DECREE No. 198-CP DATED 31 DECEMBER 1994

OF THE GOVERNMENT

Providing details and guidance for the implementation

of the Labour Code on labour contract

THE GOVERNMENT

Based on the law on the Organization of the Government dated 30 September 1992 ;

Based on the Labour Code dated 23 June 1994 ;

At the request of the Minister of Labour, War Invalid and Social Affairs,

DECREE

CHAPTER I

COVERAGE AND SCOPE OF LABOUR CONTRACT

Article 1

1. The following organizations and individuals are required to sign labour contracts :

        a) State-run enterprises, private enterprises, joint-stock enterprises, limited liability companies, cooperatives (for nonmembers of cooperative), individuals and families hiring labour ;

        b) Government institutions, mass orgartizations and other social and political organizations using labour who are not government employees.

        c) Economic organizations affiliated to the people's army or security forces using labour who are not officers and men.

        d) Foreign invested enterprises operating under the Foreign Investment Law, enterprises in the export-processing zone, foreigners, foreign or international organizations based in Vietnam ;

        e) Enterprises, individuals or organizations in Vietnamese territory using foreign labour except otherwise stipulated under international treaties to which the Socialist Republic of Vietnam is a signatory or participant.

        g) Individuals and organizations employing retired workers, maids, and civil servants in jobs that are not prohibited by the Government Employee Regulations.

2.Labour contract mentioned in Article 4 of the Labour Code does not apply to the following cases :

        a) Government employees working in government institutions.

        b) Those who are appointed by the government to posts of director, deputy director and Chief accountant in state-run enterprises.

        c) Deputies to the National Assembly or the Peoples's Councils at all levels ; post holders in legislative, executive and legal offices who are appointed for a -term by the National Assembly or the People's Councils ;

        d) Officers and men of the people's army and security forces ;.

        e) People doing special jobs or in special theatres of operation under the Defence Ministry, the Ministry of the Interior will be subject to guidance from these Ministries after reaching an agreement with the Ministry of Labour, War Invalids and Social Welfare.

        g) People affiliated to mass organizations or other social or political organizations, members of cooperatives as well as those doing a full-time job for the work of the party, trade or youth union in enterprises.

CHAPTER 2

FORMS, TYPES AND CONTENTS OF LABOUR CONTRACT

Article 2.

        The forms and contents of labour contracts under Articles 28 and 29 of the Labour Code will be provided as follows :

        - The Labour contract to be signed must conform to the labour contract printed by and subject to the uniform control of the Ministry of Labour, War Invalids and Social Welfare.

        - The labour contract to be signed or verbally agreed must ensure compliance with provisions under Article 29 of the Labour Code.

In case of verbal agreement, the need for witnesses by a third person, will be decided with mutual consent.

Article 3. 

        Different types of labour contracts, according to Article 27 of the labour Code will include :

1. Indefinite labour contract means a contract in which the expiry of the contract is not fixed. Indefinite labour contract applies for full-time jobs which last for I years upwards.

2. labour contracts with definite time-limit from 1 to 3 years are contracts with a fixed terms of either 1, 2 or 3 years. They usually apply to jobs with fixed terms.

3. Contract of seasonal labour or employment for less than a year will be applied to tempcrary job to be done in a few days, a few- months or less than a year or to temporarily replace those who join the army or fulfil other citizen's duties required by law or take maternity leave or are being taken into custody/detention or other cases where a labour contract is temporarily suspended with mutual agreement.

CHAPTER 3

CONCLUSION, CHANGES, TEMPORARY

POSTPONEMENT AND TERMINATION OF LABOUR CONTRACT

Article 4. 

        The conclusion of labour contract under Artides 30 and 120 of the Labour Code provide for the following:

1. A labour contract may be directly concluded between the employee and employer or between the employer and a duly-authorized person on behalf of the working group. In cases where a contract is signed by the authorized person, it must be attached with a list of workers and their names, ages, permanent addresses, professions and signatures. This labour contract will take the same effect as an individual contract and will apply to the following cases : the employer needs labour to do a seasonal job for less than a year or a certain job which will take from 1 to 3 years.

2. An employee can sign several labour contracts with different employers if he/she is capable of doing so. In signing labour contracts with the retired, individuals or organizations employing less than 10 people for work of less than 3 months, the benefits of the contractual worker are included in their salary (wages) as a lump sum.

3. For occupation and work which may employ minors less than 15 years of age under Article 120 of the Labour Code, the signing of their labour contracts will only be considered valid subject to a written consent from their parents'or sponsors.

Article 5. 

The trial period to be agreed between the employer and employee under Article 32 is stipulated for as follows :

1. The trial period shall not be more than 60 days regarding pest/job requiring university or post-gaduate qualifications.

2. The trial period shall not be more than 30 days regarding post/job requiring secondary-level vocational qualifications.

3. The trial period will not be more than 6 days for other jobs.

4. At the end of the trial period mentioned in 1, 2 and 3, the employer is responsible for informing the result of this trial period to the candidate for the job. If the candidate is qualified far the job or keeps on working though without being informed of the results of the trial period, she/be is automatically allowed to work officially and both sides will enter into a labour contract.

Article 6. 

The effect of and changes to labour contract under Article 33 of the Labour Code provides for the following :

1. The written labour contract will take effect as from the date of signing or from the date to be mutually agreed; the verbally-concluded labour contract will take effect as from the day when a worker starts working.

2. During the process of implementing the labour contract, if requests for changes to the labour contract by one party are rejected by the other, the concluded contract will either continue to be carried out or terminated in accordance with Articles 37 and 38 of the Labour Code.

Article 7.

The temporary transfer of a worker to another job which she/he is not accustomed to under Article 34 of the Labour Code provides for the following :

1. An employer is entitled to temporarily transfer a worker to do a job which he/she is not accustomed to if unexpected difficulty in production or business arise due to the following : fires or other natural calamities ; the need to apply measures to prevent or overcome labour accident, occupational diseases, water or power problems or production/business requirements. However, the accumulative period of job transfer will not exceed 60 days in a year. During the same period, if the concerned worker refuses to abide by the employer's decision, he/she will not be paid a salary due to work interruption as provided for under Clause 2, Article 62 of the Labour Code and may be liable to disciplinary measures in accordance with Article 84 of the same Code.

2. A consent from the worker is required if this period of temporary transfer exceeds 60 days in a year. If the worker refuses and stops working, she/be will receive a salary as provided for under Clause I Article 62 of the Labour Code.

Article 8. 

The temporary postponement of labour contract under Article 35 of the Labour Code is stipulated for as follows :

1. The implementation of a labour contract may be temporarily postponed if

        a) the worker applies for further training opportunities in or outside Vietnam.

        b) The worker asks to be released to work for a certain period for organizations, offices or individuals in or outside Vietnam.

        c) The worker is switched to work as a full-time cadre in a council of a state-run enterprise.

        d) The worker asks to have unpaid leave for personal reasons.

2. At the end of the period for labour contract postponement provided under points a and c Clause 1, Article 35 of the Labour Code, the worker must be present at the working place ; and the employer is responsible for assigning a task for that worker who will also get a salary under clause I article 62 of the Labour Code if he/she arrives at the working place in time but is compelled to return home and wait for a job.

Where the relevant worker fails to return to work more then 7 days after the end of the agreed period for contract postponement and without a legitimate excuse, he/she will be subject to provisions under point c Clause I Article 85 of the Labour Code.

3. Regarding a worker released after a period of being temporarily taken into custody/detention :

        a) Where temporary custody/detention is directly related to worker-employer relations :

        - At the end of the custody/detention period of if the relevant worker is ruled by the court to be victim of an injustice, the employer must reinstate her/him with full reimbursements of salary and other benefits for the period under custody/detention as provided for under Government Decree number 197/CP and dated December 31, 1994 providing details and guidance for implementing some Labour Code provisions on salaries.

        - In cases where the concerned worker is a law-breaker but exempted of prison term or not banned by the Court from returning to the old job, then depending on the severity of the breach, he/she will be reinstated by the relevant employer or helped to get a new job.

        b) In cases when the worker put under custody/detention is not directly related to the worker-employer relations, he/she will be reinstated by the employer, at the end of the period under custody/detention or helped to get a new job.

Article 9

A worker unilaterally terminating labour contract must compensate for training fees in accordance with Clause 3 Article 41 of the Labour Code.

Article 10

A ternmination payment upon the termination of labour contract under Article 42 of the Labour Code.

1. A termination payment entitled to a worker upon the termination of labour contract stipulated under Articles 36, 37 and 38 or Clause I Article 41 of the Labour Code will be the responsibility of employer. This termination payment will be calculated for the period of employment with the relevant enterprise, institution or individuals.

        Where the worker-employer relations was terminated as provided for under Clause I Article 17, clause 2 Article 41, points a and b, Clause J Article 85 and 145 of the Labour Code, the worker will not be entitled to a termination payment.

2. Financial sources for a termination payment :

        a) In an enterprise : a termination payment is accounted for in production/circulation costs.

        b) In a government institution, organization or individual employer: financial source for this purpose must be selffinanced.

3. Calculation of a termination payment :

        a) Employment period for a termination payment will be the total length of time calculated from various labour contracts signed including verbally-concluded contracts actually carried out by the worker for the employer.

        b) A worker. who was formerly a government employee and who continues his/her job in the same working place will be given a termination payment calculated with the total length of employrment at the same unit.

        c) In cases where a worker, prior to his/her work at an enterprise/organization/institution, had previously employed by the government sector, his former employer shall be responsible for paying his/her termination payment for the period of employrment at the government sector. This sum of money will be transferred upon notice from the current to the former employer to the relevant worker. In cases where the former employer has been dissolved or actually met with financial problem, the termination payment will be paid for from the state budget.

    d) The following periods of time will also be accounted for in the employment period :

- Probation or trial period at an enterprise/institution or organization zation (if any).

- Periods for refresher courses or job training sponsored by the enterprises/institution/organization for the worker.

- Leaves taken under insurance regulations or holidays provided under the Labour Code.

- Period of waiting for a job after the expiry of the term of suspension of the labour contract or interruption of work during which the worker is still paid a wage.

- Period of training or apprenticeship at an enterprise.

- Periods of suspension of labour contract stipulated under Article 35 of the Labour Code to be mutualy agreed.

- Periods in which a worker was given wrongful dismissal or unilateral termination of labour contract.

- Period in which a worker is compelled to temporarily suspend his/her work as provided under Article 92 of the Labour Code.

4. The wage scale plus allowances (if any) for determining a termination payment will accord with Government Decree 197/CP and dated December 31, 1994 providing details and guidance for the implementation of some Labour Code provisions on salaries.

5. Odd lengths of employment periods will be calculated as follows :

- From 1 to less than 7 months will be counted as 6 months.

- From 7 full months to 12 months will be counted as one year

6. A termination payment to which a worker is entitled as provided Clause I Article 42 of the Labour Code will be paid directly to her/him at the working place and at the exact time as stipulated for under Article 43 of the Labour Code.

Article 11

        Responsibilities of each party upon termination of labour contract tinder Article 43 of the Labour Code :

        Time for payments relating to the benefits of each party will be carried out as provided for under Article 43 of the Labour Code.

        For the following cases : a termination payment for a worker employed by several enterprises as stipulated for under point c, Clause 3, Article 10 of this Decree ; an enterprise terminating its operations or confronting fire or other acts of God yet having to pay a termination payment, compensation and other liabilities, payment for a termination payment must be made within 30 days since the termination of labour contract.

CHAPTER IV

IMPLEMENTING PROVISIONS

Article 12. 

        Labour contracts which were concluded before the day when the labour Code tack effect and whose content does not conform to the Labour Code must be amended and supplemented ;

Contractual provisions which are more beneficial to the workers than those under the Labour Code will continue to be implemented. The changes to and amendment of labour contracts will be done within 6 months at the latest since the day when this Decree takes effect ; Beyond this deadline, all labour contracts concluded prior to January 1st, 1995 shall adhere to the provisions under the labour Code and this Decree.

Workers and public employees working full time in staterun enterprises will sign labour contracts with indefinite terms.

Article 13. 

        This Decree takes effect as from 1 January 1995 instead of Decree 165/HDBT dated 12 May 1992 of the Council of Ministers providing details for implementing the Ordinance on Labour Contract and other Goverment documents on the same subject.

Article 14. 

        Ministers, the Heads of Ministrial agencies offices under the Government and Chairs of the People's Committees in centrally-governed cities and provinces will be responsible for implementing this Decree.

 

ON BEHALF OF THE GOVERNMENT

PRIME MINISTER

VO VAN KIET