OVERVIEW OF NEW REGULATIONS IN 2019 LABOR CODE - Tổng hợp toàn bộ điểm mới của Bộ luật lao động 2019
For your convenience in studying, learning and accessing updated information about highlights of the Labor Code, below is the summary chart of differences between the 2019 Labor Code (in force from January 1, 2021) and the 2012 Labor Code (currently in force).
>>> Reading in Vietnamese: Tổng hợp toàn bộ điểm mới của Bộ luật lao động 2019
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EMPLOYMENT
CONTRACT
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8. Form of conclusion of employment contracts
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According to Article 16 prescribing forms of conclusion of
employment contracts
“2. For temporary jobs with duration of under 3 months, the
parties may enter into a verbal labor contract.
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Clause 2 of Article 14 prescribes that employment
contracts can be concluded in oral form as follows:
“Both contracting parties may conclude employment
contracts in oral form with respect to under-1-month employment contracts,
except the following cases:
- (clause 2 of Article 18) With respect to seasonal jobs
or certain work lasting less than 12 months, a group of employees aged at
least 18 years can authorize an employee in the group to conclude employment
contracts;
- (point a of clause 1 of Article 145) Employment
contracts with employees under 15 years of age and their legal
representatives must be concluded in documentary form;
- (clause 1 of Article 162) Employers must conclude
employment contracts in documentary form with employees who are hired as domestic
workers.
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Article 16 prescribes forms of conclusion of employment
contracts, including the following 2 forms:
- Documentary form;
- Oral form.
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The new labor code adds one more form of conclusion of
employment contract, that is to say electronic form. This allows sending
messages conveying data as prescribed by laws on electronic transactions
which have the same value as those employment contracts concluded in
documentary form.
This means that, from January 1, 2021, there will be 3
forms of conclusion of employment contracts, including: Documentary form,
oral form and electronic form.
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9. Employers are not allowed to compel employees to work
as repayment of debts
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Article 20 prescribes 2 acts that employers are prevented
from committing during the process of conclusion and execution of employment
contracts:
1. Keeping the employees’ original identity cards,
diplomas and certificates.
2. Requesting employees to make a deposit in cash or
property as security for the performance of labor contracts.
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Article 17 in the new labor code prescribes that employers
are prevented from committing 3 prohibited acts while clause 3 adds one more
prohibited act as follows:
“3. Compelling employees to obey employment contracts in
order to repay debts to employers”
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10. Additional condition relating to the probationary
period of employees is regulated
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Article 27 prescribes that the probationary period varies
based on the nature and complicatedness of job positions, but an employee may
make only one job probation effort for a specific work and must meet the
following requirements:
1. Such probation lasts for the maximum period of 60 days
with regard to employees hired to hold professional titles conforming to
professional and technical qualification requirements which are at least
associate degrees.
2. Such probation last for the maximum period of 30 days
with regard to employees hired to hold professional titles requiring
secondary or postsecondary vocational qualifications, technical workers and
operation staff.
3. Such probation lasts for the maximum period of 6
working days with regard to other job positions.
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The new labor code sets out the following regulations: The
probationary period must be agreed upon between parties based on the nature
and complicatedness of job positions. An employee may make only one job
probation effort for a specific work which must meet the following 4
requirements which are one greater than previously as follows:
Each probation lasts for the maximum duration of 180 days
with regard to employees hired to hold corporate administration positions as
provided in the Law on Enterprises, the Law on Management and Use of State
Capital Investments in Enterprises”
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11. Cases of temporary suspension from execution of
employment contracts
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Article 32 prescribes 5 cases in which execution of employment
contracts can be temporarily suspended as follows:
1. The employee is called up for military service.
2. The employee is held in custody or detention in
accordance with the criminal procedure law.
3. The employee is subject to a decision on application of
the measure of consignment to a reformatory, compulsory drug detoxification
center or compulsory education institution.
4. The female employee is pregnant in accordance with
Article 156 of this Code.
5. Other cases as agreed upon by the two parties.
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Article 30 prescribes 08 cases in which execution of employment
contracts can be temporarily suspended as follows:
a) The employee is called up for military or militia
or self-defence service;
b) The employee is held in custody or detention in
accordance with the criminal procedure law;
c) The employee is subject to a decision on
application of the measure of consignment to a reformatory, compulsory drug
detoxification center or compulsory education institution.
d) The female employee is pregnant in accordance with
Article 138 of this Code.
dd) The
employee is appointed to a manager of a single-member limited liability
company of which charter capital is wholly owned by the State;
e) The
employee is authorized to implement rights and responsibilities of representatives
of owners of state capital invested in enterprises;
g) The
employee is authorized to implement rights and responsibilities on behalf of
enterprises to an enterprise’s share of capital invested in another
enterprise;
h) Other cases as agreed upon by the two parties.
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12. 3
cases of termination of employment contracts are added
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Article
36 in the existing Labor Code stipulated 10 contract termination cases,
specifically including:
1. The
labor contract expires, except the case specified in Clause 6, Article 192 of
this Code.
2. The
work stated in the labor contract has been completed.
3. Both
parties agree to terminate the labor contract.
4. The
employee fully meets the requirements on the time of payment of social
insurance premiums and the age of retirement stated in Article 187 of this
Code.
5. The
employee is sentenced to imprisonment or death or is prohibited from
performing the job stated in the labor contract under a legally effective
judgment or ruling of a court.
6. The
employee dies or is declared by a court to have lost civil act capacity, be
missing or dead.
7. The
individual employer dies or is declared by a court to have lost civil act
capacity, be missing or dead; the institutional employer terminates
operation.
8. The
employee is dismissed under Clause 3, Article 125 of this Code.
9. The
employee unilaterally terminates the labor contract under Article 37 of this
Code.
10. The
employer unilaterally terminates the labor contract under Article 38 of this
Code; the employer lays off the employee due to structural or technological
changes or because of economic reasons, merger, consolidation or division of
the enterprise or cooperative.
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Article
34 in the new Labor Code prescribes 13 cases of contract termination,
specifically including the following additional cases:
5.
The employee who is a foreigner working in Vietnam is expelled according to
the Court’s judgement or decision already in force, or a competent regulatory
authority's decision.
7. The
employee dies or is declared by a court to have lost civil act capacity, be
missing or dead. The non-individual employer closes
their business or are warned by a business registry under the control of a
provincial People’s Committee of not having a legal representative or a
person authorized to implement rights and obligations on behalf of the legal
representative.
12.
Work permit expires if the employee is a foreigner working in Vietnam under
Article 156 in this Code.
13.
The employment contract may be terminated if the employee at his/her fault fails
to meet probationary work requirements specified in an employment contract,
or either party cancels any probation agreement.
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13. Employees
may unilaterally terminate their employment contracts without prior notice
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The
provision “When unilaterally terminating employment contracts…” prescribed in
clause 2 of Article 37 says that: Employees shall be
obliged to send employers prior notice for:
at
least 30 days in case of fixed-term employment contracts; at least 03 working
days in case of seasonal or task-based contracts lasting for 12 months
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Clause
2 of Article 35 in the new labor code prescribes that employees are entitled
to unilaterally terminate employment contracts without prior notice if they
fall into 7 specific cases.
Click
here for more details.
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14. Employees
may authorize others to receive wages or salaries on their behalf.
Employers
are not allowed to compel employees to purchase their goods or services
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Article
96 in the existing labor code prescribes the following payment principles:
An
employee must be paid with a full wage in a direct and timely manner.
In
special cases in which an employer cannot pay a wage on time to an employee,
the employer may not postpone the payment for more than 1 month and shall pay
the employee with an additional amount at least equal to the deposit interest
rate announced by the State Bank of Vietnam at the time of wage payment.
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Article
94 in the new labor code provides additional regulations on wage payment
principles
The
employer must pay wages or salaries to the employee in a direct, full and
timely manner.
If
the employee is unable to receive wages or salaries in person, the employer
must pay wages or salaries to the employee’s legal representative.
The
employer is not allowed to restrict or intervene in rights to spend the
employee's wages or salaries; is not allowed to compel the employee to spend
wages or salaries on buying goods or services of the employer or any entity
designated by the employer.
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WAGES
AND SALARIES
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15. Employers are not required to submit their payrolls to
competent regulatory authorities
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The existing labor code sets out the following
regulations:
When formulating the wage scale, wage table and labor
norms, an employer shall consult the representative organization of the
grassroots-level employees’ collective and publish this information at the
workplace of the employees before implementation, and concurrently send them
to the district-level state management agency of labor of the locality in
which the employer’s production and business establishments are located.
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According to the new labor code, Article 93 prescribes
responsibility for formulation of the employer’s pay scale or table as
follows:
The
employer must consult the employee’s representative association operating
within a company establishing the representative association during the
period of formulation of pay scale or table and labor norms.
The pay scale or table and labor norms must be publicized
at workplace before their effective date.
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16. Employers must pay fees related to opening of accounts
and transfer of wages or salaries to employees
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According to the existing labor code, clause 2 of Article
94 prescribes that:
Wage may be paid by cash or via the employee’s personal
account opened at a bank.
In case the wage is paid into the bank account, the
employer shall negotiate with the employee on any fees related to the opening
and maintenance of the account.
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In the new labor code, Article 96 sets out the following regulations:
Wage may be paid by cash or via the employee’s personal
account opened at a bank.
In case wage is paid into the personal account opened at
bank, the employer must pay fees relating to opening of such account and
transfer of wages or salaries.
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17. Employers must send pay statements to employees
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There is none of existing regulations on this matter.
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In the new labor code, Article 95 sets out the following
regulations:
“In each payment of wage or salary, the employer must send
the employee a pay statement, which clarifies amount of wage or salary,
overtime pay, overnight pay, description of amount to be withheld and
withheld amount (if any)”
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18. Employee’s bonuses may be non-cash
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In the existing labor code, Article 103 sets out the following regulations on
bonuses:
“1. Bonus is a sum that the employer pays the employee as
a reward, based on annual business income and employee performance”
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In the new labor code, Article 104 sets out the following
regulations:
“1. Bonus is a monetary amount or property or a reward
paid in other form that the employer pays the employee, based on business
income or the employee's performance."
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19. Additional cases in which employees may be paid in
advance
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Article 100 in the existing labor code prescribes that the
employee is entitled to advance payment of wage or salary in either following
cases:
- An employee may be given a wage in advance according to
the conditions agreed upon by the two parties (clause 1).
- An employer shall advance a wage amount to an employee
corresponding to the number of days off which the employee takes to perform
citizens’ obligations from 1 week to 1 month at most. The employee shall
refund this advance amount, except the case that he/she performs military
services (clause 2).
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Article 101 in the new labor code adds one more case: When
taking annual leave, the employee is entitled to advance payment amount at
least equal to wage or salary paid in his/her day-off (clause 3).
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WORK
AND REST TIME
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20. Employers are responsible for meeting limits on time
of work in contact with dangerous or hazardous elements
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In the existing labor code, clause 3 of Article 104
prescribes that:
3. The working time must not exceed 6 hours per day for
employees who perform extremely heavy, hazardous or dangerous jobs on a list
issued by the Ministry of Labor, War Invalids and Social Affairs in
coordination with the Ministry of Health.
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The 2019 Labor Code sets out new regulations on the
timelength of each employee’s work in contact with dangerous or hazardous
elements in clause 3 of Article 105 as follows:
Employers are responsible for ensuring that limits on
timelength of work in contact with dangerous or hazardous elements as
prescribed in relevant national technical regulations and laws are met.
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21. Overtime hours per month is increased to 40 hours
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In the existing labor code, Article 106 sets out the
following regulations:
Ensuring that the number of overtime working hours of the
employee does not exceed 50% of the normal working hours per day;
In case of applying regulations on weekly work, the total
of normal working hours and overtime working hours must not exceed 12 hours
per day; does not exceed 30 hours per month and the total of overtime working
hours must not exceed 200 hours per year, except some special cases as
stipulated by the Government in which overtime working hours must not exceed
300 hours per year;
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In the new labor code, point b of clause 2 of Article 107
sets out the following regulations:
Ensuring that the number of overtime working hours of the
employee does not exceed 50% of the normal working hours per day;
In case regulations on normal working hours per week are
applied, an aggregate of normal working hours and overtime working hours
shall not exceed 12 hours per day; 40 hours per month;
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22. Weekly days-off of employees are increased
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Article 110 prescribes that an employee is entitled to a
break of at least 24 consecutive hours.
In case it is impossible for an
employee to have a weekly break due to the cycle of work, the employer shall
ensure an employee has at least 4 days off on average in a month.
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In the new labor code, Article 111 adds new regulations on
cases where weekly days-off coincide with prescribed lunar new year or
national holidays, an employee may take compensatory weekly days-off falling
on the succeeding working days.
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23. Regulations on fully-paid leave of underage employees
and employees working less than 12 months
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Article 111 in the existing labor code prescribes that An
employee who has been working for an employer for full 12 months is entitled
a fully paid annual leave as stated in his/her labor contract as follows:
a) Twelve working days for an employee working in normal
conditions;
b) Fourteen working days for an employee doing a heavy,
hazardous or dangerous job; or an employee working in a place with harsh
living conditions;
c) Sixteen working days for an employee doing an extremely
heavy, hazardous or dangerous job; an employee working in a place with
extremely harsh living conditions.
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The 2019 Labor Code adds regulations on days-off of
underage employees and employees not yet working for 12 months in full in
Article 113 as follows:
- 14 days-off for underage employees, employees who are
disabled or work under arduous, toxic and hazardous condition;
- An employee who has not yet worked for 12 months in full
for an employer is entitled to the number of annual days-off in proportion to
his/her working month.
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24. Cases of fully-paid personal leave are added
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In the existing labor code, Article 116 prescribes that an
employee is entitled to fully-paid personal leave in the following cases:
a) Marriage: 3 days;
b) Marriage of his/her child: 1 day;
c) Death of a blood parent or a parent of his/her spouse,
his/her spouse or child: 3 days.
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In the new labor code, the case of “marriage of the
employee’s child” are provided (point b of clause 1 of Article 116 "b)
Marriage of his/her child: 1 day”) now covers both foster and natural child.
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25. Two days-off on National Day celebration
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In the existing labor code, Article 115 sets out the
following regulation:
“dd) Employees can take only one day-off to celebrate the
National Day (on September 2 in the solar calendar year);”
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In the new labor code, Article 112 sets out the following regulations:
“dd) Employees can take two days-off to celebrate the
National Day (on September 2 and the preceding or subsequent day in the solar
calendar year);”
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LABOR
DISCIPLINE AND MATERIAL RESPONSIBILITY
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26. 4 regulations on protection of employee rights are
added to labor regulations
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In the existing labor code, Article 118 deals with labor etiquette,
comprising the following main points:
a) Work and rest time;
b) Workplace order;
c) Occupational safety and hygiene at workplace;
d) Protection of property and trade secret, technology and
intellectual property secret for employers;
dd) Acts of violation against labor discipline committed
by employees and sanction forms and material responsibility.
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The new labor code provides 4 additional regulations
(Article 119):
d) Prevention and control of sexual harassment at
workplace; processes and procedures for handling of sexual harassment at
workplace;
e) Cases in which employees may be temporarily transferred
to other work in comparison with the work mentioned in the employment
contract;
h) Material responsibility;
i) Persons having competence in handling issues arising
from labor discipline.
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27. Sanction imposed in “removal from office" form is
added
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In the existing labor code, Article 125 prescribes forms
of sanction against breach of labor discipline, including 3 types of sanction
as follows:
1. Reprimand.
2. Prolongation of the wage rise period for no more than 6
months; removal from office.
3. Dismissal.
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In the new labor code, Article 124 sets out additional
regulations on handling of violation against labor discipline in "3.
Removal from office”.
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28. Government regulates processes, procedures and
statutes of limitation for compensation for employees
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In the existing labor code, clause 2 of Article 131
regulates that “2. Processes, procedures and statutes of limitation for
compensation shall be subject to Article 123 and 124 in this Labor Code”
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In the new labor code, clause 2 of Article 130 sets out
the following regulations: “2. Government regulates processes, procedures and
statutes of limitation for compensation for employees”.
This means new regulations focus more on employee’s rights
and interests concerning payment of compensation for employees.
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PARTICULAR
PROVISIONS FOR FEMALE WORKERS AND ASSURANCE OF GENDER EQUALITY
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29. Rights to unilateral termination or temporary
suspension of employment contracts of pregnant female workers
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In the existing labor code, Article 156 sets out the
following regulations:
“In case a pregnant employee has a certificate of a
competent health establishment which states that continued work will
adversely affect her pregnancy, she may unilaterally terminate the labor
contract or temporarily postpone the performance of the labor contract. The
period for the female employee to give advance notice to the employer depends
on the period determined by the competent health establishment.
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In the new labor code, Article 138 adds clause 2 on rights
of female employees as follows:
“2. In case of temporary postponement of employment
contract, the time of such temporary postponement will be subject to an
agreement between the employee and the employer, but must be at least equal
to the time during which the authorized health establishment prescribes the
employee temporary leave from work.
Without the authorized health establishment’s prescription
for the employee’s leave, both parties must agree on the time of temporary
suspension of execution of their employment contract”.
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30. Provisions on paternity leave policy for male workers
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In the existing labor code, Article 157 only has
regulations on maternity leave for female workers.
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In the new labor code, clause 5 is added to Article 139 to
regulate paternity leave policy for male workers as follows: “5. If a male
employee’s wife is born to a child; an employee adopts a child aged under 6
months; a female employee is a surrogate mother; or an employee is an
intended mother, he/she will be entitled to maternity/paternity leave policy
in accordance with laws on social insurance".
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PARTICULAR
PROVISIONS FOR UNDERAGE AND OTHER EMPLOYEES
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31. Underage employees
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In the existing labor code, Article 161 sets out the
following regulations:
“Underage employees are workers under 18 years”.
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Article 143 in the new labor code provides more details on
regulations for underage employees as follows:
2. Persons aged from 15 years to below 18 years do not
work or work at workplaces prescribed in Article 147 herein.
3. Persons aged from 13 years to under 15 years are offered
light work classified according to the list approved by the Minister of
Labour, War Invalids and Social Affairs.
4. Persons not reaching 13 years are allowed to do work
prescribed in clause 3 of Article 145 in this Labor Code.
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32. Signing fixed-term employment contracts with the
elderly in multiple times is permitted
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In the existing labor code, clause 3 of Article 106 sets
out the following regulations:
2. The elderly employee is entitled to shortened work time
each day or part-time work regime.
3. In the final year before retirement, the elderly
employee is entitled to shortened work time or part-time work regime.
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In the new labor code, additional regulations are set out
in specific clauses as follows:
2. The elderly employee is entitled to negotiate with the
employer about shortened work time each day or part-time work regime.
3. As a state incentive policy, the elderly employees are
offered work designed for their health condition in order to assure their
labor rights and effective use of human resource.
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33. Additional regulations on extension of the validity
period of foreign employee’s work permit
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In the existing labor code, Article 173 prescribes that
the maximum validity period of foreign employee's work permit for working in
Vietnam is 2 years.
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In the new labor code, Article 155 prescribes that the
maximum validity period of work permit of foreign employee working in Vietnam
is 02 years, and may be extended to the maximum period of 02 years.
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34. Increases in retirement age for employees are made
according to the schedule
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In the existing labor code, Article 187 sets out the
following regulations:
1. An employee who meets the conditions on the period of
payment of social insurance stipulated by the law on social insurance is
entitled to a pension when reaching full 60 years of age, for males, or full
55 years of age, for females.
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The new labor code prescribes increases in retirement age
according to the schedule, specifically including clause 2 of Article 169
setting out the following regulations:
2. According to the schedule of adjustment to mandatory
retirement age, male employees hired in ordinary working condition will
retire at 62 years of age by 2028 while female employees hired in ordinary
working condition will retire at 60 years of age by 2035.
From 2021 onwards, mandatory retirement age of male and
female employees hired in ordinary working condition will be 60 years and 3
months, and 55 years and 4 months, respectively; in each subsequent year, 3
months and 4 months will be added, respectively, to mandatory retirement age
of male and female employees.
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RESOLUTION
OF LABOR DISPUTES
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35. Labor strikes and settlement of labor strikes
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In the existing labor code, Article 209 sets out the
following regulations:
“1. Strike is a temporary, voluntary and organized work
stoppage of an employees’ collective in order to achieve their demands in the
process of labor dispute settlement.
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The new existing labor code prescribes additional cases in
which employees make go on strike in Article 199 as follows:
1. Mediation efforts are proved unsuccessful or, if the
period of mediation expires (5 working days of labor mediator's receipt of
request from the party requesting settlement of dispute or from competent
authority as provided in clause 2 of Article 188 in this Labor Code), such
labor mediator has not yet taken any action;
2. Labor arbitrator panel has not yet been established or
has been established but not issued any decision on settlement of dispute, or
the employer as the disputing party has rejected the judgement on settlement
of dispute made by the labor arbitration panel.
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36. Procedures for collection of labor collective’s
opinions
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In existing regulations, clause 2 of Article 212
prescribes opinions may be collected by using written forms or signatures
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In the new labor code, clause 3 of Article 201 prescribes
that opinions are collected directly by using written forms or signatures or
in other form.
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Clause 4 of this Article sets out the following
regulations:
“The time and method of collecting opinions on going on a
strike must be determined by the executive committee of the trade union and
notified to the employer at least 1 day in advance.”
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Similarly, clause 4 of this Article in the new labor code
adds more regulations in order to assure the employer’s rights as follows:
“4. Time, location and method of collection of opinions about a strike
shall be decided by an organization representing employees and must be informed
the employer at least 1 day in advance. The collection of opinions is
required not to affect normal production and business activities of the
employer. The
employer shall not be allowed to cause any difficulty, hinder or intervene in
the opinion poll organized by the organization representing employees”
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37. The number of receivers of notice of temporary closure
of workplace is reduced
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In the existing labor code, Article 216 prescribes that,
at least 03 working days prior to temporary closure of workplace, the
employer must publicly inform the decision on temporary closure at workplace
and to 5 entities or organizations, including:
1. Executive Committee of trade union organizing and
leading strikes;
2. Provincial-level Trade Unions;
3. Employer’s representative organizations;
4. Regulatory authorities over labor affairs at the
provincial level;
5. People’s Committees of districts where employee’s
companies are located.
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In the new labor code, Article 205 prescribes reduction in
the number of recipients of notice from companies to 3 entities or
organizations, including:
1. Organizations representing employees that are
organizing and leading strikes;
2. People’s Committees of provinces where workplaces are
planned to be closed;
3. People’s Committees of districts where workplaces are
planned to be closed.
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