- 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]
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:
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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.
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Employees in apprenticeship[2]
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:
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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.
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Employers[3]
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:
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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.
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Foreign Employees working in Vietnam
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:
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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.
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Other agencies, organisations and individuals who
are directly related to the employment relationship
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:
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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.
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- 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.