Chương IV Luật Lao động 1994: Hợp đồng lao động

Chapter IV

LABOR CONTRACT

Article 26.- The labor contract is the agreement between the employee and the employer which defines the payment, the working conditions and the rights and obligations of each party in their labor relations.

Article 27.-

1- The labor contract must be made in one of the following forms:

a/ A contract with indefinite duration;

b/ A contract valid from one to three years;

c/ A contract for a seasonal job or a specific job to be carried out in less than one year.

2- It is forbidden that a labor contract is signed for a seasonal job or a specific job with a duration of less than one year to perform tasks of a perpetual nature, i.e. jobs lasting more than one year, except when temporary replacement is necessary for a employee who is called for military duty or who takes maternity leave or who is temporarily absent for other reasons.

Article 28.- The labor contract must be made in writing in two copies, with each party keeping one copy. The commitment can be made orally if the job has a temporary character and its term does not exceed three months or it is the job of a housework.

When a verbal commitment is used, the two parties must automatically comply with the prescriptions of the labor legislation.

Article 29.-

1- The contents of the labor contract must include the following elements: a description of the duties to be performed the working time, the break time, the salary, the place of work, the duration of the contract, the conditions on labor safety and labor sanitation, along with the social insurance for the employee.

2- In the event that the labor contract or any part thereof provides for the rights and interests of the employee which are inconsistent with those prescribed in the labor legislation, in the collective labor accord or in the labor regulations in force at the business, or if the contract puts restrictions on other rights of the employee, those improper portions or the whole contract must be modified or revised.

3- When the contents, as described in Item 2 of this Article, are detected, the Labor Inspector shall guide the parties to make the necessary modifications or revisions. If either side refuses to make the recommended modifications or revisions, the Labor Inspector is authorized to force the revocation of the improper contents.

Article 30.-

1- The labor contract is directly made between the employee and the employer.

2- The labor contract may be signed between the employer and the legally assigned representative of a group of employees. In this case the contract is as valid as if it were signed with each employee.

3- The employee may sign one or more labor contracts, with one or more employers, but he/she must assure full compliance with each of the signed contracts.

4- The duties to be performed under the labor contract must be carried out by the contractor and shall not be assigned to another person without the consent of the employer.

Article 31.- In case of a merger or a division of the business, or assignment of ownership, managerial power or the right to use the property of the business, the succeeding employer has the responsibility to honor the labor contract with the employee until the two parties agree to amend or terminate the labor contract or to sign a new contract.

Article 32.- The employer and the employee shall agree on the probation, the term of probation and the rights and obligations of the two parties. The salary of the employee during the period of probation must be equal at least to 70% of the statutory salary of his/her job. The term of a probation must not exceed 60 days for a job requiring high technical skill and 30 days for other jobs.

During the period of probation, each party is entitled to cancel its agreement on probation without advance notice and without having to make compensation if the probation does not meet the requirements already agreed upon by both parties. If the probation meets the requirements, the employer must sign on the employee as a full-time worker pursuant to their agreement.

Article 33.- The labor contract shall take effect on the day of the signing or on a mutually agreed date.

In the process of implementing the labor contract, if a party wishes to change the contents of the labor contract, it must notify the other party at least three days in advance. The change of the contents of the labor contract may be effected by either modifying or supplementing the existing labor contract or by signing a new contract

Article 34.-

1- In the event of unexpected difficulty or due to the need in production and business, the employer is entitled to temporarily assign the employee to another job to which he/she is not accustomed but not for more than 60 days a year.

2- When the employer decides to assign the employee to another job to which he/she is not accustomed, the employer must notify him/her at least three days in advance. The employer must also specify the term of this temporary job which must suit the health and gender of the employee.

3- The employee assigned to another job as defined in Item 1 of this Article shall be paid the salary of the new job. If this salary is lower than that of his/her former job he/she is entitled to the former salary for the first 30 days on the new job. The salary of the new job must be equal to at least 70% of the old salary and not lower than the minimum salary prescribed by the State.

Article 35.-

1- The labor contract shall be temporarily suspended in the following circumstances:

a/ The employee is called for military duty or other citizen duties prescribed by law.

b/ The employee is taken into temporary custody or detention.

c/ Other circumstances as may be mutually agreed upon.

2- At the end of the temporary suspension of the labor contract under the circumstances defined in Points (a) and (c), Item 1, of this Article, the employer must reinstate the employee.

3- The reinstating of an employee under temporary custody or detention after the expiring of the temporary suspension of the labor contract shall be set by the Government.

Article 36.- The labor contract shall terminate upon the happening of the following events:

1- The term of the contract expires;

2- The job under contract has been finished;

3- The two parties agree to terminate the contract;

4- The employee is sentenced to imprisonment or is banned from doing the former job by ruling of the Court;

5- The employee dies or is declared missing by the Court.

Article 37.-

1- The employee working under a labor contract the terms of which range from one year to three years, or a labor contract to do a seasonal job or a specific job which lasts less than one year, is entitled to unilaterally terminate the contract before term in one of the following circumstances:

a/ The employee is not assigned the job or to the working place, or otherwise not assured the conditions of work already agreed in the contract;

b/ The employee is not paid fully or at the time stipulated in the contract;

c/ The employee is maltreated or subjected to forced labor;

d/ The employee or his/her family encounters such difficult circumstances that he/she cannot continue executing the contract;

e/ The employee is elected to a permanent post in a people's elected body or is appointed to an official post in the State apparatus;

f/ The employee is pregnant and must stop working by prescription of the doctor.

2- When the employee decides to unilaterally terminate the labor contract as stipulated at Item 1 of this Article, he/she must notify the employer:

a/ At least three days in advance of the circumstances described at Point (a), (b) and (c);

b/ At least thirty days in advance of the circumstances described in Points (d) and (e) with regard to a contract with terms ranging from one year to three years; at least three days in advance if it is a contract for a seasonal job or a specific job which lasts less than one year;

c/ In the circumstances described in Point (f), the time for advance notification is defined in Article 112 of this Code.

3- The employee working under a labor contract without a definite term is entitled to unilaterally terminate the labor contract but must notify the employer at least 45 days in advance.

Article 38.-

1. The employer is entitled to unilaterally terminate the labor contract in the following circumstances:

a/ The employee constantly fails to perform the duties set forth in the contract;

b/ The employee is subject to dismissal as provided for in Article 85 of this Code;

c/ The employee, working under a labor contract without a definite term, falls sick and has gone through 12 months of medical treatment, or the employee working under a contract with a definite term, has taken six consecutive months of sick leave or the employee, working under a contract of less than one year, has taken sick leave longer than half the term of the labor contract without any prospect of recovery in the near future. However, after recovery, resumption of the employee's labor contract shall be considered;

d/ Natural disasters, fire or any force-majeure causes of which the employer has sought all means to overcome the consequences without success and is accordingly forced to scale down production and reduce the labor force;

e/ The business, office or organization terminates its operation.

2- Before unilaterally terminating the labor contract under Points (a), (b) and (c) of Item 1 of this Article, the employer must discuss and reach agreement with the Executive Committee of the local Trade Union. In case of disagreement, the two sides must report to the competent office or organization. Only 30 days after notification to the labor office is employer entitled to take decision for which he/she shall be responsible. In case they do not agree with the decision of the employer, the Executive Committee of the local Trade Union and the employee are entitled to request settlement of the labor dispute according to the procedure prescribed by law.

3 - When the employer decides to unilaterally terminate the labor contract, except for cases defined at Point (b), Item 1 of this Article, the employer must notify the employee:

a/ At least 45 days prior to the termination of the labor contract without a definite term;

b/ At least 30 days prior to the termination of labor contracts with terms ranging from one year to three years;

c/ At least three days prior to the termination of labor contracts for seasonal jobs or specific jobs which last less than one year.

Article 39.- The employer is not allowed to terminate unilaterally the labor contract in the following circumstances:

1- The employee is under medical treatment by decision of the doctor as a result of sickness, a labor accident or an occupational disease, except for cases stipulated at Points (c) and (d) of Item 1, Article 38, of this Code;

2- The employee is on annual leave, or is taking a leave for personal affairs or any other leave with the consent of the employer;

3- The employee is a woman in circumstances defined in Item 3, Article 111, of this Code.

Article 40.- Each party may revoke its unilateral decision to terminate the labor contract before the advance notice expires. Upon the expiring of the advance notice, either party has the right to terminate the labor contract.

Article 41.-

1- In case the decision of the employer to terminate unilaterally the labor contract contravenes law, he/she must re-instate the employee and pay compensation commensurate with the salary of the employee during the days when he/she is denied the right to work. In case the employee does not want to return to work, he/she is entitled, besides the compensation commensurate with his/her salary during the days he/she is denied the right to work, to an allowance as stipulated at Item 1, Article 42, of this Code.

2- In case the employee terminates unilaterally the labor contract in contravention of law, he/she shall not receive any severance allowance.

3- In case the employee terminates unilaterally the labor contract, he/she shall repay the training expenses, if any, as prescribed by the Government.

4- In case of a unilateral termination of the labor contract, the party which violates the regulations on advance notice shall compensate the other party an amount of money equivalent to the salary of the employee during the days when no advance notice of the termination is received.

Article 42.-

1- Upon the termination of a labor contract with an employee who has worked regularly at the business, office or organization for more than one year, the employer has the responsibility to pay the employee a severance allowance representing one half month's salary for every year of service, plus wage subsidies (if any).

2- Upon the termination of the labor contract as defined in Points (a) and (b), Item 1, Article 85, of this Code, the employee shall not receive the severance allowance.

Article 43.- Within seven days after termination of the labor contract, the two parties have the responsibility to settle the accounts relating to the interests of each party. In special cases, this time-limit may be extended but not for more than 30 days.

In the event of bankruptcy of the business, the accounts related to the interests of the employee shall be settled according to the provisions of the Law on Bankruptcy.

The employer shall record the reason for the termination of the labor contract in the Labor Register and has the responsibility to return the Register to the employee. Apart from the provisions in the Labor Register, the employer is not allowed to add any other comment that may be a hindrance to the employee in seeking a new job.