Regulations on Pay to Employees Working During Lunar New Year Holiday

Regulations on Pay to Employees Working During Lunar New Year Holiday

Under the provisions of Article 106.1 of the Labor Code 2012, overtime is a period of work outside normal working hours prescribed by law or according to a labor agreement or regulation. Depending on the needs and agreement of the two parties, the enterprise may request employees to work overtime during lunar new year (Tet) holiday, but must not exceed 12 hours in a day and must pay overtime as prescribed by law.

According to Article 25 of Decree No. 05/2015 / ND-CP, the salary for overtime work on lunar new year holiday for employees is prescribed as follows:

An employee who works overtime in the daytime of the lunar new year holiday is entitled to at least 300% of the normal day salary, excluding the salary on that new year holiday if the employee receives wages.

Employees who work overtime at night during lunar new year holiday, apart from enjoying 300% of the normal daily salary, excluding the salary, if the employee receives a daily salary, the employee is also paid at least 30% extra of the average daily wage, and 20% extra of the of the lunar new year holiday pay rate.

In particular, night working hours are calculated from 10:00 pm to 6:00 am of the following day.

For employees who work overtime on the same day as lunar new year holiday, they shall receive overtime pay according to lunar new year holiday; if the lunar new year holiday is the same as a weekly holiday, pay overtime is same as pay for work in weekend.

In addition, when making overtime workers, the enterprise must pay attention to the maximum number of overtime hours a day and must organize compensatory leave for employees as prescribed in Article 106 of the Labor Code and Article 4. Decree 45/2013/ND-CP.

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What is Salary Payment Rules According to Labor Code 2019?

The employer shall pay the employee on the basis of the agreed salary, productivity and work quality. The salary written in the employment contract and the salary paid shall be made in Vietnam dong. If the employee is a foreigner working in Vietnam, the salary payment to foreigners can be made in foreign currency. The payment of salary to the employee by the employer has to follow salary payment rules clearly regulated under the labour to protect the interest of the employee and avoid disputes in employment relationship.

 

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Employers shall directly, fully and punctually pay salaries to their employees. In the cases where an employee is not able to directly receive his/her salary, the employer may pay it through a person legally authorized by the employee. Employers must not restrict or interfere their employees’ spending of their salaries; must not force their employees to spend their salaries on goods or services of the employers or any particular providers decided by the employers.

Every time salary is paid, the employer shall provide the employee with a note specifying the salary, overtime pay, nightshift pay and deductions (if any).

An employee who receives an hourly, daily or weekly salary shall be paid after every working hour, day or week respectively, or shall receive a sum within not more than 15 days as agreed by both parties; an employee who receives a monthly or bi-weekly salary shall be paid after every month or every two weeks respectively, the payment time shall be periodic and agreed upon by both parties; an employee who receives a piece rate or a fixed amount shall be paid as agreed by both parties. In case a task cannot be completed within one month, the employee shall receive a monthly advance payment based on the amount of work done in the month.

In case of a force majeure event in which the employer is unable to pay the employee on schedule after all remedial measures have been implemented, the salary shall be paid within 30 days. In case a salary is paid at least 15 days behind schedule, the employer shall pay the employee a compensation that is worth at least the interest on the amount paid behind schedule at the latest 1-month interest rate quoted by the bank at which the employee’s salary account is opened.

Failing to make payment or making underpayment of wages and salaries to employees is the breach of labor contracts which fines imposed on the employers will be at the following rates: a fine ranging from VND 5,000,000 to VND 10,000,000 to be imposed if the violation involves 01 – 10 employees; a fine ranging from VND 10,000,000 to VND 20,000,000 to be imposed if the violation involves 11 – 50 employees; a fine ranging from VND 20,000,000 to VND 30,000,000 to be imposed if the violation involves 51 – 100 employees; a fine ranging from VND 30,000,000 to VND 40,000,000 to be imposed if the violation involves 101 – 300 employees; a fine ranging from VND 40,000,000 to VND 50,000,000 to be imposed if the violation involves 301 or more employees. At the same time, the employers shall be compelled the full repayment of wage and salary plus the amount of late payment interest calculated at the highest demand deposit interest rates publicly quoted by state-owned commercial banks on the date of imposition of such penalty for the violations.

According to the provisions of the Labor Code 2019, the employer must pay the employee directly, fully and on time. If due to force majeure, the employer has used all the remedial measures but cannot pay the salary on time, there is only maximum extension of 01 month for late payment. Passing this time limit, the employee has the right to unilaterally terminate the labor contract without prior notice or make complaints or filing lawsuits at competent agencies to resolve employment dispute. The time limit to request a labor mediator to settle an individual labor dispute is 06 months; the time limit to bring an individual labor dispute to the Court is 01 year from the date on which a party discovers the act of infringement of their lawful rights and interests. Employment dispute lawyers in Vietnam specializing in dispute could be engaged to protect best interest of parties involved and provide guidance to resolve in most effective ways.

Employees as well as the labor collective and employers should pay attention to selecting the most appropriate and optimal resolution solution when labor disputes occur.  It is also suggested to consult with labour lawyers of Employment dispute law firm in Vietnam speacializing in employment matters for efficiency.

 

 

 

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What Are the Order of Disciplining Employee in Vietnam?

 

Labour discipline is the provisions on compliance matters relating to work time, technology and production and business management in labor regulations. It can be understood simply that when an employee violates the labor regulations, depending on the extent and regulations of the company, he or she will be subject to disciplinary action. The order of disciplining labor is conducted in accordance with the provisions of labour code in Vietnam. Failing to follow the order of discipline would lead to potential disputes which both employer and employee should consult with dispute lawyers in Vietnam for advice to protect their best interests.

 

Firstly, the employer must confirm the employee’s violations

In the cases where an employee found committing a violation, the employer shall issue an offence notice, inform the employee representative organization (or the employee’s parent or legal representative if the employee is under 18) in order to hold a disciplinary meeting.

Secondly, issuing notice of the disciplinary meeting

This step is only carried out in case the employer detects violations of labor discipline after the time when the violation has occurred, there are sufficient grounds to prove the fault of the employee and the statute of limitations for disciplining.

The employer sends the notice with the content, time and place of the meeting to handle the labor discipline to the organization representing the labor collective at the grassroots level; workers; In the case of a person under 18 years old, there must be the participation of a parent or legal representative.

The employer must ensure these recipients receive notice before the meeting takes place and conduct a labor discipline meeting with the participation of the notification components.

Thirdly, conducting a disciplinary meeting

It is mandatory to have the minutes of the disciplinary meeting, which have to be approved by the participants before the end of the meeting. The minutes shall bear the participants’ signatures. If any participant that refuses to sign the minutes, there should be explanation.

Fourthly, disciplinary decisions

The person that concludes the employment contract on the employer’s side also has the power to issue the disciplinary decision. The disciplinary decision shall be issued before expiration of the original or extended time limit for penalty imposition specified the labour code.

The disciplinary decision shall be sent to the employee (or his/her parent or legal representative if the employee is under 18) and the employee representative organization.

ANT Lawyers is an employment dispute law firm in Vietnam, recognized by Legal500, IFLR1000. We are an exclusive Vietnam member of Prea Legal, the global law firm network covering more than 150 jurisdictions. The firm provides a range of legal services to multinational and domestic clients.

 

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When Should the Employer Send Notice of Termination of Labour Contract to Employee Before Contract Expiration?

Expiration is one of the circumstances which permit termination of labor contract under the Labor Code 2012. Accordingly, the employer must inform in writing to the employee of the terminating date of labor contract at least 15 days prior to the expiration. Termination of labor relationship in each circumstance must follow different conditions and procedures to ensure the interests and obligations of both employee and employer and avoid potential labour disputes.

 

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Previously, an administrative penalty was applied to violations of the labor contract termination notice mentioned above. If the employer fails to inform the employee, the employer will be subject to a warning or a fine with amount from VND 500,000 to VND 1,000,000. However, the Decree 28/2020/ND-CP issued on March 1st, 2020 by the Government has repealed sanction for this behavior.

If the employee continues to work upon expiration of labor contract, both parties will be required to sign a new labor contract within the next 30 days, otherwise the signed contract will become an indefinite-term. Failure of the employer to inform the labor contract termination to the employee does not mean that the labor relationship is automatically extended after the expiration. If both parties fail to sign a new labor contract within the next 30 days, but the employee still do normal assigned job and is paid a full monthly salary, an indefinite-term labor contract is deemed as entered into by them. Any disputes arising out then will be settled based on provisions of indefinite term labor contract and laws.

The Labor Code 2019 repealed the employer’s informing responsibility upon expiration of labor contract except in a few circumstances such as the employee being sentenced to imprisonment, disciplined, expelled, ..., the employer is required to inform the employee in writing the termination of the labor contract.

We are a law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or services request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

 

 

 

 

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How Mediation and Labor Arbitration Councils Work in Settlement of Labor Disputes?

During and after the Covid-19 pandamic, the financial health of enterprises have been negatively impacted leading to management’s decision to reduce cost through termination of labour contract with employee. The illegal termination of labour contract could lead to disputes between employer and employee which sometime would cost the employer more than it gains. It is important for the employer to engage with labour lawyers to consult before taking the decision to consder factors that would involve. After disputes arise, mediator or labour arbitration councils could be used for resolving disputes.

Individual labor disputes shall be settled through mediation by labor mediators before being brought to the Labor arbitration council or the Court, except for the following labor disputes which mediation is not mandatory: disputes over disciplining under dismissal or unilateral termination of employment contracts; disputes over damages and allowances upon termination of employment contracts; disputes between a domestic worker and his/her employer; disputes over social insurance in accordance with social insurance laws, disputes over health insurance in accordance with health insurance laws, disputes over unemployment insurance in accordance with employment laws; disputes over insurance for occupational accidents and occupational disease in accordance with occupational safety and hygiene laws; disputes over damages between an employee and enterprises, organization that dispatches the employee to work overseas under a contract; disputes between the outsourcing employee and the employer using outsourcing employee.

The mediator shall complete the mediation process within 05 working days from the receipt of the request from the requesting parties or the authority. Both disputing parties must be present at the mediation meeting. The disputing parties may authorize another person to attend the mediation meeting.

In case the two parties reach an agreement, the labor mediator shall make a written record of successful mediation which bears the signatures of the disputing parties and the labor mediator. In case the two parties do not reach an agreement, the labor mediator shall recommend a mediation option for the disputing parties to consider. Where the two parties do not agree with the recommended mediation option or where one of the disputing parties is absent for the second time without a valid reason after having been legitimately summoned, the labor mediator shall make a record of unsuccessful mediation which bears the signatures of the present disputing parties and the labor mediator.

The disputing parties shall be entitled to request the settlement from Labor arbitration councils in the following cases: a disputing party fails to perform the agreements specified in the record of successful mediation; mediation is not mandatory; the labor mediator fails to initiate the mediation by the deadline; the mediation is unsuccessful.

After the Labor arbitration council has been requested to settle a dispute, the parties must not simultaneously request the Court to settle the same dispute.  If within 07 working days from the receipt of the request, an arbitral tribunal is not established; or within 30 working days from the establishment of the arbitral tribunal, it fails to issue a decision on the settlement of the labor dispute, parties shall be entitled to request the settlement from the Court. In case a disputing party fails to comply with the decision of the arbitral tribunal, the parties are entitled to bring the case to Court.

If the client needs any other information or requires for further advice, our lawyers at ANT Lawyers in Vietnam will be available for service.

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How Law Regulates Employing People with Disabilities in Vietnam?

Disabled people are those who have one or more body parts or functional impairments which are manifested in the form of disability, which makes it difficult for labor, living and learning. The State sponsors the right to labor and creates jobs for disabled workers, has policies to encourage and give incentives to employers to create jobs and to accept workers with disabilities to work in Vietnam.

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The disabled people are inherently disadvantaged compared to other ordinary people, so to compensate for the unfortunate disabled people, the government has established mechanisms and policies for disabled employees and enterprises employing disabled laborers, being regulated in the law as following.

Corporate Income Tax

The company will enjoy corporate income tax exemption for income from goods and services of enterprises with an average number of disabled employees in the year accounts for 30% or more of the total labor of the enterprise.

Financial Support to Improve Work Conditions

Enterprises are provided with financial support to improve working conditions and environment for disabled workers, the support level is based on the proportion of people with stable employment at production and business establishments. The President of the provincial People’s Committee decides the level of funding to support the improvement of working conditions and environment for production and business establishments employing 30% or more of the disabled employees.

Land, Ground, Water Surface Rentals

Enterprises are exempted from land rents, ground and water surface rents for land, ground and water surface in service of production and business activities for production and business establishments employing 70% or more of their disabled employee. Enterprises are entitled to a 50% reduction of land rents, grounds and water surface for production and business activities for production and business establishments employing from 30% to less than 70% of laborers are disabled employees. During the period of exemption or reduction of land rents, premises, water surface, business and production establishments must not convert, transfer, donate, give or lease land use rights, ground and water surface and must not mortgage, pledge, guarantee, contribute capital in, joint venture with land use rights, ground and water surfaces in accordance with the Law on land.

Loan Support

The enterprises which have disabled employees may borrow capital from the national fund for employment when meeting conditions such as: having feasible capital borrowing projects competitions in the locality, in line with business and production lines, attracting more workers to work stably; loan project with certification of the competent agency, organization where the project is implemented; secured loan.

Besides, the enterprises which have disabled employers have to follow a number of requirements.  i) do not distinguish between disabled workers and other workers.  The violation of such would be sanctioned from 3 – 5 million VND; ii) ensure that the labor conditions are suitable for people with disabilities, specific businesses must ensure the labor conditions, labor tools, occupational safety, hygiene and labor appropriate for people with disabilities and regularly take care of their health by organizing periodic health check at least 06 months/time; must consult with the defective labor when deciding on the policy relating to them. The violations of such activities will be fined from 1 – 15 million VND; iii) do not use disabled workers who have reduced labor capacity from 51% or more to overtime, working at night, doing heavy, malicious, dangerous or exposed work with hazardous substances.  In the event of a breach of such regulations, the enterprise will be fined from 1 – 15 million VND; iv) arranged for workers with disabilities who are allowed to take leave for 14 days for disabled workers with full 12 working months.

The above provisions are the basic labour regulations applicable to enterprises employing disabled workers.  While there are benefits, there are also challenges in terms of labour regulations compliance.  Consulting with labour lawyers would be needed to help the employer complying including drafting labour contract, drafting internal labour regulations, terminating the employment relationship to best manage the work force in the most effective ways. From the management point of view, the employers need to understand, and be aware of the policies that the state offers for their business as well as the obligations that the business needs to do for disabled workers to utilize and follow.

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