Hello Lawyer X. I have a question as follows, I hope to be answered by a lawyer, I have been working at a private company for 8 months but the company has not signed an employment contract with me. Is this behavior of the company illegal? If yes, what is the penalty when the company does not sign a labor contract with the employee? Besides, is the salary specified in the labor contract? Looking forward to the lawyer’s answer, I sincerely thank you!
Thank you for sending your question to Lawyer X. In the article below, we will answer your questions. Hope this article brings many useful things to readers.
Legal grounds
- Labor Code 2019
- Decree 12/2022/ND-CP
What is an employment contract?
According to the provisions of Clause 1, Article 13, the labor contract is stipulated as follows:
- Labor contract is an agreement between an employee and an employer on paid jobs, wages, working conditions, rights and obligations of each party in the labor relationship.
In case two parties agree by another name but with contents showing paid employment, salary and the management, administration and supervision of one party, it shall be considered as an employment contract.
In there:
– An employee is a person who works for an employer under an agreement, is paid a salary and is subject to the management, administration and supervision of the employer.
– Employer is an enterprise, agency, organization, cooperative, household or individual that hires or employs employees to work for them as agreed upon; In case the employer is an individual, he/she must have full civil act capacity.
– The labor contract will take effect from the date of signing by the two parties, unless otherwise agreed by the two parties or provided for by law.
Is the company required to enter into a labor contract with the employee?
According to Article 14 of the Labor Code 2019, the form of labor contract is as follows:
“Article 14. Form of labor contract
- The labor contract must be entered into in writing and made into 02 copies, the employee keeps 01 copy, the employer keeps 01 copy, except for the case specified in Clause 2 of this Article.
An employment contract entered into via electronic means in the form of a data message in accordance with the law on electronic transactions has the same value as a written labor contract.
- The two parties may enter into a verbal labor contract for a contract with a term of less than 1 month, except for the cases specified in Clause 2, Article 18, Point a, Clause 1, Article 145, and Clause 1, Article 162 of the Ministry. this law.”
Thus, according to the above provisions, the company must enter into a written contract for contracts with a term of full 1 month or more. Therefore, in case you have been working for 08 months and the company does not sign a contract, it is a violation of the law.
Is it possible to ask the company to specify the salary in the labor contract?
Clause 1, Article 21 of the Labor Code 2019 provides for the content of a labor contract, whereby a labor contract must have the following main contents:
– Name and address of the employer and the full name and title of the person entering into the labor contract on the employer’s side;
– Full name, date of birth, gender, place of residence, number of citizen identification card, identity card or passport of the person entering into the labor contract on the employee’s side;
– Work and place of work;
- The term of the labor contract;
- Salary according to job or title, form of salary payment, time limit for salary payment, salary allowance and other additional amounts;
- The mode of promotion, salary increase;
- Working time, rest time;
- Labor protection equipment for employees;
- Social insurance, health insurance and unemployment insurance;
- Training, fostering, improving professional qualifications and skills.
According to the above regulations, salary is the content that must be specified in the labor contract. Therefore, when signing a contract, the company is responsible for stating the salary for you in the contract without the employee having to ask.
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?
What is the penalty when the company does not sign a labor contract with the employee?
Pursuant to Clause 1, Article 9 of Decree No. 12/2022/ND-CP stipulating penalties for violations of regulations on entering into labor contracts, specifically as follows:
- A fine shall be imposed on the employer when there is one of the following acts: entering into an unwritten labor contract with the employee doing the job with a term of full 1 month or more; enter into a non-written labor contract with a person authorized to conclude a contract for a group of employees aged full 18 years or older who do seasonal work or certain jobs with a term of less than 12 months specified in Clause 1 of this Article. Clause 2, Article 18 of the Labor Code; entering into the wrong type of labor contract with the employee; entering into an incomplete labor contract with the main contents of the labor contract as prescribed by law at one of the following levels:
– From VND 2,000,000 to VND 5,000,000 for violations from 01 to 10 employees;
– From VND 5,000,000 to VND 10,000,000 for violations of between 11 and 50 employees;
– From 10,000,000 VND to 15,000,000 VND for violations from 51 to 100 employees;
– From 15,000,000 VND to 20,000,000 VND for violations from 101 to 300 employees;
– From 20,000,000 VND to 25,000,000 VND for violations of 301 employees or more.
Note: according to Clause 1, Article 6 of Decree No. 12/2022/ND-CP, the fines specified above are fines for individuals. The fine level for organizations is equal to 02 times the fine level for individuals.
At the same time, at Point a, Clause 3, Article 9 of Decree 12/2022/ND-CP stipulating remedial measures for violations of regulations on entering into labor contracts as follows:
“a) Forcing the employer to enter into a written labor contract with the employee when entering into a non-written labor contract with the employee to do the job with a term from full 1 month; or higher specified in Clause 1 of this Article;”
Thus, in case you have worked for nearly 6 months but the company does not enter into a written labor contract with you, the company may be sanctioned for administrative violations, the sanction level depends on the number of employees. Employees that the company violates, specifically, shall comply with the above provisions. In addition to being fined, the company is also required to apply the remedial measure of having to enter into a written labor contract for employees who have worked for full 1 month or more.
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Frequently asked questions:
An employment contract is an agreement between an employee and an employer on paid employment, wages, working conditions, rights and obligations of the parties in the employment relationship.
Voluntary, equal, goodwill, cooperative and honest.
Freedom to enter into labor contracts but not against the law, collective labor agreement and social ethics.
According to the provisions of Article 14 of the Labor Code 2019, a labor contract can be entered into in the following three forms:
Contract in writing;
– Committing through electronic means in the form of data messages;
– Entering into verbal labor contracts for contracts with a term of less than 1 month
Conclusion: So the above is Penalties when the company does not sign a labor contract in Vietnam. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
