Must Employers pay salaries to Employees for the period when Employees are sent for studying and training abroad?
The costs of vocational training provided by the labour law are one of the compulsory provisions of the training contract. Accordingly, such costs will include the expenses evidenced by valid documentation regarding tuition, study materials, schools, machines, equipment, practice materials and other expenses in support of learners; salaries, social and health insurance payments for learners during their overseas study and transport and living expenses during their stay abroad. Working hours, rest periods, labour safety and hygiene and the time for meeting, study and training required by Employers will also be calculated as the paid working time without restriction on the length of study time. Therefore, the time for Employees to be sent abroad for training in this case will be calculated as working time, which serves as the basis for enjoying their salary.
- Will the basis for calculating salaries for Employees during their study and training abroad be calculated according to working days of foreign countries or Vietnam?
The current Vietnamese labour law only regulates Employers’ general obligation to pay salaries without specifically indicating how to calculate salaries for Employees during their overseas training. In addition, the law on vocational education stipulates that when it is Employers’ responsibility for sending Employees for training, the salary paid to any Employee during study will be agreed upon by Employer and such Employee in accordance with law. Thus, during the time of training abroad, the working hours for calculating salaries as well as Employees’ salary level will be mainly agreed upon by the parties.
For similar cases in the prevailing practice, after consultation with the DOLISA of Ho Chi Minh City, the calculation of Employees [MRK1] during training abroad will be based on the Vietnamese law and current LC between Employers and Employees. Thus, the working hours, rest periods, holidays and Tet holidays will still be applied pursuant to the Labor Code.
It can be inferred that in this case, Employees’ salaries will be paid 100% as agreed by the parties in the signed LC. For holidays and Tet holidays prescribed by Vietnamese law and lying within the time of Employees’ overseas study, Employers shall pay Employees extra salaries (at least equal to 300%). Particularly for the days when Employees are relieved of working abroad while pursuant to the Vietnamese law, they are normal working days, Employers shall still pay such Employees’ salaries during those days because the Employees’ rest period is within the plan and schedule of training Employers have arranged and required Employees to participate in.
However, in some one-on-one exchanges, DOLISA made some comments quite in favour of Employers with regard to the aforesaid issues. Specifically, if Employees must study abroad on the same day as public holidays or Tet holidays in accordance with Vietnamese law, Employers shall not still pay overtime salaries as stipulated in Article 97 of the Labor Code. On the contrary, if Employees are allowed to be absent from study abroad on the days as normal working days in accordance with the Vietnamese law, Employers shall still pay Employees salaries as usual.
Thus, regarding the issue that Employees are sent abroad for training as required by Employers via training contracts where such Employees do not participate in making products (including goods/services distributed on the market) during their training abroad, in order to ensure uniformity of the rights and obligations of the parties during Employees’ training and avoid potential disputes, Employers should agree clearly and concretely on the issues included in the training contract.
Article 62.2 Labor Code
Article 62.3 Labor Code
Article 3.8 Decree 45/2013/NĐ-CP dated 10/5/2013 detailing some articles of the Labor Code on working hours, rest periods, labour safety and hygiene
Article 31.6 of Decree 48/2015/NĐ-CP dated 15/5/2015 detailing some articles of the law on vocational education
Article 97.1 (c) Labor Code