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OBLIGATIONS OF THE EMPLOYER WHEN UNILATERAL TERMINATING THE LABOR CONTRACT

1. The obligations of an employer when unilaterally terminating a labor contract illegally include:

– The employee must be admitted back to work under the signed labor contract; must pay wages, pay social insurance, health insurance, unemployment insurance during the days when the employee is not allowed to work and must pay the employee an additional amount equal to at least 02 months’ salary according to the labor contract.

After being readmitted to work, the employee shall refund to the employer the severance allowance, job loss allowance if received from the employer.

In case there is no longer a position or job entered into in the labor contract but the employee still wants to work, the two parties shall agree to amend and supplement the labor contract.

In case of violation of the provisions on the notice period specified in Clause 2, Article 36, Labor Code 2019, an amount corresponding to the salary under the labor contract must be paid for the days without prior notice.

– In case the employee does not want to continue working, in addition to the payment specified in Clause 1, Article 41, Labor Code 2019, the employer must pay a severance allowance as prescribed in Article 46, Labor Code 2019 to terminate the labor contract.

– In case the employer does not want to take back the employee and the employee agrees, in addition to the amount the employer must pay as prescribed in Clause 1, Article 41, Labor Code 2019 and severance allowance as prescribed in Article 46, Labor Code 2019,  The two parties agree on an additional compensation for the employee but at least equal to 02 months’ salary according to the labor contract to terminate the labor contract. (Article 41, Labor Code 2019)

2. Responsibilities when terminating a labor contract in accordance with law

– Within 14 working days from the date of termination of the labor contract, the two parties are responsible for paying in full the amounts related to the interests of each party, except for the following cases which may be extended but must not exceed 30 days:

+ The employer who is not an individual terminates the operation;

+ The employer changes the structure, technology or for economic reasons;

+ Division, separation, consolidation, merger; selling, leasing, converting the type of business; transfer of ownership and right to use assets of enterprises or cooperatives;

+ Due to natural disasters, fires, enemy disasters or dangerous epidemics.

– Salaries, social insurance, health insurance, unemployment insurance, severance allowance and other benefits of employees under collective labor agreements and labor contracts shall be prioritized for payment in case the enterprise or cooperative is terminated from operation,  dissolved, bankrupt.

– The employer has the following responsibilities:

+ Complete the procedures for confirming the time of payment of social insurance and unemployment insurance premiums and return them together with the originals of other documents if the employer has kept them from the employee;

+ Provide copies of documents related to the employee’s working process if requested by the employee. The cost of copying, sending documents is paid by the employer. (Article 48, Labor Code 2019)

To save time on researching procedures, filling out forms, notarizing, and waiting to submit documents, you can contact HT for consultation and assistance for Labor Code

Contact us at:

Email: hue.truong@htlaw.vn

Phone: +84 935 439 454.

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THE EMPLOYER UNILATERALLY TERMINATES THE LABOR CONTRACT 

1. The Employer's right to unilaterally terminate the Labor Contract

1.1. The Employer unilaterally terminates the Labor Contract without prior notice

According to Clause 1, Article 36 of the Labor Code 2019, the Employer has the right to unilaterally terminate the Labor Contract without prior notice to the Employee, including the following cases:

  • Employees often fail to complete the work according to the evaluation criteria in the enterprise’s regulations. Regulations on work evaluation shall be provided by the enterprise in consultation with the representative organization of the employee.
  • The employee who is sick or has an accident has been treated for 12 consecutive months for those working under an indefinite-term labor contract or has been treated for 06 consecutive months for those working under a definite-term labor contract with a term of 12 months – 36 months or more than half of the term of the labor contract for those working under a definite-term labor contract with a term of less than 12 months but the ability to work has not recovered.
  • When the employee’s health recovers, the employer shall consider to continue entering into the labor contract with the employee.
  • Due to natural disasters, fires, dangerous epidemics, enemy disasters or relocation or narrowing of production and business at the request of competent state agencies.
  • The employee is not present at the workplace after the period of suspension of the labor contract.
  • The employee reaches the retirement age as prescribed by law, unless otherwise agreed.
  • The employee voluntarily quits without a valid reason for 05 consecutive working days or more.
  • The employee dishonestly provides information as prescribed in Clause 2, Article 16 of the Labor Code 2019 when entering into the labor contract, affecting the recruitment of the employee.

1.2. The employer unilaterally terminates the labor contract with prior notice

Unless the employee is not present at the workplace for 5 days or more or after the period of suspension of the labor contract, the remaining cases in which the enterprise unilaterally terminates the labor contract must notify the employee in advance as follows:

– At least 45 days for indefinite-term labor contracts.

– At least 30 days for labor contracts from 12 months – 36 months.

– At least 03 days for labor contracts of less than 12 months and for cases specified at Point b, Clause 1, Article 36 of the Labor Code 2019.

– For some specific industries, trades and jobs, the notice period shall comply with the Government’s regulations.

2. In case the Employer is not allowed to terminate the Labor Contract

Pursuant to Article 37 of the Labor Code 2019, in case the Employer is not allowed to exercise the right to unilaterally terminate the Labor Contract, including:

  • The employee is sick or has an accident or occupational disease and is being treated or nursed as prescribed by a competent medical examination and treatment establishment, except for the case specified at Point b, Clause 1, Article 36 of the Labor Code 2019.
  • The employee is on annual leave, personal leave and other leave agreed by the Employer.
  • Pregnant female employees; The employee is on maternity leave or raising a child under 12 months old.

 Thus, in case the parties in industrial relations want to unilaterally terminate the labor contract, they must consider each case in which they fall into whether it falls under the case of unilateral termination of the labor contract with prior notice or not.

To save time on researching procedures, filling out forms, notarizing, and waiting to submit documents, you can contact HT for consultation and assistance for Labor Code

Contact us at:

Email: hue.truong@htlaw.vn

Phone: +84 935 439 454.

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OBLIGATIONS OF EMPLOYEES WHEN UNILATERALLY TERMINATING LABOR CONTRACTS 

1. Does an employee who unilaterally terminates a labor contract illegally have to compensate the employer?​

Pursuant to Article 40 of the Labor Code 2019 stipulates the obligations of employees when unilaterally terminating labor contracts illegally as follows:

1.1. OBLIGATIONS OF EMPLOYEES WHEN UNILATERALLY TERMINATING LABOR CONTRACTS ILLEGALLY

  1. No severance pay.
  2. To compensate the employer for half a month’s salary according to the labor contract and an amount corresponding to the salary under the labor contract for days without prior notice.
  3. To reimburse the employer for training expenses specified in Article 62 of this Code.

Thus, your case has unilaterally terminated the contract illegally, so you have the following obligations:

– You will not be entitled to severance pay,

– You must compensate the company for half a month’s salary according to the employment contract;

– You must compensate an amount corresponding to your salary for 10 days without notice,

– You must reimburse training costs to the company in accordance with Article 62 of the Labor Code (if any).

Accordingly, training costs as prescribed in Article 62 of the Labor Code 2019 include:

1.2. Vocational training contract between employer and employee and vocational training costs

…

  1. Training expenses include expenses with valid documents on expenses paid to teachers, learning materials, schools, classes, machines, equipment, practice materials, other expenses to support learners and salaries, social insurance premiums, health insurance, etc unemployment insurance for learners during school. In case the employee is sent for training abroad, the training cost also includes travel and living expenses during the training period.

2. Responsibilities when terminating a labor contract in accordance with law

– Within 14 working days from the date of termination of the labor contract, the two parties are responsible for paying in full the amounts related to the interests of each party, except for the following cases which may be extended but must not exceed 30 days:

+ The employer who is not an individual terminates the operation;

+ The employer changes the structure, technology or for economic reasons;

+ Division, separation, consolidation, merger; selling, leasing, converting the type of business; transfer of ownership and right to use assets of enterprises or cooperatives;

+ Due to natural disasters, fires, enemy disasters or dangerous epidemics.

– Salaries, social insurance, health insurance, unemployment insurance, severance allowance and other benefits of employees under collective labor agreements and labor contracts shall be prioritized for payment in case the enterprise or cooperative is terminated from operation,  dissolved, bankrupt.

– The employer has the following responsibilities:

+ Complete the procedures for confirming the time of payment of social insurance and unemployment insurance premiums and return them together with the originals of other documents if the employer has kept them from the employee;

+ Provide copies of documents related to the employee’s working process if requested by the employee. The cost of copying, sending documents is paid by the employer. (Article 48, Labor Code 2019)

To save time on researching procedures, filling out forms, notarizing, and waiting to submit documents, you can contact HT for consultation and assistance for Labor Code

Contact us at:

Email: hue.truong@htlaw.vn

Phone: +84 935 439 454.

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THE EMPLOYEE UNILATERALLY TERMINATES THE LABOR CONTRACT

1. The employee's right to unilaterally terminate the labor contract

In the labor process, if the Employer violates the agreed regulations, the Employee has the right to unilaterally terminate the labor contract. However, in some cases where the parties unilaterally terminate the labor contract without falling under the violating regulations, it is still subject to the provisions of prior notice.

1.1. The employee unilaterally terminates the labor contract without prior notice

  • When falling into one of the following cases, the employee does not need to notify in advance according to Clause 2, Article 35 of the Labor Code 2019, including:
  • In case the employee is not arranged according to the right job, working location or is not guaranteed the agreed working conditions, unless the employee is transferred to another job.
  • A particularly sensitive issue in the labor process is not being paid in full or not paying wages on time.
  • The employee is mistreated, beaten or has insulting words or acts, acts that affect health, dignity and honor; subjected to forced labor.
  • In addition, in case the employee is sexually harassed at the workplace, the employee has the right to terminate the labor contract immediately and report it to the investigating agency for handling.
  • Pregnant female employees who have to quit their jobs may unilaterally terminate the labor contract.
  • Employees who reach the retirement age as prescribed by law are automatically entitled to quit their jobs, unless the parties have an agreement to hire elderly employees.
  • The Employer provides untruthful information that affects the implementation of the Labor Contract.

1.2. The employee unilaterally terminates the labor contract with prior notice

Cases where the employee does not fall into the natural cases of termination of the labor contract without prior notice. If you want to unilaterally, it is necessary to notify the Employer in advance according to Clause 1, Article 35 of the Labor Code 2019 as follows:

– At least 45 days for indefinite-term labor contracts.

– At least 30 days for labor contracts from 12 months to 36 months.

– At least 03 days for labor contracts under 12 months.

– For some specific industries, trades and jobs, the notice period shall comply with the Government’s regulations.

To save time on researching procedures, filling out forms, notarizing, and waiting to submit documents, you can contact HT for consultation and assistance for Labor Code

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Email: hue.truong@htlaw.vn

Phone: +84 935 439 454.

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What does the application for personal income tax refund include?

1. What does the application for personal income tax refund include?

Pursuant to Article 42 of Circular No. 80/2021/TT-BTC dated September 29, 2021 of the Ministry of Finance guiding the implementation of a number of articles of the Law on Tax Administration and Decree No. 126/2020/ND-CP dated October 19, 10 of the Government detailing a number of articles of the Law on Tax Administration,  There are regulations on tax refund records. Accordingly, the personal income tax refund dossier includes:

– A written request for handling the amount of tax, late payment and overpayment penalty according to Form No. 01/DNXLNT issued together with Appendix I of Circular No. 80/2021/TT-BTC dated September 29, 2021 of the Ministry of Finance guiding the implementation of a number of articles of the Law on Tax Administration and Decree No. 126/2020/ND-CP dated October 19, 10 of the Government detailing a number of articles of the Law on Tax Administration;

– A written authorization as prescribed by law in case the taxpayer does not directly carry out tax refund procedures, except for cases where the tax agent submits a tax refund dossier according to the contract signed between the tax agent and the collector;

– List of tax payment documents according to form No. 02-1/HT issued together with Appendix I of Circular No. 80/2021/TT-BTC dated September 29, 2021 of the Ministry of Finance guiding the implementation of a number of articles of the Law on Tax Administration and Decree No. 126/2020/ND-CP dated October 19, 10 of the Government detailing a number of articles of the Law on Tax Administration (applicable for organizations and individuals paying income);

– Personal income tax withholding documents (are tax withholding documents that enterprises issue to entities);

– Identity card or identity document of the person applying for personal income tax refund;

– A copy of the labor contract (if tax finalization at the tax office managing the enterprise deducts the family situation);

– Or household registration book or temporary residence book (if tax finalization at the tax office where the individual resides).

 

2. How to calculate the amount of personal income tax overpaid to be refunded:

In fact, if we have paid personal income tax and want to know whether we pay personal income tax at a competent state agency with excess or shortage, we are required to do settlement activities in accordance with the law. Individuals can settle according to many different formulas, can settle directly with tax authorities or conduct activities to authorize income payment agencies if qualified as prescribed by law. Apply the formula:

Overpaid personal income tax amount = Personal income tax paid – Personal income tax payable according to tax finalization

If this formula result is positive, it is an overpayment amount, whereas negative is an underpayment of taxes.

Where:

– Personal income tax paid: The amount of tax paid is determined on the state budget payment paper (for enterprises or individuals paid to the state budget according to the taxpayer’s tax code) or personal income tax withholding documents (for individuals);

– The amount of personal income tax payable according to tax finalization: If you want to determine, you must make tax finalization. And the formula for calculating the annual personal income tax finalization is as follows: Personal income tax payable for the whole year = (Average monthly taxable income x partial progressive tax rate schedule) x 12 months. Where:

+  Average monthly taxable income is determined by the formula: Average monthly taxable income = (Total taxable income – sum of deductions) / 12 months;

+ Taxable income is the total income from wages and wages that the individual actually receives from January 1 to December 31 of the settlement year. There is the following formula: Taxable income for the whole year = Total income received during the year – amounts determined to be tax-free during the year;

+ Deductions include: Family deduction (self + dependents) + Compulsory insurance + Charitable, educational and humanitarian contributions.

What does the application for personal income tax refund include? - HTlaw

To save time on researching procedures, filling out forms, notarizing, and waiting to submit documents, you can contact HT for consultation and assistance for Personal income tax refund

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Email: hue.truong@htlaw.vn

Phone: +84 935 439 454.

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CAN VIETNAMESE TRADERS BE AGENTS IN BUYING AND SELLING GOODS FOR FOREIGN TRADERS?

I. Law provisions on commercial agents

About the concept

According to the provisions of Article 166 of the 2005 Commercial Law, a commercial agent is:

“Commercial agency is a commercial activity whereby the principal and the agent agree that the agent on their own behalf buy and sell goods for the principal or provide services to the principal. for customers to receive remuneration”.

From the above regulations, commercial agency is a commercial activity in which the agent will, on behalf of the principal, purchase and sell goods or provide services and receive remuneration.

About form

According to the provisions of Article 169 of the 2005 Commercial Law, commercial agents have the following forms of agency:

  1.  An off-take agent is a form of agency in which the agent buys and sells a complete volume of goods or provides a complete service to the principal.
  2. Exclusive agency is a form of agency in which in a certain geographical area the principal only assigns one agent to buy or sell one or a number of goods or provide one or a certain type of service. determined.
  3. General agent for buying and selling goods and providing services is a form of agency in which the agent organizes a system of affiliated agents to carry out the purchase and sale of goods and provision of services for the principal. .

The general agent represents the affiliated agent system. Affiliated agents operate under the management of the general agent and on behalf of the general agent.

  1. Other forms of agency as agreed upon by the parties.

Currently, according to regulations, there will be various forms of agents such as: offtake agents, exclusive agents, and agents for buying and selling goods and providing services. In addition, there are other forms of agency agreed upon by the parties.

II. Can Vietnamese traders act as agents to buy and sell goods for foreign traders?

According to Clause 1, Article 50, Decree 69/2018/ND-CP regulates traders acting as agents to buy and sell goods for foreign traders as follows:

“Traders are allowed to act as agents to buy and sell goods for foreign traders, except for goods on the List of goods banned from export or temporarily suspended from export, and goods on the List of goods banned from import and temporarily suspended from import. . For goods exported and imported under License, traders may only sign agency contracts after being granted a License by the ministry or ministerial-level agency with management authority.

According to the above regulations, Vietnamese traders have the right to act as agents to buy and sell goods for foreign traders.

However, these types of goods must not be on the List of goods banned from export or temporarily suspended from export or on the List of goods banned from import or temporarily suspended from import.

CAN VIETNAMESE TRADERS BE AGENTS IN BUYING AND SELLING GOODS FOR FOREIGN TRADERS? - htlaw

III. Procedures for import, export and return of goods under agency contracts for foreign traders

According to the provisions of Article 52 of Decree 69/2018/ND-CP, procedures for exporting and importing goods under agency contracts are as follows:

“Goods under agency contracts to buy and sell goods with foreign traders must be followed when exported or imported in accordance with the same regulations as for exported and imported goods specified in this Decree.” .

Accordingly, goods under goods purchase and sale agency contracts with foreign traders will go through import and export procedures according to the provisions of Article 4 of Decree 69/2018/ND-CP.

For returning goods specified in Article 53 of Decree 69/2018/ND-CP as follows:

“Goods under sales agency contracts in Vietnam for foreign traders may be re-exported if they cannot be consumed in Vietnam. Tax refund is carried out according to regulations of the Ministry of Finance.

Vietnamese traders have the right to re-export goods under sales agency contracts with foreign traders if those goods cannot be sold in Vietnam.

 

To save time on researching procedures, filling out forms, notarizing, and waiting to submit documents, you can contact HT for consultation and assistance wit TRADERS BE AGENTS IN BUYING AND SELLING GOODS

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Phone: +84 935 439 454.

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HOW DO EMPLOYERS WHO SIGN MANY LABOR CONTRACTS PAY FOR SOCIAL INSURANCE?

HOW DO EMPLOYERS WHO SIGN MANY LABOR CONTRACTS PAY FOR SOCIAL INSURANCE? - htlaw

I. Can a worker sign multiple labor contracts?

According to the provisions of Article 19 of the Labor Code 2019, it is stipulated as follows: “Article 19. Entering into Multiple Labor Contracts

  1. A worker may enter into multiple labor contracts with multiple employers, but must ensure the full implementation of the agreed-upon terms.

  2. If a worker enters into multiple labor contracts with multiple employers, participation in social insurance, health insurance, unemployment insurance shall be carried out in accordance with the regulations of the laws on social insurance, health insurance, unemployment insurance, and occupational safety and hygiene.”

Therefore, a worker can enter into labor contracts with multiple different employers as long as they fulfill the agreed-upon terms and comply with the current labor laws.

II. Who is required to participate in social insurance?

According to the provisions of Article 2, Clause 1 of the Social Insurance Law 2014, the applicable subjects are as follows:

a) Vietnamese citizens working under indefinite-term labor contracts, fixed-term labor contracts, seasonal labor contracts, or specific-term labor contracts with a duration of at least 03 months but less than 12 months, including labor contracts signed between employers and legal representatives of individuals under 15 years of age as prescribed by labor law.

b) Employees working under labor contracts with a duration of at least 01 month but less than 03 months;

III. Participants in unemployment insurance:

Based on the provisions of the Employment Law, specifically Article 43, these are the subjects that participate in unemployment insurance: Workers must participate in unemployment insurance when working under labor contracts or employment contracts as follows:

  • Labor contracts or employment contracts of indefinite duration;
  • Labor contracts or employment contracts of definite duration;

IV. Subjects participating in health insurance

There are 6 groups of subjects participating in health insurance:

1- Those for whom employees and employers contribute;

2- Those for whom social insurance agencies contribute;

3- Those for whom the state budget contributes;

4- Those supported by the state budget with a specific contribution rate;

5- Those participating in health insurance as part of their household registration;

6- Those for whom employers contribute.

 

V.How do workers working for multiple companies simultaneously pay social insurance?

According to Clause 1, Article 42 of the consolidated document No. 2089/VBHN-BHXH dated June 26, 2020, from the Vietnam Social Security, it states: “Workers simultaneously holding two or more labor contracts with different entities shall contribute to social insurance, occupational accident and occupational disease insurance based on the first labor contract signed, contribute to health insurance based on the labor contract with the highest salary, and contribute to labor union and unemployment insurance based on each labor contract.” Therefore, if a worker works for multiple companies simultaneously, social insurance contributions are as follows:

  • Social insurance (retirement and survivorship fund): contributions are made to the company where the first labor contract is signed;
  • Social insurance (occupational accident and occupational disease insurance): contributions are made to all companies with labor contracts (however, the worker does not need to contribute to this fund, and the employer will contribute);
  • Unemployment insurance: contributions are made to the company where the first labor contract is signed;
  • Health insurance: contributions are made to the company where the labor contract with the highest salary is signed.

    To save time on researching procedures, filling out forms, notarizing, and waiting to submit documents, you can contact HT for consultation and assistance with Labour Law.

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Email:  hue.truong@htlaw.vn

Phone: +84 935 439 454.

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THE COMPANY FACING ECONOMIC DIFFICULTIES, CAN IT ARBITRARILY REDUCE THE SALARY OF EMPLOYEES?

THE COMPANY FACING ECONOMIC DIFFICULTIES, CAN IT ARBITRARILY REDUCE THE SALARY OF EMPLOYEES? - htlaw
     The ongoing economic recession has had a significant impact on businesses worldwide in general, and in Vietnam specifically. Given the prevailing challenges, everyone is affected, including both businesses and employees. Therefore, the question arises:
.

I. Can a company facing economic difficulties unilaterally reduce the salaries of its employees?

The response from HTLaw is negative, as indicated by the following:

Pursuant to Article 94 of the 2019 Labor Code:

“Article 94. Principle of wage payment

Employers must directly, fully, and timely pay wages to employees. In cases where employees cannot receive wages directly, employers may pay wages to individuals duly authorized by the employees.

Employers must not restrict or interfere with the employees’ right to decide on their wage expenditures. They must not coerce employees to spend wages on purchasing goods or using services from the employer or other entities designated by the employer.”

Thus, employers are obligated to directly, fully, and timely pay wages to employees in accordance with the agreement within the corresponding labor contract for the work performed.

Furthermore, Article 33 of the 2019 Labor Code stipulates:

“Article 33. Amendment and supplementation of labor contracts

      During the execution of a labor contract, if either party requests to amend or supplement the content of the labor contract, they must inform the other party at least 03 working days in advance regarding the content to be amended or supplemented.

In cases of mutual agreement, the amendment or supplementation of the labor contract shall be executed through the signing of an appendix to the labor contract or the establishment of a new labor contract.

If the parties do not reach an agreement on the amendment or supplementation of the labor contract, the originally concluded labor contract shall continue to be executed.”

      It is evident that if the intention is to reduce an employee’s wage, the company must notify the employee at least 03 days in advance. If the employee agrees to the wage reduction, the parties can agree to sign an appendix to the labor contract or a new contract to adjust the wage level. However, if the employee does not agree, the company must still pay the wage as agreed upon in the signed labor contract, and an arbitrary reduction of wages is not permissible.

II. Now, assuming a company unilaterally reduces an employee's wage, can the company be subject to penalties?

The answer is affirmative, based on Section 2 of Article 17 of Decree No. 12/2022/NĐ-CP:

“2. Fine for employers committing any of the following acts: Failure to pay wages promptly in accordance with legal regulations; failure to pay or underpay wages to employees as agreed upon in the labor contract; failure to pay or underpay overtime wages; failure to pay or underpay night-shift wages; failure to pay or underpay wages during a suspension of work as stipulated by law; restricting or interfering with the employees’ right to decide on wage expenditures; coercing employees to spend wages on purchasing goods or using services from the employer or other designated entities; improperly deducting wages from employees in violation of legal regulations; failure to pay or underpay wages as prescribed to employees temporarily assigned to different tasks than those stated in the labor contract or during a strike; failure to pay or underpay wages for unused annual leave or remaining annual leave days upon termination or loss of employment; failure to provide advances or inadequate advances for wages during temporary suspension of work as stipulated by law; failure to pay adequate wages during a temporary suspension of work when the employee is not subject to labor discipline according to one of the following levels: …

(a) From 5,000,000 VND to 10,000,000 VND for violations involving 01 to 10 employees;

(b) From 10,000,000 VND to 20,000,000 VND for violations involving 11 to 50 employees;

(c) From 20,000,000 VND to 30,000,000 VND for violations involving 51 to 100 employees;

(d) From 30,000,000 VND to 40,000,000 VND for violations involving 101 to 300 employees;

(e) From 40,000,000 VND to 50,000,000 VND for violations involving 301 or more employees.”

Furthermore, the provisions in Section 1 of Article 6 of Decree No. 12/2022/NĐ-CP state:

“1. The prescribed fine levels for violations of the provisions in Chapters II, III, and IV of this Decree shall apply to individuals, except as provided for in Sections 1, 2, 3, 5 of Article 7; Sections 3, 4, 6 of Article 13; Section 2 of Article 25; Section 1 of Article 26; Sections 1, 5, 6, 7 of Article 27; Section 8 of Article 39; Section 5 of Article 41; Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 of Article 42; Sections 1, 2, 3, 4, 5, 6, 7, 8 of Article 43; Sections 1, 2, 3, 4, 5, 6 of Article 45; Section 3 of Article 46 of this Decree. The prescribed fine level for organizations shall be twice the fine level for individuals.”

      Consequently, according to the above regulations, if a company arbitrarily reduces an employee’s wage, it can be fined from 5,000,000 VND to 10,000,000 VND for individuals and from 10,000,000 VND to 20,000,000 VND for organizations.

III. Hence, what should employees do to safeguard their rights?

     Employees have the right to unilaterally terminate the labor contract without prior notice if the company arbitrarily reduces their wages, as per Section 2 of Article 35 of the 2019 Labor Code, which stipulates that:

“…

(b) Failure to fully pay or pay wages on time, except as provided in Section 4 of Article 97 of this Code;

…”

To save time on understanding procedures, filling out forms, notarizing documents, and waiting for application processing, you can get in touch with HT for consultation and assistance regarding Labor Law.

Contact us

    • Email: hue.truong@htlaw.vn
    • Phone: +84 935 439 454.
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HOW ARE WAGES FOR EMPLOYEES RESOLVED WHEN THE BUSINESS GOES BANKRUPT?

According to the provisions of Point dd, Clause 1, Article 108 of the Law on Bankruptcy 2014, one of the mandatory contents of the decision declaring bankruptcy is the content of termination of the labor contract with the employee, settlement of the employee’s rights and interests. of workers.

I. Cases of termination of labor contracts

Clause 7, Article 34 of the Labor Code 2019 provides as follows:

“7. The employer who is a natural person dies; and 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.”

…

Therefore, when the enterprise goes bankrupt, the labor contract between the employer (enterprise) and the employee will terminate.

II. Responsibility when terminating the labor contract

Article 48 of the Labor Code, 2019 stipulates that when bankrupt, an enterprise must ensure its responsibility to pay the following sums of money to employees:

“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.”

How are wages for employees resolved when the business goes bankrupt ?

III. Order of property division

Clause 1, Article 54 of the Law on Bankruptcy 2014 provides as follows:

Where a judge issues a decision declaring bankruptcy, the assets of the enterprise or cooperative shall be distributed in the following order:

“(a) Unpaid wages, severance allowances, social insurance and health insurance of the employees and other benefits by the executed labor contracts and collective labor agreement;

(b) Bankruptcy costs

(c) Debts arising after the commencement of the bankruptcy procedure which serves the purpose of business recovery of the enterprise or cooperative;

(d) Financial obligations to the State; unsecured debts payable to the creditors named in the list of creditors; secured debts that remain unpaid due to the value of the assets being insufficient to repay them”.

Therefore, when an enterprise goes bankrupt, its assets will be divided in the decision to declare bankruptcy in the order of asset division. Including the employee’s salary debt (Priority Order 2) and the employee still has the right to enjoy the money during the working period according to the contract between the two parties.

       To save time learning about the law, filling out forms, and submitting documents, you can contact HTLaw for consultation and legal services related to Labor Law

Contact us

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CAN VIETNAMESE ENTERPRISES SIGN INDEFINITE-TERM LABOR CONTRACTS WITH FOREIGN WORKERS?

I. Legal Basis

According to the provisions of Clause 2, Article 151 of the 2019 Labor Code:

“2. The duration of a foreign employee’s employment contract must not exceed that of the work permit. When a foreign employee in Vietnam is recruited, both parties may negotiate conclusion of multiple fixed-term labor contracts.“

The duration of the employment contract with foreign workers must not exceed the duration of the work permit.

Furthermore, according to the regulations in Article 155 of the 2019 Labor Code and Article 10 of Decree 152/2020/NĐ-CP, the maximum duration of a work permit is 2 years and can be extended once, not exceeding 2 years.

Therefore, employers and foreign workers will not be allowed to sign indefinite-term labor contracts.

II. Can a foreign worker without a work permit sign an indefinite-term contract?

There are certain cases in which foreign workers do not require a work permit to work in Vietnam, as regulated in Article 154 of the 2019 Labor Code:

“1. Is the owner or capital contributor of a limited liability company with a capital contribution value conformable with regulations of the Government.

2. Is the Chairperson or a member of the Board of Directors of a joint-stock company a capital contribution value conformable with regulations of the Government.

3. Is the manager of a representative office, project or the person in charge of the operation of an international organizations or a foreign non-governmental organization in Vietnam.

4. Enters Vietnam for a period of less than 03 months to do marketing of a service.

5. Enters Vietnam for a period of less than 03 months to a resolve complicated technical or technological issue which (i) affects or threatens to affect business operation and (ii) cannot be resolved by Vietnamese experts or any other foreign experts currently in Vietnam.

6. Is a foreign lawyer who has been granted a lawyer’s practicing certificate in Vietnam in accordance with the Law on Lawyers.

7. In one of the cases specified in an international treaty to which the Socialist Republic of Vietnam is a signatory.

8. Gets married with a Vietnamese citizen and wishes to reside in Vietnam.

9. Other circumstances specified by the Government.”

If a foreign worker falls into one of the above-mentioned cases, they can work in Vietnam without requiring a work permit.

However, according to Article 8 of Decree 152/2020/NĐ-CP, these individuals still need to be confirmed by the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs located where the foreign worker is expected to work. This confirmation is valid for a period of 2 years, and the reissuance of the confirmation is limited to a maximum of 2 years.

Therefore, even though foreign workers that are not required to obtain a work permit, they still cannot sign indefinite-term labor contracts.

CAN VIETNAMESE ENTERPRISES SIGN INDEFINITE-TERM LABOR CONTRACTS WITH FOREIGN WORKERS? - htlaw.vn

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WHEN IS A WORK PERMIT REVOKED?

I. Reasons for revocation of the work permit for foreign workers:

According to Article 20 of Decree 152/2020/NĐ-CP, the work permit for foreign workers in Vietnam may be revoked for the following 9 reasons:

  1. The work permit has expired.
  2. Termination of the labor contract.
  3. The terms of the labor contract do not match the content of the issued work permit.
  4. Working outside the scope specified in the issued work permit.
  5. The field of employment has ended or the contract has been terminated.
  6. The foreign country has sent written notice to recall the foreign worker employed in Vietnam.
  7. Enterprises, organizations, Vietnamese partners, or foreign organizations in Vietnam that employ foreign workers have terminated their activities.
  8. The employer or foreign worker fails to comply with the regulations of Decree 152/2020/NĐ-CP.
  9. The foreign worker violates Vietnamese laws during their employment, affecting security, order, and social safety.
When is a work permit revoked? - htlaw.vn

II. Process and procedures for revoking the work permit:

Based on Article 21 of Decree 152/2020/NĐ-CP, the procedures for revoking a work permit will be carried out as follows, depending on the case:

Case 1: The work permit has expired according to the provisions of Clauses 1, 2, 3, 4, 5, 6, and 7 of Article 156 of the Labor Code:

Step 1: The employer revokes the work permit of the foreign worker.

Step 2: Submit the application to the Ministry of Labor, Invalids and Social Affairs or the Department of Labor, Invalids and Social Affairs that issued the work permit.

The application includes:

The work permit of the foreign worker.

A document explaining the reason for revocation and the specific case falling under work permit revocation.

Deadline for submission: Within 15 days from the date the work permit expires.

Case 2: The employer or the foreign worker fails to comply with the regulations of this Decree; the foreign worker violates Vietnamese laws during their employment, affecting security, order, and social safety (Article 20 of Decree 152/2020/NĐ-CP):

Step 1: The Ministry of Labor, Invalids and Social Affairs or the Department of Labor, Invalids and Social Affairs that issued the work permit makes the decision to revoke the work permit and notifies the employer.

Step 2: The employer revokes the work permit of the foreign worker.

Step 3: The employer returns the work permit to the Ministry of Labor, Invalids and Social Affairs or the Department of Labor, Invalids and Social Affairs that issued the permit.

Deadline for completion: Within 3 days from the date the authorized agency revokes the work permit.

Step 4: The employer receives a confirmation document of work permit revocation.

Processing time: Within 5 working days from the date the Ministry of Labor, Invalids and Social Affairs or the Department of Labor, Invalids and Social Affairs receives the revoked work permit.

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DO FOREIGN EMPLOYEES WHEN HE/SHE QUITS BEEN RECEIVED SEVERANCE ALLOWANCE?

I. Can foreign workers be paid severance allowance when they quit their jobs?

According to the provisions of Article 46 of the Labor Code 2019, the conditions for receiving severance allowance are as follows:

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.

Also according to the provisions of Article 2 of the 2019 Labor Code, the subjects applied by this Code include:

1. Employees, trainees, apprentices and other workers without labor relations.

2.Employers.

3. Foreign employees who work in Vietnam.

4. Other organizations and individuals directly related to labor relations.

According to the above regulations, foreign workers working in Vietnam are also subject to the application of the 2019 Labor Code. Therefore, foreign workers working in Vietnam will be entitled to severance allowance if they meet the requirements meet the following conditions:

– Have worked regularly for full 12 months or more for the employer:

– Termination of the contract by the causes in Clauses 1, 2, 3, 4, 6, 7, 9 and 10, Article 34 of the Labor Code 2019

+ Due to the expiration of the labor contract.

Completed the work according to the labor contract.

+ Both parties agree to terminate the labor contract.

+ The employee is sentenced to prison (no suspended sentence/not released), death penalty, prohibited from doing the job specified in the contract.

+ The employee dies; has been declared by the Court to have lost his civil act capacity, is missing or has died.

+ The employer being an individual dies; has been declared by the Court to have lost his civil act capacity, is missing or has died.

+ The employee unilaterally terminates the labor contract according to the provisions of Article 35 of this Code.

+ The employer unilaterally terminates the labor contract according to the provisions of Article 36 of this Code.

Do foreign employees when he/she quits been received severance allowance? - htlaw.vn

II. How is the employer who does not pay severance pay to foreigners?

According to the provisions of Clause 1, Article 48 of the Labor Code 2019, it is the responsibility of the employer to fully pay all amounts related to the employee’s interests, including severance pay.

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.

If the employer fails to pay or does not fully pay the severance allowance to the foreign worker when they leave the job, the employer will be sanctioned according to the provisions of Clause 2, Article 12 of Decree 12/2022/ ND-CP.

The fine level for the employer is based on the number of employees being violated:

– From VND 1,000,000 to VND 2,000,000 for violations from 01 to 10 employees;

– From VND 2,000,000 to VND 5,000,000 for violations of between 11 and 50 employees;

– From 5,000,000 VND to 10,000,000 VND for violations of between 51 and 100 employees;

– From 10,000,000 VND to 15,000,000 VND for violations of between 101 and 300 employees;

– From 15,000,000 VND to 20,000,000 VND for violations of 301 employees or more.

The employer is also required to pay the full severance allowance plus interest on the unpaid amount at the highest interest rate on demand deposits of state-owned commercial banks announced at the time of settlement punish.

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TERMINATION OF LABOR CONTRACT WHEN ENTERPRISES HAVE CHANGES IN STRUCTURE, TECHNOLOGY, OR DUE TO ECONOMIC REASONS

I. Cases in which there are changes in structure, technology, or due to economic reason

In accordance with clause 1 Article 42, changes in structure, technology, or due to economic reasons are detailed as follows:

Cases considered changes in structure and technology include:

“a) Changes in the organizational structure, personnel rearrangement;

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

c) Changes in products or product structure”.

Cases considered 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”.

Termination of labor contract when enterprises have changes in structure, technology, or due to economic reasons - htlaw.vn

II. Laying off employees in cases of changes in structure, technology, or due to economic reason

Pursuant to clause 11 Article 34 of the Labor Code, a change in structure, technology or economic reasons is one of the reasons for which employers may dismiss employees. However, in order to protect employees against situations where the enterprise does not really need to be restructured or not because of economic reasons but employees are still laid off, at this time, the legal rights of employees will be affected. As a result, the prevailing rules have mentioned a process for termination of labor contract in the above cases. Businesses and employees should pay attention to protect their own interests.

III. Orders and procedures

When enterprises carry out restructuring, changes in technology that affects the employment of many laborers, or case for economic reasons that many employees are at risk of losing their jobs or being dismissed, the employer shall develop and implement a utilization plan based on Article 44 of the Labor Code 2019:

* Particularly in the case of structural and technological change, priority must be given to retraining old employees if there is a new position.

Step 1: Making and implementing a utilization plan

“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 a part-time basis;

b) Number and list of retired workers;

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 the implementation of the labor utilization plan;

đ) The measure and financial sources to implement the plan.”

Step 2: Have a discussion with the internal representative organization at the grassroots level for the employee representative organization of employees to which the employee is a member and notify 30 days in advance the provincial People’s Committee and the workers.

Step 3: Notice of termination of labor contract and issue decision on termination of labor contract.

In case of termination, the employer must pay the employee a redundancy allowance according to the provisions of Article 47 of the Labor Code.

IV. Things enterprise should consider

In order to avoid cases of illegal dismissal of employees, enterprises shall not skip any procedures since this may lead to a legal risk for the employer in the future.

If the employer develops a utilization plan, they need consider whether the changes in structure, technology, or economic reasons in the plan are suitable for the actual situation of the company or not? Moreover, enterprises also need to develop detailed plans for all employees affected by restructuring, changes in technology, or for the above economic reasons, to avoid inconsistencies compared with reality.

Enterprises should also pay attention to the issue of prioritizing the retraining of employees to continue using when there is a new workplace in case of structural and technological changes. In fact, many businesses just introduce other positions to employees and skip the step of training employees, which can be a legal risk in a labor lawsuit.

In practice, enterprises and employees can mutually agree to terminate the labor contract before making up their minds to carry out the above procedure to avoid unwanted legal disputes.

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LEGAL ISSUES IN PROBATION

In the current context, before the parties officially enter into an employment relationship through a final employment contract, there is usually a probationary period. Although the probation has not been specifically defined in the current Labor Law, legal issues regarding it have been regulated. During this period, employees as well as employers need to pay attention to some legal issues in order to ensure their rights and benefits and to avoid risks.

Legal issues in probation - htlaw.vn

1. General provisions

As mentioned, although there is no clear definition, in an easy-to-understand way, probation is a voluntary agreement between two parties and is not mandatory. It is a short-term process in which both parties work together to evaluate the employee’s capacity, qualifications, awareness, working conditions, and labor utilization plan before making decisions to sign an official labor contract or continue to implement the contract that has been agreed upon.

Considering the probationary period, current laws still prioritize the agreement of each party, but that agreement must be within the allowed framework. Specifically, according to the regulations in Article 25 of the Labor Law 2019:

“ … 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”.

Considering salary, labor laws still prioritize the will of the parties. However, employees should note that during the probation, the salary must be at least 85% of the salary for that job.

II. Content and form of the probationary contract (agreement)

Considering the form, current regulations require the parties to agree on the probationary period, but there is no clear regulation on the form. The parties can agree on the content of the probation in the labor contract or agree on the probation by signing a separate probationary contract. In the case where the parties agree on the content of the probationary period in the labor contract, a written form is mandatory. However, to limit the risk of disputes, the parties should clearly agree in writing from the beginning in all cases.

Considering the content, the prevailing law respects all agreements and only stipulates mandatory terms. Compared to a regular labor contract, the mandatory content of the probationary relationship is reduced. Specifically, according to the regulations in Article 21 and Clause 2, Article 24 of the Labor Law 2019, the content of the probationary contract (agreement) includes:

“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) Tasks and workplace(s);

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

g) Working hours, rest periods;

h) Personal protective equipment for the employee”.

III. Other notes

Considering the period during and after probation:

During the probationary period, each party has the right to revoke the probationary contract or the labor contract without prior notice and have no obligation of compensation.

On the other hand, after the probationary period ends, the employer must inform the employee of the probationary results. If the probation is satisfactory, the employer will continue to implement the labor contract that has been agreed upon, in the case where the probationary period is agreed upon in the labor contract. Otherwise, the employer must sign a labor contract in the case of a separate probationary contract.

Considering insurance policies:

Article 2 of the Social Insurance Law 2014 mentions the subjects of compulsory social insurance and only requires employees with a labor contract of indefinite duration or a fixed-term contract of at least three months to participate in compulsory social insurance. Therefore, this subject is not subject to mandatory social insurance participation policies.

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DISMISSAL PROCESS AGAINST EMPLOYEE UNDER LEGAL PROVISIONS

Pursuant to the provisions of the Labor Code 2019, dismissal is one of the highest and most serious forms of disciplinary measures applied by the Employer for the Employees. Therefore, the disciplinary process of dismissal is strictly regulated to best protect employees as well as bring fairness, equality and transparency to all laborers in the workplace.

I. Cases in which dismissal discipline is imposed

Pursuant to Article 125, Labor code 2019, cases in which dismissal discipline is imposed:

“1. The employee commits an act of theft, embezzlement, gambling, deliberate infliction of injuries or uses drug at the workplace;

2. The employee discloses technological or business secrets or infringing the intellectual property rights of the employer, or commits acts which are seriously detrimental or posing seriously detrimental threat to the assets or interests of the employer, or commits sexual harassment in the workplace against the internal labor regulations;

3. The employee repeats a violation which was disciplined by deferment of pay rise or demotion and has not been absolved. A repeated violation means a violation which was disciplined and is repeated before it is absolved in accordance with Article 126 of this Code.

4. The employee fails to go to work for a total period of 05 days in 30 days, or for a total period of 20 days in 365 days from the first day he/she fails to go to work without acceptable excuses”.

Cases regarded as acceptable excuse include natural disasters, fires, being sick or relatives being sick certified by competent medical examination and treatment establishments and other cases specified in labor regulations.

Dismissal process against employee under legal provisions - htlaw.vn

II. Cases in which dismissal discipline cannot be imposed

Pursuant to Clause 4 and 5, Article 122, Labor code 2019, dismissal discipline shall not be taken against an employee during the period when:

“a) The employee is taking leave on account of illness or convalescence; or on other types of leave with the employer’s consent;

b) The employee is held in custody or detention;

c) The employee is waiting for verification and conclusion of the competent agency for acts of violations, stipulated in Clause 1 and Clause 2 Article 125 of this Labor Code (The employee commits an act of theft, embezzlement, gambling, deliberate infliction of injuries or uses drug at the workplace; The employee discloses technological or business secrets or infringing the intellectual property rights of the employer, or commits acts which are seriously detrimental or posing seriously detrimental threat to the assets or interests of the employer, or commits sexual harassment in the workplace against the internal labor regulations);

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

… employee commits a violation of internal labor regulations while suffering from the mental illness or another disease which causes the loss of consciousness ability or the loss of his/her behavior control”.

III. Dismissal procedure

Because dismissal is one of the disciplinary measures, the procedure for dismissing an employee is similar to the procedure for disciplining employees. Pursuant to Article 70, Decree 145/2020/ND-CP, the procedure of dismissal is carried out as follows:

At first, in case an employee’s violation is exposed when it is committed, the employer shall make a violation record and notify the internal employee representative organization, the employee’s legal representative (if the employee is under 15). When an employee’s violation is discovered after it is committed, evidences of such violation must be gathered.

Secondly, within the disciplinary period, the employer shall hold a disciplinary hearing as follows:

“a) At least 05 working days before the disciplinary hearing is held, the employer shall notify the mandatory participants (the representative organization of employees; and the employee is physically present and has the right to defend him/herself, request a lawyer or the representative organization of employees to defend him/her; if the employee is under 15 years of age, his/her parent or a legal representative must be present) time and location of the hearing, full name of the employee facing disciplinary procedure and his/her violations. Make sure the participants receive the notification before the hearing takes place;

b) Upon receipt of the employer’s notification, the mandatory participants shall send the employer confirmation of their participation. In case any of the mandatory participants cannot participate in the hearing, the employee and the employer shall reach an agreement on change of time and/or location of the hearing. In case such an agreement cannot be reached, the employer shall make the final decision;

c) The employer shall conduct the disciplinary hearing at the time and location agreed upon. In case any of the mandatory participants do not confirm his/her participation or is not present, the employer shall still conduct the hearing”.

Thirdly, minutes of the disciplinary hearing shall be taken and ratified before the end of the hearing. The minutes shall bear the signatures of the mandatory participants. In case a person refuses to sign the minutes, the minutes taker shall specify his/her full name and reasons for refusal in the minutes.

Hence, one of the conditions for conducting the meeting is the full participation of the parties including employers, employees and representatives from the internal representative organization of employees. Nonetheless, if employees and representatives do not attend, and no agreement is reached after then, the meeting can still take place.

IV. Time limit for taking dismissal measure

In accordance with prevailing law (Article 123, Labor code 2019), in principles, time limit for taking disciplinary measure (including dismissal measure) is 6 months. However, for specific cases including violations related to property, finance, technology secrets, and business secrets, the time limit in this situation was 12 months.

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NOTES WHEN ENTERPRISES UNILATERALLY DISMISS EMPLOYEES

I. Cases where the Company has the right to unilaterally terminate the contract with the Employee

Pursuant to Clause 1, Article 36 Labor code 2019:

“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 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) Due to natural disasters, fires, dangerous epidemics, enemy sabotage or relocation or downsizing of production and business at the request of competent state agencies, the employer has sought all remedies but still forced to reduce workplaces;

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

đ) The employee reaches the retirement age specified, 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 a manner that affects the recruitment”.

Notes: For the days when the employer violates the notification obligation, the employee will receive the corresponding salary.

Notes when enterprises unilaterally dismiss employees - htlaw.vn

II. Procedures

Step 1. In general principles, employers take responsibilities to notify employees of the unilaterally termination of labor contract, specifically:

“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 employees get sick or have accidents as above mention;

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

Step 2. The employee continues to perform the job until the contract is terminated and the work is handed over (if there is a prior agreement) and the employer only pays the salary, bonus and other amounts (severance / redundancy allowances). 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:

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

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

* 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;

* Natural disasters, fire, hostility or major epidemics.

Step 3. On the last day of the contract, the parties sign the handover minutes and complete the procedures by signing salary and bonus documents (if any), ending the validity of the labor contract.

III. Form of notifications

Employers have obligations to send a written notice to the employee of the termination of his/her employment contract, except for the following cases (Clause 1, Article 45, Labor code 2019):

a. The employee is sentenced to imprisonment without being eligible for suspension or release as prescribed in 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.

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

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

d. 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.

đ. The employee is dismissed for disciplinary reasons.

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CAN COMPANIES DEDUCT COMPENSATORY WEEKLY DAYS OFF FOR HOLIDAYS FROM ANNUAL LEAVES?

Can companies deduct compensatory weekly days off for holidays from annual leaves? - htlaw.vn

I. Provisions on weekly day off

Prevailing law stipulates that an employee is entitled to at least twenty-four consecutive hours of day off per week. In case the employee has to work continuously in light of the attributes of career or special reasons, the employee is still guaranteed to have at least four days off per month.

Regarding the specific weekly days off, the employer has the right to decide to arrange the rest day to be on Sunday or another determined day of the week but must be recorded in the labor regulations.

In case, if the weekly days off coincides with a public holiday or New Year according to the Labor Law, the employee is entitled to have compensatory leaves on the next working days.

II. Provision on yearly days off

According to the prevailing law, employee who has worked for full 12 months for an employer is entitled to annual leave with full salary according to labor contracts as follows:

“a) 12 working days for employees who work in normal working conditions;

…”

III. Provisions on public holidays

The prevailing law stipulates public holidays and the number of days in detail as follows:

“a) Gregorian Calendar New Year Holiday: 01 day (the 1st of January of the Gregorian calendar)

b) Lunar New Year Holidays: 05 days

c) Victory Day: 01 day (the 30th of April of the Gregorian calendar)

d) International Labor Day: 01 day (the 1st of May of the Gregorian calendar)

đ) National Day: 02 days (the 2nd of September of the Gregorian calendar and the previous or next day)

e) Hung Kings Commemoration Day: 01 day (the 10th of the third month of the Lunar calendar)”

IV. What should companies do when they have weekly days off different from Saturday and Sunday during the upcoming Hung Kings Anniversary, April 30 and May 1??

Currently, most businesses stipulate that the weekly days off is two days (Saturday and Sunday) or one day (Saturday or Sunday). This will affect the number of days off in the upcoming Hung Kings Anniversary, April 30 and May 1. However, this problem is resolved as follows:

+ For companies with weekly days off on Saturday and Sunday, employees will be entitled to make up for the rest of the week on the next working day (May 2 and 3). The total number of days off is 5 days.

+ For companies that have weekly days off on Saturday or Sunday, employees will be compensated for the weekly rest day on the next working day (May 2). The total number of days off is 4 days.

+ For companies that do not implement a fixed schedule of two days off as Saturday and Sunday but another day of the week, employees are only entitled to 3 holidays as prescribed. However, taking only 3 days off will sometimes not satisfy the needs of employees, or the operating situation of the business. Companies can stipulate the extra vacation schedule to suit the needs and plans of the two parties. In this case, there are some businesses that will agree and notify the employer about deducting the remaining days of leave from the annual leave, so that the employee has full 5 days off.

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Posted on

STANDARDS OF TEACHERS AT FOREIGN LANGUAGE CENTER

Standards of teachers at foreign language center - htlaw.vn

I. Standards for Vietnamese teachers

Vietnamese teachers are eligible to teach foreign languages ​​when they meet one of the following criteria:

– Having a college degree in foreign language pedagogy or higher;

– Having a college degree in a foreign language or higher and a certificate of pedagogy.

II. Standards for foreign teachers

For native teachers: Teachers who are native speakers of foreign languages ​​(for each specific foreign language): Possess a college degree or higher and an appropriate certificate of foreign language teaching.

For non-native foreign teachers:

Foreign teachers are eligible to teach foreign languages ​​when they meet one of the following criteria:

– Having a college degree in foreign language pedagogy or higher;

– Having a college degree in foreign languages ​​or higher and an appropriate certificate of foreign language teaching;

– Having a college degree or higher, a certificate of foreign language ability at level 5 or higher according to the 6-level foreign language competency framework for Vietnam or equivalent and an appropriate certificate of foreign language teaching.

(Legal basis: Circular 21/2018 of the Ministry of Education and Training)

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SOCIAL INSURANCE SCHEME FOR MATERNITY CASES

Social insurance scheme for maternity cases - htlaw.vn
No.ContentLegal BasisNote
1Definition:
Social insurance is a social security policy of the state to protect the interests of employees, this is a policy to ensure and offset a part of an employee’s real income when losing income. for cases of leave of work, maternity, sickness, labor accident, occupational disease, end of working age or death, on the basis of contribution to the social insurance fund
Compulsory social insurance:
- Sick;
- Maternity;
- Occupational accidents and diseases;
- Retire;
- Survivorship.		Clause 1 Article 3
Clause 1 Article 4 Law on Social Insurance
2Conditions to be entitled to the maternity regime: In one of the following cases:
- Pregnant female employees;
- Female workers give birth
- Female employees are surrogates and the mother asks for surrogacy
- The employee adopts a child under 6 months old;
- Female employees put on IUDs, employees take sterilization measures;
- Male employees who are paying social insurance premiums whose wives give birth to children.
Case: Female employees give birth; female employees as surrogates and mothers asking for surrogacy; employees adopt children under 06 months old; must pay social insurance premiums for full 06 months or more within 12 months before giving birth or adopting a child.
Case: A female employee who has given birth to a child and has paid social insurance premiums for full 12 months or more but has to take a leave of absence from work to take care of the pregnancy when she is pregnant under the direction of a competent medical examination and treatment establishment shall pay social insurance premiums. from full 03 months or more in the 12 months before giving birth.		Article 31 Law on Social Insurance
3Term to be entitled to benefits when giving birth:
- Female employees giving birth are entitled to take maternity leave before and after giving birth for 6 months. In case female employees have twins or more, from the second child onwards, for each child, the mother is entitled to an extra month of leave.
- The maximum period of maternity leave before giving birth is not more than 02 months.		Clause 1 Article 31 Law on Social Insurance
4Level of maternity benefits:
The monthly allowance is equal to 100% of the average monthly salary on which social insurance premiums are based for the 06 months before taking leave for the maternity regime.		Article 39 Law on Social Insurance

       To save time learning about the law, filling out forms, and submitting documents, you can contact HTLaw for consultation and legal services related to Labor Law.

Contact us

    • Email: hue.truong@htlaw.vn
    • Phone number: +84 935 439 454. 
Posted on

Report the situation of using foreign employees

report the situation of using foreign employees

HT Law sends customers information to report the situation of using foreign employees for organizations and enterprises operating in Ho Chi Minh City according to Official Letter 18502/SLDTBXH-VLATLD issued on May 30, 2022.

Báo cáo tình hình sử dụng người lao động nước ngoài

Pursuant to Decree 152/2020/ND-CP issued on December 30, 2020 and Circular 01/2022/TT-BLDTBXH issued on January 25, 2022, in order to strictly comply with regulations on reporting the situation of using foreign employees and providing information on the working status of working foreign employees, the Department of Labor, War Invalids and Social Affairs proposes It is recommended that the units do the following:

    1. Make reports on the employment of foreign employees for 6 months and for the annual year as prescribed in Article 6 of Decree No. 152/2020/ND-CP:
    • Report form: Form No. 07/PLI, Appendix 1, Decree 152/2020/ND-CP
    • Time to submit reports:

+ 6-month report: The timeline for data aggregation is from December 15 of the previous year to June 14 of the reporting period.

Time to submit the report: from June 15 to July 4

+ Annual report: Timeline for data collection from December 15 of the previous year to December 14 of the reporting period.

    • Report submission form: Organizations and enterprises submit reports to the Department of Labor, War Invalids and Social Affairs (through the Department of Employment and Occupational Safety) in the online form by:

Access the Google Form link: https://forms.gle/JKW4gGgKUQfsrJYcA

Reports submitted online include general information, a signed and red-stamped copy of the report (*.pdf file) and a soft copy (Word or Excel file) for easy tracking and consolidation.

    1. Information on the working status of foreign workers currently working as prescribed in Article 14 of Circular 01/2022/TT-BLDTBXH:
    • Form of information provision form: Form No. 03 in the Appendix issued together with Circular 01/2022/TT-BLDTBXH.

Foreign employees self-declare the contents according to Form No. 03, in case foreigners are unable to do so, the organization or enterprise employing foreign employees shall declare information.

    • Form of implementation:

Organizations, businesses and individuals access the Google Form link: https://forms.gle/haXiymPeuKLeGQPx8

    • Time to provide information: From June 1 to June 30

After the time specified above, the Department of Labor, War Invalids and Social Affairs does not accept reports submitted by organizations or enterprises; at the same time, it will be aggregated as a basis to confirm the observance of legal regulations at the request of agencies to avoid regulations according to Article 32 of Decree No. 12/2022/ND-CP dated January 17, 2022 The Government’s regulations on sanctioning of administrative violations in the field of labor, social insurance and Vietnamese employees working abroad under contracts.

HT provides legal services to report employee usage situations. If you do not have time to carry out the above procedure, you can contact us to receive a specific and detailed quote.

Contact us

    • Email: hue.truong@htlaw.vn
    • Phone no.: +84 935 439 454. 
Posted on

NEW POINT ON MATERNITY BENEFITS FOR EMPLOYEES IN VIETNAM

According to the latest Circular No 06/2021/TT-BLDTBXH issued on July 7th, 2021, the Ministry of Labor, War Invalids and Social Affairs amended detailed regulations and guidance for the implementation of a number of articles of the law regarding social insurance. In particular, there are three notable new points about maternity benefits for male and female workers as follows:

(i) Clarifying
the case of receiving a one-time allowance upon childbirth for male workers

According
to Clause 5, Article 1 of Circular 06/2021/TT-BLDTBXH, Point c, Clause 2,
Article 9 of Circular 59/2015/TT-BLDTBXH is amended as follows: “In cases where
the mother participates in social insurance and she is not eligible for
benefits but the father meets all the conditions specified at Point a, Clause
2, Article 9 of Circular 59/2015/TT-BLDTBXH at the time of childbirth, the
father is entitled to a one-time allowance upon childbirth according to Article
38 of the Law on Social Insurance.”

The Regulation
at Point a, Clause 2, Article 9 of Circular 59/2015/TT-BLDTTXH, states, “in
case only the father participates in social insurance, the father must fully
pay the social insurance premiums at least 06 months within 12 months before childbirth.”

Previously,
male workers were only entitled to a one-time allowance when their wives did
not participate in social insurance. When the new regulations take effect, male
workers will be entitled to a one-time allowance even if both the husband and
wife participate in compulsory social insurance but the wife is not eligible
for maternity benefits.

(ii) Male
workers are entitled to maternity leave

From
September 1st, 2021, male workers may take maternity leave according
to the  provisions of Clause 2, Article
34 of the Law on Social Insurance. In case of multiple leave, the most recent leave
taken must still be within 30 days from the date of childbirth and the total
period of maternity leave must not exceed the prescribed time.

Therefore,
the period of maternity leave for male workers who are paying social insurance
can be divided into several flexible times within the first 30 days after the
date of childbirth, as follows:

a/ 5 working days;

b/ 7 working days, in case their wives
undergo a surgical birth or give birth to children before 32 weeks of
pregnancy;

c/ 10 working days, in case their wives
give birth to twins; or additional 3 working days for each infant after the
second;

d/ 14 working days, in case their wives
give birth to twins or more infants and underwent an operation during childbirth.

(iii)
Twin pregnancy is entitled to maternity benefits according the number of
children born

This
new regulation helps female workers receive additional benefits when having a
dead or stillborn child.

Specifically,
Clause 6, Article 1 Circular 06/2021/TT-BLDTBXH, Clause 3, Article 10 of
Circular 59/2015/TT-BLDTBXH has been amended as follows: “In case a female
employee is pregnant with twins or more, then her children die before birth or
are stillborn, the period of maternity leave and allowance upon childbirth and
the one-time allowance upon childbirth shall be calculated according to the
number of children born, including all stillborn and dead children.”

Thus, the previous regulation on pregnant employees with twins whose children die before birth or are stillborn, dispensing maternity benefits according to the surviving children, has been amended in the new circular. Employees who are pregnant with twins whose children die or are stillborn can receive maternity benefits based on the number of children born, including stillbirths and deaths.

Please feel free to contact us by email: huonghue.ht@htlaw.vn or phone number +84 935 439 454 if you need any further clarification. We look forward to long-term co-operation with you.