DECREE

ELABORATION OF SOME CONTENTS OF THE LABOR CODE

The Government’s Decree No. 05/2015/ND-CP dated January 12, 2015 on elaboration of some contents of the Labor Code, effective from March 01, 2015, is amended by:

The Government’s Decree No. 148/2018/ND-CP dated October 24, 2018 on amendments to some Articles of the Government’s Decree No. 05/2015/ND-CP dated January 12, 2015 elaboration of some contents of the Labor Code, effective from December 15, 2018.

Pursuant to the Law on Government Organization dated December 25, 2001;

Pursuant to the Labor Code dated June 18, 2012;

In consideration of comments of the Standing Committee of National Assembly stated in the Document No. 716/UBTVQH13-CVDXH dated August 13, 2014 on guidelines for some Articles and Clauses of the Labor Code;

At the request of the Minister of Labor, War Invalids and Social Affairs;

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Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Decree provides for rights and responsibilities of employers, employees, representative organization of employees and relevant organizations and individuals for implementation of some regulations of the Labor Code on employment contracts, collective bargaining, collective bargaining agreements, salaries, labor discipline, material liabilities and labor dispute settlement.

Article 2. Regulated entities

Employees; employers; other organizations and individuals directly related to labor relation as prescribed in Article 2 of the Labor Code.

Chapter II

EMPLOYMENT CONTRACT

Section 1: CONCLUSION OF EMPLOYMENT CONTRACT

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12. The person concluding employment contracts on the employer side (hereinafter referred to as the “employer’s authorized signatory”) is:

a) The legal representative specified in the charter of the enterprise or cooperative; or

b) The head of the organization that has a legal status as prescribed by law; or

c) The person authorized to act as the representative by the household, artel or organization without a legal status; or

d) The individual directly using the employee; or

e) A person authorized in writing by the legal representative mentioned in Point a or the head of the organization mentioned in Point b of this Clause to conclude employment contracts.

2. The person concluding employment contracts on the employee side (hereinafter referred to as the “employee’s authorized signatory”) is:

a) The employee aged 18 or older; or

b) The underage employee from 15 to under 18 years of age obtaining the written consent from their legal representatives; or

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d) The employee legally authorized to conclude employment contracts by other employees of the same group.

3. The person authorized to conclude employment contracts as prescribed in Clauses 1 and 2 of this Article shall not be allowed to proceed to authorize others to conclude contracts.

Article 4: Contents of employment contract

The main contents of the employment contract are prescribed in Clause 1 of Article 23 of the Labor Code and elaborated as follows:

1. Name and address of the employer:

a) Name of enterprises, organizations, cooperatives and households that hire or use the employees under employment contracts, as shown in the certificate of enterprise registration, certificate of cooperative registration or investment certificate or organization establishment decision. If individuals hire or use the employees, the full names of such individuals shown in their identity cards or passports are required;

b) Address of enterprises, organizations, cooperatives, households or individuals that hire or use the employees, as shown in the certificate of enterprise registration, certificate of cooperative registration or investment certificate or organization establishment decision in accordance with law;

c) Full name, date of birth, ID or passport number, residence address, title of the employer’s authorized signatory at enterprises, organizations, cooperatives or households hiring and using the employees under the provisions of Clause 1 of Article 3 hereof.

2. ID number or other legal documents of employees:

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b) Number, issuance date and place of work permits granted by the competent authority  to foreign employees working in Vietnam;

c) The written consent to conclusion of the employment contract that the legal representative of the employees from 15 years of age to under 18 years of age keep;

d) Full name, date of birth, gender, place of residence, ID or passport number of the legal representative of the person under 15 years of age;

dd) The written consent of persons under 15 years of age to their legal representatives’ conclusion of their employment contracts.

3. Work description and workplaces:

a) Work description: The details of work that the employee must perform;

b) Workplace of employees: Workplace specified in the employment contract. If the employees work in different places, the main workplace shall be specified.

4. The term of the employment contract shall include: The number of months and days of employment contract execution, time of the employment contract commencement and termination (for fixed-term employment contracts or casual employment contract or piece work); time of the employment contract commencement (for indefinite term employment contract).

5. Salary rate, form of payment, payment duration, allowances and other additional payments:

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b) Form of payment shall be determined as prescribed in Article 94 of the Labor Code;

c) Payment duration shall be determined by both parties as prescribed in Article 95 of the Labor Code.

63. Promotion and pay rise: requirements, time, and the salary after promotion or pay rise under the employer’s rules or the collective bargaining agreement.

74. Working time and rest time: agreed by both parties or under the employer’s rules or the collective bargaining agreement and regulations of law.

85. Personal protective equipment under the working regulations, the employer’s rules, collective bargaining agreement and regulations of law on occupational hygiene and safety.

96. Social insurance, unemployment insurance and health insurance under regulations of law on employment, social insurance, unemployment insurance and health insurance.

10. Training and refresher courses for employees: The rights and obligations of employers and employees to schedule and budget these courses.

11. Other issues relating to both parties’ compliance with contractual terms and conditions.

Article 5. Amendment to the term of employment contracts with the appendix

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Article 6. Employment contract with elderly employees

1. If the employer needs an employee and the elderly employee is fully fit for work in accordance with the conclusion given by the health facility established and operating as prescribed by law, both parties shall negotiate extension of the term of employment contract or conclusion of a new employment contract.

27. When the employer no longer needs an employee or an elderly employee is not fully fit for work, both parties shall negotiate termination of the employment contract.”

Article 7. Notice of probation result

1. Within 03 days before the end of the probation period for the employee whose probation period is stipulated in Clauses 1 and 2 Article 27 of the Labor Code, the employer must notify the employee of the probation result. If the result is satisfactory, the employer shall immediately conclude an employment contract with the employee at the end of the probation period.

2. At the end of the probation period of the employee whose probation period is specified in Clause 3 of Article 27 of the Labor Code, the employer must notify the employee of the probation result. If the result is satisfactory, the employer shall immediately conclude an employment contract with the employee.

Section 2: EXECUTION OF EMPLOYMENT CONTRACTS

Article 8. Temporary reassignment

An employee is temporarily reassigned against his/her employment contract in accordance with Clause 1 Article 31 of the Labor Code as follows:

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a) Natural disasters, fires, diseases;

b) Adoption of preventive and remedial measures against occupational accidents and diseases;

c) Electricity and water supply failure;

d) Demand for business operation.

2. The employer shall specify the case where the employer may temporarily reassign the employee against his/her employment contract due to business operation demand in its regulation.

3. If the employer has temporarily reassign an employee against his/her employment contract for 60 cumulative working days in a year and continues to temporarily reassign the employee against his/her employment contract, a written consent shall be obtained from the employee.

4. If the employee does not agree to be temporarily reassigned against his/her employment contract as specified in Clause 3 of this Article but has to be suspended from his/her work, the employer shall pay salaries for suspension period to the employee as prescribed in Clause 1 Article 98 of the Labor Code.

Article 9. Agreement on temporary suspension of employment contracts when employees are appointed or assigned as representative of the state capital

1. The employer and the employee in a state-owned single-member limited liability company, single-member limited company owned by state-owned economic corporation, state-owned corporation, parent company in parent company-subsidiary company relationship shall negotiate the suspension of the employment contract in the following cases:

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b) The employee is assigned as the representative of the capital and works in an enterprise to which the State or a parent company in parent company-subsidiary company relationship contributes their capital by a competent authority.

2. The period of suspension of the employment contract is the period over which the employee is appointed or assigned as the representative of the capital and works in an enterprise to which the State or the parent company in parent company-subsidiary company relationship contributes their capital.

Article 10. Reinstatement of employees upon expiry of the period of suspension of employment contracts

An employee is reinstated upon expiry of the period of suspension of employment contracts Article 33 of the Labor Code as follows:

1. Within 15 days after the expiry date of the employment contract suspension, the employee must be present at the workplace and the employer must reinstate the employee.  If the employee cannot be present at the workplace within the prescribed time limit, the employee shall agree with the employer on the time of his/her presence.

2. The employer shall assign the work defined in the employment contract to the employee. If the employer fails to do so, both parties shall be reach an agreement on a new work and make amendments to the existing employment contract or conclude a new one.

Section 3: CONTRACT AMENDMENT AND TERMINATION

Article 11. Unilateral termination of employment contracts by employees

1. Every employee has the right to unilaterally terminate the employment contract as prescribed in Point c Clause 1 Article 37 of the Labor Code in the cases where they suffer from the employer’s illegal acts such as violent or aggressive behaviors, disrespect and humiliating acts, acts affecting the employee’s health, dignity and honor, and use of coercive measures or sexual harassment in the workplace.

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a) Quit his/her job to take care of their spouse, father , mother, father-in-law, mother-in-law, natural children and adopted children who are sick or involved in accidents;

b) Leave for foreign countries to live or work;

c) Help their families that have difficulties due to natural disasters, fires, conflicts, diseases or relocation which the employee tries to resolve but fails to continue to execute the employment contract.

Article 12. Unilateral termination of employment contracts by employers

Every employer is granted the right to unilaterally terminate the employment contract as prescribed in Points a and c Clause 1 Article 38 of the Labor Code. To be specific:

1. The employer must specify the criteria for assessing the work performance, serving as a basis for assessing the employees who often fails to perform their work stated in the employment contract.  The assessment regulations shall be promulgated by the employer after consultation with the internal representative organization of employees.

2. Another force majeure event is either:

a) Conflicts or diseases; or

b) Relocation or narrowing of the manufacturing site at the request of a competent authority.

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1. Changes of structure and technology in Clause 1 Article 44 of the Labor Code are:

a) Changes of organizational structure, personnel reorganization;

b) Changes of products or product structure;

c) Changes of manufacturing process, technology, machinery and equipment, associated with business lines of the employer.

2. The economic reason in clause 2 of Article 44 of the Labor Code is either:

a) Economic crisis or recession; or

b) implementation of the state’s policy on restructuring the economy or implementation of international commitments.

3. If technological, structural changes, or economic reasons affect the job or risk the employee losing his job; lead to dismissal of at least 02 employees, the employer shall fulfill their obligations as prescribed in Article 44 of the Labor Code.

48. The notification sent to the provincial employment authority as mentioned in Clause 3 Article 44 of the Labor Code shall contain at least:

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b) Total quantity of employees and laid-off employees;

c) Reasons for layoff;

d) Time of layoff;

dd) Total redundancy pay.”

Article 14. Severance pay and redundancy pay

1. The employer shall give severance pay as prescribed in Article 48 of the Labor Code to the employee who has regularly worked for the employer for at least 12 months if the employment contract is terminated as specified in Clauses 1, 2, 3, 5, 6, 7 and 9 of Article 36 and the employer shall unilaterally terminate the employment contract as prescribed in Article 38 of the Labor Code.

2. The employer shall give redundancy pay as prescribed in Article 49 of the Labor Code to the employee regularly has regularly worked for the employer for at least 12 months but lost his/her job due to technological, structural change or economic reasons or merger, consolidation, full division or partial division of the enterprise or cooperative as specified in Clause 10 Article 36, Article 44 and Article 45 of the Labor Code.

39. Working duration as the basis for calculation of severance pay or redundancy pay is the total period of time the employee has worked for the employer minus (-) the unemployment insurance period and the period over which severance pay or redundancy pay is given by the employer (if any). Where:

a) The period of time an employee has worked for an employer includes: the period the employee has worked for the employer in reality; period of training provided by the employer; sick leave and maternity leave defined by social insurance; paid leave for recovery period after an occupational accident or occupational disease defined by regulations of law on occupational hygiene and safety; weekly days off specified in Article 110, paid leaves specified in Article 111, Article 112 and Article 115 and Clause 1 Article 116 of the Labor Code; leave period for trade union activities prescribed by regulations of law on trade unions; paid leave for fulfillment of citizen’s duties; work suspension period that is not at the employee’s fault; work suspension period specified in Article 129 of the Labor Code.

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c) The working period shall be rounded up to the next half year to calculate severance pay or redundancy pay (a period of from 01 month to under 06 months will be rounded up to 1/2  year; a period of 06 months or longer will be rounded up to 01 year).

4. Severance pay and redundancy pay in some special cases:

a) If an employee who has actually worked for an employer for full 12 months or more is made redundant but the working duration as the basis for calculation of severance pay is less than 18 months, the employer shall give the employee an amount of redundancy pay equal to at least 02 months of salary;

b) If the employee terminates the employment contract after merger, consolidation, full division or partial division of the enterprise or cooperative, the employer shall give the employee severance pay or redundancy pay for the period of time over which the employee has worked for the employer and the period of time over which the employee has worked for the employer before merger, consolidation, full division or partial division.

510. (annulled)

511. The amount of severance pay and redundancy pay shall be aggregated with the employer’s operating cost.

Article 14a. Time limit for settlement of the employer’s and employee’s benefits after employment contract termination

Within 07 working days from the date of employment contract termination, the employer and employee shall settle each other’s benefits. This time limit may be extended to up to 30 days in the following cases:

1. The business operation is terminated by the employer that is not a natural person;

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3. The termination is caused by the employer’s changes in organizational structure or technology; economic causes specified in Article 44 of the Labor Code; merger, consolidation, full division or partial division of the enterprise or cooperative; transfer of the ownership or right to enjoyment of assets specified in Article 45 of the Labor Code.

Article 15. Responsibilities of employers for setting up the employee utilization plan, calculation and provision of severance pay and redundancy pay in case of transfer of the ownership or right to enjoyment of assets of enterprises

1. In case of transfer of the ownership or right to enjoyment of assets of the enterprise, the previous employer shall develop an employee utilization plan as prescribed in Article 46 of the Labor Code.

2. If the employee has to terminate the employment contracts according to the employee utilization plan specified in Clause 1 of this Article, the employer shall provide redundancy pay as prescribed in Article 49 of the Labor Code.

3. If the employee continues to his/her work, is sent to take re-training courses before continuing his/her work or assigned to under a non-full-time employment contract in an enterprise after the transfer of the ownership or right to enjoyment of assets according to the employee utilization plan specified in Clause 1 of this Article, upon termination of the employment contract, the next employer shall calculate and provide severance pay as prescribed in Article 48 or redundancy pay as prescribed in Article 49 of the Labor Code for the period of time over which the employee has actually worked for the employer, and severance pay for the period of time over which the employee has actually worked in the enterprise before the transfer of the ownership or right to enjoyment of assets, including the period of time over which he/she worked in the public sector and was accepted through the final recruitment procedure into the enterprise before January 01, 1995.

4. If the enterprise’s employer continues to transfer the ownership or right to enjoyment of part or whole of assets of the enterprise after the transfer of the ownership or right to enjoyment of assets of the enterprise, the employer shall comply with Clauses 1, 2 and 3 of this Article before and after the transfer of the ownership or right to enjoyment of assets.

Chapter III

COLLECTIVE BARGAINING AND COLLECTIVE BARGAINING AGREEMENT

Article 16. Periodic collective bargaining

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Article 17. Responsibilities of trade unions, representative organization of employers and employment authorities for attending collective bargaining sessions

1. Upon receipt of the written request made by either collective bargaining party, Vietnam General Confederation of Labor, Confederation of Labor of the province or central-affiliated city, superior union, central and local representative organization of employers, Ministry of Labor – War Invalids and Social Affairs and People's Committee of the province or district shall appoint officials to attend collective bargaining sessions.

2. Officials appointed to attend the collective bargaining sessions by an organization shall provide information related to the negotiation contents and guidance on laws on labor for participants in collective bargaining.

Article 18. Signatory of enterprise collective bargaining agreements

1. Signatory of an enterprise collective bargaining agreement is specified in Clause 1 Article 83 of the Labor Code and elaborated as follows:

a) Signatory on the collective side shall be the chairman of the internal trade union or the chairman of the superior union in case the internal trade union has not yet been founded;

b) Signatory on the employer side shall be a legal representative as prescribed in the enterprise’s charter, cooperative, the head of the organization or individual utilizing the employee under an employment contract.

2. If signatory of the collective bargaining agreement prescribed in Clause 1 of this Article fails to directly sign the collective bargaining agreement, he/she shall legally authorize another person in writing to conclude such agreement.  The authorized person shall not authorize another person to conclude the collective bargaining agreement.

Article 19. Responsibilities of employment authorities for receiving the collective bargaining agreement

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1. Make a collective bargaining agreement management record using the form prescribed by the Ministry of Labor, War Invalids and Social Affairs.

2. Within 15 days from the receipt of the collective bargaining agreement, if there are unlawful terms and conditions or the agreement is concluded ultra vires, the employment authority shall request the People’s Court in writing to declare the collective bargaining agreement invalid and notify both contracting parties.

If the collective bargaining agreement is yet to be effective, the employment authority shall request both parties in writing to amend the agreement and send it to an authority as prescribed.

Article 20. Request for invalidation of the collective bargaining agreement

During the inspection or settlement of labor complaints and denunciation, if one of the cases prescribed in Article 78 of the Labor Code occurs, the chief of the inspectorate or independent inspector or person assigned to carry out specialized inspection shall make a record on invalidation of the collective bargaining agreement, and request the People’s Court in writing to declare the collective bargaining agreement invalid.

Chapter IV

SALARIES

Article 21. Salaries

Salaries are prescribed in Clauses 1 and 2 Article 90 of the Labor Code and elaborated as follows:

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a) The pay rate corresponding to the job or position according to the pay scale established by the employer in accordance with Article 93 of the Labor Code. The salary paid to the employee that does the simplest job in normal working conditions for normal working hours and completes the given workload or tasks (not including overtime pay or night work pay) must not fall below the region-based minimum pay rates prescribed by the Government.

b) Allowances meant to make up for working conditions, work complications, living conditions, necessity of labor attraction that are not taken into account or not adequately included in the salary corresponding to the tasks or positions on the pay scale;

c) Additional payments are amounts in addition to salaries and allowances related to the job or position written in the employment contract. Additional payments do not include: bonus, payment for mid-shift meals, other assistance and allowance not related to the job or position written in the employment contract.

2. Salary paid to an employee depends on the salary written in the employment contract, productivity, work load, and work quality of the employee.

3. The salary written in the employment contract and the salary paid to an employee shall be expressed in Vietnam Dong except salaries and allowances paid to non-residents, foreign residents under provisions of the law on foreign exchange.

Article 22. Method of payment

Methods of payment of salaries are prescribed Clause 1 Article 94 of the Labor Code and elaborated as follows:

1. Time-based salaries (monthly, weekly, daily, or hourly) are paid to employees for their actual working time by month, week, day, or hour. To be specific:

a) Monthly salary is paid for one working month based on the employment contract;

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c) Daily salary is paid for one working day which equals (=) monthly salary divided by (:) number of working days in the month under regulations of law as selected by the enterprise;

d) Hourly salary is paid for one working hour which equals (=) daily salary divided by (:) number of normal working hours in the day as prescribed in Article 104 of the Labor Code.

2. Piece rates are paid according to the completion of work in terms of quantity and quality of products under the given norm and rate.

3. Fixed salary is paid according to the workload, work quality, and deadline for work completion.

Article 23. Monthly salary payment term

1. Monthly salary shall be paid once or twice a month.

2. Both parties shall reach an agreement on a fixed time of salary payment in the month.

Article 24. Payment principles

1. Employees shall be paid directly, fully and punctually.

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a) If such late payment is made within less than 15 days, additional payments are not required;

b) If the late payment is made for 15 days or more, it is required to pay an extra amount at least equal to the arrears of salary multiplied by the ceiling of interest rate for 1-month deposits announced by the State Bank of Vietnam at the time when the payment is made. If the State Bank of Vietnam does not specify the ceiling interest rate, 1-month deposit interest rate of the commercial bank where the enterprise opens the trading account at the time of payment shall be applied.

Article 25. Overtime pay and pay for night work

1. Overtime pay paid to employees who work overtime is prescribed in Clause 1 Article 97 of the Labor Code and elaborated as follows:

a) Every employee who receives time-based salary and works overtime in addition to the working time established by the employer shall receive overtime pay as prescribed in Article 104 of the Labor Code;

b) With regard to piece workers who receive overtime pay when the employees and the employer reach an agreement on overtime work in additional to normal working hours to increase the quantity of completed products or works in additional to the agreed workload.

2. Overtime pay defined in Clause 1 of this Article shall be calculated according to the pay rate or actual salary for the current job done by the employee as follows:

a) On a normal working day, the overtime pay is at least 150%;

b) On a weekly day off, the overtime pay is at least 200%;

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3. Employees working at night as prescribed in Clause 2 Article 97 of the Labor Code shall be paid at least 30% of the salary calculated according to the pay rate or actual salary on a normal working day.

4. Employees working at night as prescribed in Clause 3 Article 97 of the Labor Code shall, in addition to the pay given as prescribed in Clauses 2 and 3 of this Article, be paid an additional 20% of salary calculated according to the pay rate or actual salary on a normal working day or weekly day off or public holiday.

5. Employees who work overtime on public holidays falling on the weekly days off as prescribed in Article 110 of the Labor Code shall be paid overtime pay of public holidays. Employees who work overtime on compensatory days off for the public holidays falling on weekly days off as prescribed in Clause 3 Article 115 of the Labor Code shall be given overtime pay on weekly days off.

6. The pay given to workers working overtime and working at night as prescribed in Clauses 2, 3, 4 and 5 of this Article shall be calculated in proportion to the method of payment specified in Article 22 of this Decree.

Article 26. Salary used as the basis for calculating the pay for employees during work suspension period, annual, public holidays, paid leaves, salary advance and deduction

1. The salary used as the basis for calculating the pay for employees during work suspension period in Clause 1 Article 98 of the Labor Code shall be the salary written in the employment contract when an employee has to cease his/her work, which shall be calculated in proportion to the salary paid according to the form of payment of time-based salary as specified in Clause 1 Article 22 of this Decree.

213. The salary used as the basis for calculation of pay for during annual leave days mentioned in Article 111; for extra annual leave days in Article 112; for public holidays in Article 115 and paid leave in Clause 1 Article 116 of the Labor Code is the monthly salary specified in the employment contract divided by (:) the number of working days in the month defined by the employer, multiplied by (x) the number of annual leave days and extra leave days, public holidays and paid leave days.

3. The salary on which an employer bases to pay for an employee in untaken leave days or fully untaken annual leave days in Article 114 of the Labor Code is elaborated as follows:

a) If the employee has worked for 06 months or more, it shall be the average salary specified in the employment contract of the preceding 06 months before the employee terminates or loses his/her job.  If the employees has not taken or fully not taken annual leave due to other reasons, it shall be the average salary specified in the employment contract of the preceding 06 months before the employer pays annual untaken leave day;

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4. The salary paid to an employee in untaken leave days or fully untaken annual leave days shall be the salary prescribed in Clause 3 of this Article divided by (:) the number of normal working days prescribed by the employer of the preceding month before the employer pays, and multiplied by (x) the number of annual untaken leave days or fully untaken annual leave days.

5. The salary used as the basis for calculating salary advance paid to an employee during the paid leave for fulfillment of citizen’s duties as prescribed in Clause 2 Article 100 or work suspension period prescribed in Article 129 of the Labor Code shall be the salary specified in the employment contract of the preceding month before the employee temporarily ceases his/her job or is suspended from work and shall be calculated in proportion to the pay paid according to the method of payment specified in Clause 1 Article 22 of this Decree.

6. The salary used as the basis for calculating salary deduction paid to indemnify the damage caused by damaging the tools and equipment in Clause 1 Article 130 of the Labor Code shall be the actual salary received by the employee on monthly basis after deducting compulsory social insurance, health insurance, unemployment insurance and paying personal income tax (if any) as prescribed.

Article 26a. Salary used as the basis for compensation in case of illegal unilateral termination of the employment contract

The salary used as the basis for compensation in case of illegal unilateral termination of the employment contract mentioned in Clause 5 Article 42 or Clause 2 Article 43 of the Labor Code is the monthly salary specified in the employment contract applicable at the time of illegal unilateral termination of the contract.

Chapter V

LABOR DISCIPLINE AND MATERIAL RESPONSIBILITIES

Section 1: LABOR DISCIPLINE

Article 27. Contents of labor regulations

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1. Working time and rest time : regulations on normal working hours in 01 day, 01 week; work shift; starting and ending time of the work shift; overtime working (if any); overtime working in special cases; short breaks beside break time; shift exchange breaks; weekly leave; annual leave, personal leave, unpaid leave

2. Order at workplace: Regulations on work scope, moving around in work time; behavioral culture, costumes; compliance with employer’s orders (unless the risks of occupational accidents or occupational diseases seriously threatening life and health of the employees are obviously found).

3. Occupational safety and hygiene at workplace: Responsibilities for complying with regulations on occupational safety and hygiene and fire prevention; compliance with measures for ensuring occupational safety and hygiene, prevention against occupational accidents and occupational diseases; compliance with rules, procedures, regulations and standards on occupational safety and hygiene; use and maintenance of personal protective equipment; hygiene, decontamination, sterilization at workplace.

4. Protection of assets and technological and business secrets and intellectual property of the employer: List of assets, documents, technological and business secrets and intellectual property that must be protected within jurisdiction.

5. Employees’ violations against labor discipline, method of taking actions against violations of labor discipline, and material responsibilities: List of violations, degree of violation in proportion to the method of taking actions against violations of labor discipline; extent of the damage, responsibility for indemnity of damages.

Article 28. Registration of labor regulations and effect of labor regulations

1. Within 10 days after the issuance date of labor regulations, the employer shall submit an application for labor regulation registration to the employment authority of the province where the employer’s business is registered.

215. After the satisfactory application is received, the provincial employment authority shall issue a confirmation of the date of receipt of the application.

316. Within 07 working days from the receipt of the application, the provincial employment authority shall notify the employer if the labor regulations are not conformable with law and instruct the employee to revise them.

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5. If amending the effective labor regulations, the employer shall consult the representative organization of employees and re-register the labor regulations.

6. The application for of labor regulation re-registration specified in Clauses 4 and 5 of this Article is the same as the application for labor regulation registration.

7. The labor regulations come into force 15 days after the provincial employment authority receives the application for labor regulation registration or re-registration.

8. The employer whose branches, units and business and production establishments are located in multiple central-affiliated cities and provinces shall submit the effective labor regulations to the employment authority of the province where the branches, units and business production establishments are located.

9. The employer hiring less than 10 employees is not required to register the labor regulations.

Article 29. Actions against violations of labor discipline imposed on the employees raising children under 12 months of age

1. Each employer shall not take actions against violations of labor discipline committed by an employee being the natural father or mother or legal adoptive father or mother who is raising children under 12 months of age.

2. Upon expiry of the period of raising children under 12 months of age, the time limit for taking actions that has expired shall be extended, but not exceeding 60 days after the expiry of the period of raising children under 12 months of age.

Article 30. Disciplinary procedures

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1. In the cases where an employee is found committing a violation, the employer shall issue an offence notice, inform the representative organization of employees (or the employee’s parent or legal representative if the employee is under 18) in order to hold a disciplinary meeting.

2. In the cases where an employee’s violation is discovered after it has been committed and before expiration of the time limit for penalty imposition and there is ample evidence of the violation:

a) The employer shall notify the persons mentioned in Point b and Point c Clause 1 Article 123 of the Labor Code of the content, time and location of the disciplinary meeting before holding the meeting and only hold the meeting if it is attended by these persons.

b) Within 03 working days from the day on which the employer’s notification is received, the recipients shall confirm their participation or refuses to participate and provide explanation.  

In the cases where any of the recipients refuses to participate in the meeting or the explanation for not participating is not acceptable or fails to participate in the meeting as confirmed, the violator still has to face disciplinary actions.

3. It is mandatory to have the minutes of the disciplinary meeting, which have to be approved by the participants before the end of the meeting. The minutes shall bear the participants’ signatures. Any participant that refuses to sign the minutes must provide explanation.

4. The person that concludes the employment contract on the employer’s side also has the power to issue the disciplinary decision.

5. The disciplinary decision shall be issued before expiry of the original or extended time limit for penalty imposition specified in Article 124 of the Labor Code.  The disciplinary decision shall be sent to the employee (or his/her parent or legal representative if the employee is under 18) and the representative organization of employees.

Article 29. Dismissal imposed on employees leaving job without permission

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a) The total leave period is 05 working days in up to 01 month (30 days) from the first leave day;

b) The total leave period is 20 working days over up to 01 year (365 days) from the first leave day.

2. An employee leaves job with acceptable explanation in the following cases:

a) Natural disasters or fires;

b) Illness of the employee or his/her natural mother, father, adoptive mother, adoptive father, mother-in-law, father-in-law, husband, wife, children or adopted children with certification by a health facility founded and operating as prescribed by law;

c) Other cases defined in the labor regulations.

Section 2: MATERIAL RESPONSIBILITIES

Article 32. Compensation for damage

Compensation for damage is prescribed in Article 130 of the Labor Code and elaborated as follows:

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2. The employee shall pay compensation for partial or total damage according to the market price in one of the following cases:

a) He/she, due to negligence, causes a damage to tools and equipment valued at no more than 10 months’ region-based minimum salary announced by the Government and applied in the area where the employee works;

b) He/she loses tools, equipment or assets of the employer or other assets provided by the employer;

c) Materials are consumed in excess of the permitted level defined by the employer.

3. If the employee causes any damage as prescribed in Clause 2 of this Article and has been bound by the liability contract with the employer, such employee shall provide compensation under the liability contract.

4. In case the damage is caused by a natural disaster, fire, conflict, disease, calamity or other objective events which are unforeseeable and irremediable and every necessary measure has been taken to full ability, no compensation is required.

5. The procedures and time limit for provision of compensation for damages are the same as those for taking actions against violations of labor discipline.

Article 33. Complaints about labor discipline and material responsibilities

1. If an employee whom penalties for violations against labor discipline are imposed or who is suspended from work or has to pay compensation in accordance with the regulations on material responsibilities does not agree with the disciplinary decision, he/she shall file a complaint against the employer’s decision with the employer or the competent authority as prescribed by law, or request settlement of a labor dispute in accordance with the procedures prescribed in Article 201 of the Labor Code.

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3. The employer shall restore the employee’s rights and interests affected by the disciplinary decision or decision on work suspension or decision on provision of compensation paid by the employer.  If unlawful dismissal is carried out as a disciplinary measure, the employer shall comply with Clauses 1, 2, 3 and 4 Article 42 of the Labor Code.

Chapter VI

SETTLEMENT OF LABOR DISPUTES

Article 34. Labor arbitration council

1. A labor arbitration council specified in Article 199 of the Labor Code includes:

a) A chairperson, who is the head of the provincial employment authority;

b) A secretary;

c) Members who are representatives of the provincial trade unions and provincial representative organizations of employees.

2. Chairperson and members of the arbitration council work part time and serve a 05-year term.

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4. The chairperson of the labor arbitration council shall specify working regulation of the council.

Article 35. Actions against labor strikes that fail to comply with prescribed procedures

Actions against a strike that fails to comply with prescribed procedures are prescribed in Article 222 of the Labor Code and elaborated as follows:

1. A strike that fails to comply with prescribed procedures specified by the People’s Committee of the province shall be declared as follows:

a) If it is considered that a strike is organized and led against Articles 212 and 213 of the Labor Code, the employer shall immediately notify the President of the People's Committee of the district and Confederation of Labor of the district or trade union of the industrial park, export-processing zone, economic zone or hi-tech zone where the strike occurs;

b) After receiving the notification, the President of the People’s Committee of the district shall direct the Provincial Department of Labor, War Invalids and Social Affairs to cooperate with the Confederation of Labor of the district or trade union of the industrial park, export-processing zone, economic zone or hi-tech zone where the strike occurs in investigating the case. Within 24 hours after receiving the direction, the Department of Labor, War Invalids and Social Affairs of the district shall submit a report on the investigation result to the President of the People’s Committee of the district;

c) If the strike fails to comply with prescribed procedures, within 12 hours after receiving the report, the President of the People’s Committee of the district shall request the President of the People’s Committee of the province in writing to declare that the strike fails to comply with prescribed procedures;

d) Within 12 hours, after the President of the People’s Committee of the province is requested in writing, the President shall issue a decision to declare that the strike fails to comply with prescribed procedures and immediately notify the President of the People's Committee of the district.

2. Within 12 hours from the receipt of the decision to declare that the strike fails to comply with prescribed procedures, the President of the People’s Committee of the district shall direct the Department of Labor, War Invalids and Social Affairs of the district to cooperate with the Confederation of Labor of the district or trade union of the industrial park, export-processing zone, economic zone or hi-tech zone where the strike occurs and relevant organization in directly meeting the employer, the executive board of the internal trade union or the superior union in case the internal trade union has not yet been founded to seek opinions and assist parties for the purpose of strike settlement.

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Article 36. Compensation for damage caused by illegal strikes

The compensation for damage in case of illegal strikes is prescribed in Clause 1 Article 233 of the Labor Code and is elaborated as follows:

1. The employer shall determine the value of the damage caused by the illegal strike, including:

a) Damage to machinery, equipment, raw materials, fuel, semi-finished products and finished products damaged after deducting the residual value due to liquidation and recycling (if any);

b) Costs used to taking remedial actions against illegal strikes: costs of operation of machinery used to meet technology demand; repair and replacement of damaged machinery and equipment; recycling of damaged raw materials, fuel, semi-finished products and finished products; preservation of raw materials, fuel, semi-finished products, finished products during the strike; sanitation; customer compensation or handling of contract violations that arise from the strike.

2. The employer shall request the trade union leading the illegal strike in writing to provide compensation. A written request contains at least:

a) Value of damage due to illegal strike specified in Clause 1 of this Article;

b) Value of compensation claims;

c) Deadline for providing compensation.

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In case of disagreement with the value of damage, compensation value an deadline for providing compensation at the request of the employer, within 05 working days from the receipt of the written request, the representative of the trade union directly leading the strike shall request the employer in writing to negotiate the disagreements.

After negotiation, if an agreement is reached, both parties shall adhere to the agreement. In case of failure to reach an agreement, either of two parties may request settlement by a court as prescribed.

Chapter VII

IMPLEMENTATION CLAUSE

Article 37. Effect

1. This Decree comes into force from March 01, 2015.

2. The Government’s Decree No. 196/CP dated December 31, 1994; Government’s Decree No. 93/2002/ND-CP dated November 11, 2002; Government’s Decree No. 41/CP dated July 6, 1995; Government’s Decree No. 33/2003/ND-CP dated April 2, 2003; Government’s Decree No. 11/2008/ND-CP dated January 30, 2008 and the previous regulations contrary to regulations of this Decree are null and void from the effective date of this Decree.

Article 38. Transitional clauses

1. If employment contracts, collective bargaining agreements, employer’s labor regulations and regulations were signed or issued before the effective date of this Decree, relevant parties shall carry out review, make amendments amend and follow procedures promulgated in accordance with regulations of this Decree.

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3. If an employee working in a state-owned single-member limited liability company was appointed by a competent authority as a member of the Board of Members or the company President, General Director (Director), Deputy General Director (Deputy Director), supervisor or chief accountant or assigned to be a representative of the stakes and work in another enterprise before the effective date of this Decree, the period of postponement of the employment contract specified in Article 9 of this Decree begins from the date on which such employee is appointed or assigned to represent the stakes.

Article 39. Responsibility for implementation

1. The Minister of Labor, War Invalids and Social Affairs shall provide guidelines for this Decree.

2. Ministers, heads of ministerial agencies, heads of Governmental agencies and Presidents of People's Committees of provinces and central-affiliated cities and relevant authorities, enterprises and individuals are responsible for the implementation of this Decree./.

CERTIFIED BY
THE MINISTER




Dao Ngoc Dung

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“Pursuant to the Law on Government Organization dated June 19, 2015;

Pursuant to the Labor Code dated June 18, 2012;

At the request of the Minister of Labor, War Invalids and Social;

The Government hereby promulgates a Decree on amendments to some Articles of the Government’s Decree No. 05/2015/ND-CP dated January 12, 2015 on elaboration of some contents of the Labor Code.”.

2 This Clause is amended by Clause 1 Article 1 of the Decree No. 148/2018/ND-CP, which comes into force from December 15, 2018.

3 This Clause is amended by Clause 2 Article 1 of the Decree No. 148/2018/ND-CP, which comes into force from December 15, 2018.

4 This Clause is amended by Clause 2 Article 1 of the Decree No. 148/2018/ND-CP, which comes into force from December 15, 2018.

5 This Clause is amended by Clause 2 Article 1 of the Decree No. 148/2018/ND-CP, which comes into force from December 15, 2018.

6 This Clause is amended by Clause 2 Article 1 of the Decree No. 148/2018/ND-CP, which comes into force from December 15, 2018.

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8 This Clause is amended by Clause 4 Article 1 of the Decree No. 148/2018/ND-CP, which comes into force from December 15, 2018.

9 This Clause is amended by Clause 5 Article 1 of the Decree No. 148/2018/ND-CP, which comes into force from December 15, 2018.

10 This Clause is repealed by Clause 6 Article 1 of the Decree No. 148/2018/ND-CP, which comes into force from December 15, 2018.

11 This Clause is amended by Clause 7 Article 1 of the Decree No. 148/2018/ND-CP, which comes into force from December 15, 2018.

12 This Article is amended by Clause 8 Article 1 of the Decree No. 148/2018/ND-CP, which comes into force from December 15, 2018.

13 This Clause is amended by Clause 9 Article 1 of the Decree No. 148/2018/ND-CP, which comes into force from December 15, 2018.

14 This Article is amended by Clause 10 Article 1 of the Decree No. 148/2018/ND-CP, which comes into force from December 15, 2018.

15 This Clause is amended by Clause 11 Article 1 of the Decree No. 148/2018/ND-CP, which comes into force from December 15, 2018.

16 This Clause is amended by Clause 11 Article 1 of the Decree No. 148/2018/ND-CP, which comes into force from December 15, 2018.

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18 This Clause is amended by Clause 13 Article 1 of the Decree No. 148/2018/ND-CP, which comes into force from December 15, 2018.

19 According to Article 2 of the Decree No. 148/2018/ND-CP, which comes into force from December 15, 2018:

“Article 2. Effect

1. This Decree comes into force from December 15, 2018.

2. Article 7 and Clauses 1 and 3 Article 10 of the Circular No. 47/2015/TT-BLDTBXH dated November 16, 2015 of the Minister of Labor, War Invalids and Social Affairs are repealed.

3. In the cases where an employment contract is terminated before the effective date of this Decree and the employer has not paid severance pay or redundancy pay to the employee, the work period as the basis for calculation of severance pay or redundancy pay shall be determined according to legislative documents that are applicable when the employment contract is terminated.

4. Regarding the employment contracts that came into force before the effective date of the 2012 Labor Code and contain specific probation period, the work period as the basis for calculation of severance pay or redundancy pay shall include the probation period specified in the employment contract.”