Question 55: Due to the nature of the manufacturing industry, can the Employer apply intermittent working hours and ensure that Employees will not have to work more than 08 hours/day?

Pursuant to Article 34 of the Labor Code, the part-time work regime is one where Employees have less working hours than the ordinary number of working hours in a day or a week as prescribed in labour law, the collective labour agreement of the enterprise, the labour collective agreement of the industry, or the Employer’s ILRs. The application of such a part-time work regime must be agreed upon by the Employer and Employees, and the Employer must ensure that these Employees are entitled to wages, rights and obligations as full-time Employees, have the right to equal opportunity, are not discriminated, and work under the same labour safety and hygiene conditions.

Pursuant to the above regulation, one of the principles applicable to the agreement on the part-time work regime is that the number of working hours of part-time Employees will be less than that of full-time ones (for example, full-time Employee’s number of working hours is 8 hours/day, but part-time Employee’s working hours will be shortened to less than 8 hours/day). Thus, the Labor Code currently does not provide any provisions allowing the Employer to apply the regime of intermittent working hours, and the work regime of 8 hours/day is still applied to Employees regardless of the nature of the manufacturing industry.

Legally, when the Employee’s working hours exceed 08 hours/day, Employers must pay overtime salaries to Employees, including the cases where Employees cannot work continuously due to the characteristics of the enterprise’s operating system. If Employers do not comply with the regulation on payment for overtime work, they may be subject to an administrative penalty with the maximum fine of VND100,000,000, corresponding to the number of Employees whose benefits are violated of 301 or more[1]. In addition, Employers must get Employees’ consent to the overtime working and ensure that their overtime hours must not exceed 50% of the normal working hours in one day; and if the work regime is applied on a weekly basis, then the total of the normal working hours plus overtime hours must not exceed 12 hours in one day; 30 hours in one month, 200 hours in one year, and 300 hours in one year for some special cases[2]. After each period of overtime work for a maximum of (7) consecutive days in a month, Employers will arrange for Employees to take some time off in compensation for the time they did not rest. In addition, labour law also stipulates the salary upon ceasing work under Article 98 of the Labor Code. Accordingly, if it is due to the Employer’s fault, the Employee is still entitled to full pay.

In brief, when Employees work more than 8 hours/day due to the enterprise’ special production and business activities, they will be paid for their overtime work besides their ordinary salary as prescribed by labour law.

[1]Article 13.3 (đ) Decree 95/2013/NĐ-CP dated 22/08/2013 as amended and supplemented by Decree 88/2015/NĐ-CP dated 07/10/2015

[2]Article 4.2 (a) Decree 45/2013/NĐ-CP dated 10/5/2013