Main content of labor subleasing contract in Vietnam

Recently, the labor subleasing is very popularly used by businesses. Therefore, enterprises need to understand the provisions of the law related to labor subleasing contracts to avoid unnecessary penalties. Specifically, what are the main contents of a labor sublease contract? What work is performed for labor sublease? The following article of Lawyer X will help readers answer questions about these issues, please follow along.

Legal grounds

• Labor Code 2019
• Decree 12/2022/ND-CP

What is labor sublease?

According to the definition in Article 52 of the Labor Code 2019, labor subleasing and outsourcing activities are understood as follows:

Labor sub-leasing means an employee entering into a labor contract with an employer who is an outsourcing enterprise, then the employee is transferred to work and is under the management of the employee. employ other employees but still maintain labor relations with the employer who has entered into a labor contract.

Labor outsourcing is a conditional business line, which is only performed by enterprises that have a license for labor outsourcing and applies to certain jobs.

What work is performed for labor sublease?

In Appendix 2 issued together with this Decree, a list of 20 jobs can be outsourced, including:

1. Interpreter/Compile/Shortogram.
2. Secretary/Administrative Assistant.
3. Reception.
4. Travel guide.
5. Sales support.
6. Project support.
7. Programming the production machine system.
8. Production and installation of television and telecommunications equipment.
9. Operation/inspection/repair of construction machinery, production power system.
10. Cleaning and sanitizing buildings and factories.
11. Document editing.
12. Bodyguard/Guard.
13. Marketing/Customer care over the phone.
14. Handling financial and tax issues.
15. Repair/Check operation of cars
16. Scan, draw industrial engineering/Interior decoration.
17. Driving.
18. Management, operation, maintenance and service on board ships.
19. Management, supervision, operation, repair, maintenance and service on oil and gas rigs.
20. Piloting, serving on aircraft/Maintenance and repair of aircraft and aircraft equipment/Schedule, flight operations/Flight supervision.

What are the contents of a labor subleasing contract according to Vietnamese law?

According to Article 55 of the Labor Code 2019, the outsourcing enterprise and the outsourcing party must sign a written labor subleasing contract and be made into 02 copies, each party keeps 01 copy. In particular, the labor subleasing contract will include the following main contents:

• Working location, job position that needs to be hired by the outsourced worker, specific content of the job, specific requirements for the outsourced employee;
• The term of re-employment of labor; the employee’s starting time of employment;
• Working time, rest time, occupational safety and health conditions at the workplace;
• Responsibility for compensation for occupational accidents and diseases;
• Obligations of each party towards the employee.

Note: The labor subleasing contract must not have agreements on the rights and interests of the employee lower than the labor contract signed by the outsourcing enterprise with the employee.

What rights and obligations does a labor outsourcing enterprise have different from ordinary employers?

In addition to the usual rights and obligations, a labor outsourcing enterprise also has the following rights and obligations:

• Ensure that qualified workers are brought in accordance with the requirements of the outsourcing party and the contents of the labor contract signed with the employee;
• Notify the employee of the content of the labor subleasing contract;

• Notify the outsourcing party of the employee’s curriculum vitae and the employee’s requirements;
• To ensure that the salary paid to the outsourced employee is not lower than that of the employee of the outsourcing party having the same qualifications, doing the same job or doing work of equal value;
• Make a dossier clearly stating the number of employees that have been outsourced, the outsourcer and periodically report to the specialized labor agency affiliated to the People’s Committee of the province;
• Handling labor discipline for employees who violate labor discipline when the re-employment party returns the employee due to violation of labor discipline.

Penalties for violating the contents of the labor subleasing contract

Pursuant to Clause 2, Article 13 of Decree No. 12/2022/ND-CP stipulating the sanction for violations of the contents of the labor outsourcing contract as follows:

1. A fine of between VND 3,000,000 and 5,000,000 shall be imposed on the outsourcer who commits one of the following acts:

a) Failing to notify or instruct the outsourced employee to know one of the following contents: internal labor regulations; dangerous factors; harmful factors; measures to ensure occupational safety and health at the workplace and their other regulations;

b) Failing to organize occupational safety and health training for the outsourced employee as prescribed by law;

c) Failing to provide first aid and first aid to victims in a timely manner; failing to declare or investigate accidents when occupational accidents or technical incidents cause occupational safety and health insecurity for sub-contracted employees in accordance with law;

d) Discrimination in terms of working conditions towards the outsourced employee compared to his/her own employees.

2. A fine ranging from VND 40,000,000 to VND 50,000,000 shall be imposed on the outsourcer committing one of the following acts:

a) Using outsourced labor to do jobs that are not on the list of jobs to be performed for outsourcing;

b) Using outsourced workers provided by enterprises that do not have a labor outsourcing license or an expired labor outsourcing license;

c) Using outsourced labor to replace employees who are in the process of exercising the right to strike and settle labor disputes;

d) Using outsourced labor to replace employees who have been laid off due to changes in structure or technology; for economic reasons or division; Cup; unify; merger;

dd) Transfer of the subcontracted worker to another employer;

e) Employing the outsourced worker but having no specific agreement on the liability for compensation for occupational accidents and occupational diseases of the outsourced worker with the outsourcing enterprise;

g) Employing outsourced labor that does not fall into one of the following cases: temporary response to a sudden increase in demand for labor in a certain period of time; to replace employees during maternity leave, having a work accident, occupational disease or having to perform civic obligations; there is a need to employ highly qualified and technical workers.

3. A fine of between VND 1,000,000 and 3,000,000 shall be imposed on a labor outsourcing enterprise that commits one of the following acts:

a) Failing to compile a dossier specifying the number of outsourced employees and the outsourced party;

b) Failing to report the situation of labor subleasing as prescribed by law;

c) Failing to publicly post the original license at the head office and a certified copy of the original license at branches and representative offices (if any) of the sub-leasing enterprise;

d) Failing to send an authenticated copy of the license to the Department of Labor, War Invalids and Social Affairs where the enterprise operates in case the enterprise moves to another province to operate;

dd) Failing to cooperate with the outsourcing party in investigating an occupational accident that seriously injures an outsourced employee in accordance with law;

e) Failing to notify the subcontractor of the contents of occupational safety and health assurance in the outsourcing contract;

g) Failure to appoint someone to regularly supervise, coordinate or inspect the assurance of occupational safety and health for the outsourced employee.

Thus, when violating the contents of the labor subleasing contract, depending on the different acts and the seriousness of the acts, the law will prescribe each specific fine. Enterprises need to pay attention to the legal provisions related to labor subleasing contracts to avoid unwanted penalties.

Please see more:

• Do I have to pay the Insurance for work-related accident or occupational disease for domestic workers in Vietnam?
• Policy on the salary of employees by the law of Vietnam
• What are rights and obligations of employees and employers under Viet Nam Labor Law?

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