Sharing of expertise
Question 51: May Employers stipulate fixed working hours for Employees at 12 hours/day without exceeding 48 hours/week?
Pursuant to the labour law, the normal working hours of Employees must not exceed 08 hours/day and 48 hours/week. In cases where Employers specify weekly working hours, the normal working hours must not exceed 10 hours/day and 48 hours/week[1]. Therefore, the regulation of 12 working hours/day for Employees is not consistent with the law. If…
Question 50: Is it right that if an Employee experiences a period of both working time and overtime including 10 hours or more, a statutory 30-minute break will be added to the said period of 10 working hours?
The Labor Code stipulates Employees continuously working for eight hours or six hours will be entitled to a break of at least 30 minutes, which is calculated as working time[1]. In cases where Employees must work for more than 10 hours a day including overtime hours, they will be entitled to another additional break of…
Question 49: If an Employer violates the regulations on overtime, does the agency responsible for dealing with offenses rely on overtime hours in the following cases: (i) exceeding 50% of normal working hours/day; or (ii) exceeding 30 hours/month; or (iii) exceeding 200 hours/year for setting out a specific administrative penalty? Are Employers required to arrange a medical check-up for Employees after excessive overtime?
Pursuant to the labour law, an Employer must ensure that the overtime hours of any Employee are as follows[1]: no more than 50% of normal working hours/day, in case of applying weekly working regulations, the total number of normal working hours and overtime must not exceed 12 hours/ day; no more than 12 hours/day in…
Question 48: During an employment relationship under LCs, do Employers have the right to request Employees to stay home (i.e. garden leave) and only go to the workplace at the Employers’ request, but Employees are still entitled to receive full salaries and benefits according to LCs and the CLA (if any)?
Pursuant to Article 98 of the Labor Code, in some circumstances, Employers may request Employees to stop their work and pay them out-of-work salaries. The Labor Code and relevant guiding documents do not prescribe the maximum out-of-work time. However, when requesting Employees to stop their work pursuant to the above provision, Employers must be able…
Question 47: If Employees and Employers have an agreement that Employees will not work for Employers’ competitors in a certain period after they resign, and if they violate the agreement they must pay compensation to Employers, and such violations are agreed to be settled by arbitration at the Vietnam International Arbitration Centre (VIAC), then is the VIAC a competent agency to settle this dispute? If the VIAC has the authority to settle the dispute, and the arbitral award forces Employees to pay compensation to Employers, is this award against Article 10 of the Labor Code and Article 9 of the Employment Law with respect to the Employee’s freedom to engage in any employment?
Is it correct that the VIAC has the authority to settle disputes related to the agreement that Employees will not work for Employers’ competitors in a period after resignation (Agreements in restraint of competition)? The VIAC is an arbitration centre which operates according to the Commercial Arbitration Law and relevant guiding documents. So, the VIAC…
Question 46: Can Employers impose the disciplinary actions of stretching the pay raise period for not more than 6 months, removal from office or dismissal if Employees regularly fail to fulfil their tasks instead of unilateral termination of their LCs?
Pursuant to Article 38.1(a) of the Labor Code, Employees’ failure to fulfil their tasks regularly is considered one of the reasons that allow Employers to unilaterally terminate LCs[1]. Stretching the pay raise period for not more than 6 months, removal from office or dismissal are the labour disciplinary actions which are prescribed in the Labor…
Question 45: If, in the restructuring process, some laid off Employees threaten to use violence against the members of the management board who are engaged in the restructuring, what should Employers do to protect the enterprise’s management board?
In this case, Employers may request the competent police department to protect those who are threatened. Specifically, those who are threatened should record audios/videos or use other methods to create the evidence on the Employees’ threatening acts. Then they can report this issue to the local police so the police will perform necessary professional tasks…
Question 44: In some cases, the Grassroots Trade Union will not cooperate or have unfavourable opinions about the restructuring, what should the human resources manager do in these cases?
From the legal perspective, Employers must consult the TUEC when: (i) building the labour use option if the restructuring affects the employment of 2 or more Employees; and when laying-off 2 or more Employees. However, Employers are only obliged to consult the TUEC instead of being obliged to get its approval. Nevertheless, unfavourable opinions from…
Question 43: How should outside professional lawyers, in-house counsels and human resources managers/directors cooperate to provide effective support for each other in the course of restructuring?
In order to have an effective cooperation in laying-off Employees due to restructuring, outside lawyers, in-house counsels and human resources managers need to cooperate with each other in all the steps of a restructuring process, and should be aware of the following issues: In-house counsels and human resources managers should provide outside lawyers with as…
Question 42: If the laid-off Employees react strongly to the Employer’s decision on restructuring on social networks or the mass media, what should you or the management board do in this situation?
In this case, the management board can consider the following approaches: Step 1: In a gentle manner, the enterprise’s representative can meet these Employees to convince them to remove that information from the social networks or mass media, and have a talk to make them understand that the termination is consistent with labour law, and…