According to Article 113 of the Labour Code 2019, the employee who has been working for the employer for the full 12 months is entitled to a fully paid annual leave, which is prescribed as follows:
– Twelve working days, for employees working in normal conditions;
– Fourteen working days, for juvenile employees, employees being persons with disabilities, or persons doing heavy, hazardous, or dangerous jobs;
– Sixteen working days, for persons doing burdensome, hazardous, or dangerous jobs.
Referring to annual leave, many people deem that annual leave is the right of the employee; they can take days off as annual leave at any time, but whether this thought is in line with the law? This article will clarify the issue mentioned above.
1. Statutory regulation about annual leave
According to the provisions of Clause 4, Article 113 of the Labor Code 2019: “4. The employer is responsible for stipulating the annual leave schedule after consulting the employee and must notify the employee in advance. The employee may agree with the employer to take annual leave in instalments or take a combined annual leave of up to 3 years at a time.”
Accordingly, stipulating the annual leave schedule is the responsibility of the employer. The labour law also emphasises the right of the employee to negotiate the annual leave schedule with the employer.
Based on the above provisions, the labor law allows the employer to have the right to determine the annual leave schedule for employees. However, the employer needs to consult employees about the annual leave period, and before applying, the employer requires to notify the employees in advance. Employees’ opinions are only for reference value for the employer to consider before applying policies.
2. Procedure to apply for the fixed annual leave
According to the provisions of Article 113 above, when stipulating the annual leave schedule for employees, the employer must consult directly with employees. Thus, before fixing the annual leave schedule for employees, the employer will have to collect their opinions; besides, before applying the annual leave policy, the employer has to notify the employee in advance.
The procedure for collecting employees’ opinions directly is not regulated by labor law, so the employer can follow your internal processes (if any). In the event that the employer does not have a specific internal procedure for collecting employees’ opinions, the employer may refer to the following process:
(1) Notifying employees about the collection of their opinions:
– Subjects: Employees affected by regulations on fixed annual leave.
– The employer decides on the notification form (it could be emailed, posted on the announcement board, internal notification system, etc.). Still, ensuring that this notice is accessible to employees and has evidence is advisable.
– Content of opinion collection;
– Time and form of opinion collection;
(2) Collect employees’ opinions, make minutes to record, and ask all employees to sign. In case there are too many employees, the employer can get opinions through the departments, then let the representatives of the departments sign in the final minutes.
(3) After completing the procedure of collecting opinions, the employer issues an official decision/notice on the application of the fixed annual leave schedule. However, the employer should notify in a reasonable time to ensure that employees have been informed of the annual leave schedule.
Apart from the above, annual leave is a mandatory content in the Working time and Resting time section of the Internal Labour Regulation. If the employer wants to fix the annual leave schedule, stating it directly in the Internal Labour Regulation is a suitable alternative to consider. However, the employer shouldn’t indicate a fixed schedule in the Internal Labour Regulation, just stating some principles to identify the annual leave schedule so that in case the annual leave schedule is changed, the Internal Labour Regulation isn’t necessary to amend.
Disclaimer:
This article is for general information only and is not a substitute for legal advice. Apolat Legal is a Vietnamese law firm with experience and capacity to advise on matters related to Employment. Please click here to learn more about our services and contact our lawyers in Vietnam for advice via email info@apolatlegal.com.
