On November 20, 2019, at the 8th Session of the National Assembly of the Socialist Republic of Vietnam, XIV, passed the Labor Code No. 45/2019/QH14, this law takes effect from the date of January 1, 2021. So employees and employers should note the new point about the labor contract to protect the rights and interests of their legitimate, this article will show 10 new points where workers and people employers should note.
- Expand the scope defined labor relations (labor contracts)
Actually, there are many businesses in order to shirk the obligations to the employees, to avoid the correction of the Labor Code, have used these types of contracts, such as service contracts, contracts of collaborators, … clothing though nature is still labor relations. Seeing that problem, lawmakers have expanded the scope of labor relations in the Labor Code 2019. Accordingly, any contract, regardless of its name, is considered a labor contract if any. enough 3 signs:
- Work on an agreement basis;
- With pay;
- There is the management, administration, supervision of one party.
This provision is needed to circumvent the provisions of the Law, using another name instead of labor contracts to avoid the responsibility to perform the obligations of employers regarding wages, responsibility participating in social insurance for employees.
- Form of employment contract
Accepting labor contracts through electronic means in the form of data messages.
Labor contracts are concluded via electronic means in the form of a data message in accordance with the law on electronic transactions valued as labor contracts in writing.
- Type of labor contract
Since the date of 01.01.2021, the labor contract shall be made in one of the following categories:
- Indefinite-term labor contracts.
- Labor contracts with indefinite terms, in which both parties define the term, an end time of the contract of employment in a period not exceeding 36 months from the time the contract takes effect.
Thus, compared with the current provisions in the Labor Code 2012, it will no longer contract or seasonal workers in a certain job anymore.
- No probation applies to labor contracts of less than 1 month
According to current regulations, only people who sign seasonal labor contracts are automatically not probation. However, from 2021, there is no type of seasonal labor contract and no probation applies to labor contracts of less than 1 month..
- Additional provisions on probationary period
Labor Code 2019 stipulates: The probationary period does not exceed 180 days for the job of the enterprise manager in accordance with the Enterprise Law, the Law on Management and Use of State Capital invested in production and business. Business at business. Thus, instead of a 60-day probationary period such as the Labor Code 2012, Labor Code 2019 has increased the probationary period of enterprise management. This is consistent with the reality of the business, need a long enough time to assess the capacity of the management level before signing the formal labor contracts with enterprises.
According to the provisions of the Enterprise Law (legal basis: Clause 18, Article 4 of the 2014 Law on Enterprises), depending on the type of company, different managers of enterprises may be the owners of private enterprises. for private enterprises, general partners, for partnerships, chairman of the Members’ Council, for limited liability companies, directors, general directors, etc.
Also, in case the company charter stipulates the business manager may also be other individuals holding managerial positions in the name of the companys has the right to conclude the transaction.
In addition, Labor Code 2019 also further clarify the case, the probationary period may be included in the labor contract or separate probationary contract for the convenience of business during probation and sign labor contracts
- Adding more cases of labor contract suspension
In addition to the deferred cases employment contracts under the provisions of the Labor Code 2012, Labor Code 2019, has added the case was postponed workers labor contracts following:
- Laborers to fulfill the obligation to participate Militia;
- The employee is authorized to exercise the rights and responsibilities of business for the capital investment enterprise in other enterprises.
- The employee has the right to unilaterally terminate the labor contract without cause
According to the Labor Code 2012: Employees have labor contracts with indefinite terms while unilaterally terminate labor contracts are required to have 01 of the reasons set out in paragraph 1 of Article 37 of the Labor Code 2012, and also meet the conditions for prior notice.
However the Labor Code 2019 have no rules anymore, under which workers have the right to unilaterally terminate the labor contract without reason just to meet the conditions of the time foretold in Paragraph 1 Article 35.
- Additional provisions on the case is entitled to unilaterally terminate the labor contract without notice
Labor Code 2019 provides for special cases the employee without notice the following:
- Must not be arranged in accordance with the job, the working place or not guaranteed working conditions as agreed, except for the case specified in Article 29 of this Code;
- Not full pay or not pay on time, unless otherwise provided for in Paragraph 4 of Article 97 of this Code;
- Being abused, beaten or abused by the employer, abusive acts, acts affecting health, dignity and honor; forced labor;
- Sexual harassment in the workplace;
- The female employee who is pregnant must take leave as prescribed in Clause 1 Article 138 of this Code;
- Reach full retirement age as prescribed in Article 169 of this Code, unless otherwise agreed by the parties;
- The employer provides dishonest information as prescribed in Clause 1, Article 16 of this Code, affecting the performance of labor contracts.
Thus, compared with the Labor Code 2012, the Labor Code 2019 have extended many cases workers are unilaterally terminate the labor contract without notice.
- Where the employer has the right to unilaterally terminate the labor contract without notice
Labor Code 2019 provides that employers may unilaterally terminate the labor contract without notice to 02 the following cases:
- The employee is not present at the workplace within 15 days from the expiry of the period of temporary postponement of execution of the labor contract.
- The employee left employment voluntarily without good reason from 05 working days consecutive.
- Defining the handling time and responsibilities of employees and employers when terminating labor contracts
According to Labor Code 2012: Within 07 working days from the date of termination of the labor contract, the two parties are responsible for paying all amounts related to the interests of each party; In special cases, this may be extended but must not exceed 30 days.
However, according to the Labor Code 2019: Within 14 working days from the date of termination of the labor contract, the two parties are responsible for paying the full amount of money related to each party’s interests, except for the following cases may be extended but not more than 30 days, such as:
- The employer is not an individual who ceases operation;
- The employer changes the structure, technology or for economic reasons;
- Division, splitting, consolidation, merger; sale, lease, conversion of business type; transfer of ownership, right to use assets of enterprises and cooperatives;
- Due to a natural disaster, fire, enemy sabotage or dangerous epidemic.
Above are 10 new points related to labor contracts under the provisions of the Labor Code 2019, these new points contribute to the completion of labor contract regulations to ensure the legitimate rights and interests of both people. employers and employers in the labor relationship. Therefore, employees and employers need to know when Labor Code 2019 is about to take effect on January 1, 2021.
Employees and employers need to be aware of new changes in labor laws to understand their rights and responsibilities. In case you need more advice about labor contracts and labor relations, you can contact MLT Lawyers at 02862727987 or 0919211048 or via email: [email protected]