Question 158: Are foreign Employees paid for overtime if they work on their own New Year’s Day and National Day?

Article 115.2 of the Law on Labour stipulates that foreign Employees working in Vietnam will enjoy a maximum of 12 days of public and New Year holidays, including 10 days of Vietnam’s public and Tet holidays, 01 traditional Tet holiday and 01 National Day of their own country. The Ministry of Labour, War Invalids and Social Affairs had further instructions about this issue on the online policy page as follows: Each country has one National Day and may have some holidays for the traditional New Year. Therefore, in order to comply with Article 115.2 of the Labor Code, Employers should learn about the National Day and traditional New Year holidays of foreign Employees to decide to give foreign Employees two more days off, including National Day and one day of their traditional New Year holidays other than the public and Tet holidays as regulated in Article 115 of the Labor Code.

In addition, the Labor Code also stipulates that if the days off specified in Article 115.1 fall on weekends, Employees will be entitled to take compensatory leave on the following day[1]. As the Labor Code applies to both Vietnamese and foreign Employees, foreign Employees will also be entitled to the benefits provided by this Law like domestic Employees.

Besides, the current Labor Code does not contain any relevant regulations on the payment for foreign Employees if they have not yet enjoyed their 2 days off as their own country’s national and Tet holidays except for the payment for untaken leave days[2]. Because national and Tet holidays are fully paid days off[3] rather than annual leave days, so if foreign Employees go to work in these two days, they will be paid an overtime salary equal to 300% of such paid days off, excluding 100% of their salary[4].

In fact, almost foreign Employees are on leave on the National Day and traditional New Year holiday of their own country. If foreign Employees have to work on these days, Employers must pay them overtime salary as aforesaid.

[1]Article 115.3 Labor Code

[2]Article 114.1 Labor Code

[3]Article 115.1 Labor Code

[4]Article 97.1 (c) Labor Code