Alert on New regulations in labour fields - Mazars Tax Alert

We would like to give out an alert on new regulations in labour fields with 3 major updates as follows:

I. AMENDING, SUPPLEMENTING A NUMBER OF ARTICLES OF DECREE 05/2015/ND-CP GUIDING THE IMPLEMENTATION OF THE LABOUR CODE

According to Decree 148/2018/ND-CP (“Decree 148”) amending and supplementing a number of articles of Decree 05/2015/ND-CP detailing and guiding the implementation of a number of contents of the Labour Code of the Government 24 October 2018, there are some key points as follows:

-          The legal representative of the agency, unit, organization that has a legal status or the person authorized by the legal representative is the person entering into the labour contracts on the employer side rather than the head of the organization as default. The authorization letter does not have to follow the template issued by the Ministry of Labour, War Invalids and Social Affairs.

-          The probation, internship and apprenticeship period, time in which employees are temporarily detained or jailed away from work but after that they are permitted to come back to work based on the competent authority’s conclusion that they are not guilty is excluded from the total actual working time when calculating severance allowance/job-loss allowance, except for the circumstance where the probation is included in the labour contracts. Simultaneously, the Decree also further elaborates the leave regime as per the Law on Social Insurance, the Law on Occupational Safety and Hygiene; supplements the leave for fulfillment of citizen’s duties into the actual time where the employee works for the employer.

-          The salary used to calculate payment in lieu for annual leave, public holidays, personal paid leave is the monthly salary as specified in the labour contract (instead of salary of the previous month as currently regulated) and divided by the total number of working days of the month per the employer’s policy.

-          In cases where the employer holds a labour disciplinary meeting, the employer only needs to ensure that the meeting invitation is sent to all participants before the meeting instead of having to send at least 5 working days as current regulations. If the recipients refuses to participate in the meeting or the explanation for not participating is not acceptable or fails to participate in the meeting as confirmed, the employer shall have the right to hold a disciplinary meeting instead of having to send the invitation to all participants at least 03 times in accordance with the current regulations.

Decree 148 shall come into force from 15 December 2018.

 

II. AMENDING, SUPPLEMENTING REGULATIONS ON ISSUANCE OF WORK PERMIT FOR FOREIGN EMPLOYEES WORKING IN VIETNAM

According to Decree 140/2018/ND-CP (“Decree 140”) on amendments to and supplementations of Decrees relating to business investment conditions and administrative procedures within the scope of management of the Ministry of Labour, Invalids and Social Affairs promulgated and coming into force on 8th October 2018, a number of provisions on the issuance of work permit for foreign employees working in Vietnam in Decree 11/2016/ND-CP dated 02 March 2016 of the Government are amended and supplemented as follows:

-          Relatives of members of foreign missions in Vietnam are exempted from work permit and their employers are not required to carry out procedures for obtaining certification for exemption of work permit for them, if being stated in International Treaties to which Vietnam is a member.

-          Two additional cases where procedures for determining demand for utilization of foreign employees before recruitment are not required include chiefs of representative offices, projects of international organizations, non-governmental organizations in Vietnam and the relatives of members of foreign missions in Vietnam.

-          Persons being in charge of establishment of commercial presence are exempted from work permit.

-          Time-limit for issuance of work permit is shortened from 07 (seven) working days to 05 (five) working days.

-          Enterprises operating under Law on Enterprises, Law on Investment or international treaties of which Vietnam is a member having representative offices or branches, which are located in other provinces and cities are entitled to obtain approval on demand for utilization of foreign employees; certification of exemption from work permit for foreign employees; to request for issuance, re-issuance of work permit and request the police to expel the foreign employees working in Vietnam without work permit at the Ministry of Labour, War Invalids and Social Affairs.

-          The foreign employee shall be entitled to the same benefits as Vietnamese employee including sickness allowance; maternity allowance; labour accident and occupational disease allowance; survivorship allowance, pension with the same schedules of contribution to such funds. Except for the one-time claim SI allowance, foreign employee can apply for at the end of of labour contract or work permit, practicing license, or practicing certificate expired without extension while the Vietnamese employee must wait for a year without working and contribute to SI funds.   

III. ENTERPRISES TO BE RESPONSIBLE FOR SELF-EXAMINATION ON COMPLIANCE WITH LABOUR REGULATIONS

The Ministry of Labour, Invalids and Social Affairs has promulgated Circular 17/2018/TT-BLDTBXH dated 17 October 2018 guiding the self-examination on compliance with labour regulations of the employers. According to which:

-          Employers must organize the self-examination on compliance with labour regulations at their establishments at least once (01) a year. The specific time for self-examination shall be determined by the employers. The period of self-examination is from the first day of January of the preceding calendar year to the time of examination.

-          Main contents of self-examination includes: the implementation of periodical reports, recruitment and training, engagement and execution of labour contracts, dialogue and collective bargaining, working time and rest time, wage, occupational safety and hygiene, labour discipline, compulsory insurance, labour dispute, etc.

-          The self-examination team comprises of representative(s) of the employers being the team leader, team members are labour and wage officer, occupational safety and hygiene officer, representative(s) of the employees and other relevant members as determined by the employers.

-          The employers must register an account and, based on their main production and business fields, select self-examination form(s) which are published on the website: http://tukiemtraphapluatlaodong.gov.vn. The form of conclusion of self-examination is also published on this website.

The self-examination forms and the self-examination conclusion forms must be kept at the enterprise together with a written decision on establishment of the self-examination team and other documents used during the self-examination.

-          Upon written request of the State Labour Inspectorate, the employers shall coordinate with the representative of labour collective at the establishment to make a report on the results of the online self-examination.

-          If failing to comply with regulations on self-examination and reporting provided in Circular 17, the employers may be subjected to extraordinary inspection or inclusion in the inspection plan of the following year and simultaneously, it shall be an aggravating factor to make decision on administrative fines, if causing serious consequences, the employers shall face with criminal prosecution and other punishment forms as prescribed by laws.

Circular 17 shall take effect from 01 January 2019.

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We do trust the above points are notable and sufficient, but should you have any question or need a deeper discussion on this issue, please do not hesitate to contact us.

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