ORDINANCE ON LABOUR CONTRACTS

Transcription

1 STATE COUNCIL SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom - Happiness Hanoi, 10 September 1990 ORDINANCE ON LABOUR CONTRACTS In order to protect the rights and interests of employees, to establish the responsibilities of employers to improve labour potential, and to contribute to the social economic, scientific and technological development of the nation; Pursuant to articles 58 and 100 of the Constitution of the Socialist Republic of Vietnam; This Ordinance makes provisions on labour contracts. Article 1 CHAPTER I General Provisions A labour contract is an agreement between an employee and an employer (hereinafter referred to as employer) in respect of a paid job in which both parties agree to the conditions of employment, the working conditions to be provided and the rights and obligations of each party. Article 2 Entities and individuals in economic branches and sectors which hire employees who are to be paid wages (salary) shall do so by labour contracts. A labour contract shall not apply to the following: 1. Persons who have been elected to public office at any level; 2. Persons who have been appointed to positions in the State public service or State run economic units; 3. Persons belonging to the people's armed forces; IV-31

2 4. Persons who are employed by State administrative bodies or work units. Specific descriptions of the areas and types of work in respect of which labour contracts shall not be required shall be stipulated by the Council of Ministers. Article 3 A labour contract shall be entered on a voluntary, free, and fair basis and shall not be contrary to law or any collective labour agreement which has been signed. Article 4 The State guarantees the rights and legitimate interests of the contracting parties specified in the labour contract. The State encourages labour contracts that contain terms and conditions which are of greater benefit to the employees than those stipulated by labour law. Article 5 A labour contract agreed to by both parties shall include terms and conditions in relation to the following essential matters: specification of the job; wages (salaries); place of work; duration of the contract; conditions required by the laws on occupational safety and hygiene; and social insurance to be paid in respect of the employees. Wages (salaries) paid to the employees shall not be lower than the minimum wage stipulated by the State. Article 6 A labour contract shall be in writing or oral. Where a labour contract is oral it shall comply with the provisions of this Ordinance and the provisions of labour law in force at the time. Article 7 Both parties to a labour contract shall be obliged to perform strictly the terms and conditions of the labour contract. Any party who breaches a labour contract and thereby causes damage to the other party shall be liable to pay compensation according to the seriousness of the damage caused. IV-32

3 Article 8 1. A labour contract shall be deemed to be void and of no effect where: (a) One of the parties does not have the requisite legal capacity. (b) One of the parties entered it under duress or consequent upon a deception. (c) Its contents are prohibited and illegal. (d) Its provisions limit the rights of the employee to join and to take part in trade union activities. 2. A labour contract shall be regarded as partly invalid where part of its contents are prohibited and illegal. The remaining parts of the contract shall remain valid. Labour inspectors shall have the power to determine whether a labour contract is partly invalid or totally void. Article 9 CHAPTER II Agreement to the Labour Contract 1. A labour contract shall be agreed upon directly between the employee and the employer or its legal representative. 2. A labour contract may also be signed between the employer and an employee who is authorized to represent a group of employees. In this case, the labour contract shall be as enforceable and effective as if it were entered into directly with each employee. 3. Employees may establish many labour relations and may simultaneously be party to more than one labour contract. 4. A labour contract in writing shall be in the standard form published by the Ministry of Labour War Invalids and Social Affairs and shall be made in two copies, one copy being for each party. In the event that both parties agree to register with an authorized State body then the employee shall be exempt from payment of fees and stamp duties. Article 10 Where the labour is to be used by a sub-contractor the principal employer shall remain liable to pay the employee his wages (salaries), allowances, and compensation in the event that the contractor does not pay them in full or at all. IV-33

4 Where the employer transfers to another person the ownership, management, or right to use the assets of the enterprise and the transfer directly affects the performance of the labour contract then the new employer shall continue to be bound by the labour contract in respect of the employee. In the event that the employer becomes bankrupt or its assets are liquidated, any wages (salary) owed to its workers shall constitute a debt which shall be paid as a priority. Article 11 A labour contract may be agreed upon in any of the following forms: 1. A definite term labour contract. 2. An indefinite term labour contract. 3. A labour contract for a specific or seasonal job. Article 12 The contracting parties must have legal capacity and be capable of signing the labour contract. The employer must be a legal entity which, or individual who, is permitted to hire and use labour in accordance with the provisions of the law. An employee who is over fifteen (15) years of age shall be entitled to sign a labour contract. An employee under fifteen (15) years of age shall also be entitled to sign a labour contract to do work permitted by the law subject to consent being given by his father, mother or legal guardian. The Ministry of Labour War Invalids and Social Affairs shall make provisions for protection of minors in the workforce and specifying the types of dangerous work which may not be performed by employees under eighteen (18) years of age, and also that which may not be performed by employees under fifteen (15) years of age. Article 13 An employer and employee may agree, in a labour contract, on the scope of employment and a trial period. The trial period may be agreed upon in a separate contract. The trial period, depending on the nature of work, shall not exceed twenty (20) days. For complicated jobs which involve management and technology the trial period may be extended but shall not exceed thirty (30) days. IV-34

5 The rights and obligations of the parties during the trial period shall be agreed. Wages (salaries) to be paid shall be at least seventy (70) per cent of the normal level for the job. During the trial period, each party shall be entitled to cancel the labour contract without giving advance notice and shall not be obliged to pay compensation. Article 14 A labour contract shall be of full force and effect as from the date of its signing or the date on which both parties reach agreement. In the event that a worker commences work earlier or the trial period is agreed upon in a separate contract, the labour contract shall be of full force and effect as from the date on which the worker commences work or the date on which the trial period begins. In the event that a definite term labour contract or one for a specific task or seasonal job expires, the worker continues to work and neither party wishes to terminate the labour contract, it shall continue to be in force until the date specified by one of the parties in a notice of termination. Article 15 An employee who works according to a labour contract shall be issued with a labour book pursuant to the provisions of the Council of Ministers. Article 16 CHAPTER III Performance of, Amendments to, Suspension of, and Termination of a Labour Contract Both parties to a labour contract shall be obliged strictly to perform its terms and conditions. An employer may not demand that an employee perform work outside the scope specified in the contract or compel him or her to work in unsafe conditions. Each employee shall obey the legitimate instructions of the employer and the labour rules, where such rules exist. Article 17 During the performance of a labour contract any party wishing to amend its terms and conditions shall give notice to the other party. Any amendment to a labour contract IV-35

6 shall take place strictly in accordance with the principles which apply to the signing of a labour contract. In the event that any amendment is made to the provisions contained in article 5 of this Ordinance the employee shall be entitled to request that a new labour contract be signed. Article An employer may, when required for production or business purposes, temporarily transfer an employee to another place of work or job. The period of transfer shall not exceed thirty (30) days in one year and the employee shall be given at least one day's advance notice. The consent of the employee shall be obtained for any longer period of transfer. 2. In emergency cases, due to force majeure, the employer may transfer the employee to another work place or to perform other work for a period not exceeding ninety (90) days in one year. The consent of the worker shall be obtained for any longer period of transfer. If the employee does not give his consent then he shall be entitled to receive a stop work allowance. 3. Where the employer transfers the employee to temporary work at another work place or in another job in accordance with the provisions contained in clauses 1 and 2 of this article the employee shall be paid wages (salaries) for the new job at a rate not less than that applicable to the previous job. Article 19 The performance of a labour contract shall be suspended in any of the following circumstances: 1. The employee is required for military service in a permanent army unit or reserve. 2. The employee performs a public labour obligation or other obligations regulated by the law. 3. The employee is detained or is held temporarily in prison. 4. In other circumstances agreed by both parties. Article 20 A labour contract shall be immediately terminated in any of the following circumstances: 1. The duration of the contract has expired or the job agreed in the contract is complete. IV-36

7 2. Both parties agree to terminate the contract. 3. The employee is convicted and sentenced to serve a jail term or other penalty which prevents him from working. 4. The employee dies. 5. The employer dies, is convicted or sentenced to serve a jail term or other penalty which forces him to close the business. Article An employee who is a party to an indefinite term labour contract may unilaterally terminate the contract after giving advance notice to the employer in accordance with the provisions of article 24 of this Ordinance. 2. An employee who is a party to a definite term labour contract or one for a specific task or seasonal job may unilaterally terminate the contract in any of the following circumstances: (a) The employer does not provide the work or working conditions agreed in the contract. (b) The employee is not paid in full and in time the wages (salary) due pursuant to the contract. (c) The employer mistreats the employee. (d) The employee is elected to public office or is appointed to a position in a State body. (e) For domestic reasons the employee is unable to continue performing the contract. Where a labour contract is terminated in accordance with the provisions of subclauses (c) and (d) of clause 2 of this article the employee shall give notice to the employer in accordance with the provisions of article 24 of this Ordinance. Article An employer may unilaterally terminate a labour contract upon notice given to the employee in accordance with the provisions of article 24 of this Ordinance in any of the following circumstances: (a) The employee repeatedly fails to carry out his or her duties in accordance with terms of the contract or repeatedly stops work without proper reason. IV-37

8 (b) The employee acts corruptly or breaches other laws, causing serious damage to the property and interests of the enterprise, a body or to the production and business of a factory. (c) The employee suffers illness or injury and remains unable to work after having received treatment for six consecutive months. (d) The employer is forced to reduce production and employment while trying to recover from a natural disaster, fires or force majeure. (e) The dissolution or liquidation of assets of the body, enterprise, factory or business concerned. 2. The termination of a labour contract pursuant to sub-clauses (a) and (c) of clause 1 shall comply with the following: (a) Where the employer belongs to a non-state run economic organization, it shall consult with the executive committee of the trade union or the representative of the employees. (b) Where the employer is a State run economic organization, it shall apply the provisions of clause 2 of article 12 of the Law on Trade Unions. 3. Where a labour contract is terminated according to sub-clauses (c) and (d) of clause 1 of this article, the employer shall give advance notice to, and obtain approval from, the local labour office. 4. Where a labour contract is terminated in accordance with the provisions of subclause 1 of this article and the employee is the chairman or a member of the executive committee of the trade union then the termination shall comply with the provisions of sub-clause 4 of article 15 of the Law on Trade Unions. Where the worker is the representative of the workers the employer shall consult with the workers. Article 23 The employer shall not unilaterally terminate a labour contract in any of the following circumstances: 1. Where a female worker is pregnant, except in the cases stipulated in sub-clauses (b) and (d) of clause 1 of article 22 of this Ordinance; is on maternity leave in accordance with the stipulated regime; or is taking care of her child under twelve (12) months old. 2. The employee is suffering from illness, work injury or occupational disease and is being treated or nursed on a doctor's instructions except in the cases stipulated in sub-clauses (c) and (d) of clause 1 of article 22 of this Ordinance. IV-38

9 3. The employee is on annual leave or holiday. Article 24 The time for giving notice of unilateral termination of a labour contract pursuant to articles 21 and 22 of this Ordinance is as follows: 1. In respect of a definite term labour contract, at least forty-five (45) days. 2. In respect of an indefinite term labour contract, at least thirty (30) days. 3. In respect of a labour contract for a specific task or seasonal job, at least one day. Each party may withdraw its notice of unilateral termination of a labour contract at any time before the notice period for termination has expired. If the time for giving notice has expired, the other party may terminate the labour contract. Article Where a labour contract is terminated in breach of the provisions for notice required by the provisions in articles 21, 22, 23 and 24 of this Ordinance, the party in breach shall pay compensation to the other party in a sum equal to the wages (salary) which would otherwise have been paid during the notice period in accordance with the provisions of the law. 2. In cases where a labour contract is amended, suspended or terminated, the employee may be entitled to receive compensation, retrenchment allowance or other benefits or to stop work in accordance with the provisions stipulated by the Council of Ministers. Article 26 Within seven days from the date of termination of a labour contract each party shall be responsible for payment of all sums outstanding to the other party in accordance with the law. The Council of Ministers may make allowances in exceptional cases which require the period for payment to be extended beyond seven days. The employer shall return an employee's labour book, all files and other documents and provide required certification at the employee's request. IV-39

10 CHAPTER IV Resolution of Labour Disputes and Dealing with Breaches Article 27 Any dispute between two parties in relation to performance of a labour contract shall be regarded as a labour dispute and resolved in accordance with the procedures for resolution of labour disputes. Article 28 The two parties shall attempt to resolve a labour dispute by direct negotiation between them conducted with friendliness and mutual respect. Both parties shall be entitled to make complaint to a labour inspector. The labour inspector shall, in accordance with the labour law, assist both parties to reconcile their differences within seven days from the date of receipt of the complaint. Article 29 The bodies responsible for the resolution of labour disputes shall include: 1. A labour reconciliation board at local level which shall consist of an equal number of representatives of the employer and the executive committee of the trade union or of the employee. Any decisions made shall be required to be unanimous. 2. An arbitration board to be formed by the labour office at district level or above. 3. People's Courts. The procedures and power to resolve a labour dispute shall be governed by the law. Article 30 Any person breaching the provisions of the Ordinance on Labour Contracts shall, in accordance with the provisions of the law, and depending on the seriousness of the offence, be disciplined by administrative punishment or prosecuted for criminal responsibility. IV-40

11 CHAPTER V Final Provisions Article 31 Any labour contract entered into before the coming into force of the Ordinance on Labour Contracts shall, provided it is not contrary to the provisions of this Ordinance, be effective, either in whole or in part. The principles of this Ordinance on Labour Contracts shall apply to the signing and performance of labour contracts entered into by a Vietnamese employee with foreign individuals, bodies or organizations in Vietnam or which operate pursuant to the Law on Foreign Investment in Vietnam. Article 32 The organization of the entering into of labour contracts in accordance with this Ordinance in enterprises and bodies belonging to the State run economic sector shall take place in accordance with the provisions of the Council of Ministers and with the agreement and co-operation of the General Federation of Labour of Vietnam. Separate regulations shall apply to public servants in administrative and public work. Article 33 Any previous provisions inconsistent with this Ordinance are hereby repealed. Article 34 The Council of Ministers shall make detailed provisions for the implementation of this Ordinance. On behalf of the State Council of the Socialist Republic of Vietnam President VO CHI CONG IV-41