Chapter II
LABOR CONTRACTS
Article 3. Authorization to conclude labor contracts
1. When a person prescribed in Points a, b and c Clause 1 Article 3 of the Decree No. 05/2015/ND-CP does not directly conclude a labor contract, he/she shall authorize another person in writing to conclude the labor contract using the form No. 1 in the Appendix issued herewith.
2. When a group of employees authorizes an employee to conclude their labor contracts prescribed in Point d Clause 2 Article 3 of the Decree No. 05/2015/ND-CP, they must make a written authorization. A written authorization to conclude labor contract(s) must contain:
a) Full name, date of birth, gender, permanent residence, occupation, signature of the authorized employee;
b) Full name, date of birth, gender, permanent residence, occupation, signature of each employee in the authorizing group;
c) Content of authorization, term of authorization.
Article 4. Salaries and other benefits in labor contracts
Salary, allowances and other extra payments determined in the labor contract prescribed in Point a Clause 5 Article 4 of the Decree No. 05/2015/ND-CP include:
1. The time-based salary or position-based salary shall be the salary rate in salary scale and salary table defined by the employer under law on labor. Employees paid product-based salary or piecework salary, the time-based salary rates shall be used to determine the product unit price or the piecework salary.
2. Allowances, specifying contractual allowances, in particular:
a) The allowances that are amounts offset against the working conditions, the complexity of jobs, the living conditions, and the employee attraction level which is not included or incompletely included in the contractual salary.
b) The allowances concerning the working progress and output of the employee.
3. Other extra payments, specifying other contractual extra payments, in particular:
a) Measured extra payments and the contractual salary mentioned in the labor contract that are be paid regularly in each period of salary payment.
b) Unmeasured extra payments and the contractual salary mentioned in the labor contract that are paid regularly or irregularly in each period of salary payment concerning the working progress and output of the employee.
The following benefits shall be specified in a separate item in the labor contract prescribed in Clause 11 Article 4 of the Decree No. 05/2015/ND-CP: bonuses prescribed in Article 103 of the Labor Code, initiative bonuses; food expenses between shifts; subsidies on petrol, telephone, transportation, housing, child care, raising children; allowances for employees having dead relative(s), employees having relatives married relatives, employees’ birthday, benefits for employees facing difficulties due to their labor accidents and occupational diseases and other allowances and benefits.
Article 5. Labor contracts concluded with elderly employees
1. Elderly employee is a person who continues to work after the age defined in Article 187 of this Code.
2. The elderly employee and the employer shall agree to amend the labor contract in accordance with legislation on labor applicable to elderly employees.
3. The labor contract concluded with the elderly employee must conform to regulations in Clauses 2 and 3 of Article 166 and Clauses 2, 3 and 4 Article 167 of the Labor Code.
Article 6. Agreement on temporary suspension of labor contracts when employees are appointed or assigned as representative of the State contributed capital
When an employee is appointed or assigned as representative of the State contributed capital, his/her labor contract shall be suspended temporarily as follows:
1. The temporary suspension of the labor contract shall be made in an agreement which at least contains:
a) Name and address of the employer and its legal representative;
b) Full name, date of birth, gender, residence, ID number or passport number of the employee;
c) Details of the suspended labor contract: number; date of conclusion;
d) Period of suspension: the start time and the end time of the suspension period;
dd) Reasons for the suspension;
e) Rights and obligations of the parties in and after the period of suspension.
2. If the employee is still appointed or assigned as representative of the State contributed capital, upon expiry of period of suspension, the employee shall request the employer to give another suspension of the labor contract. The second written suspension of the labor contract shall have the same contents with the first written suspension of the labor contract.
Article 7. Notification of changes of structure, technology and economic reasons sent to labor authorities
1. If an employer dismisses 2 employees or more as prescribed in Clause 3 Article 13 of the Decree No. 05/2015/ND-CP, it must notify them in writing within 30 days before a notification of dismissal is sent to a labor authority.
2. The notification of dismissal prescribed in Clause 1 of this Article must contain the following information:
a) Name and address of the employer and its legal representative;
b) Number of employees; number of laidoff employees;
c) Reasons for layoffs; time of layoffs;
d) Expected budget for redundancy pay.
3. The labor authority of province shall receive, monitor, and inspect the layoffs imposed on multiple employees.
Article 8. Severance pay and redundancy pay
1. The salary as the basis for determination of severance pay or redundancy pay is the average salary specified in the labor contract prescribed in Clause 1 Point a Clause 2 and Point a Clause 3 Article 4 of this Circular of the 6 continuous months before the employee is laid off or
2. With respect to each employee concluding multiple continuous labor contracts prescribed in Clause 2 Article 22 of the Labor Code, his/her total working time under such labor contracts shall be considered to determine the severance pay or redundancy pay, upon the termination time of the last labor contract. If the last labor contract is terminated because the employee unilaterally and unlawfully terminates labor contract or the employee is be disciplined in the form of dismissal, the working time of the last labor contract shall not be included in the total working time as the basis for determination of severance pay. The salary as the basis for determination of severance pay or redundancy pay is the average salary determined as prescribed in Clause 1 of this Article before the termination time of the last labor contract.
Example 1: Ms. A works for Company B under 3 continuous labor contracts; the first labor contract is a 12-month contract which is executed from January 1, 2014 to December 31, 2004 (1 year); the second labor contract is a 36-month contract which is executed from January 1, 2005 to December 31, 2007 (3 years); the third labor contract is an indefinite-term contract which is executed from January 1, 2008 to December 31, 2015 (8 years), then Ms. A terminates the third labor contract unilaterally and unlawfully. Ms. A's employer pays unemployment insurance for her continuously from January 1, 2009 to December 31, 2015 (7 years). The average monthly salary determined as prescribed in Clause 1 of this Article before her termination time of the third labor contract is VND 4.5 million.
Because Ms. A terminates the third labor contract unilaterally and unlawfully, her working time under the third labor contract (8 years) shall not be included in the working time as the basis for determination of severance pay. Ms. A’s severance pay shall be calculated as follows:
- Her working time in the first and the second labor contract as the basis for severance pay is: 1 + 3 = 4 years (from January 1, 2004 to December 31, 2007);
- Severance pay paid to Ms. A by Company B is: 4 (years) x VND 4.5 million x ½ = VND 9 million.
3. If wholly state-owned enterprises or enterprises equitized from the state-owned enterprises terminate the labor contract that the employees have the time to work in agencies, organizations, units and business in the state sector and transfer to another work at the enterprise before January 01, 1995 but have not received a severance pay or redundancy pay, the employer shall pay the severance allowance or redundancy pay for the time when the employee has worked for him/ her and pay severance allowance for the time when the employee has worked for previous agencies, organizations, units and enterprises in the state sector as prescribed in Clause 3 Article 38 of the Decree No. 05/2015/ND-CP.
The working time at agencies, organizations, units and enterprises in the state sector before January 1, 1995 includes: actual working time in State administrative agencies, public service providers, political organizations, socio-political organizations, the armed forces whose salaries/wages funded by government budget and other state-owned enterprises.
4. If an employee has worked for 12 months or longer, then he/she is laid off, but his/her working time as the basis for determination of redundancy pay is under 18 months, his/her redundancy pay is at least 2-month salary.
Example 2: Mr. C worked for Company D from September 1, 2007 to December 31. Then, due to changes of company's production technology, the company has no more work available for him. Accordingly, Company D terminates his labor contract. Mr. C's employer pays unemployment insurance for him continuously from January 1, 2009 to December 31, 2015 (7 years). His average monthly salary prescribed in Clause 1 of this Article before he loses his job is VND 4.5 million. Mr. C’s redundancy pay shall be calculated as follows:
- The working time as the basis for determination of redundancy pay is: 8 years 4 months – 7 years = 1 year 4 months (16 months).
- His redundancy pay paid by Company D is at least 2-month salary: (VND 4.5 million x 2 = VND 9 million).
5. When an enterprise or a cooperative is acquired, consolidated or divided, if an employee terminates his/her labor contract concluded with the transferor enterprise/cooperative, the transferee enterprise/cooperative must pay severance pay or redundancy pay to the employee for his/her working time in both enterprise/cooperative.
Example 3: Mr. Nguyen Thanh H worked for Company P from June 1, 2002. In 2006, Company P and Company Q are consolidated into Company PQ which operates officially from October 1, 2006; Mr. H keeps working at Company PQ until December 31, 2015 before he is laid off due to the changes of organizational structure of the Company PQ. Mr. H's employer pays unemployment insurance for him continuously from January 1, 2009 to December 31, 2015 (7 years). His average monthly salary prescribed in Clause 1 of this Article before he loses his job is VND 5.4 million per month. Mr. H’s redundancy pay shall be calculated as follows:
- His actual working time at Company P is 4 years 4 months; his actual working time at Company PQ is 9 years 3 months. Total actual working time is 13 years 7 months;
- The working time as the basis for determination of redundancy pay is: 13 years 7 months – 7 years = 6 year 7 months, which rounds up to 7 years;
- Severance pay paid to Mr. H by Company PQ is: 7 (years) x VND 5.4 million per month = VND 37.8 million.
Article 9. Responsibilities of transferee employees upon the transfer of ownership or rights to use of enterprise’s assets
1. Each employee kept being employed, employee kept being employed after retraining, and employee working under a part-time job at the transferee enterprise shall have his/her labor contract amended or have a new labor contract concluded.
2. The severance pay prescribed in Article 48 or redundancy pay prescribed in Article 49 of the Labor Code shall be paid for the total actual working time
Example 4: Mr. Dao Xuan K worked for the People’s Committee of district T (State administrative agencies) from September 1, 1990 to November 1, 1993. Then, he moves to Company S (state-owned enterprise). On September 1, 2007, Company S is equitizated into Joint-stock company S’, Mr. K keep working at Joint-stock company S’ until December 1, 2015 before he terminate his labor contract lawfully. Mr. K’s employer pays unemployment insurance for him continuously from January 1, 2009 to December 1, 2015. His average monthly salary prescribed in Clause 1 of this Article before he is laid off at Joint-stock company S’ is VND 5.5 million per month. Ms. K’s severance pay shall be calculated as follows:
- His actual working time in the State sector before January 1, 1995 is 3 years 2 months;
- His actual working time at Company S (before equitization) is 13 years 10 months;
- His actual working time at Joint stock company S’ is 08 years 03 months;
- His participation time of unemployment insurance is 6 years 11 months;
- His working time as the basis for severance pay is: 3 years 2 months + 13 years 10 months + 8 years 3 months - 6 years 11 months = 18 years 4 months, which rounds up to 18.5 years;
Severance pay paid to Mr. K by Joint stock S’ is: 18.5 (years) x VND 5.5 million x ½ = VND 50,875 million.
Tìm kiếm
Thông tư 47/2015/TT-BLĐTBXH (Bản Word)
Thông tư 47/2015/TT-BLĐTBXH (Bản Pdf)
