How to Resolve Disputes in Labour in Vietnam?

   

Both employees and employers can consult labour dispute lawyers in Vietnam to understand the labour law and protect their rights.

A labour dispute is one of the most common disputes in society, in particular it means a dispute over rights, obligations and interests among the parties during the establishment, execution or termination of labor relation; a dispute between the representative organizations of employees; a dispute over a relationship that is directly relevant to the labor relation.

In fact, labour disputes happen often, but there are many situations where employees often have little understanding of their rights, leading to disadvantages if the employer does not know or does not follow the law.

Therefore, identifying employment disputes is very important. For employees, learning about labor law is to know their rights. Employers need to understand labor laws to ensure compliance.

Labour disputes incurred during pandemic, questions needing answers?

For example, during the recent pandemic, many businesses faced difficulties in doing business in Vietnam and hence many common labour disputes arisen. For workers, a dispute could arise from not being paid on time. Other concerns are whether there is any violations that lead to the termination of the labor contract? Has the employer carried out restructuring procedures and notified state agencies according to the correct procedure before terminating the labor contract with the employee? Does the employer have an agreement with the employee before suspending the labor contract during the pandemic? When the business is not efficient, is the employer required to pay the 13th month salary to the employee?

What types of labour dispute you might be encountering?

At present, labour disputes are classified into different types based on the object who participated in the dispute: Labour disputes between the employee and the employer; labour between the employee and the organization that sends the employee to work overseas under a contract; labour dispute between the outsourced worker and the enterprise. Right-based or interest-based collective labour disputes between one or several representative organizations of employees and the employer or one or several representative organizations of employees.

How to settle labour dispute at court?

The labor dispute settlement process must follow the following principles:

Respect the parties’ autonomy through negotiation throughout the process of labor dispute settlement;

Prioritize labour dispute settlement through mediation and arbitration on the basis of respect for the rights and interests of the two disputing parties, and respect for the public interest of the society and conformity with the law;

The labour dispute shall be settled publicly, transparently, objectively, promptly, and lawfully;

Ensure the participation of the representatives of each party in the labour dispute settlement process;

Labour dispute settlement shall be initiated by a competent authority or person after it is requested by a disputing party or by another competent authority or person and is agreed by the disputing parties.

When a labour dispute arises, one party or parties may request a Labor Mediator; The Labor Arbitration Council or the People’s Court to settle the disputes.

Matter on time limit is an important matter that the parties should pay attention. The time limit to request a labor mediator to settle an individual labor dispute is 06 months from the date on which a party discovers the act of infringement of their lawful rights and interests.

For the form of dispute settlement through the Labor Arbitration Council, the time limit is 09 months from the date on which a party discovers the act of infringement of their lawful rights and interests. In case of requesting the Court to settle the labour dispute, the time limit is 01 year from the day on which a party discovers the act of infringement of their lawful rights and interests.

What labour dispute lawyers in Vietnam could help?

Many of the labour disputes could be resolved effectively at court hence engaging a labour dispute lawyers in Vietnam to file a lawsuit will help parties involved.

Please note, upon the expiration of the above-mentioned time limitation, the disputing parties will not have the right to request the competent authorities to resolve the dispute. In case the requester is able to prove that the aforementioned time limits cannot be complied with due to a force majeure event or unfortunate event, the duration of such event shall not be included in the time limit for requesting settlement of individual labour dispute.

ANT Lawyers, a law firm in Vietnam, always follow up the labour matters to update clients on regular basis.

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When Labour Dispute over Bonus Issue Arise and How to Resolve?

    

Employment bonus promise could help drive the performance for the business but sometimes disputes arise because there is discrepancy in translating how performance is met in the eye of employer and employee.

According to the provisions the Labor Code, the bonus, also known as the “other supplement”, is one of the main contents of the Labor Contract. Specifically, bonus is understood as a sum of money paid by an employer to the employees on the basis of annual business results and the level of work performance of employees. When the dispute arises, the employer or the employee could consult with labour dispute lawyers in Vietnam to advise and handle the matter effectively.

Bonus regulations of each company must be decided and publicly announced by the employer at the workplace after consultation with the representative organization of the grassroots-level employees’ collective. However, there are companies that do not specify bonus regulations or companies with unclear bonus regulations referring to such generally as “based on capability”, or “based on work results” without referring to specific key performance indicator (KPI). Such regulations will easily cause labor disputes that each party would need to seek consultancy from labour dispute lawyers in Vietnam. In most of the case, the employee would face disadvantage because the employer will be the one whom make the final decision on whether or not the capability or work results are satisfied.

A labor dispute means a dispute over rights, obligations and interests among the parties during the establishment, execution or termination of labor relation; a dispute between the representative organizations of employees; a dispute over a relationship that is directly relevant to the labor relation. Labor disputes over bonuses can be individual labor disputes or collective labor disputes. The competence authority to settle labor disputes belongs to the Labor Mediator, the Labor Arbitration Council, and the People’s Court. Normally, individual labor disputes or collective labor disputes must go through the mediation procedure of the labor mediator before referring to the court to settle, unless otherwise provided for by law.

For individual disputes, in case the conciliation is unsuccessful or either party fails to implement the agreements in the minutes of successful conciliation or the settlement time limit expires but if the labour conciliator fails to conduct conciliation, each disputing party has the right to request a court or arbitration council for settlement.

For collective disputes over bonuses, in case the conciliation is unsuccessful or one of the two parties fails to implement the agreements in the minutes of successful conciliation, the parties have the right to request the President of the district-level People’s Committee to resolve the dispute. If the parties disagree with the decision of the President of the People’s Committee of the district or beyond the time limit but the President of the People’s Committee of the district does not settle, the parties have the right to request the Court to settle. In such situation, a litigation lawyer would be engaged to assist for productive result.

How labour dispute lawyers in Vietnam could help?

Labour dispute lawyers in Vietnam could help from the early stage to draft and review labour contract, labour regulations to be submitted and registered with authority. Once there are labour dispute potentially arisen, the labor dispute lawyers could assist with advice, negotiation for settlement. The last resort would be needing the labor dispute lawyers to assist in filing litigation petition at court for resolution.

ANT Lawyers, a law firm in Vietnam, always follow up the labour matters to update clients on regular basis.

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Whom is Exempted from Work Permit Since 2021?

    

On December 30, 2020, the Government issued Decree No. 152/2020/ND-CP regulating foreign workers working in Vietnam and recruiting and managing Vietnamese employees to work for the foreign employers in Vietnam.

In which, foreign workers in Vietnam are not required to be granted work permits include:

The employee is the owner or capital contributor of a limited liability company with a capital contribution of at least 3 billion VND; Chairman of the Board of Directors or a member of the Board of Directors of a joint stock company with a capital contribution of at least 3 billion VND;

Intra-corporate transferees within 11 service sectors in Vietnam’s service commitment schedule with the World Trade Organization, including: business services, communication services, construction services, distribution services, educational services, environmental services, financial services, health services, tourism services, recreational and cultural services, and transport services;

The person responsible for establishing a commercial presence;

The employee enters Vietnam to work as manager, executive, expert or technical worker for a working time of less than 30 days and not more than 3 times a year;

The employee who enters Vietnam for a period of less than 03 months to offer services;

The employee enters Vietnam for a period of less than 03 months to handle complicated incidents, technical or technological situations that affect or risk affecting production and business that Vietnamese experts and the foreign experts currently in Vietnam cannot handle it;

Foreign lawyer who has been granted a law practice license in Vietnam in accordance with the Law on Lawyers; The employee is licensed by the Ministry of Foreign Affairs to operate information and press in Vietnam in accordance with the law; The person certified by the Ministry of Education and Training to enter Vietnam for teaching and researching;

The employee enters Vietnam to provide professional and engineering consulting services or perform other tasks intended for research, formulation, appraisal, supervision, evaluation, management and execution of programs and projects using official development assistance (ODA) in accordance with regulations or agreement in international treaties on ODA signed between the competent authorities of Vietnam and foreign countries;

The employee is sent to Vietnam by competent foreign agency or organization to teach and research at international schools under the management of foreign diplomatic missions or the United Nations; establishment and organization established under the agreement which Vietnam has signed and acceded to;

The employee enters Vietnam to implement an international agreement to which a central or provincial authority is a signatory as per the law;

Person obtains an official passport to work for a regulatory agency, political organization, or socio-political organization;

Relatives of members of foreign representative missions in Vietnam;

In cases where the provisions of an international treaty to which the Socialist Republic of Vietnam is a signatory;

Head of representative office, project or is responsible for the activities of international organizations, foreign non-governmental organizations in Vietnam;

The employee is a volunteer;

The student studies at a foreign school or training institution which has a probation agreement with an agency, organization or enterprise in Vietnam; or a probationer or apprentice on a Vietnam sea-going ship;

The employee is a foreigner who marries a Vietnamese and lives in the territory of Vietnam.

This Decree takes effect from February 15, 2021.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Attorneys in Hanoi, Attorneys in Ho Chi Minh and Attorneys in Danang.

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What Are the Order of Disciplining Employee in Vietnam?

          

Labour discipline is the provisions on compliance matters relating to work time, technology and production and business management in labor regulations. It can be understood simply that when an employee violates the labor regulations, depending on the extent and regulations of the company, he or she will be subject to disciplinary action. The order of disciplining labor is conducted in accordance with the provisions of labour code in Vietnam. Failing to follow the order of discipline would lead to potential disputes which both employer and employee should consult with dispute lawyers in Vietnam for advice to protect their best interests.

Firstly, the employer must confirm the employee’s violations

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

Secondly, issuing notice of the disciplinary meeting

This step is only carried out in case the employer detects violations of labor discipline after the time when the violation has occurred, there are sufficient grounds to prove the fault of the employee and the statute of limitations for disciplining.

The employer sends the notice with the content, time and place of the meeting to handle the labor discipline to the organization representing the labor collective at the grassroots level; workers; In the case of a person under 18 years old, there must be the participation of a parent or legal representative.

The employer must ensure these recipients receive notice before the meeting takes place and conduct a labor discipline meeting with the participation of the notification components.

Thirdly, conducting a disciplinary meeting

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. If any participant that refuses to sign the minutes, there should be explanation.

Fourthly, disciplinary decisions

The person that concludes the employment contract on the employer’s side also has the power to issue the disciplinary decision. The disciplinary decision shall be issued before expiration of the original or extended time limit for penalty imposition specified the labour 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 employee representative organization.

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What Are Potential Disputes over the Settlement Method for Employees When Separating Enterprises?

        

In Vietnam, reorganization of an enterprise means the division, separation, consolidation, merger or transformation of an enterprise. In particular, when separating enterprises, in addition to legal issues related to enterprise separation procedures, registration for newly formed enterprises, the introduction of a plan for the employees of the separated company is also a matter of concern. The transferor company and the transferee company need to allocate and use the existing labor force accordingly. It is important to ensure the interests of workers. Specifically, in case of continuing to employ employees, when separating an enterprise, the next employer is responsible for continuing to use up the existing workforce and proceeding with the labor contract amendment and supplement. All of this might lead to potential disputes which lawyers would be involved to provide legal advice from the early stage.

If the enterprise does not use up all the employees or the labor demand of the company does not run out of the existing number of employees, the enterprise must develop a suitable plan to use employees in accordance with the law. Specifically, an employment plan must contain the following main contents: The list and the number of employees to be continued to be used, the employee sent for retraining to continue using; List and number of employees to retire; The list and number of employees who are transferred to part-time work; the employee must terminate the labor contract; Measures and financial resources to ensure implementation of the plan. Enterprises should note that when developing plans for the employment of employees, there must be the participation of organizations representing labor collectives at the grassroots level.

In case it is imperative that the employees quit their job, the enterprise must pay the employee a job loss allowance so that the interests of the employee will still be guaranteed when separating the enterprise. The Labor Code has specified as follows: An employer shall pay a job-loss allowance to an employee who loses his/her job and has worked regularly for the employer for 12 months or longer. The job-loss allowance is equal to 1 month’s wage for each working year, but must not be lower than 2 months’ wage. The working period used for the calculation of job-loss allowance is the total time during which the employee actually works for the employer minus the time during which the employee benefits from unemployment insurance in accordance with the Law of Social Insurance and the working period for which the employer has paid a severance allowance to the employee. The wage used for the calculation of job-loss allowance is the average wage in accordance with the labor contract during 6 months preceding the time the employee loses his/her job.

It is important to have proper and proactive discussion with impacted employee and avoid disputes impacting the company’s reputation. Dispute lawyers could be of help for advice and preparation.

ANT Lawyers – A law firm in Vietnam, always follow up the labour matters to update clients on regular basis

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What Makes Application for Work Permit in Vietnam Challenging After Covid?

        

Given international integration and the needs of the Vietnamese labor market, the number of foreigners working in our country is increasing. In order to ensure the stability of the labor market and the management of competent authorities, the Labor Code requires foreigners to have a work permit, except in some special cases. After the Covid pandemic, the work permit application has gradually been normalized again. However, foreign workers still face some difficulties in the process of applying for a work permit.

Firstly, the application for issuance of a work permit specified in Article 9 of Decree 152/2020/ND-CP lists many documents and papers that employees must prepare. In particular, clause 2 of this article requires: “Health fitness to work certificate issued by a foreign or Vietnamese competent health facility issued within 12 months…”. However, due to the impact of the Covid epidemic, the health of workers in general and foreigners in particular in many situations is not qualified for a Health Certificate. Their application will be rejected because of this reason. In addition, the large number of documents that must be prepared in the application makes it difficult for both the employer and the employee. Collecting all of these documents is complex, time-consuming, expensive, and involves numerous procedures, especially when there are documents written in other languages. Clause 10, Article 9 of the Decree stipulates the consular legalization of foreign papers and authentication of copies. Although this regulation helps to assure the authenticity of documents, the consular legalization procedure is not popular, so not everyone knows how to do it, which leads to time wasted.

Secondly, the process of obtaining a work permit is long with many different procedures such as applying to accept the demand for foreign workers, preparing documents and submitting documents. As previously discussed, the number of documents in the application is relatively large, so the preparation process also takes a lot of time. In urgent cases where it is necessary to employ foreign workers immediately or within a short period of time, obtaining permits will hinder this demand and make it difficult for employers. Therefore, the legislature should consider shortening the procedure for granting work permits as well as simplifying the documents to be submitted, creating favorable conditions for employers and employees; thereby, encouraging high-quality foreign workers with many skills and experiences to participate in the Vietnamese labor market.

In conclusion, the two biggest difficulties people encounter when applying for a work permit in Vietnam are: (1) requiring too many documents and papers in the application and (2) taking a lot of time with many procedures. Due to these difficulties, in practice, many businesses are concerned about using foreign workers or using foreign workers without applying for a permit. This makes the management and control of the labor market by the competent authority more difficult. Therefore, Vietnamese law needs to consider amending and supplementing the regulations governing the issuance of work permits in Vietnam.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Attorneys in Hanoi, Attorneys in Ho Chi Minh and Attorneys in Danang.

ANT Lawyers – a law firm in Vietnam will always follow up with authorities for legal update on matters relevant to work permit to update clients on regular basis.

Readmore:https://antlawyers.vn/library/what-makes-application-for-work-permit-in-vietnam-challenging-after-covid.html

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How Mediation and Labor Arbitration Councils Work in Settlement of Labor Disputes?

       

During and after the Covid-19 pandemic, the financial health of enterprises have been negatively impacted leading to management’s decision to reduce cost through termination of labour contract with employee. The illegal termination of labour contract could lead to disputes between employer and employee which sometime would cost the employer more than it gains. It is important for the employer to engage with labour lawyers to consult before taking the decision to consider factors that would involve. After disputes arise, mediator or labour arbitration councils could be used for resolving disputes.

Individual labor disputes shall be settled through mediation by labor mediators before being brought to the Labor arbitration council or the Court, except for the following labor disputes which mediation is not mandatory: disputes over disciplining under dismissal or unilateral termination of employment contracts; disputes over damages and allowances upon termination of employment contracts; disputes between a domestic worker and his/her employer; disputes over social insurance in accordance with social insurance laws, disputes over health insurance in accordance with health insurance laws, disputes over unemployment insurance in accordance with employment laws; disputes over insurance for occupational accidents and occupational disease in accordance with occupational safety and hygiene laws; disputes over damages between an employee and enterprises, organization that dispatches the employee to work overseas under a contract; disputes between the outsourcing employee and the employer using outsourcing employee.

The mediator shall complete the mediation process within 05 working days from the receipt of the request from the requesting parties or the authority. Both disputing parties must be present at the mediation meeting. The disputing parties may authorize another person to attend the mediation meeting.

In case the two parties reach an agreement, the labor mediator shall make a written record of successful mediation which bears the signatures of the disputing parties and the labor mediator. In case the two parties do not reach an agreement, the labor mediator shall recommend a mediation option for the disputing parties to consider. Where the two parties do not agree with the recommended mediation option or where one of the disputing parties is absent for the second time without a valid reason after having been legitimately summoned, the labor mediator shall make a record of unsuccessful mediation which bears the signatures of the present disputing parties and the labor mediator.

The disputing parties shall be entitled to request the settlement from Labor arbitration councils in the following cases: a disputing party fails to perform the agreements specified in the record of successful mediation; mediation is not mandatory; the labor mediator fails to initiate the mediation by the deadline; the mediation is unsuccessful.

After the Labor arbitration council has been requested to settle a dispute, the parties must not simultaneously request the Court to settle the same dispute. If within 07 working days from the receipt of the request, an arbitral tribunal is not established; or within 30 working days from the establishment of the arbitral tribunal, it fails to issue a decision on the settlement of the labor dispute, parties shall be entitled to request the settlement from the Court. In case a disputing party fails to comply with the decision of the arbitral tribunal, the parties are entitled to bring the case to Court.

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How to Resolve Disputes in Employment in Vietnam?

       

A labor dispute is a dispute over rights, obligations and interests arising between parties in employment relationship. Labor disputes include individual labor disputes between employees and employers, and collective labor disputes between labor collectives and employers. When a labor dispute occurs, the competent agency, organization or individual will settle it on the basis of the measures and principles of labor dispute settlement prescribed in Chapter XIV of the Labor Code 2012

Measures for resolving labor disputes include: negotiation, grassroots conciliation, settlement of individuals and organizations competent to settle labor disputes.

For individual labor dispute resolution, labor conciliator, People’s Court is an individual or organization competent to resolve disputes. Labor conciliator; Chairman of the district People’s Committee; The People’s Court is competent to resolve collective labor disputes over labor rights and conciliators; The Labor Arbitration Council is competent to settle collective labor disputes about benefits.

Negotiation is a method of resolving a dispute in which the parties to a dispute deal directly with each other in order to reach an agreement on the settlement of the dispute. In fact, this is the most widely used solution. During the negotiation process, the parties will discuss issues related to the dispute, and propose solutions to resolve that dispute. The decision is made on the basis of agreement between the parties themselves and is not the result of any external pressure.

Unlike negotiation, conciliation is a method of resolving disputes involving third parties but not third parties make decisions but only support and guide the parties to negotiate. Under the provisions of Clause 1, Article 201 of the Labor Code 2012, individual labor disputes must go through the conciliation procedure of a labor conciliator before requesting a court to settle them, except for labor disputes on disciplinary measures in the form of dismissal or disputes over the unilateral termination of the labor contract; compensation for damages, benefits when terminating a labor contract; between domestic servants and employers; on social insurance in accordance with the law on social insurance, on health insurance in accordance with the law on health insurance; on compensation for damages between laborers and enterprises and non-business units that send laborers to work abroad under contracts. If the two parties reach an agreement, the labor conciliator shall make a record of successful conciliation. On the contrary, the two parties cannot reach an agreement, and the labor conciliator issues a conciliation plan for the two parties to consider and if the two parties accept the conciliation plan, the labor conciliator shall make a record of successful conciliation. In case the two parties do not accept the conciliation plan or a disputing party has been duly summoned for the second time but still absent without plausible reasons, the labor conciliator shall make a record of unsuccessful conciliation.

Dispute resolution by the Chairman of the district People’s Committee is the method to be applied when there is a request for resolving a collective labor dispute on rights. Chairpersons of district-level People’s Committees shall base themselves on labor laws, collective labor agreements, registered labor rules and legal regulations and agreements to consider and settle labor disputes.

The Labor Arbitration Council is the competent authority to settle collective labor disputes about benefits. At the meeting of the Labor Arbitration Council, there must be representatives of both parties to the dispute. The Labor Arbitration Council has the responsibility to assist the parties in self-negotiation. In case the two parties reach an agreement or accept the mediation plan, the Labor Arbitration Council shall make a record of successful mediation and issue a decision recognizing the agreement of the parties. In case the two parties fail to reach an agreement or one of the disputing parties has been duly summoned for the second time but still absent without plausible reasons, the Labor Arbitration Council shall make a record of unsuccessful mediation and after within 03 days, the labor collective has the right to carry out the procedures to go on strike.

Trial is a mode of resolving individual labor disputes and collective labor disputes over rights, in which the Court will issue a judgment or decision to resolve the case. The settlement of labor disputes in court is generally the final settlement activity after the dispute has been settled at other stages with no results. The settlement of labor disputes at the Court is done by a judicial body with special state power, proceeding according to the strict procedures and procedures prescribed in the Civil Procedure Code 2015. The greatest advantage of this method of dispute resolution is that the court’s decisions on labor disputes are guaranteed to be enforced by state coercive measures.

Employees as well as the labor collective and employers should pay attention to selecting the most appropriate and optimal resolution solution when labor disputes occur. It is also suggested to consult with labour lawyers of law firm speacializing in employment matters for efficiency.

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How Law Regulates Employing People with Disabilities in Vietnam?

       

Disabled people are those who have one or more body parts or functional impairments which are manifested in the form of disability, which makes it difficult for labor, living and learning. The State sponsors the right to labor and creates jobs for disabled workers, has policies to encourage and give incentives to employers to create jobs and to accept workers with disabilities to work in Vietnam.

The disabled people are inherently disadvantaged compared to other ordinary people, so to compensate for the unfortunate disabled people, the government has established mechanisms and policies for disabled employees and enterprises employing disabled laborers, being regulated in the law as following.

Corporate Income Tax

The company will enjoy corporate income tax exemption for income from goods and services of enterprises with an average number of disabled employees in the year accounts for 30% or more of the total labor of the enterprise.

Financial Support to Improve Work Conditions

Enterprises are provided with financial support to improve working conditions and environment for disabled workers, the support level is based on the proportion of people with stable employment at production and business establishments. The President of the provincial People’s Committee decides the level of funding to support the improvement of working conditions and environment for production and business establishments employing 30% or more of the disabled employees.

Land, Ground, Water Surface Rentals

Enterprises are exempted from land rents, ground and water surface rents for land, ground and water surface in service of production and business activities for production and business establishments employing 70% or more of their disabled employee. Enterprises are entitled to a 50% reduction of land rents, grounds and water surface for production and business activities for production and business establishments employing from 30% to less than 70% of laborers are disabled employees. During the period of exemption or reduction of land rents, premises, water surface, business and production establishments must not convert, transfer, donate, give or lease land use rights, ground and water surface and must not mortgage, pledge, guarantee, contribute capital in, joint venture with land use rights, ground and water surfaces in accordance with the Law on land.

Loan Support

The enterprises which have disabled employees may borrow capital from the national fund for employment when meeting conditions such as: having feasible capital borrowing projects competitions in the locality, in line with business and production lines, attracting more workers to work stably; loan project with certification of the competent agency, organization where the project is implemented; secured loan.

Besides, the enterprises which have disabled employers have to follow a number of requirements. i) do not distinguish between disabled workers and other workers. The violation of such would be sanctioned from 3 – 5 million VND; ii) ensure that the labor conditions are suitable for people with disabilities, specific businesses must ensure the labor conditions, labor tools, occupational safety, hygiene and labor appropriate for people with disabilities and regularly take care of their health by organizing periodic health check at least 06 months/time; must consult with the defective labor when deciding on the policy relating to them. The violations of such activities will be fined from 1 – 15 million VND; iii) do not use disabled workers who have reduced labor capacity from 51% or more to overtime, working at night, doing heavy, malicious, dangerous or exposed work with hazardous substances. In the event of a breach of such regulations, the enterprise will be fined from 1 – 15 million VND; iv) arranged for workers with disabilities who are allowed to take leave for 14 days for disabled workers with full 12 working months.

The above provisions are the basic labour regulations applicable to enterprises employing disabled workers. While there are benefits, there are also challenges in terms of labour regulations compliance. Consulting with labour lawyers would be needed to help the employer complying including drafting labour contract, drafting internal labour regulations, terminating the employment relationship to best manage the work force in the most effective ways. From the management point of view, the employers need to understand, and be aware of the policies that the state offers for their business as well as the obligations that the business needs to do for disabled workers to utilize and follow.

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What Are Rights and Benefits of the Employee Suffering the Occupational Accident?

     

Accidents can happen at any time at work. Whether a workplace accident is the result of employee carelessness or employer negligence, employers must take responsibility for accidents to employee.

Vietnam Labor Code defines occupational accident is an accident that causes injury to any part and function of the body or death to employee occurring during the working process associated with the implementation of work and labor tasks (according to Article 142 of Labour Code).

The employee has following rights when they suffer accidents:

1. The employee is paid all the payment of the co-payment costs and the costs not included under the list paid by the health insurance for the employee participating in health insurance and making full payment of all medical expenses from the first aid, emergency to the stable treatment for the employees not participating in health insurance.

2. The employee is entitled to full payment of salary under the labor contract to the employee suffering the occupational accident and having to take leave during treatment.

3. The employee participating in compulsory social insurance is entitled to enjoy the regime of occupational accident in accordance with the Law on Social Insurance.

The conditional to enjoy the regime of occupational accident: were injured in workplace or during working hours; outside the place of work or during working hours when performing work at the duty of the employer; on the road from home to work place and vice versa.

4. The employee is entitled to the enjoy labor accident allowance as:

. The employee with occupational accidents reduces working capacity from 5% to 30% are paid once.

The employee with occupational accidents reduces working capacity 5% receive an allowance of an amount equal to 5 month’ salary under labor contract and then every 1% increase has an addition of 0.5 month’ salary.

.The employee with occupational accidents reduces working capacity 31% or more receive an allowance at rate: reduce working capacity 30% shall receive 30% month’ salary under labor contract and then every 1% increase has an addition of 2% month’ salary

This allowance is paid every month.

. The death of the employee’s relative from the occupational accidents receive at least 36 months’ salary under labor contract.

5. The employee with occupational accidents not due to the fault of employee and reduce working capacity from 5% or more shall be compensated by the employer at the following rate:

. At least equal to 1.5 month’ salary under the labor contract if the employee is reduced from 5.0% to 10% of his working capacity and then every 1.0% increase, an addition of 0.4 months of salary under the labor contract if reduced working capacity from 11% to 80%;

. At least 30 months’ salary under labor contract for the employee reduced his working capacity from 81% or more or for the death of the employee’s relative from the occupational accidents.

6.Where due to the fault of the employee, he/she also receives an allowance of an amount at least equal to 40% of the rate prescribed when fault not belong to the employee.

7. In case the employee reduces his/her working capacity in temporary, the employee receives100%-month salary under labor contract the first aid, emergency to the stable treatment or until a permanent injury certificate is issued.

8. In case the employee reduces his working capacity in permanent, beside allowance of accidents, the employee reduces his/her working capacity from 81% or more receive 100% month’ salary under labor contract every month.

9. In the case of death of a worker who has paid social insurance for 15 years, relatives will receive a funeral allowance and dependents will be entitled to a minimum of 50% of the basic salary for each person.

10. In case of the employee’s death and had participated in compulsory social insurance for less than 15 years, the burial attendants receive allowance at least 10 months’ salary under labor contract at once.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Attorneys in Hanoi, Attorneys in Ho Chi Minh and Attorneys in Danang.

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What to Note When Signing Labour Contract with Foreign Workers?

    

With the policy of opening the economy in Vietnam, not only Vietnam attracts investors to set up company, but also the demand for foreign workers in enterprises grows and diversifies. However, in order for Vietnam companies to be able to use foreign workers, they must sign a labor contract.

After meeting the conditions specified in the Labor Code on meeting the requirements for recruitment and working in Vietnam, the foreign worker working in Vietnam shall sign a labor contract before the expected date intend to work for the employer. In this contract, the employer and the foreign worker will agree on all issues arising in the process of working as well as using labor together.

Firstly, on the working position in the labor contract, it must show the correct position and position for which the employer has determined the needs with the competent authority and in accordance with the working position shown in the document and the work permits which have been granted to foreign workers.

Regarding the working time, it will normally be agreed upon by the two parties but must not exceed the number of working days (hours) as prescribed by Vietnamese law. The number of overtime hours must be based on voluntary work and must ensure rest time, rest during working time and weekends for foreign workers.

According to the provisions of the Labor Code, in addition to Vietnamese public holidays and New Year’s holidays, foreign workers are allowed to take one more day off for the national traditional New Year and one national day of the country. This is a humane regulation, respecting the national culture of Vietnam. Therefore, the employer needs to learn about the National Day and the traditional Tet holiday of foreign workers so that the employees can take leave in accordance with the provisions of the law.

Regarding the term of the labor contract, the term of the labor contract for foreigners is also governed by the duration of the work permit issued by the competent Vietnamese authority. Accordingly, the term of the labor contract for foreign workers working in Vietnam must not exceed the term of the work permit. Therefore, the employer should pay attention to conclude the contract term in accordance with regulations.

In addition, employers and foreign workers should be aware of the terms of disputes which could potentially arise. Because, contract terms are an important legal basis to resolve when a labor dispute arises, agreeing in advance on how to resolve a dispute when a dispute arises will create a clear legal foundation for easy settlement by both parties. Dispute lawyers are suggested to be consulted at an early stage to avoid dispute escalation.

At most, it is important that the employers and foreign workers need to pay attention and strictly comply with the provisions of the law so that the process of entering into and performing the contract is conducted smoothly and in compliance with the law in Vietnam.

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