When signing a labor contract, there are many cases where the employer takes advantage of the ignorance of the employee to set up illegal agreements forcing the employee to comply. In order to help employees avoid the negative, in order to protect their rights, Lawyer X would like to summarize a number of unlawful agreements when signing labor contracts in Vietnam. Please read the article below!
Legal grounds
Labor Code 2019
Decree 12/2022/ND-CP
Regulations on labor contracts under current law?
- Labor contracts are signed on the principle of voluntariness and equality; accordance with the provisions of the labor law.
- Labor contracts include the following types: labor contracts with the indefinite term; definite term labor contracts from full 12 months to 36 months; seasonal, and seasonal or job-specific labor contracts with a term of less than 12 months.
- The labor contract must have the main contents such as the work to be done, the working time; rest time, salary, working location, contract duration; conditions on occupational safety, occupational hygiene and social insurance for employees.
- The labor contract takes effect from the date of signing; either from the date agreed upon by the two parties or from the date the employee starts working.
- During the performance of the labor contract, the contracting parties may agree to amend the content of the labor contract. In case there is a change in one of the main contents of working conditions; then the employee has the right to sign a new labor contract.
- The mode of entering into labor contracts; performance of a labor contract suspending the performance of a labor contract; termination of the labor contract as prescribed by the Labor Code 2019.
Agreement not to pay compulsory insurance
According to Article 168 of the Labor Code 2019, both employers and employees are responsible for participating in social insurance (social insurance), health insurance (HI) and unemployment insurance (UI).
Pursuant to Article 2 of the 2014 Law on Social Insurance, employees working under labor contracts for full 1 month or more will be required to participate in social insurance.
In case the employee is eligible to participate in social insurance but the parties agree not to pay insurance, both the employee and the employer will be fined for administrative violations according to Decree 12/2022/ND-CP as follows:
Workers:
Penalties for making agreements with employers who do not participate in compulsory social insurance and unemployment insurance.
– Fine: 500,000 – 01 million VND.
Pursuant to: Clause 1, Article 39 of Decree 12/2022/ND-CP.
Employer:
Penalties for paying social insurance and unemployment insurance premiums for not enough participants.
Penalty level: 12% – 15% of the total amount to pay compulsory social insurance and unemployment insurance at the time of making the administrative violation record, but not exceeding 75 million VND.
Pursuant to: Point c, Clause 5, Article 39 of Decree 12/2022/ND-CP.
Agreement not to work for another company
Due to the fear of “brain drain”, some companies have set up provisions requiring employees not to work for other companies.
However, Article 19 of the Labor Code clearly states:
- An employee may enter into many labor contracts with many employers but must ensure the full implementation of the signed contents.
- Employees who concurrently enter into many labor contracts with many employers, the participation in social insurance, health insurance and unemployment insurance shall comply with the provisions of the law on insurance social insurance, health insurance, unemployment insurance and occupational safety and hygiene.
Thus, employees have the freedom to sign labor contracts with many employers, as long as they ensure the full performance of the agreed work.
Therefore, it is completely unreasonable to ask employees not to work for another company. Infringing upon employees’ freedom to choose jobs and workplaces. Therefore, this agreement will not be recognized by law.
Commit not to get married or have children
In order to limit the interruption of production and business due to maternity leave, some companies have asked Italian employees to commit not to become pregnant or give birth during the first years of work.
However, this commitment violated citizens’ right to family planning as stated in Ordinance No. 08/2008/PL-UBTVQH12, amending Article 10 of the Ordinance on Population 06/2003/PL- UBTVQH11:
Rights and obligations of each couple and individual in the implementation of population mobilization and family planning, and reproductive health care: 1. Decide when and how far to give birth.
Therefore, even if the employee agrees, this commitment has no legal value.
On the other hand, Clause 3, Article 137 of the Labor Code 2019 also stipulates that an employer is not allowed to unilaterally terminate a labor contract with an employee for reasons of marriage, pregnancy, or maternity leave.
If intentionally violating, the employer will be fined from 10 to 20 million VND (according to point i, clause 2, Article 28 of Decree 12/2022/ND-CP).
Commit to long-term working for the company
In order to prevent employees from changing jobs after getting used to the job, many companies have asked employees to sign a long-term commitment, usually from 3 to 5 years. And do not leave work before the due date or you will have to pay compensation.
According to Point a, Clause 1, Article 5 of the 2019 Labor Code, employees have the right to freely choose jobs, workplaces, occupations, apprenticeships, and improve their professional qualifications.
If you have signed a labor contract with a definite term or an indefinite term contract. The employee also has the right to unilaterally terminate the employment contract.
Pursuant to Article 35 of the Labor Code 2019, the employee has the right to unilaterally terminate the labor contract ahead of time without reason. As long as the conditions of advance notice are met. The employee only has to pay compensation if unilaterally terminating the labor contract illegally.
Thus, it can be seen that the long-term commitment has violated the employee’s right to unilaterally terminate the labor contract. So even if the employee signs, this agreement is not recognized by the law.
Note: If in the process of working, the employee is sent to an apprenticeship. Vocational training at the expense of the employer. At the same time, the parties have a commitment to the working time after returning from training. Then the employee is forced to comply with the commitment.
Agreement not to work for a rival company
According to Clause 1, Article 10 of the Labor Code 2019, employees have the right to freely choose a job, work for any employer and in any place not prohibited by law. At the same time, Clause 6, Article 9 of the Employment Law 2013 also prohibits acts of obstructing, causing difficulties or damaging the legitimate rights and interests of employees and employers.
Therefore, employers cannot force employees to commit not to work for a rival company. Even if the employee signs it, this agreement is not legally valid.
However, if the employee does work that is directly related to the trade secret. Technological secrets of employers. Then the employer has the right to agree in writing with that person on the time limit for protecting business secrets. Protecting technology secrets, rights and compensation for violations. This is considered a legal agreement.
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Please see more
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- Labor contract in accordance with Vietnamese law
- In Vietnam, are employers allowed to enter into labor contracts with 15-year-olds?
Frequently asked questions
Resolution 17/2022/UBTVQH15 allows employers to use overtime workers over 200 hours. But not exceeding 300 hours/year, except in the case of minor employees. Disabled employees, employees working in heavy and hazardous industries, occupations or jobs. Dangerous or pregnant female workers from the 7th month (or the 6th month if working in remote, border areas, islands).
The law only stipulates the minimum time an employee must give notice before unilaterally terminating the labor contract.
If the employer requires the employee to notify him/her in advance, a period longer than the above minimum. This agreement will have no legal effect.
Conclusion: So the above is Unlawful agreements when signing labor contracts in Vietnam. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
