Chương III Bộ luật Lao động 2019: Hợp đồng lao động

Chapter III

EMPLOYMENT CONTRACT

Section 1. CONCLUSINO OF AN EMPLOYMENT CONTRACT

Article 13. Employment contract

1. An employment contract is an agreement between an employee and an employer on a paid job, salary, working conditions, and the rights and obligations of each party in the labor relations.

A document with a different name is also considered an employment contract if it contains the agreement on the paid job, salary, management and supervision of a party.

2. Before recruiting an employee, the employer shall enter into an employment contract with such employee.

Article 14. Forms of employment contract

1. An employment contract shall be concluded in writing and made into two copies, one of which will be kept by the employee, the other by the employer, except for the case specified in Clause 2 of this Article.

An employment contract in the form of electronic data conformable with electronic transaction laws shall have the same value as that of a physical contract.

2. Both parties may conclude an oral contract with a term of less than 01 month, except for the cases specified in Clause 2 Article 18, Point a Clause 1 Article 145 and Clause 1 Article 162 of this Labor Code.

Article 15. Principles for conclusion of an employment contract

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

2. Freedom to enter into an employment contract which is not contrary to the law, the collective bargaining agreement and social ethics.

Article 16. Obligations to provide information before conclusion of an employment contract

1. The employer shall provide the employee with truthful information about the job, workplace, working conditions, working hours, rest periods, occupational safety and health, wage, forms of wage payment, social insurance, health insurance, unemployment insurance, regulations on business secret, technological know-how, and other issues directly related to the conclusion of the employment contract if requested by the employee.

2. The employee shall provide the employer with truthful information about his/her full name, date of birth, gender, residence, educational level, occupational skills and qualifications, health conditions and other issues directly related to the conclusion of the employment contract which are requested by the employer.

Article 17. Prohibited acts by employers during conclusion and performance of employment contracts

1. Keeping the employee’s original identity documents, diplomas and certificates.

2. Requesting the employee to make a deposit in cash or property as security for his/her performance of the employment contract.

3. Forcing the employee to keep performing the employment contract to pay debt to the employer.

Article 18. Competence to conclude employment contracts

1. Employees may directly conclude their employment contracts, except for the cases specified in Clause 2 of this Article.

2. In respect of seasonal works or certain jobs which have a duration of less than 12 months, a group of employees aged 18 or older may authorized the representative of the group to conclude the employment contract, in which case such employment contract shall be effective as if it was separately concluded by each of the employees.

The employment contract concluded by the said representative must be enclosed with a list clearly stating the full names, ages, genders, residences and signatures of all employees concerned.

3. The person who concludes the employment contract on the employer’s side shall be:

a) The legal representative of the enterprise or an authorized person as prescribed by law;

b) The head of the organization that is a juridical person, or an authorized person as prescribed by law;

c) The representative of the household, artels or an organization that is not a juridical person, or an authorized person as prescribed by law;

d) The individual who directly hires the employee.

4. The person who concludes the employment contract on the employee’s side shall be:

a) The employee himself/herself if he/she is 18 or older;

b) The employee aged 15 to under 18 with a written consensus by his/her legal representative;

c) The employee aged under 15 and his/her legal representative;

d) The employee lawfully authorized by the group of employees to conclude the employment contract.

5. The person who is authorized to conclude the employment contract must not authorize another person to conclude the employment contract.

Article 19. Entering into multiple employment contracts

1. An employee may enter into employment contracts with more than one employer, provided that he/she fully performs all terms and conditions contained in the concluded contracts.

2. Where an employee enters into employment contracts with more than one employer, his/her participation in social insurance, health insurance and unemployment insurance schemes shall comply with regulations of law on social insurance, health insurance, unemployment insurance, occupational safety and health.

Article 20. Types of employment contracts

1. An employment contract shall be concluded in one of the following types:

a) An indefinite-term employment contract is a contract in which the two parties neither fix the term nor the time of termination of the contract;

b) A fixed-term employment contract is a contract in which the two parties fix the term of the contract for a duration of up to 36 months from the date of its conclusion.

2. If an employee keeps working when an employment contract mentioned in Point b Clause 1 of this Article expires:

a) Within 30 days from the expiration date of the employment contract, both parties shall conclude a new employment contract. Before such a new employment contract is concluded, the parties’ rights, obligations and interests specified in the old employment contract shall remain effective;

b) If a new employment contract is not concluded after the 30-day period, the existing employment contract mentioned in Point b Clause 1 of this Article shall become an employment contract of indefinite term;

c) The parties may enter into 01 more fixed-term employment contract. If the employee keeps working upon expiration of this second fixed-term employment contract, the third employment contract shall be of indefinite term, except for employment contracts with directors of state-invested enterprises and the cases specified in Clause 1 Article 149, Clause 2 Article 151 and Clause 4 Article 177 of this Labor Code.

Article 21. Contents of employment contracts

1. An employment contract shall have the following major contents:

a) The employer’s name, address; full name and position of the person who concludes the contract on the employer’s side;

b) Full name, date of birth, gender, residence, identity card number or passport number of the person who concludes the contract on the employee’s side;

c) The job and workplace;

d) Duration of the employment contract;

dd) Job- or position-based salary, form of salary payment, due date for payment of salary, allowances and other additional payments;

e) Regimes for promotion and pay rise;

g) Working hours, rest periods;

h) Personal protective equipment for the employee;

i) Social insurance, health insurance and unemployment insurance;

k) Basic training and advanced training, occupational skill development.

2. If the employees’ job is directly related to the business secret, technological know-how as prescribed by law, the employer has the rights to sign a written agreement with the employee on the content and duration of the protection of the business secret, technology know-how, and on the benefit and the compensation obligation in case of violation by the employee.

3. If the employee works in agriculture, forestry, fishery, or salt production, both parties may exclude some of the aforementioned contents and negotiate additional agreements on settlement in the case when the contract execution is affected by natural disaster, fire or weather.

4. The contents of the employment contract with an employee who is recruited to work as the director of a state-invested enterprise shall be stipulated by the Government.

5. The Minister of Labor, War Invalids and Social Affairs elaborate Clauses 1, 2 and 3 of this Article.

Article 22. Annexes to employment contract

1. An annex to an employment contract is an integral part of the employment contract and is as binding as the employment contract.

2. An annex to an employment contract may elaborate or amend certain contents of the employment contract and must not change the duration of the employment contract.

Where an annex to an employment contract elaborates the employment contract in a manner that leads to a different interpretation of the employment contract, the contents of the employment contract shall prevail.

Where an annex amends certain contents of the employment contract, it should clearly states the amendments or additions, and the date on which they take effect.

Article 23. Effect of employment contract

An employment contract takes effect as of the date on which the contract is concluded by the parties, unless otherwise agreed by both parties or prescribed by law.

Article 24. Probation

1. An employer and an employee may include the contents of the probation in the employment contract or enter into a separate probation contract.

2. The probation contract must include the probation period and the contents specified in Points a, b, c, dd, g and h Clause 1 Article 21 of this Code.

3. Probation is not allowed if the employee works under an employment contract with a duration of less than 01 month.

Article 25. Probationary period

The probationary period shall be negotiated by the parties on the basis of the nature and complexity of the job. Only one probationary period is allowed for a job and the probation shall not exceed:

1. 180 days for the position of enterprise executive prescribed by the Law on Enterprises, the Law on management and use of state investment in enterprises;

2. 60 days for positions that require a junior college degree or above;

3. 30 days for positions that require a secondary vocational certificate, professional secondary school; positions of or for technicians, and skilled employees;

4. 06 working days for other jobs.

Article 26. Probationary salary

The probationary salary shall be negotiated by both parties and shall not be lower than 85% of the offered salary.

Article 27. Termination of probationary period

1. Upon the expiry of the probationary period, the employer shall inform the employee of the probation result.

If the result is satisfactory, the employer shall keep implementing the concluded employment contract, if there is one, or conclude the employment contract.

If the result is not satisfactory, the employer may terminate the concluded employment contract or the probation contract.

2. During the probationary period, either party has the right to terminate the concluded probation contract or employment contract without prior notice and compensation obligation.

Section 2. PERFORMANCE OF EMPLOYMENT CONTRACT

Article 28. Performance of works under an employment contract

The works under an employment contract shall be performed by the employee who directly enters into the contract. The workplace shall be consistent with that indicated in the employment contract, unless otherwise agreed upon by both parties.

Article 29. Reassignment of an employee against the employment contract

1. In the event of sudden difficulties such as natural disasters, fire, major epidemics, implementation of preventive and remedial measures for occupational accidents or diseases, electricity and water supply failures, or for reasons of business and production demands, the employer may temporarily assign an employee to perform a work which is not prescribed in the employment contract for an accumulated period of up to 60 working days within 01 year, unless otherwise agreed in writing by the employee.

The employer shall specify in the internal labor regulations the cases in which the employer may temporary reassign employees against the employment contracts.

2. In case of temporarily reassignment of an employee specified in Clause 1 of this Article, the employer shall inform the employee at least 03 working days in advance, specify the reassignment period and only assign works that are suitable for the employee’s health and gender.

3. The reassigned employee will receive the salary of the new work. If the new salary is lower than the previous salary, the previous salary shall be maintained for 30 working days. The new salary shall be at least 85% of the previous salary and not smaller than the minimum wages.

4. In case the employee refuses to be reassigned for more than 60 working days in 01 year and has to suspend the employment, he/she shall receive the suspension pay from the employer in accordance with Article 99 of this Labor Code.

Article 30. Suspension of an employment contract

1. Cases of suspension of an employment contract:

a) The employee is conscripted into the army or militia;

b) The employee is held in custody or detention in accordance with the criminal procedure law;

c) The employee is sent to a reformatory school, drug rehabilitation center or correctional facility;

d) The female employee is pregnant as specified in Article 138 of this Code;

dd) The employee is designated as the executive of a wholly state-owned single-member limited liability company;

e) The employee is authorized to representative the state investment in another enterprise;

g) The employee is authorized to represent the enterprise’s investment in another enterprise;

h) Other circumstances as agreed by both parties.

2. During the suspension of the employment contract, the employee shall not receive the salary and benefits specified in the employment contract, unless otherwise agreed by both parties or prescribed by law.

Article 31. Reinstatement of employees upon expiry of the temporary suspension of the employment contract

Within 15 days from the expiry of the suspension period of the employment contract, the employee shall be present at the workplace and the employer shall reinstate the employee under the employment contract if it is still unexpired, unless otherwise agreed by both parties or prescribed by law.

Article 32. Part-time employments

1. A part-time employee is an employee who works for less than the usual daily, weekly or monthly working hours as prescribed by labor laws, the collective bargaining agreement internal labor regulations.

2. An employee may negotiate part-time employment with the employer when enter into an employment contract.

3. The part-time employee shall be entitled to receive salary, equal rights and obligations as a full-time employee; equal opportunity and treatment, and to a safe and hygienic working environment.

Article 33. Revisions to employment contracts

1. During the performance of an employment contract, any party who wishes to revise the employment contract shall notify the other party of the revisions at least 03 working days in advance.

2. In case where an agreement is reached between the parties, the revisions shall be made by signing an annex to the employment contract or signing a new employment contract.

3. In case the two parties fail to reach an agreement on the revisions, they shall continue to perform the existing employment contract.

Section 3. TERMINATION OF EMPLOYMENT CONTRACTS

Article 34. Cases of termination of an employment contract

1. The employment contract expires, except for the case specified in Clause 4 Article 177 of this Code.

2. The tasks stated in the employment contract have been completed.

3. Both parties agree to terminate the employment contract.

4. The employee is sentenced to imprisonment without being eligible for suspension or release as prescribed in Clause 5 Article 328 of the Criminal Procedure Code, capital punishment or is prohibited from performing the work stated in the employment contract by an effective verdict or judgment of the court.

5. The foreign employee working in Vietnam is expelled by an effective verdict or judgment of the court or a decision of a competent authority.

6. The employee dies; is declared by the court as a legally incapacitated person, missing or dead.

7. The employer that is a natural person dies; is declared by the court as a legally incapacitated person, missing or dead. The employer that is not a natural person ceases to operate, or a business registration authority affiliated to the People’s Committee of the province (hereinafter referred to as “provincial business registration authority”) issues a notice that the employer does not have a legal representative or a person authorized to exercise the legal representative’s rights and obligations.

8. The employee is dismissed for disciplinary reasons.

9. The employee unilaterally terminates the employment contract in accordance with Article 35 of this Code.

10. The employer unilaterally terminates the employment contract in accordance with Article 36 of this Code.

11. The employee is laid off by the employer in accordance with Article 42 and Article 43 of this Code.

12. The work permit or a foreign employee expires according to Article 156 of this Labor Code.

13. The employee fails to perform his/her tasks during the probationary period under the employment contract or gives up the probation.

Article 35. The right of an employee to unilaterally terminates the employment contract

1. An employee shall have the right to unilaterally terminate the employment contract, provided he/she notices the employer in advance:

a) at least 45 days in case of an indefinite-term employment contract;

b) at least 30 days in case of an employment contract with a fixed term of 12 – 36 months;

c) at least 03 working days in case of an employment contract with a fixed term of under 12 months;

d) The notice period in certain fields and jobs shall be specified by the government.

2. An employee is shall have the right to unilaterally terminate the employment contract without prior notice if he/she:

a) is not assigned to the work or workplace or not provided with the working conditions as agreed in the employment contract, except for the cases specified in Article 29 of this Labor Code;

b) is not paid adequately or on schedule, except for the case specified in Clause 4 Article 97 of this Code.

c) is maltreated, assaulted, physically or verbally insulted by the employer in a manner that affects the employee’s health, dignity or honor; is forced to work against his/her will;

d) is sexually harassed in the workplace;

dd) is pregnant and has to stop working in accordance with Clause 1 Article 138 of this Labor Code.

e) reaches the retirement age specified in Article 169 of this Labor Code, unless otherwise agreed by the parties; or

g) finds that the employer fails to provide truthful information in accordance with Clause 1 Article 16 of this Labor Code in a manner that affects the performance of the employment contract.

Article 36. The right of an employer to unilaterally terminates the employment contract

1. An employer shall have the right to unilaterally terminate an employment contract in one of the following circumstances:

a) The employee repeatedly fails to perform his/her work according to the criteria for assessment of employees’ fulfillment of duties established by the employer. The criteria for assessment of employees’ fulfillment of duties shall be established by the employer with consideration taken of opinions offered by the representative organization of employees (if any);

b) The employee is sick or has an accident and remains unable to work after having received treatment for a period of 12 consecutive months in the case of an indefinite-term employment contract, for 06 consecutive months in the case of an employment contract with a fixed term of 12 – 36 months, or more than half the duration of the contract in case of an employment contract with a fixed term of less than 12 months.

Upon recovery, the employer may consider concluding another employment contract with the employee;

c) In the event of a natural disaster, fire, major epidemic, hostility, relocation or downsizing requested by a competent authority, the employer has to lay off employees after all possibilities have been exhausted;

d) The employee is not present at the workplace after the time limit specified in Article 31 of this Labor Code;

dd) The employee reaches the retirement age specified in Article 169 of this Labor Code, unless otherwise agreed by the parties;

e) The employee is not present at work without acceptable excuses for at least 05 consecutive working days;

g) The employee fails to provide truthful information during the conclusion of the employment contract in accordance with Clause 2 Article 16 of this Labor Code in a manner that affects the recruitment.

2. When unilaterally terminating the employment contract in any of the cases specified in Point a, b, c, dd and g Clause 1 of this Article, the employer shall inform the employee  in advance:

a) at least 45 days in case of an indefinite-term employment contract;

b) at least 30 days in case of an employment contract with a fixed term of 12 – 36 months;

c) at least 03 working days in the case of an employment contract with a fixed term of less than 12 months and in the cases stipulated in Point b Clause 1 of this Article;

d) The notice period in certain fields and jobs shall be specified by the government.

3. When unilaterally terminating the employment contract in the cases mentioned in Point d and Point e Clause 1 of this Article, the employer is not required to inform the employee in advance.

Article 37. Cases in which an employer is prohibited from unilaterally terminating an employment contract

1. The employee is suffering from an illness or work accident, occupational disease and is being treated or nursed under the decision of a competent health institution, except for the cases stipulated in Point b Clause 1 Article 36 of this Labor Code.

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

3. The employee is pregnant, on maternal leave or raising a child under 12 months of age.

Article 38. Withdrawal of unilateral termination of employment contracts

Either party may withdraw the unilateral termination of an employment contract at any time prior to the expiry of the notice period by a written notification, provided that the withdrawal is agreed by the other party.

Article 39. Illegal unilateral termination of employment contracts

The unilateral termination of an employment contract will be illegal if it does not comply with regulations of Article 35, 36 and 37 of this Labor Code.

Article 40. Obligations of the employee upon illegal unilateral termination of the employment contract

The employee who illegally unilaterally terminates his/her employment contract shall:

1. Not receive the severance allowance.

2. Pay the employer a compensation that is worth his/her half a month’s salary plus (+) an amount equal to his/her salary for the remaining notice period from the termination date.

3. The employee shall reimburse the employer with the training costs in accordance with Article 62 of this Code.

Article 41. Obligations of the employer upon illegal unilateral termination of the employment contract

1. The employer that illegally unilaterally terminates an employment contract with an employee shall reinstate the employee in accordance with the original employment contract, and pay the salary, social insurance, health insurance and unemployment insurance premiums for the period during which the employee was not allowed to work, plus at least 02 months’ salary specified in the employment contract.

After the reinstatement, the employee must return the severance allowance or redundancy allowance (if any) to the employer.

Where there is no longer a vacancy for the position or work as agreed in the employment contract and the employee still wishes to work, the employer shall negotiate revisions to the employment contract.

Where the employer fails to comply with the provisions on notice period in Clause 2 Article 36 of this Labor Code, the employer shall pay a compensation that is worth the employee’s salary for the remaining notice period from the termination date.

2. In case the employee does not wish to return to work, in addition to the compensation prescribed in Clause 1 of this Article, the employer shall pay a severance allowance in accordance with Article 46 of this Code in order to terminate the employment contract.

3. Where the employer does not wish to reinstate the employee and the employee agrees, in addition to the compensation mentioned in Clause 1 of this Article and the severance allowance mentioned in Article 46 of this Labor Code, both parties shall negotiate an additional compensation which shall be at least 2 months’ salary under the employment contract in order to terminate the employment contract.

Article 42. Obligations of the employer in case of changes in structure, technology or changes due to economic reasons

1. Changes in structure and technology include:

a) Changes in the organizational structure, personnel rearrangement;

b) Changes in processes, technology, equipment associated with the employer’s business lines;

c) Changes in products or product structure.

2. Changes due to economic reasons include:

a) Economic crisis or economic depression;

b) Changes in law and state policies upon restructuring of the economy or implementation of international commitments.

3. If the change affects the employment of a large number of employees, the employer shall develop and implement a labor utilization plan prescribed in Article 44 of this Labor Code. In case of new vacancies, priority shall be given to retraining of the existing employees for continued employment.

4. If a change due to economic reasons threatens to cause a large number of employees to lose their jobs, the employer shall develop and implement a labor utilization plan as prescribed in Article 44 of this Code.

5. In case the employer is unable to create provide employment and has to resort to dismissing employees, the employer shall pay them redundancy allowances in accordance with Article 47 of this Labor Code.

6. The dismissal of employees in the cases mentioned in this Article shall only be implemented after a discussion with the representative organization of employees (if any) and after giving prior notice of 30 days to the People’s Committee of the province and the employees.

Article 43. Obligations of the employer in case of full division, partial division, consolidation, merger of the enterprise; sale, lease, conversion of the enterprise; transfer of the right to ownership or right to enjoyment of assets of the enterprise or cooperative

1. In case the full division, partial division, consolidation, merger of the enterprise; sale, lease, conversion of the enterprise; transfer of the right to ownership or right to enjoyment of assets of the enterprise or cooperative affects the employment of a large number of employees, the employer shall develop a labor utilization plan as prescribed in Article 44 of this Labor Code.

2. The current employer and the next employer shall implement the adopted labour utilization plan.

3. The laid off employees will receive redundancy allowances in accordance with Article 47 of this Code.

Article 44. Labor utilization plan

1. A labor utilization plan shall have the following contents:

a) The names and number of employees to be retained, employees to be retrained for further employment, and employees to be working on part-time basis;

b) The names and number of employees to retire;

c) The names and number of employees whose employment contracts have to be terminated;

d) Rights and obligations of the employer, employee and relevant parties regarding implementation of the labor utilization plan;

dd) The measure and financial sources to implement the plan.

2. During development of the labor utilization plan, the employer shall discuss with the representative organization of employees (if any). The labor utilization plan shall be made available to the employees within 15 days from the day on which it is adopted.

Article 45. Noticing termination of employment contracts

1. The employer shall send a written notice to the employee of the termination of his/her employment contract, except for the cases specified in Clauses 4, 5, 6, 7, 8 Article 34 of this Labor Code.

2. In case an employer that is not a natural person shuts down business operation, the date of termination of the employment contract is the same date of the notice of business shutdown.

In case the provincial business registration authority issues a notice that the employer does not have a legal representative or a person authorized to exercise the legal representative’s rights and obligations according to Clause 7 Article 34 of this Labor Code, the date of termination of the employment contract is the same date of the notice.

Article 46. Severance allowance

1. In case an employment contract is terminated as prescribed in Clauses 1, 2, 3, 4, 6, 7, 9 and 10, Article 34 of this Code, the employer is responsible for paying severance allowance to the employee who has worked on a regular basis for a period of at least 12 months. Each year of work will be worth half a month’s salary, except for the cases in which the employee is entitled to receive retirement pension as prescribed by social insurance laws, and the cases specified in Point e Clause 1 Article 36 of this Labor Code.

2. The qualified period of work as the basis for calculation of severance allowance shall be the total period during which the employee actually worked for the employer minus the period over which the employee participated in the unemployment insurance in accordance with unemployment insurance laws and the period for which severance allowance or redundancy allowance has been paid by the employer.

3. The salary as the basis for calculation of severance allowance shall be the average salary of the last 06 months under the employment contract before the termination.

4. The Government shall elaborate this Article.

Article 47. Redundancy allowance

1. Where an employment contract is terminated according to Clause 11 Article 34 of this Labor Code and the employee has worked on a regular basis for the employer for at least 12 months, the employer shall pay a redundancy allowance to the employee. Each year of work will be worth 01 month’s salary and the total redundancy allowance shall not be smaller than 02 month’s salary.

2. The qualified period of work as the basis for calculation of redundancy allowance shall be the total period during which the employee actually worked for the employer minus the period over which the employee participated in the unemployment insurance in accordance with unemployment insurance laws and the period for which severance allowance or redundancy allowance has been paid by the employer.

3. The salary as the basis for the calculation of redundancy allowance shall be the average salary of the last 06 months under the employment contract before the termination.

4. The Government shall elaborate this Article.

Article 48. Responsibilities of the parties upon termination of an employment contract

1. Within 14 working days following the termination of an employment contract, both parties shall settle all payments in respect of the rights and interests of each party. In the following cases, such period may be extended, but shall not exceed 30 days:

a) Shutdown of business operation of the employer that is not a natural person;

b) Changes in the organizational structure, technology or changes due to economic reasons;

c) Full division, partial division, consolidation, merger of the enterprise; sale, lease, conversion of the enterprise; transfer of the right to ownership or right to enjoyment of assets of the enterprise or cooperative;

d) Natural disasters, fire, hostility or major epidemics.

2. Priority shall be given to payment of the employees’ salaries, social insurance, health insurance, unemployment insurance, severance allowance and other benefits under the collective bargaining agreement and employment contracts in case of shutdown, dissolution or bankruptcy of an enterprise or cooperative.

3. The employer has the responsibility to:

a) Complete the procedures for verification of duration of participation in social insurance and unemployment insurance, return them and original copies of the employee’s other documents (if any);

b) Provide copies of the documents relevant to the employee’s work if requested by the employee. The employer shall pay the cost of copying and sending the documents.

Section 4. INVALID EMPLOYMENT CONTRACT

Article 49. Invalid employment contracts

1. An employment contract shall be completely invalid in the following cases:

a) The entire contents of the employment contract are illegal;

b) A person concludes the employment contract ultra vires or against the rules for employment contract conclusion specified in Clause 1 Article 15 of this Labor Code;

c) The work described in the employment contract is prohibited by law;

2. An employment contract shall be partially invalid when part of its contents is illegal but does not affect its remaining contents.

Article 50. Competence to invalidate employment contracts

People’s Courts shall be entitled to invalidate employment contracts.

Article 51. Settlements upon invalidation of an employment contract

1. Where an employment contract is declared as partially invalid, it shall be dealt with as follows:

a) The rights, obligations and benefits of the parties shall be settled in accordance with the collective bargaining agreement (or provisions of the law if there is no collective bargaining agreement);

b) The parties shall revise the invalidated part of the employment contract in accordance with the collective bargaining agreement or labor laws.

2. In case an employment contract is completely invalidated, the rights, obligations and interests of the employee shall be settled in accordance with law. In case an employment contract is concluded ultra vires, another contract shall be concluded.

3. The Government shall elaborate this Article.

Section 5. LABOR OUTSOURCING

Article 52. Labor outsourcing

1. Labor outsourcing is an arrangement in which a worker enters into an employment contract with an outsourcing enterprise, which subsequently dispatches the worker to work for another employer (client enterprise) while maintaining labor relations with the outsourcing enterprise with which the employment contract is concluded.

2. Labor outsourcing is a conditional business, requires the labor outsourcing license and applies only to certain types of work.

Article 53. Labor outsourcing rules

1. The maximum duration of labor outsourcing is 12 months.

2. The client enterprise may employ an outsourced worker in the following cases:

a) The employment is necessary for the sharp increase in labor demand over a limited period of time;

b) The outsourced worker is meant to replace another employee who is taking maternal leave, has an occupational accident or occupational disease or has to fulfill his/her citizen’s duties;

c) The work requires highly skilled workers.

3. The client enterprise may not employ an outsourced worker in the following cases:

a) The outsourced worker is meant to replace another employee during a strike or settlement of labor disputes;

b) There is no agreement with the outsourcing enterprise on responsibility for compensation for the outsourced worker’s occupational accidents and occupational diseases;

c) The outsourced worker is meant to replace another employee who is dismissed due to changes in organizational structure, technology, economic reasons, full division, partial division, consolidation or merger of the enterprise.

4. The client enterprise must not dispatch an outsourced worker to another employer; must not employ an employee dispatched by an enterprise that does not have the labor outsourcing license.

Article 54. Outsourcing enterprises

1. An outsourcing enterprise shall pay a deposit and obtain labor outsourcing license.

2. The Government shall provide for the issuance of labor outsourcing licenses, making deposit, the types of work that allow dispatched labor.

Article 55. Labor outsourcing contracts

1. The outsourcing enterprise and the client enterprise shall conclude a written labor outsourcing contract, which is made into 02 copies, each of which shall be kept by a party.

2. A labor outsourcing contract shall have the following major contents:

a) The work location, the vacancy which will be filled by the outsourced worker, detailed description of the work, and detailed requirements for the outsourced worker;

b) The labor outsourcing duration; the starting date of the dispatch period;

c) Working hours, rest periods, occupational safety and health at the workplace;

d) Responsibility for compensation in case of occupational accidents and occupational diseases;

dd) Obligations of each party to the outsourced worker.

3. The labor outsourcing contract shall not include any agreement on the rights and benefits of employee which are less favorable than those stipulated in the concluded employment contract between the employee and the outsourcing enterprise.

Article 56. Rights and obligations of the outsourcing enterprise

Apart from the rights and obligations specified in Article 6 of this Labor Code, the outsourcing enterprise also has the following rights and obligations:

1. Provide an outsourced worker who meets the requirements of the client enterprise and the employment contract signed with the employee;

2. Inform the outsourced worker of the contents of the labor outsourcing contract;

3. Provide the client enterprise with the curriculum vitae of the outsourced worker, and his/her requirements.

4. Pay the outsourced worker a salary that is not lower than that of a directly hired employee of the client enterprise who has equal qualifications and performs the same or equal work;

5. Keep records of the number of outsourced workers, the client enterprise, submit periodic reports to the provincial labor authority.

6. Take disciplinary measures against the outsourced worker in cases where the client enterprise returns the employee for violations against labor regulations.

Article 57. Rights and obligations of the client enterprise

1. Inform and guide the outsourced worker to understand its internal labor regulations and other regulations.

2. Do not discriminate between the outsourced worker and its directly hired employees in respect of the working conditions.

3. Reach an agreement with the outsourced worker on night work and overtime work in accordance with this Labor Code.

4. The client enterprise may negotiate with the outsourced worker and the dispatch enterprise on official employment of the outsourced worker while the employment contract between the dispatch employee and the dispatch enterprise is still unexpired.

5. Return the outsourced worker who does not meet the agreed conditions or violates the work regulations to the dispatch enterprise.

6. Provide evidence of violations against work regulations by the outsourced worker to the outsourcing enterprise for disciplinary measures.

Article 58. Rights and obligations of the outsourced worker

Apart from the rights and obligations specified in Article 5 of this Labor Code, the outsourced worker also has the following rights and obligations:

1. Perform the work in accordance with the employment contract with the outsourcing enterprise;

2. Obey internal labor regulations, lawful management, administration and supervision by the client enterprise;

3. Receive a salary which is not lower than that of a directly hired employee of the client enterprise who has equal qualifications and performs the same or equal work;

4. File a complaint with the dispatch enterprise in case the client enterprise violates agreements in the labor outsourcing contract.

5. Negotiate termination of the employment contract with the outsourcing enterprise in order to conclude an employment contract with the client enterprise.

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