Chương XI Bộ luật Lao động 2019: Những quy định riêng đối với lao động chưa thành niên và một số lao động khác

Chapter XI

EXCLUSIVE PROVISIONS CONCERNING MINOR EMPLOYEES AND CERTAIN TYPES OF EMPLOYEES

Section 1. MINOR EMPLOYEES

Article 143. Minor employees

1. A minor employee is an employee under 18 years of age.

2. A person aged 15 to under 18 must not be assigned any of the works or to any of the workplaces mentioned in Article 147 of this Labor Code.

3. A person aged 13 to under 15 may only do the light works on the list promulgated by the Minister of Labor, War Invalids and Social Affairs.

4. A person under 13 may only do the works specified in Clause 3 Article 145 of this Labor Code.

Article 144. Rules for employment of minors

1. Minor employees may only do works that are suitable for their health in order to ensure their physical health, mental health and personality development.

2. The employer who has minor employees has the responsibility to take care of their work, health and education in the course of their employment.

3. When an employer hires a minor employee, the employer must have the consent of his/her parent or guardian; prepare a separate record which writes in full of his/her name, date of birth, the work assigned, results of periodical health check-ups, and shall be presented at the request of the competent authority.

4. Employers shall enable minor employees to have educational and vocational training.

Article 145. Employment of employees under 15

1. When employing a person under 15, the employer shall:

a) Conclude a written contract with the employee and his/her legal representative;

b) Arrange the working hours so as not to affect the employee’s study hours;

c) Obtain the health certificate from a competent health facility which certifies that the employee’s health is suitable for the work assigned, and provide periodic health check-up for the employee at least once every 06 months;

d) Ensure that the working conditions, occupational safety and health are suitable for the employee’s age;

2. An employer is only entitled to assign employees aged 13 to under 15 to do the light works specified in Clause 3 Article 143 of this Labor Code.

3. Employers must not hire people under 13 to do works other than sports and arts, provided they do not affect their development of their physical health, mental health and personality, and the employment is accepted by the provincial labor authority.

4. The Minister of Labor, War Invalids and Social Affairs shall elaborate this Article.

Article 146. Working hours of minors employees

1. The working hours of minor employees under 15 shall not exceed 04 hours per day and 20 hours per week. Employers must not request minor employees to work overtime or at night.

2. The working hours of employees aged 15 to under 18 shall not exceed 08 hours per day and 40 hours per week. Employees aged 15 to under 18 may work overtime or at night in certain works and jobs listed by the Minister of Labor, War Invalids and Social Affairs.

Article 147. Prohibited works and workplaces for employees aged 15 to under 18

1. A person aged 15 to under 18 must not be assigned to the following works:

a) Carrying and lifting of heavy things which are beyond his/her the physical capacity;

b) Production, sale of alcohol, tobacco and neuro-stimulants and other narcotic substances;

c) Production, use or transport of chemicals, gas or explosives;

d) Maintaining equipment or machinery;

dd) Demolition;

e) Melting, blowing, casting, rolling, pressing, welding metals;

g) Marine diving, offshore fishing;

h) Other works that are harmful to the development of his/her physical health, mental health or personality.

2. A person aged 15 to under 18 must not be assigned to the following locations:

a) Underwater, underground, in caves, in tunnels;

b) Construction sites;

c) Slaughter houses;

d) Casinos, bars, discotheques, karaoke rooms, hotels, hostels, saunas, massage rooms; lottery agents, gaming centers;

dd) Any other workplace that is harmful to the development of his/her physical health, mental health or personality.

3. The Ministry of Labor- Invalids and Social Affairs shall promulgate the lists mentioned in Point h Clause 1 and Point dd Clause 2 of this Article.

Section 2. ELDERLY EMPLOYEES

Article 148. Elderly employees

1. An elderly employee is a person who continues working after the age stipulated in Clause 2 Article 169 of this Labor Code.

2. Elderly employees are entitled to negotiate with their employer on reduction of reduce their daily working hours or to work on a part-time basis.

3. Employers are encouraged by the State to assign works that are suitable for elderly employees in order to uphold their right to work and ensure efficient utilization of human resources.

Article 149. Employment of elderly people

1. When an elderly person is employed, both parties may agree on conclusion of multiple fixed-term employment contracts.

2. In case a person who is receiving retirement pension under the Law on Social Insurance enters into a new employment contract, he/she shall receive salary and other benefits prescribed by law and the employment contract in addition to the benefits to which they are entitled under the pension scheme.

3. Employer must not assign elderly employees to do laborious, toxic or dangerous works, or highly laborious, toxic or dangerous works that are harmful to their health, unless safety is ensured.

4. Employers are responsible for taking care of the health of elderly employees at the workplace.

Section 3. VIETNAMESE EMPLOYEES WORKING OVERSEAS, EMPLOYEES OF FOREIGN ORGANIZATIONS AND INDIVIDUALS IN VIETNAM AND FOREIGN EMPLOYEES WORKING IN VIETNAM

Article 150. Vietnamese employees working overseas, employees of foreign organizations and individuals in Vietnam

1. The State shall encourage enterprises, agencies, organizations, and individuals to seek and expand the labor market for Vietnamese employees to work overseas.

Vietnamese employees working overseas must comply with the law of Vietnam and the law of the host country except where an international convention to which Socialist Republic of Vietnam is a signatory contains different provisions.

2. Vietnamese citizens working in foreign organizations in Vietnam, in industrial zones, economic zones, export-processing zones, hi-tech zones, or working for individuals who are foreign citizens in Vietnam shall comply with the law of Vietnam and shall be protected by law.

3. The Government shall provide for the recruitment and management of Vietnamese employees working for foreign entities in Vietnam.

Article 151. Requirements for foreigners to work in Vietnam.

1. A foreign employee means a person who has a foreign nationality and:

a) is at last 18 years of age and has full legal capacity;

b) has qualifications, occupational skills, practical experience and adequate health as prescribed by the Minister of Health;

c) is not serving a sentence; does not have an unspent conviction; is not undergoing criminal prosecution under his/her home country’s law or Vietnam’s law;

d) has a work permit granted by a competent authority of Vietnam, except in the cases stipulated in Article 154 of this Labor Code.

2. The duration of a foreign employee’s employment contract must not exceed that of the work permit. When a foreign employee in Vietnam is recruited, both parties may negotiate conclusion of multiple fixed-term labor contracts.

3. Foreign employees working in Vietnam shall comply with and shall be protected by the labor law of Vietnam, unless otherwise prescribed by treaties to which Vietnam is a signatory.

Article 152. Requirements for employment of foreigners in Vietnam.

1. Enterprises, organizations, individuals and contractors shall only employ foreigners to hold positions of managers, executive directors, specialists and technical workers the professional requirements for which cannot be met by Vietnamese workers.

2. Recruitment of foreign employees in Vietnam shall be explained and subject to written approval by competent authorities.

3. Before recruiting foreign employees in Vietnam, a contractor shall list the positions, necessary qualifications, skills, experience and employment period of the contract, and obtain a written approval from a competent authority.

Article 153. Responsibilities of employers and foreign employees

1. Foreign employees shall present their work permits whenever requested by competent authorities.

2. Any foreign employee working in Vietnam without a work permit shall be deported or forced to leave Vietnam in accordance with immigration laws.

3. An employer who hires a foreign employee without a work permit shall be liable to penalties as regulated by the law.

Article 154. Work permit exemption for foreign employees in Vietnam

A foreign employee is not required to have the work permit if he/she:

1. Is the owner or capital contributor of a limited liability company with a capital contribution value conformable with regulations of the Government.

2. Is the Chairperson or a member of the Board of Directors of a joint-stock company a capital contribution value conformable with regulations of the Government.

3. Is the manager of a representative office, project or the person in charge of the operation of an international organizations or a foreign non-governmental organization in Vietnam.

4. Enters Vietnam for a period of less than 03 months to do marketing of a service.

5. Enters Vietnam for a period of less than 03 months to a resolve complicated technical or technological issue which (i) affects or threatens to affect business operation and (ii) cannot be resolved by Vietnamese experts or any other foreign experts currently in Vietnam.

6. Is a foreign lawyer who has been granted a lawyer’s practicing certificate in Vietnam in accordance with the Law on Lawyers.

7. In one of the cases specified in an international treaty to which the Socialist Republic of Vietnam is a signatory.

8. Gets married with a Vietnamese citizen and wishes to reside in Vietnam.

9. Other circumstances specified by the Government.

Article 155. Duration of work permit

The maximum duration of a work permit is 02 years. A work permit may be extended once for up to 02 more years.

Article 156. Cases in which a work permit is invalid

1. The work permit expires.

2. The employment contract is terminated.

3. The contents of the employment contract are inconsistent with the contents of the work permit granted.

4. The work performed is not conformable with the contents of the work permit granted.

5. The contract that is the basis for issuance of the work permit expires or is terminated.

6. The foreign party issues a written notice which terminates the dispatch of the foreign employee to Vietnam.

7. The Vietnamese party or foreign organization that hires the foreign employee ceases its operation.

8. The work permit is revoked.

Article 157. Issuance, re-issuance and revocation of work permits; notice of rejection of work permit issuance

The Government shall specify the conditions and procedures for issuing, re-issuing, revoking the work permit and issuance of the notice of rejection of work permit issuance.

Section 4. DISABLED EMPLOYEES

Article 158. State policies on disabled employees

The State shall protect the rights to work and to self-employment of disabled people; adopt policies to encourage and provide incentives for employers to create work for and to employ disabled people in accordance with regulations of law on People with Disabilities.

Article 159. Employment of disabled people

1. Employers shall provide reasonable accommodation with respect to working conditions, working tools, and occupational safety and health measures that are suitable for disabled employees and organize periodic health check-up for disabled employees.

2. Employers must consult with disabled employees before deciding on matters of relevance to the rights and interests of disabled employees.

Article 160. Prohibited acts regarding employment of disabled people

1. Assign employees with work capacity reduction of at least 51%, serious or very serious disabilities to work overtime or work at night, unless otherwise agreed by the employees/

2. Assign disabled employees to laborious, toxic or dangerous works on the list promulgated by the Minister of Labor, War Invalids and Social Affairs without their consent after they are properly informed of the works.

Section 5. DOMESTIC WORKERS

Article 161. Domestic workers

1. A domestic worker is a worker who regularly carries out domestic work for one or more than one households.

Domestic work includes cooking, housekeeping, babysitting, nursing, caring for elders, driving, gardening, and other work for a household which is not related to commercial activities.

2. The Government shall provide for employment of domestic workers.

Article 162. Employment contracts with domestic workers

1. The employer shall enter into a written employment contract with the domestic worker.

2. The duration of the employment contract for the domestic worker is negotiated by both parties. Either party has the right to terminate the employment contract at any time provided that an advance notice of 15 days is given.

3. The employment contract shall specify the salary payment method, period, working hours, accommodation.

Article 163. Obligations of the employer

1. Fully implement the agreement as indicated in the employment contract.

2. Pay the domestic worker an amount of his/her social insurance and health insurance premiums in accordance with the law for the domestic worker to manage insurance by themselves.

3. Respect the domestic worker’s honor and dignity.

4. Provide clean and hygienic accommodation and dining place for the domestic worker, where there is such an agreement.

5. Create opportunities for the domestic worker to participate in educational and occupational training.

6. Cover the cost of the travel expenses for the domestic worker to return to their place of residence at the end of his/her service, except in cases where the domestic worker terminates the employment contract before its expiry date.

Article 164. Obligations of the domestic worker

1. Fully implement the agreement as indicated in the employment contract.

2. Pay compensation in accordance with the agreement or in accordance with the law in cases of loss of or damage to the employer’s assets and property.

3. Promptly notify the employer about risks of accident, dangers to health, life and property of the employer’s family and himself/herself.

4. Report to the competent authority if the employer commits acts of mistreating, sexual harassment, extracting forced labor or any other acts against the law.

Article 165. Prohibited acts by the employer

1. Mistreating, sexually harassing, extracting forced labor, and using force or violence against the domestic worker.

2. Assigning works to the domestic worker against the employment contract.

3. Keeping personal papers of the domestic worker.

Section 6. OTHER TYPES OF WORKERS

Article 166. Workers in the fields of arts, sports, maritime, air transport

Workers in the fields of arts, sports, maritime, air transport shall have appropriate basic and advanced training, occupational skill development training, employment contracts, salaries, bonuses; working hours, rest periods, occupational safety and health as prescribed by the Government.

Article 167. Working at home

An employee may negotiate with his/her employer to perform certain works at home.