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New Labor Code 2012-Vietnam

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New Labor Code 2012

NATIONAL ASSEMBLY
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SOCIALISTREPUBLIC OF VIET NAM
Independence – Freedom – Happiness
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Law No. 10/2012/QH13

 

 

LABOR CODE

Pursuant to the Constitution 1992 of the Socialist Republic of Vietnam amended and supplemented under the Resolution No. 51/2001/QH10;

The National Assembly promulgates the Labor Code.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

The Labor Code specifies the labor standards; the rights, obligations and responsibilities of the employees, the employers, the labor representative organizations, the employer representative organizations in the labor relation and other relations directly related to the labor relation, the State management of labor.

Article 2. Subjects of application

1. The Vietnamese employees, apprentices, interns and other employees specified in this Code.

2. The employers.

3. Foreign employees working in Vietnam.

4. Other individuals, agencies and organizations directly related to the labor relation.

Article 3. Interpretation of terms

In this Code, the following terms are construed as follows:

1. Employees are people from 15 years old and above, capable of working, working under labor contracts, receiving salaries and subject to the management of the employers.

2. The employers are enterprises, agencies, organizations, cooperatives, households and individuals hiring, employing employees under labor contracts. The individuals must be sufficiently capable of civil acts.

3. The labor collectives are organized collectives of the employees working for one employer or in one division under the organizational structure of the employer.

4. The internal labor representative organizations are the executive board of the internal Union or the executive board of the direct superior Union if the internal Union has not been established

5. The employer representative organizations are organizations legally established to represent and protect the lawful rights and interests of the employers in the labor relation.

6. Labor relation is the social relation occurring while hiring or employing, paying salaries between the employee and the employer.

7. Labor dispute is the dispute over the rights, obligations and interests arising in the labor relation.

The labor disputes include the personal labor dispute between the employee and the employer, and the collective labor dispute between the labor collective and the employer.

8. Collective labor dispute over rights is the dispute between the labor collective and the employer arising out of the inconsistent explanation and implementation of the law provisions on labor, the collective labor agreement, the labor regulations and other lawful agreements and regulations.

9. The collective labor dispute over interests is the labor dispute arising when the labor collective requests the establishment of new working conditions compared to the law provisions on labor, the collective labor agreement, labor regulations and other lawful agreements and regulations during the negotiation between the labor collective and the employers.

10. Coercive labor is the use of force, the threat to use force or other tricks to coerce other people to work involuntarily.

Article 4. The State policies on labor

1. Ensuring the legitimate rights and interests of the employees; encouraging agreements that ensure more favorable conditions for the employees than that in the law provisions on labor; encouraging employees to purchase stocks and contribute capital to the production and business development.

2. Ensuring the lawful rights and interests of the employers, managing labor in a legal, democratic, equitable, civilized manner,  and enhance the social responsibilities.

3. Facilitating the employment creation, self-employment, vocational training and learning towards employment opportunities, facilitating the production and business that attract a lot of labor.

4. Planning the development and distribution of labor force; providing vocational training and skill improvement courses for employees, offering incentives to employees with great professional expertise that satisfy the modernization and industrialization requirements of the country.

5. Planning the labor market development, diversifying the means of connection between the labor supply and demand.

6. Guiding the communication and collective negotiation between employees and employers, building stable, progressive and harmonious labor relations.

7. Ensuring the gender equality; imposing labor regulations and social policies in order to protect female employees, disabled employees, elderly employees and underage employees.

Article 5. Rights and duties of employees

1. The employees are entitled to:

a) Work, independently select works, vocations, get vocational training and improvement without discrimination;

b) Receive salaries consistently with the vocational skills and grade on the basis of the agreement with the employer; receive work protection, work in safe and hygienic conditions; take official leave, paid annual leave and enjoy collective benefits;

c) Establish, join and participate in activities of the Union, professional organizations and other organizations as prescribed by law; request and participating in discussions with the employer, exercise the democratic regulation and get consultancy at workplaces in order to protect the lawful rights and interests; participate in the management under the regulations of the employer.

d) Unilaterally terminate the labor contract as prescribed by law;

dd) Be on strike.

2. The employees are responsible to:

a) Perform the labor contract and the collective labor agreement;

b) Observe the labor discipline, labor regulations and obey the lawful management of the employer;

c) Implement the law provisions on social insurance and law provisions on medical insurance.

Article 6. Rights and obligations of employers

1. The employers are entitled to:

a) Employ, arrange and manage labor according to the demand for production and business; commend and discipline for violations of labor discipline;

b) Establish, join and participate in the activities of professional organizations and other organizations as prescribed by law;

c) Request the labor collective to discuss, negotiate and conclude the collective labor agreement; participate in settling labor disputes and strikes; discuss with the Union about the problem in labor relations, improve the material and mental life of the employees;

d) Temporarily shut down the workplace.

2. The employers are responsible to:

a) Perform the labor contract, collective labor agreement and other agreements with employees, respect the honor and dignity of employees;

b) Establish the mechanism and discuss with the labor collective at the enterprise and strictly observe the internal democratic regulations;

c) Make the labor management book, salary book and present them at the request from competent agencies;

d) Declare the employment within 30 days as from starting the operation, periodically make and send reports on the change in the labor status during the operation to local State labor management agencies;

dd) Implement the law provisions on social insurance and law provisions on medical insurance.

Article 7. Labor relations

1. Labor relation between the employee or the labor collective with the employer is established through communication, negotiation and agreement in a voluntary, affable, equitable, cooperative manner, in which the lawful rights and interests are mutually respected.

2. The Union, the employer representative organizations shall join the State agencies in building the stable, progressive and harmonious labor relations, supervising the implementation of law provisions on labor; protecting the lawful rights and interests of employees and the employers.

Article 8. Prohibited acts

1. Discrimination by sex, race, social class, marital status, belief, religion, discrimination against HIV sufferers, disabled people or against the reasons for establishing, joining and participate in the Union activities.

2. Maltreatment of employees, sexual harassment at workplaces.

3. Coercive labor.

4. Exploiting vocational training and apprenticeship to make profit, exploit labor or entice, coerce the vocational learners, apprentices into committing unlawful acts.

5. Using untrained employees or employees without national vocational certificates to do the jobs that required trained employees or employees with national vocational certificates

6. Deceitfully enticing and advertising in order to cheat employees or exploiting the employment services to contractually send employees abroad to commit unlawful acts.

7. Illegally using underage labor.

Chapter II

EMPLOYMENTS

Article 9. Employments and employment creation.

1. Employments are activities that generate incomes that the law does not prohibit

2. The State, the employers and the society are responsible to create employments and ensure that everyone capable of working is offered employment possibilities.

Article 10. The right to work of employees

1. The employee is entitled to work for any employer at any place that the law does not prohibit.

2. The employee may directly contact the employee or via the employment services to seek employment towards their expectations, vocational grade and health.

Article 11. The right to employ of employers

The employer is entitled to employ labor directly or via employment services, or outsourcing service providers. The employer is entitled to increase or decrease the labor depending on the production and business demand.

Article 12. The State policies on employment development support

1. The State shall determine the target for employment increase in the five-year and the annual socio-economic development plans.

Depending on the socio-economic condition in each period, the Government shall present the National Assembly to approve the National program of vocational training and employment.

2. Establishing the policies on unemployment insurance and incentives for employees to create self-employment, support employers that employ females, disabled people or people from ethnic groups.

3. Encouraging and facilitate the investment in production and business development of domestic, foreign organizations and individuals in order to create more employments.

4. Supporting employers and employees to seek and expand the labor markets overseas.

5. Establishing the National fund of employments to grant preferential loans for employment creation and other activities as prescribed by law.

Article 13. Employment programs

1. People’s Committees of central-affiliated cities and provinces (hereinafter referred to as provincial People’s Committees) shall establish and present the local employment programs to the People’s Council at the same level for approval.

2. Other employers, State agencies, enterprises, socio-political organizations, social organizations, within their scope of duties and authority, are responsible to participate in the employment programs.

Article 14. Employment service organizations

1. Employment service organizations shall provide consultancy, offer employments and provide vocational training to employees; supply and recruit labor at the request of the employer; collect and provide information about the labor market, and perform other duties as prescribed by law.

2. Employment service organizations include employment service centers and enterprises providing employment services.

Employment service centers are established and operated in accordance with the Government’s provisions.

The enterprises providing employment services are established and operated as prescribed by the Law on Enterprise and must obtain the Licenses to provide employment services issued by provincial State labor management agencies.

3. Employment service organizations are eligible for collecting fees, for tax exemption and reduction as prescribed by law provisions on fees and law provisions on tax.

Chapter III

LABOR CONTRACT

Section 1. LABOR CONTRACT CONCLUSION

Article 15. Labor contract

A labor contract is an agreement between the employee and the employer on the paid job, the work conditions, the rights and obligations of each party in the labor relation.

Article 16. Form of labor contracts

1. A labor contract must be concluded in writing and made into 02 copies, the employee shall keep 01 copy, the employer shall keep 01 copy, except for the case prescribed in Clause 2 this Article.

2. For temporary jobs with terms under 03 months, the parties may conclude verbal contracts.

Article 17. Principles of labor contract conclusion

1. Voluntary, equitable, affable, cooperative and truthful.

2. The contract is freely concluded without violating the law, the collective labor agreement and social ethics.

Article 18. Responsibilities for labor contract conclusion

1. Before recruiting, the employer and the employee must directly conclude the labor contract.

In case the employee is from 15 to 18 years old, the labor contract conclusion must be agreed by the legal representative of the employee.

2. For casual works and regular works with terms under 12 months, the employee group may authorize an employee in the group to conclude the written contract; in this case, the validity of the contract is equal to each person.

The labor contract concluded by the authorized person must be enclosed with the list specifying the full names, ages, genders, residences, occupations and signatures of every employee.

Article 19. Responsibilities to provide information before the labor contract conclusion

1. The employer must provide information for employees about the work, work location, work conditions, working hours, break time, labor safety, labor hygiene, salary, method of salary payment, social insurance, the provisions on business secret protection, technical know-how and other issues directly related to the labor contract conclusion requested by the employee.

2. The employee must provide information for the employer about their full name, gender, residence, educational background, vocational skills, health condition and other issues directly related to the labor contract conclusion requested by the employer.

Article 20. The prohibited acts committed by the employer during the conclusion and performance of the labor contract

1. Keeping the originals of the identity papers, certificates and qualifications of the employee.

2. Requesting the employee to mortgage cash or property for the labor contract performance.

Article 21. Concluding labor contracts with multiple employers.

The employee may conclude contracts with multiple employers as long as they can ensure the implementation of the concluded contents.

For contracts concluded with multiple employers, the social insurance, medical insurance of the employee must comply with the Government’s provisions.

Article 22. Kinds of labor contracts

1. The labor contract must be concluded in one of the following kind:

a) Labor contracts without fixed term;

The labor contract without fixed term is a contract in which both parties do not specify the term and the expiry date of the contract.

b) Fixed-term labor contracts;

The fixed-term labor contract is a contract in which both parties specify the term and the expiry date of the contract within 12 to 36 months.

c) Casual labor contracts or regular labor contracts with terms under 12 months.

2. In case the employee keeps working when the labor contract prescribed in Point b and Point c Clause 1 this Article expires, both parties must conclude the new labor contract within 30 days as from its expiry date; if the new labor contract is not concluded, the contracts concluded as prescribed in Clause 1 this Article shall be come a labor contract without fixed term, and the contract concluded as prescribed in Point c Clause 1 this Article shall be come a labor contract with a fixed term of 24 months

The new labor contract being a fixed-term contract shall be concluded only one more time. After that, if the employee keeps working, the labor contract without fixed-term must be concluded.

3. It is prohibited to conclude casual labor contracts or regular labor contracts with terms under 12 months to do regular works from 12 months and above, except for temporary replacement of employees doing military service, taking maternity leave, suffering from sickness or occupational accidents, or taking other temporary leave.

Article 23. Labor contract contents

1. The labor contract must include the following contents:

a) Name and address of the employer or the legal representative;

b) The full name, date of birth, gender, residence, ID number or other legal papers of the employee;

c) The work and working location;

d) The labor contract term;

dd) The salary, method of salary payment, salary payment term, allowance and other additional pays;

e) The grade increase, salary increase regime;

g) The working hours, break time;

h) The labor protection equipment for the employee;

i) Social insurance and medical insurance.

k) The vocational training and improvement courses.

2. In case the employee doing works directly related to the business secret, technical know-how as prescribed by law, the employer is entitled to reach a written agreement with the employee on the contents and term of business secret,  technical know-how protection, the interests and compensation for the employee’s violations.

3. For employees working in the agriculture, forestry, fishery, salt industries, both parties may remove a number of primary contents from the labor contract and reach additional agreements on the settlement in case the contract performance is affected by natural disasters, fire and weather.

4. The contents of labor contracts with employees being hired as directors in the enterprise contributed by the State must comply with the Government’s provisions.

Article 24. Labor contract annex

1. The labor cont