Toàn bộ nội dung văn bản bằng tiếng Anh của Bộ Luật Lao động Việt Nam mới nhất - the Labor Code of Vietnam.
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NATIONAL ASSEMBLY
|
SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom – Happiness |
Law No. 10/2012/QH13
|
Hanoi, June 18, 2012
|
LABOR CODE
Pursuant to the Constitution 1992 of the Socialist Republic
of Vietnam amended and supplemented under the Resolution No. 51/2001/QH10;
The National Assembly promulgates the Labor Code.
Chapter I
GENERAL PROVISIONS
Article 1. Scope of regulation
The Labor Code specifies the labor standards; the rights,
obligations and responsibilities of the employees, the employers, the labor
representative organizations, the employer representative organizations in the
labor relation and other relations directly related to the labor relation, the
State management of labor.
Article 2. Subjects of application
1. The Vietnamese employees, apprentices, interns and other
employees specified in this Code.
2. The employers.
3. Foreign employees working in Vietnam.
4. Other individuals, agencies and organizations directly
related to the labor relation.
Article 3. Interpretation of terms
In this Code, the following terms are construed as follows:
1. Employees are people from 15 years old and above, capable
of working, working under labor contracts, receiving salaries and subject to
the management of the employers.
2. The employers are enterprises, agencies, organizations,
cooperatives, households and individuals hiring, employing employees under
labor contracts. The individuals must be sufficiently capable of civil acts.
3. The labor collectives are organized collectives of the
employees working for one employer or in one division under the organizational
structure of the employer.
4. The internal labor representative organizations are the
executive board of the internal Union or the executive board of the direct superior
Union if the internal Union has not been established
5. The employer representative organizations are
organizations legally established to represent and protect the lawful rights
and interests of the employers in the labor relation.
6. Labor relation is the social relation occurring while
hiring or employing, paying salaries between the employee and the employer.
7. Labor dispute is the dispute over the rights, obligations
and interests arising in the labor relation.
The labor disputes include the personal labor dispute
between the employee and the employer, and the collective labor dispute between
the labor collective and the employer.
8. Collective labor dispute over rights is the dispute
between the labor collective and the employer arising out of the inconsistent
explanation and implementation of the law provisions on labor, the collective
labor agreement, the labor regulations and other lawful agreements and
regulations.
9. The collective labor dispute over interests is the labor
dispute arising when the labor collective requests the establishment of new
working conditions compared to the law provisions on labor, the collective
labor agreement, labor regulations and other lawful agreements and regulations
during the negotiation between the labor collective and the employers.
10. Coercive labor is the use of force, the threat to use
force or other tricks to coerce other people to work involuntarily.
Article 4. The State policies on labor
1. Ensuring the legitimate rights and interests of the
employees; encouraging agreements that ensure more favorable conditions for the
employees than that in the law provisions on labor; encouraging employees to
purchase stocks and contribute capital to the production and business
development.
2. Ensuring the lawful rights and interests of the
employers, managing labor in a legal, democratic, equitable, civilized manner,
and enhance the social responsibilities.
3. Facilitating the employment creation, self-employment,
vocational training and learning towards employment opportunities, facilitating
the production and business that attract a lot of labor.
4. Planning the development and distribution of labor force;
providing vocational training and skill improvement courses for employees,
offering incentives to employees with great professional expertise that satisfy
the modernization and industrialization requirements of the country.
5. Planning the labor market development, diversifying the
means of connection between the labor supply and demand.
6. Guiding the communication and collective negotiation
between employees and employers, building stable, progressive and harmonious
labor relations.
7. Ensuring the gender equality; imposing labor regulations
and social policies in order to protect female employees, disabled employees,
elderly employees and underage employees.
Article 5. Rights and duties of employees
1. The employees are entitled to:
a) Work, independently select works, vocations, get
vocational training and improvement without discrimination;
b) Receive salaries consistently with the vocational skills
and grade on the basis of the agreement with the employer; receive work
protection, work in safe and hygienic conditions; take official leave, paid
annual leave and enjoy collective benefits;
c) Establish, join and participate in activities of the
Union, professional organizations and other organizations as prescribed by law;
request and participating in discussions with the employer, exercise the
democratic regulation and get consultancy at workplaces in order to protect the
lawful rights and interests; participate in the management under the
regulations of the employer.
d) Unilaterally terminate the labor contract as prescribed
by law;
dd) Be on strike.
2. The employees are responsible to:
a) Perform the labor contract and the collective labor
agreement;
b) Observe the labor discipline, labor regulations and obey
the lawful management of the employer;
c) Implement the law provisions on social insurance and law
provisions on medical insurance.
Article 6. Rights and obligations of employers
1. The employers are entitled to:
a) Employ, arrange and manage labor according to the demand
for production and business; commend and discipline for violations of labor
discipline;
b) Establish, join and participate in the activities of
professional organizations and other organizations as prescribed by law;
c) Request the labor collective to discuss, negotiate and
conclude the collective labor agreement; participate in settling labor disputes
and strikes; discuss with the Union about the problem in labor relations,
improve the material and mental life of the employees;
d) Temporarily shut down the workplace.
2. The employers are responsible to:
a) Perform the labor contract, collective labor agreement
and other agreements with employees, respect the honor and dignity of
employees;
b) Establish the mechanism and discuss with the labor
collective at the enterprise and strictly observe the internal democratic
regulations;
c) Make the labor management book, salary book and present
them at the request from competent agencies;
d) Declare the employment within 30 days as from starting
the operation, periodically make and send reports on the change in the labor
status during the operation to local State labor management agencies;
dd) Implement the law provisions on social insurance and law
provisions on medical insurance.
Article 7. Labor relations
1. Labor relation between the employee or the labor
collective with the employer is established through communication, negotiation
and agreement in a voluntary, affable, equitable, cooperative manner, in which
the lawful rights and interests are mutually respected.
2. The Union, the employer representative organizations
shall join the State agencies in building the stable, progressive and
harmonious labor relations, supervising the implementation of law provisions on
labor; protecting the lawful rights and interests of employees and the
employers.
Article 8. Prohibited acts
1. Discrimination by sex, race, social class, marital
status, belief, religion, discrimination against HIV sufferers, disabled people
or against the reasons for establishing, joining and participate in the Union
activities.
2. Maltreatment of employees, sexual harassment at
workplaces.
3. Coercive labor.
4. Exploiting vocational training and apprenticeship to make
profit, exploit labor or entice, coerce the vocational learners, apprentices
into committing unlawful acts.
5. Using untrained employees or employees without national
vocational certificates to do the jobs that required trained employees or
employees with national vocational certificates
6. Deceitfully enticing and advertising in order to cheat
employees or exploiting the employment services to contractually send employees
abroad to commit unlawful acts.
7. Illegally using underage labor.
Chapter II
EMPLOYMENTS
Article 9. Employments and employment creation.
1. Employments are activities that generate incomes that the
law does not prohibit
2. The State, the employers and the society are responsible
to create employments and ensure that everyone capable of working is offered
employment possibilities.
Article 10. The right to work of employees
1. The employee is entitled to work for any employer at any
place that the law does not prohibit.
2. The employee may directly contact the employee or via the
employment services to seek employment towards their expectations, vocational
grade and health.
Article 11. The right to employ of employers
The employer is entitled to employ labor directly or via
employment services, or outsourcing service providers. The employer is entitled
to increase or decrease the labor depending on the production and business
demand.
Article 12. The State policies on employment development
support
1. The State shall determine the target for employment
increase in the five-year and the annual socio-economic development plans.
Depending on the socio-economic condition in each period,
the Government shall present the National Assembly to approve the National
program of vocational training and employment.
2. Establishing the policies on unemployment insurance and
incentives for employees to create self-employment, support employers that
employ females, disabled people or people from ethnic groups.
3. Encouraging and facilitate the investment in production
and business development of domestic, foreign organizations and individuals in
order to create more employments.
4. Supporting employers and employees to seek and expand the
labor markets overseas.
5. Establishing the National fund of employments to grant
preferential loans for employment creation and other activities as prescribed
by law.
Article 13. Employment programs
1. People’s Committees of central-affiliated cities and
provinces (hereinafter referred to as provincial People’s Committees) shall
establish and present the local employment programs to the People’s Council at
the same level for approval.
2. Other employers, State agencies, enterprises,
socio-political organizations, social organizations, within their scope of
duties and authority, are responsible to participate in the employment
programs.
Article 14. Employment service organizations
1. Employment service organizations shall provide
consultancy, offer employments and provide vocational training to employees;
supply and recruit labor at the request of the employer; collect and provide
information about the labor market, and perform other duties as prescribed by
law.
2. Employment service organizations include employment
service centers and enterprises providing employment services.
Employment service centers are established and operated in
accordance with the Government’s provisions.
The enterprises providing employment services are
established and operated as prescribed by the Law on Enterprise and must obtain
the Licenses to provide employment services issued by provincial State labor
management agencies.
3. Employment service organizations are eligible for
collecting fees, for tax exemption and reduction as prescribed by law
provisions on fees and law provisions on tax.
Chapter III
LABOR CONTRACT
Section 1. LABOR CONTRACT CONCLUSION
Article 15. Labor contract
A labor contract is an agreement between the employee and
the employer on the paid job, the work conditions, the rights and obligations
of each party in the labor relation.
Article 16. Form of labor contracts
1. A labor contract must be concluded in writing and made
into 02 copies, the employee shall keep 01 copy, the employer shall keep 01
copy, except for the case prescribed in Clause 2 this Article.
2. For temporary jobs with terms under 03 months, the
parties may conclude verbal contracts.
Article 17. Principles of labor contract conclusion
1. Voluntary, equitable, affable, cooperative and truthful.
2. The contract is freely concluded without violating the
law, the collective labor agreement and social ethics.
Article 18. Responsibilities for labor contract conclusion
1. Before recruiting, the employer and the employee must
directly conclude the labor contract.
In case the employee is from 15 to 18 years old, the labor
contract conclusion must be agreed by the legal representative of the employee.
2. For casual works and regular works with terms under 12
months, the employee group may authorize an employee in the group to conclude
the written contract; in this case, the validity of the contract is equal to
each person.
The labor contract concluded by the authorized person must
be enclosed with the list specifying the full names, ages, genders, residences,
occupations and signatures of every employee.
Article 19. Responsibilities to provide information before
the labor contract conclusion
1. The employer must provide information for employees about
the work, work location, work conditions, working hours, break time, labor
safety, labor hygiene, salary, method of salary payment, social insurance, the
provisions on business secret protection, technical know-how and other issues
directly related to the labor contract conclusion requested by the employee.
2. The employee must provide information for the employer
about their full name, gender, residence, educational background, vocational
skills, health condition and other issues directly related to the labor
contract conclusion requested by the employer.
Article 20. The prohibited acts committed by the employer
during the conclusion and performance of the labor contract
1. Keeping the originals of the identity papers,
certificates and qualifications of the employee.
2. Requesting the employee to mortgage cash or property for
the labor contract performance.
Article 21. Concluding labor contracts with multiple
employers.
The employee may conclude contracts with multiple employers
as long as they can ensure the implementation of the concluded contents.
For contracts concluded with multiple employers, the social
insurance, medical insurance of the employee must comply with the Government’s
provisions.
Article 22. Kinds of labor contracts
1. The labor contract must be concluded in one of the
following kind:
a) Labor contracts without fixed term;
The labor contract without fixed term is a contract in which
both parties do not specify the term and the expiry date of the contract.
b) Fixed-term labor contracts;
The fixed-term labor contract is a contract in which both
parties specify the term and the expiry date of the contract within 12 to 36
months.
c) Casual labor contracts or regular labor contracts with
terms under 12 months.
2. In case the employee keeps working when the labor
contract prescribed in Point b and Point c Clause 1 this Article expires, both
parties must conclude the new labor contract within 30 days as from its expiry
date; if the new labor contract is not concluded, the contracts concluded as
prescribed in Clause 1 this Article shall be come a labor contract without
fixed term, and the contract concluded as prescribed in Point c Clause 1 this
Article shall be come a labor contract with a fixed term of 24 months
The new labor contract being a fixed-term contract shall be
concluded only one more time. After that, if the employee keeps working, the
labor contract without fixed-term must be concluded.
3. It is prohibited to conclude casual labor contracts or
regular labor contracts with terms under 12 months to do regular works from 12
months and above, except for temporary replacement of employees doing military
service, taking maternity leave, suffering from sickness or occupational
accidents, or taking other temporary leave.
Article 23. Labor contract contents
1. The labor contract must include the following contents:
a) Name and address of the employer or the legal
representative;
b) The full name, date of birth, gender, residence, ID
number or other legal papers of the employee;
c) The work and working location;
d) The labor contract term;
dd) The salary, method of salary payment, salary payment
term, allowance and other additional pays;
e) The grade increase, salary increase regime;
g) The working hours, break time;
h) The labor protection equipment for the employee;
i) Social insurance and medical insurance.
k) The vocational training and improvement courses.
2. In case the employee doing works directly related to the
business secret, technical know-how as prescribed by law, the employer is
entitled to reach a written agreement with the employee on the contents and
term of business secret, technical know-how protection, the interests and
compensation for the employee’s violations.
3. For employees working in the agriculture, forestry,
fishery, salt industries, both parties may remove a number of primary contents
from the labor contract and reach additional agreements on the settlement in
case the contract performance is affected by natural disasters, fire and
weather.
4. The contents of labor contracts with employees being
hired as directors in the enterprise contributed by the State must comply with
the Government’s provisions.
Article 24. Labor contract annex
1. The labor contract annex is part of the labor contract
and as valid as an labor contract.
2. The labor contract annex is to specify a number of terms
or to amend and supplement the labor contract.
In case the labor contract Annex specify a number of labor
contract terms that leads to different interpretation of the labor contract,
the labor contract contents shall apply.
In case the labor contract annex amends and supplements the
labor contract, the amendments, supplements and date of effect must be
specified.
Article 25. Labor contract effect
The labor contract takes effect as from the date of
conclusion unless otherwise agreed by both parties or prescribed by the law.
Article 26. Probation
1. The employer and the employee may reach the agreements on
the probation, the rights and obligations of both parties during the probation.
If the probation is agreed, the probation contract may be concluded.
The probation contract includes the contents prescribed in
Point a, b, c, d, dd, g and h Clause 1 Article 23 of this Code.
2. The employees working under casual labor contract do not
have to undergo probation.
Article 27. Probation duration
Only one probation is given for a job. The probation
duration varies according to the nature, the complication of the work and must
satisfy the following conditions:
1. Within 60 days for works that demand college education or
further;
2. Within 30 days for works that demand vocational
intermediate education, technical workers, professional workers.
3. Within 6 working days for other works.
Article 28. Probation salary
The employee’s salary during the probation is agreed by both
parties but must be at least 85% of the official salary.
Article 29. Probation expiry
1. If the probation is passed, the employer must conclude
the labor contract with the employee.
2. During the probation, each party is entitled to terminate
the probation without prior notice and without compensation if the probation
fails to satisfy the requirements agreed by both parties.
Section 2. LABOR CONTRACT PERFORMANCE
Article 30. Doing works under the labor contract
The work under the labor contract must be done by the
employee that concluded the labor contract. The working location must comply
with the labor contract or other agreements between both parties.
Article 31. Transferring employees to do other works than in
the labor contract
1. Upon sudden difficulties from natural disasters, fire,
epidemics, from the implementation of preventive and remedial measures for
occupational accidents and occupational illness, from electricity or water
supply system malfunctions, or from the production and business demands, the
employer is entitled to temporarily transfer the employee to do other work than
in the labor contract within 60 cumulative working days in a year, unless
otherwise agreed by the employee.
2. When the employee is temporarily transferred to other
works than in the labor contract, the employer must notify the employee in
advance at least 03 days, specify the duration and arrange works suitable for
the employee’s health and gender.
3. The employee doing the works prescribed in Clause 1 this
Article shall be paid for the new work. If the new work salary is lower than
that of the old one, the old salary is kept within 30 working days. The new
work salary must be at least 85% of that of the old one but must not be lower
than the local minimum salary prescribed by the Government.
Article 32. Cases of labor contract suspension
1. The employee have to do military service
2. The employee is detained as prescribed by law provisions
on criminal procedures.
3. The employee have to implement the decision on compulsory
treatment and education in reformatories, detoxification centers or educational
facilities.
4. The pregnant female employees prescribed in Article 156
of this Code.
5. Other cases agreed by the parties.
Article 33. Re-employing employees after the labor contract
suspension expires.
Within 15 days as from the labor contract suspension expires
as prescribed in Article 32 of this Code, the employee must be present at the
workplace and the employee must re-employ the employee, unless otherwise agreed
by the parties.
Article 34. Employees working shorter hours
1. The employees working shorter hours are employees that
work less than the usual working hours by day or by week specified in the law
provisions on labor, collective labor agreement, professional collective labor
agreement or the employer’s provisions.
2. The employee may reach an agreement with the employer on
the shorter working hours when concluding the labor contract.
3. The employee working shorter hours shall have the salary,
rights and obligations similarly to that of other full-time employees, shall
have equitable opportunities, labor safety and labor hygiene conditions without
discrimination.
Section 3. AMENDING, SUPPLEMENTING, TERMINATING LABOR
CONTRACT
Article 35. Amending and supplementing labor contract
1. During the performance of labor contract, the party that
demands to amend and supplement the labor contract must notify to the other
party in advance at least 3 working days of the contents being amended and
supplemented.
2. If the agreement is reached, the amendment and supplement
of the labor contract must be carried out by concluding the labor contract
annex or concluding the new labor contract.
3. If the agreement on the amendment and supplement of the
labor contract cannot be reached, the concluded labor contract shall continue
to be performed.
Article 36. Cases of labor contract termination
1. The labor contract expires, except for the case
prescribed in Clause 6 Article 192 of this Code.
2. The work under the labor contract is done.
3. Both parties agree to terminate the labor contract.
4. The employee satisfies the requirements of about social
insurance duration and pension age as prescribed in Article 187 of this Code.
5. The employee is condemned to imprisonment, to death or
prohibited from doing the work in the labor contract according to the legal
judgment and decision from the Court.
6. The employee dies, is declared dead, missing or incapable
of civil acts by the Court.
7. The employer being an individual dies, is declared dead,
missing or incapable of civil acts by the Court; the employer not being an
individual stops the operation.
8. The employee is disciplinarily dismissed as prescribed in
Clause 3 Article 125 of this Code.
9. The employee unilaterally terminates the labor contract
as prescribed in Article 37 of this Code.
10. The employer unilaterally terminates the labor contract
as prescribed in Article 38 of this Code; the employer dismisses the employee
due to changes in the mechanism, technology or for some economic reasons, or
merger, separation of enterprises, cooperatives.
Article 37. The right to unilaterally terminate the labor
contract of employees
1. The employee working under the fixed-term labor contract,
casual labor contract or regular labor contract with term under 12 months is
entitled to unilaterally terminate the contract sooner in the following cases:
a) The employee is not provided with the right work, the
workplace or the working conditions as agreed in the labor contract;
b) The salary is not adequately or punctually paid as agreed
in the labor contract;
c) The employee suffers from maltreatment, sexual
harassment, coercive labor;
d) The employee or their family encounters difficulties that
the labor contract cannot continue to be performed;
dd) The employee is elected to perform specialized duties at
elective agencies or designated to hold a position in the State mechanism;
e) The pregnant female employee has to quit job under the
direction from competent medical examination and treatment facilities.
g) The employees suffering from sickness or accidents cannot
recover after 90 consecutive days of treatment for employees working under
fixed-term labor contracts, or one fourth of the contract term for employees
working under casual labor contract or regular labor contract with term under
12 months.
2. When unilaterally terminate the labor contract as
prescribed in Clause 1 this Article, the employee must notify the employer:
a) At least 3 working days for the cases prescribed in Point
a, b, c and g Clause 1 this Article;
b) At least 30 working days for fixed-term labor contracts,
03 working days for casual labor contracts or regular labor contracts with term
under 12 months regarding the cases prescribed in Point d and dd Clause 1 this
Article;
c) For the cases prescribed in Point e Clause 1 this
Article, the advance notice time must comply with the provisions in Article 156
of this Code.
3. The employees working under labor contracts without fixed
term are entitled to unilaterally terminate the labor contract but the employer
must be notified in advance at least 45 days, except for the case prescribed in
Article 156 of this Code.
Article 38. The right to unilaterally terminate the labor
contract of the employer
1. The employer is entitled to unilaterally terminate the
labor contract in the following cases:
a) The employee regularly fails to complete the works
according to the labor contract;
b) The employee suffering from sickness or accidents cannot
recover after 12 consecutive months of treatment for labor contracts without
fixed term, after 06 months for employees working under fixed-term labor
contracts, or over one half of the contract term for employees working under
casual labor contract or regular labor contract with term under 12 months
When the employee recovers, he/she may be considered to
conclude the new contract.
c) The employer have to reduce the production and vacancies
after taking all measures to overcome the consequences from natural disasters,
fire or other force majeure;
d) The employee fails to be present at the workplace after
the duration prescribed in Article 33 of this Code.
2. When unilaterally terminating the labor contract, the employer
must notify the employee:
a) At least 45 days for labor contracts without fixed term;
a) At least 30 days for fixed-term labor contracts;
c) At least 30 working days for the case prescribed in Point
b Clause 1 this Article and for casual labor contracts or regular labor
contracts with term under 12 months.
Article 39. The employer must not unilaterally terminate the
labor contract in the following cases:
1. The employee is undergoing treatment for sickness or
occupational accidents, occupational illness under the decision from the
competent medical examination and treatment facility except for the case
prescribed in Point b Clause 1 Article 38 of this Code.
2. The employee is on annual leave, personal leave and other
leave permitted by the employer.
3. The female employees prescribed in Clause 3 Article 155
of this Code.
4. The employee is on maternity leave as prescribed by law
provisions on social insurance.
Article 40. Canceling the unilateral termination of the
labor contract
Each party is entitled to cancel the unilateral termination
of the labor contract before the advance notice time limit expires. The
cancellation must be made in writing and agreed by the other party
Article 41. Illegal unilateral termination of the labor
contract
The illegal unilateral termination of the labor
contract is the labor contract termination contrary to Article 37, 38 and 39 of
this Code.
Article 42. Obligations of the employer when illegally
unilaterally terminating the labor contract
1. Re-employing the employee under the concluded labor
contract and pay the salary, social insurance, medical insurance for the days
the employee is banned from working plus the salary of at least 02 months under
the labor contract.
2. In case the employee does not wish to continue working,
the employer must give the severance pay as prescribed in Article 48 of this
Code apart from the compensation prescribed in Clause 1 this Article.
3. In case the employer does not wish to re-employ the
employee and the employee agrees, both parties shall reach the agreement on the
extra compensation equal to the salary of at least 02 months under the labor
contract apart from the compensation prescribed in Clause 1 this Article and
the severance pay as prescribed in Article 48 of this Code.
4. If no vacancy for the position in the labor contract is
available but the employee still wishes to continue working, both parties must
negotiate to amend and supplement the labor contract apart from the
compensation prescribed in Clause 1 this Article.
5. For violations of the advance notice time, the employee
must be paid a compensation equivalent to the his/her salary of the unnoticed
days.
Article 43. Obligations of the employee when illegally
unilaterally terminating the labor contract
1. Being ineligible for severance pay and paying
compensation equivalent to the half-month salary under the labor contract to
the employee.
2. For violations of the advance notice time, the employer
must be paid a compensation equivalent to the employee’s salary of the
unnoticed days.
3. The training cost must be returned to the employer as
prescribed in Article 62 of this Code.
Article 44. Obligations of the employer in case of changes
in the mechanism, technology or economic reasons
1. In case of changes in the mechanism, technology that
affect the employment of multiple employees, the employer is responsible to
devise and implement the employment plan as prescribed in Article 46 of this
Code; if new positions are available, the employees must be retrained and
employed.
In case the employer cannot create new employments that the
employees must be dismissed, the employer must give the redundancy pay to the
employees as prescribed in Article 49 of this Code.
2. If the employee faces the risk of unemployment or
dismissal for some economic reasons, the employer must devise and implement the
employment plan as prescribed in Article 46 of this Code.
In case the employer cannot create new employments that the
employees must be dismissed, the employer must give the redundancy pay to the
employee as prescribed in Article 49 of this Code.
3. The dismissal of multiple employees prescribed in this
Article is only carried out after the discussion with the internal labor
representative organization and the provincial State labor management agency must
be notified in advance 30 days.
Article 45. Obligations of the employer when merging,
dividing, separating the enterprise or the cooperative
1. For the merger, division, separation of the enterprise or
cooperative, the succeeding employer must be responsible to continue employing
the existing employees and carry out the labor contract amendment and
supplement.
In case there are not enough vacancies for the existing
employees, the succeeding employer must be responsible to continue devising and
implementing the employment plan as prescribed in Article 46 of this Code.
2. For ownership transfers or property use right transfers,
the preceding employer must devise the employment plan as prescribed in Article
46 of this Code.
3. In case the employer dismisses the employee as prescribed
in this Article, the employer must give the redundancy pay to the employee as
prescribed in Article 49 of this Code.
Article 46. Employment plan
1. The employment plan must include the following contents:
a) The list and quantity of the employees being directly
employed, the employees being retrained for re-employment;
b) The list and quantity of the retired employees;
c) The list and quantity of the employees being transferred
to work shorter hours; the dismissed employees;
d) The measures and financial sources for implementing the
plan.
2. The plan development must be participated by the internal
labor representative organization.
Article 47. Obligations of the employer when terminating the
labor contract
1. At least 15 days before the expiry date of the fixed-term
labor contract, the employer must notify the employee in writing of the expiry
date of the labor contract.
2. Within 07 working days as from terminating the labor
contract, both parties are responsible to fully pay the amounts related to each
party’s interests. This time limit may be longer if necessary but must not
exceed 30 days.
3. The employer is responsible to complete the procedures
for certifying and returning the social insurance book and other papers of the
employee that have been kept by the employer.
4. In case the enterprise or cooperative is shut down,
dissolve or bankrupt, the salary, severance pay, social insurance, medical
insurance, unemployment insurance and other benefits of the employee under the
collective labor agreement and the signed labor contract shall be paid first.
Article 48. Severance pay
1. When the labor contract terminates as prescribed in
Clause 1, 2, 3, 5, 6, 7, 9 and 10 Article 36 of this Code, the employer is
responsible to give the severance pay to the regular employees that have been
worked for 12 months or more. A half- month salary shall be paid for each
working year.
2. The working time for severance pay calculation is the
total duration that the employee has actually worked for the employer excluding
the time the employee has taken the unemployment insurance as prescribed in the
Law on Social insurance and the time the employer paid the severance pay.
3. The salary for severance pay calculation is the average
salary under the labor contract of the preceding 06 months before the employee
is dismissed.
Article 49. Redundancy pay
1. The employer is responsible to give the redundancy pay to
the dismissed regular employees that have worked for 12 months or more as
prescribed in Article 44 and 45 of this Code. 1-month salary is paid for each
working year but must not be lower than the salary of 02 months.
2. The working time for redundancy pay calculation is the
total duration that the employee has actually worked for the employer excluding
the time the employee has taken the unemployment insurance as prescribed in the
Law on Social insurance and the time the employer paid the severance pay.
3. The salary for redundancy pay calculation is the average
salary under the labor contract of the preceding 06 months before the employee
is dismissed.
Section 4. LABOR CONTRACT INVALIDATION
Article 50. Labor contract invalidation
1. The labor contract is totally invalidated in one of the
following cases:
a) The entire labor contract contents are illegal;
b) The labor contract is concluded by incompetent persons;
c) The works in the concluded labor contract is prohibited
by law;
d) The labor contract restricts or obstructs the right to
establish, join and participate in the Union activities of the employee.
2. The labor contract is partially invalidated when part of
it violates the law provisions but does not affect the rest.
3. In case part or the entire labor contract specifies the
employee’s interests that are inferior to that in the effective collective
labor agreement, law provisions on labor, labor regulations, or the labor
contract restricts other rights of the employee, part or the entire labor
contract shall be invalidated.
Article 51. Authority to invalidate labor contracts
1. The Labor Inspectors, People’s Courts are entitled to
invalidate labor contracts.
2. The Government shall specify the order and procedures for
the Labor Inspectors, People’s Courts to invalidate labor contracts.
Article 52. Handling invalidated labor contracts
1. The partially invalidated labor contract shall be handled
as follows:
a) The rights, obligations and interests of the parties
shall be settled under the collective labor agreement or law provisions;
b) The parties shall amend, supplement the invalidated part
of the labor contract to suit the collective labor agreement or law provisions
on labor.
2. The totally invalidated labor contract shall be handled
as follows:
a) In case of ultra virus signing prescribed in Point b
Clause 1 Article 50 of this Code, the State labor management agencies shall
guide the parties to sign it again;
b) The rights, obligations and interests of employees shall
be settled under the collective labor agreement or law provisions;
3. The Government shall elaborate this Article.
Section 5. OUTSOURCING
Article 53. Outsourcing
1. Outsourcing is when an employee employed by an enterprise
licensed to provide outsourcing services works for another employer and subject
to the latter’s management while the labor relation with the outsourcing
service provider is still sustained.
2. Outsourcing service is a conditional business and only
provided for a certain number of works.
Article 54. Outsourcing service providers
1. Outsourcing service providers must pay a deposit and
obtain the license to provide outsourcing services.
2. The maximum outsourcing duration is 12 months.
3. The Government shall specify the outsourcing licensing,
the deposit payment and the list of works eligible for outsourcing.
Article 55. Outsourcing contract
1. The outsourcing service provider and the outsourcing
party must sign the written outsourcing contract. The contract is made into 02
copies, each party keeps one copy.
2. The outsourcing contract must include the following
contents:
a) The working location, the position being outsourced, the
work detail and requirements for the outsourced employee;
b) The outsourcing duration, the starting time of the
employee;
c) The working hours, breaking time, labor safety and
hygiene conditions at the work place;
d) The responsibilities for the employees of each party.
3. The outsourcing contract must not include the agreements
on the rights and interests of the employee that are inferior to that in the
labor contract signed by the outsourcing service provider and the employee.
Article 56. Rights and obligations of outsourcing service
providers
1. Providing the eligible employees consistently with the
requirements of the outsourcing party and the labor contract signed with the
employee.
2. Informing the employee about the outsourcing contract contents.
3. Signing the labor contract with the employee as
prescribed in this Code.
4. Informing the outsourcing party about the employee’s
résumé and requirements.
5. Fulfilling the obligations of the employer as prescribed
in this Code; paying salaries, holiday pay, annual leave pay, work suspension
pay, severance pay, redundancy pay, compulsory social insurance, unemployment
insurance for the employee as prescribed by law.
Ensuring that the outsourced employee’s salary is not lower
than that of the outsourcing party’s employees at equal levels, doing the same
or equivalent job.
6. Recording the quantity of the outsourced employees, the
outsourcing fees and sending reports to provincial State labor management
agencies.
7. Disciplining employees that violate labor discipline when
they are returned due to labor discipline violations.
Article 57. Rights and obligations of the outsourcing party
1. Notifying and guiding the outsourced employee about the
labor regulations and other regulations.
2. The working condition discrimination against outsourced
employees in favor of their own employees is prohibited.
3. Reaching agreements with the outsourced employees when
they are mobilized to work on the night shift or to work overtime outside the
outsourcing contract.
4. The outsourced employees must not be transferred to other
employers.
5. Reaching the agreement with the outsourced employee and
the outsourcing service provider on officially employing the outsourced
employee in case the labor contract between the employee and the outsourcing
service provider is unexpired.
6. Returning the employee to the outsourcing service
provider if they are not eligible as agreed or if they violate labor
discipline.
7. Providing evidence of the labor discipline violations of
the outsourced employee for the outsourcing service provider for disciplining.
Article 58. Rights and obligations of outsourced employees
1. Doing the work under the labor contract signed with the
outsourcing service provider.
2. Observing the labor regulations, labor discipline,
collective labor agreement and the lawful management of the outsourcing party.
3. Receiving salary not lower than that of the outsourcing
party’s employees at the same level, doing the same or equivalent job.
4. Lodging complaints with the outsourcing service provider
in case the outsourcing party violates the agreements in the outsourcing
contract.
5. Exercising the right to unilaterally terminate the labor
contract with the outsourcing service provider as prescribed in Article 37 of
this Code.
6. Reaching the agreement to conclude the labor contract
with the outsourcing party after terminating the labor contract with the
outsourcing service provider.
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