Chapter III
EMPLOYMENT CONTRACTS
Section 1. CONTENTS OF EMPLOYMENT CONTRACST WITH EMPLOYEES HIRED AS DIRECTORS OF STATE-INVESTED ENTERPRISES
Article 5. Contents of employment contracts with employees hired as Directors of enterprises 100% charter capital of which is held by the State or enterprises over 50% charter capital or voting shares of which is held by the State
The employment contract with an employees hired as Director of an enterprise 100% charter capital of which is held by the State or an enterprise over 50% charter capital or voting shares of which is held by the State according to Clause 4 Article 21 of the Labor Code shall have the following primary contents:
1. Name, headquarters address of the enterprise according to its Certificate of Enterprise Registration; full name, date of birth, ID/passport number, phone number, mailing address of the President of the Board of Members or Company President or President of the Board of Directors.
2. Full name, date of birth; gender; nationality; professional qualifications; address of residence in Vietnam, address of overseas residence (if the employee is a foreigner); ID/passport number; phone number and mailing address; number of the work permit issued by a competent authority or a document confirming the work permit exemption; other documents requested by the employer (if the employee is a foreigner).
3. Works that may and may not be done by the employee; performance requirements and duties of the employee.
4. Location of work.
5. The contract duration shall be negotiated by both parties and shall not exceed 36 months. In case the employee is a foreigner, the contract duration shall not exceed the duration of the work permitted issued by a competent authority.
6. Details and duration of the employee’s responsibility for protection of the enterprise’s business and technological secrets and actions against violations.
7. Rights and obligations of the employer, including:
a) Provision of information for the employee to serve the performance of his/her duties;
b) Inspection, supervision and evaluation of the employee’s performance;
c) The rights and obligations prescribed by law;
d) Issuance of the work regulations applied to the Director;
dd) Fulfillment of obligations to the employee: payment of salary and bonuses; payment of social insurance, health insurance and unemployment insurance; provision of means of work, travel and accommodation; provision of training;
e) Other rights and obligations agreed upon by both parties.
8. Rights and obligations of the employee, including:
a) Performance of works specified in the employment contract;
b) Reporting and proposing solutions for the issue that arise during performance of the works specified in the employment contract;
c) Reporting the management and use of capital, assets, employees and other resources;
dd) Entitlement to: salary and bonus; specific working time and rest periods; means of work, travel and accommodation; social insurance, health insurance and unemployment insurance; training; other benefits agreed upon by both parties;
dd) Other rights and obligations agreed upon by both parties.
9. Conditions and procedures for revising and unilateral termination of the employment contract.
10. Rights and obligations of the employer and the employee upon termination of the employment contract.
11. Labor discipline, material responsibility, settlement of labor disputes and complaints.
12. Other contents agreed upon by both parties.
Article 6. Contents of the employment contract with an employee hired as Director of an enterprise not more than 50% charter capital or voting shares of which is held by the State
The contents of the employment contract with an employee hired as Director of an enterprise not more than 50% charter capital or voting shares of which is held by the State shall comply with Clause 1 Article 21 of the Labor Code.
Section 2. TERMINATION OF EMPLOYMENT CONTRACTS
Article 7. Prior notice period upon unilateral termination of employment contracts in special works and lines of business
Special works and lines of business and prior notice period upon unilateral termination of employment contracts prescribed in Point d Clause 1 Article 35 and Point d Clause 2 Article 36 of the Labor Code are elaborated as follows:
1. Special works and lines of business include:
a) Aircrew members; aircraft maintenance technicians, aviation repairmen; flight coordinators;
b) Enterprise managers defined by the Law on Enterprises; the Law on Management and use of State Investment in Enterprises;
c) Crewmembers working on Vietnamese vessels operating overseas; crewmembers dispatched to foreign vessels by Vietnamese dispatching agencies;
d) Other cases prescribed by law.
2. When an employee mentioned in Clause 1 of this Article or his/her employer unilaterally terminates the employment contract, a prior notice shall be provided:
a) At least 120 days before the termination date if the employment contract has an indefinite term or a term of at least 12 months;
b) At least one fourth (1/4) of the employment contract duration if the duration is less than 12 months.
Article 8. Severance allowance, redundancy allowance
1. The employer shall pay severance allowance in accordance with Article 46 of the Labor Code to the employee who has work on a regular basis for at least 12 months when his/her employment contract is terminated in accordance with Clauses 1, 2, 3, 4, 6, 7, 9 and 10 Article 34 of the Labor Code, except in the following cases:
a) The employee is eligible for retirement pension as prescribed in Article 169 of the Labor Code and social insurance laws.
b) The employee leaves his/her job for at least 05 consecutive days without justified reasons according to Point e Clause 1 Article 36 of the Labor Code. Justified reasons are prescribed in Clause 4 Article 125 of the Labor Code.
2. The employer shall pay redundancy allowance in accordance with Article 47 of the Labor Code to the employee who has work on a regular basis for at least 12 months when he/she loses his/her job in the cases specified in Clause 11 Article 34 of the Labor Code.
If the employees has work for the employer on a regular basis for at least 12 months but the employment period as the basis for calculation of redundancy allowance mentioned in Clause 3 of this Article is shorter than 24 months, the employer shall pay a redundancy allowance of at least 02 months’ salary.
3. The employment period as the basis for calculation of severance allowance or redundancy allowance is the total period over which the employee has worked for the employer in reality (hereinafter referred to as “actual work period”) minus (-) the period over which the employee participates in unemployment insurance and the period over which the employer pays severance allowance or redundancy allowance. Where:
a) The actual work period includes: actual work period; probation period; employer-provided training period; sick leave and maternal leave according to social insurance laws; paid recovery period after an occupational accident or disease according to occupational hygiene and safety laws; paid leave period for fulfillment of citizen’s duties; work suspension period through no fault of the employee; weekly breaks prescribed in Article 111, paid leave prescribed in Article 112, Article 113, Article 114, Clause 1 Article 115; period over which the employee has to perform duties of the employee representative organization prescribed in Clause 2 and Clause 3 Article 176; and work suspension period prescribed in Article 128 of the Labor Code.
b) The period over which the employee participates in unemployment insurance includes: the period over which the employee participates in unemployment insurance and the period over which participation in unemployment insurance is not mandatory but the employer has paid in addition to salary an extra amount equal to the unemployment insurance premium according to labor and unemployment insurance laws.
c) The work period as the basis for calculation of severance allowance or redundancy allowance shall be expressed as years (full 12 months); If the number of months of an incomplete year is 06 months or less, it will be considered ½ year; if the number of months of an incomplete year is more than 06 months, it will be considered 01 year.
4. Determination of the actual work period mentioned in Point a Clause 3 of this Article in some special cases:
a) When a wholly state-owned enterprise or an equitized state-owned enterprise (employer) terminates the employment contract with an employee who had worked in the public sector before January 01, 1995 and started to work for such employer and has not received the lump-sum severance allowance or redundancy allowance, the actual work period shall include the period over which the employee worked in the public sector and the period over which the employee has worked for the employer
The time over which the employee worked in the public sector before January 01, 1995 includes the periods over which he/she worked in state agencies, public service providers, political organizations, socio-political organizations, armed force units while getting paid by state budget, and state-owned enterprises.
b) In case an employee works for an employer under consecutive employment contracts as prescribed in Clause 2 Article 20 of the Labor Code but has not received severance allowance or redundancy allowance when each of the employment contracts is terminated, the actual work period shall be the total work period under the employment contracts minus (-) the work period under any employment contract that is invalidated due to violations of law, involvement of works banned by law or disciplinary dismissal of the employee; employment contract illegally terminated by the employee (if any).
c) In case the employee keeps working for at enterprise or cooperative under the labor utilization plan prescribed in Clause 1 Article 44 of the Labor Code after division, consolidation or acquisition; sale, lease, conversion; transfer of rights to ownership or enjoyment of assets, the employer shall determine the actual work period as the basis for payment of severance allowance and redundancy allowance as follows:
c1) In case the employment contract is terminated as prescribed in Clauses 1, 2, 3, 4, 6, 7, 9 and 10 Article 34 of the Labor Code, the actual work period as the basis for calculation of severance allowance shall be the total work period under the employment contracts with the employer before and after the division, consolidation or acquisition; sale, lease, conversion; transfer of rights to ownership or enjoyment of assets.
C2) In case the employment contract is terminated as prescribed in Clause 11 Article 34 of the Labor Code, the actual work period as the basis for calculation of redundancy allowance shall be the total work period under the employment contracts with the employer after the division, consolidation or acquisition; sale, lease, conversion; transfer of rights to ownership or enjoyment of assets; the actual work period as the basis for calculation of severance allowance shall be the total work period under the employment contracts with the employer before the division, consolidation or acquisition; sale, lease, conversion; transfer of rights to ownership or enjoyment of assets.
c3) The employer shall pay severance allowance for the period from the day on which the employee was employed to work in the public sector for the last time to January 01, 1995 before the division, consolidation or acquisition; sale, lease, conversion; transfer of rights to ownership or enjoyment of assets mentioned in Point a of this Clause.
5. Salary as the basis for calculation of severance allowance and redundancy allowance:
a) The salary as the basis for calculation of severance allowance and redundancy allowance is the average salary of the last 06 months before the employee resigns or loses the job.
b) In case the employee works for the employer under consecutive employment contracts as prescribed in Clause 2 Article 20 of the Labor Code, the salary as the basis for calculation of severance allowance and redundancy allowance is the average salary of the last 06 months before the last employment contract is terminated. In case the last employment contract is invalidated due to lower salary than the region-based minimum wage announced by the Government or lower than the salary specified in the collective bargaining agreement, the salary as the basis for calculation of severance allowance and redundancy allowance shall be negotiated by both parties but must not be lower than the region-based minimum wage or the salary specified in the collective bargaining agreement.
6. Expenditures on payment of severance allowance and redundancy allowance shall be recorded as production and business costs or operating costs of the employer.
Section 3. SETTLEMENT UPON INVALIDATION OF EMPLOYMENT CONTRACTS
Article 9. Settlement of partially invalidated employment contracts
A partially invalidated employment contract prescribed in Clause 1 Article 51 of the Labor Code shall be settled as follows:
1. When part of the employment contract is invalidated, the employer and the employee shall revise the invalidated content to ensure its conformity with the collective bargaining agreement and the law.
2. Rights, obligations and interests of both parties during the period from first day on which the employee works under the partially invalidated employment contract to the day on which the contract is revised shall be settled in accordance with the effective collective bargaining agreement or, if such a collective bargaining agreement is not available, in accordance with law.
In case the salary under the invalidated employment contract is lower than the minimum salary prescribed by labor laws or the effective collective bargaining agreement, both parties shall negotiate the salary to ensure conformity with regulations. The employer shall pay the difference between the initial salary and the re-negotiated salary for the actual work period under the invalidated employment contract.
3. In case both parties cannot reach a consensus on revision of the invalidated content:
a) The employment contract will be terminated;
b) Rights, obligations and interests of both parties during the period from first day on which the employee works under the partially invalidated employment contract to the day on which the contract is terminated shall be settled in accordance with Clause 2 of this Article;
c) Severance allowance shall be provided in accordance with Article 8 of this Decree.
d) The work period under the invalidated employment contract shall be included in the actual work period as the basis for provision of benefits as prescribed by law.
4. Other issues relevant to partially invalidated employment contracts shall be settled by court in accordance with the Civil Procedure Code.
Article 10. Settlement of fully invalidated employment contracts that are concluded ultra vires or against regulations on employment contract conclusion
1. When an employment contract is fully invalidated, the employer and the employee shall re-conclude the employment contract in accordance with regulations of law.
2. Rights, obligations and interests of both parties during the period from first day on which the employee works under the fully invalidated employment contract to the day on which the contract is re-concluded shall be settled as follows:
a) If the rights and interests of the parties to the invalidated employment contract are not less beneficial than those prescribed by law or effective collective bargaining agreement, the former shall apply.
b) If the content about rights, obligations and interests of each party of the employment contract is not conformable with law does not affect other parts of the contracts, regulations of Clause 2 Article 9 of this Decree shall apply;
c) The work period under the invalidated employment contract shall be included in the actual work period as the basis for provision of benefits as prescribed by law.
3. In case the fully invalidated employment contract is not re-concluded:
a) The employment contract will be terminated;
b) Rights, obligations and interests of the employee during the period from first day on which the employee works under the invalidated employment contract to the day on which the contract is terminated shall be settled in accordance with Clause 2 of this Article;
c) Severance allowance shall be provided in accordance with Article 8 of this Decree.
4. Other issues relevant to employment contracts that are fully invalidated because they are concluded ultra vires or against regulations on employment contract conclusion shall be settled by court in accordance with the Civil Procedure Code.
Article 11. Settlement of employment contracts that are fully invalidated because of unlawful contents or involvement of works banned by law
1. When an employment contract is fully invalidated, the employer and the employee shall conclude a new employment contract in accordance with law.
2. Rights, obligations and interests of the employee during the period from first day on which the employee works under the invalidated employment contract to the day on which the new contract is concluded shall be settled in accordance with Clause 2 Article 10 of this Decree.
3. In case a new employment contract is not concluded:
a) The employment contract will be terminated;
b) Rights, obligations and interests of the employee during the period from first day on which the employee works under the invalidated employment contract to the day on which the contract is terminated shall be settled in accordance with Clause 2 of this Article;
c) The employer shall pay the employee an amount of money that is equal to at least a monthly region-based minimum wage for each year of work. The period of work under the invalidated employment contract as the basis for calculation of this amount shall be determined in accordance with Point a Clause 3 Article 8 of this Decree;
d) Provide severance allowance for employment contracts concluded before the invalidated employment contract in accordance with Article 8 of this Decree, if any.
4. Other issues relevant to settlement of employment contracts that are fully invalidated because of unlawful contents or involvement of works banned by law shall be handled by the court in accordance with the Civil Procedure Code.
Tìm kiếm
Nghị định 145/2020/NĐ-CP (Bản Pdf)
Nghị định 145/2020/NĐ-CP (Bản Word)