THE STANDING COMMITTEE OF NATIONAL ASSEMBLY
No: No number
SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
Ha Noi, day 23 month 06 year 1994
THE NATIONAL ASSEMBLY OF THE SOCIALIST REPUBLIC OF VIETNAM
IX Legislature, 5th Session (May 26 - June 23, 1994)
THE LABOR CODE OF THE SOCIALIST REPUBLIC OF VIETNAM
Labor is the most important activity of man. It creates the material wealth and spiritual values of society. High-productivity, high-quality and high-efficiency labor is the determinant factor of national development.
Labor legislation defines the rights and obligations of the employee and the employer, the labor standards and the principles for labor 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 labor legislation of our country since 1945, the Labor 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 labor and on the use and management of labor.
The Labor 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 labor relations, helping to develop the creativeness and talent of the intellectual and manual workers as well as of the labor managers, in order to achieve high productivity, quality and social progress in labor, production and service, efficient use and management of labor, 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.
Article 1.- The Labor Code regulates labor relations between the salaried employee and the employer, and the other social relations directly related to labor relations.
Article 2.- The Labor applies to all employees as well as all organizations and individuals employing labor according to labor contracts in all economic sectors and of all forms of ownership.
This Labor 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 labor 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.
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 labor, 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 labor 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 labor and pays for that labor.
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 labor protection, and must be assured conditions consistent with labor 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 labor regimes and social policies aimed at protecting women's labor and certain types of specific labor.
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 labor contract and the collective labor accord, to observe labor discipline and labor regulations and to obey the lawful direction of the employer.
4- The employee has the right to strike as prescribed by law.
1- The employer has the right to select and recruit labor, assign labor 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 labor discipline as prescribed by labor legislation.
2- The employer has the right to send his/her representative to negotiate and sign collective labor accords within the business or collective labor accord of the whole branch. The employer has the responsibility to cooperate and discuss with the trade union issues concerning labor relations and to improve the material and spiritual life of the employee.
3- The employer has the obligation to fulfill the labor contract, the collective labor 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 labor 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 labor legislation.
The employee and the employer have the right to ask the authorized office or organization to settle a labor dispute. The State encourages the settlement of labor disputes by reconciliation and arbitration.
1- The State exercises unified management of the manpower resources, manages labor through legislation and adopts policies to develop and distribute man-power resources, diversify the forms of labor utilization and labor supply services.
2- The State guides the employee and the employer to build a harmonious and stable labor 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 labor 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 labor 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 labor legislation.
Article 13.- All income-generating laboring 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 labor capabilities has the chance to be employed.
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 labor 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.
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.
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 labor 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.
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 labor 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.
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 labor, along with collecting and supplying information about the labor market. The sending of Vietnamese laborers 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 Labor, 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 laboring people or misusing the job-seeking service to commit law-breaking acts are prohibited.
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.
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 Labor, War Invalids and Social Welfare. He/she must respond to the health norms required by the job to be taught.
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.
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 labor 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 labor of the apprentice or induce and coerce him/her into unlawful activities.
Article 26.- The labor 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 labor relations.
1- The labor 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 labor 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 labor 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 labor legislation.
1- The contents of the labor 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 labor safety and labor sanitation, along with the social insurance for the employee.
2- In the event that the labor contract or any part thereof provides for the rights and interests of the employee which are inconsistent with those prescribed in the labor legislation, in the collective labor accord or in the labor 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 Labor Inspector shall guide the parties to make the necessary modifications or revisions. If either side refuses to make the recommended modifications or revisions, the Labor Inspector is authorized to force the revocation of the improper contents.
1- The labor contract is directly made between the employee and the employer.
2- The labor 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 labor 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 labor 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 labor contract with the employee until the two parties agree to amend or terminate the labor 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 labor contract shall take effect on the day of the signing or on a mutually agreed date.
In the process of implementing the labor contract, if a party wishes to change the contents of the labor contract, it must notify the other party at least three days in advance. The change of the contents of the labor contract may be effected by either modifying or supplementing the existing labor contract or by signing a new contract
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.
1- The labor 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 labor 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 labor contract shall be set by the Government.
Article 36.- The labor 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.
1- The employee working under a labor contract the terms of which range from one year to three years, or a labor 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 labor;
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.