Question 2: What are the subjects of application of the Vietnamese labour law? Which legal relationships are governed by the Vietnamese labour law? Is a valid LC a compulsory precondition in the employment relationship?

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  1. What are the subjects of application of the labour law?
Pursuant to Article 2 of the Labor Code, the subjects of application of the Labor Code include:

Vietnamese Employees[1]

:

Employees of full 18 years of age and over; Minors of full 15 years to under 18 years of age who have their legal representatives’ written consents; and   Employees who are capable of working under LCs, get paid and are subject to the Employer’s management.

Employees in apprenticeship[2]

:

Employees who choose to work as apprentices based on their needs of work. Apprentices who are recruited by Employers to learn and to work. Apprentices who are of full 14 years of age and over and healthy enough to meet the job requirements.

Employers[3]

:

Enterprises, agencies, organisations, cooperatives, households and individuals who hire or use labourers under LCs; in case of individuals, they must have full capacity for civil acts.

Foreign Employees working in Vietnam

:

Employees who are foreign citizens and work in Vietnam under the forms prescribed in Article 2.1 Decree 11/2016/NĐ-CP dated 03/02/2016.

Other agencies, organisations and individuals who are directly related to the employment relationship

:

Agencies and individuals who are responsible for the state management of labour: The DOLISA, MOLISA, people’s courts of different levels; Chairman’s of provincial people’s committees etc., other agencies and organisations.

  • Which legal relationships are governed by the labour law? Is a valid LC a compulsory precondition?
The Labor Code prescribes the rights, obligations and responsibilities of Employees and Employers in the employment relationship, specifically the employment, use and salary payment between Employees and Employers, and other relationships directly related to the employment relationship. Other than the relationships established in LCs, the Labor Code also governs the relationships which arise in the course of training, apprenticeship, off-the-job training[4], and the probationary period[5]. For foreigners working in Vietnam, only the form of working to execute an LC requires the parties to enter into LCs. LCs are not required for other forms of working performed by foreigners in Vietnam (e.g. internal secondment, or to execute economic, commercial and service contracts). Accordingly, an LC is not a precondition required for every circumstance. Pursuant to Article 15 Labor Code, an LC is an agreement between Employees and Employers on paid employment, working conditions, rights and obligations of each party in the employment relationship. However, other than the relationships established in LCs, the Labor Code also governs the relationships which arise in the course of training, apprenticeship, and off-the-job training. Therefore, referring to LCs to fully determine the employment relationships between Employees and Employers is not enough, but it is necessary to consider other employment relationships that have arisen before LCs are entered into, such as probationary contracts, and training contracts in the apprenticeship. It is not to mention that in case of foreign Employees, it is impossible to rely only on LCs to determine the employment relationships. Signing LCs with foreign Employees who have obtained work permits is only applicable in cases where foreign Employees work in Vietnam in the form of LC execution[6]. [1]Article 3.1 Labor Code and Article 3.2 Decree 05/2015/NĐ-CP dated 12/01/2015

[2] Articles 58 and 61.1 Labor Code

[3] Article 3.2 Labor Code and Article 3.1 Decree 05/2015/NĐ-CP dated 12/01/2015

[4] Articles 59, 61 and 62 Labor Code

[5] Article 26 Labor Code

[6]Article 2.1 (a) Decree 11/2016/NĐ-CP dated 03/02/2016.