Entry into labor contracts is a primary step for both employees and employers in getting their own targets. Viet Nam Labor Law has regulations on entry into labor contracts. Let’s find out this issue with Lawyer X through the following situation: “Dear Lawyer! I want to ask about how are labor contracts defined in Viet Nam? What are forms, contents of labor contracts? What I should notice when I entry into labor contracts in Viet Nam? Thanks for answering me!”
Legal grounds
Viet Nam Labor Contracts
What are labor contracts?
*Definitions of labor contracts
– Labor contract is an agreement between the employee and the employer on a paid job, wage, working conditions, and rights and obligations of each party in industrial relations.
In case the two parties give another name to their agreement which has contents stating a paid job, wage and either party’s management, administration and supervision, such agreement shall be regarded as a labor contract.
– Before employing a person, the employer shall enter into a labor contract with such person.
*Forms of labor contracts
– A labor contract shall be entered into in writing and made in 2 copies, one to be kept by the employee and the other by the employer, except the case specified in Clause 2 of Article 14 Viet Nam Labor Code
A labor contract entered into by electronic means in the form of a data message under the law on e-transactions is as valid as a written labor contract.
– The two parties may enter into a verbal labor contract, for contracts of a term of under 1 month, except the cases specified in Clause 2, Article 18, at Point a, Clause 1, Article 145, and in Clause 1, Article 162, of Viet Nam Labor Code.
*Types of labor contract
– A labor contract must take one of the following types:
+ Indefinite-term labor contract, which is a contract in which the two parties do not determine its term and time of termination;
+ Definite-term labor contract, which is a contract in which the two parties determine its term and time of termination within 36 months from the date the contract takes effect.
– When a labor contract referred to at Point b, Clause 1 of Article 20 Labor Code expires and the employee continues working:
+ Within 30 days from the date of expiration of the contract, the two parties shall sign a new labor contract; pending the signing of a new labor contract, the rights, obligations and interests of the two parties must comply with the old contract;
+ Past the above 30-day time limit, if the two parties do not sign a new labor contract, the contract entered into under Point b, Clause 1 of Article 20 Labor Code will become an indefinite-term labor contract;
+ In case the two parties sign a new labor contract with a definite term, they may not sign another definite-term labor contract; if the employee continues working after the expiration of this contract, the two parties shall sign an indefinite-term labor contract, except labor contracts entered into by persons hired to work as directors of state capital-invested enterprises and the cases specified in Clause 1, Article 149, Clause 2, Article 151, and Clause 4, Article 177, of Labor Code.
*Contents of a labor contract
– A labor contract must have the following principal contents:
+ Name and address of the employer, and full name and title of the person entering into the contract on the employer’s side;
+ Full name, date of birth, gender, place of residence, serial number of the citizen identity card, people’s identity card or passport of the person entering into the contract on the employee’s side;
+ Job(s) and workplace;
+ Term of the contract;
+ Job- or title-based wage, form of wage payment, time of wage payment, wage-based allowances and other additional payments;
+ Regimes on wage-grade promotion and wage raise;
+ Working time and rest time;
+ Labor safety equipment for the employee;
+ Social insurance, health insurance and unemployment insurance;
+ Training, further training, and improvement of occupational qualifications and skills.
– When the employee performs a job directly related to business secrets or technological secrets as prescribed by law, the employer may reach a written agreement with the employee on the content and duration of protection of business secrets or technological secrets, interests, and compensation in case of violation.
– For employees working in agriculture, forestry, fishery or salt production sectors, based on the type of job, the two parties may omit some principal contents of a labor contract and agree to add contents on settlement measures in case the contract performance is affected by a natural disaster, fire or bad weather conditions.
– The Government shall prescribe the contents of labor contracts for persons hired to work as directors of state capital-invested enterprises.
Principles of entry into a labor contract
There are some principles of entry into a labor contract as follows:
– Voluntariness, fairness, goodwill, cooperation and honesty.
– Freedom to enter a labor contract which must not be contrary to law, the collective labor agreement and social morality.
Obligation to provide information upon entry into labor contracts
The employer shall provide the employee with truthful information about the job, workplace, working conditions, working time, rest time, occupational safety and health, wage, forms of wage payment, social insurance, health insurance, and unemployment insurance, regulations on protection of business secrets and technological secrets, and other issues directly related to the entry into a labor contract as requested by the employee.
The employee shall provide the employer with truthful information about his/her full name, date of birth, gender, place of residence, education level, occupational qualifications and skills, health status and other issues directly related to the entry into a labor contract as requested by the employer.
Prohibited acts of employers when entering into and performing labor contracts
There are some prohibited acts of employers when entering into and performing labor contracts as follows:
– Keeping the originals of personal identification papers, diplomas and certificates of employees.
– Requesting employees to make a deposit in cash or other assets as security for the performance of labor contracts.
– Compelling employees to perform labor contracts for payment of debts to the employers.
Competence to enter into labor contracts
– The employee may personally enter into a labor contract, except the case specified in Clause 2 of Article 18 of Labor Code
– For seasonal jobs or certain jobs lasting for less than 12 months, a group of employees aged full 18 years or older may authorize one of them to enter into a labor contract; in this case, such labor contract shall be established in writing and is as valid as a labor contract signed with every employee.
The labor contract signed by the authorized person shall be accompanied by a list of employees and their full names, dates of birth, gender, places of residence and signatures.
– A person entering into a labor contract on the employer’s side may be:
+ An at-law representative of the enterprise or an authorized person as prescribed by law;
+ The head of an agency or organization having the legal person status as prescribed by law or an authorized person as prescribed by law;
+ A representative of a household, cooperative group or another organization without the legal person status or an authorized person as prescribed by law; or,
+ The individual directly using the employees.
– A person entering into a labor contract on the employee’s side may be:
+ An employee aged full 18 years or older;
+ An employee aged between full 15 years and under full 18 years, with a written consent of his/her at-law representative;
+ A person aged under full 15 years and his/her at-law representative; or,
+ An employee in a group of employees who is lawfully authorized by other employees in the group to enter into a labor contract.
– A person who is authorized to enter into a labor contract may not further authorize another person to do so.
Entry into more than one labor contract
– The employee may enter into different labor contracts with more than one employer, provided that he/she fully performs the contents of the entered contracts.
– For the employee who concurrently enters into different labor contracts with more than one employer, his/her participation in social insurance, health insurance and unemployment insurance must comply with the laws on social insurance, health insurance, unemployment insurance, and occupational safety and health.
Regulations on probation in labor relationships
– The employer and employee may reach agreement on the content on probation right in the labor contract or reach agreement on probation by entering into a probation contract.
– The principal contents of a probation contract include the probation period and the contents specified at Points a, b, c, dd, g and h, Clause 1, Article 21 of Labor Code.
– Probation shall not be applied to employees who enter into labor contracts with a term of under 1 month.
*Probation period
The probation period shall be agreed upon by the two parties based on the nature and complexity of the job(s) but probation shall be applied only once for each job, and is prescribed as follows:
– Not exceeding 180 days, for enterprise managers defined in the Law on Enterprises and Law on Management and Use of State Capital Invested in Production and Business at Enterprises;
– Not exceeding 60 days, for holders of job titles requiring professional and technical qualifications of collegial or higher degree;
– Not exceeding 30 days, for holders of job titles requiring professional and technical qualifications of intermediate degree, or for technical workers and operation employees; or,
– Not exceeding 6 working days, for other jobs.
*Wages during probation periods
The wage for the employee for a job during the probation period shall be agreed upon by the two parties but must not be lower than 85% of the wage rate of such job.
*Expiration of probation period
– At the end of the probation period, the employer shall notify the probation result to the employee.
If the probationary job is satisfactory, the employer shall continue performing the signed contract in which the two parties have reached agreement on probation, or sign a labor contract in case they previously signed a probation contract.
If the probationary job is unsatisfactory, the two parties shall terminate the signed labor contract or probation contract.
– During the probation period, each party may cancel the signed probation contract or labor contract without prior notice and compensation.
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Frequently asked questions
Labor contract is an agreement between the employee and the employer on a paid job, wage, working conditions, and rights and obligations of each party in industrial relations.
Before employing a person, the employer shall enter into a labor contract with such person.
A labor contract shall be entered into in writing and made in 2 copies, one to be kept by the employee and the other by the employer, except the case specified in Clause 2 of Article 14 Viet Nam Labor Code. A labor contract entered into by electronic means in the form of a data message under the law on e-transactions is as valid as a written labor contract. The two parties may enter into a verbal labor contract, for contracts of a term of under 1 month, except the cases specified in Clause 2, Article 18, at Point a, Clause 1, Article 145, and in Clause 1, Article 162, of Viet Nam Labor Code.
Conclusion: So the above is Entry into labor contracts in accordance with Viet Nam legal regulations. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
