CHAPTER IV : LABOUR CONTRACT

Article 26. The labour contract is the agreement between the labourer and the labour user on a paid job, on the conditions of work, on the rights and obligations of each party in the labour relations.

Article 27

I- The labour contract must be made in one of the following forms

a/ Contract without definite term;

b/ Contract valid for from one to three years.

c/ Contract for a seasonal job or a specific job to be carried out in less than one year.

2- It is forbidden to sign labour contract for a season job or a specific job with a duration of less than one year to do jobs of a permanent character lasting more than one year except when there must be temporary replacements for a labourer who is called up to do his military service duty or who takes child-birth leave or who is temporarily absent for other reasons.

Article 28. The labour contract must be made in writing and done -in two copies, each party keeping one copy. The commitment can be made orally if the job has a temporary character and its term does not exceed three years or it is the job of a house worker.

Article 29.

I- The contents of the labour contract must include the following main points : the job to be done, the working time, the rest time, the salary, the place of work, the term of the contract, the conditions on labour safety and labour sanitation and social insurance for the labouring people.

2- In case part or the whole of the labour contract provide for lower rights and interests of the working people than those prescribed in the labour legislation, in the collective labour accord or in the labour regulations in fore in the business or if its puts restrictions on orher rights of the labourer, that part of the contract or the whole contract must be modified of supplemented.

3- In case such contents as are described in Item 2 of this article are detected the labour inspector shall guide the parties to make the necessary modifications or supplements. If the sides refuse to make the recommended modifications or additions, the Labour Inspector is authorised to force the cancelment of these contents.

Article  30.

I- The labour contract is directly made between the labourer and the labour user.

2- The labour contract may be signed between the labour user  and the legally assigned representative of a group of working people. In this case the contract is held valids if it were signed with each labourer.

3- The labourer may sign one or several labour contracts, with one or several labour users, but he must assure full implementation of all the contracts he has signed.

4- The job contracted under the labour contract must be carried out by the contractor and shall not be assigned to another person without the consent of the labour user.

Article 31. In case of a merger or a division of the business, or assignment, of ownership, managerial power or the right to use the property of the business the labour user has the responsibility to continue the execution of the labour contract with the labourer until the two parties agree to amend or terminate the labour contract or to sign a new contract,

Article 32. The labour user and the labourer shall agree on the probation, the term of - probation and the rights and obligations of the two parties. The salary of the probationer during the period of probation must be equal at least to 70% of the statutory salary of his job. The term of a probation must not exceed 60 days for a job requiring high technical skill and 30 days for other jobs.

During the period of Probation each party is entitled to cancel its agreement on probation without advance notice and without having to make compensation if the probation does not meet the requirements already agreed upon by both parties. If the probation meets the requimants the labour user must sign on the Labourer as a full-time worker as has been agreed upon.

Article 33. The labour contract shall take effect on the day of the signing or on a date mutually agreed upon.

In the process of implementing the Labour contract, if a party wishes to cha age the contents of the labour contract, it must notify the other party at least three days in advance. The change of the -contents of the labour contract may be effected by modifying or supplementing the labour contract already singed or the signing of a new contract.

Articie 34.

I- In case of unexpected difficulty or due to the need in production and business, the Labour user is entitled to temporarily assign the Labourer to another job which he is not accustomed to but not for more than 60 days in a year.

2- When he decides to assign the Labourer to another job which he is not accustomed to, the Labour user must notify him at least three days in advance. He must- also specify the term of this temporary job and which must suit the health and sex of the Labourer.

3- The Labourer assigned to another job as defined in It,6m I of this Article shall be paid the salary of the  new 104 job. If this salary is lower than that of his former job he is entitled to the former salary for the first 30 days of the new job. The salary of the new job must be equal at least to 70% of the old salary but must not be lower than the minimum salary prescribed by the State.

Article 35.

I- The labour contract shall be. temporarily suspended in the following circumstances

a/ The labourer is called up by his military service duty or other citizen's duties prescribed by law.

b/ The labourer is taken into temporary custody or detention.

c/ Other circumstances mutuality agreed upon.

2- At the end of the term of the temporary suspension of the labour contract under the circumstances define in Points a and Point c Item 1, of this article, the labour user must reinstate the labourer.

3- The reinstating of a labouring people under temporary custody or detention after the expiry of the term of suspension of the labour contract shall be defined by the Government.

Article 36. The labouring contract shall terminate in the following circumstances

1- End of the contract term

2- The job under contract has been finished

3- The two parties agree to terminate the contract

4- The labourer is sentenced to Imprisonment or is banned from doing the former job by decision of the Court

 5- The Labourer dies or is declared missing by court decision.

Article 37.

I- The Labourer working under a labour contract the, terms of which range from one, year to three years or a labour contract to do a seasonal job a specific job which lasts less thin one year is entitled to unilaterally terminate the contract  before term  in one of the following circumstances:

a/ He is not assigned the job or to the working place or otherwise not assured the conditions of work already agreed in tire contract ;

b/ He is not paid fully or at the time stipulated in the contract

c/ Hp is maltreated or  subjected to forcible labour

d/ The labouring people personally or his family meet with such difficult circumstances that he can not continue executing the contract ;

d/ He is elected to a permanent post in a people's elected body or is appointed to an official post in the State apparatus

e/ The labouring people is a pregnent who must stop working by prescription of the doctor.

2- When he decides to unilaterally terminate the labour contract as stipulated at Item 1  of this Article, the labourer must notify the labour user 

a/ at least three days in advance in described at Points a, b and  c;

b/ at least thirty days in advance in circumstances described iii Point d and Point d with regard to a contract with terms ranging from one year to three years ; at least three days in advance if it is a contract for a seasonal job or a specific job' which lasts less than one year

c/ In circumstances described in Point e the time for advance notification is defined at Article 112 of this Code.

3- The labourer working under a labour contract without a definite term is entitled to unilaterally terminate the labour contract but must notify the labour user at least 45 days in advance.

Article 38.

I- The labour user is entitled to unilaterally terminate the  labour contract in the following circumstances.

a/ The labourer constantly fails to achieve his job under the  contract ;

b/ The labourer is sacked as a disciplinary measure under the terms of Article 85 of this Code.

c/ The labourer who works under a labour contract without a definite term falls sick and has gone through 12 months of treatment ; or the working people working under a contract with a definite term has taken six consecutive months of sick leave or the labourer working under a contract of less than one year and has taken a sick leave longer than half the term of the labour contract without any prospect of recovery in the near future. After recovery he shall be considered for continued execution of the labour contract.

d/ Due to natural disasters, fire or other force majeure causes of which the labour user has sought all means to overcome the consequences without success and is accordingly forced to scale down production and reduce the labour force.

e/ The business, office or organisation terminates its operations.

2    Before unilaterally terminating the labour contract under points a, b and c- of item I of this Article the labour  user must discuss with and reach agreement with the executive committee of the trade union. In case of disagreement the two sides must report to the competent office or Organisation. Only 39 days after notification to the labour office is the labour user entitled to decide and he shall have to take responsibility for his decision. In case they do not agree with the decision of the labour user the Executive committee-of the local Trade Union and the labouring people are entitled to request the settlement of a labour dispute according to the procedure prescribed by law.

3- when he decides to unilaterally terminate the labour contract, except   for cases defined at point b , Item I of this Article, the  labour user must notify the labourer.

a/ At least 45 days for the labour contract without a definite term.

b/ At least 30 days for labour contracts with terms ranging from one year to three years.

c/ At least three days for labour contracts for seasonal jobs or specific jobs which do not last more than one year.

Article 39.

I- The labour user is not allowed to unilaterally teminate the  labour contract in the following circumstance;

2- The Labourer people is under treatment by decision of the doctor as a result of sickness, a labour accident or an occupational disease, except for cases stipulated at Point c and Point d of item 1, Article 38 of this Code;

3- The Labourer is on annual leave, is taking a leave for personal affairs or any other leave with the consent of the Labour user;      4- The Labourer is a woman in circumstances defined in Item 3, Article 111 of this Code;

Article 40. Each party may renounce its unilateral decision to terminate the labour contract before the expiry of the advance notice. On the expiry of the advance notice term either party has the right to terminate the labour contract.

Article 41.

1- In case the decision of the Labour user to unilaterally terminate the labour contract is in contravention of law he must  re-instate the Labourer and pay a compensation corresponding with the salaries of the Labourer during the days when he is denied the right to work. In case the Labourer does not want to return to work he shall be entitled, besides the compensation corresponding to his slaries during the clays he is not allowed to work, to an allowance as stipulated at Item I Article 42 of this Code.

2- In case the Labourer uni  laterally terminates the labour contract in contravention of law he shall not receive any severance allowance.

3- In case the Labourer unilaterally teminates the Labour contract he shall have to repay the training expenses, if any, as prescribed by the Government.

4- In case of a unilateral termination of the labour tract any party which violates the regulations on advance con notice shall have to make a compensations to the other party corresponding to the salaries of the labourer during the days when he receives no advance notice of the termination.

Article 42.

1- On the termination of a labour contract with labourer who has worked regularly at the business, office or organisation for more than one year, the labour user has the responsibility to pay him a severance allowance representing one month of salary for every year of service -plus wage subsidies, if any.

2- On the termination on the labour contract as defined in Point and Point b, Item I of Article 85 of this Code the labourer shall not receive the severance allowance.

Article 43. Within seven days after termination of the labour contract, the two parties have the responsibility to settle all the accounts bearing on the interests of each party. In special cases this time - limit may be extended but not for more than 30 days.

In case of bankruptcy of the business the accounts related to the interests of the labourer shall be settled according to the stipulations of the Law on Bankruptcy.

The labour user shall record the reason for the termination of the labour contract in the Labour Register and has the responsibility to return the register to the labourer. Apart from the stipulations in the Labour Register the labour user is not allowed to add any other observation that may be a hindrance to the labourer in seeking a job.

Article 44.

I- The collective labour accord (hereafter called collective accord) is a written agreement between the collective of labouring people and the labour user on this conditions for labour and use of labour and the rights, interests and obligations of the two parties in their labour relations.

The collective labour accord is negotiated and signed by the representative of the labouring collective and the Iabour user on the principles of voluntariness, equality and openness.

2- The contents of the collective contract must not contravene the prescriptions of labour legislation and other legislations.

The State, encourages the signing of collective accords with terms more favourable to the labouring people than these prescribed by labour legislation.

Article 45.

I- The representatives to the negotiations of a collective accord between the two parties shall comprise :

a/ On the labour Collective : the Executive Committee of the local trade union or the provisional trade union organisation ;

b/ On the side of the labour user : the Director of the business or -his delegate duly empowered under the Statute on the, organization of businesses or a person holder of a mandate from the business Director.

The number of representatives to the negotiations of a Labour collective accord from each party shift be decided by mutual agreement but the two sides must have equal numbers

2- The representative who signs for the labour collective is the President of the Executive Committee of the local trade union or the person with the mandate of this committee. The representative who signs for the labour user is the business Director or a person with the mandate of the business Director.

3- The singing of the collective accord can be effected only when more than 50% of the persons in the labour collective- in the business agree to the contents of the negotiated accord.

Article 46.

I- Each party is entitled to file it sown request for the  signing and its proposals on the contents of the collective accord. Upon reception of the request, the receiver must accept the negotiations and discuss the time for beginning the negotiations, 20 days at the lastest after receiving the request.

2- The main contents of the collective accord comprises commitments on the work and the guarantee of work the time for work and the time for rest ; the salaries, bonuses and wage subsidies ; the labour norms, labour safety, Labour sanitation and social insurance for the labourers.

Article 47.

 I- The signed collective accord shall be made into four copies, of which

a/ One -copy is kept by the labour user.

b/ One copy is kept by the Exec tutive committee of the local trade union.

c/ One copy is to be sent by the local trade union executive committee to its higher level

d/ One copy is to be sent by the labour user to the provincial labour office for registration, 10 days at the latest from the date of signing.

The businesses which have their establishments in many provinces or cities directly under the central government shall have the collective accord signed at the provincial labour office where the business has its main off ice.

2- The collective accord shall take effect  from the day of registration at the provincial labour office. Fifteen days at the latest of receiving the collective accord the provincial Labour office must notify the registration. If no notification is received after expiry of the said time limit the collective accord shall automatically take effect.

Article 48.

I- The collective accord shall be considered partically invalid if one or a number of terms in the accord are not accepted by the provincial labour office, while the other terms which have been registered remain valid.

2- The collective accord shall be considered completely invalid in one of the following circumstances.

a/ The whole content of the accord is contrary to law ;

b/ The signatories do not have the proper competence ;

c/ The negotiation and signing do not proceed according to the prescribed order ;

d/ The accord has not been registered at the provincial labour office.

3- The declaration to annual the collective accords which are considered invalid in the circumstances stipulated at Point a, Item 2, of this Article comes under the jurisdiction of the, provincial labour office. With regard to the collective accords signed in Circumstances defined in Points b, c and d of item 2 of this  Article, if The signed terms are favourable to the labourers thin provincial labour office shall guide the sides to make changes conformable to the prescriptions. If one or both parties refuse to modify, the provincial labour office shall declare to annual the accord.

Article 49.

I- Once the collective accord has taken effect the labour user must notify all the labourers in the business. Everyone in the business, including those who are signed on after the signing have the responsibility to fully implement the collective accord.

2- In case the rights and interests of the labourers already agreed in the labour contract are lower than those stipulated in the collective accord, the corresponding terms in the collective accord shall apply. All regulations on labour in the business must be changed according to the stipulations in the collective accord.

3- When one party deems that the other does not fully carry out or violate the collective accord, it is entitled todemand that the other party correctly execute the accord. The two parties must together discuss a solution. If they cannot, each party is entitled to demand solution of the  labour dispute,- concerning collective labour according to proceedings prescribed by law.

Article 50. The collective accord is signed for terms ranging from one year to three years. For a business which signs a collective accord for the first time the term may be shorter than one year.

Three months after the accord takes effect (for accords with terms shorter thin one year) and six months (for accords with terms ranging from one year to three years) each party is entitled to propose amendments or additions to the accord. These amendments and addition shall proceed in the same way as for the signing of the collective accord.

Article 51. Before the expiry of the collective accord the two parties may negotiate to extend its term or sign a new accord. If the negotiations continue, at the time of the expiry of the accord, the collective accord shall continue. to be effective. If the negotiations do not produce any result three months after the expiry of the collective accord the accord shall automatically cease to be effective.

Article 52.

I- In case of division of the business, assignment of ownership, management power or the right to property utilisation of the business, the succeeding labour user has the responsibility of continuing  to implement the collective accord until the expiry of its term or the signing of a new collective accord.

In case of the merger of  the business with one or more businesses, the carrying out of the collective accord shall be defined by the Government.

2- In case the collective accord ceases to be effective because the business terminates its. opt-ration the rights and interests of the labourers shall be settled according to Article 66 of this Code.

Article 53. The labour user shall bear all expenses involved in  the negotiations, signing, registration, amendment, addition and publication of the collective accord.

The representatives of the labour collective who are labourers on the payroll of the business shall continue to receive their salaries while taking part in the negotiations and signing of the collective accord.

Article 54. The provisions in this Chapter shall apply to the negotiations and signing of collective accords within a service.

National Institute of Labour Protection of Vietnam-CIS/ILO Collaborating Center

Address: No 1. Yet Kieu Tel:8.250129 - 8.222949 Fax:(84.4) 8.246752  Email: NILP@Netnam.org.vn; VIBHLD@Netnam.vn