References
Labour Code of the Social Republic of Viet Nam [LC], 23 June 1994 as amended by Law 35-2002-QH10 of 2 April 2002
Date:
20 Aug 1970;
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(view in NATLEX
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Decree No. 44-2003-ND-CP making detailed provisions and providing guidelines for implementation of a number of articles of the Labour Code with respect to labour contracts
Date:
20 Aug 1970;
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Decree No. 47/2010/ND-CP of May 06, 2010, on administrative sanctioning of violations of the Labor Law
Date:
21 Aug 1970;
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»
Decree No. 133/2007/ND-CP of August 8, 2007, providing detailed regulations and guidelines on the laws amending the Labour Code regarding Labour dispute resolution
Date:
21 Aug 1970;
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»
Scope
Size of enterprises excluded (≤): none
Art. 2 LC
Workers' categories excluded: civil/public servants, police, army, judiciary, managerial / executive positions, members of cooperatives, other
Art. 2 LC: The LC Code applies to all workers, and organizations or individuals employing workers under a labour contract in all economic sectors and all forms of ownership.
It also applies to trainees and apprentices, domestic workers.
Civil servants and public employees, elected, appointed or assigned officials, members of units of the people's armed forces and the police, members of people's organizations and other political and social organizations, and members of cooperatives are not covered by the LC (art. 4 LC, and art 2, 2003 Decree).
Members of boards of management of enterprises are not covered by labour contracts (art. 2(d), 2003 Decree).
FTC regulated: Yes
Valid reasons for FTC use: objective and material reasons
Art. 27 (3) LC forbids the use of employment contracts for a seasonal job or a specific job with a duration of less than 1 year to undertake a job of a permanent nature, except for the temporary replacement of a worker performing military obligation, on parental leave or for other reasons.
: 2
See art. 27 LC and Art. 4 (4) Decree 2003: Upon expiry of a FTC, a new FTC may be concluded for a period not exceeding 36 months; and if after that period the worker continues to work, an indefinite term contract of employment must be signed.
Maximum cumulative duration of successive FTCs: 6year(s)
Art. 27 LC and 4 (4) Decree 2003.
Maximum probationary (trial) period (in months): 2 month(s)
Art. 7, Decree 2003: The employer and the employee may agree on a probationary period not exceeding 60 days in respect of highly specialized technical work, 30 days in respect of work that requires a secondary skill level, and 6 days in respect of other work.
Obligation to provide reasons to the employee: Yes
Valid grounds (justified dismissal):
Prohibited grounds: marital status, pregnancy, maternity leave, family responsibilities, temporary work injury or illness, race, sex, religion, social origin, trade union membership and activities, lawfully taking leave
Prohibited grounds for dismissal: art. 39 and 111 LC.
See also:
- the general prohibition of discrimination in employment based on sex, race, social class, belief or religion (art. 5 LC).
- the prohibition of discriminatory treatment towards a worker who joins a trade union. (art. 1, 2) of the Trade Union law, 1990)
Workers enjoying special protection: workers' representatives, pregnant women and/or women on maternity leave, workers with family responsibilities, workers on temporary leave following an occupational disease or a work injury
Art. 39, Art. 111: Prohibition to dismiss:
- a worker under treatment as a result of sickness, labour accident or occupational disease except in case of force majeure;
- pregnant women, women on maternity leave, and women taking care of a child under 12 months of age, except for business reasons.
Art. 155(4) LC: In order to dismiss a member of the executive committee of the local trade union, the employer must obtain the consent from this committee.
Notification to the worker to be dismissed: no specific form required
Art. 38 (3) LC stipulates that the employer shall notify the worker of the dismissal but does not specify whether such notification shall be written.
Notice period:
Art: 38 (3) LC: The employer must give at least 45 days' notice for an indefinite duration contract, 30 days' notice for a fixed-term contract, and three days' notice for a seasonal or specific-task contract. These requirements apply to all forms of unilateral termination, except when the employer is using dismissal as a disciplinary measure.
Pay in lieu of notice: Yes
Art. 41 (4) LC
Notification to the public administration: No
No general obligation to notify.
However, before dismissing an employee due to poor performance, disciplinary measures, or illness, the employer must consult with the executive committee of the enterprise trade union with the aim of coming to an agreement. In case of disagreement, the two parties must report to the local branch of the State administration of labour: art. 38 (2) LC.
Notification to workers' representatives: Yes
Art. 38 (2) LC: Before an employer can dismiss an employee due to poor performance, disciplinary measures, or illness, he must consult with the executive committee of the enterprise trade union with the aim of coming to an agreement.
Approval by public administration or judicial bodies: No
Approval by workers' representatives: No
Definition of collective dismissal (number of employees concerned) No statutory definition of collective dismissal.<br/>Specific procedural requirements apply to redundancy of a number of employees following organizational restructuring or technological changes.<br/>
Art. 17 (2) LC.
Notification to the public administration Yes
Art. 17 (2) LC.
Notification to trade union (workers' representatives) Yes
Art. 17 (2) LC.
See also art. 6, Decree 2003.
Notification to workers' representatives: Yes
Approval by trade union (workers' representatives) No
Approval by workers' representatives Yes
Art. 17 (2) LC
Priority rules for collective dismissals (social considerations, age, job tenure) Yes
Art. 17(2) LC: seniority, professional skills, family situation, and other factors.
Employer's obligation to consider alternatives to dismissal (transfers, retraining...) No
Priority rules for re-employment Yes
Art. 17 (1) LC: Re-training obligation
:
Art. 42 (1) LC and 14 Decree 2003.
Upon termination of employment, a worker who has been employed for more than one year is entitled to severance pay, which shall amount to half a month's wages plus other benefits, if any, for each year of service. Severance pay shall be paid within 7 day from the termination date.
However, a worker will not be entitled to severance pay if he has been dismissed as a disciplinary measure (except in case of excessive absence) or if he is receiving a monthly pension.
: 0 month(s)
: 0 month(s)
: 0.5 month(s)
: 1 month(s)
: 2 month(s)
: 2.5 month(s)
: 5 month(s)
: 10 month(s)
:
Retrenched workers are entitled to a loss of employment allowance which shall amount to one month¿s wages for each year of employment, but not less than the equivalent of two months' wages.
Labour Code, Art. 17(1), Art. 42 (worker in business, office, or organisation); Decree 2003, Art. 14.
: 2 month(s)
: 2 month(s)
: 2 month(s)
: 2 month(s)
: 4 month(s)
: 5 month(s)
: 10 month(s)
: 20 month(s)
mine workers: No
Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method): 1) Compensation in lieu of reinstatement requested by the employee: <b>severance pay</b> + loss of wages during the absence from work caused by the dismissal + plus at least two months' wages.<br/><br/>2) Compensation in lieu of reinstatement requested by the employer: <b>severance pay</b> + loss of wages during the absence from work caused by the dismissal + plus at least two months' wages + an agreed additional amount of compensation.<br/><br/>3) Compensation, in addition to reinstatement: loss of wages during the absence from work caused by the dismissal + plus at least two months' wages.<br/>
Art. 41 (1) LC
managerial / executive positions: Yes
Art. 41 (1) LC: reinstatement is mandatory unless the worker does not want to return to work.
police: No
See art. 158, 162- 166 LC.
Preliminary mandatory conciliation by the Labour Conciliatory Council is prescribed prior the judicial settlement of an individual labour dispute (art. 162- 165 LC) and collective disputes (art. 168-170 LC).
However, disputes concerning disciplinary dismissal or unilateral termination of the employment contract can be settled directly by the Court without having to go trough the conciliation process. (art. 166 (2) LC).
Art. 166 LC
Existing arbitration: No
Not applicable to individual labour disputes. However, compulsory arbitration is foreseen for the settlement of collective labour disputes : art. 170-172 LC.