CHAPTER 1 ................................................................................................................................................................... 1General Provisions ......................................................................................................................................................... 1Article 1 Governing scope................................................................................................................................... 1Article 2 Applicable entities ................................................................................................................................ 1Article 3 Interpretation of terms.......................................................................................................................... 1Article 4 State''''s policy on labour ........................................................................................................................ 2Article 5 Rights and obligations of employees .................................................................................................... 3Article 6 Rights and obligations of employers .................................................................................................... 3Article 7 Labour relationship .............................................................................................................................. 4Article 8 Conduct which is strictly prohibited..................................................................................................... 4CHAPTER 2 ................................................................................................................................................................... 5Employment.................................................................................................................................................................... 5Article 9 Employment and finding jobs............................................................................................................ 5Article 10 Right of workers to work .................................................................................................................. 5Article 11 Right of employers to recruit labour ................................................................................................ 5Article 12 State policy on employment .............................................................................................................. 5Article 13 Employment programs ..................................................................................................................... 5Article 14 Employment services organizations ................................................................................................. 6CHAPTER 3 ................................................................................................................................................................... 6Labour Contracts ........................................................................................................................................................... 6Section 1 ....................................................................................................................................................................... 6Signing Labour Contracts ............................................................................................................................................ 6Article 15 Labour contracts .............................................................................................................................. 6Article 16 Forms of labour contract ................................................................................................................. 6Article 17 Principles for signing labour contracts............................................................................................ 6Article 18 Responsibility to sign labour contracts ............................................................................................ 7Article 19 Responsibility to provide information before signing a labour contract.......................................... 7Article 20 Prohibited conduct by an employer when signing and performing a labour contract ..................... 7Article 21 Entering into multiple labour contracts with multiple employers .................................................... 7Article 22 Types of labour contract................................................................................................................... 7Article 23 Contents of labour contracts ............................................................................................................ 8Article 24 Addenda to labour contracts ............................................................................................................ 9Article 25 Effectiveness of a labour contract .................................................................................................... 9Article 26 Probationary period of work ............................................................................................................ 9Article 27 Duration of probationary period ...................................................................................................... 9Article 28 Wage during probationary period .................................................................................................. 10 Article 29 Termination of probationary period............................................................................................... 10Section 2 ..................................................................................................................................................................... 10Performance of Labour Contracts ............................................................................................................................. 10Article 30 Performing work pursuant to a labour contract............................................................................. 10Article 31 Assigning employee to do other work different from the labour contract ...................................... 10Article 32 Cases in which suspension of performance of a labour contract is permitted ............................... 10Article 33 Responsibility to receive the employee back to work on expiry of suspension of performance of labour contract ............................................................................................................................... 11Article 34 Employees working part-time......................................................................................................... 11Section 3 ..................................................................................................................................................................... 11Amending, Supplementing and Terminating Labour Contracts ................................................................................. 11Article 35 Amending and supplementing labour contracts ............................................................................. 11Article 36 Circumstances in which labour contract is terminated .................................................................. 11Article 37 Circumstances in which an employee has the right to unilaterally terminate the labour contract 12Article 38 Circumstances in which an employer has the right to unilaterally terminate the labour contract 13Article 39 Circumstances in which an employer is not permitted to unilaterally terminate a labour contract........................................................................................................................................................ 14Article 40 Rescission of unilateral termination of labour contract ................................................................. 14Article 41 Illegal unilateral termination of labour contract ........................................................................... 14Article 42 Obligations of employer who unilaterally terminates a labour contract illegally ......................... 14Article 43 Obligations of employee who unilaterally terminates a labour contract illegally ......................... 15Article 44 Obligations of employer in cases of restructuring, change of technology, or [changes for]economic reasons ........................................................................................................................... 15Article 45 Obligations of employer upon merger, consolidation, division or separation of an enterprise orco-operative.................................................................................................................................... 15Article 46 Labour usage plan.......................................................................................................................... 15Article 47 Responsibilities of employers who terminate labour contracts ...................................................... 16Article 48 Severance allowance on retrenchment ........................................................................................... 16Article 49 Severance allowance for job loss ................................................................................................... 16Section 4 ..................................................................................................................................................................... 17Invalid Labour Contracts ........................................................................................................................................... 17Article 50 Invalid labour contract................................................................................................................... 17Article 51 Authority to declare a labour contract invalid ............................................................................... 17Article 52 Dealing with invalid labour contracts............................................................................................ 17Section 5 ..................................................................................................................................................................... 18Labour Outsourcing ................................................................................................................................................... 18Article 53 Labour outsourcing [or sub-leasing] ............................................................................................. 18Article 54 Labour outsourcing enterprises ..................................................................................................... 18Article 55 Labour sublease contract ............................................................................................................... 18Article 56 Rights and obligations of labour outsourcing enterprises.............................................................. 19Article 57 Rights and obligations of sub-leasing employers ........................................................................... 19Article 58 Rights and obligations of sub-leased employees ............................................................................ 20CHAPTER 4 ................................................................................................................................................................. 20Apprenticeship, Providing Training, and Fostering Improvement of Job and Professional Skills ...................... 20Article 59 Apprenticeship and providing trade training ................................................................................. 20Article 60 Responsibilities of employers to provide training, to foster and improve job and professional skills........................................................................................................................................................ 20 Article 61 Apprenticeship and practical training in order to work for an employer ...................................... 20Article 62 Trade training contract between employer and employee and training fees.................................. 21CHAPTER 5 ................................................................................................................................................................. 22Discussion at Workplaces, Collective Bargaining, and Collective Labour Agreements ........................................ 22Section 1 ..................................................................................................................................................................... 22Discussion at Workplaces .......................................................................................................................................... 22Article 63 Objectives and form of discussion at workplaces........................................................................... 22Article 64 Contents of discussion at workplaces ............................................................................................. 22Article 65 Conducting discussion at workplace .............................................................................................. 22Section 2 ..................................................................................................................................................................... 23Collective Bargaining ................................................................................................................................................ 23Article 66 Objective of collective bargaining.................................................................................................. 23Article 67 Principles for collective bargaining ............................................................................................... 23Article 68 Right to require collective bargaining............................................................................................ 23Article 69 Representation at collective bargaining......................................................................................... 23Article 70 Matters subject to collective bargaining ........................................................................................ 24Article 71 Collective bargaining process ........................................................................................................ 24Article 72 Responsibilities during collective bargaining of the trade union, of the organization representing the employer, and of the State administrative body for labour....................................................... 25Section 3 ..................................................................................................................................................................... 25Collective Labour Agreement..................................................................................................................................... 25Article 73 Collective labour agreement ........................................................................................................... 25Article 74 Signing a collective labour agreement ........................................................................................... 25Article 75 Sending copies of a collective agreement to State administrative bodies....................................... 26Article 76 Effective date of collective labour agreement ................................................................................ 26Article 77 Amendments and additions to collective labour agreement ........................................................... 26Article 78 Invalid collective labour agreement ............................................................................................... 26Article 79 Authority to declare a collective labour agreement invalid ........................................................... 26Article 80 Dealing with an invalid collective labour agreement..................................................................... 27Article 81 Expiry of collective labour agreement............................................................................................ 27Article 82 Expenses for collective bargaining and for signing collective labour agreement.......................... 27Section 4 ..................................................................................................................................................................... 27Enterprise Collective Labour Agreement ................................................................................................................... 27Article 83 Signing an enterprise collective labour agreement ........................................................................ 27Article 84 Implementation of enterprise collective labour agreement ............................................................ 27Article 85 Duration of enterprise collective labour agreement ...................................................................... 28Article 86 Implementation of collective labour agreement when an enterprise transfers ownership of, right to manage or right to use the enterprise, or merges, consolidates, divides or separates ................... 28Section 5 ..................................................................................................................................................................... 28Industry Collective Labour Agreement ...................................................................................................................... 28Article 87 Signing an industry collective labour agreement ........................................................................... 28Article 88 Relationship between enterprise collective labour agreement and industry collective labour agreement ....................................................................................................................................... 28Article 89 Duration of industry collective labour agreement.......................................................................... 29CHAPTER 6 ................................................................................................................................................................. 29 Wages ............................................................................................................................................................................ 29Article 90 Wages ............................................................................................................................................. 29Article 91 Minimum wage rate........................................................................................................................ 29Article 92 National Wage Council .................................................................................................................. 30Article 93 Formulation of wage scales, wage tables and labour rates ........................................................... 30Article 94 Method of payment of wages .......................................................................................................... 30Article 95 Periodic payment of wages............................................................................................................. 30Article 96 Principles for payment of wages .................................................................................................... 30Article 97 Wages for working overtime and for night work ............................................................................ 31Article 98 Wages on ceasing work .................................................................................................................. 31Article 99 Payment of wages by [contractor''''s] foreman................................................................................. 31Article 100 Payment of wages in advance......................................................................................................... 32Article 101 Deducting sums from wages ........................................................................................................... 32Article 102 Regime on allowances, subsidies, promotion and wage increases................................................. 32Article 103 Bonuses .......................................................................................................................................... 32CHAPTER 7 ................................................................................................................................................................. 32Working Hours and Rest Breaks ................................................................................................................................ 32Section 1 ..................................................................................................................................................................... 32Working Hours ........................................................................................................................................................... 32Article 104 Normal working hours.................................................................................................................... 32Article 105 Night working hours ....................................................................................................................... 33Article 106 Additional working hours [overtime] ............................................................................................. 33Article 107 Additional working hours [overtime] in special cases ................................................................... 33Section 2 ..................................................................................................................................................................... 34Rest Breaks................................................................................................................................................................. 34Article 108 Rest breaks during working periods ............................................................................................... 34Article 109 Rest breaks in order to transfer between shifts .............................................................................. 34Article 110 Weekly days off ............................................................................................................................... 34Article 111 Annual leave ................................................................................................................................... 34Article 112 Additional leave according to years of employment....................................................................... 35Article 113 Payment of wages in advance and travelling expenses for annual leave ....................................... 35Article 114 Payment of wages for leave not taken ............................................................................................ 35Section 3 ..................................................................................................................................................................... 35Festivals [Public Holidays], Personal Leave of Absence and Leave without Pay ..................................................... 35Article 115 Festivals [public holidays] and New Year ..................................................................................... 35Article 116 Personal leave of absence and leave without pay .......................................................................... 36Section 4 ..................................................................................................................................................................... 36Working hours and Rest Breaks for Workers on Jobs of a Special Nature ................................................................ 36Article 117 Working hours and rest breaks for workers on jobs of a special nature ........................................ 36CHAPTER 8 ................................................................................................................................................................. 36Labour Discipline and Liability for Damage ............................................................................................................. 36Section 1 ..................................................................................................................................................................... 36Labour Discipline....................................................................................................................................................... 36 Article 118 Labour discipline............................................................................................................................ 36Article 119 Internal labour rules ...................................................................................................................... 37Article 120 Registration of internal labour rules .............................................................................................. 37Article 121 File for registration of internal labour rules .................................................................................. 37Article 122 Effective date of internal labour rules ............................................................................................ 37Article 123 Principles and sequence for dealing with breach of labour discipline........................................... 38Article 124 Limitation period for dealing with breach of labour discipline ..................................................... 38Article 125 Forms of dealing with breach of labour discipline ........................................................................ 39Article 126 Application of dismissal as a form of dealing with breach of labour discipline ............................ 39Article 127 Automatic clearance, and reduction of term of compliance with a labour disciplinary decision .. 39Article 128 Prohibited conduct when dealing with breach of labour discipline ............................................... 40Article 129 Temporary suspension of work....................................................................................................... 40Section 2 ..................................................................................................................................................................... 40Liability for Material Loss ......................................................................................................................................... 40Article 130 Payment of compensation for loss and damage ............................................................................. 40Article 131 Principles, sequence and procedures for ordering payment of compensation for loss and damage41Article 132 Complaints about labour discipline and about liability for loss and damage................................ 41CHAPTER 9 ................................................................................................................................................................. 41Occupational Safety and Hygiene ............................................................................................................................... 41Section 1 ..................................................................................................................................................................... 41General Provisions on Occupational Safety and Hygiene ......................................................................................... 41Article 133 Compliance with law on occupational safety and hygiene............................................................. 41Article 134 State''''s policy on occupational safety and hygiene.......................................................................... 41Article 135 Program on occupational safety and hygiene ................................................................................ 41Article 136 National technical regulations on occupational safety and hygiene .............................................. 41Article 137 Ensuring occupational safety and hygiene in the workplace ......................................................... 42Article 138 Obligations of employers and employees for occupational safety and hygiene work .................... 42Section 2 ..................................................................................................................................................................... 43Work-Related Accidents and Occupational Disease .................................................................................................. 43Article 139 Person conducting occupational safety and hygiene work............................................................. 43Article 140 Dealing with incidents and emergency rescue ............................................................................... 43Article 141 Allowance in kind to employees working in a dangerous or toxic environment............................. 43Article 142 Work-related accidents................................................................................................................... 43Article 143 Occupational disease ..................................................................................................................... 44Article 144 Responsibilities of employers owed to employees who contract an occupational disease or are injured in a work-related accident ................................................................................................. 44Article 145 Rights of employees injured in a work-related accident or who contract an occupational disease44Article 146 Conduct which is prohibited in the occupational safety and hygiene sector.................................. 45Section 3 ..................................................................................................................................................................... 45Prevention of Work-Related Accidents and Occupational Disease ........................................................................... 45Article 147 Testing and verification of machinery, equipment and materials with strict requirements for occupational safety......................................................................................................................... 45Article 148 Plan on occupational safety and hygiene ....................................................................................... 45Article 149 Personal protective facilities for workers ...................................................................................... 45Article 150 Training on occupational safety and hygiene................................................................................. 46Article 151 Information about occupational safety and hygiene ...................................................................... 46 Article 152 Health care for employees.............................................................................................................. 46CHAPTER 10 ............................................................................................................................................................... 47Separate Provisions on Female Employees ................................................................................................................ 47Article 153 State policies on female employees ................................................................................................ 47Article 154 Obligations of employers owed to female employees ..................................................................... 47Article 155 Protecting pregnancy of female employees .................................................................................... 47Article 156 Right of pregnant employees to unilaterally terminate or postpone performance of labour contract........................................................................................................................................................ 48Article 157 Maternity leave............................................................................................................................... 48Article 158 Guaranteeing jobs of female employees on maternity leave .......................................................... 49Article 159 Subsidies when taking leave to care for a sick child, to attend a pregnancy examination, or tocarry out family planning programs............................................................................................... 49Article 160 Work which must not be assigned to female employees ................................................................. 49CHAPTER 11 ............................................................................................................................................................... 49Separate Provisions on Junior Workers and a Number of Other Classes of Workers .......................................... 49Section 1 ..................................................................................................................................................................... 49Junior Workers........................................................................................................................................................... 49Article 161 Junior workers................................................................................................................................ 49Article 162 Employment of junior workers ....................................................................................................... 49Article 163 Principles for employing junior workers ........................................................................................ 49Article 164 Employment of workers under the age of fifteen (15) years ........................................................... 50Article 165 Prohibited jobs and prohibited workplaces in the case of junior employees ................................. 50Section 2 ..................................................................................................................................................................... 51Senior Workers........................................................................................................................................................... 51Article 166 Senior workers................................................................................................................................ 51Article 167 Employment of senior workers ....................................................................................................... 51Section 3 ..................................................................................................................................................................... 52Vietnamese Working Abroad, Labour for Foreign Organizations or Individuals in Vietnam, Foreign EmployeesWorking in Vietnam.................................................................................................................................................... 52Article 168 Vietnamese working abroad, and Vietnamese working for foreign organizations and individuals inVietnam .......................................................................................................................................... 52Article 169 Conditions for foreign citizens to work in Vietnam ........................................................................ 52Article 170 Conditions for recruiting workers being foreign citizens ............................................................... 52Article 171 Work permits for foreigners working in Vietnam ........................................................................... 53Article 172 Foreign citizens working in Vietnam not required to have work permits....................................... 53Article 173 Valid duration of work permits....................................................................................................... 53Article 174 Circumstances in which validity of work permit expires ................................................................ 53Article 175 Issuance, re-issuance and withdrawal of work permits.................................................................. 54Section 4 ..................................................................................................................................................................... 54Disabled Workers ....................................................................................................................................................... 54Article 176 State policies on disabled workers ................................................................................................. 54Article 177 Employment of disabled persons .................................................................................................... 54Article 178 Prohibited conduct when employing disabled workers .................................................................. 54Section 5 ..................................................................................................................................................................... 55 Workers being Domestic Servants.............................................................................................................................. 55Article 179 Domestic servants........................................................................................................................... 55Article 180 Labour contracts of domestic servants ........................................................................................... 55Article 181 Obligations of employers owed to domestic servants ..................................................................... 55Article 182 Obligations of domestic servants.................................................................................................... 55Article 183 Conduct by employers which is strictly prohibited......................................................................... 56Section 6 ..................................................................................................................................................................... 56Other Workers ............................................................................................................................................................ 56Article 184 Employees in the artistic sector, and sports and physical training sector ..................................... 56Article 185 Workers performing home-based work .......................................................................................... 56CHAPTER 12 ............................................................................................................................................................... 56Social Insurance ........................................................................................................................................................... 56Article 186 Participation in social insurance ................................................................................................... 56Article 187 Retirement age................................................................................................................................ 57CHAPTER 13 ............................................................................................................................................................... 57Trade Unions ................................................................................................................................................................ 57Article 188 Role of trade unions in the labour relationship.............................................................................. 57Article 189 Establishing, joining and participating in activities of trade unions at enterprises, agencies and organizations .................................................................................................................................. 57Article 190 Conduct which is strictly prohibited by an employer regarding establishing, joining and participating in trade union activities ............................................................................................ 58Article 191 Rights of grassroots trade union officials in the labour relationship ............................................. 58Article 192 Responsibilities of employers owed to trade unions....................................................................... 58Article 193 Guarantee of operational conditions of trade unions at enterprises, agencies and organizations 59CHAPTER 14 ............................................................................................................................................................... 59Resolution of Labour Disputes .................................................................................................................................... 59Section 1 ..................................................................................................................................................................... 59General Provisions on Resolution of Labour Disputes .............................................................................................. 59Article 194 Principles for resolution of labour disputes ................................................................................... 59Article 195 Responsibilities of agencies, organizations and individuals in resolution of labour disputes ....... 60Article 196 Rights and obligations of the two parties during resolution of a labour dispute ........................... 60Article 197 Rights of agencies, organizations and individuals competent to resolve labour disputes .............. 60Article 198 Labour conciliators ........................................................................................................................ 60Article 199 Labour arbitration councils ........................................................................................................... 61Section 2 ..................................................................................................................................................................... 61Authority and Procedures for Resolution of Individual Labour Disputes.................................................................. 61Article 200 Agencies and individuals authorized to resolve individual labour disputes................................... 61Article 201 Sequence and procedures for resolution of individual labour disputes by labour conciliators ..... 61Article 202 Limitation periods for requesting resolution of an individual labour dispute................................ 62Section 3 ..................................................................................................................................................................... 62Authority and Procedures for Resolution of Collective Labour Disputes .................................................................. 62 Article 203 Agencies, organizations and individuals authorized to resolve collective labour disputes............ 62Article 204 Order for resolution of a collective labour dispute at the grassroots level .................................... 63Article 205 Resolution of a collective labour dispute about rights by the chairman of the district people''''s committee ....................................................................................................................................... 63Article 206 Resolution of a collective labour dispute about benefits by a labour arbitration council.............. 64Article 207 Limitation period for requesting resolution of a collective labour dispute about rights ................ 64Article 208 Prohibition on unilateral acts during the process of resolution of a collective labour dispute ..... 64Section 4 ..................................................................................................................................................................... 65Strikes and Resolution of Strikes ................................................................................................................................ 65Article 209 Strikes ............................................................................................................................................. 65Article 210 Organizing and leading a strike ..................................................................................................... 65Article 211 Sequence for a strike ...................................................................................................................... 65Article 212 Procedures for obtaining opinions from the labour collective ....................................................... 65Article 213 Notification of time of commencement of a strike .......................................................................... 65Article 214 Rights of parties before and during a strike ................................................................................... 66Article 215 Circumstances in which a strike is illegal ...................................................................................... 66Article 216 Notification of decision to temporarily close a workplace ............................................................. 67Article 217 Circumstances in which it is prohibited to temporarily close a workplace.................................... 67Article 218 Wages and other lawful benefits of employees during period of a strike ....................................... 67Article 219 Conduct which is prohibited before, during and after a strike....................................................... 67Article 220 Circumstances in which strikes are prohibited .............................................................................. 68Article 221 Decision staying or suspending a strike ......................................................................................... 68Article 222 Dealing with a strike which does not comply with sequence and procedures ................................ 68Section 5 ..................................................................................................................................................................... 68Strikes and Resolution of Strikes ................................................................................................................................ 68Article 223 Petitioning a court to consider legality of a strike ......................................................................... 68Article 224 Procedures for lodging a petition with a court to consider legality of a strike .............................. 69Article 225 Authority to consider legality of a strike ........................................................................................ 69Article 226 Composition of Council of Adjudicators to consider legality of a strike........................................ 69Article 227 Procedures for resolution of a petition to consider [hear] legality of a strike............................... 69Article 228 Staying consideration of legality of a strike ................................................................................... 69Article 229 Persons [required to] participate in a session hearing legality of a strike .................................... 70Article 230 Stay of a session hearing legality of a strike .................................................................................. 70Article 231 Procedures for a session hearing legality of a strike ..................................................................... 70Article 232 Decision on legality of a strike ....................................................................................................... 70Article 233 Dealing with breaches.................................................................................................................... 71Article 234 Sequence and procedures for resolving a complaint about a decision on legality of a strike ........ 71CHAPTER 15 ............................................................................................................................................................... 71State Administration of Labour .................................................................................................................................. 71Article 235 Contents of State administration of labour..................................................................................... 71Article 236 Authority for State administration of labour .................................................................................. 72CHAPTER 16 ............................................................................................................................................................... 72State Inspection of Labour and Dealing with Breaches of the Law on Labour ...................................................... 72Article 237 Duties of State Labour Inspectorates ............................................................................................. 72Article 238 Labour Inspectorates...................................................................................................................... 72Article 239 Dealing with breaches in the labour sector.................................................................................... 73 CHAPTER 17 ............................................................................................................................................................... 73Implementing Provisions ............................................................................................................................................. 73Article 240 Effectiveness ................................................................................................................................... 73Article 241 Effectiveness in the case of locations employing less than ten employees...................................... 73Article 242 Detailed regulations and guidelines on implementation ................................................................ 74
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LAW 10-2012-QH13 LABOUR CODE Dated 18 June 2012 TABLE OF CONTENTS CHAPTER 1 1
General Provisions 1
Article 1 Governing scope 1
Article 2 Applicable entities 1
Article 3 Interpretation of terms 1
Article 4 State's policy on labour 2
Article 5 Rights and obligations of employees 3
Article 6 Rights and obligations of employers 3
Article 7 Labour relationship 4
Article 8 Conduct which is strictly prohibited 4
CHAPTER 2 5
Employment 5
Article 9 Employment and finding jobs 5
Article 10 Right of workers to work 5
Article 11 Right of employers to recruit labour 5
Article 12 State policy on employment 5
Article 13 Employment programs 5
Article 14 Employment services organizations 6
CHAPTER 3 6
Labour Contracts 6
Section 1 6
Signing Labour Contracts 6
Article 15 Labour contracts 6
Article 16 Forms of labour contract 6
Article 17 Principles for signing labour contracts 6
Article 18 Responsibility to sign labour contracts 7
Article 19 Responsibility to provide information before signing a labour contract 7
Article 20 Prohibited conduct by an employer when signing and performing a labour contract 7
Article 21 Entering into multiple labour contracts with multiple employers 7
Article 22 Types of labour contract 7
Article 23 Contents of labour contracts 8
Article 24 Addenda to labour contracts 9
Article 25 Effectiveness of a labour contract 9
Article 26 Probationary period of work 9
Article 27 Duration of probationary period 9
Article 28 Wage during probationary period 10
Trang 2Article 29 Termination of probationary period 10
Section 2 10
Performance of Labour Contracts 10
Article 30 Performing work pursuant to a labour contract 10
Article 31 Assigning employee to do other work different from the labour contract 10
Article 32 Cases in which suspension of performance of a labour contract is permitted 10
Article 33 Responsibility to receive the employee back to work on expiry of suspension of performance of labour contract 11
Article 34 Employees working part-time 11
Section 3 11
Amending, Supplementing and Terminating Labour Contracts 11
Article 35 Amending and supplementing labour contracts 11
Article 36 Circumstances in which labour contract is terminated 11
Article 37 Circumstances in which an employee has the right to unilaterally terminate the labour contract 12 Article 38 Circumstances in which an employer has the right to unilaterally terminate the labour contract 13 Article 39 Circumstances in which an employer is not permitted to unilaterally terminate a labour contract 14
Article 40 Rescission of unilateral termination of labour contract 14
Article 41 Illegal unilateral termination of labour contract 14
Article 42 Obligations of employer who unilaterally terminates a labour contract illegally 14
Article 43 Obligations of employee who unilaterally terminates a labour contract illegally 15
Article 44 Obligations of employer in cases of restructuring, change of technology, or [changes for] economic reasons 15
Article 45 Obligations of employer upon merger, consolidation, division or separation of an enterprise or co-operative 15
Article 46 Labour usage plan 15
Article 47 Responsibilities of employers who terminate labour contracts 16
Article 48 Severance allowance on retrenchment 16
Article 49 Severance allowance for job loss 16
Section 4 17
Invalid Labour Contracts 17
Article 50 Invalid labour contract 17
Article 51 Authority to declare a labour contract invalid 17
Article 52 Dealing with invalid labour contracts 17
Section 5 18
Labour Outsourcing 18
Article 53 Labour outsourcing [or sub-leasing] 18
Article 54 Labour outsourcing enterprises 18
Article 55 Labour sublease contract 18
Article 56 Rights and obligations of labour outsourcing enterprises 19
Article 57 Rights and obligations of sub-leasing employers 19
Article 58 Rights and obligations of sub-leased employees 20
CHAPTER 4 20
Apprenticeship, Providing Training, and Fostering Improvement of Job and Professional Skills 20
Article 59 Apprenticeship and providing trade training 20
Article 60 Responsibilities of employers to provide training, to foster and improve job and professional skills
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Article 61 Apprenticeship and practical training in order to work for an employer 20
Article 62 Trade training contract between employer and employee and training fees 21
CHAPTER 5 22
Discussion at Workplaces, Collective Bargaining, and Collective Labour Agreements 22
Section 1 22
Discussion at Workplaces 22
Article 63 Objectives and form of discussion at workplaces 22
Article 64 Contents of discussion at workplaces 22
Article 65 Conducting discussion at workplace 22
Section 2 23
Collective Bargaining 23
Article 66 Objective of collective bargaining 23
Article 67 Principles for collective bargaining 23
Article 68 Right to require collective bargaining 23
Article 69 Representation at collective bargaining 23
Article 70 Matters subject to collective bargaining 24
Article 71 Collective bargaining process 24
Article 72 Responsibilities during collective bargaining of the trade union, of the organization representing the employer, and of the State administrative body for labour 25
Section 3 25
Collective Labour Agreement 25
Article 73 Collective labour agreement 25
Article 74 Signing a collective labour agreement 25
Article 75 Sending copies of a collective agreement to State administrative bodies 26
Article 76 Effective date of collective labour agreement 26
Article 77 Amendments and additions to collective labour agreement 26
Article 78 Invalid collective labour agreement 26
Article 79 Authority to declare a collective labour agreement invalid 26
Article 80 Dealing with an invalid collective labour agreement 27
Article 81 Expiry of collective labour agreement 27
Article 82 Expenses for collective bargaining and for signing collective labour agreement 27
Section 4 27
Enterprise Collective Labour Agreement 27
Article 83 Signing an enterprise collective labour agreement 27
Article 84 Implementation of enterprise collective labour agreement 27
Article 85 Duration of enterprise collective labour agreement 28
Article 86 Implementation of collective labour agreement when an enterprise transfers ownership of, right to manage or right to use the enterprise, or merges, consolidates, divides or separates 28
Section 5 28
Industry Collective Labour Agreement 28
Article 87 Signing an industry collective labour agreement 28
Article 88 Relationship between enterprise collective labour agreement and industry collective labour agreement 28
Article 89 Duration of industry collective labour agreement 29
CHAPTER 6 29
Trang 4Wages 29
Article 90 Wages 29
Article 91 Minimum wage rate 29
Article 92 National Wage Council 30
Article 93 Formulation of wage scales, wage tables and labour rates 30
Article 94 Method of payment of wages 30
Article 95 Periodic payment of wages 30
Article 96 Principles for payment of wages 30
Article 97 Wages for working overtime and for night work 31
Article 98 Wages on ceasing work 31
Article 99 Payment of wages by [contractor's] foreman 31
Article 100 Payment of wages in advance 32
Article 101 Deducting sums from wages 32
Article 102 Regime on allowances, subsidies, promotion and wage increases 32
Article 103 Bonuses 32
CHAPTER 7 32
Working Hours and Rest Breaks 32
Section 1 32
Working Hours 32
Article 104 Normal working hours 32
Article 105 Night working hours 33
Article 106 Additional working hours [overtime] 33
Article 107 Additional working hours [overtime] in special cases 33
Section 2 34
Rest Breaks 34
Article 108 Rest breaks during working periods 34
Article 109 Rest breaks in order to transfer between shifts 34
Article 110 Weekly days off 34
Article 111 Annual leave 34
Article 112 Additional leave according to years of employment 35
Article 113 Payment of wages in advance and travelling expenses for annual leave 35
Article 114 Payment of wages for leave not taken 35
Section 3 35
Festivals [Public Holidays], Personal Leave of Absence and Leave without Pay 35
Article 115 Festivals [public holidays] and New Year 35
Article 116 Personal leave of absence and leave without pay 36
Section 4 36
Working hours and Rest Breaks for Workers on Jobs of a Special Nature 36
Article 117 Working hours and rest breaks for workers on jobs of a special nature 36
CHAPTER 8 36
Labour Discipline and Liability for Damage 36
Section 1 36
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Article 118 Labour discipline 36
Article 119 Internal labour rules 37
Article 120 Registration of internal labour rules 37
Article 121 File for registration of internal labour rules 37
Article 122 Effective date of internal labour rules 37
Article 123 Principles and sequence for dealing with breach of labour discipline 38
Article 124 Limitation period for dealing with breach of labour discipline 38
Article 125 Forms of dealing with breach of labour discipline 39
Article 126 Application of dismissal as a form of dealing with breach of labour discipline 39
Article 127 Automatic clearance, and reduction of term of compliance with a labour disciplinary decision 39
Article 128 Prohibited conduct when dealing with breach of labour discipline 40
Article 129 Temporary suspension of work 40
Section 2 40
Liability for Material Loss 40
Article 130 Payment of compensation for loss and damage 40
Article 131 Principles, sequence and procedures for ordering payment of compensation for loss and damage 41 Article 132 Complaints about labour discipline and about liability for loss and damage 41
CHAPTER 9 41
Occupational Safety and Hygiene 41
Section 1 41
General Provisions on Occupational Safety and Hygiene 41
Article 133 Compliance with law on occupational safety and hygiene 41
Article 134 State's policy on occupational safety and hygiene 41
Article 135 Program on occupational safety and hygiene 41
Article 136 National technical regulations on occupational safety and hygiene 41
Article 137 Ensuring occupational safety and hygiene in the workplace 42
Article 138 Obligations of employers and employees for occupational safety and hygiene work 42
Section 2 43
Work-Related Accidents and Occupational Disease 43
Article 139 Person conducting occupational safety and hygiene work 43
Article 140 Dealing with incidents and emergency rescue 43
Article 141 Allowance in kind to employees working in a dangerous or toxic environment 43
Article 142 Work-related accidents 43
Article 143 Occupational disease 44
Article 144 Responsibilities of employers owed to employees who contract an occupational disease or are injured in a work-related accident 44
Article 145 Rights of employees injured in a work-related accident or who contract an occupational disease44 Article 146 Conduct which is prohibited in the occupational safety and hygiene sector 45
Section 3 45
Prevention of Work-Related Accidents and Occupational Disease 45
Article 147 Testing and verification of machinery, equipment and materials with strict requirements for occupational safety 45
Article 148 Plan on occupational safety and hygiene 45
Article 149 Personal protective facilities for workers 45
Article 150 Training on occupational safety and hygiene 46
Article 151 Information about occupational safety and hygiene 46
Trang 6Article 152 Health care for employees 46
CHAPTER 10 47
Separate Provisions on Female Employees 47
Article 153 State policies on female employees 47
Article 154 Obligations of employers owed to female employees 47
Article 155 Protecting pregnancy of female employees 47
Article 156 Right of pregnant employees to unilaterally terminate or postpone performance of labour contract 48
Article 157 Maternity leave 48
Article 158 Guaranteeing jobs of female employees on maternity leave 49
Article 159 Subsidies when taking leave to care for a sick child, to attend a pregnancy examination, or to carry out family planning programs 49
Article 160 Work which must not be assigned to female employees 49
CHAPTER 11 49
Separate Provisions on Junior Workers and a Number of Other Classes of Workers 49
Section 1 49
Junior Workers 49
Article 161 Junior workers 49
Article 162 Employment of junior workers 49
Article 163 Principles for employing junior workers 49
Article 164 Employment of workers under the age of fifteen (15) years 50
Article 165 Prohibited jobs and prohibited workplaces in the case of junior employees 50
Section 2 51
Senior Workers 51
Article 166 Senior workers 51
Article 167 Employment of senior workers 51
Section 3 52
Vietnamese Working Abroad, Labour for Foreign Organizations or Individuals in Vietnam, Foreign Employees Working in Vietnam 52
Article 168 Vietnamese working abroad, and Vietnamese working for foreign organizations and individuals in Vietnam 52
Article 169 Conditions for foreign citizens to work in Vietnam 52
Article 170 Conditions for recruiting workers being foreign citizens 52
Article 171 Work permits for foreigners working in Vietnam 53
Article 172 Foreign citizens working in Vietnam not required to have work permits 53
Article 173 Valid duration of work permits 53
Article 174 Circumstances in which validity of work permit expires 53
Article 175 Issuance, re-issuance and withdrawal of work permits 54
Section 4 54
Disabled Workers 54
Article 176 State policies on disabled workers 54
Article 177 Employment of disabled persons 54
Article 178 Prohibited conduct when employing disabled workers 54
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Workers being Domestic Servants 55
Article 179 Domestic servants 55
Article 180 Labour contracts of domestic servants 55
Article 181 Obligations of employers owed to domestic servants 55
Article 182 Obligations of domestic servants 55
Article 183 Conduct by employers which is strictly prohibited 56
Section 6 56
Other Workers 56
Article 184 Employees in the artistic sector, and sports and physical training sector 56
Article 185 Workers performing home-based work 56
CHAPTER 12 56
Social Insurance 56
Article 186 Participation in social insurance 56
Article 187 Retirement age 57
CHAPTER 13 57
Trade Unions 57
Article 188 Role of trade unions in the labour relationship 57
Article 189 Establishing, joining and participating in activities of trade unions at enterprises, agencies and organizations 57
Article 190 Conduct which is strictly prohibited by an employer regarding establishing, joining and participating in trade union activities 58
Article 191 Rights of grassroots trade union officials in the labour relationship 58
Article 192 Responsibilities of employers owed to trade unions 58
Article 193 Guarantee of operational conditions of trade unions at enterprises, agencies and organizations 59 CHAPTER 14 59
Resolution of Labour Disputes 59
Section 1 59
General Provisions on Resolution of Labour Disputes 59
Article 194 Principles for resolution of labour disputes 59
Article 195 Responsibilities of agencies, organizations and individuals in resolution of labour disputes 60
Article 196 Rights and obligations of the two parties during resolution of a labour dispute 60
Article 197 Rights of agencies, organizations and individuals competent to resolve labour disputes 60
Article 198 Labour conciliators 60
Article 199 Labour arbitration councils 61
Section 2 61
Authority and Procedures for Resolution of Individual Labour Disputes 61
Article 200 Agencies and individuals authorized to resolve individual labour disputes 61
Article 201 Sequence and procedures for resolution of individual labour disputes by labour conciliators 61
Article 202 Limitation periods for requesting resolution of an individual labour dispute 62
Section 3 62
Authority and Procedures for Resolution of Collective Labour Disputes 62
Trang 8Article 203 Agencies, organizations and individuals authorized to resolve collective labour disputes 62
Article 204 Order for resolution of a collective labour dispute at the grassroots level 63
Article 205 Resolution of a collective labour dispute about rights by the chairman of the district people's committee 63
Article 206 Resolution of a collective labour dispute about benefits by a labour arbitration council 64
Article 207 Limitation period for requesting resolution of a collective labour dispute about rights 64
Article 208 Prohibition on unilateral acts during the process of resolution of a collective labour dispute 64
Section 4 65
Strikes and Resolution of Strikes 65
Article 209 Strikes 65
Article 210 Organizing and leading a strike 65
Article 211 Sequence for a strike 65
Article 212 Procedures for obtaining opinions from the labour collective 65
Article 213 Notification of time of commencement of a strike 65
Article 214 Rights of parties before and during a strike 66
Article 215 Circumstances in which a strike is illegal 66
Article 216 Notification of decision to temporarily close a workplace 67
Article 217 Circumstances in which it is prohibited to temporarily close a workplace 67
Article 218 Wages and other lawful benefits of employees during period of a strike 67
Article 219 Conduct which is prohibited before, during and after a strike 67
Article 220 Circumstances in which strikes are prohibited 68
Article 221 Decision staying or suspending a strike 68
Article 222 Dealing with a strike which does not comply with sequence and procedures 68
Section 5 68
Strikes and Resolution of Strikes 68
Article 223 Petitioning a court to consider legality of a strike 68
Article 224 Procedures for lodging a petition with a court to consider legality of a strike 69
Article 225 Authority to consider legality of a strike 69
Article 226 Composition of Council of Adjudicators to consider legality of a strike 69
Article 227 Procedures for resolution of a petition to consider [hear] legality of a strike 69
Article 228 Staying consideration of legality of a strike 69
Article 229 Persons [required to] participate in a session hearing legality of a strike 70
Article 230 Stay of a session hearing legality of a strike 70
Article 231 Procedures for a session hearing legality of a strike 70
Article 232 Decision on legality of a strike 70
Article 233 Dealing with breaches 71
Article 234 Sequence and procedures for resolving a complaint about a decision on legality of a strike 71
CHAPTER 15 71
State Administration of Labour 71
Article 235 Contents of State administration of labour 71
Article 236 Authority for State administration of labour 72
CHAPTER 16 72
State Inspection of Labour and Dealing with Breaches of the Law on Labour 72
Article 237 Duties of State Labour Inspectorates 72
Article 238 Labour Inspectorates 72
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CHAPTER 17 73
Implementing Provisions 73
Article 240 Effectiveness 73
Article 241 Effectiveness in the case of locations employing less than ten employees 73
Article 242 Detailed regulations and guidelines on implementation 74
Trang 10NATIONAL ASSEMBLY SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom – Happiness
The Labour Code regulates labour standards; the rights, obligations and responsibilities of employees, employers, organizations representing labour collectives, and organizations representing employers in the labour relationship and in other relationships directly related to the labour relationship; and regulates State administration of labour
Article 2 Applicable entities
1 Vietnamese employees, people studying trades or practising trades [trainees and apprentices]1, and other employees stipulated in the Labour Code
2 Employers
3 Foreign employees working in Vietnam
4 Other agencies, organizations and individuals directly related to the labour relationship
Article 3 Interpretation of terms
In this Code, the following terms are construed as follows:
1 Employee means a person at least fifteen (15) years of age, with the ability to work, who works
pursuant to a labour contract, who is paid wages and who is subject to management by the employer
2 Employer means an enterprise, agency, organization, co-operative, business household or individual
who hires [or] employs labour pursuant to a labour contract; and in the case of an individual employer must have full legal capacity for civil acts
3 Labour collective means an organized collective of employees working together for one employer or
within any one section of the organizational structure of an employer
1
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4 Organization representing the labour collective at the grassroots level means the executive
committee of the grassroots trade union, or the executive committee of the trade union at the directly superior level to the grassroots level in a place where a grassroots trade union has not yet been established
5 Organization representing the employer means a legally established organization which represents
and protects the legal rights and interests of the employer in the labour relationship
6 Labour relationship means a social relationship arising during the hiring or employment of a worker,
[or] payment of wages between an employee and an employer
7 Labour dispute means a dispute [or disagreement] about rights, obligations and benefits arising
between parties in a labour relationship
Labour disputes comprise individual labour disputes between an employee and employer, and
collective labour disputes between the labour collective and the employer
8 Collective labour dispute about rights means a dispute between the labour collective and the
employer arising about different explanations and implementation of provisions of the law on labour,
of a collective labour agreement, of internal labour rules or of other rules or lawful agreements
9 Collective labour dispute about benefits means a dispute arising about a request of the labour
collective to establish new labour conditions as compared with provisions of the law on labour, of a collective labour agreement, of internal labour rules or of other rules or lawful agreements during the process of negotiation between the labour collective with the employer
10 Labour coercion means using force, threatening to use force or using other tricks aimed at coercing a
worker contrary to his or her will
Article 4 State's policy on labour
1 The State ensures the legitimate rights and interests of employees; encourages agreements which ensure employees have more favourable conditions than those stipulated in the law on labour; and has policies enabling employees to purchase shares and contribute capital to develop production and business
2 Ensuring the lawful rights and interests of employers, that labour is correctly managed in accordance with law, and ensuring democracy, fairness, civilized behaviour and the raising of social responsibility
3 The State facilitates activities of job creation, self-employment, job training and apprenticeship to enable people to find work, and facilitates labour-intensive production and business activities
4 The State has policies on developing and allocating manpower; on training, fostering and raising technical skill of employees, and grants incentives to employees with high qualifications and technical expertise satisfying requirements for industrialization and modernization of the country
5 The State has policies on developing the labour market and diversifying the forms of linking labour supply and demand
6 The State shall guide employees and employers to engage in collective discussion and negotiation in order to develop an harmonious, stable and progressive relationship
Trang 127 The State ensures the principle of gender equality; and regulates labour regimes and social policies aimed at protecting female employees, disabled employees, senior employees and junior employees.
Article 5 Rights and obligations of employees
1 Employees have the following rights:
(a) To work, to freely choose types of work and trades and professions, to learn a trade, to improve professional skills, and not to be discriminated against;
(b) To be paid a wage commensurate with his or her professional skills on the basis of an agreement reached with the employer; to be entitled to labour protection and to work in safe and hygienic working conditions; to be entitled to stipulated leave and paid annual leave and to receive collective welfare benefits;
(c) To establish, join and participate in the activities of trade unions, professional and occupational associations and other organizations in accordance with law; to request and participate in discussions with the employer, to implement democratic regulations, and to receive advice at workplaces in order to protect the employee's lawful rights and interests; and to participate in management in accordance with the internal rules of the employer;
(d) To strike
2 Employees have the following obligations:
(a) To implement labour contracts and collective labour agreements;
(b) To comply with labour discipline and internal labour rules and to be subject to lawfulmanagement by the employer;
(c) To implement provisions of law on social insurance and health insurance
Article 6 Rights and obligations of employers
1 Employers have the following rights:
(a) To recruit, arrange and manage labour in accordance with business and production requirements; to reward employees and to deal with breaches of labour discipline;
(b) To establish, join and participate in the activities of professional and occupational associations and other organizations in accordance with law;
(c) To require the labour collective to discuss, negotiate and sign a collective labour agreement; to participate in resolution of labour disputes and strikes; and to discuss with the trade union labour relations issues and improvement of the material and spiritual lives of the employees;(d) To temporarily close down the workplace
2 Employers have the following obligations:
(a) To implement labour contracts, collective labour agreements and other agreements with employees; and to respect the honour and dignity of employees;
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(b) To establish a regime on organizing discussions with the labour collective at the enterprise and
to strictly implement democratic regulations at the grassroots level;
(b) To comply with labour standards; to implement labour contracts, collective labour agreements and other agreements with employees, and to respect the honour and dignity of employees;(c) To establish a register managing personnel and a register managing salary, and to present these registers on request by competent agencies;
(d) To prepare a declaration of employment of employees and submit it within thirty (30) days from the date of inauguration of activities to the local State authority for labour, and to periodically provide reports to such authority on status of labour changes during operation;
(dd) To implement other provisions of the law on labour, and provisions of law on social insurance and health insurance
Article 7 Labour relationship
1 The labour relationship between an individual employee or labour collective with the employer shall
be established via discussion, negotiation and agreement on the principles of voluntary commitment, goodwill, equality, co-operation and mutual respect of legal rights and interests
2 The trade union and employer representative shall jointly participate with State authorities to assist formulation of an harmonious, stable and progressive labour relationship; shall supervise implementation of the law on labour; and shall protect the lawful rights and interests of both employers and the employer
Article 8 Conduct which is strictly prohibited
1 Discrimination on the basis of gender, race, colour, social class, marital status, beliefs, religion, HIV infection, disability, or because of establishing, joining or participating in activities of a trade union
2 Maltreatment or sexual harassment of employees at the workplace
3 Labour coercion
4 Taking advantage of an apprenticeship or trade-training program to seek profit or exploit an employee or to entice or compel an apprentice or trainee to conduct an illegal act
5 Employing workers who have not yet passed training courses or who do not yet have national trade
or technical certificates in the case of any trade or work for which the law requires employees to have passed such courses or have such certificates
6 Seducing, making false promises or conducting false advertising in order to deceive employees, or taking advantage of employment services or labour export to foreign countries pursuant to contracts
in order to conduct an illegal act
7 Employing juniors contrary to law
Trang 14CHAPTER 2
Employment Article 9 Employment and finding jobs
1 Working or a job means any labour activity which creates income and which is not prohibited by law
2 The State, employers and society are responsible to participate in job creation, ensuring that all people with the ability to work have the opportunity to work
Article 10 Right of workers to work
1 A worker has the right to be employed by any employer and in any location not prohibited by law
2 A person seeking work has the right to make a direct approach to prospective employers or to approach them via an employment services organization in order to find work which matches his/heraspirations, capability, trade or professional skills, and health
Article 11 Right of employers to recruit labour
An employer has the right to recruit labour directly or to do so via an employment services organization or labour subleasing enterprise, and has the right to increase or reduce the number of employees for compliance with production and business requirements
Article 12 State policy on employment
1 The State shall set targets on creation of additional new jobs in both its annual and five-year socio-economic development plans
Based on the socio-economic conditions in each period, the Government shall submit a national program with targets on job creation and occupational training to the National Assembly for decision
2 The State has a policy on job loss insurance and other policies encouraging workers to create their own jobs; and to assist employers to employ many female workers, disabled people and ethnic minority people in order to resolve the search for employment
3 The State encourages and creates favourable conditions for investment by both domestic and foreign organizations and individuals to develop business and production for the purpose of creating jobs for workers
4 The State assists employers and workers to find work and to expand the labour market overseas
5 The State shall create a national Job Creation Fund to assist with loans and other incentives for job creation and other activities in accordance with law
Article 13 Employment programs
1 People's committees of provinces and cities under central authority (provincial people's committees)
shall formulate local employment programs for submission to the same level people's council for decision
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2 State bodies, enterprises, socio-political and social organizations and other employers are responsible, within the scope of their respective duties and powers, to participate in implementingemployment programs
Article 14 Employment services organizations
1 Employment services organizations have the function of providing consultancy, introducing jobs and providing vocational training to workers; of supplying and recruiting labour at the request of employers; and of collecting and providing information on the labour market and implementing other duties in accordance with law
2 Employment services organizations comprise employment introduction centres and enterprises providing employment services
Employment introduction centres shall be established and operate in accordance with Government regulations
Enterprises providing employment services shall be established and operate in accordance with the
provisions of the Law on Enterprises and must be licensed to provide employment services by the
provincial level State authority for labour
3 Employment services organizations are permitted to collect fees, and shall be considered for tax reduction or exemption in accordance with the law on fees and charges and the law on tax
Labour contract means an agreement between an employee and an employer on a paid job, on working
conditions, and on the rights and obligations of each party to the labour relationship
Article 16 Forms of labour contract
1 A labour contract must be entered into in writing and made in two copies, each party to retain one copy, except in the case prescribed in clause 2 of this article
2 The parties may enter into an oral labour contract for temporary work of less than three months
Article 17 Principles for signing labour contracts
1 Voluntary commitment, equality, goodwill, co-operation and honesty
2 Voluntary signing of a labour contract but not contrary to law, to the collective labour agreement or to social ethics
Trang 16Article 18 Responsibility to sign labour contracts
1 Before accepting a worker to work, the employer and such worker must directly enter into a labour contract
If the worker is from 15 years up to under 18 years of age, then the legal representative of the worker must consent to the entering into the labour contract
2 For seasonal work or a specific job with a duration of less than twelve (12) months, a group of workers may authorize one of the workers in their group to enter into a written labour contract; and in this case, the labour contract has the same validity as if it was signed with each worker
A labour contract signed by an authorized person must enclose a list setting out the full name, age, sex, residential addresses, trade or occupation, and signature of each worker
Article 19 Responsibility to provide information before signing a labour contract
1 [Before signing a labour contract], an employer must provide information to the employee on the work to be performed, the workplace, working conditions, working hours, rest breaks, [conditions on] occupational safety and hygiene, [rates of] wages, method of payment of wages, social insurance and health insurance, and provisions on confidentiality of business secrets (if any) and other matters directly relevant to signing of a labour contract which an employee needs to know
2 [Before signing a labour contract], an employee must also provide the employer with information being the employee's full name, age, sex, residential address, educational standard, professional qualifications, health status, and other matters directly relevant to signing of a labour contract which the employer requests
Article 20 Prohibited conduct by an employer when signing and performing a labour contract
1 Retaining originals of personal papers, degrees and certificates of the employee
2 Requiring the employee to provide security measures by way of cash or assets to guarantee performance of the labour contract
Article 21 Entering into multiple labour contracts with multiple employers
An employee may enter into multiple labour contracts with multiple employers, provided that all the contents
in the executed contracts are fully performed
If [an employee] enters into multiple labour contracts with multiple employers, participation by the employee
in the social insurance and health insurance schemes shall be implemented in accordance with Government regulations
Article 22 Types of labour contract
1 A labour contract must be entered into in one of the following types:
(a) Indefinite term labour contract
An indefinite term labour contract is a contract in which the two parties do not fix the term nor
the time of termination of validity of the contract;
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A definite term labour contract is a contract in which the two parties fix the term and the time of
termination of the validity of the contract as a period between twelve (12) months and thirty six (36) months;
(c) A seasonal or specific job labour contract with a duration of less than twelve (12) months
2 Where a labour contract prescribed in sub-clauses (b) or (c) of clause 1 of this article expires and the employee continues to work, then within thirty (30) days from the date of expiry of the contract the two parties must enter into a new labour contract; if a new labour contract is not entered into, then asigned contract as prescribed in sub-clause (b) of clause 1 of this article shall become an indefinite term labour contract, and a signed contract as prescribed in sub-clause (c) of clause 1 of this article shall become a definite term labour contract with a duration of twenty-four (24) months
Where the two parties enter into a new labour contract which is a definite term labour contract, they may only sign one additional contract, and if the employee thereafter continues to work then an indefinite term labour contract must be entered into
3 It is prohibited to sign a seasonal or specific job labour contract for a term of less than twelve (12) months in respect of work which is regular and has a duration of twelve (12) months or more, except
to temporarily replace an employee who has taken leave of absence for military service, is on maternity leave or sick leave, is on leave as the result of a work-related accident, or is on leave for other temporary reasons
Article 23 Contents of labour contracts
1 A labour contract must contain the following main particulars:
(a) Name and address of the enterprise or of the employer's lawful representative;
(b) Full name, date of birth, sex, residential address, and number of identity card or other legal document of the employee;
(c) Job description and workplace;
(d) Term of the labour contract;
(dd) Wage rate, method of and time of payment of wages, allowances and other additional payments;
(e) Regime for wage increases and promotion;
(g) Working hours and holidays;
(h) Personal protective equipment of the employee;
(i) Social insurance and health insurance;
(k) Training and skill improvement;
2 When an employee does work which is directly related to business or technological secrets as defined by law, the employer has the right to a written agreement with the employee on contents and term of confidentiality of business secrets and of technology, of interests [or benefits] and on payment of compensation if the employee breaches such agreement
Trang 183 In the case of employees working in the sectors of agriculture, forestry, fisheries and salt mining, then depending on the type of work, the two parties may exclude some of the main particulars of the labour contract and reach agreement on adding items on method of resolution of a case where performance of the labour contract is affected by natural disaster, fire or weather.
4 The Government shall regulate contents of labour contracts of employees hired to act as directors of enterprises with State owned capital
Article 24 Addenda to labour contracts
1 An addendum to a labour contract constitutes a part of such labour contract and has the same validity as the labour contract
2 An addendum to a labour contract may elaborate in detail some of the articles of the labour contract,
or may amend or supplement the labour contract
If the addendum to a labour contract elaborates in detail some of the articles or clauses of the labour contract resulting in an interpretation different from the labour contract, then implementation shall be
in accordance with the contents of the labour contract
An addendum to a labour contract which amends or supplements the labour contract must clearly specify the articles which are amended or supplemented and the effective date of such amended and supplemented articles
Article 25 Effectiveness of a labour contract
A labour contract is effective from the date the parties enter into the contract, unless otherwise agreed by the two parties or unless otherwise stipulated by law
Article 26 Probationary period of work
1 The employer and the employee may reach agreement on a probationary [trial] period of work and the rights and obligations of the two parties within that period If agreement is reached on a probationary period of works, the parties may sign a probationary contract
The contents of a probationary contract shall comprise the contents prescribed in sub-clauses (a), (b), (c), (d), (dd), (g) and (h) of article 23.1 of this Code
2 An employee working pursuant to a seasonal labour contract is not engaged in a probationary period
of work
Article 27 Duration of probationary period
The duration of a probationary period shall depend on the nature and complexity of the work, but there may only be probation on one occasion for one job, and probation must ensure the following conditions:
1 The probationary period must not exceed sixty (60) days for working in a position requiring high level specialized or technical expertise
2 The probationary period must not exceed thirty (30) days for working in a position requiring intermediate level specialized or technical expertise or for technical workers and professional staff
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Article 28 Wage during probationary period
The wage of an employee during a probationary period shall be as agreed by the two parties but must be at least 85% of the scale wage rate for the relevant working position [job]
Article 29 Termination of probationary period
1 When the employee's work satisfies the requirements during the probationary period, the employer must sign a labour contract with the employee
2 During the probationary period, each party has the right to rescind the agreement on probationary work without providing advance notice and without paying compensation if the employee's probationary work does not satisfy the requirements agreed by the two parties
Article 31 Assigning employee to do other work different from the labour contract
1 In a case of unforeseeable difficulty due to a natural disaster, fire, epidemic, application of measures
to prevent or overcome a work-related accident or occupational disease, in the event of a power failure or water shortage or due to business and production demand, an employer has the right to temporarily assign an employee to do work other than that specified in the labour contract, but not for more than an accumulated period of sixty (60) working days in any one year unless the employee [otherwise] consents
2 An employer must, when temporarily assigning an employee to do other work than that specified in the labour contract, give at least three (3) working days notice to the employee, inform the employee
of the duration of the temporary assignment, and assign a job which is suitable to the health and gender of the employee
3 Where an employee is temporarily assigned to another job pursuant to clause 1 of this article, the employee must be paid a wage at the rate appropriate to the new job; if the wage rate of the new job
is less than that of the previous job, the employee is entitled to receive the previous wage for a period of thirty (30) working days The new wage must equal at least eighty-five (85) per cent of the previous wage, but must not be less than the minimum wage for the relevant area stipulated by the Government
Article 32 Cases in which suspension of performance of a labour contract is permitted
1 The employee is required to do military service
2
Allens Arthur Robinson footnote: This is the literal translation here as opposed to "workplace" which is mostly used in the original text.
Trang 202 The employee is detained or temporarily held in prison in accordance with the law on criminal procedure.
3 The employee must comply with a mandatory decision on admission to a detention centre, to a drug rehabilitation centre or to an educational establishment
4 A female employee is pregnant as stipulated in article 156 of this Code
5 In other circumstances agreed by both parties
Article 33 Responsibility to receive the employee back to work on expiry of suspension of performance of
labour contract
Within fifteen (15) days from expiry of the term of suspension of performance of the labour contract in the cases prescribed in article 32, the employee must attend the workplace and the employer must receive the employee back to work, unless the two parties have some other agreement
Article 34 Employees working part-time
1 A part-time employee means an employee with working hours shorter than the average daily or
weekly working hours prescribed in the law on labour, in the collective labour agreement of the enterprise, in the industry labour collective agreement, or in the rules of the employer
2 An employee may reach agreement with an employer for the former to work part-time when signing the labour contract
3 Part-time employees are entitled to receive wages, and have rights and obligations the same as time employees, and are entitled to equal opportunity the same as full-time employees, must not be discriminated against, and are entitled to [the same conditions] on occupational safety and hygiene
2 Amendments or additions to contents of a labour contract shall take place by way of amending or supplementing the signed labour contract in the form of an addendum to the labour contract, or by entering into a new labour contract
If the two parties fail to reach agreement on the amendment or addition to the contents of the labour contract, then the signed labour contract must continue to be performed
Article 36 Circumstances in which labour contract is terminated
[A labour contract is terminated in the following circumstances:]
1 On expiry of the labour contract, except in the case prescribed in article 192.6 of this Code
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2 The job has been completed in accordance with the labour contract
3 Both parties agree to terminate the contract
4 The employee has satisfied the conditions of period of employment for social insurance contributions and reaches the age of pension entitlement pursuant to article 187 of this Code;
5 The employee is sentenced to a jail term or to the death penalty, or is prohibited from performing the job prescribed in the labour contract by a legally enforceable decision of a court
6 The employee dies; or is declared by a court to have lost legal capacity for civil acts, to be missing or
to be deceased
7 The employer being an individual dies, or is declared by a court to have lost legal capacity for civil acts, to be missing or to be deceased; [or] the employer not being an individual terminates its operation
8 The employee is disciplined in the form of dismissal in accordance with article 125.3 of this Code
9 The employee unilaterally terminates the labour contract in accordance with article 37 of this Code
10 The employer unilaterally terminates the labour contract in accordance with article 38 of this Code; [or] the employer retrenches the employee as a result of restructuring, change of technology, for economic reasons, or due to merger, consolidation or separation of the enterprise or co-operative
Article 37 Circumstances in which an employee has the right to unilaterally terminate the labour contract
1 An employee working under a definite term labour contract, or a seasonal or specific job labour contract with a duration of less than twelve (12) months has the right to unilaterally terminate the labour contract prior to expiry of its duration in the following circumstances:
(a) The employee is not assigned to the correct job or workplace or is not ensured the working conditions agreed in the labour contract;
(b) The employee is not paid in full or on time the wages due as agreed in the labour contract;(c) The employee is maltreated, sexually harassed, or is subject to labour coercion;
(d) The employee is unable to continue performing the contract due to personal or family difficulties;
(dd) The employee is elected to full-time public office duties in a body elected by the people3 or is appointed to a position in a State body;
(e) A female employee is pregnant and must cease working on the advice of a competent medical consulting or treating establishment;
(g) The employee is ill or injured and remains unable to work4after having received treatment for
a period of ninety (90) consecutive days in the case of work pursuant to a definite term labour contract, or for a quarter of the duration of the contract in the case of work pursuant to a seasonal or specific job labour contract with a duration of less than twelve (12) months
3 Allens Arthur Robinson footnote: An example would be a people' s council
4 Allens Arthur Robinson footnote: The literal translation is "and has not recovered the ability to work".
Trang 222 On unilateral termination of a labour contract pursuant to clause 1 above, the employee must provide the employer with the following advance notice:
(a) At least three (3) working days in the cases stipulated in sub-clauses (a), (b), (c) and (g) of clause 1 of this article;
(b) At least thirty (30) days in the case of a definite term labour contract; and at least three (3) working days in the case of a seasonal or specific job labour contract with a duration of less than twelve (12) months in the cases prescribed in sub-clauses (d) and (dd) of clause 1 of this article;
(c) In the cases prescribed in sub-clause (e) of clause 1 of this article, the employee must give advance notice to the employer in accordance with article 156 of this Code
3 An employee working pursuant to an indefinite term labour contract has the right to unilaterally terminate the contract, but must provide the employer with at least forty-five (45) days' advance notice, except in the case prescribed in article 156 of this Code
Article 38 Circumstances in which an employer has the right to unilaterally terminate the labour contract
1 An employer has the right to unilaterally terminate a labour contract in the following circumstances:(a) The employee repeatedly failed to perform the work in accordance with the terms of the labourcontract;
(b) The employee is ill or injured and remains unable to work after having received treatment for a period of twelve (12) consecutive months in the case of an indefinite term labour contract, or six consecutive months in the case of a definite term contract, or more than half the duration of the contract in the case of a seasonal or specific job labour contract with a duration of less than twelve (12) months
On recovery of the employee's health, the employee shall be considered for continued signing
of a labour contract;
(c) Where as a result of a natural disaster, fire or for any other reason of force majeure as prescribed by law, the employer, despite having taken all necessary measures to remedy the problem, still needs to narrow production and reduce the number of jobs;
(d) The employee failed to attend the workplace on expiry of the period prescribed in article 33 of this Code [15 days]
2 An employer who unilaterally terminates a labour contract must provide the following period of advance notice to the employee:
(a) At least forty-five (45)days in the case of an indefinite term labour contract;
(b) At least thirty (30) days in the case of a definite term contract;
(c) At least three (3) working days in the case prescribed in clause 1(b) of this article and in the case of a seasonal or specific job labour contract with a duration of less than twelve (12) months
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Article 39 Circumstances in which an employer is not permitted to unilaterally terminate a labour contract
[An employer is not permitted to unilaterally terminate a labour contract in the following circumstances:]
1 The employee, after contracting an or suffering an injury caused by a work-related accident or occupational disease, is being treated or nursed on the decision of a competent medical consulting
or treating establishment, except in the case prescribed in article 38.1(b) above
2 The employee is on annual leave, personal leave of absence, or any other type of leave agreed by the employer
3 The employee is a female in the cases stipulated in article 155.3 of this Code
4 The employee is on leave pursuant to the regime on parental leave prescribed in the law on social insurance
Article 40 Rescission of unilateral termination of labour contract
Each party has the right to rescind its unilateral termination of a labour contract at any time prior to expiry of the notice period, but must provide written notice to the other party and must have consent from the other party
Article 41 Illegal unilateral termination of labour contract
Illegal unilateral termination of a labour contract means any case of termination of a labour contract which is
incorrect in terms of articles 37, 38 and 39 of this Code
Article 42 Obligations of employer who unilaterally terminates a labour contract illegally
1 The employer must receive the employee back to work in accordance with the signed labour contract and must pay wages, social insurance and health insurance for the period during which the employee did not work, plus at least two months' wages in accordance with the labour contract
2 An employee who does not wish to continue to work must be paid by the employer, in addition to the compensation prescribed in clause 1 of this article, the severance allowance stipulated in article 48 of this Code
3 If the employer does not wish to receive the employee back to work and has the employee's consent, then in addition to the compensation prescribed in clause 1 of this article and the severance allowance stipulated in article 48 of this Code, the two parties may agree on additional compensation
of at least two months' wages in accordance with the labour contract in order to terminate the labour contract
4 If there is no longer the working position or job for which the labour contract was signed and the employee wishes to continue to work, then in addition to the compensation pursuant to clause 1 of this article, the two parties shall negotiate in order to amend and supplement the labour contract
5 If there was a breach of the provisions on the required period of advance notice, then [the employer] must pay the employee compensation being an amount of money equivalent to the wage of the employee for the period during which advance notice was not provided
Trang 24Article 43 Obligations of employee who unilaterally terminates a labour contract illegally
1 The employee is not entitled to a severance allowance and must pay compensation to the employer
of one half of one month's wage in accordance with the labour contract
2 If the employee breaches the provisions on the period of advance notice which must be provided, then the employee must pay compensation to the employer being a sum of money equivalent to the wage of the employee during the period for which advance notice was not provided
3 The employee must refund training costs to the employer in accordance with article 62 of this Code
Article 44 Obligations of employer in cases of restructuring, change of technology, or [changes for]
economic reasons
1 If restructuring or a change of technology adversely affects the jobs of many employees, the employer must formulate and implement a labour usage plan in accordance with article 46 of this Code If new jobs are created, then the employer must prioritize retraining for employees in order to continue to employ them
If the employer is unable to resolve new jobs but must retrench employees, then the employer must pay severance allowances for job loss to employees in accordance with article 49 of this Code
2 If for economic reasons many employees are in danger of losing their jobs and must be retrenched, then the employer must formulate and implement a labour usage plan in accordance with article 46
Article 45 Obligations of employer upon merger, consolidation, division or separation of an enterprise or
co-operative
1 Upon merger, consolidation, division or separation of an enterprise or co-operative, the succeeding employer is responsible to continue to employ the current number of employees and to amend and supplement their labour contracts
If the succeeding employer is unable to employ all current employees, then such employer must prepare and implement a labour usage plan in accordance with article 46 of this Code
2 On transfer of ownership or right to use assets of an enterprise, the previous employer must prepare a labour usage plan in accordance with article 46 of this Code
3 An employer who retrenches employees pursuant to this article must pay severance allowances for job loss to the employees in accordance with article 49 of this Code
Article 46 Labour usage plan
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(a) List and the number of employees who will continue to be employed, and of employees to undergo retraining for further employment;
(b) List and the number of employees who will retire;
(c) List and the number of employees who will be transferred to work part-time; and of employees whose labour contracts will be terminated;
(d) Measures and financial funding for ensuring implementation of the plan
2 The organization representing the labour collective at the grassroots level must participate in formulation of the labour usage plan
Article 47 Responsibilities of employers who terminate labour contracts
1 At least fifteen (15) days prior to the date of expiry of a definite labour contract, the employer must provide advance written notice to the employee of the time [the date] when the contract terminates
2 Within seven (7) working days from the date of termination of a labour contract, each party must fullypay all sums outstanding and relating to rights and interests to the other party In special cases this period may be extended, but shall not exceed thirty (30) days
3 The employer is responsible to complete procedures for certification of, and return of, the social insurance book to the employee, and also return other documents to the employee which the employer retained
4 In a case where an enterprise or a cooperative has its operation terminated, or is dissolved or declared bankrupt, then there shall be priority payment of wages, severance allowances, social insurance and health insurance, job loss insurance, and other interests of the employees in accordance with the labour collective agreement and signed labour contracts
Article 48 Severance allowance on retrenchment
1 When a labour contract is terminated in accordance with clauses 1, 2, 3, 5, 6, 7, 9 or 10 of article 36
of this Code, the employer is responsible to pay a severance allowance to any employee who has regularly worked for a full twelve months or more The severance allowance shall be one half of one month's wage for each year of employment
2 The length of a working period for calculating a severance allowance on retrenchment means the total working time the employee actually worked for the employer minus the period for which the
employee received unemployment benefits in accordance with the Law on Social Insurance and the
working period for which the employer has already paid a severance allowance
3 Wages for the purpose of calculating a severance allowance on retrenchment means the average wage pursuant to the labour contract for the six (6) months immediately preceding retrenchment of the employee
Article 49 Severance allowance for job loss
1 The employer shall pay a severance allowance for job loss to an employee who had regularly worked for the employer for 12 or more months and who loses his or her job pursuant to article 44 or 45 of this Code The severance allowance shall be one month's wages for each working year but at least 2 months' salary
Trang 262 The length of a working period for calculating a severance allowance for job loss means the total working time the employee actually worked for the employer minus the period for which the
employee received unemployment benefits in accordance with the Law on Social Insurance and the
working period for which the employer has already paid a severance allowance
3 Wages for the purpose of calculating a severance allowance for job loss means the average wage pursuant to the labour contract for the six months immediately preceding job loss
Section 4
Invalid Labour Contracts Article 50 Invalid labour contract
1 A labour contract is wholly invalid in the following cases:
(a) The entire contents of the labour contract are illegal;
(b) A signatory to the labour contract lacked authority;
(c) The job for which the two parties signed the labour contract is work prohibited by law;
(d) The contents of the labour contract restrict or prevent exercise of the right of the employee to establish or join a trade union and participate in its activities
2 A labour contract is partially invalid when the contents of a part of the contract are illegal without affecting the residual contents of the contract
3 If a part or the entire contents of a labour contract specify interests of the employee as being less than those prescribed in the law on labour, in labour rules, or in any collective labour agreement currently applicable, or if the contents of the labour contract restrict other rights of the employee, then such part or entire contents are invalid
Article 51 Authority to declare a labour contract invalid
1 The Labour Inspectorate and People's Courts shall have the right to declare a labour contract to be invalid
2 The Government shall provide regulations on the sequence and procedures for the Labour Inspectorate to declare labour contracts invalid
Article 52 Dealing with invalid labour contracts
1 A labour contract which is declared partially invalid shall be dealt with as follows:
(a) The rights, obligations and interests of the parties shall be resolved in accordance with provisions in the collective labour agreement or provisions of law;
(b) That parties shall amended that part of the labour contract declared to be invalid for compliance with the collective labour agreement or the law on labour
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(a) If a signatory to the labour contract lacked authority as prescribed in article 50.1(d) above, then the State administrative body for labour shall guide the parties to resign the contract;
(b) The rights, obligations and interests of the employee shall be resolved in accordance with law
3 The Government shall provide specific regulations on this article
Section 5
Labour Outsourcing Article 53 Labour outsourcing [or sub-leasing]
1 Labour outsourcing means an employee recruited by an enterprise licensed to conduct labour
outsourcing [the sub-lessor] thereafter works for another employer [sub-leasing employer], and is subject to management by such other employer but maintains the labour relationship with the labour outsourcing enterprise
2 Labour outsourcing activities are a business line subject to conditions and may only be conducted in respect of a number of specified jobs
Article 54 Labour outsourcing enterprises
1 A labour outsourcing enterprise must pay an escrow deposit and must be licensed for labour outsourcing activities
2 The period of any labour sublease [outsourcing] shall not exceed twelve (12) months
3 The Government shall regulate licensing of labour outsourcing activities, payment of escrow deposits and the list of jobs for which labour may be outsourced
Article 55 Labour sublease contract
1 The labour outsourcing enterprise and the subleasing employer must sign a sublease contract in writing, which contract must be made in two copies, with each party to receive one copy
2 A labour sublease contract must contain the following main particulars:
(a) Workplace, description of the job which requires a subleased employee; specific contents of the job, and specific requirements applicable to the subleased employee;
(b) Term of the labour sublease, and date of commencement of work by the employee;
(c) Working hours, rest breaks, and conditions on occupational safety and hygiene at the workplace;
(d) Obligations of each party owed to the employee
3 A labour sublease contract must not contain agreements on the rights and interests of the employee which are less [favourable] than those in the labour contract which the labour outsourcing enterprise signed with the employee
Trang 28Article 56 Rights and obligations of labour outsourcing enterprises
1 To ensure that the employee provided has the professional qualifications which match the requirements of the sub-lessee and the contents of the labour contract [which the labour outsourcingenterprise] signed with the employee
2 To notify employees of the contents of subleases
3 To sign labour contracts with employees in accordance with the provisions of this Code
4 To notify the labour sub-lessee of the curriculum vitae of the employee or of the requirements of the employee (if any)
5 To discharge obligations of an employer in accordance with this Code; to pay employees in accordance with law the following: wages, wages for public holidays and for annual leave, wages on cessation of work, severance allowances on retrenchment or job loss, compulsory social insurance payments, health insurance and job loss insurance
To ensure that the sub-leased employee receives a wage not lower than the wage of an employee of the sub-leasing employer with the same professional qualifications and doing the same job or a job of the same value
6 To formulate a file recording the number of sub-leased employees, sub-leasing employers, the fees for outsourcing labour and to report same to the provincial State administrative body for labour
7 To discipline any sub-leased employee in breach of labour discipline when the sub-leasing employer returns such employee because of a breach of labour discipline
Article 57 Rights and obligations of sub-leasing employers
1 To inform and guide sub-leased employees of the internal labour rules and other regulations of the sub-leasing employer
2 Not to discriminate regarding labour conditions as between sub-leased employees and [other] employees of such sub-leasing employer
3 To reach agreement with any sub-leased employee who is required for night work or for overtime outside the scope of contents of the labour sub-lease contract
4 Not to further outsource a sub-leased employee to another employer
5 To reach agreement with the sub-leased employee and the labour outsourcing enterprise to officially recruit the sub-leased employee to work for the sub-leasing employer in a case where the labour contract of the employee with the outsourcing enterprise has not yet terminated
6 To return the employee to the outsourcing enterprise if the former fails to satisfy the agreed requirements or is in breach of labour discipline
7 To provide evidence to the outsourcing enterprise of any breach of labour discipline by the leased employee in order to consider disciplinary measures to be taken
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Article 58 Rights and obligations of sub-leased employees
1 To perform work in accordance with the labour contract signed with the labour outsourcing enterprise
2 To comply with internal rules, labour discipline, lawful management and the collective labour agreement of the sub-leasing employer
3 To be paid a wage not lower than the wage of an employee of the sub-leasing employer with the same professional qualifications and doing the same job or a job of the same value
4 To make a complaint to the labour outsourcing enterprise if the sub-leasing employer breaches the contents of the labour sub-lease contract
5 To exercise the right to unilaterally terminate the labour contract with the outsourcing labour enterprise in accordance with article 37 of this Code
6 To reach agreement to sign a labour contract with the sub-leasing employer after termination of the labour contract with the outsourcing labour enterprise
CHAPTER 4
Apprenticeship, Providing Training, and Fostering Improvement of Job and Professional Skills Article 59 Apprenticeship and providing trade training
1 An employee is permitted to select the trade or apprenticeship at the workplace in conformity with his
or her working requirements
2 The State encourages eligible enterprises5 to establish a trade training establishment or open a trade training class at the workplace in order to train, re-train, foster and improve job and professional skills
of employees currently working at the enterprise, and to provide trade training for other apprentices
in accordance with the law on vocational training
Article 60 Responsibilities of employers to provide training, to foster and improve job and professional
skills
1 Employers must have annual plans on training and improving job and professional skills of employees currently working at the enterprise, and must arrange funding [a budget] for same; and must provide retraining for employees prior to assigning them to other trades inside the enterprise
2 Employers must provide a report, in their annual labour reports to the provincial State administrative authority for labour, on the results of training, fostering and improving job and professional skills
Article 61 Apprenticeship and practical training in order to work for an employer
1 Any employer who recruits people as apprentices or to provide them with practical training in order to work for the enterprise is not required to register trade training activities and is not permitted to collect study fees
5
Allens Arthur Robinson footnote: The literal translation is "enterprises which satisfy all the conditions".
Trang 30Apprentices and practical trainees in this case must be at least 14 years of age and be in good health sufficient to satisfy the requirements of the [particular] trade, except for a number of trades stipulated
by the Ministry of Labour
The two parties must sign a trade training contract, which shall be formulated in two copies, each party to retain one copy
2 If during the period of apprenticeship or practical training the apprentice or trainee directly makes or participates in the making of eligible products, the employer must pay such person a wage at a rate agreed by the two parties
3 On expiry of the period of apprenticeship or practical training, the two parties must sign a labour contract if all conditions prescribed in this Code are satisfied
4 An employer is responsible to facilitate the employee's participation in assessing the technical skills achieved in order to issue a national trade and professional skill certificate
Article 62 Trade training contract between employer and employee and training fees
1 The two parties must sign a trade training contract if the worker is provided with training, job and professional skills improvement or re-training in Vietnam or overseas with funding provided by the employer, including funding provided to the employer by its partner
A trade training contract shall be made in two copies, and each party shall retain one copy
2 A trade training contract shall include the following basic particulars:
(a) The trade in which training is provided;
(b) Training location and training period;
(c) Training fees;
(d) Period for which the worker undertakes to work for the enterprise after training;
(dd) Responsibility to refund training fees;
(e) Responsibilities of the employer
3 Training fees comprise fees which have valid vouchers being fees paid to trainers, training materials, school classes, machinery, equipment and practical materials, other expenses paid to support the trainee, and wages, social insurance and health insurance paid for the trainee during the training period If a worker is sent overseas for training, then the training fees also include travelling expenses and living expenses for the period the worker spends overseas
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CHAPTER 5
Discussion at Workplaces, Collective Bargaining, and Collective Labour Agreements
Section 1
Discussion at Workplaces
Article 63 Objectives and form of discussion at workplaces
1 Discussion at the workplace is aimed at sharing information and increasing understanding between the employer and employees in order to formulate the labour relationship at the working location
2 Discussion at the workplace shall be conducted via a direct exchange between the employer and employees or between the labour collective representative with the employer, ensuring implementation of democratic regulations at the grassroots level
3 The employer and employees must implement democratic regulations at the grassroots level at the workplace in accordance with Government regulations
Article 64 Contents of discussion at workplaces
1 Status of production and business of the employer
2 Performance of labour contracts, of the collective labour agreement, of internal rules and other regimes [regulations],and of other undertakings and agreements at the workplace
3 Working conditions
4 Requests from the employees and labour collective to the employer
5 Requests from the employer to the employees and labour collective
6 Other matters in which the parties are interested
Article 65 Conducting discussion at workplace
[Discussion must be held at the workplace:]
1 Discussion must be held at the workplace once every three months or on one-off occasions at the request of one of the parties
2 Employers are responsible to arrange locations and other material conditions to ensure that discussion is able to take place at the workplace
Trang 32Section 2
Collective Bargaining6Article 66 Objective of collective bargaining
Collective bargaining means debate and negotiation between the labour collective representative and the
employer with the following objectives:
1 Formulating an harmonious, stable and progressive labour relationship
2 Establishing new working conditions to provide the basis for signing a collective labour agreement
3 Resolving problems and difficulties in exercise of rights and implementation of obligations of each party to the labour relationship
Article 67 Principles for collective bargaining
1 Collective bargaining shall be conducted on the principles of goodwill, equality, cooperation, publicity and transparency
2 Collective bargaining shall be carried out periodically or on one-off occasions
3 Collective bargaining shall be conducted at the location agreed by the two parties
Article 68 Right to require collective bargaining
1 Each party has the right to request that collective bargaining be carried out, and the requested party must not refuse No later than seven (7) working days from such request, the parties must agree on
a time for commencing a negotiating meeting
2 If either party is unable to participate in the negotiating meeting at the time specified, it has the right
to request a postponement but bargaining must commence no later than thirty (30) days from the date of receipt of the request for collective bargaining
3 If either party refuses to engage in bargaining or fails to conduct bargaining within the time prescribed in this article, then the other party has the right to conduct procedures to petition for resolution of a labour dispute in accordance with law
Article 69 Representation at collective bargaining
1 Representation at collective bargaining is regulated as follows:
(a) The labour collective party in the case of collective bargaining within the scope of an enterprise shall be the organization representing the labour collective at the grassroots level, and within the scope of an industry shall be the representative of the executive committee of the trade union of the industry;
(b) The employer party in the case of collective bargaining within the scope of an enterprise shall
be the employer or the representative of the employer; and in the scope of an industry shall be
6
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the representative of the organization representing employers in the industry
2 The number of participants in negotiating [bargaining] meetings shall be agreed by the two parties
Article 70 Matters subject to collective bargaining
1 Wages, bonuses, allowances and pay rises
2 Working hours and rest breaks [holidays or leave]; overtime and rest breaks between shifts
3 Job security for employees
4 Ensuring occupational safety and hygiene; implementation of internal labour rules
5 Other matters in which the parties are interested
Article 71 Collective bargaining process
1 The process of preparing for collective bargaining is regulated as follows:
(a) At least ten (10) days prior to commencing the first collective bargaining session, the employer must supply information about the status of production and business when the labour collective so requests, except for business secrets and confidentiality of technology of the employer;
(b) Obtaining opinions from the labour collective:
The negotiating representative of the labour collective shall obtain opinions directly from the labour collective or indirectly via the employees' congress regarding proposals of employees to the employer and regarding proposals of the employer to the labour collective
(c) Notification of matters to be negotiated during collective bargaining:
At least five (5) working days prior to commencing the first collective bargaining session, the party requesting collective bargaining must provide written notice to the other party about the matters proposed to be negotiated during collective bargaining
2 The process of conducting collective bargaining is regulated as follows:
(a) Organizing the collective bargaining session:
The employer is responsible to hold a collective bargaining session at the time and location agreed by the two parties
The conduct of collective bargaining must be recorded in minutes, specifying the issues agreed upon by the two parties, the proposed time for signing an agreement on the agreed item, and the items remaining in dispute
(b) Minutes of the collective bargaining session must be signed by the labour collective representative, the employer, and the person who prepared the minutes
3 Within fifteen (15) days after the end of the collective bargaining session, the negotiating representative of the labour collective must widely publish the minutes of the collective bargainingsession for the information of the labour collective, and at the same time seek an opinion on voting
Trang 34by the labour collective on the issues agreed.
4 If the negotiations were unsuccessful then either party has the right to continue to request bargaining
or to conduct procedures for resolution of a labour dispute in accordance with this Code
Article 72 Responsibilities during collective bargaining of the trade union, of the organization
representing the employer, and of the State administrative body for labour
1 To arrange training in collective bargaining skills for the people participating in collective bargaining
2 To participate in the negotiation session if requested by either of the parties to the collective bargaining
3 To provide and exchange information relevant to the collective bargaining
Section 3
Collective Labour Agreement Article 73 Collective labour agreement
1 Collective labour agreement means a written agreement between the labour collective and the
employer on working conditions which were reached via collective bargaining
A collective labour agreement shall comprise an agreement of the enterprise labour collective, an agreement of the industry labour collective and other forms of labour agreements as stipulated by the Government
2 The contents of a collective labour agreement must not be contrary to the provisions of law and must contain greater benefits for employees than those prescribed in the law
Article 74 Signing a collective labour agreement
1 A collective labour agreement shall be signed between the representative of the labour collective with the employer or the employer's representative
2 A collective labour agreement shall only be signed after items have been agreed by the parties at a collective bargaining session, and
(a) More than 50% of the people in the labour collective have voted in favour of the negotiated items which have been agreed in the case of signing an enterprise collective labour agreement;
(b) More than 50% of the representatives of the executive committees of the grassroots trade unions or of the superior trade union of grassroots trade unions have voted in favour of the negotiated items which have been agreed in the case of signing an industry collective labour agreement;
(c) In the case of a collective labour agreement in another form, [voting has been conducted] as stipulated in Government regulations
3 After a collective labour agreement is signed, the employer must publicly announce it for the
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Article 75 Sending copies of a collective agreement to State administrative bodies
Within ten (10) days from the date of signing a collective labour agreement, the employer or its representative must send one copy of such agreement to:
1 The provincial level State administrative body for labour in the case of an enterprise collective labour agreement
2 The Ministry of Labour, War Invalids and Social Affairs in the case of an industry collective labour agreement
Article 76 Effective date of collective labour agreement
The effective date of a collective labour agreement must be recorded in the agreement If no such date is recorded in the agreement, then the effective date shall be the date of signing by the parties
Article 77 Amendments and additions to collective labour agreement
1 The parties have the right to request amendments or additions to a collective labour agreement within the following deadlines:
(a) After three months' implementation in the case of a collective labour agreement with a term of under one year;
(b) After six months' implementation in the case of a collective agreement with a term of from one
to three years
2 If there is a change of law resulting in a collective labour agreement becoming inconsistent with provisions of law, then the two parties must amend or supplement such agreement within fifteen (15) days from the date on which the new provisions of law take effect
During the period of conducting amendments or additions to a collective labour agreement, the rights and interests of employees shall be implemented in accordance with law
3 The procedures for amendments and additions to a collective labour agreement shall be conducted the same as those for signing a collective labour agreement
Article 78 Invalid collective labour agreement
1 A collective labour agreement is partially invalid if one or a number of items in it are contrary to law
2 A collective labour agreement is wholly invalid in any of the following circumstances:
(a) The whole contents of the agreement are contrary to law;
(b) The person signing the agreement lacked authority;
(c) The signing of the collective labour agreement did not comply with the collective bargaining rules [process]
Article 79 Authority to declare a collective labour agreement invalid
People's courts have the right to declare a collective labour agreement to be invalid
Trang 36Article 80 Dealing with an invalid collective labour agreement
When a collective labour agreement is declared invalid, then the rights, obligations and interests of the parties set out in the collective labour agreement and corresponding to the entire or partial invalidity shall
be resolved in accordance with provisions of law on labour and the lawful agreements in labour contracts
Article 81 Expiry of collective labour agreement
Within the three month period prior to expiry of a collective labour agreement, both parties may negotiate
an extension of the duration of the existing collective labour agreement or enter into a new collective labour agreement
When a collective labour agreement expires during the negotiation process, the former collective labour agreement shall continue to be implemented for a maximum sixty (60) day period
Article 82 Expenses for collective bargaining and for signing collective labour agreement
The employer is responsible to pay all expenses of negotiating, signing, amending and supplementing, and announcing the collective labour agreement
Section 4
Enterprise Collective Labour Agreement Article 83 Signing an enterprise collective labour agreement
1 People competent to sign an enterprise collective labour agreement are regulated as follows:
(a) The representative of the labour collective at the grassroots level on behalf of the labour collective;
(b) The employer or its representative on behalf of the employer
2 An enterprise collective labour agreement shall be made in five copies, of which:
(a) Each signing party shall retain one copy;
(b) One copy shall be sent to the State authority prescribed in article 75 of this Code;
(c) One copy shall be sent to the superior level trade union [above] the grassroots trade union and one copy shall be sent to the organization representing employers of which the employer is a member
Article 84 Implementation of enterprise collective labour agreement
1 The employer and [all] employees including those who commence work after the effective date of a collective labour agreement are responsible to fully implement such agreement
2 If the rights, obligations and interests of the parties in a labour contract signed before the effective date of a collective labour agreement are less favourable than the corresponding provisions in such collective labour agreement, then the corresponding provisions of the collective labour agreement
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date of the collective labour agreement
3 If either party considers that the other party has failed to fully implement or is in breach of the provisions of the collective labour agreement, such party has the right to demand proper implementation and the two parties must jointly consider resolution; and if the matter is unable to be resolved, then either party has the right to request resolution of a collective labour dispute in accordance with law
Article 85 Duration of enterprise collective labour agreement
An enterprise labour collective agreement shall have a duration of from one to three years When an enterprise signs an enterprise collective labour agreement for the first time, the duration of such agreement may be less than one year
Article 86 Implementation of collective labour agreement when an enterprise transfers ownership of, right
to manage or right to use the enterprise, or merges, consolidates, divides or separates
1 In cases of transfer of ownership or of right to manage or right to use an enterprise; or where an enterprise merges, consolidates, divides or separates, then the employer shall continue [to rely on] and the representative of the labour collective shall rely on the labour usage plan to consider and select continuance of performance of, amendment of or addition to the old collective labour agreement, or shall conduct bargaining in order to sign a new collective labour agreement
2 In cases where the validity of a collective labour agreement is terminated because the employerterminates its operation, the interests of the employees shall be resolved in accordance with the law
2 An [industry] collective labour agreement shall be made in four copies, of which:
(a) Each signing party shall retain one copy;
(b) One copy shall be sent to the State authority prescribed in article 75 of this Code;
(c) One copy shall be sent to the directly superior trade union above the grassroots level
Article 88 Relationship between enterprise collective labour agreement and industry collective labour
agreement
1 If any provisions in an enterprise collective labour agreement or rules of the employer regarding lawful rights, obligations and interests of employees in the enterprise are less than those stipulated in the corresponding provisions of the industry collective labour agreement, then the enterprise
Trang 38collective labour agreement must be amended for compliance with the industry collective labour agreement within three (3) months from the effective date of the industry collective labour agreement.
2 Enterprises to which an industry collective labour agreement applies and which do not have an enterprise collective labour agreement may formulate an additional enterprise labour collective agreement with more favourable conditions for employees than those of the industry collective labour agreement
3 Enterprises in an industry which are not yet participants in the industry collective labour agreement are encouraged to also implement such agreement
Article 89 Duration of industry collective labour agreement
An industry collective labour agreement has a duration of from one to three years
CHAPTER 6
Wages Article 90 Wages
1 Wages means money which the employer pays to the employee in order for the latter to undertake
the work as agreed
Wages includes wage rates for the work or position plus wage allowances and other additional items.The wage rate of an employee must not be lower than the minimum wage rate stipulated by the Government
2 The wage paid to an employee shall be based on quality of work and labour productivity
3 Employers must ensure that wages are paid fairly, without discrimination between males and females for the same work with the same value
Article 91 Minimum wage rate
1 Minimum wage rate means the lowest rate paid to employees doing the most basic work in normal
working conditions, and it must ensure minimum living conditions of employees and family households
The minimum wage rate shall be fixed on a monthly, daily and/or hourly basis and shall be fixed in accordance with areas and industries
2 Depending on what are the minimum living conditions of employees and family households, economic conditions and wage rates on the labour market, the Government shall announce minimum area wage rates on the basis of recommendations from the National Wage Council
socio-3 The minimum wage of any one industry shall be determined by way of industry collective bargaining, shall be recorded in the industry collective labour agreement, but shall not be less than the minimum area wage rates announced by the Government
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Article 92 National Wage Council
1 The National Wage Council is an agency advising the Government and comprises members being representatives of the Ministry of Labour, War Invalids and Social Affairs, of Vietnam General Confederation of Labour, and of the central level organization representing employers
2 The Government shall provide specific regulations on the functions, duties and organizational structure of the National Wage Council
Article 93 Formulation of wage scales, wage tables and labour rates
1 An employer is responsible to formulate wage scales, wage tables and labour rates based on the principles stipulated by the Government on formulation of wage scales, wage tables and labour rates
in order to provide the bases for recruiting and employing workers and reaching agreement with them
on the wage rate to be stipulated in labour contracts and on payment of such wages to employees
2 The employer must, when formulating wage scales, wage tables and labour rates, seek an opinion from the organization representing the labour collective at the grassroots level, and make a public announcement of such items at workplaces of employees before implementing same and must also send them to the district level State administrative authority for labour in the locality where the employer has its production and business establishment
Article 94 Method of payment of wages
1 The employer has the right to select the method of payment of wages calculated by reference to time
or by reference to products [produced] or completed pieces of work The selected method of payment of wages must be maintained for a fixed period of time, and if such form is changed, the employer must provide the employees with advance notice of at least ten (10) days
2 Wages may be paid in cash or via the personal account of an employee opened at a bank In the case of payment via a bank, the employer must reach agreement with the employee on service fees for opening and maintaining the bank account
Article 95 Periodic payment of wages
1 An employee entitled to a wage calculated by reference to hours, days or weeks shall be paid at the end of the working hour, day or week or shall be paid a lump sum as agreed by the two parties, provided that at least one payment of wages is made every fifteen (15) days
2 An employee entitled to a wage calculated by reference to months shall be paid either monthly or half-monthly
3 An employee entitled to a wage calculated on the basis of products produced or a completed pieces
of work shall be paid in accordance with the agreement reached between the two parties; if the work
to be performed must be carried out over many months, the employee is entitled to payments in advance calculated on the amount of work performed within the month
Article 96 Principles for payment of wages
An employee is entitled to receive his or her wage directly, in full, and on time
In special cases where payment of wages cannot be made on time, payment must not be later than one month and the employer must also pay the employee an additional sum of money at least equal to [interest
Trang 40at] the interest rate for raising deposits published by the State Bank at the time when the wage is paid.
Article 97 Wages for working overtime and for night work
1 An employee who works overtime must be paid according to the wage unit price or wage of his or her current work as follows:
(a) On normal days, at a rate of at least one hundred and fifty per cent (150%);
(b) On weekly days off, at a rate of at least two hundred per cent (200%);
(c) On holidays and paid leave days, at a rate of at least three hundred per cent (300%) exclusive
of the wage for the holiday or the wage for the paid leave day of the employee entitled to the [daily] wage for the day
2 Any employee working at night shall be paid an additional minimum thirty per cent (30%) of the wage calculated at the wage unit price or wage for such work conducted during a normal day time
3 An employee working overtime at night shall be paid, in addition to the wages prescribed in clauses 1 and 2 of this article, an additional twenty per cent (20%) of the wage calculated at the wage unit price
or wage for such work conducted during day time
Article 98 Wages on ceasing work
An employee who is required to cease work shall be paid as follows:
1 If [ceasing work] was due to the fault of the employer, the employee is entitled to payment of the full wage
2 If [ceasing work] was due to the fault of the employee, the employee is not entitled to payment of wages; and other employees in the same unit who also have to cease work shall be paid wages at a rate agreed on by the two parties but not less than the minimum area wage stipulated by the Government
3 If there is a breakdown in electricity or water through no fault of the employer or employee, or due to
an objective cause such as a natural disaster, fire, dangerous epidemic, enemy destruction, or relocation of operational address pursuant to a request of the competent State authority or for economic reasons, then the level of wages for ceasing work shall be agreed by the two parties but not less than the minimum area wage stipulated by the Government
Article 99 Payment of wages by [contractor's] foreman
1 In locations where a foreman or person with an equivalent intermediary role is employed, the employer being the principal must have a list of such persons together with their addresses and also
a list of employees working with the foreman or equivalent person, and the employer must ensure compliance by the foreman or equivalent person with the law on payment of wages and onoccupational safety and hygiene
2 If such foreman or equivalent person fails to pay wages in full or at all and fails to ensure other interests of the employees, then the employer being the principal is responsible to make payment of wages and ensure the interests of employees