Chương III Bộ Luật lao động 2012: Hợp đồng lao động

Chapter III

LABOR CONTRACT

Section 1. ENTRY INTO LABOR CONTRACTS

Article 15. Labor contract

Labor contract is an agreement between an employee and an employer on a paid job, working conditions and the rights and obligations of each party in industrial relations.

Article 16. Forms of labor contract

1. A labor contract must be established in writing and made in two copies, one to be kept by the employee and the other by the employer, except the case stated in Clause 2 of this Article.

2. For temporary jobs with a duration of under 3 months, the parties may enter into a verbal labor contract.

Article 17. Principles of entry into a labor contract

1. Voluntariness, fairness, good faith, cooperation and honesty.

2. Freedom to enter into a labor contract which is not contrary to the law, the collective labor agreement and social morality.

Article 18. Obligation to enter into a labor contract

1. A labor contract must be directly entered into between an employee and an employer before the employee is admitted.

For an employee aged between full 15 years and under 18 years, the labor contract must be entered into with the consent of his/her at-law representative.

2. For a seasonal or specific job that has a duration of under 12 months, a group of employees may authorize a member of the group to enter into a written labor contract; in this case, such labor contract is effective in the same manner as if it is entered into with each of the employees.

A labor contract which is entered into by an authorized person must be enclosed with a list clearly stating the full names, ages, gender, permanent residential addresses, occupations and signatures of all employees concerned.

Article 19. Obligation to provide information before entering into a labor contract

1. An employer shall provide an employee with information about the job, workplace, working conditions, working hours, rest time, occupational safety and hygiene, wage, forms of wage payment, social insurance, health insurance, regulations on business confidentiality, technological confidentiality, and other issues directly related to the entry into the labor contract as requested by the employee.

2. The employee shall provide the employer with information about his/her full name, age, gender, residence address, education level, occupational skills and qualification, health conditions and other issues directly related to the entry into a labor contract as requested by the employer.

Article 20. Prohibited acts of employers when entering into and performing labor contracts

1. Keeping the employees’ original identity cards, diplomas and certificates.

2. Requesting employees to make a deposit in cash or property as security for the performance of labor contracts.

Article 21. Entry into labor contracts with more than one employer

An employee may enter into labor contracts with more than one employer, provided that he/she fully performs all the contents of the entered contracts.

In case an employee enters into labor contracts with more than one employer, his/her participation in social insurance and health insurance complies with the Government’s regulations.

Article 22. Types of labor contract

1. A labor contract must be entered into in one of the following types:

a/ Indefinite-term labor contract;

An indefinite-term labor contract is a contract in which the two parties do not determine the duration and the time of termination of the contract.

b/ Definite-term labor contract;

A definite-term labor contract is a contract in which the two parties determine the duration and the time of termination of the contract within a period of between 12 months and 36 months.

c/ A seasonal or work-specific labor contract that has a duration of under 12 months.

2. When a labor contract stipulated at Points b and c, Clause 1 of this Article expires and the employee continues working, within thirty (30) days from the date of expiration of the contract, the two parties shall sign a new labor contract; if no new labor contract is entered into, the contract entered into under Point b, Clause 1 of this Article will become an indefinite-term labor contract and the contract entered into under Point c, Clause 1 of this Article will become a definite-term labor contract with a duration of 24 months.

In case the two parties enter into a new labor contract with a definite term, only 1 additional definite-term labor contract may be signed; after that, if the employee continues working, an indefinite-term contract must be entered into.

3. It is prohibited to enter into a seasonal or work-specific labor contract of under 12 months for a regular job which has a duration of more than 12 months, except the case of temporary replacement of an employee who has taken leave for military duty, pregnancy and maternity, sickness, labor accident or other temporary leaves.

Article 23. Contents of a labor contract

1. A labor contract must have the following principal contents:

a/ Name and address of the employer or the lawful representative of the employer;

b/ Full name, date of birth, gender, residence address, identity card number or other lawful documents of the employee;

c/ Job and workplace;

d/ Term of the labor contract;

e/ Wage, form of wage payment, deadline for wage payment, wage-based allowances and other additional payments;

f/ Regimes for promotion and wage raise;

g/ Working time, rest time;

h/ Labor protection equipment for the employee;

i/ Social insurance and health insurance;

j/ Training, retraining and occupational skill improvement.

2. When an employee performs a job which is directly related to business or technology secrets as prescribed by law, the employer may reach a written agreement with the employee on the content and duration of protection of business or technology secrets, and benefits and compensation in case of violation by the employee.

3. For employees working in agriculture, forestry, fishery or salt production, based on the type of job, both parties may skip some principal contents of the labor contract and reach additional agreements on settlement measures when the contract performance is affected by natural disaster, fire or weather.

4. The contents of a labor contract with an employee who is hired to work as director of a state-invested enterprise are stipulated by the Government.

Article 24. Annexes to a labor contract

1. An annex to a labor contract is an integral part of the labor contract and is as valid as the labor contract.

2. An annex to a labor contract details some provisions or amends or supplements the contract.

In case an annex to a labor contract details some provisions that lead to a different understanding of the labor contract, the contents of the labor contract prevail.

In case an annex amends or supplements the labor contract, it must specify the amended or supplemented provisions and the time it takes effect.

Article 25. Effectiveness of a labor contract

A labor contract takes effect on the date it is entered into by the parties, unless otherwise agreed upon by both parties or provided by law.

Article 26. Probation

1. An employer and an employee may reach agreement on the probation and the rights and obligations of the two parties during the probation period. If reaching agreement on the probation, the two parties may enter into a probation contract.

A probation contract must have the contents specified at Points a, b, c, d, e, g and h, Clause 1, Article 23 of this Code.

2. Employees working under seasonal labor contracts are not subject to probation.

Article 27. Probation period

The probation period must be based on the nature and complexity of the job but probation is applied only once for each job and assure the following conditions:

1. It does not exceed 60 days for posts which require professional and technical qualification of collegial or higher level.

2. It does not exceed 30 days for posts which require professional and technical qualifications of intermediate vocational level, professional secondary level, or for technical workers and skilled employees.

3. It does not exceed 6 working days for other types of jobs.

Article 28. Wage during the probation period

The wage for an employee during the probation period must be agreed upon by the two parties but must be at least equal to 85% of the wage for the job.

Article 29. Expiry of the probation period

1. If the probational job is satisfactory, the employer shall sign a labor contract with the employee.

2. During the probation period, each party may cancel the probation agreement without prior notice and compensation if the probational job fails to meet the requirements that have been agreed by the two parties.

Section 2. PERFORMANCE OF LABOR CONTRACTS

Article 30. Performance of jobs under a labor contract

The jobs under a labor contract must be performed by the employee who has entered into the contract. The workplace may be as indicated in the labor contract or otherwise agreed upon between the two parties.

Article 31. Assignment of employees to perform jobs which are not stated in labor contracts

1. When meeting with sudden difficulties such as natural disaster, fire or epidemic, or taking measures to prevent and deal with a working accident, an occupational disease or an electricity or water supply incident, or when due to business and production needs, the employer may temporarily assign an employee to perform a job which is not stated in the labor contract provided that the assignment does not exceed 60 accumulated workdays within one year, unless otherwise agreed by the employee.

2. When an employer temporarily assigns an employee to perform a job which is not stated the labor contract, the employer shall inform the employee at least 3 working days in advance, clearly stating the duration of temporary work and the assigned work which must be suitable to the health and gender of the employee.

3. The employee who performs the job as stipulated in Clause 1 of this Article is entitled to a wage for the new job; if the wage for the new job is lower than the previous wage, he/she is entitled to the previous wage for 30 working days. The wage for the new job must be at least 85% of the previous wage but not lower than the regional minimum wage stipulated by the Government.

Article 32. Cases of suspension of a labor contract

1. The employee is called up for military service.

2. The employee is held in custody or detention in accordance with the criminal procedure law.

3. The employee is subject to a decision on application of the measure of consignment to a reformatory, compulsory drug detoxification center or compulsory education institution.

4. The female employee is pregnant in accordance with Article 156 of this Code.

5. Other cases as agreed upon by the two parties.

Article 33. Reinstatement of employees upon expiry of the period of suspension of labor contracts

Within 15 days after the expiry of the period of suspension of a labor contract in a case specified in Article 32 of this Code, the employee shall show up at the workplace and the employer shall reinstate the employee unless otherwise agreed upon by the two parties.

Article 34. Part-time employees

1. Part-time employee is a person who works for less than the normal daily or weekly working hours as provided by the labor law, the collective labor agreement of the enterprise or the sector or the employer’s regulations.

2. An employee may negotiate with the employer on work on a part-time basis when entering into a labor contract.

3. Part-time employees are entitled to a wage and have the same rights and obligations as full-time employees, and are entitled to equal opportunities and to non-discrimination and assured labor safety and hygiene.

Section 3. MODIFICATION, SUPPLEMENTATION AND TERMINATION OF LABOR CONTRACTS

Article 35. Modification and supplementation of a labor contract

1. During the performance of a labor contract, any party that requests to modify or supplement the contents of the labor contract shall notify at least 3 working days in advance to the other party of the contents to be modified or supplemented.

2. In case the two parties can reach an agreement, the modification or supplementation of the labor contract must be carried out by signing an annex to the labor contract or signing a new labor contract.

3. In case the two parties cannot reach an agreement on the modification or supplementation of the labor contract, they shall continue performing the labor contract already entered into.

Article 36. Cases of termination of a labor contract

1. The labor contract expires, except the case specified in Clause 6, Article 192 of this Code.

2. The work stated in the labor contract has been completed.

3. Both parties agree to terminate the labor contract.

4. The employee fully meets the requirements on the time of payment of social insurance premiums and the age of retirement stated in Article 187 of this Code.

5. The employee is sentenced to imprisonment or death or is prohibited from performing the job stated in the labor contract under a legally effective judgment or ruling of a court.

6. The employee dies or is declared by a court to have lost civil act capacity, be missing or dead.

7. The individual employer dies or is declared by a court to have lost civil act capacity, be missing or dead; the institutional employer terminates operation.

8. The employee is dismissed under Clause 3, Article 125 of this Code.

9. The employee unilaterally terminates the labor contract under Article 37 of this Code.

10. The employer unilaterally terminates the labor contract under Article 38 of this Code; the employer lays off the employee due to structural or technological changes or because of economic reasons, merger, consolidation or division of the enterprise or cooperative.

Article 37. The right of employees to unilaterally terminate labor contracts

1. An employee working under a definite-term labor contract, a seasonal labor contract or performing a certain job of under 12 months may unilaterally terminate the labor contract prior to its expiry in the following cases:

a/ He/she is not assigned to the job or workplace or is not given the working conditions as agreed in the labor contract;

b/ He/she is not paid in full or on time as agreed in the labor contract;

c/ He/she is maltreated, sexually harassed or is subject to forced labor;

d/ He/she is unable to continue performing the labor contract due to personal or family difficulties;

e/ He/she is elected to perform a full-time duty in a people-elected office or is appointed to hold a position in the state apparatus;

f/ A female employee who is pregnant and must take leave as prescribed by a competent health establishment;

g/ If he/she is sick or has an accident and remains unable to work after having received treatment for 90 consecutive days, in case he/she works under a definite-term labor contract, or for a quarter of the contract’s term, in case he/she works under a labor contract for a seasonal job or a specific job of under 12 months.

2. When unilaterally terminating the labor contract under Clause 1 of this Article, the employee shall inform such to the employer:

a/ At least 3 working days in advance, in the case specified at Point a, b, c or g, Clause 1 of this Article;

b/ At least 30 days in advance for a definite-term labor contract; at least 3 working days for a seasonal or work-specific labor or a specific job of under 12 months in the case specified at Point d or e, Clause 1 of this Article;

c/ In the case specified at Point f, Clause 1 of this Article, a prior notice should be given to the employer in accordance with Article 156 of this Code.

3. An employee working under an indefinite-term labor contract may unilaterally terminate the labor contract provided that he/she informs such to the employer at least 45 days in advance, except the case specified in Article 156 of this Code.

Article 38. The right of employers to unilaterally terminate labor contracts

1. An employer may unilaterally terminate a labor contract in the following cases:

a/ The employee often fails to perform his/her job stated in the labor contract;

b/ The employee is sick or has an accident and remains unable to work after having received treatment for 12 consecutive months, in case he/she works under an indefinite-term labor contract, or for 6 consecutive months, in case he/she works under a definite-term labor contract, or more than half the term of the labor contract, in case he/she works under a labor contract for a seasonal job or a specific job of under 12 months.

When the employee’s health has recovered, he/she must be considered for continued entry into the labor contract;

c/ If, as a result of natural disaster, fire or another force majeure event as prescribed by law, the employer, though having applied every remedial measure, has to scale down production and cut jobs;

d/ The employee is absent from the workplace after the time limit specified in Article 33 of this Code.

2. When unilaterally terminating a labor contract, the employer shall notify the employee in advance:

a/ At least 45 days, for indefinite-term labor contracts;

b/ At least 30 days, for definite-term labor contracts;

c/ At least 3 working days, for seasonal or work-specific labor contracts of under 12 months as stipulated at Point b, Clause 1 of this Article.

Article 39. Cases in which an employer is prohibited from unilaterally terminating a labor contract

1. The employee is sick or has a work accident or occupational disease and is being treated or nursed under the decision of a competent health establishment, except the case specified at Point b, Clause 1, Article 38 of this Code.

2. The employee is on annual leave, personal leave or any other types of leave permitted by the employer.

3. The employee is a female referred to in Clause 3, Article 155 of this Code.

4. The employee is on maternity leave in accordance with the Law on Social Insurance.

Article 40. Cancellation of unilateral termination of a labor contract

Each party may cancel its unilateral termination of the labor contract at any time prior to the expiry of the time limit for prior notice by a written notification, provided that such cancellation is agreed by the other party.

Article 41. Illegal unilateral termination of a labor contract

The unilateral termination of a labor contract is illegal in the cases which do not comply with Articles 37, 38 and 39 of this Code.

Article 42. Obligations of an employer when unilaterally terminating a labor contract illegally

1. To reinstate the employee in accordance with the original labor contract; to pay the wage and social insurance and health insurance premiums for the period during which the employee was not allowed to work, plus at least 2 months’ wage in accordance with the labor contract.

2. In case the employee does not wish to return to work, in addition to the compensation stipulated in Clause 1 of this Article, the employer shall pay a severance allowance in accordance with Article 48 of this Code.

3. In case the employer does not want to reinstate the employee and the employee agrees, in addition to the compensation stipulated in Clause 1 of this Article and the severance allowance stipulated in Article 48 of this Code, the two parties shall negotiate on an additional compensation which must be at least equal to 2 months’ wage in accordance with the labor contract in order to terminate the labor contract.

4. In case the position or job agreed in the labor contract is no longer vacant and the employee still wishes to work, the employer shall pay the compensation stipulated in Clause 1 of this Article and both parties shall negotiate to modify and supplement the labor contract.

5. If violating the provision on the time of prior notice, the employer shall compensate the employee an amount equivalent to his/her wage for the working days without prior notice.

Article 43. Obligations of an employee when unilaterally terminating a labor contract illegally

1. Not to be entitled to a severance allowance and to compensate the employer half of a month’s wage in accordance with the labor contract.

2. If violating the provision on the time of prior notice, to compensate the employer an amount equivalent to the employee’s wage for working days without prior notice.

3. To reimburse training costs to the employer in accordance with Article 62 of this Code.

Article 44. Obligations of an employer in case of changing structure, technology or economic reasons

1. In case there is a change in the structure or technology that affects the employment of many employees, the employer shall elaborate and implement a labor utilization plan in accordance with Article 46 of this Code. In case new jobs are created, priority must be given to re-training these employees for continued employment.

In case the employer cannot create new jobs and have to dismiss employees, the employer shall pay job-loss allowances to the employees in accordance with Article 49 of this Code.

2. In case more than one employee face the risk of unemployment for economic reasons, the employer shall elaborate and implement a labor utilization plan in accordance with Article 46 of this Code.

In case the employer cannot employ and have to dismiss employees, the employer shall pay job-loss allowances to the employees in accordance with Article 49 of this Code.

3. The dismissal of more than one employee in accordance with this Article may be implemented only after discussion with the representative organization of the grassroots-level employees’ collective and notification 30 days in advance to the provincial-level state management agency of labor.

Article 45. Obligations of an employer in case of merger, consolidation, split or separation of enterprises or cooperatives

1. In case of merging, consolidating, splitting or separating an enterprise or a cooperative, the succeeding employer shall continue employing the existing workforce and modify and supplement the labor contracts.

In case the existing workforce cannot be fully employed, the succeeding employer shall elaborate and implement a labor utilization plan in accordance with Article 46 of this Code.

2. In case of transferring asset ownership or use rights of an enterprise, the preceding employer shall elaborate a labor utilization plan in accordance with Article 46 of this Code.

3. In case of dismissing an employee in accordance with this Article, the employer shall pay a job-loss allowance to the employee in accordance with Article 49 of this Code.

Article 46. Labor utilization plan

1. A labor utilization plan must have the following principal contents:

a/ The lists and numbers of employees to be further employed and employees to be re-trained for continued employment;

b/ The list and number of employees to be retired;

c/ The lists and numbers of employees to be assigned part-time jobs and those to terminate their labor contracts;

d/ Measures and financial sources for implementing the plan.

2. The labor utilization plan must be elaborated with the participation of the representative organization of the grassroots-level employees’ collective.

Article 47. Responsibilities of an employer in case of terminating labor contracts

1. At least 15 days before the date of expiry of a definite-term labor contract, the employer shall give a written notice of the time of termination of the contract to the employee concerned.

2. Within 7 working days after termination of a labor contract, the two parties shall make all payments related to the interests of each party; in special cases, this time limit may be extended but must not exceed 30 days.

3. The employer shall complete the confirmation procedure and return the social insurance book and other papers of the employee which are kept by the employer.

4. In case an enterprise or a cooperative has its operation terminated, is dissolved or goes bankrupt, the payment of wages, severance allowances, social insurance, health insurance, unemployment insurance and other benefits of its employees according to the collective labor agreement and signed labor contracts will be prioritized.

Article 48. Severance allowance

1. In case a labor contract terminates in accordance with Clause 1, 2, 3, 5, 6, 7, 9 or 10, Article 36 of this Code, the employer shall pay a severance allowance to the employee who has worked regularly for full 12 months or longer at the rate of half of a month’s wage for each working year.

2. The working period used for the calculation of severance allowance is the total period during which the employee actually works for the employer minus the period during which the employee benefits from unemployment insurance in accordance with the Law on Social Insurance, and the working period for which the employee has received severance allowance from the employer.

3. The wage used for the calculation of severance allowance is the average wage in accordance with the labor contract during 6 months preceding the time the employee loses his/her work.

Article 49. Job-loss allowance

1. An employer shall pay a job-loss allowance to an employee who loses his/her job under Article 44 or 45 of this Code and has worked regularly for the employer for 12 months or longer. The job-loss allowance is equal to 1 month’s wage for each working year, but must not be lower than 2 months’ wage.

2. The working period used for the calculation of job-loss allowance is the total time during which the employee actually works for the employer minus the time during which the employee benefits from unemployment insurance in accordance with the Law of Social Insurance and the working period for which the employer has paid a severance allowance to the employee.

3. The wage used for the calculation of job-loss allowance is the average wage in accordance with the labor contract during 6 months preceding the time the employee loses his/her job.

Section 4. INVALID LABOR CONTRACTS

Article 50. Invalid labor contracts

1. A labor contract is wholly invalid in one of the following cases:

a/ The whole contents of the labor contract are illegal;

b/ The labor contract is signed by an incompetent person;

c/ The job agreed upon in the labor contract is prohibited by law;

d/ The contents of the labor contract limit or prevent the employee from exercising the right to establish and join trade unions and participate in trade union activities.

2. A labor contract is partially invalid when one of its contents is illegal but does not affect the remaining contents of the labor contract.

3. In case part or the whole of the labor contract provides the employee’s benefits lower than those provided by the labor law, internal labor regulations and collective labor agreement that are currently effective or the contents of the labor contract limit other rights of the employee, such part or the whole of the labor contract is invalid.

Article 51. Competence to declare labor contract to be invalid

1. The labor inspectorates and people’s courts are competent to declare labor contracts to be invalid.

2. The Government shall provide the order and procedures for labor inspectorates to declare labor contracts to be invalid.

Article 52. Handling of invalid labor contracts

1. A labor contract which is declared to be partially invalid will be handled as follows:

a/ The rights, obligations and benefits of the parties must be settled according to the collective labor agreements or the provisions of law;

b/ The invalid part of the labor contract must be modified and supplemented to conform with the collective labor agreement or the labor law.

2. A labor contract which is declared to be wholly invalid will be handled as follows:

a/ In case it is signed by an incompetent person as specified at Point b, Clause 1, Article 50 of this Code, the state management agency of labor shall guide the parties to re-sign it;

b/ The rights, obligations and benefits of the employee will be settled in accordance with law.

3. The Government shall detail this Article.

Section 5. LABOR LEASE

Article 53. Labor lease

1. Labor lease means that an enterprise licensed for labor lease recruits an employee to work for another employer and the employee is managed by the hiring employer while still maintaining industrial relations with the leasing enterprise.

2. Labor lease is a conditional business line applicable only to certain jobs.

Article 54. Labor leasing enterprises

1. A labor leasing enterprise shall pay a deposit and obtain a license for labor lease.

2. The duration of labor lease must not exceed 12 months.

3. The Government shall provide the licensing of labor lease, the payment of deposits and the list of jobs allowed for labor lease.

Article 55. Labor leasing contract

1. The labor leasing enterprise and the hiring party shall sign a written labor leasing contract, which is made in 2 copies, each to be kept by one party.

2. A labor leasing contract must contain the following principal contents:

a/ Location of the workplace, working position for the leased employee, detailed description of the job and specific requirements for the leased employee;

b/ Duration of the lease; the starting time of the lease;

c/ Working time, rest time, occupational safety and hygiene conditions at the workplace;

d/ Obligations of each party toward the leased employee.

3. The labor leasing contract must not contain any agreement on the rights and benefits of the employee that are less favorable than those agreed upon in the labor contract signed between the employee and the labor leasing enterprise.

Article 56. Rights and obligations of a labor leasing enterprise

1. To ensure supply of a skilled employee who meets the requirements of the hiring party and the labor contract signed with the employee.

2. To inform the leased employee of the contents of the labor leasing contract.

3. To sign a labor contract with the employee in accordance with this Code.

4. To provide the hiring party with a brief personal record of the leased employee and his/her demands.

5. To perform the obligations of an employer in accordance with this Code; to pay wage, wage for public holidays and annual leaves, wage of work suspension, severance allowance, job-loss allowance; compulsory social insurance, health insurance and unemployment insurance premiums for the employee in accordance with law.

To ensure that the wage of the leased employee is not lower than that of a normal employee of the hiring party who has the same qualification and performs the same job or job of equal value.

6. To make a dossier stating the number of leased employees, the hiring party and leasing charges, and report them to the provincial-level state management agency of labor.

7. To discipline leased employees who are returned by the hiring party for their violations of labor discipline.

Article 57. Rights and obligations of the hiring party

1. To inform and guide the leased employee to understand its internal working regulations and other regulations.

2. Not to discriminate between the leased employee and its own employees regarding working conditions.

3. To negotiate with the leased employee on working at night or overtime when such working is not included in the labor leasing contract.

4. Not to sub-lease the leased employee.

5. To negotiate with the leased employee and the labor leasing enterprise in order to officially employ this employee in case the labor contract between the leased employee and the labor leasing enterprise have not yet expired.

6. To return to the labor leasing enterprise the leased employee who fails to meet the requirements as agreed or who violates labor discipline.

7. To provide evidence of the leased employee’s violation of labor discipline for the labor leasing enterprise to consider and discipline such employee.

Article 58. Rights and obligations of a leased employee

1. To perform the job under the labor contract signed with the labor leasing enterprise.

2. To comply with the internal labor regulations, labor discipline, the lawful management and the collective labor agreement of the hiring party.

3. To be paid with a wage not lower than that of employees of the hiring party who have the same qualification and perform the same job or job of equal value.

4. To lodge a complaint with the labor leasing enterprise when the hiring party violates agreements in the labor leasing contract.

5. To exercise the right to unilaterally terminate the labor contract with the labor leasing enterprise in accordance with Article 37 of this Code.

6. To negotiate to sign a labor contract with the hiring party after terminating the labor contract with the labor leasing enterprise.