The Labor Code 2019 comes into effect from January 01, 01, replacing the 2021 Labor Code. Here are 2012 new points about the labor contract, salary and bonus that businesses need to pay attention to.
1. Specifying what is a labor contract:
An employment contract is an agreement between an employee and an employer on paid employment, wages, working conditions, rights and obligations of each party in the labor relationship.
If the two parties reach an agreement by another name but have contents showing the paid employment, salary and the management, administration and supervision of one party, it is considered the labor contract.
Thus, any contract, regardless of its name, is considered a labor contract if there are 3 signs:
+ Work on the basis of agreement;
+ Pay salary;
+ There is the management, administration and supervision of one party.
2. Form of labor contract
+ The labor contract must be concluded in writing and made into 02 copies, the employee keeps 01 copy, the employer keeps 01 copy, except for the case specified in Clause 2 of this Article.
Accepting a labor contract electronically in the form of a data message, specifically: a labor contract is concluded via electronic means in the form of a data message in accordance with the law on transactions. Electronic is valid as a written labor contract.
+ It is possible to enter into a verbal labor contract for contracts with a term of less than 01 month, except for the cases specified in Clause 2, Article 18, Point a, Clause 1, Article 145, and Clause 1, Article 162, of this Code.
3. Type of labor contract
From 01/01/2021, the labor contract will be entered into one of the following types:
+ Indefinite term labor contract.
+ A fixed-term labor contract, in which the two parties define the term and the time of termination of the labor contract within a period not exceeding 36 months from the effective date of the contract.
Thus, compared with the provisions of the Labor Code 2012, there will be no labor contracts for seasonal or certain jobs.
4. 3 New regulations on the probationary period
+ The probationary content can be agreed upon and written in the labor contract.
+ Not apply for probation to employees who enter into labor contracts with a term of less than 01 month.
+ The probationary period can last up to 180 days with the job of the business manager.
Additional provisions: The probationary period does not exceed 180 days for the job of the enterprise manager according to the provisions of the Enterprise Law.
5. Allowing the employee to have the right to unilaterally terminate the labor contract without any reason
According to the 2012 Labor Code: the employee who has a fixed-term labor contract, when unilaterally terminating the labor contract, must have 01 of the reasons specified in Clause 1, Article 37 of the Labor Code 2012, at the same time conditions of advance notice.
Also in the Labor Code 2019 stipulates: The employee has the right to unilaterally terminate the labor contract without any reason, only meeting the requirement of the notice period specified in Clause 1, Article 35 (except for 01 cases without notice. before).
6. Two (2) cases where the Employer has the right to unilaterally terminate the contract without prior notice
The employer also has the right to unilaterally terminate the labor contract without prior notice in the following two cases:
+ The employee is not present at the workplace within 15 days from the expiration of the temporary suspension of the labor contract.
+ The employee voluntarily quit his job without having a plausible reason from 05 consecutive working days or more.
7. Reasonable provisions on the settlement time and responsibilities of the two parties when terminating the labor contract
- Labor Code 2012: Within 07 working days from the date of termination of the labor contract, the two parties are responsible for paying all amounts related to the interests of each party; In exceptional circumstances, it can be extended but not more than 30 days.
- Labor Code 2019: Within 14 working days from the date of termination of the labor contract, the two parties are responsible for paying all amounts related to the interests of each party, except the following case These may be extended but must not exceed 30 days:
+ The employer who is not an individual terminates its operation;
+ The employer changes structure, technology or due to economic reasons;
+ Division, separation, consolidation, merger; sale, lease, and conversion of business type; to transfer the ownership and use rights of assets of the enterprises or cooperatives;
+ Due to natural calamity, fire, enemy sabotage or dangerous epidemic.
1. The employer is not allowed to force the employee to buy his / her goods and services / other unit using his salary (Article 94).
The employer must pay the employee directly, fully and on time. In case the employee cannot receive the salary directly, the employer can pay the salary to the person legally authorized by the employee.
Employers may not:
+ Limit or interfere with the employee's right to self-determination to spend salary
+ Forcing Employees to spend wages on the purchase of goods and services of the employer or other units designated by the employer.
2. The employer must announce the list of payroll to the Employee at each paycheck (Article 95)
The employer pays the employee's salary based on the agreed salary, productivity and quality of work performed.
Each time a salary is paid, the employer must notify the payroll to the employee, clearly stating the following:
+ Overtime salary;
+ Salary for night work;
+ Content and amount to be deducted (if any);
3. New point on interest rate when calculating compensation for late payment to employees (Article 94)
In principle, the employer must pay the employee directly, fully and on time. In case the employee cannot receive the salary directly, the employer can pay the salary to the person legally authorized by the employee.
However, the case due to force majeure that the employer has found all remedies but cannot pay the salary on time, the delay must not exceed 30 days;
If the salary is delayed for 15 days or more, the employer must compensate the employee with an amount at least equal to the interest on the deferred payment calculated according to the 01-month term deposit interest rate due to The bank where the Employer opens the salary payment account for the Employee published at the time of salary payment.
(Currently, the compensation amount will be calculated according to the ceiling interest rate for 01 month term deposits announced by the State Bank of Vietnam at the time of salary payment; if the State Bank of Vietnam does not set a cap The interest rate is calculated according to the 01-month term deposit interest rate of the commercial bank where the enterprise, the agency opening the transaction account at the time of salary payment).
4. The employer must bear the cost of opening an account for the Employee if the salary is paid via bank (Article 96).
Employers and Employees agree on the form of time, product or contract payments. Salary is paid in cash or through the employee's personal account opened at the bank.
If the salary is paid through the employee's personal account opened at a bank, the employer must pay fees related to the account opening and remittance.
(Currently, fees related to opening and maintaining accounts shall be mutually agreed between the employer and the employee).
5. Salary for work stoppage when the Employee has to stop working because of electricity and water problems without the fault of the Employer or due to a natural disaster, fire, dangerous epidemic, enemy sabotage or relocation operate at the request of a competent state authority or for economic reasons
According to Clause 3 Article 99 Labor Code 2019, in this case, the two parties agree on the severance pay as follows:
- In case of work stoppage for 14 working days or less, the severance salary is agreed upon not lower than the minimum wage;
- In case of having to stop working for more than 14 working days, the stop salary shall be agreed upon by both parties but must ensure that the salary for stopping work for the first 14 days is not lower than the minimum wage.
(Currently, the salary for stopping work is only regulated by the two parties but must not be lower than the regional minimum wage set by the Government).
6. More cases The employee is entitled to separate leave and enjoy full salary
Employees are entitled to take separate leave but still enjoy their full salary and must notify the employer in the following cases:
+ Marriage: 03 days off;
+ Natural and adopted children get married: take 01 day off;
+ Natural father, natural mother, adoptive father, adoptive mother; natural father, natural mother, adoptive father, adoptive mother of the husband or wife; wife or husband; natural children, adopted children die: 03 days off.
7. Employees are entitled to 2 days off on National Day September 2 and receive full salary
From 2021, the employee will be entitled to 02 days off and full salary on the National Day holiday (at present, the employee is only entitled to 01 day off and full salary on September 02) according to one of two options. the following are decided by the Prime Minister:
+ Option 1: Rest on September 01 and September 9.
+ Option 2: Rest on September 02 and September 9.
8. The employee is rewarded with money or property or in other forms
Pursuant to the provisions of Article 104 of the Labor Code 2019, the bonus is the amount or property or by other means that the employer rewards the employee based on the production and business results, the level of successful completion. work of employees (current Labor Code only regulates bonuses);
What businesses need to do to meet the new requirements of the Labor Code 2019 #
1. Reviewing the inconsistent points of the current labor and salary system of the enterprise compared with the new regulations mentioned above, making adjustments accordingly.
2. Making additional new documents as required in the Labor Code 2019 that have not previously been regulated.
3. In cases where enterprises sign contracts other than labor contracts, it is necessary to check whether or not they fall under the prescribed scope of labor contracts in order to make adjustments.
Reason: Previously there was no clear definition of an employment contract, but now there are provisions:
Any contract, regardless of its name, is considered a labor contract if there are 3 signs:
+ Sign 1: Working on the basis of agreement;
+ Sign 2: Salary paid;
+ Sign 3: There is management, administration and supervision of one party.