Some inadequacies in current legal provisions relating to labor

Some inadequacies in current legal provisions relating to labor

The Labor Code 2019 (“BLLD 2019”) was promulgated in the context of a review of 6 years of implementation. In general, the amendments and supplements to the general regulations in the Labor Code in 2019 have made new and progressive points, are closer to and more consistent with the basic international labor standards of the ILO, and meet the requirements of the practice of international economic integration. However, together with the 2019 Labor Code, several related legal and sub-law documents present some inadequacies, conflicts, or overlaps with each other or with legal documents in other fields. Specifically: 

See more: 05 Notes For Enterprises Using Foreign Employees.

Firstly, Decree 145, Article 70, Clause 2, point c provides as follows: 

“c) The employer shall hold a meeting to handle labor discipline according to the time and place notified as prescribed at Points a and b of this Clause. In case one of the members who must attend the meeting specified at Points b and c, Clause 1, Article 122 of the Labor Code fails to confirm attendance at the meeting or is absent, the employer will still conduct a meeting to handle labor discipline.” 

The above regulation almost inherits the whole spirit of Decree 05/2015/ND-CP Article 30, Clause 2, Point b (amended and supplemented by Decree 148/2018/ND-CP), and contradicts regulations stated in the Labor Code 2019, Article 122 Clause 1, points b and c that, the handling of labor discipline must involve the participation of the representative organization of the labor collective at the grassroots and the employee must be present and have the right to defend, ask a lawyer or someone else to defend. 

Second, Circular 28, Article 12, Clause 1 stipulates that: 

“1. The planned salary fund is determined based on […] of the full-time company manager (including: […], the Head of the Supervisory Board and the full-time Supervisor).” 

This regulation contradicts the regulations on enterprise managers of the Enterprise Law 2020 Article 4 Clause 24 does not default to include members of the Supervisory Board and Head of the Supervisory Board. 

Third, regarding the authority to enter into labor contracts, the Labor Code 2019 stipulates: “A person authorized to enter into labor contracts may not re-authorize another person to enter into labor contracts”1. It can be seen that this regulation continues to be the successor to the current regulations that are and may continue to cause many problems. In fact, the relationship of authorization is a civil relationship, based on the free will of the parties and such provisions can be seen as contradicting the basic principles of the Civil Code2. 

Fourth, regarding the appendix to the labor contract, the Labor Code 2019 stipulates: The Labor Contract Appendix details, amends, and supplements several terms of the labor contract but cannot modify the content of the term of the labor contract. The above regulation does not allow modification of the content of the term of the labor contract which is inconsistent with the principle of free agreement of the parties in the labor relationship and contrary to the nature of the labor contract as stated in Article 13 of the Labor Code 2019 and does not agree with the provisions of the Civil Code 2015 (Article 403) on contract appendices. 

Fifth, about the probationary period. The Labor Code 2019 stipulates that the time is “no more than 6 working days for other jobs”. However, the 6-day probationary period as prescribed above is too short and unfeasible, it is necessary to specify a more reasonable probationary period, possibly “no more than 15 working days for other jobs” then it will ensure the feasibility and be more favorable for enterprises to evaluate the probation results of this group of workers. 

Sixth, regarding the obligations of the employer in the case of structural, technological, or economic changes, the provisions of Article 42 of the Labor Code 2019 show that there are two conditions for the employer to dismiss the employee: (i) There must be a structural, technological or economic change. Cases that are considered structural, technological, or economic changes; (ii) The employer must implement the labor use plan as prescribed in Article 44 of the Labor Code 2019. In case of change in structure and technology, the employer actively implements it to cut costs and improve productivity resulting in employees losing their jobs. Therefore, the law should stipulate that the employer must pay a job loss allowance twice as high as the severance allowance in cases of termination of other ordinary labor contracts. The “economic reasons” are the objective reasons that cause the employer to reduce production and reduce the number of workplaces, which is a case of force majeure for the employer. Therefore, when the employer dismisses the employee for economic reasons, it is also unreasonable to pay unemployment allowance as in the case of changing the technological structure. 

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.

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