Bộ
luật lao động (sua 2002,
hl 010103)
·
Chapter I -
General provisions
Chapter V -
Collective labour accord
Chapter VII -
Work and break time
Chapter VIII - Labour
discipline, material liability
Chapter IX - Labour
safety, labour sanitation
Chapter X -
Specific provisions on women's labour
Chapter XI -
Some specific regulations concerning minors and other types of labourers
Chapter XII -
Social insurance
Chapter XIV -
Settlement of labour disputes
Chapter XV -
State management of labour
Chapter XVI -
State inspection on labour, sanctions against violations of labour legislation
Chapter XVII - Implementation provision
http://www.boluatlaodong.com/labour-code/chapter-i-general-provisions.nd5-dt.96.014.html
THE LABOUR CODE OF THE
PREAMBLE
http://www.dncustoms.gov.vn/web_Eglish/english/luat_pl/LABOUR-CODE.htm
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Labour is the most important activity of man. It creates the material
wealth and spiritual values of society. High-productivity, high-quality and
high-efficiency labour is the determinant factor of national development.
Labour legislation defines the rights and obligations of the employee
and the employer, the labour standards and the principles for labour use and
management, thus contributing to the promotion of production. Therefore, it
plays an important role in social life and in the legal system of the country.
Inheriting and developing the labour legislation of our country since
1945, the Labour Code institutionalizes the renewal line of the Communist Party
of Vietnam and concretizes the provisions of the 1992 Constitution of the
Socialist Republic of Vietnam on labour and on the use and management of labour.
The Labour Code protects the right to work, the interests and other
rights of the employee. At the same time it protects the legitimate rights and
interests of the employer, thus creating conditions for the establishment of
harmonious and stable labour relations, helping to develop the creativeness and
talent of the intellectual and manual workers as well as of the labour
managers, in order to achieve high productivity, quality and social progress in
labour, production and service, efficient use and management of labour, thus
contributing to the industrialization and modernization of the country in the
cause of bringing prosperity to the people and strength to the nation and
building a just and civilized society.
Chapter I
GENERAL PROVISIONS
Article 1.- The Labour Code
regulates labour relations between the salaried employee and the employer, and
the other social relations directly related to labour relations.
Article 2.- The Labour applies to
all employees as well as all organizations and individuals employing labour
according to labour contracts in all economic sectors and of all forms of
ownership.
This Labour Code also applies to the apprentices, house workers and a
number of other jobs defined in this Code.
Article 3.- Vietnamese citizens
working in enterprises with foreign invested capital in Vietnam, at foreign or
international offices and organizations based on Vietnamese territory and
foreigners working for Vietnamese businesses, organizations or individuals on
Vietnamese territory come within the jurisdiction of this Code as well as other
prescriptions of Vietnamese law, unless otherwise stipulated in the
international conventions which the Socialist Republic of Vietnam has signed or
acceded to.
Article 4.- The labour regime for
State employees and public servants, holders of elected, assigned or appointed
posts, persons in the People's Armed Forces, the People's Security Service,
persons of mass organizations and other political and social organizations, as
well as members of the cooperatives shall be stipulated by other legal
documents. However, some of the provisions of this Code may be applied to a
number of these persons, depending on concrete cases.
Article 5.-
1- Everyone has the right to work, to choose freely a job or profession,
to learn a trade and to improve his/her professional standard without discrimination
of sex, nationality, social background, belief or religion.
2- Maltreatment of an employee and forcible labour, in any form, are
forbidden.
3- The State encourages, creates conditions for or assists all
activities which generate employment or self-employment, all activities in job
teaching and learning to create employment as well as all activities in
production and business which employ a large work-force.
Article 6.- An employee must have
attained at least 15 years of age, have the capability to work and must work
according to a labour contract.
An employer may be a business, an office, an organization or an
individual (in the latter case he/she must be at least 18 years old). The
employer hires, utilizes labour and pays for that labour.
Article 7.-
1- The employee is paid a salary based on his/her agreement with the
employer, but this salary shall not be lower than the minimum salary prescribed
by the Sate, if he/she meets previously agreed-upon requirements for
productivity, quality and efficiency. The employee is covered by the
regulations on labour protection, and must be assured conditions consistent
with labour safety and sanitation requirements. The employee is entitled to
statutory paid leaves, including annual leave, and to social insurance as prescribed
by law. The State shall enforce special labour regimes and social policies
aimed at protecting women's labour and certain types of specific labour.
2- The employee has the right to found, join and work for a trade union
according to the Trade Union Law, in order to protect his/her legitimate rights
and interests. The employee is entitled to the community welfare benefits and
take part in the management of the business according to the rules of the
business and the prescriptions of law.
3- The employee has the obligation to fulfill the labour contract and
the collective labour accord, to observe labour discipline and labour
regulations and to obey the lawful direction of the employer.
4- The employee has the right to strike as prescribed by law.
Article 8.-
1- The employer has the right to select and recruit labour, assign labour
and control its disposition as required by the need of production and business.
He/she has the right to issue bonuses or commendations and handle the
violations of the labour discipline as prescribed by labour legislation.
2- The employer has the right to send his/her representative to
negotiate and sign collective labour accords within the business or collective labour
accord of the whole branch. The employer has the responsibility to cooperate
and discuss with the trade union issues concerning labour relations and to
improve the material and spiritual life of the employee.
3- The employer has the obligation to fulfill the labour contract, the
collective labour accord and the other agreements with employees, to respect
the honor and dignity of the employee, and to behave properly toward the
employee.
Article 9.- The labour relations
between the employee and the employer are established and effected through
negotiations and agreement on the principles of voluntariness, equality,
cooperation, mutual respect for each other's legitimate rights and interests
and full implementation of the commitments.
The State encourages the agreements that assure employees more favorable
conditions than prescribed in the labour legislation.
The employee and the employer have the right to ask the authorized
office or organization to settle a labour dispute. The State encourages the
settlement of labour disputes by reconciliation and arbitration.
Article 10.-
1- The State exercises unified management of the manpower resources,
manages labour through legislation and adopts policies to develop and
distribute man-power resources, diversify the forms of labour utilization and labour
supply services.
2- The State guides the employee and the employer to build a harmonious
and stable labour relationship so as to work in tandem for the development of
the business.
Article 11.- The State encourages a
democratic, just and civilized management of labour at the business. It
encourages all measures, including deduction from the business's profits as
bonuses, in order to make the employee pay greater attention to the operation
of the business with a view to high efficiency in the management of labour and
production of the business.
The State shall enact policies to help the employee buy shares to
contribute capital to the development of the business.
Article 12.- The trade union joins
the State office, the economic organizations and the social organizations in
caring for and protecting the rights and interests of the employee, and in
inspecting and supervising the implementation of the prescriptions of labour
legislation.
Chapter II
EMPLOYMENT
Article 13.- All income-generating labouring
activities which are not banned by law are recognized as employment.
The State, businesses and the whole society are all responsible to
provide jobs and ensure that every person with labour capabilities has the
chance to be employed.
Article 14.-
1 - The State shall set out the targets for job generation in its
five-year and annual plans for socio-economic development, create necessary
conditions, provide financial support, grant loans, tax exemption or reduction,
and apply other incentive measures to enable employable persons to create
employment for themselves as well as to enable organizations, units and
individuals in all economic sectors to develop new and diversified occupations
aimed at providing employment for as many individual employees as possible.
2- The State shall enact preferential employment policies to attract and
use the labour force among the people of ethnic minorities.
3- The State shall enact incentive policies to create favorable
conditions for organizations and individuals inside and outside the country,
including Vietnamese settled abroad, to invest in developing production and
business in order to increase the availability of jobs.
Article 15.-
1- The Government shall draw up national employment programs and
projects on investment in socio-economic development and transfer of the
population to undeveloped regions in close association with the employment
program; establish the national employment fund from the State budget and other
sources and expand the job-seeking service system. Annually, the Government
shall submit to the National Assembly its proposed national employment program
and fund for approval.
2- The People’s Committee in provinces and cities directly under the
Central Government shall set up their own employment programs and funds and
submit them to the People’s Council of the same level for approval.
3- The State agencies, economic organizations, people’s organizations
and social organizations shall, within the scope of their responsibility and
powers, have the task of joining in the implementation of the employment
programs and funds.
Article 16.-
1- The employee has the right to work for any employer and at any place
not forbidden by law. The job seeker has the right to contact directly a potential
job procurer or register with a job-seeking service organization to find a job
suited to his/her desire, capabilities, professional standard and health
condition.
2- The employer is entitled to contact directly the job seeker or
recruit labour through a job-seeking service organization. He/she has the right
to increase or reduce the number of employees in conformity with the demand in
production and business and within the prescriptions of law.
Article 17.-
1- In case the employee who has been working regularly in a business for
one year or more loses his/her job due to the restructuring of the business or
the change of technology, the employer has the responsibility to retrain
him/her in order to employ him/her in a new job. If no new job can be created
and the employee has to be laid off, his/her employer has to pay him/her a
severance allowance at the rate of one month's salary for every year of
service, but the amount shall not be less than the value of two months of
his/her salary.
2- When the need arises for a massive lay-off by virtue of Item 1 of
this Article, the employer must publicize the list of the would-be laid-off
employees and then proceeding from the need of the business and the seniority
of each employee at the business, his/her professional skill, family situation
and other factors, shall lay them off one by one after discussing and agreeing
with the Executive Committee of the local trade union in the business according
to the procedure stipulated in Item 2 of Article 38 of this Code. The lay-off
can become effective only after the local labour office has been notified about
it.
3- The business must set up its reserve fund for severance allowances as
prescribed by the Government in order to provide timely relief for the employees
who lose their jobs at the business.
4- The Government shall adopt policies and measures to provide job
training and retraining and guidance in production and business, grant low
interest loans from the National Employment Fund and create other conditions
for the employees to find new jobs or create jobs for themselves; and provide
financial support for the localities and services where many people are
under-employed or lose their employment due to business restructuring or to a
change in technology.
Article 18.-
1- The job seeking service organization, established by virtue of law,
has the task of providing consultation, introducing or supplying jobs or
helping in the recruitment of labour, along with collecting and supplying
information about the labour market. The sending of Vietnamese labourers to
work abroad can be effected only when a permit to this effect has been issued
by the competent State authority.
2- The job-seeking service organization is allowed to collect fees, is
eligible for tax exemption or reduction by the State and is entitled to
organize job training as stipulated in Chapter III of this Code.
3- The Ministry of Labour, War Invalids and Social Welfare shall
exercise unified State management over the job-seeking service organizations throughout
the country.
Article 19.- All acts enticement,
false promise and mendacious advertisement aimed at misleading the labouring
people or misusing the job-seeking service to commit law-breaking acts are
prohibited.
Chapter III
APPRENTICESHIP
Article 20.-
1- Everyone has the right to choose freely a profession and a place for
apprenticeship suited to the need of his/her employment.
2- All businesses, organizations and individuals who meet the conditions
prescribed by law shall be allowed to open a job-training establishments.
The Government shall issue regulations on the opening of job-training
establishments.
Article 21.-
1- A job-training establishment must be registered and operate according
to the regulations on job training. It is entitled to collect tuition and must
pay these taxes as prescribed by law.
2- A job-training establishment shall be eligible for tax exemption or
reduction if it addresses requirements of the war disabled and ailing military
personnel, the handicapped, or members of ethnic minorities; if it is located
in a place which has a high rate of underemployment or unemployment; or if its
teaches traditional crafts or provides job tutoring at work places or at home.
Article 22.- An apprentice admitted
to a job training establishment must be at least 13 years old, except for a
number of jobs defined by the Ministry of Labour, War Invalids and Social
Welfare. He/she must respond to the health norms required by the job to be
taught.
Article 23.-
1- The business has the responsibility to upgrade the professional
skills of the employees and to retrain them before transferring them to other
jobs in the business.
2- A business which accepts a person to learn or practice a trade in
order to work later for it under the terms stipulated in the job learning or
apprenticeship contract, shall not have to register that person. But it must
also not collect tuition from him/her. The time for learning or practicing a
trade shall be included in the person's seniority at the business. During the
period of job learning or apprenticeship, if the learner or apprentice takes
direct part in manufacturing products for the business, he/she shall be paid a
salary to be agreed upon mutually by the two parties.
Article 24.-
1- An apprenticeship can be effected only through a written or verbal
contract between the apprentice and the employer or the representative of the
job training establishment. Where a written contract is used, a copy of the
contract must be provided to both parties.
2- The job training contract must specify the goal of training, the
place of training, the amount of tuition, the duration of training and the
level of compensation where a violation of the contract occurs.
3- When a business accepts an apprentice with explicit intent to employ
him/her later at the business, the job training contract must state the terms
by which the apprentice shall work for the business and the mutual commitment
to sign the labour contract after completion of his/her training. If after learning
the trade, the apprentice does not accept to work for the business as
committed, he/she must compensate the employer for the training expenditures.
4- No compensation shall be made if the job learning contract ends
before term due to a force-majeure cause.
Article 25.- All businesses,
organizations and individuals are strictly forbidden from abusing their job
training licenses and from using job training to promote self interests,
exploit the labour of the apprentice or induce and coerce him/her into unlawful
activities.
Chapter IV
LABOUR CONTRACT
Article 26.- The labour contract is
the agreement between the employee and the employer which defines the payment,
the working conditions and the rights and obligations of each party in their labour
relations.
Article 27.-
1- The labour contract must be made in one of the following forms:
a/ A contract with indefinite duration;
b/ A contract valid from one to three years;
c/ A contract for a seasonal job or a specific job to be carried out in
less than one year.
2- It is forbidden that a labour contract is signed for a seasonal job
or a specific job with a duration of less than one year to perform tasks of a
perpetual nature, i.e. jobs lasting more than one year, except when temporary
replacement is necessary for a employee who is called for military duty or who
takes maternity leave or who is temporarily absent for other reasons.
Article 28.- The labour contract must
be made in writing in two copies, with each party keeping one copy. The
commitment can be made orally if the job has a temporary character and its term
does not exceed three months or it is the job of a housework.
When a verbal commitment is used, the two parties must automatically
comply with the prescriptions of the labour legislation.
Article 29.-
1- The contents of the labour contract must include the following
elements: a description of the duties to be performed the working time, the
break time, the salary, the place of work, the duration of the contract, the
conditions on labour safety and labour sanitation, along with the social
insurance for the employee.
2- In the event that the labour contract or any part thereof provides
for the rights and interests of the employee which are inconsistent with those
prescribed in the labour legislation, in the collective labour accord or in the
labour regulations in force at the business, or if the contract puts
restrictions on other rights of the employee, those improper portions or the
whole contract must be modified or revised.
3- When the contents, as described in Item 2 of this Article, are
detected, the Labour Inspector shall guide the parties to make the necessary
modifications or revisions. If either side refuses to make the recommended
modifications or revisions, the Labour Inspector is authorized to force the
revocation of the improper contents.
Article 30.-
1- The labour contract is directly made between the employee and the
employer.
2- The labour contract may be signed between the employer and the
legally assigned representative of a group of employees. In this case the
contract is as valid as if it were signed with each employee.
3- The employee may sign one or more labour contracts, with one or more
employers, but he/she must assure full compliance with each of the signed
contracts.
4- The duties to be performed under the labour contract must be carried
out by the contractor and shall not be assigned to another person without the
consent of the employer.
Article 31.- In case of a merger or a
division of the business, or assignment of ownership, managerial power or the
right to use the property of the business, the succeeding employer has the
responsibility to honor the labour contract with the employee until the two
parties agree to amend or terminate the labour contract or to sign a new
contract.
Article 32.- The employer and the
employee shall agree on the probation, the term of probation and the rights and
obligations of the two parties. The salary of the employee during the period of
probation must be equal at least to 70% of the statutory salary of his/her job.
The term of a probation must not exceed 60 days for a job requiring high
technical skill and 30 days for other jobs.
During the period of probation, each party is entitled to cancel its
agreement on probation without advance notice and without having to make compensation
if the probation does not meet the requirements already agreed upon by both
parties. If the probation meets the requirements, the employer must sign on the
employee as a full-time worker pursuant to their agreement.
Article 33.- The labour contract
shall take effect on the day of the signing or on a mutually agreed date.
In the process of implementing the labour contract, if a party wishes to
change the contents of the labour contract, it must notify the other party at
least three days in advance. The change of the contents of the labour contract
may be effected by either modifying or supplementing the existing labour
contract or by signing a new contract
Article 34.-
1- In the event of unexpected difficulty or due to the need in production
and business, the employer is entitled to temporarily assign the employee to
another job to which he/she is not accustomed but not for more than 60 days a
year.
2- When the employer decides to assign the employee to another job to
which he/she is not accustomed, the employer must notify him/her at least three
days in advance. The employer must also specify the term of this temporary job
which must suit the health and gender of the employee.
3- The employee assigned to another job as defined in Item 1 of this
Article shall be paid the salary of the new job. If this salary is lower than
that of his/her former job he/she is entitled to the former salary for the
first 30 days on the new job. The salary of the new job must be equal to at
least 70% of the old salary and not lower than the minimum salary prescribed by
the State.
Article 35.-
1- The labour contract shall be temporarily suspended in the following
circumstances:
a/ The employee is called for military duty or other citizen duties
prescribed by law.
b/ The employee is taken into temporary custody or detention.
c/ Other circumstances as may be mutually agreed upon.
2- At the end of the temporary suspension of the labour contract under the
circumstances defined in Points (a) and (c), Item 1, of this Article, the
employer must reinstate the employee.
3- The reinstating of an employee under temporary custody or detention
after the expiring of the temporary suspension of the labour contract shall be
set by the Government.
Article 36.- The labour contract
shall terminate upon the happening of the following events:
1- The term of the contract expires;
2- The job under contract has been finished;
3- The two parties agree to terminate the contract;
4- The employee is sentenced to imprisonment or is banned from doing the
former job by ruling of the Court;
5- The employee dies or is declared missing by the Court.
Article 37.-
1- The employee working under a labour contract the terms of which range
from one year to three years, or a labour contract to do a seasonal job or a
specific job which lasts less than one year, is entitled to unilaterally
terminate the contract before term in one of the following circumstances:
a/ The employee is not assigned the job or to the working place, or
otherwise not assured the conditions of work already agreed in the contract;
b/ The employee is not paid fully or at the time stipulated in the
contract;
c/ The employee is maltreated or subjected to forced labour;
d/ The employee or his/her family encounters such difficult
circumstances that he/she cannot continue executing the contract;
e/ The employee is elected to a permanent post in a people's elected
body or is appointed to an official post in the State apparatus;
f/ The employee is pregnant and must stop working by prescription of the
doctor.
2- When the employee decides to unilaterally terminate the labour
contract as stipulated at Item 1 of this Article, he/she must notify the
employer:
a/ At least three days in advance of the circumstances described at
Point (a), (b) and (c);
b/ At least thirty days in advance of the circumstances described in
Points (d) and (e) with regard to a contract with terms ranging from one year
to three years; at least three days in advance if it is a contract for a
seasonal job or a specific job which lasts less than one year;
c/ In the circumstances described in Point (f), the time for advance
notification is defined in Article 112 of this Code.
3- The employee working under a labour contract without a definite term
is entitled to unilaterally terminate the labour contract but must notify the
employer at least 45 days in advance.
Article 38.-
1. The employer is entitled to unilaterally terminate the labour
contract in the following circumstances:
a/ The employee constantly fails to perform the duties set forth in the
contract;
b/ The employee is subject to dismissal as provided for in Article 85 of
this Code;
c/ The employee, working under a labour contract without a definite
term, falls sick and has gone through 12 months of medical treatment, or the
employee working under a contract with a definite term, has taken six
consecutive months of sick leave or the employee, working under a contract of
less than one year, has taken sick leave longer than half the term of the labour
contract without any prospect of recovery in the near future. However, after
recovery, resumption of the employee's labour contract shall be considered;
d/ Natural disasters, fire or any force-majeure causes of which the
employer has sought all means to overcome the consequences without success and
is accordingly forced to scale down production and reduce the labour force;
e/ The business, office or organization terminates its operation.
2- Before unilaterally terminating the labour contract under Points (a),
(b) and (c) of Item 1 of this Article, the employer must discuss and reach
agreement with the Executive Committee of the local Trade Union. In case of
disagreement, the two sides must report to the competent office or
organization. Only 30 days after notification to the labour office is employer
entitled to take decision for which he/she shall be responsible. In case they
do not agree with the decision of the employer, the Executive Committee of the local
Trade Union and the employee are entitled to request settlement of the labour
dispute according to the procedure prescribed by law.
3 - When the employer decides to unilaterally terminate the labour
contract, except for cases defined at Point (b), Item 1 of this Article, the
employer must notify the employee:
a/ At least 45 days prior to the termination of the labour contract
without a definite term;
b/ At least 30 days prior to the termination of labour contracts with
terms ranging from one year to three years;
c/ At least three days prior to the termination of labour contracts for
seasonal jobs or specific jobs which last less than one year.
Article 39.- The employer is not
allowed to terminate unilaterally the labour contract in the following
circumstances:
1- The employee is under medical treatment by decision of the doctor as
a result of sickness, a labour accident or an occupational disease, except for
cases stipulated at Points (c) and (d) of Item 1, Article 38, of this Code;
2- The employee is on annual leave, or is taking a leave for personal
affairs or any other leave with the consent of the employer;
3- The employee is a woman in circumstances defined in Item 3, Article
111, of this Code.
Article 40.- Each party may revoke its
unilateral decision to terminate the labour contract before the advance notice
expires. Upon the expiring of the advance notice, either party has the right to
terminate the labour contract.
Article 41.-
1- In case the decision of the employer to terminate unilaterally the labour
contract contravenes law, he/she must re-instate the employee and pay
compensation commensurate with the salary of the employee during the days when
he/she is denied the right to work. In case the employee does not want to
return to work, he/she is entitled, besides the compensation commensurate with
his/her salary during the days he/she is denied the right to work, to an
allowance as stipulated at Item 1, Article 42, of this Code.
2- In case the employee terminates unilaterally the labour contract in
contravention of law, he/she shall not receive any severance allowance.
3- In case the employee terminates unilaterally the labour contract,
he/she shall repay the training expenses, if any, as prescribed by the
Government.
4- In case of a unilateral termination of the labour contract, the party
which violates the regulations on advance notice shall compensate the other
party an amount of money equivalent to the salary of the employee during the
days when no advance notice of the termination is received.
Article 42.-
1- Upon the termination of a labour contract with an employee who has
worked regularly at the business, office or organization for more than one
year, the employer has the responsibility to pay the employee a severance
allowance representing one half month's salary for every year of service, plus
wage subsidies (if any).
2- Upon the termination of the labour contract as defined in Points (a)
and (b), Item 1, Article 85, of this Code, the employee shall not receive the severance
allowance.
Article 43.- Within seven days after
termination of the labour contract, the two parties have the responsibility to
settle the accounts relating to the interests of each party. In special cases,
this time-limit may be extended but not for more than 30 days.
In the event of bankruptcy of the business, the accounts related to the
interests of the employee shall be settled according to the provisions of the
Law on Bankruptcy.
The employer shall record the reason for the termination of the labour
contract in the Labour Register and has the responsibility to return the
Register to the employee. Apart from the provisions in the Labour Register, the
employer is not allowed to add any other comment that may be a hindrance to the
employee in seeking a new job.
Chapter V
COLLECTIVE LABOUR ACCORD
Article 44.-
1- The collective labour accord (hereafter called collective accord) is
a written agreement between the labour collective and the employer on the
conditions for labour and use of labour; and the rights, interests and
obligations of both parties in their employment relations.
The collective accord is negotiated and signed by the representative of
the labour collective and the employer on the principles of voluntariness,
equality and openness.
2- The contents of the collective accord must not contravene the
provisions of labour legislation as well as other legislation.
The State encourages the signing of collective accords with terms more
favorable to the employees than those prescribed by labour legislation.
Article 45.-
1- The representatives to the negotiations of a collective accord
between the two parties shall be composed of the following:
a/ From the labour collective: the Executive Committee of the local
Trade Union or the provisional trade union organization;
b/ From the employer: the Director of the business or his/her delegate
duly empowered under the Statute on Organization of Businesses or a person
mandated by the business Director.
The number of representatives to the negotiations, of a labour accord
from each party shall be decided by mutual agreement, but the two sides must
have equal numbers.
2- The representative who signs for the labour collective shall be the
President of the Executive Committee of the local trade union or the person
mandated by this committee. The representative who signs for the employer shall
be the business Director or a person with the mandate of the business Director.
3- The signing of the collective accord can be effected only when more
than 50% of the members in the labour collective in the business agree to its
negotiated contents.
Article 46.-
1- Each party is entitled to file its own request for the signing of the
collective accord as well as to propose its contents. Upon reception of the request,
the recipient must agree to negotiate and shall discuss the time for beginning
the negotiations which shall be no later than 20 days from the reception of the
request.
2- The main contents of the collective accord shall contain commitments
on the work and the guarantee of work; the time for work and the time for rest;
the salaries, bonuses and wage subsidies; the labour standards, labour safety, labour
sanitation and social insurance for the employees.
Article 47.-
1- This signed collective accord shall be made into four copies, of
which:
a/ One copy is to be kept by the employer;
b/ One copy is to be kept by the Executive Committee of the local trade
union;
c/ One copy is to be sent by the local trade union Executive Committee
to its next higher level;
d/ One copy is to be sent by the employer to the provincial labour
office for registration, no later 10 days from the date of signing.
The businesses which have their establishments in many provinces or cities
directly under the Central Government shall have the collective accord signed
at the labour office of the province where the business has its main office.
2- The collective accord shall take effect from the day of registration
at the provincial labour office. Within fifteen days from the reception of the
collective accord, the provincial labour office must announce the registration.
If no announcement is made after the said time limit expires, the collective
accord shall automatically take effect.
Article 48.-
1- The collective accord shall be considered partially invalid if one or
more of the terms in the accord are not yet accepted by the provincial labour
office; nevertheless, the other terms which have been registered are still
valid for implementation.
2- The collective accord shall be considered completely invalid in one
of the following circumstances:
a/ The entire content of the accord is contrary to law;
b/ The signatories do not have the proper competence;
c/ The negotiation and signing of the accord do not proceed according to
the prescribed order; or
d/ The accord has not been registered at the provincial labour office.
3- The declaration to annul the collective accord which is considered
invalid in the circumstances stipulated at Point a, Item 2, of this Article
comes under the jurisdiction of the provincial labour office. With regard to
the collective accord signed in circumstances described in Points (b), (c) and
(d), Item 2, of this Article, if the terms of the signed accord are favorable
to the employees, the provincial labour office shall guide the parties to
revise it in due procedure. If no-revision is forthcoming, the provincial labour,
office shall declare to annual the accord.
Article 49.-
1- Once the collective accord has taken effect, the employer must notify
accordingly all employees at the business. Everyone at the business, including
those who are hired after the signing of the collective accord, has the
responsibility to implement it.
2- When the rights and interests of the employees, upon which agreement
has been reached in the labour contract, are lower than those stipulated in the
collective accord, the corresponding terms in the collective accord shall
apply. All regulations on labour in the business must be changed according to
the stipulations in the collective accord.
3- When one party deems that other party either fails to fulfill or
violates the collective accord, that party is entitled to demand that the other
party conform to the accord. The two parties must discuss a solution. If they
cannot agree, each party is entitled to demand resolution of the labour dispute
concerning collective labour, according to proceedings prescribed by law.
Article 50.- The collective accord is signed for terms ranging from one year to three
years. For a business which signs a collective accord for the first time, the
term may be less than one year.
Only three months after the accord takes effect, for accords with terms
shorter than one year, and six months, for accords with terms ranging from one
year to three years, shall each of the parties be entitled to propose
amendments or additions to the accord. These amendments and additions shall be
made in the same procedure for the signing of a collective accord.
Article 51.- Prior to the expiring of the collective accord, the two parties may
negotiate to extend its term or sign a new accord. If the negotiations are
continuing at the time the previous accord expires, that collective accord
shall continue to be effective. If the negotiations yield no new collective
accord, within three months of the expiring of the previous accord, that accord
shall automatically cease to be effective.
Article 52.-
1- When a division of a business occurs, or an assignment of ownership,
management power or the right to property utilization by a business is made,
the succeeding employer has the responsibility to continue to abide by the
collective accord until it expires or until a new collective accord is signed.
When businesses merge, the implementation of the collective accord shall
be directed by the Government.
2- When a collective accord ceases to be effective because the business
terminates its operation, the rights and interests of the employees shall be
settled according to Article 66 of this Code.
Article 53.- The employer shall bear
all expenses which incurred in the negotiations, signing, registration,
amendment, addition and publication of the collective accord.
The representatives of the labour collective who are employees on the
payroll of the business shall continue to receive their salaries while taking
part in the negotiations and signing of the collective accord.
Article 54.- The provisions in this
Chapter shall apply to the negotiations and signing of collective accords
within any industry.
Chapter VI
SALARY
Article 55.- The salary of the
employee shall be agreed upon by the two parties to the labour contract and is
paid according to the labour productivity as well as the quality and
effectiveness of the work. The salary of the employee must not be less than the
minimum wage prescribed by the State.
Article 56.- The minimum wage is
based on the cost of living and must enable the employee who handles even the
simplest work in normal working conditions to recuperate and also to accumulate
for expanded reproduction. This minimum wage shall be used as the basis for the
calculation of salaries for other types of labour.
The Government shall decide and make public the common minimum wage, the
minimum wages to be applied in different areas, the minimum wages in different
industries for each period after consulting the
When a rise occurs in the cost-of-living index and causes a drop in the
real wage of the employees, the Government shall adjust the minimum wage to
ensure this real wage.
Article 57.- The Government shall
make public the wage scales and wage groups as basis for determining social and
health insurance and for calculating wages for overtime and night-shift duties,
suspension of work, and annual and other leaves of the employees after
consulting the Vietnam General Confederation of Labour and the representatives
of the employers.
Article 58.-
1- The employer is entitled to choose one of the forms of salary payment
which are time salary (hour, day, week, month), product salary or package
salary. But he/she must maintain the chosen form over a given period of time
and must notify the employee of this form of payment.
2- The employee shall receive his/her pay, whether by the hour, the day
or the week, immediately after the hour, the day or the week of work, or shall
receive a lump sum as agreed upon by the two parties but this lump sum must be
paid to the employee at least once within every fifteen days of work.
3- The monthly salaried employee shall receive his/her salary once a
month or once every half-month.
4- The employee who is paid by the product or by the package shall be
paid as agreed upon by the two parties. If the work is spread over many months,
he/she shall receive each months a provisional pay according to the volume of
work he/she has done during each month.
Article 59.-
1- The employees shall receive his/her salary directly, fully, on time
and at the place of his/her work.
In special cases when the pay is delayed for some reason, this delay
must not exceed one month and the employer has to compensate the employee in an
amount at least equal to the interest rate published by the State Bank at the
time of the payment of the salary.
2- The salary is paid in cash. Any portion of the salary paid by check
or money order, issued by the State, shall be agreed upon by the two parties
bases on condition that the arrangement does not cause damage or inconvenience
to the employee.
Article 60.-
1- The employee is entitled to know the reason for all deductions from
his/her salary. Before deducting from the employee's salary, the employer must
discuss it with the Executive Committee of the local Trade Union. No deduction
shall exceed 30% of the employee's monthly wage.
2- The employer is not allowed to suspend the employee's salary as a
form of discipline.
Article 61.-
1- Compensation for overtime labour shall be paid as follows:
a/ On weekdays, it must be equal at least to 150% of the hourly pay for
a regular work day.
b/ On weekends or holidays, it must be equal at least to 200% of the
hourly pay for a regular work day.
If the overtime hours are worked at night, the employee shall receive
additional pay stipulated at Item 2 of this Article.
If the employee later takes time off in an amount equal to the time of
his/her overtime work, the employer shall pay him/her only the difference
between the amount earned from overtime and that earned during the regular
workday.
2- The employee working at night, as stipulated in Article 70 of this
Code, shall receive additional pay representing at least 30% of the amount
earned during the regular work day.
Article 62.- During the time of work
interruption, the employee shall be paid as follows:
1- If the interruption is caused by the employer, the employee shall
receive his/her full salary;
2- If the interruption is caused by the employee, he/she shall not
receive his/her pay; the other employees in the same unit who must stop working
shall receive a pay as may be agreed upon by the two parties, which in no case
may be lower than the minimum wage;
3- If the interruption is caused by a disruption of power or water
supply, beyond the control of the employer or by any other force-majeure
causes, the compensation shall be agreed upon by the two parties, which in no
case may be lower than the minimum wage.
Article 63.- Allowances, bonuses, pay
raises and other incentives may be agreed upon in the labour contract, the
collective accord or stipulated in the regulation of the business.
Article 64.- The employer is
responsible for deducting, from the business's annual profits, an amount to
reward the employees who have worked for more than one year at the business,
according to Government regulations and in conformity with the characteristics
of each kind of business.
Article 65.-
1- When the work involves the use of a contractor or an intermediary of
a similar role, the employer who is the chief owner of the contract must
maintain a complete list of the names and addresses of such persons together
with a list of the employees working under them. He/she must ensure that the
contractor or the equivalent abide by the prescription of law regarding labour
compensation, labour safety and labour sanitation.
2- If the contractor or the intermediary with a similar role does not
pay fully, does not pay the employee or does not ensure the other rights and
interests of the employee, the employer who is the chief owner of the contract
has the responsibility to pay the employee and ensure his/her other rights and
interests. In this case, the employer who is the chief owner of the contract is
entitled to request the contractor or the intermediary with a similar role to
pay compensation to the employee or ask the competent State agency to settle
the dispute as prescribed by law.
Article 66.- When a merger or
division of the business or assignment of ownership, managerial power or the
right to use the business’s property occurs, the succeeding employer has the
responsibility to pay the salary and assure other rights and interests of the
employee. In the event of bankruptcy of the business, the employee shall have
the superior right in the settlement of debts of the business, including
salary, severance allowance, social insurance and other rights, interests,
benefits of the employee written in the collective accord and labour contract
already signed.
Article 67.-
1- When he/she or his/her family meets with difficulty, the employee is
entitled to an advance payment of his/her salary on terms agreed upon by the
two parties.
2- The employer shall advance payment of salary to the employee who must
temporarily suspend his/her work to perform his/her civil obligations.
3- The advance payment of salary to the employee who is under temporary
custody or detention shall be defined by the Government.
Chapter VII
WORK AND BREAK TIME
Article 68.-
1- The work day shall not exceed 8 hours nor 48 hours per week. The
employer is entitled to schedule the working hours daily or weekly but must
notify the employees in advance.
2- Work shifts shall be shortened by one or two hours for employees
working in especially heavy, noxious or dangerous jobs, as prescribed in the
list of such jobs published by the Ministry of labour, War Invalids and Social
Welfare and the Ministry of Public Health.
Article 69.- The employer and the
employee may agree on overtime hours, but the length of such overtime shall not
exceed four hours per day nor 200 hours per year.
Article 70.- Night working hours are
considered to be from 22:00 hours to 6:00 hours the following day, or from
21:00 hours to 5:00 hours the following day, depending on the climatic zones
set by the Government.
Section II.- BREAK
TIME
Article 71.-
1- The employee is entitled to at least a half an hour of rest inclusive
of the work time if he/she works continuously for eight hours.
2- The employee on a night shift is entitled to at least 45 minutes of
rest inclusive of the work time.
3- The employee working on a night-shift is entitled to at least 12
hours of rest before beginning another shift.
Article 72.-
1- During each week, the employee is entitled to at least one day of
rest (24 straight hours).
2- The employer may arrange the weekly rest day on Sunday or any other
fixed day in the week.
3- In special cases, where the rest day cannot be arranged weekly due to
the work cycle, the employer must ensure that the employee can have an average of
four days of rest at least in a month.
Article 73.- The employee is entitled
to abstain from work and receive full pay on the following holidays:
- New Year's Day (solar calendar): one day;
- Lunar New Year Festival: four days (the last day of the lunar year and
the first three days of the new lunar year);
- Victory Day: one day (April 30);
- International Labour Day: one day (May 1st);
- National Day: one day (September 2nd);
If one of the above-stated holidays coincides with a weekly non-working
day, the employee is entitled to observe the holiday on the following day.
Article 74.-
1- The employee with 12 months' service, at a business or with an
employer, is entitled to an annual leave with full pay under the following
specifications:
a/ 12 days for a person working in normal conditions;
b/ 14 days for a person working in heavy, noxious or dangerous jobs, in
places with harsh living conditions, or for persons under 18 years of age;
c/ 16 days for persons working in especially heavy, noxious and
dangerous jobs, and for persons working in heavy, noxious and dangerous jobs in
places with harsh living conditions.
2- The time for travel, not inclusive of the annual leave, shall be
defined by the Government.
Article 75.- The number of days in an
annual leave shall increase proportionally with the seniority of the employee
at a business or with an employer, at the rate of one day for every five years.
Article 76.-
1- The employer is entitled to set the calendar for annual leaves after
consulting the Executive Committee of the local Trade Union and must notify it
in advance everyone in the business.
2- The employee may agree with the employer to divide his/her annual
leave into many shorter periods. Those working in remote areas may elect to
combine leave of two years into a single leave. If the employee wants to
combine leave of three years, he/she must obtain the consent of the employer.
3- The employee, who due to work severance or for other reasons, has not
taken his/her annual leave or has not used all the days in that annual leave,
shall paid for the pays for which he/she is entitled to take as part of his/her
fully paid leaves.
Article 77.-
1- The employee on annual leave shall receive an advance payment equal
to, at minimum, the pay for the days during leave. The travel expenditures and
the salary of the employer during the days he/she spends on traveling shall be
agreed upon by the two parties.
2- The employee with less than 12 months of work shall enjoy a number of
days of leave corresponding with the length of his/her employment. This leave
may be paid in cash.
Section III.- LEAVE
FOR PERSONAL MATTERS, UNPAID LEAVE
Article 78.- The employee is entitled
to fully paid leave for personal matters in the following situations:
1- Marriage: three days;
2- Marriage of his/her son or daughter: one day;
3- Death of a parent (including parents of the husband or the wife),
death of spouse, death of a son or a daughter: 3 days.
Article 79.- The employee may agree
with the employer to take unpaid leaves.
Section IV.- WORK TIME, BREAK TIME FOR PERSONS PERFORMING JOBS
OF A SPECIAL NATURE
Article 80.- The work and break time
of persons working at sea, in mines and doing other jobs on a special nature
shall be defined by the Government.
Article 81.- The work and rest
periods of the employee employed under contracts of less than one day or less
than one week or under package contracts, shall be agreed upon by the employee
and the employer.
Chapter VIII
LABOUR DISCIPLINE,
MATERIAL LIABILITY
Article 82.-
1- Labour discipline is the set of norms regarding the time, technology
and management of production and business. It is stipulated in the labour
regulation.
The labour regulation must not contravene the labour legislation and
other legislation. A business employing ten or more employees must have a
written labour regulation.
2- Before publishing the labour regulation, the employer must consult
the Executive Committee of the local Trade Union at the business.
3- The employer must register the labour regulation with the provincial labour
office. The labour regulation shall take effect from the day of registration.
Within ten days of receiving the labour regulation, the labour provincial labour
office must issue a notice of registration. If no notification is received
after this period, the labour regulation shall automatically take effect.
Article 83.-
1- A labour regulation must comprise the following essential points:
a/ The work and break times;
b/ Discipline in the business;
c/ Labour safety and labour sanitation at the work place;
d/ Protection of property and technology and trade secrets of the
business;
e/ Acts which violate labour discipline, disciplinary measures and
material liability.
2- The labour regulation must be notified to each employee and its main
points must be posted up at the necessary places in the business.
Article 84.-
1- An employee who violates the labour discipline shall, depending on
the seriousness of his/her fault, be subjected to one of the following
disciplinary measures:
a/ Reprimand;
b/ Transfer to another job with a lower pay for a maximum of six months;
or
c/ Dismissal.
2- It is forbidden to apply many disciplinary measures at the same time
against an act of violation of the labour discipline.
Article 85.-
1- Dismissal, as a disciplinary measure, can be applied only in the
following circumstances:
a/ The employee has committed an act of theft, embezzlement or
disclosure of trade and technological secrets or another act which causes
serious damage to property and other interests of the business.
b/ The employee, who has been disciplined and transferred to another
job, commits a new offense while the term of the earlier disciplinary measure
is still in effect.
c/ The employee is absent without authorization and without a plausible
reason from work for seven days in a month or 20 days in a year.
2- After dismissing an employee, the employer must report the dismissal
to the provincial labour office.
Article 86.- The time limit for
handling a violation of the labour discipline is three months from the date of
the violation and must not exceed six months even in special cases.
Article 87.-
1- When selecting on the disciplinary measure against the violator of
the labour discipline, the employer must prove the offense of the employee.
2- The employee has the right to defend him/herself or ask for a defense
by a solicitor, a people's defender or any other person.
3- When examining an alleged labour discipline violation, three must be
the presence of the concerned employee and the participation of the
representative of the Executive Committee of the local Trade Union at the
business.
4- The proceedings of a disciplinary case regarding a violation of the labour
discipline must be preserved in writing.
Article 88.-
1- A violator of the labour discipline shall be automatically
reinstated, if he/she does not commit another violation within three months
from the date of the previous reprimand and within six months from the date of
the previous transfer to another job.
2- An employee who is disciplined by transfer to another job shall be
considered for reduced sanction after having served half the term of the
sanction and showing progress in mending his/her ways.
Article 89.- The employee who damages
instruments or equipment or who otherwise causes damage to property of the
business, must pay compensation as prescribed by law for that. If the damage is
not serious and is due to inadvertence, the maximum compensation shall not
exceed three months of his/her salary and shall be gradually subtracted from
his/her salary, as stipulated in Article 60 of this Code.
Article 90.- The employee who causes
a loss of tools, equipment or other property assigned by the business, or who
causes a material consumption in excess of the allowed level shall, depending
on each case, pay partial or full compensation at the market price. The
employee shall make compensation according to the responsibility contract, if
such a contract has been signed. He/she shall not have to make any compensation
in case of force majeure.
Article 91.- The order of, and
procedure for, the compensation of damages stipulated in Article 89 and 90
shall apply as set forth in Articles 86 and 87 of this Code.
Article 92.-
1- The employer is entitled to suspend temporarily the work of the
employee if the employer finds that the suspected violation involves complex
matters and that the continued presence of the concerned employee at work might
impede the inquiry. This suspension can be conducted only after consultation
with the Executive Committee of the local Trade Union.
2- The temporary suspension of an employee's work shall not exceed 15
days, and even in special cases, it shall not exceed three months. The employee
is entitled to an advance payment representing 50% of his/her salary for the
whole duration of the suspension before the suspension takes effect.
After the period of temporary suspension the employee must be
reinstated.
3- If the employee is found to have violated the labour discipline and
is sanctioned, he/she shall not have to return the advance payment.
4- If the employee is found not in violation of the labour discipline,
the employer must pay the employee his/her full wages and subsidies for the
period of the temporary suspension.
Article 93.- If the employee finds
that the penalty imposed on him/her is not justified, that employee, who is
sanctioned for violation of labour discipline, who is subjected to temporary
suspension from work or who is made to pay compensation according to his/her
material liability, is entitled to protest to the employer or the competent
authority or request the settlement of the labour dispute as prescribed by law.
Article 94.- If the competent
authority concludes that the decision of the employer to discipline the
employee is unjustified, the employer must annul that decision, publicly
apologize to him/her, rehabilitate his/her honor and restore all his/her
material benefits.
Chapter IX
LABOUR SAFETY, LABOUR SANITATION
Article 95.-
1- The employer has the responsibility to fully provide the employees
with equipment for labour safety and labour sanitation and to improve their
working conditions. The employee must observe the regulation on labour safety, labour
sanitation and the labour rules of the business. All organizations and
individuals related to labour and production must observe legislation on labour
safety, labour sanitation and environmental protection.
2- The Government shall set up the national program for labour
protection, labour safety, labour sanitation and integrate it in the
social-economic development plan and budget of the State; invest in scientific
research and support the development of enterprises engaged in producing
instruments for labour safety, labour sanitation and equipment for personal safety;
and publish the standards, rules and measures for labour safety and labour
sanitation.
3- The
Article 96.-
1- In new construction, or in the expansion and transformation, of establishments
for production, utilization, maintenance, storage and stockpiling of machines,
equipment, materials and substances, which require strict labour safety and labour
sanitation, measures must be provided to ensure labour safety and labour
sanitation at the work places of the employees and the environment as
prescribed by law.
The list of machines, equipment, materials and substances requiring
strict labour safety and labour sanitation shall be published by the Ministry
of Labour, War Invalids and Social Welfare and the Ministry of Public Health.
2- The production, utilization, maintenance and transportation of
machines, equipment, materials, energy, electricity, chemicals, fertilizers,
herbicides, rat poisons as well as the change of technology and importation of
new technology shall be done in conformity with the standards of labour safety
and labour sanitation. The machinery, equipment, material and substances which
require strict labour safety and sanitation must be declared, registered and
licensed by the State Inspection Office on labour safety or labour sanitation.
Article 97.- The employer must ensure
that the place of employment meet the standards on space, ventilation, lighting
and the prescribed maximum limits on dust, steam, noxious gases, radiation,
magnetism, heat, noise, vibration and other harmful factors. These factors must
be controlled and measured regularly.
Article 98.-
1- The employer must provide regular control and maintenance of the
machines, equipment, building structures and storage according to the standards
of labour safety and sanitation.
2- The employer must equip those parts of machines and equipment at the
business which are likely to provoke accidents with requisite safety features
and guards. At the work place of the business, in places where machines and
equipment are installed, and in areas where noxious and dangerous elements are
present, arrangements must be made to provide protection against accident,
including the posting of prominent instructing signals on labour safety and labour
sanitation at visible places.
Article 99.-
1- When at a place of work, machinery or equipment, there is a danger of
labour accident or occupational disease, the employer must take remedial
measures immediately or must order immediate cessation of operations at the
said place until the danger has been removed.
2- The employee has the right to refuse to work or to leave the working
place when he/she detects that an imminent labour accident is seriously
threatening his/her life or health, but he/she must immediately warn the person
directly responsible for the danger. The employer must not force the employee
to continue his/her work or return to the working place so long as the danger
has not been removed.
Article 100.- A working place where
dangerous and noxious elements exist and are likely to provoke labour
accidents, must be equipped by the employer with technical and medical devices
as well as appropriate labour protection equipment, to ensure prompt first aid
when an accident occurs.
Article 101.- The employee performing
dangerous or noxious jobs must be equipped adequately with personal protection
means.
The employer must ensure the provision of means for personal protection,
consistent with the standards of quality and design prescribed by law.
Article 102.- In hiring and deploying labour,
the employer shall base his/her decision on the health criteria for each type
of work. The employer must organize training and guidance for the employee on
the regulations and measures for safety and sanitation, as well as the dangers
of accident which need to be aware of in the work of each employee.
The employee must be given a health check at the time of hiring and
periodical health checks according to the prescribed requirements, the cost of
the health checks for the employee is borne by the employer.
Article 103.- The business has the
responsibility to organize health care for the employees and must give prompt
first aid and emergency aid to the employees when necessary.
Article 104.- The employee working at
places where dangerous or noxious elements exit shall receive compensation in
kind, enjoys preferential treatment in the setting of work and break time, as
prescribed by law.
The employee working in exposure to noxious elements or bacteria must be
provided by the employer with measures for detoxification and disinfection and
personal hygiene after work.
Article 105.- A labour accident is an
accident that causes injuries to any party or function of the body of the
employee or death to the employee during the course of work associated with the
execution of a job or a task.
The victim of a labour accident must be given prompt first aid and
thorough treatment. The employer must take responsibility, as prescribed by
law, for the occurrence of the labour accident.
Article 106.- An occupational disease
is a disease caused by the harmful effects of the labour conditions on the
employee. A list of the occupation diseases shall be published by the Ministry
of Public Health and the Ministry of Labour, War Invalids and Social Welfare,
after consultation with the
The employee suffering from an occupational disease must be provided
with thorough treatment and periodical medical checks and a specific medical record
must be maintained for that employee.
Article 107.-
1- The employee incapacitated by either a labour accident or an
occupational disease shall receive a general examination by the Labour Medical
Examination Board to classify both his/her injury and the rate of his/her
disability and shall undergo rehabilitation to restore his/her labour
capabilities. If later the employee can continue to work, he/she shall be
assigned a job suited to his/her health, according to the conclusion of the Labour
Medical Examination Board.
2- The employer must bear all the medical costs, from the first aid and
emergency care through completion of the treatment to the victim of labour
accident or occupational disease. The employee is entitled to social insurance
in case of labour accident or occupational disease. If the business has not
joined any form of statutory social insurance, the employer must pay the
employee a sum equal to that provided for in the Social Insurance Statute.
3- The employer has the responsibility to pay compensation in a amount
equal to, at minimum, 30 months of the salary of the employee who suffers a
reduction by 81% and more of his/her labour capacity, or an equivalent amount
to the close relatives of an employee who dies as a result of a labour accident
or an occupational disease not of his/her own fault. When the injury or death
of an employee is the result of his/her own fault, the employee is the result
of his/her own fault, the employee still receive an allowance equal to, at
minimum, 12 months of his/her salary.
Article 108.- All labour accidents and
cases of occupational disease must be declared, investigated, recorded in
writing, statisticized and periodically reported as prescribed by law.
It is strictly forbidden to conceal or falsely declare or report labour
accidents and occupational diseases.
Chapter X
SPECIFIC PROVISIONS ON WOMEN'S LABOUR
Article 109.-
1- The State ensures the right to equality of women to men in all
domains of employment and shall adopt policies encouraging employers to create
conditions for female employees to have regular jobs. It should also widely
apply to female employees the system of flexible work schedule, non-full work
day, non-full work week, and take-home work.
2- The State shall adopt for female employees policies and measures to
expand their employment step by step, improve their working conditions, upgrade
their professional standard, care for their health, and promote their material
and spiritual welfare with a view to helping the female employees effectively
promote their professional capabilities and harmoniously combine work with
family life.
Article 110.-
1- The State agencies have the responsibility to devise diversified and
convenient forms of training for female employees to provide them with skills
for jobs other than their incumbent ones, and to facilitate the use of female labour
in a manner suitable to the physical characteristics of women as well as their
maternal function.
2- The State shall adopt policies of preferential treatment and tax
reduction to the businesses employing a predominantly female labour force.
Article 111.-
1- Gender discrimination against female employees and abuse of their
honor and dignity by the employer are strictly forbidden.
The employer must observe the principle of gender equality in
recruitment, utilization, pay raise and remuneration for work performed.
2- The employer must give priority to the woman who meets all the
requirements for a job position that the business is seeking to fill and which
can be filled by either a man or a woman.
3- The employer may not dismiss or unilaterally terminate a labour
contract with a female employee for reasons of marriage, pregnancy, maternity
leave or of caring for her child under 12 months of age, unless the business
terminates its operation.
Article 112.- The pregnant female
employee is entitled to unilaterally terminate her labour contract without
having to pay compensation, stipulated in Article 41 of this Code, if she can
produce a certification by a doctor that there will be harmful effects on the
fetus if she continues working. In this case, the time limit during which the
female employee has to notify her employer in advance about her job termination
shall depend on the time prescribed as safe for her by the doctor.
Article 113.-
1- The employer is not allowed to use female labour for heavy or
dangerous jobs or jobs which necessitate exposure to noxious substances of
harmful effects on the reproductive and child-rearing function of women. The
list of such substances is to be published by the Ministry of Labour, War
Invalids and Social Welfare and the Ministry of Public Health.
Businesses employing female labour for the above mentioned jobs must
adopt plans for retraining in order to transfer gradually such female employees
to more appropriate jobs, must increase health protection, and must improve the
working conditions or reduce the work time.
2- The employer may not use female employees of any age for permanent
work in mines or jobs requiring constant immersion in water.
Article 114.-
1- The female employee is entitled to take leave before and after child
birth, for four to six months, according to prescriptions by the Government and
depending on the working conditions, the character of the job and whether it is
a heavy or noxious job or a job in a remote region. If she gives birth to a
twin or more children, the mother is entitled to another 30 days of leave for
each additional child. The rights and interests of the female employees during
maternity leave are defined in Article 141 and 144 of this Code.
2- Upon the end of the maternity leave, the female employee may take and
additional unpaid leave, as may be agreed with the employer, if she so
requests. The female employee may return to work before the end of her
maternity leave, but no sooner than two months after the childbirth, if her
doctor certifies in writing that her return to work will not harm her health.
However, she must notify the employer in advance. In this case the female employee
shall continue to receive the childbirth allowance besides the pay for her labour.
Article 115.-
1- The employer may not assign a female employee who is seven or more
months pregnant or who is caring for her child of less than 12 months of age to
overtime work, nighttime work or work involving significant travel.
2- From the seventh month of her pregnancy onward, the female employee
performing heavy labour shall be assigned to a lighter job or shall have her
work day reduced by one hour, while continuing to receive full pay.
3- The female employee is entitled to 30 minutes of rest per workday
during her menstrual period. The female employee caring for her child of less
than 12 months of age is entitled to 60 minutes off during work time while
continuing to receive full pay.
Article 116.-
1- At locations where female employees work, there must be a place to
change, a bathroom and a room for women's hygiene.
2- In places where a large female labour force is employed, the employer
has the responsibility to help organize day-care centers for children, or cover
part of the cost incurred to the female employees in sending their children to
day-care centers.
Article 117.-
1- During her leave for pre-natal examination, for taking a family-planning
measure, or on account of a miscarriage, tending a sick child under seven years
of age or of adopting a new-born, the female employee shall still receive a
social insurance allowance or shall be paid a sum equivalent to the social
insurance allowance by the employer. The duration of the leave and the level of
allowance stipulated in this item shall be defined by the Government. If the
sick child is cared for by a person other than the mother, the mother shall
still receive the social insurance allowance.
2- Upon completion of her statutory maternity leave and even the
additional unpaid leave allowed to her, the female employee shall still be
assured of her job when she returns to work.
Article 118.-
1- At businesses employing a large female labour force, the persons
responsible at the managerial board must assign an individual to monitor female
labour affairs. Before taking any decision related to the rights and interests
of the female employees and their children, consultation must be made with the
representative of the female employees.
2- Among the labour inspectors there must be an appropriate number of
women inspectors.,
Chapter XI
SOME SPECIFIC REGULATIONS CONCERNING MINORS
AND OTHER TYPES OF LABOURERS
Article 119.-
1- A minor labourer is one under 18 years of age. Where the employment
of minors occurs, there must be a separate record of each minor's full name,
date of birth, current jobs, the result of each periodical health check, which
must be produced to the labour inspector on request.
2- It is strictly forbidden to misuse the labour of minors.
Article 120.- It is forbidden to
employ children below 15 years of age, except for those professions and jobs to
be defined by the Ministry of Labour, War Invalids and Social Welfare.
With regard to the occupations and jobs which are allowed to employ
children under 15 years of age for work, job learning or apprenticeship, their
admission and the utilization of their labour must be consented and monitored
by their parents or tutors.
Article 121.- An employer is allowed
to employ minors only for jobs suited to a minor's health in order to protect
the development of their physical and intellectual conditions as well as their
personality. The employer has the responsibility to care for the minor employee
in the domain of labour, wages, health and education during employment.
It is forbidden to employ minors in heavy and dangerous jobs or jobs
necessitating exposure to noxious substances prescribed in the list published by
the Ministry of Labour, War Invalids and Social Welfare and the Ministry of
Public Health.
Article 122.-
1- The work hours of a minor employee may not exceed seven hours per day
nor 42 hours per week.
2- The employer may assign minor employees to overtime work or night
time work only in a number of occupations and jobs defined by the Ministry of Labour,
War Invalids and Social Welfare.
Section II.- ELDERLY LABOURERS
Article 123.- An elderly employee is
one over 60 years of age for men and over 55 years of age for women.
In the last year before retirement, the elderly employee is entitled to
a reduction of one hour from his/her daily work time or to the system of
non-full work day or non-full work week, according to prescriptions by the
Government.
Article 124.-
1- If the need arises, the employer may agree with the elderly employee
to extend the labour contract or to sign a new labour contract, as provided for
in Chapter IV of this Code.
2- If, after retirement, the elderly employee works under a new labour
contract, apart from the benefits he/she enjoys from the pension system, the
elderly employee shall enjoy the benefits stipulated in the labour contract.
3- The employer has the responsibility to care for the health of the
elderly employee and may not employ the elderly employee in heavy or dangerous
jobs or jobs necessitating regular exposure to noxious substances which
negatively impart the health of the elderly employee.
Section III.- DISABLED LABOURERS
Article 125.-
1- The State protects the right of the disabled to work and encourages
the employment of, and job creation for, the disabled. The State shall devote
part of its annual budget to help the disabled recover their health,
rehabilitate their work capacities or learn a trade. The State shall adopt
policies of granting low-interest loans to the disabled so that they can
procure jobs for themselves and stabilize their lives.
2- Institutions which admit the disabled for job training are entitled to
a tax reduction, to low-interest loans and other preferential treatments in
order t create conditions to enable the disabled to learn a trade.
3- The Government shall set a mandatory quota for disabled labour for a
number of occupations and jobs. If a business with these occupations and jobs
does not accept this quota, it shall pay a sum proscribed by the Government to
the employment fund to help in the creation of employment for the disabled. Any
business which employs a number of disabled than the assigned quota shall
receive financial support or low-interest loans from the Government in order to
create working conditions suitable for disabled employees.
4- The work hours for a disabled employee shall not exceed seven hours
per day and 42 hours per week.
Article 26.- Vocational institutions
as well as production and business establishments, which are specifically
reserved for the disabled, shall receive financial assistance in their initial
stage to install workshops, schools and classrooms and to purchase equipment
and facilities and shall enjoy tax exemption and low-interest loans.
Article 127.-
1- Institutions which provide vocational training for the disabled or
employ the disabled must observe regulations concerning appropriate working
conditions, labour tools, labour safety, labour sanitation and must provide
regular care for the health of the disabled.
2- It is forbidden to assign the disabled who have lost more than 51% of
their ability to overtime or night work.
3- The employer may not employ the disabled for heavy or dangerous jobs
or jobs which necessitate regular exposure to noxious substances, as defined in
the list published by the Ministry of Labour, War Invalids and Social Welfare
and the Ministry of Public Health.
Article 128.- The employee who is an
injured or diseased military personnel shall, apart from the benefits defined
in this Section, enjoy the State preferential treatments with regard to war
invalids and diseased soldiers.
Section IV.- EMPLOYEES WITH HIGH PROFESSIONAL AND TECHNICAL SKILLS
Article 129.-
1- The employee with a high professional and technical skill is entitled
to hold multiple jobs and posts through integrating labour contracts with many
employers on condition that the employee ensure a full implementation of the labour
contracts he/she has already signed and notify all the employers.
2- The employee with a high professional and technical skill shall enjoy
copyright or patent protection, as prescribed by law, when he/she devises a
useful solution, an innovation or an invention. When his/her research project
is funded by the business's capital, he/she shall receive his/her share of the
economic results according to the contract already signed for that research
project.
3- The employee with a high professional and technical skill is entitled
to take long-term unpaid leave or to partial pay in order to conduct his/her
research work or to improve his/her standard while continuing to hold his/her
job at the office or business by mutual agreement with the employer.
4- The employee with a high professional and technical skill shall be
prioritized for the application of the regulations stipulated in Items 1 and 2,
Article 124, of this Code.
5- If the employee with a high professional and technical skill
discloses a technological or business secret of the institution which employs
him/her, he/she shall, beside being disciplined under the terms of Article 85
of this Code, pay compensations for damage, as provided for in Articles 89 and
90 of this Code.
Article 130.-
1- An employer is entitled to enter into a labour contract with any
person with a high professional and technical skill, including State employees
in jobs not prohibited by the Public Servants Statute.
2- The employee with a high professional and technical skill shall
receive preferential treatment by the State and the employer, both of whom
shall create favorable conditions for the development of such employee's
capabilities and talents for the benefit of the business and the country. Such
preferential treatment accorded to the employee with high professional and
technical skill shall not be regarded as discrimination in the use of labour.
3- The State shall encourage and provide special preferential policies
with regard to employees with high professional and technical skills who are
willing to go to work in the highlands, border regions, offshore islands and
other difficult places.
Section V.- EMPLOYEES WORKING FOR FOREIGN ORGANIZATIONS AND
INDIVIDUALS IN
AND VIETNAMESE EMPLOYEES WORKING ABROAD
Article 131.- Vietnamese citizens
working in businesses founded under the Law on Foreign Investment in Vietnam,
in the export processing zones, in foreign or international agencies or
organizations in Vietnam, or working for individuals who are foreign nationals
in Vietnam or foreigners working in Vietnam must all abide by the Vietnamese labour
legislation and are protected by the Vietnamese labour legislation.
Article 132.-
1- The businesses, agencies, organizations and individuals, described in
Article 131 of this Code, that want to employ Vietnamese must go through the
employment service, defined at Article 18 of this Code. If the employment
service introduces or recruits labourers who do not meet their requirements, these
businesses, organizations or individuals are entitled to make the recruitment
directly but they must notify the labour office at the provincial level or
another competent authority.
With regard to jobs requiring high technical or managerial skills which
the Vietnamese side cannot yet fil, the business, organization or individual is
authorized to employ a foreigner for a certain period of time but it must have
a planned training program so that a Vietnamese may soon fulfill the job
requirement and replace the foreigner.
2- The minimum wage of a Vietnamese employed as defined in Article 131
of this Code shall be set and published by the Government after consulting the
3- Work time, break time, labour safety, labour sanitation, social
insurance, settlement of labour disputes in the businesses, organizations and
in other circumstances defined in Article 131 of this Code shall be determined
as established by the Vietnamese Government.
Article 133.-
1- Foreigners working on a permanent basis for a Vietnamese business,
organization or individual or for a business with foreign investment in
2- A foreigner working in
Article 134.-
1- The employee, who is a Vietnamese citizen allowed to go to work in a
foreign country under a labour contract and who comes under the management of a
foreign organization or individual, shall have to obey the prescriptions of the
labour legislation of that country. If he/she works under an agreement on labour
cooperation, signed between the Vietnamese government and the government of
that country, he/she must abide by the prescriptions of the labour legislation of
that country and the said agreement.
2- With regard to the employee who is a Vietnamese citizen allowed to go
to work in a foreign country, under a construction contract signed by a
Vietnamese business, and who comes under the management of, and is paid, by
this business, the provisions of this Code shall apply unless otherwise
provided for in an international convention which the Socialist Republic of
Vietnam has signed or acceded to.
Article 135.-
1- An employee who goes to work in a foreign country is entitled to be
apprised of his/her rights, interests and obligations, to be guaranteed
consular and juridical protection by a competent overseas Vietnamese office, to
be able to repatriate his/her income in foreign currencies and his/her personal
property to the country, to be entitled to the social insurance benefits and
other policies and regimes according to the laws of Vietnam and that foreign
country.
2- The employee who goes to work in a foreign country has the duty to
contribute part of his/her salary to the social insurance fund.
Section VI.- SOME OTHER TYPES OF LABOUR
Article 136.- The person who works in
a special occupation or job in the domain of arts shall enjoy a number of
regimes on apprenticeship and retirement ages; on labour contract commitments;
on work and break time; and on salary and wage subsidies, bonuses, labour
safety and labour sanitation, according to prescriptions by the Government.
Article 137.-
1- The employee may agree with the employer to perform work to be done
regularly at home while enjoying all the benefits of an employee actually
working at the business.
2- An individual receiving work to do at home by sub-contract does not
come under the jurisdiction of this Code.
Article 138.- At businesses employing
fewer than 10 employees, the employer must still assure the basic interests of
the employee, as prescribed in this Code, but is entitled to a number of
reductions or exemptions from certain requisite standards and procedures
prescribed by the Government.
Article 139.-
1- A person who is hired to do housework can make either a verbal or
written labour contract. But if he/she is hired to be a caretaker, the labour
contract must be in writing.
2- The employer must respect the honor and dignity of the houseworker
and has the responsibility to look after him/her if he/she falls sick or meets
with accident.
3- The salary, work time, break time and the allowances of the
houseworker are agreed upon by the two parties during the making of the labour
contract. The employer shall bear the travel expenses of the houseworker on
his/her return to his/her place of permanent residence upon the end of his/her
employment. However, if the houseworker unilaterally decides to cancel his/her
employment before the expiration of the labour contract.
Chapter XII
SOCIAL INSURANCE
Article 140.-
1- The State shall enact policies of social insurance to expand and
raise gradually the material well-being of the employee and his/her family,
thus contributing to the stabilization of their life in times of sickness, pregnancy,
retirement, death, labour accident, occupational disease, loss of employment or
other misfortunes and difficulties.
2- Various forms of obligatory or voluntary social insurance shall be
provided to each type of employee and business, to assure that the employees
have access to appropriate forms of social insurance.
Article 141.-
1- Obligatory forms of social insurance shall apply to businesses
employing more than 10 employees. At these businesses, the employer as well as
the employee must pay the social insurance premiums, as defined at Article 149
of this Code, and the employee is beneficiary of social insurance allowances in
the event of sickness, labour accident, occupational disease, pregnancy,
retirement or death.
2- With regard to the employee working in a business employing fewer
than 10 employees, performing jobs lasting less than three months, or jobs of a
seasonal or temporary character, the employee's social insurance allowances
shall be included in his/her salary paid by the employer, so that he/she can
join a social insurance scheme of his/her choice or look after his/her own
insurance.
Article 142.-
1- In the event of sickness, the employee is entitled to medical
examinations and treatment at medical facilities, according to the provisions of
the medial insurance.
2- The employee who becomes sick, and is allowed by the doctor to be
treated at home or at the hospital, shall receive a sickness allowance paid by
the social insurance fund.
The level of this sickness allowance depends on the type and condition
of work, the social insurance premiums the employee has paid and the time
length of his/her buying them. This level is set by the Government.
Article 143.-
1- During the employee's medical treatment following a labour accident
or as a result of an occupational disease, the employer must pay the full
salary and medical expenses for the affected employee, as provided for in Item
2, Article 107, of this Code.
After the treatment, depending on the level of his/her disability as a
result of the labour accident or occupational disease, the employee shall be
examined by the Medical Examination Board, which will classify the degree of
his/her disability for the allocation of his/her disability allowance to be
paid either once for all or monthly by the social insurance fund.
2- If, during the course of the employment, the employee dies as a
result of a labour accident or occupational disease, his/her closest relatives
shall receive a death indemnity, as defined in Article 146 of this Code, plus
an allowance from social insurance amounting to 24 months of the minimal salary
set by the Government.
Article 144.-
1- If during her maternity leave, as defined at Article 114 of this
Code, if the female employee has paid her social insurance premium, she shall
receive a social insurance benefit equal to 100% of her salary, plus an
allowance equal to one month salary if she gives birth to her first or second
child.
2- The other regimes concerning female employees shall apply as defined
at Article 117 of this Code.
Article 145.-
1- The employee shall benefit from a monthly pension if he/she meets the
following conditions on age and social insurance premium:
a/ The employee is 60 years of age for men and 55 years of age for
women. The personable age of the employees who work on heavy or noxious jobs or
in highlands, border regions, off-shore islands and some special cases shall be
defined by the Government.
b/ The employee has paid his/her social insurance premium for at least
20 years.
2- The employee who does not meet all the conditions stated above shall
also receive a monthly pension at a lower rate if he/she fills one of the
following conditions:
a/ He/she has reached the age stipulated at Point (a), Item 1, of this
Article and has paid his/her social insurance premiums for at least 15 years.
b/ The employee has paid his/her social insurance premiums for at least
20 years and is at least 50 years of age for men and 45 years of age for women
and who has lost at least 61% of his/her working capacity;
c/ The employee performs especially heavy or noxious jobs as prescribed
by the Government and has paid his/her social insurance premiums for at least
20 years and has lost at least 61% of his/her working capacity.
3- An employee who cannot meet the conditions for entitlement to the
monthly pension as defined in Items 1 and 2 of this Article shall receive a
package allowance.
4- The level of monthly pension and package allowance, defined in Item
1, 2 and 3 of this Article, depends on the levels of the premium and the number
of years it has been paid, which are prescribed by the Government.
Article 146.-
1- When an employee, a pensioner or a beneficiary of monthly allowances
for labour incapacitation, labour accident or occupational disease, dies, the
person in charge of his/her funeral shall receive a funeral allowance,
prescribed by the Government.
2- A monthly allowance shall be granted to the close relative of an
employee who dies as a result of a labour accident, an occupational disease,
who dies after having paid his/her social insurance premiums for more than 15
years, who dies while benefiting from a monthly pension or monthly allowance
for labour accident or occupational disease, who has children under 15 years of
age, or whose spouse or parents are past the working age whom he/she directly
catered for while he/she was living. If the deceased employee has no relatives
eligible for a monthly allowance or has not paid his/her social insurance premiums
for 15 years, his/her family shall receive a package allowance, but this may
not exceed an amount equal to 12 months of his/her salary or of the allowance
he/she had been receiving.
3- The beneficiary of the pension system, of the allowance for labour
incapacitation or the allowance for labour accidents, in degrees 1 and 2, or
occupational diseases, in degrees 1 and 2, prior to the effective date of this
Code, shall benefit from the death allowance provisions stipulated in this
Article.
Article 147.-
1- The time worked by an employee of a State owned business before this
Code becomes effective shall be covered by the social insurance if the employee
has not received the severance allowance or the package allowance paid by the
social insurance fund.
2- Social insurance benefits of pensioners, beneficiaries of monthly
allowances for labour incapacitation, labour accident, occupational disease and
death, prior to the effective date of this Code, shall be assured by the State
budget and shall be readjusted to fit in with the social insurance policy in
force.
Article 148.- Businesses engaged in
agriculture, forestry, fishery and salt production have the responsibility to
take part in different forms of social insurance suitable to the
characteristics of their production and use of labour in each branch, according
to the Statute on Social Insurance.
Article 149.-
1- The social insurance fund is funded by the following sources:
a/ Contribution by the employer representing 15% of the total wage fund;
b/ Contribution by the employee representing 5% of his/her wage;
c/ Contributions and allowances by the State to ensure the
implementation of the social insurance policy for the employee; and
d/ Other sources.
2- The social insurance fund is placed under unified management,
according to the financial regulations of the State and the system of
independent accounting, and is protected by the State. The fund is authorized
to take measures to preserve its value and increase its growth, according to
prescriptions of the Government.
Article 150.- The Government shall
issue the Statute on Social Insurance, establish a system of social insurance
and promulgate the Rules on Organization and Operation of the Social Insurance
Fund with the participation of the
Article 151.-
1- The employee taking part in the social insurance scheme shall receive
full social insurance benefits in an expeditious and timely manner.
2- Any dispute arising between the employee and the employer concerning
social insurance shall be settled according to the provisions of Chapter XIV of
this Code. If a dispute involves the social insurance agency, it shall be
settled according to the Rules on Organization and Operation of the Social
Insurance Fund.
Article 152.- The State encourages
employees, trade unions, employers and other social organizations to establish
social mutual assistance funds.
Chapter XIII
TRADE UNION
Article 153.-
1- Within six months after this Labour Code becomes effective, at an
operating business for which no trade union organization has been set up, and
within six months after a newly formed business becomes operational, the
provincial chapter of the Vietnam General Confederation of Labour shall set up
a provisional trade union organization to represent and protect the rights and
interests of the employees and the employee collective.
2- The operation of the provisional trade unions shall be specified by
the Government in coordination with the
Article 154.-
1- Once a trade union is established, according to the Trade Union Law
and the Trade Union Statute, the employer must recognize it.
2- The employer must closely cooperate with and create favorable
conditions for the Trade Union to operate according to the regulations of the Labour
Code and the Trade Union Law.
3- The employer is not allowed to discriminate against an employee who
establishes or joins a trade union or joining a trade union or participate in
trade union activities. The employer shall also not use economic measures and
other measures to interfere in the organization of and activities by the trade
union.
Article 155.-
1- The employer has the responsibility to ensure the necessary working
means for the trade union to operate.
2- The employee, who works part time for the trade union, may use a
portion of his/her working time to look after trade union matters and still
receive full pay from the employer. This portion of work time that may by used
to look after trade union matters shall be determined by the size of the
business and on the agreement between the employer and the executive committee
of the local trade union, but must not be fewer than three working days in a
month.
3- The full time trade union worker is paid by the trade union fund but
shall enjoy the same rights, interests and welfare benefits like any other
employee in the business, depending on the statute of the business or the
collective accord.
4- When the employer decides to dismiss or unilaterally terminate the labour
contract with an employee who is a member of the Executive Committee of the
local Trade Union, he/she must have the consent of this Committee. If the
concerned employee is President of this Committee, the employer must obtain the
consent from the trade union of a higher level.
Article 156.- The Vietnam General
Confederation of Labour and Trade Unions, as all levels, shall join the State
offices and representatives of the employers in discussing and settling
questions concerning labour relations. They are entitled to create service
agencies for job placement, vocational training, mutual assistance, legal
consultancy and community welfare for the employees, as well as other rights
defined in the Trade Union Law and this Code.
Chapter XIV
SETTLEMENT OF LABOUR DISPUTES
Article 157.-
1- A labour dispute is a dispute involving rights and interests related
to employment, salaries, incomes and other labour conditions, the
implementation of the labour contract, collective accord and questions arising
during the process of apprenticeship.
2- Labour disputes include both individual disputes between the employee
and the employer as well as collective disputes arising between the labour
collective and the employer.
Article 158.- Labour disputes are
settled on the following principles:
1- Direct negotiation and arrangement between the two parties to the
dispute, at the place where the dispute arises;
2- Reconciliation and arbitration based on respect for the rights and
interests of both parties, respect for the common interests of society and
observance of law;
3- Openness, objectivity, timeliness, expeditiousness and in conformity
with law; and
4- With the participation of the representative of the trade union and
of the employer in the process of settling the dispute.
Article 159.- A labour dispute may be
brought to the agency or organization in charge of settling labour disputes
when one party refuses to negotiate or the two parties have failed in their
negotiations, or when one or both parties apply for a settlement of their
dispute.
Article 160.-
1- In the process of settling a labour dispute, the parties to the
dispute have the right to:
a/ Participate in the process directly or through their representatives;
b/ Withdraw their demands or change the contents of their dispute; or
c/ Request the replacement of the person directly in charge of the
settlement if they can produce plausible reasons to prove that this person
cannot ensure objectivity and equity in the settlement of the dispute.
2- In the process of settling the labour dispute, the parties to the
dispute are obliged to:
a/ Supply all necessary documents and evidences as requested by the
agency or organization in charge of settling the dispute; and
b/ Implement in good faith that upon which agreement has been reached,
the reconciliation, the effective decision of the agency or organization in
charge of settling the labour dispute, and the verdict or the effective
decision of the People's Court.
Article 161.- The office or
organization in charge of settling a labour dispute has, within the scope of
their task and powers, the right to request the disputing parties, the
agencies, organizations and individuals concerned to supply documents and
evidences, to ask for expert testimony, to invite the participation of
witnesses and other persons concerned in the process of settling the labour
dispute.
Section
INDIVIDUAL LABOUR DISPUTES
Article 162.- The agencies and
organizations having the competence to settle individual labour disputes are:
1- The local Labour Reconciliation Council or the Labour Reconciliator from
the labour office in the district, town or city in a province (hereunder
referred to as the district level) in the places where no local Labour
Reconciliation Council exists; and
2- The People's Court.
Article 163.-
1- The local Labour Reconciliation Council, set up for a business with
10 or more employees, shall be composed of an equal number of representatives
of the employees and of the employer. The number of members of the Council
shall be decided by mutual agreement.
2- The term of the local Labour Reconciliation Council is two years. The
positions of the Chairman and Secretary of the Council shall be rotated between
the two sides. The Council operates according to the principle of agreement and
consensus.
3- The employer must provide the necessary conditions for the local Labour
Reconciliation Council to operate.
Article 164.-
The procedure for settlement of an individual labour dispute is
prescribed as follows:
1- The local Labour Reconciliation Council shall meet within seven days
after receiving the request for reconciliation. This meeting must be attended
by the two disputing parties or their mandated representatives.
2- The local Labour Reconciliation Council shall propose a
reconciliation plan for the parties to consider. If the two parties accept this
plan, an agreement on reconciliation shall be drafted and signed by the two
disputing parties, along with the President and the Secretary of the local Labour
Reconciliation Council. The two parties are obliged to fulfill the agreements
written in the record of reconciliation; and
3- If reconciliation fails, the local Labour Reconciliation Council
shall draft a report on the failure which describes the positions of the two
disputing parties and the Council, and which shall bear the signatures of the
two parties, the President and the Secretary of the Council. Copies of this
report shall be sent to the two parties not later than three days after the
failure of the reconciliation. Each party to the dispute has the right to ask
the district People's Court to settle the dispute. The dossier for the
reconciliation shall be sent to the People's Court along with the report on the
unsuccessful reconciliation.
Article 165.-
1- The Labour Reconciliator shall proceed, in the order defined at
Article 164 of this Code, in regard to the individual labour disputes at
businesses employing fewer and employer, or disputes regarding the execution of
an apprenticeship contract and a job training tuition.
2- The Labour Reconciliator must begin the reconciliation not later than
seven days after receiving the request for reconciliation.
Article 166.-
1- The district People's Court shall settle individual labour disputes,
upon request of at least one of the two disputing parties, after the local Labour
Reconciliation Council or Labour Reconciliator has been unable to facilitate a
reconciliation.
2- The following labour disputes can be settled by the district People's
Court, without having to go through the local Labour Reconciliation Council or Labour
Reconciliator:
a/ Disputes concerning the disciplinary measure by dismiss all or the
unilateral termination of the labour contract; and
b/ Disputes concerning the compensation for damages to the employer.
3- The employee is exempt from court fees for litigation concerning the
demand for salary, social insurance, compensation for consequences of a labour
accident, occupational diseases, compensation for damage, or indemnities for
dismissal and unlawful termination of the labour contract.
Article 167.- The time-limit for
settling individual labour disputes, which shall be determined to arise on the
date when each of the two disputing parties claims that its rights and
interests have been violated, is defined as follows:
1- One year for the labour disputes described at Item 1, Article 166, of
this Code; and
2- Six months for all other labour disputes.
Section II.- COMPETENCE AND PROCEDURE IN SETTLEMENT
OF COLLECTIVE LABOUR DISPUTES
Article 168.- The agencies and
organizations having the competence to settle collective labour disputes
comprise:
1- The local Labour Reconciliation Council or the Labour Reconciliator
of the district-level labour office where no local Labour Reconciliation
Council exists;
2- The provincial-level Labour Arbitration Council.
3- The People's Court.
Article 169.-
1- The local Labour Reconciliation Council, as defined at Article 163 of
this Code, has the jurisdiction to act as reconciliator also in the collective labour
disputes.
2- The Labour Arbitration Council at the provincial level is composed of
full-time or part-time members who are representatives of the labour office,
trade union, employers, lawyers, managers and prestigious social workers in the
locality. The Labour Arbitration Council at the provincial level comprises an
uneven number of members, with a maximum of nine members, over which a
representative of the provincial Labour Office presides.
The term of the Labour Arbitration Council shall be three years.
The Labour Arbitration Council shall act by majority vote and secret
ballots.
The Labour Office at the provincial level shall provide the necessary
conditions for the labour arbitration council to operate.
Article 170.- The procedure in the
settlement of collective labour disputes is defined as follows:
1- The local Labour Reconciliation Council or the Labour Reconciliator
shall commence the reconciliation within seven days after receiving a request
for reconciliation. The two disputing parties or their mandated representatives
must be present at the reconciliation meeting;
2- The local Labour Reconciliation Council or the Labour Reconciliator
shall present a reconciliation plan for the two parties to consider. If the
parties accept the plan, a report on the agreement shall be drafted and signed
by the parties to the dispute, along with the President and the Secretary of
the local Labour Reconciliation Council or the Labour Reconciliator. The two
parties are obliged to implement the reconciliation agreement;
3- When the reconciliation fails, the local Labour Reconciliation
Council or the Labour Reconciliator shall draft a report on the unsuccessful
reconciliation, with opinions and the signatures of the two disputing parties
as well as of the President of the Council or the Labour Reconciliator. Both
parties to the dispute have the right to request the Labour Arbitration Council
at provincial level for a settlement.
Article 171.-
1- The Labour Arbitration Council shall commence the reconciliation and
settle the collective labour dispute within 10 days after receiving the
request.
The lawful representatives of the two parties to the dispute must be
present at the meeting to settle the collective labour dispute. When necessary,
the Labour Arbitration council may invite higher levels of the local Trade
Union and the representative of the concerned State agency to attend the
meeting.
2- The Labour Arbitration Council shall present a reconciliation plan
for the two parties to consider. If the parties agree, a report on the
agreement shall be drafted with the signatures of the disputing parties, along
with that of the President of the Arbitration Council. The two parties are
obliged to comply with the provisions of the reconciliation agreement.
3- If the reconciliation fails, the Labour Arbitration Council shall settle
the dispute and immediately inform the two disputing parties of its decision.
If neither party to the dispute objects, the decision shall automatically take
effect.
Article 172.-
1- If the labour collective does not agree with the decision of the Labour
Arbitration Council, it may request the People's Committee to settle the
dispute or may stage a work strike.
2- If the employer does not agree with the decision of the Labour
Arbitration Council, he/she may request the People's Court to reconsider the decision.
The request of the employer for the reconsideration of the Labour Arbitration
Council's decision shall not preempt the right to strike by the labour
collective.
Article 173.-
1- While the Labour Reconciliation Council or the Labour Arbitration
Council is settling the labour dispute, neither party to the dispute is allowed
to take unilateral action against the other.
2- The work strike shall be decided by the Executive Committee of the
local Trade Union after the majority of the labour collective approve it by a
secret ballot or by signatures.
The Executive Committee of the local Trade Union shall send a
delegation, composed of no more than three persons to present a list of demands
to the employer and, at the same time, send a notice to the labour office at
the provincial level and notice of such demands to the provincial chapter of
the Vietnam General Confederation of Labour. The list of demands and the notice
must specify the questions in dispute, the contents of the demands, the result
of the vote or the signing in favor of the work strike and the point of time
when the strike shall begin.
3- It is strictly forbidden to engage in acts of violence or acts which
damage the machinery, equipment and other property of the business or any
violations of public order and safety during the strike.
Article 174.- Strikes are forbidden at
businesses of public service or businesses essential to the national economy or
national security and defense, as specified by the Government.
The State managerial agencies must periodically collect the opinions of
the representatives of the labour collectives and the employers at these
businesses in order to help settle in time the legitimate demands of the labour
collectives. When a collective labour dispute occurs, it shall be settled by
the provincial Labour Arbitration Council. If one of the two parties disagrees
with the decision of the Labour Arbitration Council, it may ask the People's
Court to settle the dispute.
Article 175.- If the strike is judged
to constitute a serious danger to the national economy or to public safety, the
Prime Minister is entitled to order the postponement or cessation of the
strike.
Article 176.-
1- The following strikes are unlawful:
a/ The strike does not proceed from a collective labour dispute, or
which exceeds the scope of labour relations;
b/ The strike exceeds the domain of the business; and
c/ The strike violates the provisions of Items 1 and 2, Article 173, and
Article 174, of this Code.
2- The determination of whether a strike is lawful or unlawful comes
under the jurisdiction of the People's Court.
Article 177.- The decision of the
People's Court on the strikes and collective labour disputes shall be final.
Article 178.-
1- If is strictly forbidden to engage in acts of harassment or
retaliation against the participants or leaders of strikes.
2- Any person who prevents the exercise of the right to strike, who
forces others to strike, who takes unlawful acts during the strike, who refuses
to comply with the decision of the Prime Minister or of the People's Court,
shall, depending on the extent of the offense, indemnify any damages, be
subject to administrative sanctions or be investigated for penal liability.
Article 179.- The settlement of
strikes and court rulings concerning labour shall be conducted by the Standing
Committee of the National Assembly.
Chapter XV
STATE MANAGEMENT OF LABOUR
Article 180.- The management of labour
by the State shall consist of the following main points:
1- Monitoring labour demand and supply and their evolution as a basis
for determining national policy, planning human resources, and distributing and
employing labour resources of the whole society;
2- Promulgating and guiding the implementation of legal documents on labour;
3- Elabourating and organizing the implementation of national employment
programs, moving population to create new economic zones and to send labour to
work abroad;
4- Making policies on wages, social insurance, labour safety, labour
sanitation and other policies on labour and social welfare, on the
strengthening of labour relations at businesses;
5- Organizing and conducting scientific research on labour, and
collecting statistics and information on labour, the labour market, the living
standards and incomes of the labourers;
6- Inspecting and controlling the implementation of the labour
legislation and handling the violations of the labour legislation, and settling
labour disputes according to the provisions of this Code; and
7- Expanding cooperative relations with foreign countries and
international organizations in labour matters.
Article 181.-
1- The Government shall exercise unified State management of labour on
the national scale.
The Ministry of Labour, War Invalids and Social Welfare shall perform
State management of labour at all branches and localities in the country.
2- The People's Committee at all levels shall exert State management of labour
within its locality. The local Labour Office shall assist the People's
Committee of the same level in its exercise of State management of labour,
according to the assignment of responsibilities by the Ministry of Labour, War
Invalids and Social Welfare.
3- The
4- The State shall create conditions for the employer to make
recommendations to the State agencies regarding matters of labour management
and employment.
Article 182.- Within 30 days after the
business begins operation, the employer must declare the use of labour and, in
the process of operation of a business, the employer must report changes in the
labour force to the local Labour Office, as prescribed by the Ministry of Labour,
War Invalids and Social Welfare. Also within 30 days after the business
terminates its operation, the employer must report to the local Labour Office
about the cessation of the employment of labour.
At businesses employing more than 10 employees, the employer must
maintain records regarding employees, their salaries and social insurance.
Article 183.- The employee shall be provided
with a labour-registration record and records on salary and social insurance,
as prescribed by law.
Article 184.-
1- The sending of Vietnamese citizens to work in a foreign country must
be done only with the requisite permit from the Ministry of Labour, War
Invalids and Social Welfare and other competent State authorities, as
prescribed by law.
It is strictly forbidden to send people to work abroad in contravention
of law.
2- The Ministry of Labour, War Invalids and Social Welfare shall issue labour
permits to foreigners who enter into
Chapter XVI
STATE INSPECTION ON LABOUR, SANCTIONS AGAINST VIOLATIONS OF LABOUR
LEGISLATION
Section
Article 185.- The State inspection on labour
includes inspections of labour, labour safety and labour sanitation.
The Ministry of Labour, War Invalids and Social Welfare shall inspect labour
and labour safety. The Ministry of Public Health and local medical offices
shall inspect labour sanitation;
Article 186.- The State inspection on labour
is to fulfill the following main tasks:
1- Inspecting the observance of regulations on labour, labour safety and
labour sanitation;
2- Investigating labour accidents and violations of the standards of labour
sanitation;
3- Examining and agreeing upon standards for measures for labour safety
in economic and technical feasibility and design plans, along with registering
and authorizing the use of machinery, equipment and materials requiring high
levels of labour safety, identified in a list drafted by the Ministry of Labour,
War Invalids and Social Welfare;
4- Participating in the examination and approval of the location of, and
the application of labour sanitation measures at, new or upgraded
establishments designed to produce, utilize, maintain, store or stockpile
radio-active and poisonous substances listed in the description by the Ministry
of Public Health;
5- Settling complaints and denunciations of employees of violations of
the labour legislation; and
6- Deciding on the sanctions against violations of the labour legislation
within its jurisdiction and recommending the competent authorities to handle
the violations under their jurisdiction.
Article 187.- When conducting the
inspection, the labour inspector has the right to:
1- Inspect and investigate and places and objects under his/her
inspection mandate at any time and without advance notice;
2- Request the employer and other related persons to supply documents
relevant to the inspection and investigation;
3- Receive and settle complaints and denunciations about violations of
the labour legislation, as prescribed by law;
4- Suspend temporarily the use of machines, equipment and work places
which threaten to cause labour accidents or serious pollution of the work
environment. He/she must take responsibility for this decision and immediately
report it to the competent State authority.
Article 188.- The labour inspector
must be a person which has no personal interest directly or indirectly related
to the subject of the inspection. The labour inspector must not, even after
having quit his/her job, disclose confidential information he/she had acquired
during the discharge of the inspection services and must keep absolutely secret
all sources of complaints.
Article 189.- During the inspection,
the inspector must closely cooperate with the Executive Committee of the local
Trade Union. If the inspection involves scientific, technical or professional
matters, the labour inspector may utilize the appropriate experts or skilled technicians
as consultants. During the inspection of machines, equipment or storage, the
employer and the direct operator or custodian of the machines, equipment or
storage must be present.
Article 190.- The labour inspector
shall directly hand the decision to the concerned person. The decision must
clearly specify the date when the decision begins to take effect, the date when
the implementation of the decision must be completed and, if necessary, the
date of re-inspection.
The decision of the labour inspector is binding.
The recipient of the decision is entitled to appeal to the competent
State authority, while continuing to abide by in good faith the decision of the
labour inspector.
Article 191.-
1- The Government shall define the organization and operation of the
State Inspector on Labour.
2- The Ministry of Labour, War Invalids and Social Welfare and the
Ministry of Public Health shall establish the organizations of State inspection
on labour within their own jurisdiction and functions, set the standards for recruitment,
appointment, transfer, removal or dismissal of inspectors, issue inspector
cards and determine the procedures for periodical or unwarranted inspections
and other necessary rules and procedures.
3- The inspection of labour safety and labour sanitation at
establishments in radioactivity, oil and gas prospection and exploitation, in
railway, water, land and air transport, and at units of the armed forces, shall
be done by the management offices of these services in collabouration with the
State Inspection on Labour.
Section II.- HANDLING VIOLATIONS OF LABOUR LEGISLATION
Article 192.- Any person who violates
the provisions of this Code shall, depending on the extent of his/her
violation, be subjected to one of these sanctions; reprimand, fine, suspension,
withdrawal of license, forcible compensation, closing of business or
investigation for penal liability, as stipulated by law.
Article 193.- Any person who engages
in an act of obstruction, bribery or retaliation to ward a person authorized
under this Code during the execution of public service shall, depending on the
extent of his/her offense, be subjected to discipline, administrative sanction
or to be investigated for penal liability, as prescribed by law.
Article 194.- Business owners shall
take civil responsibility for the decision of the competent State authority to
apply sanctions against directors, managers or lawful representatives of a
business for violations of the labour legislation that occurs in the process of
managing the labour force, as prescribed by law. The responsibility of these
persons to compensate the business shall be determined in accordance with the
statute and rules of the business and/or with the responsibility contract
between the signatories, or with the provisions of law.
Article 195.- The Government shall
establish administrative sanctions against violations of the labour
legislation.
Chapter XVII
IMPLEMENTATION PROVISION
Article 196.- The provisions of this
Code shall govern labour contracts, collective labour accords and all other
lawful agreements entered before the effective date of this Labour Code.
Agreements which are more beneficial to employees than are set forth in this
Code shall continue to be implemented. The agreements which do not conform to
the provisions of this Code shall be amended or supplemented.
Article 197.- This Code takes effect
on the 1st of January, 1995.
All previous provisions which are contrary to this Code shall be
annulled.
Article 198.- The Standing Committee
of the National Assembly and the Government shall make detailed provisions and
provide guidance for the implementation of this Code.
This Code was passed by the Ninth National Assembly of the Socialist
Republic of Vietnam at its Fifth Session on the 23rd of June, 1994.
Chairman of the National Assembly
NONG DUC MANH