What is an employment contract? Who has the right to sign a labor contract? How many types of employment contracts are there? What is the principle of entering into a labor contract? Or, How are the penalties for violating labor contracts regulated?... are concepts that business owners and employers need to know in order to avoid labor violations and disputes. labor dispute…
The article provides complete and detailed instructions on labor contracts and instructions on signing labor contracts.
Understanding Labor Contract
1. What is a labor contract?
An employment contract is an agreement between an employee and an employer on paid employment, wages, working conditions, rights and obligations of each party in the labor relationship.
What is a worker? An employee is a person who works for an employer under an agreement, is paid a salary and is subject to the management, administration and supervision of the employer.
What is an employer? Employer means an enterprise, agency, organization, cooperative, household or individual that hires or employs employees to work for them as agreed upon; In case the employer is an individual, he/she must have full civil act capacity.
Note: If the two parties reach an agreement by another name but have contents showing the paid employment, salary and the management, administration and supervision of one party, it is considered the labor contract.
2. Principles of entering into labor contracts
1. Voluntary, equal, goodwill, cooperative and honest.
This means that when entering into a labor contract, the subjects are completely free and voluntary in terms of their will and are not affected by a third party (except for the case where the employee is under 3 years of age, who must pass through his/her father, mother or father). legal guardian) and have an equal position with the employer when entering into a labor contract, and the parties must show goodwill when cooperating and truthfully in providing relevant information. labor contract before signing.
2. Freedom to enter into labor contracts but not against the law, collective labor agreement and social ethics.
This is a general principle that not only ensures the rights and interests of the parties to the labor contract, but also ensures that it does not affect the interests of other subjects related to the common interests of society.
The labor contract must comply with the principle of freedom of agreement, but the freedom of agreement here must be within the framework. That framework is an ethical standard that is not contrary to the law and the collective bargaining agreement.
3. Authority to enter into labor contracts
According to the provisions on Competence to enter into labor contracts as follows:
1. Employees directly enter into labor contracts, except for the case specified in Clause 2 of this Article.
2. For seasonal jobs, certain jobs for less than 12 months a group of employees aged full 18 years or older may authorize one employee in the group to enter into a labor contract; in this case, the labor contract must be entered into in writing and have the same effect as a contract with each employee.
The labor contract signed by the authorized person must be accompanied by a list clearly stating the full name, date of birth, gender, place of residence and signature of each employee.
3. The person entering into a labor contract on the employer's side is a person in one of the following cases:
a) The legal representative of the enterprise or the person authorized by law;
b) The head of an agency or organization has the legal person status as prescribed by law or an authorized person according to the provisions of law;
c) Representative of household, cooperative group, other organization without legal status or authorized person as prescribed by law;
d) Individuals directly employ workers.
4. The person entering into a labor contract on the employee's side is a person in one of the following cases:
a) The employee is full 18 years of age or older;
b) The employee is from full 15 years old to under 18 years old with the written consent of his/her legal representative;
c) Persons under 15 years of age and their legal representatives;
d) The employee is legally authorized by the employees in the group to enter into a labor contract.
5. Persons authorized to enter into labor contracts may not re-authorize other persons to enter into labor contracts.
4. Type of labor contract
Types of labor contracts are determined based on the length of the labor contract. Answering the question, there are several types of labor contracts as follows:
From January 01, 01, there will be no more seasonal contracts of less than 2021 month or a certain job. Labor contracts must be entered into in one of the following two types:
a) An indefinite term labor contract is a contract in which the two parties do not determine the term and the time of termination of the contract's validity;
b) A definite-term labor contract is a contract in which the two parties determine the term and the time of termination of the contract's validity within 36 months from the effective date of the contract.
When a labor contract with a definite term expires, but the employee continues to work, the following procedures shall be followed:
- Within 30 days from the date of expiration of the labor contract, the two parties must sign a new labor contract; During the time when a new labor contract has not been signed, the rights, obligations and interests of both parties will be performed according to the signed contract.
- If after 30 days from the expiry date of the labor contract, the two parties do not sign a new labor contract, the signed definite-term labor contract becomes an indefinite-term labor contract.
- In case the two parties sign a new labor contract which is a definite-term labor contract, it can only sign one more time, after that, if the employee continues to work, he/she must sign an undefined labor contract. set a deadline
Bilingual labor contract, or English labor contract: is a labor contract made in 2 languages (usually bilingual English Vietnamese) with the same content and form as a normal labor contract. Vietnamese is the main language and serves as the basis of reference in case there is a difference between Vietnamese and another language in the bilingual labor contract.
Instructions for signing a labor contract
1. Time to sign the labor contract
Before accepting employees to work, the employer must enter into a labor contract with the employee.
2. Forms of signing labor contracts
The labor contract must be concluded in writing and made into 02 copies, the employee keeps 01 copy, the employer keeps 01 copy.
It is possible to sign an electronic labor contract: Labor contracts entered into via electronic means in the form of data messages in accordance with the law on electronic transactions have the same value as a written labor contract.
3. Obligation to provide information when entering into a labor contract
1. Employers must provide employees with truthful information about their jobs, working locations, working conditions, working hours, rest times, occupational safety and hygiene, salary, form of payment, social insurance, health insurance, unemployment insurance, regulations on protection of business secrets, protection of technology secrets and other issues directly related to the delivery of goods. labor contract that the employee requires.
2. Employees must provide truthful information to the employer about their full name, date of birth, gender, place of residence, education level, vocational skill level, and health status confirmation. health and other issues directly related to the conclusion of a labor contract requested by the employer.
4. Behavior that the employer must not do when entering into and performing the labor contract
1. Keep originals of employees' identity papers, diplomas and certificates.
2. Requiring employees to apply security measures in money or other property for the performance of the labor contract.
3. Forcing employees to perform labor contracts to pay debts to employers.
5. When does the labor contract take effect?
The labor contract takes effect from the date of signing by the two parties, unless otherwise agreed by the two parties or provided for by law.
6. Invalid labor contract
1. A labor contract is completely invalidated in the following cases:
a) The entire content of the labor contract violates the law;
b) The person entering into a labor contract is not within the competence or violates the principles of entering into a labor contract specified in Clause 1, Article 15 of this Code;
c) The work entered into in the labor contract is a job prohibited by law.
2. A labor contract is partially invalidated when the content of that part violates the law but does not affect the remaining parts of the contract.
The People's Court has the right to declare an employment contract invalid.
7. Entering into many labor contracts
1. An employee can enter into many labor contracts with many employers but must ensure the full implementation of the signed contents.
2. Employees concurrently enter into many labor contracts with many employers, the participation in social insurance, health insurance and unemployment insurance shall comply with the provisions of the law on insurance social insurance, health insurance, unemployment insurance and occupational safety and sanitation.
8. Contents of labor contract
1. A labor contract must contain the following principal contents:
a) Name and address of the employer and full name and title of the person entering into the labor contract on the employer's side;
b) Full name, date of birth, gender, place of residence, number of citizen identification card, identity card or passport of the person entering into the labor contract on the employee's side;
c) Work and working place;
d) Term of the labor contract;
dd) Salary according to job or title, form of salary payment, time limit for salary payment, salary allowance and other additional amounts;
e) Regime of promotion and salary increase;
g) Working time, rest time;
h) Labor protective equipment for the employee;
i) Social insurance, health insurance and unemployment insurance;
k) Training, fostering and improving vocational qualifications and skills.
2. When an employee's work is directly related to a business secret or a technology secret as prescribed by law, the employer has the right to reach a written agreement with the employee on the content, term of protection of business secrets, protection of technology secrets, rights and compensation in case of violation.
3. For employees working in the fields of agriculture, forestry, fishery and salt production, depending on the type of work, the two parties may reduce a number of key contents of the labor contract and the additional agreement. supplement the content of the settlement method in case the contract performance is affected by natural disasters, fires and weather.
9. Probation and probationary labor contract
1. Employers and employees may agree on the content of probation stated in the labor contract or agree on probation by entering into a probationary contract.
2. The main contents of a probationary contract include the probationary period and the same contents as the labor contract specified at Points a, b, c, dd, g and h, Clause 1, Article 21 of the Code. Labor.
3. The probationary period is not applied to employees entering into labor contracts with a term of less than 01 month.
Relevant contents of the probationary labor contract:
a) Probation period
The probationary period shall be agreed upon by the two parties based on the nature and complexity of the job, but only once for a job and ensuring the following conditions:
1. No more than 180 days for an enterprise manager's work in accordance with the Law on Enterprises, the Law on Management and Use of State Capital invested in production and business in enterprises;
2. No more than 60 days for jobs with professional titles requiring professional or technical qualifications from college or higher;
3. No more than 30 days for jobs with professional titles that require intermediate professional qualifications, technical workers, and professional staff;
4. No more than 06 working days for other jobs.
b) Probationary salary
The employee's salary during the probationary period shall be agreed upon by the two parties but must be at least 85% of the salary of that job.
c) End of probation period
1. At the end of the probationary period, the employer must notify the probation result to the employee.
In case the probationary period is satisfactory, the employer shall continue to perform the signed labor contract, in the case of probationary agreement in the labor contract, or must enter into a labor contract in the case of contract of employment. probation contract.
In case of unsatisfactory probation, the signed labor contract or probationary contract shall be terminated.
2. During the probationary period, each party has the right to cancel the signed probationary contract or labor contract without prior notice and without compensation.
10. Annex to the labor contract
1. The labor contract appendix is a part of the labor contract and has the same effect as the labor contract.
2. The labor contract appendix details, amends and supplements a number of articles and clauses of the labor contract but must not modify the term of the labor contract.
In case the labor contract appendix details a number of articles and clauses of the labor contract which leads to a different interpretation from the labor contract, the contents of the labor contract shall prevail.
In case the labor contract appendix amends and supplements a number of articles and clauses of the labor contract, it must clearly state the content of the amended and supplemented article and clause and the effective time.
11. Amendment and supplementation of labor contract
1. During the performance of the labor contract, if any party requests to amend or supplement the contents of the labor contract, it must notify the other party at least 03 working days in advance of the contents to be amended. complementary.
2. If the two parties can reach agreement, the amendment and supplementation of the labor contract's contents shall be carried out by signing an appendix to the labor contract or concluding a new labor contract.
3. In case the two parties cannot agree on the amendment and supplementation of the labor contract, they shall continue to perform the signed labor contract.
Instructions for the implementation of the labor contract
1. Performing work according to the labor contract
The work under the labor contract must be performed by the employee who has entered into the contract. The working location shall comply with the labor contract, unless otherwise agreed by the two parties.
2. Transferring employees to work other than the labor contract
1. When facing unexpected difficulties due to natural disasters, fires, dangerous epidemics, applying measures to prevent and remedy occupational accidents, occupational diseases, electricity and water problems or due to production needs, business, the employer is entitled to temporarily transfer the employee to another job compared with the labor contract, but not exceeding 60 cumulative working days in 01 year; In case the employee is transferred to a job other than the labor contract for more than 60 cumulative working days in 01 year, it shall only be done when the employee agrees in writing.
The employer shall specify in the internal labor regulations the cases in which, due to production and business needs, the employer may temporarily transfer the employee to a job other than the labor contract.
2. When temporarily transferring an employee to a job other than the labor contract specified in Clause 1 of this Article, the employer must notify the employee at least 03 working days in advance, clearly informing temporary working term and assigning jobs suitable to the health and gender of the employees.
3. Employees who move to a job other than the labor contract are paid according to the new job. If the salary of the new job is lower than the salary of the old job, the salary of the old job is kept unchanged for 30 working days. The salary according to the new job must be at least 85% of the salary of the old job but not less than the minimum wage.
4. If the employee does not agree to temporarily do a job other than the labor contract for more than 60 cumulative working days in a year and has to stop working, the employer must pay the stoppage salary as prescribed in Article 01 of this Law. 99 of this Code.
3. Suspension of the performance of the labor contract
1. Cases of temporary suspension of the performance of a labor contract include:
a) The employee performs the military service or the obligation to join the Militia and Self-Defense Force;
b) The employee is held in custody or temporary detention in accordance with the law on criminal procedures;
c) The employee must abide by the decision to apply the measure of sending to reformatory, compulsory detoxification establishment or compulsory education institution;
d) Pregnant female employees as prescribed in Article 138 of this Code;
dd) The employee is appointed as an enterprise manager of a one-member limited liability company in which 100% of charter capital is held by the State;
e) The employee is authorized to exercise the rights and responsibilities of the state owner's representative for the state capital portion of the enterprise;
g) The employee is authorized to exercise the rights and responsibilities of the enterprise with respect to the capital portion of the enterprise invested in another enterprise;
h) Other cases as agreed by both parties.
2. During the period of suspension of the performance of the labor contract, the employee is not entitled to the salary and rights and benefits entered into the labor contract, unless otherwise agreed by the two parties or provided for by law. .
Take back the employee after the expiration of the period of temporary suspension of the performance of the labor contract
Within 15 days after the expiration of the period of temporary suspension of the performance of the labor contract, the employee must be present at the workplace and the employer must accept the employee to return to work under the labor contract. if the labor contract is still valid, unless otherwise agreed by the two parties or provided for by law.
4. Part-time work
1. Part-time employee means an employee whose working time is shorter than the normal working time on a daily, weekly or monthly basis as prescribed in the labor legislation, agreements and agreements. collective labor or labor regulations.
2. The employee agrees with the employer to work part-time when concluding the labor contract.
3. Part-time employees are entitled to wages; equality in exercising rights and obligations with full-time employees; equality of opportunities, non-discrimination, ensuring occupational safety and hygiene.
Instructions for Termination of Labor Contracts
1. Cases of termination of labor contracts
1. The expiration of the labor contract, except for the case specified in Clause 4, Article 177 of this Code (4. The signed labor contract must be extended to the end of the term for the employee who is a member of the leadership board of the employee's representative organization at the grassroots when the term expires.)
2. The work has been completed according to the labor contract.
3. The two parties agree to terminate the labor contract.
4. The employee is sentenced to prison but is not entitled to a suspended sentence or is not released under the provisions of Clause 5, Article 328 of the Criminal Procedure Code, is sentenced to death, or is prohibited from doing the job listed. in the labor contract under the court's judgment or decision that has taken legal effect.
5. Foreign employees working in Vietnam are expelled according to legally effective court judgments or decisions, or decisions of competent state agencies.
6. The worker dies; has been declared by the Court to have lost his civil act capacity, is missing or has died.
7. The employer being an individual dies; has been declared by the Court to have lost his civil act capacity, is missing or has died. The employer who is not an individual terminates its operation or is notified by the specialized business registration agency of the People's Committee of the province that there is no legal representative or authorized person to do so. rights and obligations of the legal representative.
8. The employee is disciplined and fired.
9. The employee unilaterally terminates the labor contract according to the provisions of Article 35 of this Code.
10. The employer unilaterally terminates the labor contract according to the provisions of Article 36 of this Code.
11. Employers terminate employees according to the provisions of Articles 42 and 43 of this Code.
12. The work permit expires for foreign employees working in Vietnam according to the provisions of Article 156 of this Code.
13. In case the probationary agreement is agreed upon in the labor contract, the probationer fails to meet the requirements or one party cancels the probation agreement.
2. The employee's right to unilaterally terminate the labor contract
1. An employee has the right to unilaterally terminate a labor contract but must notify the employer in advance as follows:
a) At least 45 days if working under an indefinite term labor contract;
b) At least 30 days if working under a definite-term labor contract with a term from 12 to 36 months;
c) At least 03 working days if working under a definite-term labor contract with a term of less than 12 months;
d) For a number of specific industries, trades and jobs, the time limit for advance notice shall comply with the Government's regulations.
2. An employee has the right to unilaterally terminate the labor contract without prior notice in the following cases:
a) Not being arranged according to the right job, working location or not guaranteed the agreed working conditions, except for the case specified in Article 29 of this Code;
b) The salary is not paid in full or the salary is not paid on time, except for the case specified in Clause 4, Article 97 of this Code;
c) Being abused, beaten by the employer or having insulting words or acts, acts affecting health, dignity and honor; forced labor;
d) Being sexually harassed at work;
dd) Pregnant female employees must take leave as prescribed in Clause 1, Article 138 of this Code;
e) Having reached the retirement age as prescribed in Article 169 of this Code, unless otherwise agreed by the parties;
g) The employer provides untruthful information as prescribed in Clause 1, Article 16 of this Code, affecting the performance of the labor contract.
3. The employer's right to unilaterally terminate the labor contract
1. The employer has the right to unilaterally terminate the labor contract in the following cases:
a) The employee who regularly fails to complete the work according to the labor contract is determined according to the criteria for assessing the level of work completion in the employer's regulations. Regulations on assessment of job completion are promulgated by the employer, but must consult the employee representative organization at the grassroots level in the case of a representative organization of employees at the grassroots level;
b) An employee suffering from an illness or accident has received treatment for 12 consecutive months, for employees working under an indefinite term labor contract, or has received treatment for 06 consecutive months, for employees working under a labor contract; definite-term labor contract with a term from 12 months to 36 months or more than half the term of the labor contract, for those working under a definite-term labor contract with a term of less than 12 months, but the working capacity has not yet been restored. dress.
When the worker's health recovers, the employer will consider continuing to enter into a labor contract with the employee;
c) Due to natural disasters, fires, dangerous epidemics, enemy sabotage or relocation or downsizing of production and business at the request of competent state agencies, but the employer has sought all remedial measures. but still forced to reduce the workplace;
d) The employee is not present at the workplace after the time limit specified in Article 31 of this Code;
dd) The employee reaches the retirement age as prescribed in Article 169 of this Code, unless otherwise agreed;
e) The employee voluntarily quits his job without a legitimate reason for 05 consecutive working days or more;
g) The employee provides dishonest information as prescribed in Clause 2, Article 16 of this Code when entering into a labor contract, affecting the recruitment of employees.
2. When unilaterally terminating the labor contract in the cases specified at Points a, b, c, dd and g, Clause 1 of this Article, the employer must notify the employee in advance as follows:
a) At least 45 days for labor contracts with indefinite terms;
b) At least 30 days for a definite-term labor contract with a term of between 12 and 36 months;
c) At least 03 working days for a definite-term labor contract with a term of less than 12 months and for the case specified at Point b, Clause 1 of this Article;
d) For a number of specific industries, trades and jobs, the time limit for advance notice shall comply with the Government's regulations.
3. When unilaterally terminating the labor contract specified at Points d and e, Clause 1 of this Article, the employer is not required to notify the employee in advance.
Where the employer is not allowed to exercise the right to unilaterally terminate the labor contract
1. The employee is sick or has an accident or occupational disease who is being treated or nursed under the direction of a competent medical examination and treatment establishment, except for the case specified at Point b, Clause 1, Article 36 of the Ministry of Health. this law.
2. The employee is taking annual leave, taking separate leave and other cases of leave agreed by the employer.
3. Pregnant female employees; the employee is on maternity leave or raising a child under 12 months old.
System of Laws on Labor Contracts
Labor management manual, Labor contract, Salary, Working time, rest, labor discipline, material responsibility
This Circular guides the content of labor contracts, collective bargaining councils, and occupations and jobs that adversely affect reproductive and child-rearing functions.
Date of issue: November 20, 11 Effective date: January 2019, 01
This Circular guides a number of articles on labor contracts, labor discipline and material responsibilities in Decree 05/2015/ND-CP
FAQ - Frequently asked questions about Employment Contract
According to Article 8 of Decree 28/2020/ND-CP stipulating:
1. A fine shall be imposed on the employer for one of the following acts: Failing to enter into a written labor contract for a job with a term of full 3 months or more; failing to enter into the correct type of labor contract with the employee; entering into an incomplete labor contract with the main contents of the labor contract; entering into a labor contract in the case of hiring a worker to act as a director in an enterprise with state capital not as prescribed by law at one of the following levels:
a) From VND 2.000.000 to VND 5.000.000 with violations from 01 to 10 employees
b) A fine from 5.000.000 VND to 10.000.000 VND for violations from 11 to 50 employees;
c) A fine from 10.000.000 VND to 15.000.000 VND for violations from 51 to 100 employees;
d) A fine from 15.000.000 VND to 20.000.000 VND for violations of between 101 and 300 employees;
dd) From 20.000.000 VND to 25.000.000 VND for violations of 301 employees or more.
2. A fine ranging from VND 20.000.000 to VND 25.000.000 shall be imposed on the employer who commits one of the following acts:
a) Keep the originals of the employee's identity papers, diplomas and certificates when entering into or performing the labor contract;
b) Forcing employees to apply security measures in money or other property for the performance of the labor contract;
c) Entering into labor contracts with employees from full 15 years old to under 18 years old without the written consent of the employee's legal representative.
3. Remedial measures
a) Forcible return of the originals of identity papers, diplomas and certificates kept of the employees, for the violations specified at Point a, Clause 2 of this Article;
b) Forcible return of the employee's kept money or property plus interest on the employee's kept amount calculated at the highest interest rate on demand deposits of state-owned commercial banks announced at the time of sanctioning for violations specified at Point b, Clause 2 of this Article;
c) Forcing the right type of contract with the employee for the act of failing to enter into the correct type of labor contract with the employee specified in Clause 1 of this Article
According to Article 40 of the Labor Code 2019, an employee who illegally terminates a labor contract will lose the following benefits:
Must compensate the employer for half a month's salary according to the labor contract and the amount corresponding to the salary for the days without notice (if there is a violation of the notice period)
No severance pay
Must reimburse the employer for training costs specified in Article 60 of the Labor Code 2019
Thus, in order to terminate the labor contract in accordance with the law and ensure their rights after leaving the job, the employee can choose the above labor contract termination options. In case, for some reason, it is not possible to terminate the labor contract in accordance with the law, it is necessary to consider their fine levels so that the damage is minimal.
See the detailed article for instructions on 6 cases of detailed handling of the following article: