Chương II Nghị định 05/2015/NĐ-CP hướng dẫn bộ luật lao động: Hợp đồng lao động

Chapter II

EMPLOYMENT CONTRACT

Section 1: CONCLUSION OF EMPLOYMENT CONTRACT

Article 3: Entities concluding employment contracts

1. The person concluding employment contracts on the employer side (hereinafter referred to as the employer’s authorized signatory) is either:

a) The legal representative specified in the regulations of the enterprise or cooperative;

b) The head of the agency, unit or organization as prescribed in law;

c) The family householder

d) The individual directly using the employee

If the persons specified at Points a, b and c, Clause 1 of this Article do not directly conclude contracts, they shall legally authorize in writing others to conclude the contracts using the form issued by the Ministry of Labor, War Invalids and Social Affairs.

2. The person concluding employment contracts on the employee side (hereinafter referred to as the employee’s authorized signatory) is one of the followings:

a) The employee from 18 years of age or older;

b) The underage employee from 15 to under 18 years of age obtaining the written consent from their legal representatives;

c) The legal representative of persons under 15 years of age obtaining the written consent from those persons.

d) The employee legally authorized to conclude employment contracts by other employees of the same group .

3. The person authorized to conclude employment contracts as prescribed in Clauses 1 and 2 of this Article shall not be allowed to proceed to authorize others to conclude contracts.

Article 4: Contents of employment contract

The main contents of the employment contract in Clause 1 of Article 23 of the Labor Code shall be defined as follows:

1. With regard to name and address of the employer :

a) Name of businesses, agencies, organizations, cooperatives, households, who hire, use the employers under employment contracts, as shown in the Certificate of Enterprise Registration ,Certificate of cooperative registration or investment certificate or decision on establishment of agencies and organizations; if individuals hire or use the employees, the full names of such individuals as shown in their identity cards or passports are required;

b) Address of businesses, agencies, organizations, cooperatives, households, individuals, who hire and use the employees, as shown in the Certificate of Enterprise registration ,Certificate of cooperative registration or investment certificate or decision on establishment of agencies and organizations in accordance with law;

c) Full name, date of birth, ID or passport number, residence address, title of the employer’s authorized signatory at businesses, organizations, cooperatives, households hiring and using the employees under the provisions of Clause 1 of Article 3 hereof.

2. With regard to ID number or other legal documents of employees:

a) The employee’s ID or passport number granted by the competent authorities;

b) Number, issuance date and place of work permits granted by the competent authorities to foreign employees working in Vietnam;

c) The written consent to conclusion of the employment contract that the legal representative of the employees from 15 years of age to under 18 years of age keeps;

d) Full name, date of birth, gender, place of residence, ID or passport number of the legal representative of the person under 15 years of age

dd) The written consent of under-15-years-old persons to their legal representatives’ conclusion of their employment contracts.

3. With regard to work description and work places:

a) Work description: The details of work that the employee must perform;

b) Workplace of employees: Scope of agreed work and location where the employees work ; if the employees work in many different places, the main workplace shall be provided.

4. The term of the employment contract shall include: The number of months and days of employment contract execution , time of the employment contract commencement and termination (for fixed-term employment contracts or casual employment contract or piece work); time of the employment contract commencement (for indefinite term employment contract).

5. With regard to salary rate, form of payment, payment duration, allowances and other additional payment:

a) Salary rate, allowances and other additional payments shall be determined under the provisions of Clause 1 of Article 21 hereof;

b) Form of payment shall be determined in accordance with the provisions of Article 94 of the Labor Code;

c) Payment duration shall be determined by both parties in accordance with the provisions of Article 95 of the Labor Code.

6. With regard to promotion and wage raise regulations : requirements, schedule, specific time, salary rate that has been raised under the mutual agreement

7. With regard to the working time, rest time :

a) Working hours per a day and a week; shift; start or end of a working day, week or shift ; working days per week; overtime and overtime-related provisions;

b) Start and end of break time; weekly , annual days-off, holidays, personal leaves, unpaid leaves.

8. With regard to personal protective equipment provided for employees : Specific quantity, type, quality and service life of each type of personal protective equipment as prescribed by the employers.

9. With regard to social insurance, unemployment insurance and medical insurance :

a) Percentage of the monthly salary shall be paid for social insurance, unemployment insurance, medical insurance by employers and employees as prescribed in the law on social insurance, unemployment insurance and medical insurance

b) Methods time of payments for social insurance, unemployment insurance and medical insurance, made by employers and employees.

10. With regard to training and refresher courses for employees: The rights and obligations of employers and employees to schedule and budget these courses.

11. Other issues relating to both parties’ compliance with contractual terms and conditions.

Article 5: Amendment to the term of employment contracts with the appendix

The term of the employment contract shall be amended only once in employment contract Appendix and not be changed in the type of the signed contract, except when the term of employment contracts with elderly employees and those who are part-time unionists are extended as specified in Clause 6 of Article 192 of the Labor Code.

Article 6: Employment contract with elderly employees

1. If the employers have a need and elderly employees are healthy enough in accordance with the conclusions of healthcare establishments established and operated under the provisions of the law, both parties shall agree to extend the term of employment contracts or enter into new employment contracts.

2. If the employers have no need or the elderly employees are not healthy enough, both parties shall terminate the employment contracts.

Article 7. Notice of probation results

1. Within 03 days before the end of the probation period for the employee whose probation period is stipulated in Clauses 1 and 2 of Article 27 of the Labor Code, the employer must notify the employee of the probation results; if the results meet the requirements, the employer shall immediately conclude the employment contract with the employee at the end of the probation period.

2. At the end of the probation period of employees whose probation period is specified in Clause 3 of Article 27 of the Labor Code, the employer must notify the employee of the probation results; if the results meet the requirements, the employer must immediately conclude a employment contract with the employee.

Section 2: IMPLEMENTATION OF EMPLOYMENT CONTRACTS

Article 8. Temporary job transfer

Temporary transfer of employees to perform jobs which are not stated in employment contracts in Clause 1, article 31 of the Labor Code shall be prescribed as follows :

1. The employer shall be entitled to temporarily transfer the employee to perform jobs other than those in the employment contract in the following cases:

a) Natural disasters, conflagration, epidemics;

b) Application of preventive and remedial measures against occupational accidents and diseases;

c) Electricity and water supply failure;

d) Operating demands.

2. The employer shall specify in the corporate rules that the employer may temporarily transfer the employee to jobs other than those in the employment contract due to production and business demands.

3. If employers have temporarily transferred their employees to perform jobs other than those in the employment contract for 60 cumulative working days in a year, and they continue to temporarily transfer the employees to perform jobs other than those defined in the employment contract, the written consent shall be obtained from the employees.

4. If the employees do not agree to be temporarily transferred to the jobs other than those in the employment contracts as specified in Clause 3 of this Article and quit their jobs, the employers shall pay them salary for such quit as prescribed in Clause 1 of Article 98 of the Labor Code.

Article 9. Agreement on temporary suspension of employment contracts when employees are appointed or assigned as representative of the State contributed capital

1. The employer and the employee in a state-owned single member limited companies, single member limited companies owned by state-owned economic corporations, state-owned corporations, parent companies in the parent -subsidiary company relationship shall agree to temporarily suspend the employment contracts in the following cases:

a) The employee is appointed as the member of Member assembly or President, comptroller, General Director (Director), Deputy General Director (Deputy Director)or Chief Accountant of the company by competent authorities ;

b) The employee is assigned as the representative of the capital and works in an enterprise to which the State or a parent company in parent company-subsidiary company relationship contributes their capital by competent authorities.

2. The period of temporary suspension of the employment contract shall be the time when the employee is appointed or assigned as the representative of the capital and works in an enterprise to which the State or the parent company in parent company-subsidiary company relationship contributes their capital.

Article 10. Reinstatement of employees upon expiry of the period of temporary suspension of employment contracts

Reinstatement of employees upon expiry of the period of temporary suspension of employment contracts as prescribed in Article 33 of the Labor Code shall be as follows:

1. Within 15 days after the date of expiration of the employment contract suspension, the employee must be present at the workplace and the employer must reinstate the employee . If the employee can not be present at the workplace in accordance with the regulated time, the employee shall agree with the employer on the time of their presence.

2. The employer shall be responsible for arranging the employee to perform the job defined in the employment contract ; in case the employer fails to arrange the job defined in the employment contract, both parties shall be agreed on a new job and amend, supplement the existing employment contract or conclude a new one.

Section 3: CONTRACT AMENDMENT, SUPPLEMENTATION AND TERMINATION

Article 11: Employee’s unilateral termination of employment contracts

1. The employee shall have the right to unilaterally terminate the employment contract as stipulated at Point c, Clause 1, Article 37 of the Labor Code if they suffer from the employer’s illegal acts like violent, aggressive behaviors, disrespect and humiliating acts, acts affecting the employee’s health, dignity, honor, and use of coercive measures or sexual harassment in the workplace.

2. The employee shall have the right to unilaterally terminate the employment contract at Point d, Clause 1, Article 37 of the Labor Code in the following cases:

a) Quit the job to take care of their spouse, father , mother, father-in-law, mother-in-law, natural children and adopted children who are sick or involved in accidents;

b) Leave for foreign countries to live or work;

c) Help their families that are in trouble with natural disasters, conflagration, hostility, enemy-inflicted destruction, epidemics or relocation which the employee tries to overcome but can not continue to execute the employment contract.

Article 12. Employer’s unilateral termination of the employment contract

The right to unilaterally terminate the employment contract that the employer is granted at the points a and c, Clause 1, Article 38 of the Labor Code shall be prescribed as follows:

1. The employer must specify the criteria for assessing the work completion under the regulations of enterprises, as a basis for assessing the employees who often do not complete the work according to contract labor. Such assessment regulations shall be issued by the employer after consultation with the representative organizations of labor collectives at the company.

2. Other force majeure in one of the following cases

a) Enemy-inflicates destruction, epidemics

b) Relocation or narrowing of the production and business sites, at the request of competent State agencies.

Article 13. Change of structure, technology and economic reasons

1. Changes of structure, technology in clause 1 of Article 44 of the Labor Code shall include the following cases

a) Changes of organizational structure, re-organization of employments

b) Changes of products, product structure;

c) Changes of technology process, machinery, business manufacturing equipment, associated with production, business activities of the employer.

2. The economic reason in clause 2 of Article 44 of the Labor Code shall be one of the following cases:

a) Economic crisis or recession;

b) Implementation of the governmental policy on restructuring the economy or implementation of international commitments.

3. If technological, structural changes, or economic reasons affect the jobs or risk the employee losing their jobs, lead to dismissal of 02 or more employees, the employer shall fulfill their obligations as prescribed in Article 44 of the Labor Code.

Article 14. Severance pay and redundancy pay

1. The employer shall pay employment severance pay as prescribed in Article 48 of the Labor Code to employees regularly working for 12 months or more if employment contracts are terminated as specified in Clauses 1, 2, 3, 5, 6, 7, 9 of Article 36 and the employers shall unilaterally terminate the employment contract in accordance with the provisions of Article 38 of the Labor Code.

2. The employer shall give redundancy pay as prescribed in Article 49 of the Labor Code to employees regularly working for 12 months or more but losing their jobs due to technological, structural change or economic reasons or a merger, amalgamation, split or separation of enterprises or cooperatives as specified in Clause 10, Article 36, Article 44 and Article 45 of the Labor Code.

3. Working time serving as the basis for calculating severance pay, redundancy pay shall be the total of actual working time subtracting the time when the employees pay unemployment insurance contributions as prescribed by law, and the working time when severance pay is offered by the employer. Of which:

a) The actual time when employees work for employers shall include the following periods such as time of employee’s working for the employer; probation, internship and apprenticeship that take place at the employer’s enterprise; time of the employer’s sending employees on courses; paid leaves of the insured employees under the provisions of the Law on Social Insurance; weekly days-off in accordance with Article 110, fully paid leaves in accordance with the Articles 111, 112,115 and Clause 1 of Article 116 of the Labor Code; time of employee’s staying away from work to join Trade Union activities in accordance with the law on trade unions; time of employee’s quitting or being kept away from work by no fault of the employees; time of employee’s being temporarily suspended, detained or jailed away from work after which the employees are permitted to come back to work on account of the competent authority’s reaching the conclusion that they are not guilty;

b) The time when employees pay for unemployment insurance shall include: the time when employers have paid for the unemployment insurance in accordance with the law, and the abovementioned time corresponding to the time when employees are paid a sum of salary equal to such unemployment insurance premiums in accordance with laws;

c) Working time serving as the basis for calculating severance pay and redundancy pay to employees shall be in years (full 12 months)and the period from 01 full month to under 06 months shall be rounded to a half of year; the period from full 06 months to 01 year shall be rounded to 1 year.

4. Severance pay and redundancy pay in some special cases:

a) If the employees who have actually worked for the employers for full 12 months or more are made redundant but working time serving as the basis for calculating the redundancy pay is less than 18 months, the employers shall offer the amount of redundancy pay equal to at least 02 months of salary to the employees ;

b) If employees terminate the employment contract after a merger, amalgamation, split, separation of business or cooperative, employment contract, the employers shall offer severance pay or redundancy pay for the time when the employees have worked for them and the time when the employees have worked for the previous employers .

5. Within 07 working days after the date of termination of the employment contracts, the employers shall be responsible for providing severance pay or redundancy pay to the employers. This deadline may be extended but for up to 30 days after the date of termination of the employment contract in one of the following circumstances:

a) Business operation is not terminated by the employer;

b) The employer or the employee suffers from natural disasters, conflagration, hostile acts or infectious diseases;

c) The employer changes their technology, organization structure, or is affected by economic reasons as prescribed in Article 13 of this Decree

6. Funding for making severance pay and redundancy pay shall be included in the production and business costs or operating budget of the employers.

Article 15. Responsibilities for setting up the planning for using employees, calculation and provision of severance pay and redundancy pay, assumed by employers, in case of transfer of the right to own or use assets of enterprises

1. In case of transfer of the right to own or use assets of business, the previous employer shall develop the plans to use employees under the provisions of Article 46 of the Labor Code.

2. The employees must terminate the employment contracts under the plan for to use the employees as specified in Clause 1 of this Article, the employers shall make provide severance pay as prescribed in Article 49 of the Labor Code.

3. The employees continuing to work, the employees sent to retraining courses to continue to work, the employees assigned to work part-time at employer’s enterprises after the transfer of the right to own and use assets under the plan to use the employees as specified in clause 1 of this Article, upon termination of the employment contract, the next employers shall be responsible for calculation and provision of severance pay as prescribed in Article 48 or redundancy pay under the provisions of Article 49 of the Labor Code for the time when the employees have actually worked for them, and severance pay for the time when the employees actually have worked at these enterprises before the transfer of the right to own and use assets, including the time of working in the state sector and being last recruited into the business before January 01, 1995.

4. If the business’ employers continue to transfer the right to own and use a part of assets or the whole enterprises after the transfer of the right to own or use assets of business, the employers shall implement the provisions of Clauses 1, 2 and 3 of this Article before and after the right to own and use the assets .