Hello Lawyer! Currently, I am working as a worker at a garment company. However, the company often forces overtime. Our workers are very tired. So, how are enterprises that violate working time be penalized? Hope the lawyer can answer for us. Thank you! LSX Lawfirm will give you an article about: “Penalties for violation of the working time of enterprises in Vietnam”, as follows:
Legal grounds
Decree 145/2020/ND-CP
Labor Code 2019
Decree 28/2020/ND-CP
Regulations on non-working time of employees in Vietnam
Regulations on working time of employees are based on the Labor Code 2019. The rest time of employees includes:
- Rest during working hours: employees work according to the prescribed working hours from 06 hours or more in a day; then have a break at least 30 minutes continuously; working at night, they entitled to a break of at least 45 minutes continuously. In case employees work in continuous shifts for 06 hours or more; then the break time is counted in working hours.
- Shift break: shift workers entitled to at least 12 hours off before changing to another shift
- Weekly rest: Every week, employees entitled to at least 24 consecutive hours of rest. In special cases, due to the working cycle, it is not possible to take a weekly break; then the employer is responsible for ensuring that the employee entitled to at least 04 days off per month on average.
- Holidays and New Year holidays: Employees entitled to rest on public holidays according to regulations such as New Year’s Day, National Day, etc.
- Annual leave: an employee who has worked for full 12 months for an employer entitled to annual leave; receive full salary according to the labor contract
- Annual leave increases according to working seniority: Every 5 years working for an employer; then the number of annual leave days of employees as prescribed (Clause 1, Article 113 of the Labor Code 2019) increased by 01 day respectively.
- Leave work, leave without pay
How is overtime pay calculated in Vietnam?
In addition to regulations on working time, overtime wages are also specified. Clause 1, Article 107 of the Labor Code 2019 stipulates. Overtime is a period of working time outside of normal working hours as prescribed by law, collective bargaining agreement or labor regulations.
Pursuant to Clause 1, Article 98 of the Labor Code 2019. In case the employer requires the employee to work outside of normal working hours, the employee who works overtime paid a salary calculated according to the salary unit price or the actual salary paid according to the work done as follows: On weekdays, at least equal to 150%; on weekly rest days, at least by 200%; on public holidays, New Year’s Day and paid holidays, at least equal to 300%, excluding the salary for holidays, Tet and paid holidays for employees who receive daily salary.
Regulations on working time of employees in Vietnam
According to the provisions of the Labor Code 2019, the normal working time shall not exceed 08 hours in a day and not more than 48 hours in a week. The employer has the right to determine the working hours per day; or weeks but must notify the employee; In the case of a week, the normal working time shall not exceed 10 hours in a day and not more than 48 hours in a week.
The State encourages employers to implement a 40-hour work week for employees. Employers are responsible for ensuring that the working time limit for exposure to dangerous and harmful factors strictly complies with national technical regulations and relevant laws. For night working hours, calculated from 10 pm to 6 am the next day.
You can also refer to the article related to regulations for foreign workers working or Procedures for application for license working services in Vietnam.
Penalties for violation of the working time of enterprises in Vietnam
Decree 28/2020/ND-CP stipulating penalties for administrative violations in the field of labor for acts of failing to ensure working and resting hours. Businesses specifically penalized:
- A fine of between 4 million and 10 million dong. For acts of failing to ensure employees rest during working hours or shift shifts.
- A fine of between 20 million and 40 million dong. For the employer violating the weekly leave; or holiday.
- A fine ranging from VND 40 million to VND 50 million. For the employer who overworks the working hours as prescribed by law.
- Fines imposed on employers who mobilize employees to work overtime in excess of the prescribed hours. The fine level depends on the number of employees violating. Specifically:
- A fine of between 10 million and 20 million dong. With violations from 01 to 10 employees.
- A fine of between 20 million and 40 million dong. With violations from 11 to 50 workers.
- A fine of between 40 million and 80 million dong. With violations from 51 to 100 workers.
- A fine of between VND 80 million and VND 120 million. With violations from 101 to 300 workers.
- A fine of between 120 million and 150 million dong. With violations from 301 employees or more.
Related questions
For illegal dismissal of employees, depending on the case, the violators may be fined from 10 to 100 million dong, non-custodial reform for up to 1 year or imprisonment for 3 months. months to 1 year, even a fine of 100-200 million dong or imprisonment from 1 year to 3 years. Offenders may also be banned from holding certain posts for one to five years.
a) The employer must prove the fault of the employee;
b) There must be participation of the representative organization of the labor collective at the grassroots level;
c) Employees must be present and have the right to defend themselves, ask a lawyer or other people to defend; in the case of a person under 18 years of age, the participation of his/her father, mother or legal representative is required;
d) The handling of labor discipline must be recorded in writing.
Pursuant to the Employment Law and Decree 28/2015/ND-CP stipulating the application for unemployment insurance benefits includes:
– An application form for unemployment benefits (made according to the form);
– The original or a certified copy of the labor contract; Or decide to lay off…
– Social insurance book
– 2 photos 3 x 4
– ID card, household registration book/temporary residence book, photocopy if applying for entitlement at the place of residence and attach the original for comparison
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