FOREWARD

 

One of the important goals of the ILO/Vietnam Industrial Relations Project (“Promoting sound industrial relations and increasing the capacity of social partners at the workplace in Vietnam”) is to raise awareness and knowledge of the labour laws among employees and employers. It is hoped that this will lead to increased cooperation between the social partners at the workplace and have the effect of limiting or preventing labour disputes, stabilizing and harmonizing labour relations and creating a healthier working environment where productivity can be increased for the benefit of all.

 

“The User’s Guide to the Labour Law” introduces the basic content of the labour laws of Vietnam.  It also explains the interests, fundamental obligations, and the responsibilities of the parties concerned in labour relations, whose understanding are all part of the goals of the ILO/Vietnam Industrial Relations Project..

 

We hope that this booklet and the experiences that the Project provides will make a positive contribution to building up good labour relations among the parties at the workplace.

 

We look forward to hearing your comments for improvements to future editions of this booklet.

 

Dr.Le Duy Dong

Vice Minister for the Ministry of Labour, Invalids and Social Affairs

Hanoi, Vietnam

 


 

 

Globalization and Vietnam’s deepening economic integration are underlining the positive contribution that sound industrial relations can make to the country’s development goals of modernization and industrialization. Existing relations between the industrial relations actors – government, employers and workers – are changing under pressure from the challenges engendered by economic integration, and the challenges themselves are creating new opportunities for, and a growing interest in, building modern, cooperative, industrial relations institutions and practices that will contribute to industrial peace and harmony, and so to socio-economic development.

 

Vietnam’s Labour Code provides a legal framework for cooperative industrial relations but it needs to be better known and understood, by government officials as well as employers and workers and their representatives. The present guide has been prepared in the context of ILO/ Vietnam Industrial Relations Project to foster such an understanding and the wider implementation of the provisions of the Labour Code at the workplace. This is a venture which the ILO has been happy to support in the interest of promoting decent work for all in Vietnam

 

 

 

 

RoseMarie Greve

Director

International Labour Organization Vietnam Office

Hanoi, Vietnam

 

 


TABLE OF CONTENTS

 

I.                    INDIVIDUAL EMPLOYMENT CONTRACTS

 

1.      Scope of individual employment contracts

2.      Types of employment contracts

3.      Content of an individual employment contract

4.      Probationary work

5.      Effective dates and amendments to provisions of an individual employment contract

6.      Employers rights regarding the transfer of workers to other work

7.      Unilateral termination of an individual employment contract by the worker

8.      Unilateral termination of an individual employment contract by the employer

9.      Situations where advance notice is not required for the termination of an individual employment contract

10. Severance pay

11. Penalties for both parties for an unlawful termination of an individual employment contract

12. Responsibilities of workers and employers when terminating an individual employment contract

 

II.                  COLLECTIVE LABOUR AGREEMENTS

 

1.      Principles of negotiations

2.      Scope of collective agreements

3.      Representation in negotiations and signing of collective bargaining agreements

4.      Contents of the collective labor agreement

5.      Registration of a collective bargaining agreement

6.      Effective date of a collective bargaining agreement

7.      Duration, amendments and supplements to the collective bargaining agreement

8.      Voiding of a collective bargaining agreement

 

III.                LABOR DISCIPLINE

 

1.      Internal labor regulations (company regulations)

2.      Contents of an internal labor regulation

3.      Labor discipline and sanctions

4.      Procedures of application of disciplinary measures

5.      Material liability

 

IV.               WAGES

 

1.      Principles of wage payment

2.      Minimum wage rate

3.      Forms of wage payment and wage deductions

4.      Overtime pay determination

5.      Payment for work stoppage

6.      Bonus determination basis

7.      Merger, unification, division, separation or transformation of the ownership of the enterprise

 

V.                 WORK HOURS AND TIME OF REST

 

1.      Types of work hours

2.      Overtime

3.      Time of rest

 

VI.               OCCUPATIONAL SAFETY AND HEALTH

 

1.      Responsibilities of employers

2.      Rights and interests of workers working in hazardous situations

 

VII.             SOCIAL INSURANCE

 

1.      Responsibilities of employers for social insurance

2.      Rates of social insurance contributions

3.      Social insurance entitlements

4.      Disputes on matters concerning social insurance

 

VIII.           PROCEDURES FOR LABOR DISPUTE SETTLEMENT

 

1.      Principles for settling labor disputes

2.      Rights and obligations of the disputing parties

3.      Entrusted authorities for labor dispute settlement

4.      Steps of the labor dispute settlement process

5.      Procedures for going on strike

6.      Illegal strikes

 

 


 

 

User’s Guide to the Vietnam Labor Code of 2002

 

PREAMBLE

 

The National Assembly adopted the Labour Code on 23 June 1994 and the Revised Labour Code was adopted in the National Assembly at the 11th Legislature on 2 April 2002 in which the Preamble and 54 articles were amended and supplemented.

 

This guidebook is aimed at providing the user core interpretations on rights and responsibilities of employers and employees with regard to provisions of employment contracts, collective bargaining agreements, remuneration, labor discipline, material responsibility, rest and working hours, social insurance, occupational safety and health, and dispute settlement as provided in the revised Labour Code.

 

This guidebook should help employers and employees to be in step with current labor legislation as they strive to enhance production in enterprises at the local level, while also promoting national economic development in the broader context.

 

CORE PROVISIONS OF THE AMENDED AND SUPPLEMENTED LABOUR CODE

 

I. INDIVIDUAL EMPLOYMENT CONTRACTS

 

The individual employment contract is the first and most important legal foundation that determines the rights and responsibilities of the two parties- employees and employers.

 

1. Scope of individual employment contracts:

 

  1. The signing of individual employment contracts is mandatory for the following organizations:

 

    1. Undertakings operating under the Law on State Owned Enterprises, Enterprise Law and Foreign Investment Law;

 

    1. Undertakings of political organizations and social and political organizations;

 

    1. Administrative and civil organizations employing other than public servants;

 

    1. Business entities under the armed forces such as the army and police employing workers other than officers, sub officers and conscripts;

 

    1. Cooperatives (for workers other than cooperatives members), households and private business employing workers....

 

  1.  The signing of an individual employment contract is not mandatory for

 

    1. The Director General, Deputy Director General, Director, Deputy Director, and Chief Accountant of SOEs;

 

    1. Members of the governing body of an enterprise;

 

    1. Cooperative members who are not wage earners

 

2) Types of Employment Contracts

 

  1. An individual employment contract with an indefinite term (permanent contract) is the one in which both parties do not define a time limit or a date to terminate the effect of the contract.

 

  1. This type of contract is applicable for those works in which a termination date is not set or duration exceeds 36 months;

 

  1. A fixed-term individual employment contract is the one in which both parties defined a time limits or a date to terminate the contract within the duration from 12 to 36 months.

 

  1. An individual contract for seasonal work or a specific task with a term of less than 12 months

 

This type of contract is applicable in the following circumstances:

 

1.      Work is completed within 12 months

 

2.      For temporary work for workers who have been given disciplinary measuresbefore transferring them to a contract with a definite term

 

3.      For workers who are on temporary suspension of their employment contract

 

4.      For workers who have terminated their jobs for other reasons

 

5.      Contracts for retirees

 

Parties are prohibited from signing a seasonal work contract or a specific task contract with terms of less than 12 months to carry out work of a regular nature except in the case of the temporary replacement of a worker who is called up for military service, or who is on maternity leave or other temporary leaves.

 

In the event an employment contract with a definite term, for seasonal work or a specific task with a term of less than 12 months lapses while the workers are still employed, both parties shall conclude a new one within 30 days after the termination. In case no new contract is concluded, the originally-signed contract shall automatically become a permanent contract. Conclusion of a permanent contract is mandatory if workers are still employed at termination of the second definite term signed contract.

 

A contract shall be entered into writing and must be made in duplicate with each party retaining one. Both parties may enter into an oral contract for temporary work with a term of less than 3 months or for domestic work. The oral contract is the same valid as the writing ones.

 

3) Content of an individual employment contract:

 

Main content:

 

  1. Nature of the work;

 

  1. Working hours and rest (holidays, and leave)

 

  1. Workplace

 

  1. Duration/number of hours per week

 

  1. Remuneration (bonus, overtime pay)

 

  1. Occupational safety and health;

 

  1. Social insurance.

 

The Ministry of Labour, Invalids and Social Affairs shall issue a template of an employment contract, which can be used by the enterprises to develop their own consistent with their practical needs.

 

4) Probationary work

 

The employer and the worker shall agree on trial work, length of probation and rights and obligation of either party. Payment of probationary work must be at least equal to 70 percent of the normal wage of the work. Probation duration shall not exceed 60 days for the work requiring professional skills trained at college level or higher. The period should not exceed 30 days for works requiring highly professional and technical skills, or 6 days for other works.

 

During a probationary period, either party has the right to terminate the relevant agreements without prior notice or paying any compensation if the work performed does not meet the agreed requirements. If the work performed meets the agreed requirements, the employer must employ the worker and enter into an employment contract.

 

5) Effective dates and amendments to provisions of an individual employment contract

 

A contract shall take effect upon the date of its signing or the date agreed upon by the contracting parties or the date the workers started his/her job. If it is an oral agreement, the effective date of the contract shall be the date on which the worker started work.

 

If either party wishes to make any modifications of the provisions in the contract during its duration, it must inform the other party of such intention at least 3 days in advance. The modification may amend provisions of the existing contract or create a new one. Where both parties failed to agree on the proposed amendments or conclusion of new one, they have the choice of retaining provisions of the originally concluded contract or terminating the contract.

 

6) Employers rights regarding the transfer of workers to other work.

 

In cases of force majeure such as natural calamities, fires, epidemics, application of preventive measures, interruption of work, accidents, or occupational diseases, the employers are allowed to transfer workers to do different work on a temporary basis for a period of up to 60 days (compressed annualized days).

 

During this period, workers shall be subject to disciplinary measures and not entitled to stoppage payment according to the Article 62 of the Labour Code. If the employer temporarily transfers workers to another job for 60 days in one year, the respective workers must agree to such transfer. If work stoppage occurs due to disagreement, the worker is entitled to payment that is stipulated in Article 62(1).

 

The employers must inform workers at least 3 day before a temporary job transfer.  Additionally, the workers must be placed in jobs, which are suitable to their physical conditions and gender.

 

During the temporary transfer, the workers shall be paid at the rate of the new work. If the wage is less than his previous one, the worker shall be entitled to keep the previous wage for 30 working days before the new wage payment is applied. The new wage shall be equal to at least 70 percent of the previous wage but not less than the State-defined minimum wage level.

 

 

7) Unilateral termination of an individual employment contract by the worker:

 

 Permanent Individual Employment contracts:

 

The worker must give the employer at least 45 days notice prior to his/her unilateral termination. In case of sickness or accidents and after having receiving treatment for 6 consecutive months, the worker must give the employer a notice at least 3 days prior to his/her unilateral termination.

 

Fixed-Term Individual Employment contracts of 12 to 36 month term, seasonal work, or a specific task for less than 12 months:

 

The worker must give prior notice of unilateral termination in the following circumstances:

 

  1. The worker is not assigned to the work or workplace or is not provided with the work conditions agreed to in the contract.

 

  1. The worker is not paid the agreed wage pursuant to the contract in full or on time.

 

  1. The worker is subject to maltreatment or forced labor circumstances in which the worker is beaten, insulted or compelled to do work which are unsuitable to his/her gender or harmful to their dignity.

 

  1. The worker is ill or is a victim of an accident and has not recovered this/her working ability after having received treatment for 3 consecutive months. In addition, the worker should be under a contract with a definite term of from a full 12 to 36 months, or for a quarter of the term of a contract even if it is a contract for seasonal work or a specific task of less than 12 months.

 

  1. It is required give notice to the employer at least 30 days in advance if the contract has a term of a 12 to 36 months; and 3 days in advance for a seasonal work or specific task contract with a term of less than 12 months.

 

  1. The worker may unilaterally terminate the contract if he or she is under extremely difficult circumstances and unable to satisfy the terms of the signed contract.  These circumstances include such circumstances as:  moving his/her residence to another location which is far from the workplace, a difficult commute, having received authorization to settle abroad, taking care of his/her spouse, parents (including parents-in-law) or children who have been under treatment for 3 months or longer; or being a member of a family that is under such difficult circumstances that they are recognized by the local government.

 

  1. The worker is elected to carry out full time work in an elected agency or appointed to a specific position in a State agency.

 

  1. In case of pregnancy, the female worker must obtain written documentation from a medical doctor stating that carrying out work will harm the normal development of pregnancy as well as the anticipated birth date. The pregnant female worker must terminate the job when so advised by the doctor.

           

8) Unilateral termination of an individual contract by the employer:

 

The employer has the right to unilaterally terminate an individual employment contract in the following cases:

 

  1. If the worker fails to fulfill the task assigned by the contract due to factors under his/her own control and fails to adequately improve after receiving:

 

    1. One verbal warning accompanied by a note to his /her personnel file, or

 

    1. Two written warnings within a month.

 

  1. The worker is disciplined and dismissed for wrong-doings including theft, embezzlement, disclosure of technological business secrets, damage of assets and interests of the employers or is under disciplinary sanctions such as delay of wage promotion, or transferred to another work area where repetition of the wrong doing is documented.

 

  1. The worker is sick and/or has little likelihood of recovering his ability to return to work and meets the following conditions:

 

    1. He/she has been working under a permanent employment contract and has been sick for 12 or more consecutive month

 

    1.  He/she has been working under a fixed-term employment contract of between 12-36 months duration and has been sick for 6 consecutive months or more, or

 

    1.  He/she has been working under a fixed-term employment contract with a term of 12 months to 36 months or

 

    1. He/she has been working under a seasonal or short-term contract with a term of less than 12 months and has been consecutively sick for more than half the contract life. 

 

Upon his/her recovery, the resumption of the contract will be taken into consideration

 

  1. In case of natural disasters, fires of other cases of force majeure defined by the Government or where, after every effort made by the employers to overcome difficulties is ineffective and the employer is compelled to make cuts in production and workforce; and 

 

  1. The enterprises, bodies or organizations close down.

 

Procedures for the unilateral termination of an individual employment contract:

 

  1. Prior to the unilateral termination of an individual employment contract based on the aforementioned items (a), (b), or (c), the employer must consult the Executive Committee of the enterprises trade union and receive its consent on the issue(s) in question.

 

  1. If the parties do not reach agreement, both parties must submit a report to the appropriate body or organization.  30 days after the report has been submitted to the appropriate local labor authorities, the employer shall have right to make a decision and be responsible for such decision.  

 

  1. If the employee disagrees with the decision made by the employer, both the Executive Committee and the worker will have the right to request the settlement of the labor dispute in accordance with the procedure stipulated by the law.

 

  1. Except in the cases of disciplinary or dismissals, the employer must give the worker advance notice when unilaterally terminating a contract as follows:

 

    1. At least 45 days notice for a permanent contract

 

    1. At least 30 days notice for a temporary contract with a term of 12 to 36 months.

 

    1. At least 3 days notice for a seasonal or short-term contract with a duration of less than 12 months.

 

The employer shall not unilaterally terminate an individual employment contract in the following cases:

 

  1. The worker is under treatment or care as prescribed by doctors for sickness, work accident or occupational diseases;

 

  1. The worker in on annual leave, personal leave of absence or any other type of leave permitted by the employer;

 

  1. A female worker who is on marital, pregnancy or maternity leave and/or rearing children less than 12 months.

 

9) Situations where advanced notice is not required for termination of an individual employment contract:

 

When the termination of an employment contract is carried out under Article 36 of the Labour Code (i.e. expiration of the contract, completion of the contrac, by mutual agreement between the tow parties to terminate the contract, imprisonment of th contacted worker or prohibition by the court from him remaining on the job, death of the worker, the court declares the worker is missing, or when disciplinary measures of dismissal are applied).

 

10) Severance Pay

 

When terminating an individual employment contract of a worker who has been regularly employed in an enterprise, office or organization for a full 12 month or longer, the employer must pay such worker a severance allowance at the rate of half a month’s salary plus salary allowance, if any, for each year of service with the exception of disciplinary sanctions and dismissal imposed upon the worker for wrong-doings including theft, embezzlement, disclosure of technological  business secrets, damage of  assets and interests of the employers or being under disciplinary sanctions such as delaying wage promotion, or transferring to another work area where repetition of the wrong doings is documented.

 

11) Penalties for both parties for an unlawful termination of an individual employment contract:

 

  1. If the employer unilaterally terminates a contract in infringement of the law, he must reemploy the worker in the same work and pay level as agreed upon in the contract.  In addition, the employer must pay the worker compensation equal to the amount of wages and any additional payments that the worker would have been eligible for during the period that he/she was not allowed to work.  Additionally, the worker will receive at least two-month wages plus allowances, if any.

 

  1. In the event the worker does not wish to return to work, he or she shall receive a severance allowance computed at the equivalent half of one working year’s monthly wages plus allowances, if any, in addition to such compensation mentioned in the previous paragraph.

 

  1. If the employer does not wish to reemploy the worker, then, with the consent of the worker, both parties will negotiate on additional compensation to be paid to the worker upon termination of contract in addition to the compensation and severance allowance mentioned previously.

 

d.      In the event the worker unilaterally terminates an individual employment contract in infringement of the law, he or she is not entitled to severance allowance and is subject to compensating the employer for his loss which is equal to the amount of a half of her/his monthly wage rate plus allowance, if any, and cost of training, if any as stipulated by the Government.

 

12) Responsibilities of workers and employers when terminating an individual employment contract:

 

  1. Within 7 days of the date of termination of the contract, the two parties are responsible for settling all questions relating to rights and interests of each party.  In exceptional circumstances, the period may be extended but shall not exceed 30 days.

 

  1. The employer shall state in writing the reasons for the termination of the contract in the worker’s labor book and shall be responsible for returning the labor book to the worker for the sake of the worker seeking a new job.

 

II. COLLECTIVE LABOUR AGREEMENTS

 

1) Principles of negotiations:

 

  1. For enterprises, collective agreements play a significant role in the market economy as they are so-called “sub-labor law” which are applicable to diverse types of enterprises. Conclusion of collective agreements within enterprises is encouraged by the Government with the aim of giving more opportunities to workers to help improve productivity and business performance as well as to have some input as to the working conditions at the workplace.

 

b.      Principles of Negotiations:  The collective bargaining agreement shall be negotiated and agreed to by the workers groups and employers according to the following principles:

 

a.      Voluntary action

 

b.      Equality

 

c.      Transparency

 

2) Scope of collective agreements

 

Enterprises with trade unions or provisional trade union executive committees in the enterprises operating under State-owned Enterprise law, Enterprise Law, Foreign Direct Investment Law in Vietnam; business and service establishments of civil, political, political – social organizations, cooperatives established under Cooperatives Law employing the contractual workers.

 

3) Representation in negotiations, and signing of collective bargaining agreements

 

  1. Negotiation Representatives:  The Executive Committee of the enterprise’s trade union or the provisional trade union Executive Committee in the enterprises where trade unions have not yet been established shall represent the workers.

 

b.      Signing Representatives:  The representative who signs the collective bargaining agreement on behalf of the workers shall be the Chairman of the Executive Committee of the trade union of the enterprise or a person so authorized in writing by the Executive Committee; the representative of the employer side should be the director of the enterprise, or a person so authorized by the work rule or by the director of the enterprise in writing.

 

  1. The number of representatives of each party involved in the negotiations shall be determined by mutual agreement between the two parties.

 

  1. Each party shall have the right to request the signing of a collective bargaining agreement and propose its terms and conditions. Within 20 days from the date of receipt of the request for bargaining, the receiving party must agree to bargain and to set a date on which to begin bargaining.

 

  1. A collective bargaining agreement shall only be signed if the negotiated contents of such agreement are approved by more than 50 per cent of the members of the labour group in the enterprise.

 

4) Content of the collective labor agreement:

 

A collective bargaining agreement shall indicate:

 

  1. Employment and guarantee of employment;

 

  1. Work hours and rest periods;

 

  1. Wages, bonuses and allowances,

 

  1. Working norms,

 

  1. Occupational safety and hygiene,

 

  1. Social insurance for the workers.

 

5) Registration of a collective bargaining agreement

 

A collective bargaining agreement shall be made in four copies:

 

  1. One for the employer,

 

  1. One for the Executive Committee of the trade union of the enterprise, 

 

  1. One for the local superior trade unions (sent by the Executive Committee of the trade union at the enterprise)

 

  1. One to be sent by the employer to be registered at the provincial labor office where the head office of the enterprise is located within 10 days from the date of signing.

 

6) Effective date of a collective bargaining agreement

 

The collective bargaining agreement shall become effective from the date specified in collective agreement, or from the date of signing of the agreement if there is no specification by both parties;

 

7) Duration, amendments and supplements to the collective bargaining agreement

 

  1. A signed collective bargaining agreement shall be effective for the duration of 1 to 3 years. Where a collective agreement is concluded for the first time in an enterprise, it may be concluded for duration of less than one year.

 

  1. Amendments and supplements to a collective agreement should only be made after:

 

    1. 3 months from the date of implementation for a collective agreement of less than one year’s duration

 

    1. 6 months for those of a period of 1 to 3 years.

 

  1. Prior to the expiration of a collective bargaining agreement, both parties may bargain for the extension of the agreement or for a new agreement.  If the bargaining remains inconclusive three months after the expiration of the agreement, the agreement shall cease to be in effect.

 

  1. In the case of a merger, unification, division or separation of the enterprise, a transfer of ownership, a change in the right to manage or in the use of the property of the enterprise, amendments and modification or conclusion for a new collective bargaining agreement shall be made based upon proposals for appropriate measures for the utilization of the labor force.

 

8) Voiding of a collective bargaining agreement

 

  1. A collective bargaining agreement shall be voided in those parts where provisions of the agreement are contrary to laws.

 

b.      A collective agreement shall be void in following cases:

 

a)     Entire term and conditions of the agreement are contrary to the laws.

 

b)     The person signing the agreement is not duly authorized,

 

c)      Proper procedures are not strictly observed

 

  1. The provincial labor authorities are authorized to declare a collective agreement partly or wholly void.

 

  1. Should points (b) and (c) be beneficial to workers, the provincial labor authority shall give instructions to the parties to proceed again in conformity with legal requirements within 10 days from the date of instruction.   If the parties fail to carry out such instructions the provincial labor authority shall declare the agreement null and void.

 

  1. If the collective agreement is declared null and void, rights and obligations of the parties will be settled in conformity with the law.

 

III. LABOR DISCIPLINE

           

1. Internal labor regulations (company regulations)

 

  1. Provisions of internal labor regulations shall not be contrary to labor law and other laws.

 

  1. Written internal labor regulations are obligatory for enterprises employing 10 workers or more;

 

  1. The Executive Committee of the trade union in the enterprise must be consulted prior to issuing an internal labor regulation.

 

  1. The provincial labor authority must be notified of the regulations. After the expiration of the period referred to above, if no notification is forthcoming from the provincial labor authority,  the internal labor regulations shall become effective.

 

 

2. Contents of internal labor regulations

 

  1. Internal labor regulations must include the following main provisions governing:

 

    1. Hours of work and rest

 

    1. Order in the enterprise

 

    1. Occupational safety and hygiene at the workplace; 

 

    1. Protection of the property and technological and business secrets of the enterprise;

 

    1. Acts and conduct in breach of labor discipline, disciplinary measures and measures concerning material liability.

 

  1. Each worker must be notified about the internal labor regulations and the main rules must be posted at the required places within the enterprise.

 

3. Labor discipline and sanctions

 

  1. Any person who violates internal labor regulations depending on degree of violation shall be sanctioned by one the following disciplinary measures:

 

    1. Oral or written warning is applicable for those people who violate regulations for the first time for less serious violations.

 

    1. Delaying the time for promotion in wages, removing a worker from his/her present position or transferring a worker to a lower paid job for a period not exceeding six month are measures applicable to those workers who repeat violations of the internal labor regulations.

 

    1. Dismissal

 

b.      Multi disciplinary measures shall not be applied to one violation.

 

 

Dismissal shall only be applicable in the following cases:

 

  1. A worker who commits an act of theft, embezzlement, disclosure of technological, business secrets or other acts causing severe loss to the property and/or interests of the enterprises

 

  1. A worker whose time for promotion in wage has been prolonged or who has been transferred to another job as a disciplinary measure and who again commits the same violation of the internal labor regulations while this disciplinery measure is still in effect.

 

  1. A worker who has been absent for a total of 5 days in a month or 20 day per year without legitimate reasons.

 

A worker shall not be subject to labor disciplinary measures in the following cases:

 

  1. While on sick leave, health recovery leaves or leaves approved by the employer.

 

  1. While under detention or confinement.

 

  1. While waiting the outcome of an investigation by the police examining acts of theft, embezzlement, disclosure of technological or business secrets, or other acts causing loss to the property and/or interests of the enterprise.

 

  1. A female worker on marital leave, maternity leave, or rearing children under 12 months of age.

 

  1. A male worker who is rearing children less than 12 months of age.

 

Time limit to impose disciplinary and sanctioning measures

 

Disciplinary measures must be imposed no later than 3 months from the date of disclosure of the wrongdoing. If the disclosed wrongdoing is related to finances, property matters, or disclosure of technological and/or business, the time limit is 6 month maximum. 

 

4. Procedures of application of disciplinary measures

 

  1. The employer must provide proof of wrongdoing of the worker;

 

  1. The worker must be present;

 

  1. The representatives of the Executive Committee of the trade union in the enterprise must be present;

 

  1. The proceedings for this meeting must be recorded in writing

 

While labor disciplinary measures are under consideration, the concerned worker has the right to self-defense or to hire a lawyer, a People’s Defender, or others to defend him/her.

 

5. Material liability

 

 a) The worker is liable for compensation to the enterprise to the following extent for damaging equipment or causing damage to the assets of the enterprise:

 

1.      If the damage is considered not serious in nature and is a result of negligence, the maximum compensation shall not exceed three months of the workers’ wage and shall be deducted gradually from wages.

 

2.      If a worker loses tools, equipment or other property entrusted or utilizes materials beyond the permitted norms, he/she shall responsible to compensate the enterprise in part or in full for the losses at market price.

 

3.      In cases of force majeure, no compensation is required.

 

b)    Temporary suspension of employment can be applied

 

1.      If the case is complex in nature

 

2.      Duration of suspension shall not exceed 15 days or 3 month in exceptional cases.

 

c)     Rights and interests of worker during temporary suspension

 

1.      The worker is entitled to an advance equal to 50 percent of wage paid before suspension. Where the employee is found guilty and subject to disciplinary measure, he or she shall not be required to return the advance.

 

2.      Upon the expiration of the suspension period, the worker must be allowed to resume his/her work.

 

3.      Where the worker is found not guilty, the worker is entitled to full wages and allowances for the period of temporary suspension.

 

4.      The worker has the right to appeal the decision made to the employer, competent authorities or to request settlement of labor dispute under the procedures stipulated by the laws.

 

5.      If the worker is found not guilty, the worker shall be restored to work with honor and material rights and benefits and public apologies expressed by the employer.

 

IV. WAGES

 

1. Principles of wage payment are determined by

 

  1. Mutual agreement indicated in the contract;

 

  1. Labour productivity, work quality and performance;

 

  1. Wage rate shall not be lower than the minimum wage rate defined by the Government

 

  1. Wages must be paid in full, at the due time and at the workplace.

 

2. Minimum wage rate

 

290,000 VND per worker per month is the minimum wage rate defined for domestic enterprises. For foreign invested enterprises, the minimum wage shall be regulated as follows:

 

  1. 626,000 VND per month for enterprises located within the cities of Hanoi and Hochiminh;

 

  1. 556,000 VND per month for enterprises located on the outskirts of the cities of Hanoi, HCMC, and inner districts of the cities of Haiphong, Bien Hoa and Vung Tau.

 

  1. 478,000 VND per month for enterprises in other locations.

 

  1. 417,000 VND to 487,000 VND per month for enterprises located in places with difficulties and poor infrastructure. In these cases, the chairman of the respective provinces will take into consideration the application of the rate for a specified period.

 

3. Forms of wage payment and wage deductions

 

    a.  Forms of wage payment:

 

1.      Hourly, daily, weekly or monthly basis;

 

2.      In product units, labor unit basis (piece work)

 

    b.  Wage deduction

 

1.      Deduction must not be made for more than 30 per cent of the monthly wage and the concerned worker must comprehend the reasons for the deductions.  Additionally, the Executive Committee must be consulted in this regard and agree to the deduction.

 

2.      Sanctions of deducting the worker‘s entire monthly wages are not allowed.

 

4. Overtime pay determination:

 

  1. At least150% of normal wage for working overtime on weekdays

 

  1. At least 200% of normal wage for working overtime on weekends

 

  1. At least 300% of normal wage for working overtime on holidays or paid leaves (i.e. 100% of normal wages plus at least 200% of normal wages)

 

  1. Night shift premium is at least 30% of normal wages for day work

 

 

5. Payment for work stoppage:

 

  1. If the stoppage is due to a fault of the employer, the worker shall be paid wages in full;

 

  1. If the stoppage is due to fault of the workers, he/she shall receive no wages;

 

  1. If workers are forced to stop work through no fault of their own (i.e. act of God, electricity or water stoppage, etc.) they shall be paid at rate agreed upon by the two parties but not less than the minimum wage rate.

 

6. Bonus determination basis:

  1. Annual business performance of the whole enterprise and completion of workloads assigned to the worker;

 

  1. The employer shall determine the rules of the bonus system after consulting with the Executive Committee of the enterprise trade union.

 

7. In the case of merger, unification, division, separation or transformation of ownership of an enterprise,

 

  1. The new employer is responsible for the payment of wages and other benefits to the workers transferred from the previous enterprise.

 

  1. In the case of bankruptcy:  wages, severance allowance, social security benefits and other rights and interests of the workers shall be treated as a privileged debt and must be settled as the first priority.

 

V. WORK HOURS AND TIME OF REST

 

1. Types of work hours

 

  1. Daily work hours should not exceed 8 hours a day;

 

  1. Weekly work hours should not exceed 48 hours a week;

 

  1. Daily work hours shall be reduced by one to two hours for workers engaged in extremely hard and hazardous works as listed by MOLISA.

 

  1. Work hours for juvenile workers (under 18 years of age) shall not exceed 7 hours a day or 42 hours a week.

 

2. Additional work hours

 

  1. Shall not exceed 4 hours a day or 200 hours a year. This means that additional work hours should not exceed 50% of normal work hours per day for specific types of work

 

  1. Where work hours are calculated on a weekly basis, the total work hours plus overtime work hours must not exceed 12 hour a day;

 

  1. In exceptional cases, the total additional work hours shall not exceed 300 hours a year.

 

  1. In cases of natural calamities such as fires or epidemics which impact the enterprise, the employer is allowed to mobilize workers to work additional hours which may exceed 4 hours a day or 200 hours a year providing that the consent of the workers is first obtained.

 

3. Time of rest

 

a.  Daily Breaks and Periods of Rest Between Work Shifts

 

1.      A worker working for 8 consecutive hours shall be entitled to a break of at least half an hour, which shall be included in the paid work hours.

 

2.      A worker working on night shift shall be entitled to a break of least 45 minutes, which shall be included in the paid work hours.

 

3.      A worker working on shifts shall be entitled to a break of at least 12 hours between shifts.

 

b.  Weekly Rest Periods:

 

1.      A worker shall be entitled to a rest period of at least one day per week (24 consecutive hours);

 

2.      In cases where the work style does not allow a weekly rest period to be taken, the employer must ensure that the worker have on average at least four days off in a month;

 

c.  Holidays and leave of absence for personal purposes: 

 

1.      A worker is entitled to 8 days off with full pay annually

 

2.      A worker is entitled to days off for his/her marriage, his/her children’s marriage, and the death of his/her parents or parents-in-law, spouse or children.

 

d.  Annual leave:

1.      A worker shall be entitled to annual leave of 12, 14, or 16 working days with full pay depending on the nature of the work after 12 months of employment with the same employer.

 

2.      An additional one day will be added for every five years working in the same enterprise or for the same employer.

 

3.      Annual leave may be agreed to be taken in several segments

 

4.      A worker, working in distant and remote areas, may accumulate a total number of two or three annual year leaves to be taken at one time with the approval of the employer.

 

5.      A worker shall be paid the usual wage for days off which have not been used up

 

6.      A worker with less than 12 months of employment shall be entitled to annual days of leave calculated in proportion to the length of his/her employment and may be compensated in cash for these days.

 

VI. Occupational safety and health

1. Responsibilities of employers:

 

  1. An employer shall be responsible for providing adequate means of protection to the workers, ensuring occupational safety and health and improving the working environment.

 

  1. An employer must ensure that the workplace meets the minimum health standards on dust, steam, toxic gas, radioactivity, electromagnetic field, heat, humidity, noise, vibration, and other hazardous agents which must be periodically checked and measured.

 

  1. Machinery, equipment, workshops and storehouses must be maintained and repaired periodically in accordance with occupational safety and health standards

 

  1. Machinery and dangerous equipment must be equipped with adequate protective devices at the workplace

 

  1. The employer shall provide workers adequate protective devices to be used in workplaces with high degrees of hazards.

 

  1. Workers must be provided adequate training, instructions and information on occupational safety and health regulations.

 

  1. The employer must bear all medical expenses incurred from the time of emergency first aid to that of completion of medical treatment for the victims of work accidents and occupational diseases.

 

  1. The employer shall pay compensation of at least 30 months of wages and additional payment to wages, if any, to workers whose work ability has been reduced by 81 per cent or higher as a result of industrial accidents which are not caused by the fault of the workers. In cases where the accident or disease is due to worker’s negligence, he/she will still be granted an allowance of at least 12 months wage and an additional payment to wages, if any is applicable.

 

  1. Workers with reduced capacity of 5% to 81% will receive compensation and allowance based upon the severity of the disability.

 

2. Rights and interests of workers working in hazardous situations:

 

  1. Workers shall be provided with adequate personal protective devices to carry out work involving exposure to hazardous agents.

 

  1. Workers shall be entitled to periodic health checks paid for by the employer as stipulated by law.  Pre-recruitment examinations, however, must be paid for by the employee.

 

  1. The worker shall be granted in-kind benefits such as compensatory time off,  extra holidays, etc.

 

  1. The worker shall be compensated for industrial accidents and occupational diseases when their work ability is reduced to between 5% and 81%.

 

VII. Social insurance

 

1. Responsibilities for employers in terms of social insurance

 

a)     The compulsory social insurance scheme shall apply to enterprises, bodies, and organization, which employ workers under labor contracts with fixed-term contracts of over 3 months and for all contracts with indefinite terms (permanent individual employment contracts).

 

b)     If the worker is under contract for terms of less than 3 months, social insurance contributions shall be included in the wage paid by the employer, such as benefits for sickness, maternity and industrial accidents and occupational diseases.  When the previous contract expires and the worker continues to work under a new contract, the compulsory social insurance contributions for the workers must continue to be made by the employer.

 

2. Rate of social insurance contributions

 

a)     The worker shall make a contribution based on 5% of his/her paid wages;

 

b)     The employer shall make a contribution based on 15% of the wages paid to the worker.

 

3.  Social insurance entitlements

 

a)     Sickness entitlements

 

A worker who has to take leave for sickness or injury shall be entitled to the following entitlements:

 

  1. A sick worker under long-term treatment shall be entitled to an annual leave of 180 days.

 

  1. A worker with children under 7 years or age shall be entitled to take leave to care for sick children and receive social insurance benefits. The maximum period of leave per year shall be 20 days to care for children 3 years old or less, and 15 days to care for children from 3 to 7 years old.

 

  1. The worker who takes family planning measures shall be entitled to take leave for that purpose and receive social insurance allowances for the time needed.

 

b)     Maternity leave entitlements:

 

1.       A worker in her pre- or post-natal period shall be entitled to maternity leave

 

  1. For women engaged in normal work, total maternity leave lasts for 4 months, including pre- and post-natal periods.

 

  1. For women engaged in hard and hazardous work, triple shift work, or who work in a region with a subsidized allowance of 0.5 and 0.7, maternity leave is extended to 5 months

 

  1. For women engaged in jobs rated by MOLISA as extremly hard and hazardous having a subsidized allowance of 1.0, six months maternity leave is granted.

 

  1. Maternity benefits shall be equal to 100% of wages paid plus an additional allowance of one month’s wages.

 

c)     Benefits for industrial accidents and occupational diseases

 

A worker shall be entitled to industrial accident benefits in the following cases:

 

1.      The worker has an accident during working time, or while working on overtime at the request of the employer

 

2.      The worker has an accident while conducting business off the worksite at the request of the employer

 

3.      The worker has an accident on the way to or from his/her home to the workplace

 

4.      The employer shall pay the worker all medical expenses and full wages from first aid to completion of treatment

 

5.      The benefits rate received shall be based on the degree of his/her reduction in the capacity to work.  If the work ability is reduced by 81 per cent or higher resulting in a condition of paralysis, blindness, amputation of lower limbs, or serious mental damage, the worker shall be entitled to an amount equal to 80 per cent of the minimum wage rate.

 

d)     Pension Entitlements:

 

Entitlement to pension shall be given to a male worker age 60 and a female worker age 55 who have made social insurance contribution for 20 years or longer.

 

A female worker at 55 years of age with period of social insurance contributions for a full 25 years and male worker at 60 years of age with a full 30 years of social insurance contribution will be entitled to equal monthly pensions as stipulated by the Government.

 

A worker shall be entitled to monthly retirement pension at a lower rate in the following cases:

 

  1. The worker meets the full age requirement but has paid social insurance contributions for at least 15 but less than 20 years

 

  1. The worker has paid social insurance contribution for a period of 20 years or longer but does not yet meet the age requirement and are at least 50 years of age for males and 45 years of age for female workers and their work capacity has been reduced by 61 per cent or more.

 

  1. The worker has been doing extremely hard and hazardous work as determined by the Government, and has paid social insurance contributions for a period of 20 years or more and his/her capacity to work has been reduced by 61 per cent or more.

 

  1. A worker who is disqualified for a monthly retirement pension as defined in the previous paragraphs shall be entitled to a lump sum retirement benefit.

 

e) Survivorships Entitlements:

 

Funeral expenses

Funeral expenses will be covered in the event of the death of any of following individuals:  an employed worker, a retired worker on pension, individuals who are receiving monthly benefits due to loss of work capacity, individuals who have died as a result of industrial accidents or occupational disease.

 

Death benefits for surviving dependants of the worker:

These survivors will be entitled to a monthly survivorship benefits if the worker, has paid social insurance contributions for 15 years or more:

 

a.      Children under 15 years of age

 

b.      Spouse of the worker

 

c.      Dependant parents who are beyond working age and have been directly supported by the worker while he was alive

 

If the deceased worker has contributed to social insurance for less than 15 years, his/her abovementioned family members will be entitled to a lump sum survivorship benefit which should not exceed 12 months of wage or the benefits that are currently being provided.

 

4. Disputes on matters concerning social insurance

 

  1. Disputes occurring in this regard between the employer and the workers shall be settled according to relevant provisions of the Labour Code. 

 

  1. Disputes occurring between retired workers and the employer or social insurance authorities, disputes between the employer and social insurance authorities shall be settled by negotiations and agreement between the two parties. In case of disagreement, the matter shall be brought to the adjudication of the People’s Court.

 

VIII. PROCEDURES OF LABOUR DISPUTE SETLEMENT

 

1. A labor dispute shall be settled in accordance with the following principles:

 

a)     Direct negotiations and bargaining between the two disputing parties at the site of the dispute

 

b)     Through conciliation and arbitration steps with respect for both party’s mutual rights and interests as well as with a view towards the common benefit of society and in conformity with the laws

 

c)      In a transparent, objective, timely, prompt and lawful manner

 

d)     With the involvement of the representatives of trade unions and employers during the settlement process

 

2. Rights and obligations of the disputing parties

 

a) The disputing parties have the right to participate in settling the dispute by:

 

  1. Participating in the proceeding directly or through their representatives

 

  1. Withdrawing or modifying the substance of the dispute

 

  1. Requesting a replacement of the official who is entrusted to handle the dispute if the parties have legitimate grounds to maintain that the official cannot guarantee impartiality and fairness in processing the dispute settlement.

 

b) The disputing parties are obliged to: 

 

  1. Provide all relevant documents and evidences upon the request of the labor dispute settlement bodies

 

  1. Strictly implement any agreement reached through the conciliation proceedings, decisions of the dispute settlement bodies, the decisions of the People’s Court or Labour Court which have legal effect

 

3. Entrusted authorities for labor dispute settlement

 

a) Individual labor disputes shall be handled at the

 

  1. Labour Conciliation Council at each enterprise, or by Labor Conciliators of local labor offices where no such council exists at the enterprise

 

  1. People’s Court

 

b) Collective labor disputes shall be handled at the

 

  1. Labor Conciliation Council in enterprises or by Labor Conciliators of district labor offices where no such Labor Conciliation Council exists in the enterprise

 

  1. Labor Arbitration Council at the provincial level. The Council makes its decisions by majority and secret ballots

 

  1. The People’s Court

 

4. Steps of the labor dispute settlement process

 

a)  Individual labor disputes:

 

  1. The Labor Conciliation Council must begin conciliation work within 7 days from the date of receipt of the grievance letter.

 

  1. The Labor Conciliation Council shall put forward conciliatory proposals for the consideration of the disputing parties.

 

  1. If the disputing parties accept the proposal, the Council shall consider the conciliation proceeding successful.

 

  1. If either side rejects the suggestion or one party is absent for a second time without legitimate reason, the Labor Conciliation Council shall declare the conciliation a failure.

 

  1. At this point, either party has the right to request the dispute be settled at the People’s Court. 

 

b) Collective labor disputes:

 

  1. The Labor Conciliation Council or Labor Conciliator must begin conciliation work within 7 days from the date of receipt of the letter requesting conciliation.

 

  1. The Labor Conciliation Council shall put forward conciliatory proposals. If the disputing parties accept the proposal, the Council shall consider the conciliation proceeding successful.

 

  1. If either side rejects the proposal, either party has the right to request the provincial Labor Arbitration Council to settle the dispute.

 

  1. The Labor Arbitration Council shall begin conciliation work and resolution of collective labor dispute within 10 days from the date of receipt of a letter requesting dispute settlement.

 

  1. The Labor Arbitration Council shall recommend settlement proposals for consideration of the disputing parties. If the disputing parties accept the proposal, the Council shall consider the conciliation proceeding successful.

 

  1. If either side rejects the proposal, the Labor Arbitration Council itself shall proceed to fashion a settlement of the dispute and notify its decision to the disputing parties. If there is no objection, the decision shall be automatically enforceable.

 

 

  1. If the workers’ group objects to the decision made by the Labour Arbitration Council, they have the right to request the dispute to be settled at the People’ Court or to go on strike.

 

  1. If the employer objects to the decisions made by the Labor Arbitration Council, he has the right to request the dispute be settled at the People’s Court.

 

5. Procedures for going on a strike

 

a)     The Executive Committee of the Trade Union at the enterprise shall make the decision to  go on a strike after the majority of workers have first given their consent by secret ballots or signatures

b)     The Executive Committee of the Trade Union of the enterprise shall send a delegation of 3 members at maximum to present a written grievance letter from the Trade Union to the employer, the Provincial Labor Office, and the Provincial Trade Union simultaneously. The letter should indicate the issues of disagreement, the demands, the results of the secret ballot or workers’ petition  with signatures approving the strike and the starting time of the strike.

 

6. Illegal strikes

 

A strike is considered illegal when:

 

a)     It does not arise from a collective labor dispute and goes beyond the scope of industrial relations

 

b)     It goes beyond the scope of the enterprise

 

c)      It occurs while the Conciliation Council or Arbitration Council is handling the dispute

 

d)     It is not initiated by the Executive Committee of Trade Unions or endorsed by more than half of the union members

 

e)     No advanced notice has been given as to the time of the strike

 

f)        The enterprise or industry is on the prohibition list issued by the government