SOCIALIST REPUBLIC OF VIET NAM
Law No. 10/2012/QH13
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.
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.
Foreign employees working in Vietnam.
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:
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.
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.
The labor collectives are organized collectives of the employees working for one employer or in one division under the organizational structure of the employer.
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
The employer representative organizations are organizations legally established to represent and protect the lawful rights and interests of the employers in the labor relation.
Labor relation is the social relation occurring while hiring or employing, paying salaries between the employee and the employer.
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.
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.
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.
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
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.
Ensuring the lawful rights and interests of the employers, managing labor in a legal, democratic, equitable, civilized manner, and enhance the social responsibilities.
Facilitating the employment creation, self-employment, vocational training and learning towards employment opportunities, facilitating the production and business that attract a lot of labor.
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.
Planning the labor market development, diversifying the means of connection between the labor supply and demand.
Guiding the communication and collective negotiation between employees and employers, building stable, progressive and harmonious labor relations.
Ensuring the gender equality; imposing labor regulations and social policies in order to protect female employees, disabled employees, elderly employees and underage employees.
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.
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.
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.
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.
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.
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
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.
Maltreatment of employees, sexual harassment at workplaces.
Exploiting vocational training and apprenticeship to make profit, exploit labor or entice, coerce the vocational learners, apprentices into committing unlawful acts.
Using untrained employees or employees without national vocational certificates to do the jobs that required trained employees or employees with national vocational certificates
Deceitfully enticing and advertising in order to cheat employees or exploiting the employment services to contractually send employees abroad to commit unlawful acts.
Illegally using underage labor.
Article 9. Employments and employment creation.
Employments are activities that generate incomes that the law does not prohibit
The State, the employers and the society are responsible to create employments and ensure that everyone capable of working is offered employment possibilities.
The employee is entitled to work for any employer at any place that the law does not prohibit.
The employee may directly contact the employee or via the employment services to seek employment towards their expectations, vocational grade and health.
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
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.
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.
Encouraging and facilitate the investment in production and business development of domestic, foreign organizations and individuals in order to create more employments.
Supporting employers and employees to seek and expand the labor markets overseas.
Establishing the National fund of employments to grant preferential loans for employment creation and other activities as prescribed by law.
Article 13. Employment programs
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.
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
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.
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.
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.
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
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.
For temporary jobs with terms under 03 months, the parties may conclude verbal contracts.
Article 17. Principles of labor contract conclusion
Voluntary, equitable, affable, cooperative and truthful.
The contract is freely concluded without violating the law, the collective labor agreement and social ethics.
Article 18. Responsibilities for labor contract conclusion
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.
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.
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.
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
Keeping the originals of the identity papers, certificates and qualifications of the employee.
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
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.
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.
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.
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.
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.
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.
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.
The labor contract annex is part of the labor contract and as valid as an labor contract.
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.
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
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.
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:
Within 60 days for works that demand college education or further;
Within 30 days for works that demand vocational intermediate education, technical workers, professional workers.
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
If the probation is passed, the employer must conclude the labor contract with the employee.
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
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.
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.
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.
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.
The employee have to do military service
The employee is detained as prescribed by law provisions on criminal procedures.
The employee have to implement the decision on compulsory treatment and education in reformatories, detoxification centers or educational facilities.
The pregnant female employees prescribed in Article 156 of this Code.
Other cases agreed by the parties.
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
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.
The employee may reach an agreement with the employer on the shorter working hours when concluding the labor contract.
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.
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.
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.
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
The labor contract expires, except for the case prescribed in Clause 6 Article 192 of this Code.
The work under the labor contract is done.
Both parties agree to terminate the labor contract.
The employee satisfies the requirements of about social insurance duration and pension age as prescribed in Article 187 of this Code.
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.
The employee dies, is declared dead, missing or incapable of civil acts by the Court.
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.
The employee is disciplinarily dismissed as prescribed in Clause 3 Article 125 of this Code.
The employee unilaterally terminates the labor contract as prescribed in Article 37 of this Code.
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
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.
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.
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
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.
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.
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.
The employee is on annual leave, personal leave and other leave permitted by the employer.
The female employees prescribed in Clause 3 Article 155 of this Code.
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
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
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.
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.
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.
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.
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
Being ineligible for severance pay and paying compensation equivalent to the half-month salary under the labor contract to the employee.
For violations of the advance notice time, the employer must be paid a compensation equivalent to the employee’s salary of the unnoticed days.
The training cost must be returned to the employer as prescribed in Article 62 of this Code.
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.
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.
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
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.
For ownership transfers or property use right transfers, the preceding employer must devise the employment plan as prescribed in Article 46 of this Code.
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
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.
The plan development must be participated by the internal labor representative organization.
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.
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.
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.
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
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.
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.
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
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.
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.
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
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.
The labor contract is partially invalidated when part of it violates the law provisions but does not affect the rest.
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.
The Labor Inspectors, People’s Courts are entitled to invalidate labor contracts.
The Government shall specify the order and procedures for the Labor Inspectors, People’s Courts to invalidate labor contracts.
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.
The totally invalidated labor contract shall be handled as follows:
a) In case of ultra virus 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;
The Government shall elaborate this Article.
Section 5. OUTSOURCING
Article 53. Outsourcing
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.
Outsourcing service is a conditional business and only provided for a certain number of works.
Article 54. Outsourcing service providers
Outsourcing service providers must pay a deposit and obtain the license to provide outsourcing services.
The maximum outsourcing duration is 12 months.
The Government shall specify the outsourcing licensing, the deposit payment and the list of works eligible for outsourcing.
Article 55. Outsourcing contract
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.
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.
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
Providing the eligible employees consistently with the requirements of the outsourcing party and the labor contract signed with the employee.
Informing the employee about the outsourcing contract contents.
Signing the labor contract with the employee as prescribed in this Code.
Informing the outsourcing party about the employee’s résumé and requirements.
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.
Recording the quantity of the outsourced employees, the outsourcing fees and sending reports to provincial State labor management agencies.
Disciplining employees that violate labor discipline when they are returned due to labor discipline violations.
Article 57. Rights and obligations of the outsourcing party
Notifying and guiding the outsourced employee about the labor regulations and other regulations.
The working condition discrimination against outsourced employees in favor of their own employees is prohibited.
Reaching agreements with the outsourced employees when they are mobilized to work on the night shift or to work overtime outside the outsourcing contract.
The outsourced employees must not be transferred to other employers.
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.
Returning the employee to the outsourcing service provider if they are not eligible as agreed or if they violate labor discipline.
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
Doing the work under the labor contract signed with the outsourcing service provider.
Observing the labor regulations, labor discipline, collective labor agreement and the lawful management of the outsourcing party.
Receiving salary not lower than that of the outsourcing party’s employees at the same level, doing the same or equivalent job.
Lodging complaints with the outsourcing service provider in case the outsourcing party violates the agreements in the outsourcing contract.
Exercising the right to unilaterally terminate the labor contract with the outsourcing service provider as prescribed in Article 37 of this Code.
Reaching the agreement to conclude the labor contract with the outsourcing party after terminating the labor contract with the outsourcing service provider.
VOCATIONAL LEARNING AND TRAINING, VOCATIONAL SKILL AND GRADE IMPROVEMENT
Article 59. Vocational learning and training
The employees are entitled to choose their vocation and vocational training at workplaces consistently with their demands for employment.
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
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.
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
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.
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.
When the vocational training or apprenticeship completes, both parties must sign the labor contract when the conditions prescribed in this Code are satisfied.
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
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.
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.
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.
DIALOGUE AT THE WORKPLACE, COLLECTIVE NEGOTIATION, COLLECTIVE LABOR AGREEMENT
Section 1. DIALOGUE AT THE WORKPLACE
Article 63. Purpose and form of dialogue at workplace
Dialogueat the workplace in order toshare information and enhance the understanding betweentheemployerand the employeeto build the labor relationsat the workplace.
Dialogueat workis donethrough thedirect exchangebetween the employeeand the employer orbetween the representatives oflabor collective with the employerto ensurethe implementation ofdemocratic regulationsat the grassroots level.
Theemployer and the employeeare obliged toimplement the democratic regulationsat the grassroots levelat workplacein accordance with the regulations of theGovernment.
Article 64. Content of dialogue at the workplace
The situation of production and business of the employer.
The implementation oflabor contracts, collectivelabor agreements, internalrules, regulationsandcommitments and agreementsat the workplace.
Requirementsof the employee and the labor collectivefor theemployer.
Requirementsof the employer with the employee and the labor collective.
Other contents that both parties are concerned about
Article 65. Conducting dialogue at the workplace
Dialogue at the workplace is conducted once every 03 months periodically or at the request of one party.
Theemployeris obliged toarrange the venue andothermaterial conditionsto ensure thedialogueat the workplace.
Section 2. COLLECTIVE NEGOTIATION
The collective negotiation is that the labor collective makes discussion and negotiation with the employer for the following purposes:
Buildingharmonious, stable and progressive labor relations;
Establishing newworking conditionsas a basis forsigning the collectivelabor agreements;
Settling theproblemsand difficultiesin implementingthe rights and obligationsof each party in the labor relations.
Article 67. Principle of collective negotiation
Collective negotiation is conductedon the principles ofgoodwill, equality, cooperation, openness and transparency.
Collective negotiation is conductedperiodicallyor irregularly.
Collective negotiation is doneat the placeagreed uponby both parties.
Article 68. Right to require the collective negotiation
Eachparty shall have theright to require the collective negotiation; the party receiving the requirement is not entitled to decline the negotiation. Within07 workingdays afterreceiving the negotiation request,the parties shall agree uponthe starting time of the negotiation meeting.
Where a partycannot participate in the negotiation meeting at the starting time for negotiation as agreed, that party has the right to propose the postponement, butthe starting time ofnegotiationshall not exceed 30days afterreceiving the requestfor collective negotiation.
Wherea party declines tonegotiateornot conduct thenegotiation withinthe time limit prescribedin this Article, the other party has the right tocarry out theprocedures for requesting the settlementof labor disputesin accordance with thelaw.
Article 69. Representative of collective negotiation
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
The number ofpeopleattending the negotiation meetingof each party shall be agreed upon by both parties.
Article 70. Content of collective negotiation
Salary,bonus,allowance andpay rise
Working hour, rest time, overtime working, break betweenshift.
Job guarantee for the employee
Ensuring thelabor safety, occupational healthand complying withlabor rule.
Other contents that both parties are concerned about.
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 opinions 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.
Procedures for the collective negotiationare regulated asfollows:
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 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.
Within 15days from theday of terminationof the meeting of collective negotiation, the negotiation representatives ofthelaborcollective party must diffuse widely and publicly the minutes of the meetingof collective negotiation to thelabor collectiveand collect suggestion by votingfrom thelabor collectiveon the contentsagreed upon.
Where the negotiationfailseitherparty mayrequest to continue the negotiation or conducttheprocedures for the settlement of thelabor disputesin accordance withthis Code.
Organizing the training of the collective negotiation skills for the persons participating in the collective negotiation.
Participating in the meeting of collective negotiation upon the request from either collective negotiation party.
Providing and exchanging information relating to the collective negotiation
Article 73. Collective Labor Agreement
A collective labor agreement is a written agreement between a labor collective and the employer in respect of working conditions that both parties have agreed upon through collective negotiation.
A collective labor agreement includes the enterprise collective labor agreement, the sector collective labor agreement and other form of collective labor agreement as prescribed by the Government.
The contents of the collective labor 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
The collective labor agreement is signed between the representative of the labor collective with the employer or the the employer’s representative.
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.
When the collective labor agreement has been signed, the employer must announce it to his/her employee.
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:
The provincial state management agency on labor for the enterprise collective labor agreement,
The Ministry of Labor, 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
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
Incases the provisions of lawchange that makes the collectivelabor agreements no longerconsistent withthe provisionsof law, the twoparties have toamendand supplementthe collectivelabor agreementwithin 15days from thedaythe provisionsof 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.
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
The collectivelabor agreements shall be partially invalidwhenone or severalcontents in theagreement become illegal.
The collectivelabor agreements shall be entirely invalidin one of thefollowing 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.
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
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.
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.
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.
In case the rights, obligations and interests ofthe parties inlabor contractsconcluded beforethe effective day ofthe collectivelabor agreement lower thanthecorresponding provisionsof thecollectivelabor agreement, the corresponding provisions of the collectivelabor agreement must be performed. If the employer’s provisions on the labor are incompatible with thecollectivelabor agreement, they must be amended to suit thecollectivelabor agreementwithin 15days from the effective day ofcollective labor agreement.
When a party thinks that the other party incompletely performs orbreaches the collectivelabor agreement, it is entitled to request the proper performance ofthe agreementandboth partiesmust jointlyconsider and settle the problems, if failed, eachparty has the right to request the settlementof the collective labordisputesin accordance with thelaw.
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
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.
In case the collectivelabor agreement isexpired due to the employer’s termination of its effect, the employee’s interests shall be settled in accordancewith the lawon labor.
Section 5. SECTOR COLLECTIVE LABOR AGREEMENT
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.
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
If thecontents of the enterprise collective labor agreement orthe employer’s regulationson the rights, obligations and legal interestsof the employeein the enterprisearelower thanthe contents of the corresponding provisionsof the sector collective labor agreement, the enterprise collective labor agreement must be amended and supplemented within a period of 03 months from the day the sector collective labor agreement takes effect.
The enterprise subject totheapplication of the sector collective labor agreement but having notbuiltthe enterprise collective labor agreement canbuild additional enterprise collectivelabor agreementswiththeprovisionsmore favorable totheemployee compared withthe provisions of the sector collectivelabor agreement
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
Article 90. Salary
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.
The salary paid to the employee is based on the labor productivity and work quality.
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
The minimal salary rate isthe lowest rate that is paidto the employee who performsthe simplest workin thenormal workingconditionsand that must ensure the minimal living needsof the employees and their families.
The minimal salary rate is determined by month, day, hour and shall be established by region and sector.
Based on the minimal living needsof the employees and their families, the social and economic conditionsand the salary wage on the labormarket, the Government shall announcethe regional minimal wageon the basisof therecommendations oftheNationalWages Council.
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.
The National Wages Council is an advisory agency to the Government, including the members who are representatives of the Ministry of Labor – Invalids and Social Affairs, Vietnam General Confederation of Labor and the representative organization of the employer in the central.
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
On the basis ofthe principles offormulating the salary scale, payrollandlabor normsprescribedby the Government, theemployeris responsible forformulating the salary scale, payroll and labor norm as a basisfor labor recruitmentand employment, salary agreementin the labor contractand salary payment to the employee
Upon formulating the salary scale, payrollandlabor norms, the employer must consult with the representativeorganization of the labor collectiveat the grassroots levelandpublicizeat the workplaceof the employee beforethe formulation and simultaneously send them tothe state managementagency on labor at district level where the facility of production and business of the employer located.
Article 94. Form of salary payment
Theemployerhas the right to make the salary paymentby time, products orpiecework. The chosenform of paymentmust bemaintained for acertain period;in case of change of the payment form, theemployermust notify the employeeat least 10 days in advance.
Salary ispaid in cashorpaid through the employee’sindividual account opened at the bank. Where the payment made throughbank account, theemployermustagree with the employeeon the various feesrelated toopening andmaintaining the account.
Article 95. Payment term
The employee whose salary based onhour, day and weekshall be paidbyhour, day and weekor a lump sumagreed uponby both parties, but a lump sum must be paid once at least15 days
The employee whose salary based on month shall be paid once a month or once a fortnight.
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, themonthlysalaryshall be advancedbythe volume of workdoneduring 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 additional 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
The employee who works overtime is paid according to salary unit price or the salary by the job dutiesas 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.
Employeeworkingat nightshall be additionally paidat least 30% of the salary calculated by the salary unit price or the work salaryunder a normal workingday
The employeeworking overtimeat night, in addition to the salaryas prescribedin Clause1 and Clause2 of this Article, the employeeshall alsobe paid an additional20% ofsalary 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:
If due to the fault of the employer, the employee shall be entitled to payment of the full salary;
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;
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-inflicts 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
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, labor safety and labor sanitation.
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
The employee shall be entitled to an advance of salary payment in accordance with the conditions agreed by both parties.
Theemployershalladvance the salary paymentcorresponding to the numberof days the employee temporarilyleaves his work toperformduties of citizenfrom 01weekor more butnot exceeding01 month salary maximally and the employee shall refundthe advanced amountexcept for execution ofmilitary service.
Article 101. Deduction of salary
Theemployeris only entitled todeductthe salary ofemployee for the compensation of damagesof tools and equipmentof theemployeras prescribed inArticle 130of this Code.
The employee shall have the right to be aware of the reasons for the deduction of his salary
The rate ofmonthlysalary deductionmay not exceed 30% of the employee’s monthlysalaryafter the payment ofcompulsory socialinsurance, 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
Bonusis theamount thatemployerrewards theemployee based on the annual business and productionresultsand the level of work completion of the employee.
The regulation on bonus shall be decided by the employerandpublicly announced at the workplaceafterconsultingtherepresentative organization of the labor collective at the grassroots level.
WORKING HOURS AND BREAK HOURS
Article 104. Normal working hours
Working hours shall not exceed 08 hours per day or forty eight (48) hours per week.
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.
The working hours shallnot exceed 06hours in01 dayfor those whoseworks areextremely hard, harmful and dangerous under the list issued bythe Ministry of Labor – Invalids and Social Affairsin coordinationwith theMinistry 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
Overtime workingis the working period besides thenormalworking hoursspecified in thelaw, the collectivelabor agreementor the labor rule.
Theemployer is entitle to employ theemployeeto work overtimeupon satisfyingthefollowing 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:
Performing themobilization order to guarantee the duties of national defenseand security inthe state of emergencyon national defenseand securityas prescribedby law;
Performingworkto protecthuman lifeand property of theagencies, organizations and individualsin the preventing and surmounting the consequence of the natural disasters, fire, epidemics and disasters.
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.
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.
Besidesthe breakbetween thehoursspecified in Clause1 and Clause2 of this Article, theemployershalldetermine the time of theshortbreaksandrecord in thelabor 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.
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.
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
An employee who has12 months in full to work foranemployershall be entitled to annual leave fully paid under thelabor contractas 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 Labor, 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 Labor, Invalids and Social Affairs in coordination with the Ministry of Health.
Theemployeris entitled to regulate theannualleavescheduleafterconsulting with the employeesand must give noticeto employees in advance.
The employeecanagree with theemployer on taking annual leave in installments or combining 03 annual leave into one leave maximally.
When taking annualleave,ifthe employeetravels byroad, railway and waterway vehicles, thenumber of daystogo and come back is over 02days,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
When taking annualleave, the employeeis advancedan amountat least equal tothe salary ofthe days-off.
The travel expenses andsalaryin the traveling days shall be agreedby 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
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.
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.
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 Labor 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)
The employees who are foreigncitizensworking inVietnam, besides the holidays as prescribed inClause 1of this Article, they also take an additional dayof traditional Tetand 01 day of their country'sNational Day.
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
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.
In addition tothe provisions of Clause1 and Clause2 of this Article, the employeemay agreewiththeemployertotake unpaid leave.
Section 4. WORKING TIME AND REST TIME FOR THE PERSON PERFORMING WORK WITH PARTICULAR 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 Labor, Invalids and Social Affairs and must comply with the provisions in the Article 18 of this Code.
LABOR DISCIPLINE AND MATERIAL RESPONSIBILITY
Section 1. LABOR DISCIPLINE
Article 118. Labor discipline
Labor discipline is the regulations concerning the compliance with the time, technology, and business and production management in the labor rule.
Article 119. Labor rule
The employer who employs from ten (10) or more employees must have the labor rule in writing.
The contents of the labor 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
Before issuing the labor rule, theemployermustconsultthe representative organization of the labor collective at the grassroots level.
The labor rule must be notified to the worker and the main contents must be posted at necessary places within the enterprise.
Theemployermust register thelabor ruleatthe state managementagency on labor atthe provincial level.
Within 10days from thedate of promulgation oflabor rule, theemployermust submit dossier for registration of the labor rule.
Within07 workingdays afterreceipt of the dossier for registration of the labor rule, if the labor rule contains the provisionscontrary tolaw, thestate managementagency on labor at provicial level shall notify and guide the employer to make amendment and supplementation.
Dossier for registration of the labor rule includes:
The written request for registration of the labor rule;
The documents of the employer that have provisions relating to the labor discipline and material responsibilities
The minutes of opinions of the representative organization of the labor collective at the grassroots level.
The labor rule
The labor rule shall take effect after 15 days from the date the state management agency on labor at provincial 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
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.
There is no permission to apply various forms of labor discipline for a violation of labor discipline.
Whenan employeeat the same timehas many acts of violation of the labor discipline,onlythe highestform of disciplineshallapply corresponding tothe most serious act of violation.
There is no permission for the labor discipline for the employee 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
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 behavior control
Article 124. Limitation of labor discipline
The limitation oflabordiscipline is up to06 monthsfrom the date the occurrence of violation; in case the act ofviolation is directly relatedto the finance, property, disclosure of business and technologysecretof theemployer, the limitation of the labor disciplineis up to 12months.
When the timeperiod is over as specifiedin pointsa,bandc, Clause 4 of the Article123,ifthe limitation is still validtodisciplinetheemployees, theemployer shallconduct the labor discipline immediately, if the limitation expires, it shallbe extended for the labor disciplinebutnot exceeding60 days maximally fromthe 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.
The decision on the labor discipline must beissuedwithin the time limitspecified in Clause1 and Clause2 of this Article.
Prolongationof wage increasewithin 06months; dismissed from office.
The form of disciplinary dismissal is applied by the employer in the following cases:
The employee has the act of theft, embezzlement, gambling, intentionally causing injury, using drugwithinthe workplace, disclosing the technology and business secrets, intellectual propertyinfringementof theemployer, having the act of causingserious damageor threatening to causeextremely seriousdamageto the property andinterests of the employer;
The employeeisdisciplined by the prolongation of salary increase period but still repeating the violation during the time the disciplinary has not been cancelled ordisciplined by the dismissal but stillrepeating the violation.
Recidivism is the case the employee repeats the act of violation that was disciplined but the discipline has not been deleted as prescribed in the Article 127 of this Code
The employeequits his job willingly totally05 daysin 01monthsor20 days totallyin01 yearwithoutany 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.
The employeeisreprimandedafter 03months, or isdisciplined by the prolongation of salary increase period after06 monthsfrom the date ofbeing handled, if the violation is not repeated,thediscipline shall be automatically deleted. In case oflabordisciplinein the formof dismissal, after a period of 03years, ifviolation of labor disciplineis repeated,it shall notbe consideredrecidivism.
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
Violating the employee’sbodyor dignity.
Applying the form of fine, salary cutting in lieu of labor discipline.
Handling the labor discipline for the employee having the act of violation not prescribed in the labor rule.
Theemployerhas the right tosuspendthe work ofthe employeewhenthe violationhascomplicated circumstances, seeing that if letting the employeecontinue working, which shall cause the difficulty for the verification.The suspension ofthe employee's work is doneonlyafterconsultation with the representative organizationsof thelabor collectiveat the grassroots level.
The temporarysuspensionshall not exceed15 days and not exceeding90 days in special cases. During the time of work suspension,the employee shall beadvanced50% of the salary before being suspended from work.
Upon the end of work suspension, the employer must get the employee back to work.
Wherethe employeereceives the labordiscipline, the employee does nothave to payback the salaryalready advanced.
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
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.
Where the employeeloses the tools, equipment and property of theemployerorother property assigned by theemployerorconsumes the materials overthe permitted norm, he shall be liable for making the compensation of damages partially or entirely accordingto current market price;in case ofa liability contract, heshallmake the compensationunder the liability contract; in caseof natural disasters, fire, enemy-inflicts destruction, epidemics, disasters and occurrence of unforeseeable and insurmountable 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.
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.
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.
LABOR SAFETY AND HYGIENE
Section 1. GENERAL PROVISIONS 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.
The State has invested inscientific research and supported the development of the facilities manufacturing the equipment of labor safety and hygiene, and personalprotective equipment.
Encouraging the development of services on labor safety and hygiene.
Article 135. Program of labor safety and hygiene
The Government has decided the national Program on labor safety and hygiene.
The provincial People's Committee shall build and present thepeople'sCouncil to decide the labor safety and hygiene programwithinthe scope of locality and put into the plan of social and economic development.
The Ministry of Labor, 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.
Theemployer shallrely on thestandards and nationaltechnical regulations, the localtechnical regulationson labor safetyand hygieneto buildthe rules andworking proceduresto guarantee the labor safetyand hygienein accordance witheach typeof machinery, equipment and workplace.
Whennewly building, expanding or improving the works and facility for production, utilization, preservation and storageof machinery, equipment, materials and substances withstrict requirementsonlabor safety and hygiene, the investor and employer must make a plan on the measures to guarantee the labor safety and hygiene forthe workplaceof employees and the environment.
Whenmanufacturing, using, preserving and transporting the type of machinery, equipment, materials, energy, electricity, chemicals, plantprotection drugs, the change of technology and import of newtechnologymust comply with the nationaltechnical regulationsonlabor safety and hygiene or the standard on labor safety and hygiene at workplace that has been published and applied.
Article 138. Obligations of the employer and employee for the work of labor safety and hygiene
The employer has the following obligations:
a) To ensure the workplace meets the requirements of space, ventilation, dust, steam, toxic gas, radiation, electromagnetic 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 labor safety and hygiene for machinery, equipment, workshop to reach the national technical regulations on labor safety and hygiene or standards on labor 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 labor safety and hygiene for the machinery, equipment and workplace and it should be put at the legible and visible place labor 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 labor safety and hygiene.
2.The employee has the following obligations:
a) To comply with the regulations, procedures and rules on the labor 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
Theemployermust appoint a person performing the work of labor safety and hygiene. For the production and business facilitiesin the areaswith the risks ofoccupational accidents and diseases and with the employment of 10employees or more, the employer must appoint aperson withrelevant expertisetobe in chargeof the work of labor safety and hygiene
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
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.
The employee hasthe right to refuse to perform the workorquit the workplaceand still get payment of fullsalary andis not consideredviolation oflabor disciplineupon clearly seeing theriskof occurrence of occupationalaccidentsand diseases, seriously threatening his life orhealth and he must immediately notifythe person in direct charge.Theemployer shallnotforce the employee tocontinue that workor return tothat workplaceif the danger has notbeen remedied.
Article 141. Allowance in kind for the employee working in dangerous and hazardous conditions
The person working in dangerous and hazardous conditions shall receive the allowance in kind as prescribed by the Ministry of Labor, Invalids and Social Affairs
Occupational accidentis an accident that causesinjuryto anypartand function of the body or deathto employeeoccurring duringthe working process associated withthe implementation of workand labor tasks.
This regulations applies to trade apprentice, trainee and probationer
The person suffering occupational accident must receive a timely emergency and considerate treatment.
All occupational accidents and diseases and otherserious incidentsat the workplacemustbe declared, investigated, recorded, statistical andperiodically reportedas prescribedby the Government.
Occupational diseases arediseases caused by the harmful working conditionsof the occupation effecting on the employee
The list of occupational diseases issued by the Ministry of Health in coordination with the Ministry of Labor - Invalids and Social Affairs after gathering opinions of the General Confederation of Labor of Vietnam and the representative organizations of employer
The person suffering from occupational disease must be treated carefully, examined health periodically and has separate health record.
Article 144. Responsibilities of the employer for the person suffering occupational accident and disease.
Making the payment of the co-paymentcostsand the costs not included under the list paid by thehealth insurancefor the employee participatinginhealth insurance and making full payment of allmedical expensesfrom thefirst aid, emergencyto the stabletreatmentforthe employeesnot participating inhealth insurance.
Making full paymentof salary under the labor contractto the employee suffering the occupational accident and disease and having to take leave during treatment.
Making compensation to the employee suffering the occupational accident and disease as prescribed in the Article 145 of this Code.
Article 145. Rights of the employee suffering the occupational accident and disease
The employees participating in compulsory social insurance are entitled to enjoy the regime of occupational accident and disease in accordance with the Law on social insurance.
The employeesubject toparticipatingin compulsory socialinsurancebut theemployerhave not paid the social insurance premiumsto the social insuranceagency, he shall be paid an amount corresponding to the regime of occupational accidentand diseaseunderthe Law onsocial insurance.
The payment can be made once or every month as agreed by the parties.
The employee withoccupational accidentsand diseasenot due to the faultof employeeandreducedworking capacityfrom 5% or more shall be compensated by the employer atthe following rate:
a) At least equal to 5 month' salary under the labor contract if the employee is reduced from 5.0% to 10% of his working capacity and then every 1.0% increase, an addition of 0.4 months of salary under the labor contract if reduced working capacity from 11% to 80%;
b) At least 30 months' salary under labor contract for the employee reduced his working capacity from 81% or more or for the death of the employee’s relative from the occupational accidents.
Where due to thefault ofthe employee, healsoreceives an allowance of anamount at leastequal to 40% of the rate prescribed in Clause3 of this Article.
Article 146. Prohibited acts in the labor safety and hygiene
Making payment in cash instead of allowance in kind
Concealing, declaring or reporting falselythe truth aboutthe occupational accidentand diseases.
Section 3. PREVENTION OF OCCUPATIONAL ACCIDENT AND DISEASES.
Article 147. Inspection of machinery, equipment and materials with strict requirement on labor safety
The types of machinery, equipment and materials with strict requirements on labor safety must be inspected before being put into use and periodically inspected during the process of utilization by the organization of technical inspection of labor safety.
The list of machinery, equipment and materials with strict requirements on labor safety is issued by the Ministry of Labor, War Invalids and Social Affairs.
The Government regulates the conditions of the organization of technical inspection of labor safety.
Article 148. Plan for labor safety and hygiene
Each year, upon making plan for production and business, the employer must make a plan and measures for the labor safety and hygiene and improve the working conditions.
Article 149. Means of personal protection in labor
The employee who performsworkwiththe toxic and dangerous factors shall be fully equipped with the means ofpersonal protection by the employer and must use them during the working processin accordance with theMinistry of Labor- Invalidsandsociety.
The means of personal protection must meet the standard of quality
Article 150. Training on labor safety and hygiene
Theemployer, person performing work of labor safety and hygiene must take part in a training course on the labor safety and hygiene and is examined, tested and granted certificate performed by the organization of training service operation on labor safety and hygiene.
Theemployermust organize the training onlabor safety and hygiene to the employee, trade apprentice, trainee upon recruitment and personnel arrangement; making guidance of regulations on labor safety and hygiene to the person visiting and working at the facility under the scope of management of the employer.
The employees performing workwithstrict requirementsonlabor safety and hygienemust attend a training course of labor safety and hygiene, taking examinationand receiving the certificate.
The Ministry of Labor- InvalidsandSocial Affairs stipulates the conditionsofthe organization of training service operation on labor safety and hygiene; building a frameworkprogramof training on labor safety and hygiene; the list of work with strict requirementsonlabor safety
Article 151. Information on labor safety and hygiene
The employer must announce the complete information on the situation of occupational accidents, occupational diseases, dangerous and harmful factors, and measures to ensure the labor safety and hygiene at workplace for the employee
Article 152. Health care for employee
Theemployermust rely on thehealth standardsregulated for eachtype of workfor recruitmentand arrangement of employees.
Each year, the employermust organizeperiodic healthexaminationsfor the employee, including the trade apprentice, trainee, female employeesmust receive the gynecology examination, person who performs hard and hazardous work, the disabled and juvenile employee, elderly employee health must be examined health at least once for every 6 months.
The employeesworkingin conditions atrisk ofoccupational disease must be examined the occupational diseaseasprescribed bythe Ministry of Health.
The employee withoccupational accidentand diseasemust receive amedical examinationfordisabilityrating, determination of the degree of reduction ofworking capacityand shall be under the treatment, working rehabilitation and in convalescence in accordancewith the law.
The employee after suffering from occupational accident and disease, if being able to keep onworking,heshall bearranged a jobsuitable to his health in accordance withthe conclusions of theMedical Examination Council on labor
Theemployermust managethe healthrecordsof employeesanda general monitoring recordin accordance with the regulations of theMinistry of Health.
The employeeworkingat the place where there are toxic and infectiousfactors, upon the end of the working hours, theemployer mustguarantee themeasures of decontaminationand sterilization.
PRIVATE REGULATIONS FOR FEMALE EMPLOYEE
To ensure the equal working rightsof female employee
To encourageemployersto create conditions forfemale employee to workregularly andwidely apply the flexible timetable working regime, workingshorter hours andassigning workat home.
To take measures tocreate jobs, improve working conditions; improve theiroccupational level, health care, enhancing the physical andmentalwelfarefor female employeesto helpthem promote their professional capacity efficiently, harmoniously combining the working lifeandfamily life.
To have tax reduction for employer who employs many women employees in accordance with the law on tax.
To expand thetype of trainingconvenient forwomen employee to have additional reserve joband appropriate with thephysical physiological characteristics, andmaternalfunctionsof women.
The State makes plans and takes measures for the organization of preschool, kindergarten at the place wherethere are manyfemale employees.
Article 154. Obligations of the employer for the female employee
To ensure the gender equalityand measures topromote the gender equalityin recruitment, utilization, training, working time, rest time, salary andother regimes.
To gather opinions of the female employees or their representative upon making decision on the rights and interest of women.
To ensure that there are enough suitable bathrooms and toilets at the workplace.
To assist andsupport the building ofnursery school,kindergartenor partial cost of child careat kindergartensfor female employee.
Article 155. Maternity protection for women employee
Theemployeris not entitled to usefemale employee to work atnight, work overtime work and take far business trip inthefollowing cases:
a) Being pregnant from the 7th or 6th month if working in upland and remote areas, border and island areas;
b) Fostering child under 12 months old.
Female employeedoesheavy workduring pregnancyfrom 07th month shall be transferred to lighter work or reduced 1 working hour every day but still enjoying full payment.
Theemployer isnot entitled to dismissorunilaterally terminate thelabor contractwith the female employeefor the reason ofmarriage, pregnancy, maternity leave, fostering childunder 12 months old, except for the case the employer is theindividual who has died, isdeclared by the courtof losing capacityof civil acts, missing ordeador the employer is nottheindividual terminating the operation.
Duringpregnancy,leaveupon havinga childunder the provisionsof law onsocial insurance, fostering childunder 12months old,female employeesshall not receive the labor discipline.
Female employeeduringmenstruation is entitled to take a break of30minute everyday; and 60 minutesa dayduringworking hours while fostering child under12 months of age with full payment under thelabor contract.
Article 156. Right of unilateral termination and suspension of labor contract of pregnant employee
The pregnant female employee if certified by the competent medical facility that the fetus of the female employee will be affected if she continues to work, has the right to terminate the labor contract or suspend the labor contract performance. The time limit that the female employees must notify the employer depends on the time limit set by the competent medical facility.
The time the female employeeis entitled to take leave before and afterbirthis06 months.
In case the female employee gives a birth of twin or more, from the 2nd child onwards, every child, the mother is entitled to 01 month leave additionally.
The prenatal period of leave shall not exceed 02 months.
Duringmaternity leave, the female employeeis entitled tomaternity leaveunder the provisionsof law onsocial insurance.
Upon expiry ofmaternity leaveas prescribedin Clause1 of this Article, ifhaving a demand, the female employeescan take one more unpaid day under the agreement withtheemployer.
Before the expiry ofmaternity leaveas prescribedin Clause1 of this Article, ifhaving a demand,with the certification of the competent medical facility concerning the early workwithout harmfulness to the female employee’s health and with the consent of the employer, the female employee can get back to work after taking leave of at 04 moths.
In this case, in addition to the salary of the working days paid by the employer, the female employee continues to receive maternity allowance under the provisions of law on social insurance.
The female employee shall be guaranteed the old job upon returning to work after the end of maternity leave as prescribed in Clause 1 and Clause 3 of Article 157 of this Code, in case the old job no longer exists, the employer must arrange another job for her with the salary rate not lower than that before maternity leave.
In this case, in addition to the salary of the working days paid by the employer, the female employee continues to receive maternity allowance under the provisions of law on social insurance.
The time off work when prenatal care, miscarriage, abortion, stillbirth, pathological abortion, implementation of contraceptive methods, care of sick child under age 07, fostering adopted child under age 06, the female employee is entitled to social insurance allowances in accordance with the law on social insurance.
The work canadversely affect the reproductivefunctionand child fostering under the list issued by theMinistry of Labor- Invalidsand Social Affairsin coordinationwiththe Ministry of Healthissued.
Performing the work regularly in water.
Performing the work regularly in mine
EXCLUSIVE PROVISIONS FOR UNDER AGE EMPLOYEE AND A NUMBER OF TYPES OF EMPLOYEE
Section 1. UNDERAGE EMPLOYEE
Article 161. Underage employee
The underage employee is the employee under 18 years old
Article 162. Employment of underage employee
Theemployeronlyemploys the underage employee inthejobs appropriatewith his healthto ensurethe physical,intellectualdevelopment and personality developmentand is responsible for paying attention and taking care of the underage employee in terms oflabor, salary, health and educationin thelaborprocess.
When employing underageemployee, theemployermust makea separate monitoring book, recording the fullname,birth date, current job, the results of the periodical health examination and produceit upon the requirement of the competentstate agency.
Article 163. Principle to employ the underage employee
Do not employ the underage employee to perform heavy, hazardous and dangerousjobsor the jobsnegatively affectinghis personalityunder the list issued by theMinistry of Labor- Invalidsand Social Affairs in coordination withthe Ministry of Health
The working hoursof the underage employee from full 15 years of ageto under 18 yearsmust not exceed08 hoursin01 daysand40 hoursin 01week
The working hours of person under 15 years must not exceed 4 hours in 01 days and 20 hours in 01 week without working overtime and at night.
The person from full years of ageand under 18 yearsis entitled to work overtime and at nightin someoccupations and jobsin accordance with theMinistry of Labor- Invalidsand Social Affairs.
Do not employ the underage employee to produce and trade in alcohol, wine, beer, tobacco, substances affecting mind and other drugs;
Theemployermustprovide opportunitiesfor the underage employee and person under 15 years old to take part in labor and cultural learning.
Article 164. Employing employee under 15 years old
Theemployeris only entitled to employ the person fromfull13years and under15 years to perform light job under the list prescribed by theMinistry of Labor-Invalids and SocialAffairs.
When employing the person fromfull13years and under15 years,theemployermust comply with thefollowing provisions:
a) Must sign the labor contracts in writing with the legal representative and must be agreed by the full 13 year and under 15 year old person;
b) To arrange the working hours in order not to affect the class hour of the children;
c) To ensure the working conditions, labor safety and hygiene appropriate with the age of the underage employee;
Do not employ the employeeunder age 13except for somespecific work regulated by theMinistry of Labor-Invalids and SocialAffairs.
When employing people under age 13 to work, the employer must comply with the provisions of Clause 2 of this Article.
Article 165. The work and workplace prohibiting employment of underage employee
Prohibiting the employment of underage employee to perform the following jobs:
a) Wearing, carrying and lifting heavy objects beyond the physical condition of the underage person;
b) Producing and using or transporting the chemicals, gases, explosives;
c) Maintaining the equipment and machinery;
d) Demolishing constructional building;
dd) Cooking, blowing, casting, rolling, stamping, welding metals;
e) Diving, offshore fishing;
g) Other work harming the health, safety or the ethics of the underage person.
Prohibiting the underage person to work at the following places
a) Underwater, underground, in caves and in the tunnel;
b) Constructional site;
c) Slaughter facility;
d) Casinos, bars, discos, karaoke rooms, hotels, motels, saunas and massage rooms;
dd) Other workplace harming the health, safety or the ethics of the underage person.
The Ministry of Labor- InvalidsandSocial Affairsspecifies the listat Pointg, Clause 1 and Point d, Clause 2of this Article.
The elderly employee is the person who continues working after age as prescribed in Article 187 of this Code.
The elderlyemployee is entitled toshortendaily working hours orapply the regime of shorter hour working.
Article 167. Employment of elderly employee
Whenrequired,theemployermay agreewith healthy elder employeeto prolong the term oflabor contractor sign the new laborcontractunder theprovisions of ChapterIIIof this Code.
Onceretired, if workingundera new laborcontract, in addition to the interests underpension regime, the elderly employee still enjoysthe interests agreed upon inlabor contracts.
Do not employ the elderly employee to dothehard, hazardous and dangerous job adversely affecting thehealth of the elderly employee, exceptfor the special casesas prescribedby the Government.
The employer is responsible to pay attention to and take care of the health of the elderly employee at the workplace.
Section 3. VIETNAMESE EMPLOYEE WORKING ABROAD, WORKING FOR FOREIGN ORGANIZATION AND INDIVIDUAL IN VIETNAM, FOREIGN EMPLOYEE WORKING IN VIETNAM
Article 168. Vietnamese employee working abroad, working for foreign organization and individual in Vietnam, foreign employee working in Vietnam
The Stateencourages the enterprises, agencies, organizations andindividuals to seek and expand the labor marketto send Vietnamese toworkabroad.
Vietnamese employee working overseas must comply with the provisions of the law of Vietnam, the host country law, except the case of international agreement in which Vietnam is a member contains different provisions.
Vietnamesecitizensworking inforeign enterprisesin Vietnam, in industrial parks, economic zones and export processing zones, in foreign or international agencies and organizationsor working for individuals who are foreign citizens in Vietnammust comply withthe law of Vietnamandare protected by law.
Article 169. Conditions of employee being the foreign citizen working in Vietnam.
The employee who is the foreign citizen working in Vietnam must have the following conditions:
a) Having capacity for civil acts in full;
b) Having qualification, skills and health in accordance with the job requirements;
c) Not being the criminal or prosecuted for criminal liability in accordance with the law of Vietnam and foreign law;
d) Having working permit granted by the Vietnamese competent state authorities, except for the cases as prescribed in the Article 172 of this Code.
The employee who is a foreigncitizenworkingin Vietnammust comply withVietnam's laborlaw, international agreementin which Vietnamis a membercontains different provisionsandprotected by the law of Vietnam.
Article 170. Conditions for labor recruitment of foreign citizen
The enterprises, agencies, organizations, individuals and contractors in the countryareonly entitled to recruit foreigncitizentowork as manager, operating director, specialist and technical employee while Vietnamese employee has not meettheproduction and business demand.
The foreign enterprises, agencies, organizations, individuals and contractors before recruitingemployees who are foreigncitizens to workin the territory ofVietnam mustexplainthe demand forlabor employment andbe approvedin writingfrom the competentstate agency.
Article 171. Work permit for the employee being the foreign citizen to work in Vietnam
The employee whoisa foreign citizenmust presenta work permitwhencarrying out the proceduresrelated to the exit, entry and presentas required from the competentstate agency.
The foreign citizen coming towork inVietnam withoutwork permitswillbe expelled fromthe territory of Vietnamas stipulatedby the Government.
The employerwhoemploysforeign citizenwithout awork permitto work for him, shall be handled as prescribedby law.
Article 172. Foreign citizen working in Vietnam not subject to the grant of work permit
Ascontributing member, or ownersoflimited liabilitycompany.
As a member of the Board of Directors of the Joint Stock Company
As a Head of Representative Office, project of international organization, non-governmental organizations in Vietnam.
Coming to Vietnam with a period of less than 03 months to offer services
Coming toVietnam with a period of less than03 months to handle theproblem, technicalsituation and complex technologyarising thataffector threaten toaffect the production andbusinessthat the Vietnamese andforeign expertscurrentlyin Vietnamcannot be handled.
As aforeign lawyer who hasbeen licensedto practicelaw inVietnam underthe Law onLawyers.
Under the provisionsofinternational agreement in whichthe SocialistRepublic ofVietnamis a member.
As students who are studying and working inVietnam, but theemployermust give a notice 07 days in advance to the provincial state management agency onlabor.
Other cases as prescribed by the Government
Article 173. Time limit of the work permit
The time limit of the work permit is 02 maximally.
Article 174. Cases of expiration of work permit
Work permit has expired
Termination of labor contract
The content of the labor contract is not consistent with that of the issued work permit.
Contract in the area of economy, trade, finance, banking, insurance, technical science, culture, sports, education and health has been expired or terminated.
There is a writtennoticefrom the foreign countries on stopping sending foreign employees to workin Vietnam.
The work permit is revoked
Enterprises, organizations and partnersfrom Vietnamornon-governmentalorganizationsin Vietnam have ended their activities.
The employee is aforeign citizen who is imprisoned, dead or declared dead or missing by the court
Article 175. Grant, re-grant and revocation of work permit
The Government has specified the conditions for grant, re-grant and revocation of work permit for employee as foreign citizen working in Vietnam.
Section 4. DISABLE EMPLOYEES
Article 176. State policies for disabled employee
The State shall protect the right of work and self-employment of the disabled employee, having the policies of encouragement and incentives to the employer to create job and receive the disabled person to work as prescribed by the Law on disabled persons
The Government has stipulated the policies for preferential loans from the national Fund for the employer to employ disabled employee.
Article 177. Employing disabled employee
Theemployermust ensure thattheworking conditions, labor tools, labor safety and hygiene arein accordance with the disabled employee and regularly take careof their health.
Theemployermust gather the disabled employee upon making decisions on the issues related to their interests.
Article 178. Prohibited acts upon employment of disabled employee
Employing disabled employee with the working capacityreducedfrom 51% or more to work overtime or workat night.
Employing disabled employee to doheavy, hazardous ordangerouswork, or exposure totoxic substancesunder the list issued by theMinistry of Labor- Invalidsand Social Affairsin coordinationwiththe Ministry of Health.
Section 5. EMPLOYEE AS HOUSEMAID
Article 179. Employee as housemaid
Employee working as housemaid is the employee regularly performs work in a household or many household
The house work including the housework, housekeeping, child care, patient care, elder care, driving, gardening and other work but not related to the commercial activities.
The person performing housework in the form of piecework is not subject to the application of this Code.
Article 180. Labor contract for employee as a housemaid
Theemployermust signa labor contractin writingwiththehousemaid.
The time limit of the labor contract for the employee as a housemaid shall be agreed by both parties. One party has the right to unilaterally terminate the labor contract at any time but has to give a notice 15 days in advance.
Both parties shall agree and specify in the labor contract on the form of salary payment, term of payment, daily working hours, accommodation…
Article 181. Employer’s obligations
Fully implementingall agreementsalready signed in the labor contract.
Paying the housemaid an amount of social insurance, health insuranceas prescribedby lawfor employee tobuy insurance herself.
Respecting the honor and dignity of the housemaid
Arranging the clean and hygienic accommodation for the housemaid if agreed.
Creating opportunities for the housemaid to participate in education, vocational training.
Payingfareswhen the housemaid terminates work and get home except for the case the housemaidterminates the labor contractahead of time.
Article 182. Housemaid’s obligations
Fully executing all agreements signed by both parties in the labor contract.
Having to compensate as agreed or as prescribed by the regulations of law if causing damage and loss of property of the employer.
Giving timely notice to the employer about the possibility, the risk of accidents and threat to the safety, health, life and property of employer’s family and themselves.
Denouncing tothe competentauthoritiesif theemployer has the acts of maltreatment, sexual harassment, forced labororother actsof law violation.
Article 183. Prohibited acts for the employer
Maltreatment, sexual harassment, forced labor, force using for the employee as a housemaid.
Assigning the housemaid the work not specified in the labor contract
Keeping the housemaid’s personal papers
Section 6. OTHER LABOR ACTIVITIES
Person who performs trade or work in the area of art and sports is entitled to apply a number of appropriate regimes about the age of trade learning; about the labor contract signing, working and break time; the salary, salary allowance, bonus, labor safety and hygiene as prescribed by the Government.
Article 185. Employee receiving work to do at home
The employee can agree with the employer to receive work to do at home regularly.
The employee who works at home in the form of processing is not subject to the application of this Code
Article 186. Participation in social insurance and health insurance
The employer and the employee must participate in the mandatory social insurance and health insurance and unemployment insurance and shall enjoy the regimes as prescribed by the law on the social insurance and health insurance
Encouraging the employer and employee to perform other forms of social insurance for the employees.
During the leave with the enjoyment of thesocial insurance, theemployershallnot paysalaryto employees.
Foremployeesnot subject to participationin mandatory socialinsurance, mandatory healthinsurance, unemployment insurance, in addition to paymentby the work,theemployershallpayat the same time of the employee’s payment periodan additional amountequivalentto the rate ofmandatory social insurancepremium and mandatoryhealth insurance, unemployment insuranceand theamountof annualleaveas prescribed.
Article 187. Pension age
The employeemust satisfy the conditionsofthesocialinsurance paymentin accordancewith the law onsocial insurance to enjoy the pension salarywhen female is full 60-year-old and femaleis full 55 years old.
The employeehas been reduced the working capacity; doing extremely hard, harmful or dangerouswork;doinghard, harmful or dangerouswork inuplandand remote areas, borderislands under the list stipulated by theGovernment shallbe able to retireat younger agethanspecified inparagraph 1of this Article.
The employee has high technical qualification, the employee workingmanagement taskand someotherspecial casescanretire athigher age butnot more than 05years compared withthe provisions of Clause1 of this Article.
The Government has stipulate the clause 2 and 3 of this Article.
Article 188. Role of trade union organization in labor relationship
The grassroots trade unionperforming the representativesrole, protecting the legitimate and proper rights and interests of the trade union members, employee, participating, negotiating, signing andsupervising theimplementation of collectivelabor agreement,salary scale, payroll, labor normsand salary payment regulation, bonus regulation, labor ruleand democracy regulation atenterprises, agencies and organizations,participating and supporting to settle labor dispute;dialogueand cooperation withemployerstobuildharmonious, harmonious and progressive labor relations at the enterprises, agencies and organizations.
The direct superior grassroots trade unionshallsupportthe grassroots trade union to perform the functionsand dutiesas prescribedin Clause1 of this Article; propagating andeducating, raising the awarenessaboutlaborlaw, law ontrade unionsfor the employees
In areas where there is notrade union organizationestablishedat the grassroots level, the direct superior grassroots trade unionshallfulfill the responsibilitiesas specifiedin clause1 of this Article.
The Trade union organizationsat all levels shall participate with the state management agencies at same level andthe representative organization of the employerto exchangeand settle the laborissues.
Article 189. Establishing and joining and operating trade union at enterprises, agencies and organizations
The superior grassroots trade union has the right to mobilize the employee to join the trade union, establish the grassroots trade union at the enterprises, agencies and organizations and has the right to require the employer and the state management agency on labor to create conditions and support the establishment of the grassroots trade union.
When the grassroots trade unionis established underthe provisions oftheLaw on Trade union, the employermust recognizeandcreatefavorable conditionsfor the grassroots trade unionto operate.
Article 190. Prohibited acts for the employer related to the establishment, joining and operation of trade union
Hindering or causingdifficulties forthe establishment, joining and operation of the trade union of the employee.
Coercing the employee to establish, join and operate the trade union.
Discriminatingon salary, working hoursandthe rightsand obligationsin the labor relationshiptopreventthe establishment, joining and operation of trade union of the employee.
Article 191. Rights of the grassroots trade union official in the labor relationship
Meetemployersfor dialogue, exchange, negotiate on issuesof labor andemployers.
Coming to workplace in order to meet the employee within the scope of liability they represent
The places where the grassroots trade union has not been established, the direct superior grassroots trade unionofficial is entitled to execute the rights providedin this Article.
Article 192. Responsibilities of employers to trade union
Creating favorable conditions for the employee to establish join and operate the trade union.
Coordinating and creating favorable conditions for the superior grassroots trade union to propagate, mobilize and develop trade union member, establish grassroots trade union and arrange specialized trade union official at the enterprises, agencies and organizations.
Guaranteeing the conditions for the grassroots trade union to operate under provisions in Article 193 of this Code.
Coordinating with the grassroots trade union to build and implement the democratic regulations, the operation coordination regulation in conformity with the functions and duties of each party.
Consulting withthe grassroots trade unionexecutive committeebefore issuingthe provisionsrelating tothe rights, obligations, regulations and policiesforemployees.
When the employeeas a non-specialized trade union official isin thetrade unionterm but his labor contract has expired, he shallbe renewed the labor contractsalready signed to the end of his trade union term.
When theemployerunilaterally terminates thelabor contract and perform another job, disciplines and dismissesemployee who is the non-specializedtrade union official, the employer must agreein writing with the grassroots trade unionexecutive committeeor the direct superior grassroots trade unionexecutive committee.
In case failing to reach an agreement, both parties must report to the competent agency and organization. After 30 days from the date of giving notice to the local State management agencies, the employer has the right to make a decision and to take responsibility for his decisions.
In case of disagreement with the decision of the employer, the grassroots trade union executive committee and employee have the right to settle the labor disputes according to the procedures and order prescribed by law.
Article 193. Ensuring trade union operation condition at enterprises, agencies and organizations
The grassroots trade union is arranged the workplace and provided with information to ensure the necessary conditions for trade union operation.
The non-specialized trade union official is entitled to use the time in his working hours’ for trade union operation as prescribed by the Law on Trade union and shall be paid by the employer.
The specialized trade union official at enterprises, agencies and organizations paid by the Trade union and is guaranteed by the employer the collective welfare as the employees working at the enterprises, agencies and organizations as agreed in the collective labor agreement or regulations of the employer.
SETTLEMENT OF LABOR DISPUTES
Section 1. GENERAL PROVISIONS ON SETTLEMENT OF LABOR DISPUTES
Article 194. Principles of settlement of labor disputes
Respecting and ensuring to let thepartiesnegotiateand decide inthesettlementof labor disputes by themselves
Ensuring the implementation of conciliation and arbitration on the basis of respect for the rights and interests of both parties, respect for the common good of society and not contrary to law.
Being public,transparent, objective, timely, rapid and lawful.
Ensuringthe participationof representatives ofthe parties during theprocess of settlement oflabor disputes.
The settlement oflabor disputes must be directly negotiated by the two parties firstly to settle theharmonious interestsofthe two parties, stabilize the productionand business and to ensure the social orderandsafety.
The settlement oflabor disputesby the agencies, organizations and individuals havingthe competence to settle the labor disputes is conducted aftereither partyfiles a requesting application due to the refusal of negotiationbyeitherparty, negotiation done but failed or successful negotiation but eitherparty fails to perform the agreement.
Article 195. Responsibilities of agencies, organizations and individuals in settlement of labor disputes
The Statemanagement agencies on labor shall be responsible for coordinating with the trade union organization, the representative organization of the employer to make guidance and support and assistthe partiesin the settlement oflabor disputes.
The Ministry of Labor- Invalidsand Social Affairs shall organize thetraining to improve theprofessional capacityofthe labormediator, laborarbitratorin the settlement oflabor disputes.
The State competentagencymust activelyand promptlysettlethe collective labordisputeson the rights.
Article 196. Rights and obligations of both parties in the settlement of labor disputes
In the settlement of labor disputes, both parties have the following rights
a) Directly or through the representatives to participate in the process of settlement;
b) Withdrawing application or changing the requested content;
c) Requesting the change of the person who settlesthelabor disputeifthere is reasonto believe that such person is not impartialor
In settlement of labor disputes, both parties have the obligations:
a) Providing adequate and timely documentation and evidence to prove their claims;
b) Executing the agreements both parties have reached, the judgment or decision that has taken the legal effect.
Article 197. Rights of agencies, organizations and individuals with the competence to settle labor disputes
The agencies, organizations and individuals having the competence to settle the labor disputes within the scope of their duties and powers may request the disputing parties, the agencies, organizations and individuals concerned to provide financial data, evidence, solicit expertise, witnesses and the persons concerned.
Article 198. Labor mediator,
The laborconciliator is appointed bythe State managementagencyon labor at district,town andprovincial city leveltosettle the labor disputesand disputeson vocational trainingcontracts.
The Governmentregulates thestandard and authority for appointment of labormediator.
Article 199. Labor arbitration Council
The Chairman ofprovincial People's Committee shall decide to establish the laborarbitration Council. The laborarbitration Council includes the Head of the state management on labor,secretary of the Counciland members who are the provincial trade union representatives, representative organizations of the employer. The number ofmembers of thelabor arbitration Council is an odd number andnot exceeding07 people.
In necessary case, the Chairman of the Labor Arbitration Council may invite the representatives of agencies and organizations concerned and the person who has experience in the area of labor relations at the locality.
The Labor Arbitration Council conducts the reconciliation of the collective labor disputes as follows:
a) Collective labor disputes on interests;
b) Collective labor dispute occurs at the labor employment units that are not entitled to go on strike under the list regulated by the Government.
The labor arbitration Council makes a decision by majority in the form of secret ballot voting.
The provincial People's Committee shall ensurethe necessary conditionsfor the activities of the laborarbitration Council.
Section 2. AUTHORITY AND ORDER OF PERSONAL LABOR DISPUTE SETTLEMENT
Article 200. Agencies and individuals with the competence to settle individual labor disputes
The labor mediator
The People's Court
Article 201. Mediation order and procedures for labor dispute of the labor mediator
The personal labordispute must be through the mediation procedures of the labor mediator before requiring the Court to settleexcept for thefollowinglabor disputeswithouthaving to go through the mediation procedures:
a) On the labor discipline in the form of dismissal or disputes over the case of unilateral termination of labor contract;
b) Regarding the compensation and allowance upon termination of labor contract;
c) Between the housemaid with the employer;
d) On the social insurance in conformity with the law on social insurance and health insurance as prescribed by the law on health insurance.
dd) Regarding the compensation between the employee and the enterprise, non-business units that send the employee to work overseas under contracts.
Within05 workingdays afterreceiving therequest for mediation, the labormediator must end the mediation.
Atthe mediation meeting, theremust be the presence ofboth disputing parties. The disputing parties mayauthorize the others to jointhe mediation meeting.
The labor mediator shall guide the parties to negotiate. Where the two parties reach agreement, the labor mediator shall make a record of successful mediation.
Where the two parties cannot reach agreement, the labor mediator shall give out a mediatory plan for both parties to consider. Where the two parties accept the mediatory plan, the labor mediator shall make a record of successful mediation.
Where the two parties do not accept the mediatory plan or a disputing party has been duly summoned twice but still absent without plausible reasons, the mediator shall make a record of unsuccessful mediation.
The record shall bear the signatures of both disputing parties and the labor mediator.
Copy of the record of successful mediation or unsuccessful mediation must be sent to both disputing parties within 01 working day from the date of making the record
In case of unsuccessful mediation or eitherparty does not performtheagreements in therecord of successful mediation or the time limit for settlement is over as prescribed in clause 2 of this Article but the labor mediator does not conduct the mediation, each disputing party has the right to request the settlement from the Court.
Article 202. Limitation for request of settlement of personal labor disputes
The limitation to request the labor mediator to perform the mediationof personal labordisputesis 06months from thedate of discoveryof the acts wherebythe disputing parties thinks that theirrightsandlegitimate interestshave been breached.
The limitation to request the court to settleindividual labordisputesis 01years from thedate of discoveryof the act wherebythe disputing parties thinks that theirrightsandlegitimate interestshave been breached.
Section 3. COMPETENCE AND ORDER FOR SETTLEMENT OF COLLECTIVE LABOR DISPUTES
Article 203. Agencies, organizations and individuals with the competence to settle the collective labor disputes
The agencies, organizations and individuals with the competence to settle the collective labor disputes including:
a) Labor mediator;
b) Chairman of the People's Committees of districts, towns and provincial cities (hereinafter referred to as chairman of the district-level People’s Committee).
c) People’s Court.
The agencies, organizations and individuals with the competence to settle the the collective labor disputes with respect to interests including:
a) Labor mediator;
b) Labor arbitration Council.
Article 204. Order of settlement of collective labor dispute at the grassroots level
The order of settlement of collective labor dispute at the grassroots level is executed as prescribed in the Article 201 of this Code. The record of mediation must specify the type of collective labor dispute.
In caseof unsuccessful mediationor eitherparty fails to performtheagreements in the record of mediation, thefollowing provisions shall apply:
a) For the collective labor disputes on the rights, the parties have the right to request the Chairman of district-level People’s Committee for settlement;
b) For the collective labor disputes on the interests, the parties have the right to request the labor arbitration Council for settlement;
In case the time limit of thesettlement is over as stipulatedin Clause 2 ofArticle 201of this Code but thelabormediator doesnot conduct the mediation, the parties have the right to submit petition tothe district-level People’s Committee Chairman for settlement.
Within 02 working days after receiving the request for settlement of collective labor disputes, the Chairman of district-level People’s Committee shall determine the type of dispute of about the rights or interests
In case of collective labor dispute on the rights, the settlement shall be performed as stipulated in clause 2 of this Article and Article 205 of this Code.
In case of collective labor dispute on the interests, the parties requesting the settlement of dispute shall be guided immediately under the provisions in point b, clause 2 of this Article.
Article 206. Settlement of collective labor disputes on the rights of the Chairman of district Peoples’ Committee.
Within05 workingdays afterreceipt ofrequest application for settlementof collective labordisputesonthe rights, the chairman district-level People's Committees shall have tosettle the labor disputes.
Atthe meeting to settle thelabor disputes,there must be the representatives ofboth disputing parties. Innecessary cases, theChairman ofdistrict-level People's Committee shall invite therepresentatives of the agenciesand organizationsconcernedto attend the meeting.
The Chairman of district-level People's Committee shall rely on the law on labor, collective labor agreement and the labor rule registered and the other legal regulations and agreements for consideration and settlement of labor disputes.
In the eventthe partiesdo not agreewith the decisionof Chairman ofdistrict-level People's Committee or ifthe deadline is over but the Chairman ofdistrict-level People's Committee does not settle, the parties have the right requestthe settlement from the Court.
Article 206. Settlement of collective labor disputes on the interests of the labor arbitration Council
Within07 workingdays afterreceiving theapplication for settlement request, the laborarbitration councilmust finishthemediation.
At the meeting of thelaborarbitration council, there must be therepresentativesofboth parties. In necessary case, the Labor ArbitrationCouncilshall invite therepresentatives of agencies, organizations and individualsconcernedto attend the meeting.
The Labor Arbitration Council shall assist the parties to negotiate themselves, where the two parties fail to negotiate; the labor arbitration council shall offer a plan for both parties to consider.
In case the two parties reach agreement or accept the mediation plan, the labor arbitration Council shall make a record of successful mediation at the same time make a decision on recognizing the agreement of the parties.
In case the two parties fail to reach agreement or a disputing party has been duly summoned for the second time but still absent without plausible reason, the labor arbitration Council shall make a record of unsuccessful mediation
The record has the signatures of the present parties, the Chairman and secretary of the labor arbitration council.
The copy of record of successful mediation or unsuccessful mediation must be sent to both disputing parties within 01 working day from the date of making record.
Aftera period of 05days from thedatethe Labor ArbitrationCouncilsets up the recordof successful mediation butone of the partiesdoes not execute the agreement that has been reached, the labor collectivehasthe right to conduct the proceduresto go on strike.
In case the Labor Arbitration Council sets up the record of unsuccessful mediation, after a period of 03 days, the labor collective has the right to conduct the procedures to go on strike.
Article 207. Limitation of request for the settlement of collective labor dispute on the rights
The limitation of request for the settlement of collective labor dispute on the rights is 01 year from the date of discovery of the acts that the disputing parties think that their rights and interests are breached.
Article 208. Prohibiting unilateral action while the collective labor disputes under settlement
When the collective labor disputes are being settled by the competent agencies, organizations and individuals within the time limit prescribed by this Code, neither party has the right to take unilateral action against the other.
Section 4. STRIKE AND SETTLEMENT OF STRIKE
Article 209. Strike
The strikeisthe temporary, voluntary and organizational stopping of work of the labor collective in order tomeet the requirementsinthe process of settlement oflabor disputes.
Thestrike is only conductedforthe collective labordisputeson the interests andafterthe time limit prescribedin Clause 3, Article 206of this Code.
Article 210. Organization and leadership of strike
Where there is not grassroots trade union, strike must be organized and led by the the grassroots trade unionexecutive committee.
Where there is not grassroots trade union, strike must be organized and led by the the superior trade unionorganization at the request of the employee.
Article 211. Strike order
Gathering opinion of the labor collective
Making a decision on strike
Article 212. Procedures for gathering opinion of the labor collective
For a labor collectivewith the grassroots trade union organization, gather the opinions from the member of the grassroots trade unionexecutive committee and the heads of production teams. Where there is not grassroots trade union, gather the opinions of the heads of production teams or of the employee.
The organization ofopinion gatheringmay bemade bycard orsignature.
Content of opinion gathering for strike including:
a) The plan of the trade union executive committee on the contents prescribed at Points b, c and d, Clause 2 of Article 213 of this Code;
b) Opinionsof employees on the agreementor disagreement with the
The time and form of opinion gatheringfor strike shall be decidedbythe trade union executive committee and must be announced to theemployerthereof at least01 days.
Article 213. Notice the starting time for the strike
When there is more than50% of the people gathered their opinions agree withthe planof the unionexecutive Committee, the trade union executive committee shall make a decision on strike in writing.
The decision on strike must have the following contents:
a) Result of opinion gathering on strike;
b) Starting time and place for the strike;
c) Scope of strike conducting;
d) Request of labor collective;
dd)ull name of the representative of the union executive Committee.
At least05 working daysprior to the starting day ofthe strike,the trade union executive committee shall sendthe strike decisionto theemployer, at the same time send01 copy tothe provincial State managementagencieson labor, 01 copy to theprovincial trade union.
At the time thestrikestarts, if theemployerdoes notaccept to settle the requirements of the labor collective, the trade union executive committee shall organize and lead the strike.
Article 214. Rights of the parties before and in the course of strike
To keep on agreementto settlethe contentsof collective labordisputesor jointly requestthe State managementagencyon labor,trade union organization and representative organization of the employer at provincial level to conduct the mediation.
The trade union executive committee has the following rights:
a) To withdraw the decision on strike if strike has not conducted yet or stop the strike if it is underway;
b) To require the Court to declare the strike is legitimate
The employer has the following rights
a) To accept the whole or a part of the requirements and give notice in writing to the Trade Union Executive Committee of union organizing, leading strikes;
b) To temporarily close the workplace during the strike due to ineligible to maintain the normal operation or to protect property;
c) To request the Court to declare the strike illegal.
Article 215. Cases of illegal strike
Not to arise from the collective labor disputes on the interests
To organize for the employees who do not work for the same employer to go on strike.
When the collective labor disputes have not been or are being settled by the agencies, organization and individual as prescribed by this Code
To be conducted at enterprises that are not entitled to go on strike under the list prescribed by the Government.
When there is a decision to delay or stop going on strike.
Article 216. Announcing decision on temporary closure of the workplace
At least 03 working days before the temporary closure of the workplace, the employer shall publicly posted the decision on temporary closure of the workplace and announce to the following agencies and organization:
The trade union executive committee organizing and leading the strike;
Provincial-level trade union;
The representative organization of the employer;
The State management agency on labor;
The district-level People’s Committee where the head office located.
Article 217. Cases of prohibiting the temporary closure at the workplace
Before12 hours from thetime ofthe strike specified in the decisionon strike.
After the labor collective stop the strike.
Article 218. Salary and other legal interests of the employee during the strike.
The employee who does not participate in the strike but has to stopworking because ofstrike is paid for the stop of workingas prescribedin Clause 2, Article 98of this Codeandother interestsunder the provisions oflaborlaw.
The employee who takes part in the strike shall not be paid and other interests as prescribed by the law, unless otherwise agreed by both parties.
Article 219. Acts prohibited before, during and after the strike
To hinderthe implementation ofthe right to strikeorincite, induce or coerce the employee to go onstrike;preventthe employee who does not take part inthe strike from going to work.
To use violence;destroy machinery, equipmentand property oftheemployer.
To infringe the public order and safety
To terminate the labor contractor handle the labor discipline to theemployee,the strike leader, or appoint the employee and the strike leader toperform another job or go to work at other places because of strike preparation orstrike participation.
To retaliate and revenge the employee for participating in the strike and the person leading the strike.
To take advantage of the striketo commit other acts ofviolationsof the law.
Article 220. Prohibited cases of strike
Strikes are prohibited at the units using employee and essentially operating to the national economy because the strike may threaten the security, national defense, health and public order under the list issued by the Government.
The State managementagenciesmust periodicallylisten the opinions of the labor collectiveandtheemployerto assistand resolve thelegitimate requirementsof thelabor collective in a timely manner.
Article 221. Decision on postponement and stop of strike
When considering thatthe strikemay causeserious damageto the nationaleconomy and the public interest, the Chairman of the provincial People's Committee shall decide to postponeorstop the strikeand ask for settlement from the competent state agencies and authorities
The Government stipulates the postponement and stop of strike and settlement of interest of the labor collective
Article 222. Handling the strike with improper order and procedures
The Chairman ofprovincial People's Committee shall make a decision on declaring the strike has breachedthe order and procedures and immediately notify theChairman ofdistrict-level People's Committee asthe organizationandleading of the strikedo notcomplywith the Article212 andArticle 213of this Code.
Within 12hoursafterreceiving noticeof the Chairman ofprovincial People's Committee, the Chairman of district-level People's Committees shall preside over and coordinate withthe State managementagencyon labor andtrade union at the same leveland other agenciesand organizationsdirectlyconcernedto meet with theemployerand the grassrootstrade union executivecommitteeor the superior trade uniontohearthe parties’ opinions andsupport them to find themeasures for settlement and put the operation of production and business back to normalcondition.
Section 5. COURT’S CONSIDERATION OF LEGALITY OF THE STRIKE
Article 223. Requesting the Court to consider the legality of the strike
During the strike or in the period of 03 months, from the date of termination of the strike, each party has the right to submit petitions to the Court to request the consideration of legality of the strike.
The petition must have the following main contents:
a) Date, month, year of the petition;
b) Name of the Court receiving petition;
c) Name and address of the requesting party;
d) Name and address of the organization leading the strike;
dd) Name and address of the employer where the labor collective go on strike;
e) Content to request the Court’s settlement;
g) Other information that the requesting party deem necessary for the settlement.
The requesting party must send together with the petition the copies of strike decision, decision or the record of mediation of the competent agencies and organizations to settle the collective labor dispute, materials and evidence related to the consideration of the legality of the strike.
Article 224. Procedures for submitting petition to request the Court’s consideration of the legality of the strike
Procedures for petition submission, receipt, obligation to provide materials and evidence for the consideration and decision on the legality of the strike at the Court are made similarly to the procedures for petition submission, receipt; obligation to provide materials under the provisions of the Code of civil procedure.
Article 225. Competence to consider the legality of the strike
The provincialPeople's Courtwherethe strike takes placehas jurisdiction to considerthe legalityof the strike
The Supreme People'sCourthasjurisdictiontosettle the complaintsaboutthe legality ofthe strike.
Article 226. Members of the legality consideration Council of the strike
The legality consideration Council of the strike consists of three judges
The Councilto settle complaintsagainst the decisionson the legalityof the strike, including three judges appointed by the Chief JusticeSupremePeople's Court.
The change of judge as a member of the legality consideration Council of the strike is carried out under the provisions of the Code of civil procedure.
Article 227. Procedures for settlement of the petition to request the consideration of the strike.
Immediately after receivingthe petition, the Tribunal President of the provincial People's Court shall decide to establish a Council to considerthe legality or illegalityof the strikeand assigna judge topreside overthe resolution ofthe petition.
Within05 workingdays from the date of receiving the petition, the judge assigned topreside overthe resolution ofthe petitionmust makeadecisionto put the legalityof the strikeinto consideration.The decision to open a meeting to considerthe legalityof the strikemustbe sent to the Trade Union Executive Committee, the employer, agenciesand organizationsconcerned.
Within05 workingdays from the date of makingthe decisionto considerthe legalityof the strike, the legality consideration Council of the strike mustopen themeeting to considerthe legality ofthe strike.
Article 228. Suspending the consideration of the legality of the strike
The Court shall suspend the consideration of the legality of the strike in the following cases:
The requesting party has withdrawn its petition;
Both parties haveagreedwith each otheron the settlementof the strike and submitted petition to request the Court not to carry out the settlement.
Person who submits the requesting petition has beenduly summonedtwicebut is still absent.
Article 229. Persons taking part in the meeting for consideration of the legality of the strike.
The legality consideration Council of the strike shall be chaired by the presiding Judge; the Court’s clerk shall record the minutes of the meeting.
The representative of the labor collective and the employer
The representative of the agencies and organizations on the requirement of the Court
Article 230. Meeting postponement of the legality consideration of the strike
The judgeassigned topreside overa meeting to considerthe legality ofthe strike orthe legality consideration Council has decided to postponea meeting to considerthe legalityof a strikesimilarly to theregulationson adjournment inaccordancewith the law oncivil procedure.
The time limit for the meeting postponement of the legality consideration of the strike shall not exceed 03 working days.
Article 231. Order of the meeting of the legality consideration of the strike
The person presiding over the meeting of the legality consideration of the strike announces the decision on opening the meeting of the legality consideration of the strike and summarize the content of the petition.
The representative of the labor collective and the employershall presenttheir opinions.
The person presiding over the meeting of the legality consideration of the strikemay requestrepresentatives of the agenciesand organizations attending the meeting to express their opinions.
The legality consideration Council of the strike shall discuss and make a decision by majority.
Article 232. Decision on the legality of the strike
The Court’s decision on the legality of the strike must specify the reason and the grounds for the conclusion of the legality of the strike.
The Court’s decision on the legality of the strike must be announced publicly at the court and sent to the union executive Committee and the employer, the People's Procuracy of the same level. The labor collective and the employer shall execute the decision of the court but may lodge a complaint under the procedures prescribed by this Code.
Afterthe court'sdecisionon the legalityof the strikeis announced,ifthe strike isillegal, theemployee on strikemust stopthe strikeandget back to work.
Article 233. Violation handling
Whenthe court has decided thatthe strikewas illegal, but the employeedoes notend the strike and get back to work, depending on the seriousness of the violation, theymay bedisciplinedin accordance withthe regulation on laborlaw.
In case the strike is illegal, which causes damage to the employer, the union organization leading the strike must make compensation as prescribed by law.
The person who take advantage of a strike to disruptpublic order, damaging machinery, equipmentand property oftheemployer; the person whocommit acts ofobstructing the exercise ofthe right to strike, agitating, inducing, coercing the employee tostrike; the person who has acts of retaliation and revenge of the employee taking part in the strike and the person leading the strike, depending on the seriousnessof their violations, they canbe handledfor administrative violationsor prosecutedfor criminal liability, if causing damage, they must makecompensationas prescribedby law.
Article 234. Order and procedures for settlement of complaint about the decision on the legality of the strike
Within 15days from thedate ofreceipt of the decisionon the legalityof the strike, the trade unionexecutive committee and theemployermay senda complaint tothe Supreme People'sCourt.
Immediately after receiving thecomplaint about the decisionon the legalityof the strike, the Supreme People'sCourtmust send a writtenrequest to the Court that has consideredthe legality ofthe strike to transferthe case dossier for review and settlement.
Within03 workingdays afterreceipt of the writtenrequest, the Court that issued a decisionon the legalityof the strikemust transferthe case dossier tothe Supreme People'sCourtfor review and settlement.
Within05 workingdays afterreceipt ofthe dossier for the legality consideration of the strike, the Council shall resolvethe complaintabout the decisionon the legalityof the strike.
The decision of the Supreme People's Court is the final decision on the legality of the strike
LABOR STATE MANAGEMENT
Article 235. Content of labor state management
The labor state management includes the following contents:
Issuing and organizing the implementation of the legal normative documents on labor;
Monitoring, making statistics and providing informationaboutsupply and demandand laborsupply and demandvolatility; making decision on policies, planning, human resourceplanning, job training, skillsdevelopment, building of the frame of thenational vocational level, distribution and use ofsocialemployees. Specifying thelist of the trades that only employ theemployees who have beentrained the trade or have the certificate of national vocational skills;
Organizing andconductingscientific researchon labor, statistics, information on labor andlabor market, living standardsand incomes ofthe employees;
Developing the mechanisms andinstitutions tosupport the developmentof the harmonious, stable and progressive laborrelations;
Inspecting,examining and settlingcomplaintsand denunciations andhandling legal violations onlabor; settling labordisputesin accordance withthelaw;
Implementing the international cooperation on labor
Article 236. State management competence on labor
The Government has unified the State managementover the laborinthe country.
The Ministry of Labor- Invalidsand Social Affairsis responsible before the Government forimplementation of the State managementover labor.
The Ministries, ministerial-level agencies to the extent of their duties and power shall implement and coordinate with the Ministry of Labor - Invalids and Social Affairs in the State management over the labor.
The People's Committees atall levels shall implement the State managementover the laborintheirrespective localities.
INSPECTION OF LABOR AND SANCTION OF LEGAL VIOLATION ON LABOR
The inspector Ministry of Labor - Invalids and Social Affairs and the inspector of Service of Labor - Invalids and Social Affairs have the following main tasks:
Inspecting the compliance of provisions of the law on labor;
Investigating occupational accidents and violations on labor safety and hygiene;
Making guidance on the application of the the system of technical standards and regulations on labor conditions, labor safety and hygiene;
Settling complaints and denunciation on labor as prescribed by the law;
Handlingunder the competenceand requesting the competentagenciesto handleviolationsof laborlaws.
Article 238. Labor inspection
The inspector Ministry of Labor- Invalidsand Social Affairs and the inspector of Service of Labor -Invalidsand Social Affairs shall execute the specialized inspection function on labor.
The inspection oflabor safety and hygieneintheareaof radioactivity, exploration, oil and gas extraction, means of railway, waterway, road and air transportation andotherunits of the armed forces shall be implemented bythestate managementagencyin that area in cooperation with thespecialized inspectionon labor.
Those who have acts of violation of the provisions of this Code, depending on the nature and seriousness of their violations, they shall be disciplined, and administratively sanctioned or prosecuted for criminal liability; if causing damage they must make compensation as prescribed by law.
Article 240. Effect of the Labor Code
This Code shall take effectfrom 01May2013.
The Labor Code dated 23 June 1994, the Law amending and supplementing a number of articles of the Labor Code No. 35/2002/QH10, the Law amending and supplementing a number of the Labor Code No. 74/2006 / QH11 and the Law amending and supplementing a number of articles of the Labor Code No. 84/2007/QH11 that shall be expired from the date this Code takes effect.
From the date this Code takes effect:
a) The labor contracts, collective labor agreements, other legal agreements already concluded and the agreements more favorable to the employee than the provisions of this Code shall continue to be performed; the agreements inconsistent with the provisions of the Code must be amended and supplemented;
b) The stipulation on the time of enjoyment of the policies when giving birth in the Social Insurance Law 71/2006/QH11 shall comply with the provisions of this Code.
The female employee on maternity leave before the effective date of this Code, is still in the time of maternity leave to May 1, 2013 as prescribed in the Law on social insurance No. 71/2006/QH11, the time of enjoyment of the policies when giving birth complies with the provisions of this Code.
The labor regimeforcadres, civilservants, officer and the person in thearmed forcesofthe People's Army, People’s public security and othersocial organizationsandcooperativemembers stipulated by the otherlegaldocumentsbutdepending onthe object, a number of provisionsin this Code shall be applied. The Government has issued the specific salary policiesapplicable tocadres, civilservants, officer and the person in thearmed forcesofthe People's Army and People’s public security.
Article 241. Effect for areas where less than 10 employees employed
The employer who employs less than 10 employees must implement the provisions of this Code, but is reduced and exempted a number of standards and procedures prescribed by the Government.
Article 242. Detailed regulations and guidance of execution
The Government and the competent authorities shall stipulate in detail and make guidance of the implementation of articles and clauses in the Code.
This Code is adopted by the National Assembly of the Socialist Republic of Vietnam, term XIII, 3rd session on June 18, 2012.
CHAIRMAN OF NATIONAL ASSEMBLY