does not affect the rest.
3. In case part or the entire labor contract specifies the employee’s interests that are inferior to that in the effective collective labor agreement, law provisions on labor, labor regulations, or the labor contract restricts other rights of the employee, part or the entire labor contract shall be invalidated.
Article 51. Authority to invalidate labor contracts
1. The Labor Inspectors, People’s Courts are entitled to invalidate labor contracts.
2. The Government shall specify the order and procedures for the Labor Inspectors, People’s Courts to invalidate labor contracts.
Article 52. Handling invalidated labor contracts
1. The partially invalidated labor contract shall be handled as follows:
a) The rights, obligations and interests of the parties shall be settled under the collective labor agreement or law provisions;
b) The parties shall amend, supplement the invalidated part of the labor contract to suit the collective labor agreement or law provisions on labor.
2. The totally invalidated labor contract shall be handled as follows:
a) In case of ultra vires signing prescribed in Point b Clause 1 Article 50 of this Code, the State labor management agencies shall guide the parties to sign it again;
b) The rights, obligations and interests of employees shall be settled under the collective labor agreement or law provisions;
3. The Government shall elaborate this Article.
Section 5. OUTSOURCING
Article 53. Outsourcing
1. Outsourcing is when an employee employed by an enterprise licensed to provide outsourcing services works for another employer and subject to the latter’s management while the labor relation with the outsourcing service provider is still sustained.
2. Outsourcing service is a conditional business and only provided for a certain number of works.
Article 54. Outsourcing service providers
1. Outsourcing service providers must pay a deposit and obtain the license to provide outsourcing services.
2. The maximum outsourcing duration is 12 months.
3. The Government shall specify the outsourcing licensing, the deposit payment and the list of works eligible for outsourcing.
Article 55. Outsourcing contract
1. The outsourcing service provider and the outsourcing party must sign the written outsourcing contract. The contract is made into 02 copies, each party keeps one copy.
2. The outsourcing contract must include the following contents:
a) The working location, the position being outsourced, the work detail and requirements for the outsourced employee;
b) The outsourcing duration, the starting time of the employee;
c) The working hours, breaking time, labor safety and hygiene conditions at the work place;
d) The responsibilities for the employees of each party.
3. The outsourcing contract must not include the agreements on the rights and interests of the employee that are inferior to that in the labor contract signed by the outsourcing service provider and the employee.
Article 56. Rights and obligations of outsourcing service providers
1. Providing the eligible employees consistently with the requirements of the outsourcing party and the labor contract signed with the employee.
2. Informing the employee about the outsourcing contract contents.
3. Signing the labor contract with the employee as prescribed in this Code.
4. Informing the outsourcing party about the employee’s résumé and requirements.
5. Fulfilling the obligations of the employer as prescribed in this Code; paying salaries, holiday pay, annual leave pay, work suspension pay, severance pay, redundancy pay, compulsory social insurance, unemployment insurance for the employee as prescribed by law.
Ensuring that the outsourced employee’s salary is not lower than that of the outsourcing party’s employees at equal levels, doing the same or equivalent job.
6. Recording the quantity of the outsourced employees, the outsourcing fees and sending reports to provincial State labor management agencies.
7. Disciplining employees that violate labor discipline when they are returned due to labor discipline violations.
Article 57. Rights and obligations of the outsourcing party
1. Notifying and guiding the outsourced employee about the labor regulations and other regulations.
2. The working condition discrimination against outsourced employees in favor of their own employees is prohibited.
3. Reaching agreements with the outsourced employees when they are mobilized to work on the night shift or to work overtime outside the outsourcing contract.
4. The outsourced employees must not be transferred to other employers.
5. Reaching the agreement with the outsourced employee and the outsourcing service provider on officially employing the outsourced employee in case the labor contract between the employee and the outsourcing service provider is unexpired.
6. Returning the employee to the outsourcing service provider if they are not eligible as agreed or if they violate labor discipline.
7. Providing evidence of the labor discipline violations of the outsourced employee for the outsourcing service provider for disciplining.
Article 58. Rights and obligations of outsourced employees
1. Doing the work under the labor contract signed with the outsourcing service provider.
2. Observing the labor regulations, labor discipline, collective labor agreement and the lawful management of the outsourcing party.
3. Receiving salary not lower than that of the outsourcing party’s employees at the same level, doing the same or equivalent job.
4. Lodging complaints with the outsourcing service provider in case the outsourcing party violates the agreements in the outsourcing contract.
5. Exercising the right to unilaterally terminate the labor contract with the outsourcing service provider as prescribed in Article 37 of this Code.
6. Reaching the agreement to conclude the labor contract with the outsourcing party after terminating the labor contract with the outsourcing service provider.
Chapter IV
VOCATIONAL LEARNING AND TRAINING, VOCATIONAL SKILL AND GRADE IMPROVEMENT
Article 59. Vocational learning and training
1. The employees are entitled to choose their vocation and vocational training at workplaces consistently with their demands for employment.
2. The eligible employers are supported by the State to establish vocational training facilities or hold vocational training classes at workplaces to train, retrain, improve the vocational skill and grade for their employees and provide vocational training to other learners as prescribed by law provisions on vocational training.
Article 60. Responsibilities of employers for vocational training, vocational skill and grade improvement
1. The employers shall make the annual plan and prepare budget to provide vocational training or vocational skill and grade improvement courses for their employees; train the employees before they change their jobs to be recruited by the employers.
2. The employer must send reports on the results of vocational skill and grade training and improvement to provincial State labor management agencies in the annual labor reports.
Article 61. Vocational learning and apprenticeship towards employment
1. When the employer recruits vocational learners and apprentices to work for them, the vocational training registration is not required and school fee collection is prohibited.
The vocational learners and apprentices in this case must be 14 years or over and physically capable of the vocational demand, except for the occupations prescribed by the Ministry of Labor, War Invalids and Social Affairs.
Both parties must sign the vocational training contract. The vocational training contract must be made into 02 copies, each party shall keep one copy.
2. During the vocational training and apprenticeship, if the vocational leaner or the apprentice directly creates or participates in the creation of qualified products, they shall be paid an amount agreed by both parties.
3. When the vocational training or apprenticeship completes, both parties must sign the labor contract when the conditions prescribed in this Code are satisfied.
4. The employer is responsible to encourage the employee to participate in the vocational skill assessment in order to be issued with the national vocational certificate.
Article 62. The vocational training contract between the employer and the employee, vocational training cost
1. Both parties must sign the vocational training contract when the employee is provided with the vocational training, vocational skill and grade improvement courses domestically or overseas using the employer’s budget, including the sponsorship from the employer’s partners.
The vocational training contract must be made into 02 copies, each party shall keep one copy.
2. The vocational training contract must include the following contents:
a) The vocation being trained;
b) The training location and duration;
c) The training cost;
d) The duration that the employee commits to work for the employer after being trained;
dd) The responsibility to return the training cost;
e) The responsibilities of the employer.
3. The training cost includes the expenses on the trainers, the documents, the school, the equipment, the practice materials and, supportive expenses for the learner, the salary, the social insurance medical insurance payment being paid during the training. In case the employee is sent to study overseas, the training cost shall include the travel cost and living cost during the time living overseas.
Chapter V
DIALOGUE AT THE WORKPLACE, COLLECTIVE NEGOTIATION, COLLECTIVE LABOUR AGREEMENT
Section 1. DIALOGUE AT THE WORKPLACE
Article 63. Purpose and form of dialogue at workplace
1. Dialogue at the workplace in order to share information and enhance the understanding between the employer and the employee to build the labor relations at the workplace.
2. Dialogue at work is done through the direct exchange between the employee and the employer or between the representatives of labor collective with the employer to ensure the implementation of democratic regulations at the grassroots level.
3. The employer and the employee are obliged to implement the democratic regulations at the grassroots level at workplace in accordance with the regulations of the Government.
Article 64. Content of dialogue at the workplace
1. The situation of production and business of the employer.
2. The implementation of labor contracts, collective labor agreements, internal rules, regulations and commitments and agreements at the workplace.
3. Working conditions
4. Requirements of the employee and the labor collective for the employer.
5. Requirements of the employer with the employee and the labor collective.
6. Other contents that both parties are concerned about
Article 65. Conducting dialogue at the workplace
1. Dialogue at the workplace is conducted once every 03 months periodically or at the request of one party.
2. The employer is obliged to arrange the venue and other material conditions to ensure the dialogue at the workplace.
Section 2. COLLECTIVE NEGOTIATION
Article 66. Purpose of the collective negotiation
The collective negotiation is that the labor collective makes discussion and negotiation with the employer for the following purposes:
1. Building harmonious, stable and progresive labor relations;
2. Establishing new working conditions as a basis for signing the collective labor agreements;
3. Settling the problems and difficulties in implementing the rights and obligations of each party in the labor relations.
Article 67. Principle of collective negotiation
1. Collective negotiation is conducted on the principles of goodwill, equality, cooperation, openness and transparency.
2. Collective negotiation is conducted periodically or irregularly.
3. Collective negotiation is done at the place agreed upon by both parties.
Article 68. Right to require the collective negotiation
1. Each party shall have the right to require the collective negotiation; the party receiving the requirement is not entitle to decline the negotiation. Within 07 working days after receiving the negotiation request, the parties shall agree upon the starting time of the negotiation meeting.
2. Where a party can not participate in the negotiation meeting at the starting time for negotiation as agreed, that party has the right to propose the postponement, but the starting time of negotiation shall not exceed 30 days after receiving the request for collective negotiation.
3. Where a party declines to negotiate or not conduct the negotiation within the time limit prescribed in this Article, the other party has the right to carry out the procedures for requesting the settlement of labor disputes in accordance with the law.
Article 69. Representative of collective negotiation
1. Representative of collective negotiation is defined as follows:
a) For the labor collective in collective negotiation, the scope of enterprise is the representative organization of the labor collective at the grassroots level; the collective negotiation of the scope of sector is the representative of the sector Executive Committee of the Trade union;
b) For the employer in the collective negotiation, the scope of enterprise is the employer or the representative of the employer; the collective negotiation in the scope of sector is the representative of the representative organization of the sector employer
2. The number of people attending the negotiation meeting of each party shally be agreed upon by both parties.
Article 70. Content of collective negotiation
1. Salary, bonus, allowance and pay rise
2. Working hour, rest time, overtime working, break between shift.
3. Job guarantee for the employee
4. Ensuring the labor safety, occupational health and complying with labor rule.
5. Other contents that both parties are concerned about.
Article 71. Process of collective negotiation
1. The process for preparation of the collective negotiation is regulated as follows:
a) Before the collective negotiation meeting at least 10 days, the employer must provide information on the situation of production and business upon the requirement from the labor collective except for business secrets and technology secrets of the employer.
b) Gathering opnions of the labor collective
The negotiation representative of the labor collective party shall directly gather opinions of the labor collective or indirectly through the delegate conference of the employee concerning the requirements of the employee for the employer and the requirements of the employer with the labor collective;
c) Notification of the content of collective negotiation.
Within 05 working days before the start of the collective negotiation meeting, the party requiring the collective negotiation must notify in writing the other party of the estimated contents for the conduct of collective negotiation.
2. Procedures for the collective negotiation are regulated as follows:
a) Organizing the meeting of collective negotiation
The employer shall organize the meeting of collective negotiation with time and place agreed upon by both parties.
The collective negotiation must be recorded in writing, in which there must be the contents agreed upon by the two parties. The estimated time of for the signing of the agreed content; the contents with different opinions;
b) The minutes of the meeting of collective negotiation must have the signature of the representative of labor collective, of the employer and the person recording the minutes.
3. Within 15 days from the day of termination of the meeting of collective negotiation, the negotiation representatives of the labor collective party must diffuse widely and publicly the minutes of the meeting of collective negotiation to the labor collective and collect susggestion by voting from the labor collective on the contents agreed upon.
4. Where the negotiation fails either party may request to continue the negotiation or conduct the procedures for the settlement of the labor disputes in accordance with this Code.
Article 72. Responsibilities of the trade unions, representative organizations of the employers and the state management agencies on labor in collective negotiation.
1. Organizing the training of the collective negotiation skills for the persons participating in the collective negotiation.
2. Participating in the meeting of collective negotiation upon the request from either collective negotiation party.
3. Providing and exchanging information relating to the collective negotiation
Section 3. COLLECTIVE LABOR AGREEMENT
Article 73. Collective Labor Agreement
1. A collective labour agreement is a written agreement between a labour collective and the employer in respect of working conditions that both parties have agreed upon through collective negotiation.
A collective labour agreement includes the enterprise collective labour agreement, the sector collective labour agreement and other form of collective labour agreement as prescribed by the Government.
2. The contents of the collective labour agreement must not be inconsistent with the regulation of law and must be more favorable to the employee compared with the provisions of law.
Article 74. Signing of the collective labor agreement
1. The collective labor agreement is signed between the representative of the labor collective with the employer or the the employer’s representative.
2. The collective labor agreement is only signed when the parties have reached the agreement at the meeting of collective negotiation and:
a) There is over 50% of the labor collective to vote for the content of the collective negotiation agreed upon in case of signing the enterprise collective labor agreement;
b) There is over 50% of the Executive Committee of the Trade union at the grassroots level or the senior Trade union voting for the approval of the content of the collective negotiation agreed upon in case of signing the sector collective labor agreement;
c) For the other form of the collective labor agreement in accordance with the regulation of the Government.
3. When the collective labor agreement has been signed, the employer must announce it to his/her employee.
Article 75. Sending the collective labor agreement to the state management agency
Within a period of 10 days from the signing day, the employer or the employer’s representative must send a copy of the collective labor agreement to:
1. The provincial state management agency on labor for the enterprise collective labor agreement,
2. The Ministry of Labour, War Invalids and Social Affairs for the sector collective labor agreement and other collective labor agreement.
Article 76. Effective day of collective labor agreement
The effective day of collective labor agreement is specified in the agreement.
In case there is no effective day in the collective labor agreement, the agreement then takes effect from the signing day
Article 77. Amendment and supplementation of the collective labor agreement
1. The parties are entitled to require the amendment and supplementation of the collective labor agreement in the following time limit
a) After 03 months of implementation for the collective labor agreement with the time limit of less than 01 year;
b) After 06 months of implementation for the collective labor agreement with the time limit from 01-03 years
2. In cases the provisions of law change that makes the collective labor agreements no longer consistent with the provisions of law, the two parties have to amend and supplement the collective labor agreement within 15 days from the day the provisions of law take effect.
During the time of amendment and supplementation of the collective labor agreement, the employee’s interests shall comply with the provisions of law.
3. The amendment and supplementation of the collective labor agreement shall be conducted as the signing of the collective labor agreements.
Article 78. Invalid collective labor agreements
1. The collective labor agreements shall be partially invalid when one or several contents in the agreement become illegal.
2. The collective labor agreements shall be entirely invalid in one of the following cases:
a) Having the entire illegal content
b) The signers are beyond their competence;
c) The signing is not in conformity with the process of collective negotiation
Article 79. The competence to declare the collective labor agreement invalid
The People’s Court is entitled to declare the collective labor agreement invalid.
Article 80. Handling of the invalid collective labor agreement
When the collective labor agreement is declared invalid, the rights, obligations and interests of the parties specified in the agreement corresponding to the entire or the part declared invalid shall be settled as prescribed by law and the legal agreements in the labor contract,
Article 81. Expired collective labor agreement
Within 03 months prior to the expiration of collective labor agreement, the two parties may negotiate to extend the term of the collective labor agreements or sign a new collective labor agreements.
Upon the expiration of collective labor agreement, but both parties still keep on negotiation, then the old collective labor agreement remains in use within a period not exceeding 60 days.
Article 82. Cost of collective negotiation and signing of collective labor agreement
All costs for the negotiation and signing, amendment, supplementation, sending and publication of the collective labor agreement shall be paid by the employer.
SECTION 4. ENTERPRISE COLLECTIVE LABOR AGREEMENT
Article 83. Signing of the enterprise collective labor agreement
1. The person signing the enterprise collective labor agreement is regulated as follows:
a) The labor collective party is the representative of labor collective at the grassroots level;
b) The employer party is the employer or the employer’s representative.
2. The enterprise shall make the collective labor agreement into 05 copies, in which:
a) Each signing party keeps 01 copy;
b) 01 copy is sent to the state agency as prescribed in Article 75 of this Code;
c) 01 copy is sent to the direct superior trade union at the grassroots level and 01 copy sent to the employer’s representative organization in which the employer is a member.
Article 84. Performance of the enterprise collective labor agreement.
1. The employer, the employee including the employee entering the enterprise to work after the effective day of the collective labor agreement are responsible for fully performing the collective labor agreement.
2. In case the rights, obligations and interests of the parties in labor contracts concluded before the effective day of the collective labor agreement lower than the corresponding provisions of the collective labor agreement, the corresponding provisions of the collective labor agreement must be performed. If the employer’s provisions on the labor are incompatible with the collective labor agreement, they must be amended to suit the collective labor agreement within 15 days from the effective day of collective labor agreement.
3. When a party thinks that the other party incompletely performs or breaches the collective labor agreement, it is entitled to request the proper performance of the agreement and both parties must jointly consider and settle the problems, if failed, each party has the right to request the settlement of the collective labor disputes in accordance with the law.
Article 85. Time limit of the enterprise collective labor agreement
The enterprise collective labor agreement has a time limit from 01-03 years. For the enterprise that signs the collective labor agreement for the first time, the time limit may be less than 01 year.
Article 86. Performing the collective labor agreement in case of transfer of the ownership, the right of management, right of enterprise utilization, merger, consolidation, division, separation of enterprises
1. In case of transfer of the ownership, the right of management, right of enterprise utilization, merger, consolidation, division, separation of enterprises, the succeeding employer and representative of the labor collective shall rely on the plan for labor utilization in order to consider and choose to keep on performing, amending, supplementing the old collective labor agreement or negotiate to sign a new collective labor agreement.
2. In case the collective labor agreement is expired due to the employer’s termination of its effect, the employee’s interests shall be settled in accordance with the law on labor.
Section 5. SECTOR COLLECTIVE LABOR AGREEMENT
Article 87
1. The representative for the signing of the sector collective labor is regulated as follows:
a) The labor collective party is the sector Trade union President;
b) The employer party is the representative of the representative organization in which the employer has participated in the sector collective negotiation.
2. The sector collective labor agreement must be made into 04 copies, in which:
a) Each signing party keeps 01 copy;
b) 01 copy is sent to the state agency as prescribed in Article 75 of this Code;
c) 01 copy is sent to the direct superior trade union at the grassroots level
Article 88. Relationship between the enterprise collective labor agreement with the sector collective labor agreement
1. If the contents of the enterprise collective labor agreement or the employer’s regulations on the rights, obligations and legal interests of the employee in the enterprise are lower than the contents of the corresponding provisions of the sector collective labor agreement, the enterprise collective labor agreement must be ameded and supplemented within a period of 03 months from the day the sector collective labor agreement takes effect.
2. The enterprise subject to the application of the sector collective labor agreement but having not built the enterprise collective labor agreement can build additional enterprise collective labor agreements with the provisions more favorable to the employee compared with the provisions of the sector collective labor agreement
3. Encouraging the enterprise in the sector having not participated in the sector collective labor agreement to perform it.
Article 89. Time limit of the sector collective labor agreement
The sector collective labor agreement has a time limit from 01-03 years
Chapter VI
SALARY
Article 90. Salary
1. Salary is an amount that the employer pays to the employee for the performance of work as agreed.
The salary includes the salary rate based on the work or the title, salary allowance and other additions
The salary rate of the employee must not be lower than the minimal salary rate as prescribed by the Government.
2. The salary paid to the employee is based on the labor productivity and work quality.
3. The employer must guarantee to pay equally without the gender discrimination for the employee performing work with the same value.
Article 91. Minimal salary rate
1. The minimal salary rate is the lowest rate that is paid to the emmployee who performs the simplest work in the normal working conditions and that must ensure the minimal living needs of the employees and their families.
The minimal salary rate is determined by month, day, hour and shall be established by region and sector.
2. Based on the minimal living needs of the employees and their families, the social and economic conditions and the salary wage on the labor market, the Government shall announce the regional minimal wage on the basis of the recommendations of the National Wages Council.
3. The minimal salary rate is determined through the sector collective negotiation and specified in the sector collective labor agreement but is not lower than the minimal salary rate announced by the Government.
Article 92. National Wages Council.
1. The National Wages Council is an advisory agency to the Government, including the members who are representatives of the Ministry of Labour – Invalids and Social Affairs, Vietnam General Confederation of Labour and the representative organization of the employer in the central.
2. The Government specifically regulates the functions, duties and organizational structure of the National Wages Council.
Article 93. Formulation of salary scale and payroll and labor norm
1. On the basis of the principles of formulating the salary scale, payroll and labor norms prescribed by the Government, the employer is responsible for formulating the salary scale, payroll and labor norm as a basis for labor recruitment and employment, salary agreement in the labor contract and salary payment to the employee
2. Upon formulating the salary scale, payroll and labor norms, the employer must consult with the representative organization of the labor collective at the grassroots level and publicize at the workplace of the employee before the formulation and simultaneously send them to the state management agency on labor at district level where the facility of production and business of the employer located.
Article 94. Form of salary payment
1. The employer has the right to make the salary payment by time, products or piecework. The chosen form of payment must be maintained for a certain period; in case of change of the payment form, the employer must notify the employee at least 10 days in advance.
2. Salary is paid in cash or paid throughthe employee’s individual account opened at the bank. Where the payment made through bank account, the employer must agree with the employee on the various fees related to opening and maintaining the account.
Article 95. Payment term
1. The employee whose salary based on hour, day and week shall be paid by hour, day and week or a lump sum agreed upon by both parties, but a lump sum must be paid once at least 15 days
2. The employee whose salary based on month shall be paid once a month or once a fortnight.
3. The employee whose salary based on the product and piecework shall be paid as agreed upon by both parties; if the work has to be done in many months, the monthly salary shall be advanced by the volume of work done during the month.
Article 96. Principle of salary payment
The employee is paid directly, fully and in a timely manner.
In special case the salary may not be paid in a timely manner, it must not be later than 01 month and the employer must pay the employee an additonal amount at least equal to the deposit interest rates by the State Bank of Vietnam announced at the time of payment.
Article 97. Overtime and working at night salary
1. The employee who works overtime is paid according to salary unit price or the salary by the job duties as follows:
a) On weekdays, at least 150%;
b) On weekly days-off, at least 200%;
c) On holidays and days-off with pay, at least 300% not including the salary of holiday and days-off for employee enjoying daily salary.
2. Employee working at night shall be additionally paid at least 30% of the salary calculated by the salary unit price or the work salary under a normal working day
3. The employee working overtime at night, in addition to the salary as prescribed in Clause 1 and Clause 2 of this Article, the employee shall also be paid an additional 20% of salary calculated by the salary unit price or the salary of work done in the day time
Article 98. Stop of working salary
In cases where the employee has to cease working, he shall be paid as follows:
1. If due to the fault of the employer, the employee shall be entitled to payment of the full salary;
2. If due to the fault of the employee, that employee shall not be entitled to salary payment; other employees in the same unit who have to cease work shall be paid the salary at the rate agreed on by the two parties provided that this salary rate is not less than the regional minimal salary rate as prescribed by the Government;
3. If there is a breakdown in electricity or water not due to the fault of the employer, or the employee or due to reasons of force majeure such as natural disasters, fire, dangerous epidemics, enemy-inflictes destruction, relocation of work place as required by the competent state agency or economic reasons, the salary for the working cease shall be agreed on by the two parties but shall not be less than the regional minimum wage as prescribed by the Government.
Article 99. Making salary payment through the contractor’s foreman
1. Where a contractor’s foreman or equivalent intermediary is employed, the employer who is the principal owner must have a list of the names and addresses of such persons accompanied by a list of their employees, and must ensure that their activities comply with the provisions of the law on salary payment, labour safety and labor sanitation.
2. In case the contractor’s foreman or the equivalent intermediary fails to pay, or pay in full or to ensure other interests of employees, the employer who is the principal owner must be responsible for the full salary payment and for ensuring such interests for the employees. In this case, the employer who is the principal owner shall have the right to request the compensation from the contractor’s foreman or equivalent intermediary, or request a competent State agency to resolve the dispute in accordance with the provisions of the law.
Article 100. Advance of salary payment
1. The employee shall be entitled to an advance of salary payment in accordance with the conditions agreed by both parties.
2. The employer shall advance the salary payment corresponding to the number of days the employee temporarily leaves his work to perform duties of citizen from 01 week or more but not exceeding 01 month salary maximally and the employee shall refund the advanced amount except for execution of military service.
Article 101. Deduction of salary
1. The employer is only entitled to deduct the salary of employee for the compensation of damages of tools and equipment of the employer as prescribed in Article 130 of this Code.
2. The employee shall have the right to be aware of the reasons for the deduction of his salary
3. The rate of monthly salary deduction may not exceed 30% of the employee’s monthly salary after the payment of compulsory social insurance, health insurance, unemployment insurance and income tax.
Article 102. Regulation on allowance, subsidy, scale and salary increase.
The regulation on allowance, subsidy, scale and salary increase and incentives for the employee shall be agreed upon in the labor contract, collective labor agreement or the provisions specified by the employer
Article 103. Bonus
1. Bonus is the amount that employer rewards the employee based on the annual business and production results and the level of work completion of the employee.
2. The regulation on bonus shall be decided by the employer and publicly announced at the workplace after consulting the representative organization of the labor collective at the grassroots level.
Chapter VII
WORKING HOURS AND BREAK HOURS
Section 1. WORKING HOURS
Article 104. Normal working hours
1. Working hours shall not exceed 08 hours per day or forty eight (48) hours per week.
2. The employer shall have the right to determine the working hours on a daily or a weekly basis; in case of weekly basis, the normal working hours shall not exceed 10 hours/1 day, but not exceed 48 hours/1 week
The State encourages the employer to implement the 40-hour working week.
3. The working hours shall not exceed 06 hours in 01 day for those whose works are extremely hard, harmful and dangerous under the list issued by the Ministry of Labour – Invalids and Social Affairs in coordination with the Ministry of Health.
Article 105. Working hour at night
The working hour at night is calculated from 22 pm to 6 am of the following day.
Article 106. Overtime working
1. Overtime working is the working period besides the normal working hours specified in the law, the collective labor agreement or the labor rule.
2. The employer is entitle to employ the employee to work overtime upon satisfying the following conditions:
a) With the consent of the employee;
b) To ensure that the overtime hours of the employee shall not exceed 50% of the normal working hours in 01 days, in case of application of working regulation on weekly basis, , the total normal working hours and the overtime hours shall not exceed 12 hours in a day, and less than 30 hours in 01 months and the total of not more than 200 hours in 01 year, except for some special cases stipulated by the Government for the overtime working but shall not be more than 300 hours in 01 years;
c) After each time of overtime working with consecutive days in month, the employer must arrange for the employee to take compensatory leave for the time without days-off.
Article 107. Overtime working in the special case
The employer has the right require the employees to work overtime on any day and the employees shall not be entitled to decline in the following cases:
1. Performing the mobilization order to guarantee the duties of national defense and security in the state of emergency on national defense and security as prescribed by law;
2. Performing work to protect human life and property of the agencies, organizations and individuals in the preventing and surmounting the consequence of the natural disasters, fire, epidemics and disasters.
Section 2. BREAK HOURS
Article 108. Break during working hour
1. The employee who works for 08 or 06 hours consecutively as prescribed in the Article 104 of this Code shall be entitled to a break of at least half an hour which shall be included in the number of working hours.
2. In case of working nightshift, the employee shall be entitled to a break of at least forty five (45) minutes which shall be included in the number of working hours.
3. Besides the break between the hours specified in Clause 1 and Clause 2 of this Article, the employer shall determine the time of the short breaks and record in the labor rule.
Article 109. Break after shift
The employee who works by shift is entitled to a break at least 12 hours before starting another shift.
Article 110. Weekly rest
1. In every week, each employee shall be entitled to a rest of at least twenty four consecutive hours. In special cases, due to the work cycle, the employee cannot take weekly rest, then the employer shall ensure that employees is entitled to at least 04 days/ 01 months on average.
2. The employer has the right to decide and arrange the weekly rest on Sundays or a fixed date in a week but must record in the labor rule.
Article 111. Annual leave
1. An employee who has 12 months in full to work for an employer shall be entitled to annual leave fully paid under the labor contract as follows:
a) Twelve (12) working days shall apply to employees working in normal working conditions;
b) Fourteen (14) working days shall apply to persons working in heavy, dangerous, or toxic jobs, or in places with harsh living conditions under the list issued by the Ministry of Labour, Invalids and Social Affairs in coordination with the Ministry of Health and to the employee under the age or the disabled employee
c) Sixteen (16) working days shall apply to persons working in extremely heavy, dangerous, or toxic jobs, or to the persons working in places with extremely harsh living conditions under the list issued by the Ministry of Labour, Invalids and Social Affairs in coordination with the Ministry of Health.
2. The employer is entitled to regulate the annual leave schedule after consulting with the employees and must give notice to employees in advance.
3. The employee can agree with the employer on taking annual leave in installments or combining 03 annual leave into one leave maximally.
4. When taking annual leave, if the employee travels by road, railway and waterway vehicles, the number of days to go and come back is over 02 days, from the 3rd day onwards, the traveling time is added besides the annual leave and is calculated only one time in a year.
Article 112. Annual leave increased by work seniority
Every 05 working years for an employer, the number of annual leave of the employee as prescribed in Clause 1 of Article 111 of this Code shall be increased 01 day accordingly
Article 113. Advance of salary and traveling expenses for the annual leave
1. When taking annual leave, the employee is advanced an amount at least equal to the salary of the days-off.
2. The travel expenses and salary in the traveling days shall be agreed by both parties.
For employees in the lowland working in the upland and remote areas, border, island and the employee in the upland and remote areas, border and island areas working in the lowland, the employer shall pay the traveling expenses and salaries in the traveling days to the employee.
Article 114. Payment of salary of the days-off untaken
1. An employee of an enterprise who, due to job leaving, job loss or other reasons, fails to take his annual leave or has not used up all his annual leave shall be paid salary for those days not taken.
2. An employee whose period of employment is less than twelve (12) months shall be entitled to annual leave of a duration calculated in proportion to the period of employment. In case of not taking leave, he may receive the payment instead.
Section 3. HOLIDAY LEAVE, PERSONAL LEAVE AND LEAVE WITHOUT PAY
Article 115. Holiday and Tet leave
1. An employee shall be entitled to have days off fully paid on the following public holidays:
a) Calendar New Year Holiday: one day (the first day of January of each calendar year);
b) Lunar New Year Holidays: Five days
c) Victory Day: 01 day (the 30th of April of each calendar year);
d) International Labour Day: one day (the first day of May of each calendar year);
dd) National Day: 01 day (the second day of September of each calendar year).
e) Hung Kings Commemoration Day (the 10th of March of each Lunar year)
2. The employees who are foreign citizens working in Vietnam, besides the holidays as prescribed in Clause 1 of this Article, they also take an additional day of traditional Tet and 01 day of their country’s National Day.
3. Where the public holidays as prescribed in clause 1 of this Article coincide with a weekly days- off, the employee shall be entitled to take the succeeding compensatory days-off instead.
Article 116. Personal leave and leave without Pay
1. An employee may take leave for personal reasons but fully paid in the following cases:
a) Marriage: 03 days;
b) Marriage of his children: 01 day;
c) Death of natural parents, wife or husband’s parents, wife or husband or child: 03 days.
2. An employee may take 01 day leaves unpaid and must notify the employer when his grandparents, natural brother and sister dies; parent or mother gets married; natural brother and sister gets married.
3. In addition to the provisions of Clause 1 and Clause 2 of this Article, the employee may agree with the employer to take unpaid leave.
Section 4. WORKING TIME AND REST TIME FOR THE PERSON PERFORMING WORK WITH PARTICUPAR PROPERTIES.
Article 117. Working time and rest time for the person performing work with particupar properties.
For jobs with particular properties in the area of road, railways, waterways and air transportation, oil and gas exploration and extraction at sea; working at sea, in the area of art; using radiation and nuclear engineering; application of high frequency waves; diver’s work, work in the pit; work of seasonal production and work of goods processing by the purchase order; the 24/24 permanent work, the management ministries and sector shall specifically regulate the working time and the rest time after having agreed with the Ministry of Labour, Invalids and Social Affairs and must comply with the provisions in the Article 18 of this Code.
Chapter VIII
LABOR DISCIPLINE AND MATERIAL RESPONSIBLITY
Section 1. LABOUR DISCIPLINE
Article 118. Labour discipline
Labour discipline is the regulations concerning the compliance with the time, technology, and business and production management in the labour rule.
Article 119. Labour rule
1. The employer who employs from ten (10) or more employees must have the labour rule in writing.
2. The contents of the labour rule must not be contrary to the law on labor and other regulations of the relevant law. The labor rule includes the following essential contents:
a) Working hours and rest time;
b) Order at the workplace;
c) Labor safety and hygiene at the workplace;
d) Protection of assets and business and technology secrets and intellectual property of the employer;
dd) Acts of violation of the labor rule of the employee and the forms of labor discipline and material responsibility
3. Before issuing the labor rule, the employer must consult the representative organization of the labor collective at the grassroots level.
4. The labor rule must be notified to the worker and the main contents must be posted at necessary places within the enterprise.
Article 120. Registration of labor rule
1. The employer must register the labor rule at the state management agency on labor at the provincial level.
2. Within 10 days from the date of promulgation of labor rule, the employer must submit dossier for registration of the labor rule.
3. Within 07 working days after receipt of the dossier for registration of the labor rule, if the labor rule contains the provisions contrary to law, the state management agency on labor at provicial level shall notify and guide the employer to make amendment and supplementation.
Article 121. Dossier for registration of the labor rule
Dossier for registration of the labor rule includes:
1. The written request for registration of the labor rule;
2. The documents of the employer that have provisions relating to the labor discipline and material responsibilities
3. The minutes of opnions of the representative organization of the labor collective at the grassroots level.
4. The labor rule
Article 122. Effect of the labor rule
The labor rule shall take effect after 15 days from the date the state management agency on labor at provicial level receives the dossier for registration of the labor rule, except for the case prescribed in clause 3, Article 120 of this Code
Article 123. Principles and procedures of labor discipline
1. The labor discipline is regulated as follows:
a) The employer must prove the employee’s fault;
b) There must be the participation of the representative organization of the labor collective at the grassroots level.
c) The employee must be present and has the right to defend himself, request a lawyer or someone to defend. In case of a person under age 18, there must be the participation of parents or the legal representative;
d) The labor discipline must be made in writing.
2. There is no permission to apply various forms of labor discipline for a violation of labor discipline.
3. When an employee at the same time has many acts of violation of the labor discipline, only the highest form of discipline shall apply corresponding to the most serious act of violation.
4. There is no permission for the labor discipline for the employe in the following time
a) Taking leave due to sickness, in convalescence and work leave with the permission of the employer;
b) Being in custody or detention;
c) Awaiting the results of the competent authority to investigate, verify and conclude for the acts of violations prescribed in Clause 1, Article 126 of this Code;
d) The female employee is pregnant and takes maternity leave; the employee nourishes her child under 12 months old
5. No labor discipline for the employee violating the labor discipline while suffering from the mental illness or another disease that causes the loss of consciousness ability or the loss of his behaviour control
Article 124. Limitation of labor discipline
1. The limitation of labor discipline is up to 06 months from the date the occurrence of violation; in case the act of violation is directly related to the finance, property, disclosure of business and technology secret of the employer, the limitation of the labor discipline is up to 12 months.
2. When the time period is over as specified in points a, b and c, Clause 4 of the Article 123, if the limitation is still valid to discipline the employees, the employer shall conduct the labor discipline immediately, if the limitation expires, it shall be extended for the labor discipline but not exceeding 60 days maximally from the end date of the time period above mentioned.
When the time period specified at Point d, Clause 4 of the Article 123 is over but the limitation of the labor discipline has ended, the limitation shall be extended for the labor discipline but not exceeding 60 days maximally from the end date of the time period above mentioned.
3. The decision on the labor discipline must be issued within the time limit specified in Clause 1 and Clause 2 of this Article.
Article 125. Form of labor discipline
1. Reprimand
2. Prolongation of wage increase within 06 months; dissmissed from office.
3. Dismissal
Article 126. Application of the form of disciplinary dismissal
The form of disciplinary dismissal is applied by the employer in the following cases:
1. The employee has the act of theft, embezzlement, gambling, intentionally causing injury, using drug within the workplace, disclosing the technology and business secrets, intellectual property infringement of the employer, having the act of causing serious damage or threatening to cause extremely serious damage to the property and interests of the employer;
2. The employee is disciplined by the prolongation of salary increase period but still repeating the violation during the time the disciplinary has not been cancelled or disciplined by the dismissal but still repeating the violation.
Recividism is the case the employee repeats the act of violation that was disciplined but the discipline hasnot been deleted as prescribed in the Article 127 of this Code
3. The employee quits his job willingly totally 05 days in 01 months or 20 days totally in 01 year without any proper reason.
The cases are considered the proper reason including: natural disaster, fire, self and relative falls ill with the certification of the competent medical facility and other cases prescribed in the labor rule.
Article 127. Deletion of discipline and reduce of execution term of labor discipline
1. The employee is reprimanded after 03 months, or is disciplined by the prolongation of salary increase period after 06 months from the date of being handled, if the violation is not repeated, the discipline shall be automatically deleted. In case of labor discipline in the form of dissmissal, after a period of 03 years, if violation of labor discipline is repeated, it shall not be considered recidivism.
2. The employee is disciplined by the prolongation of salary increase period, after having executed half the period, if making progress in discipline execution, he may be considered by the employer for a remission
Article 128. Prohibited regulation upon labor discipline
1. Violating the employee’s body or dignity.
2. Applying the form of fine, salary cutting in lieu of labor discipline.
3. Handling the labor discipline for the employee having the act of violation not prescribed in the labor rule.
Article 129. Suspension of work
1. The employer has the right to suspend the work of the employee when the violation has complicated circumstances, seeing that if letting the employee continue working, which shall cause the difficulty for the verification. The suspension of the employee’s work is done only after consultation with the representative organizations of the labor collective at the grassroots level.
2. The temporary suspension shall not exceed 15 days and not exceeding 90 days in special cases. During the time of work suspension, the employee shall be advanced 50% of the salary before being suspended from work.
Upon the end of work suspension, the employer must get the employee back to work.
3. Where the employee receives the labor discipline, the employee does not have to pay back the salary already advanced.
4. Where the employee does not receive the labor discipline, the employer shall make the salary payment for the period of work suspension
Section 2. MATERIAL RESPONSIBILITY
Article 130. Damage compensation
1. If the employee causes damage to the tools or equipment or has other acts that cause damage to the employer’s property, he shall make a compensation as prescribed by the law
In case the employee does not cause serious damage due to negligence with a value not exceeding the regional minimal salary of 10 month announced by the Government applied at the employee’s workplace, the employee shall make a compensation of 03 months’ salary at most and be deducted from the monthly salary as prescribed in Clause 3, Article 101 of this Code.
2. Where the employee loses the tools, equipment and property of the employer or other property assigned by the employer or consumes the materials over the permitted norm, he shall be liable for making the compensation of damages partially or entirely according to current market price; in case of a liability contract, he shall make the compensation under the liability contract; in case of natural disasters, fire, enemy-inflictes destruction, epidemics, disasters and occurrence of unforeseeable and unsurmountable objective events despite taking all necessary measures and allowable ability, he shall not make the compensation.
Article 131. Principle and order and procedure for the handling of damage compensation.
1. The consideration and decision on the rate of compensation must be based on the fault, the actual extent of damage and the actual family situation, personal record and property of the employee.
2. The order, procedure and limitation of the handling of the damage compensation apply in accordance with the Article 123 and 124 of this Code
Article 132. Complaint about labor discipline and material responsibility
The person subject to the handling of labor discipline, work suspension or damage compensation under the material regime, if thinking unsatisfactory, he may lodge a complaint with the employer, the competent authorities in accordance with regulation of the law or request to settle the labor disputes in the order prescribed by law.
Chapter IX
LABOR SAFETY AND HYGIENE
Section 1. GENERAL PROVISIONS ON LABOR SAFETY AND HYGIENE
Article 133. Compliance with the law on labor safety and hygiene
All enterprises, agencies, organizations and individuals related to labor and production must comply with the law on labor safety and hygiene.
Article 134. State policy on labor safety and hygiene
1. The State has invested in scientific research and supported the development of the facilities manufacturing the equipment of labor safety and hygiene, and personal protective equipment.
2. Encouraging the development of services on labor safety and hygiene.
Article 135. Program of labor safety and hygiene
1. The Government has decided the national Program on labor safety and hygiene.
2. The provincial People’s Committee shall build and present the people’s Council to decide the labor safety and hygiene program within the scope of locality and put into the plan of social and economic development.
Article 136. National technical regulations on labor safety and hygiene
1. The Ministry of Labour, Invalids and Social Affairs shall preside over and coordinate with the ministries and sectors and localities to build, issue and make guidance for implementation of the national technical regulations on labor safety and hygiene.
2. The employer shall rely on the standards and national technical regulations, the local technical regulations on labor safety and hygiene to build the rules and working procedures to guarantee the labor safety and hygiene in accordance with each type of machinery, equipment and workplace.
Article 137. Guaranteeing the labor safety and hygiene at the workplace
1. When newly building, expanding or improving the works and facility for production, utilization, preservation and storage of machinery, equipment, materials and substances with strict requirements on labor safety and hygiene, the investor and employer must make a plan on the measures to guarantee the labor safety and hygiene for the workplace of employees and the environment.
2. When manufacturing, using, preserving and transporting the type of machinery, equipment, materials, energy, electricity, chemicals, plant protection drugs, the change of technology and import of new technology must comply with the national technical regulations on labor safety and hygiene or the standar on labor safety and hygiene at workplace that has been published and applied.
Article 138. Obligations of the employer and employe for the work of labor safety and hygiene
1. The employer has the following obligations:
a) To ensure the workplace meets the requirements of space, ventilation, dust, steam, toxic gas, radiation, electro magnetic field, heat, humidity, noise, vibration and other harmful elements specified in the relevant technical regulations and those factors must be tested and measured periodically.
b) To ensure the conditions on labour safety and hygiene for machinery, equipment, workshop to reach the national technical regulations on labor safety and hygiene or standards on labour safety and hygiene at the workplace that has been published and applied.
c) Testing and assessing the dangerous and harmful factors, harmful at workplace of the facility to set out the exclusion measures to minimize hazards, harmfulness and improve the working conditions and health care for the employees;
d) Periodically testing and maintaining the machinery, equipment, workshops and warehouses;
dd) There must be instruction table on labour safety and hygiene for the machinery, equipment and workplace and it should be put at the legible and visible place labour safety and hygiene the workplace;
e) Gathering opinions of the representative organization of labor collective at the grassroots level when making a plan and implementing the activities to guarantee the labour safety and hygiene.
2.The employee has the following obligations:
a) To comply with the regulations, procedures and rules on the labour safety and hygiene related to the work and duties assigned.
b) To use and maintain the personal protective equipment already equipped; the equipment of labor safety and hygiene at the workplace;
c) To promptly report to the responsible person upon detecting the risk of occurrence of occupational accident and disease, toxic or dangerous incident, to participate in emergency and remedy the consequence of occupational accident upon the employer’s order.
Section 2. OCCUPATIONAL ACCIDENT AND DISEASE
Article 139. Person performing work of labor safety and hygiene
1. The employer must appoint a person performing the work of labor safety and hygiene. For the production and business facilities in the areas with the risks of occupational accidents and diseases and with the employmwnt of 10 employees or more, the employer must appoint a person with relevant expertise to be in charge of the work of labor safety and hygiene
2. The person performing the work of labor safety and hygiene must be trained on the labor safety and hygiene
Article 140. Handling of incidents and emergency response
1. In the handling of incidents and emergency response, the employer has the following responsibilities:
a) Making a plan for handling of incidents and emergency response and periodically organizing the exercises;
b) Being equipped with the technical and medical facilities to ensure the timely rescue and first aid upon the occurrence of labor incidents and accidents;
c) Immediately implementing the remedial measures or immediately ordering the cease of operation of machinery, equipment, workplace likely to cause occupational accidents and diseases.
2. The employee has the right to refuse to perform the work or quit the workplace and still get payment of full salary and is not considered violation of labor discipline upon clearly seeing the risk of occurrence of occupational accidents and diseases, seriously threatening his life or health and he must immediately notify the person in direct charge. The employer shall not force the employee to continue that work or return to that work