How to Determine Labour Relationship under Labour Code 2019?
During Covid pandemic, many companies face economic challenges
that need to reduce the high paid workers’ cost. There are situations which
dispute arisen and the employee started to realize that the contract he or she
signs with the company he or she spends eight hours each day, follows
instructions of work from supervisors, and receives monthly payment at the end
of the month, seems to be a consulting contract on the face instead. Is this a
consulting contract or a labour contract? It is suggested the disputants engage
the dispute lawyers to help resolve the potential conflict or help provide
legal opinions if a labor relationship is established or not.
A labour contract is essentially a civil transaction, whereby the
employer and the employee enter into it on the basis of voluntarity, equality,
goodwill, cooperation and honesty. According to the provisions of the Vietnam
Labor Code 2019, “a labor contract is an agreement between an employee and an
employer on a paid job, salary, working conditions, and the rights and
obligations of each party in the labor relations”. In addition, the agreements
which are not under the name of a labor contract but have content showing paid
employment, salary and the management, administration and supervision of one
party are considered as labor contracts.
An employee is allowed to enter into many labor contracts, but the
employee must ensure compliance with signed contracts, this provision creates
conditions allowing employees to use their full working capacity and have
additional sources of income.
Contents of the labor contract must contain information about the
employer and employee; Specific information about the job and workplace;
Duration of the employment contract; Job- or position-based salary, form of
salary payment, due date for payment of salary, allowances and other additional
payments; Regimes for promotion and pay rise; Working hours, rest periods;
Personal protective equipment for the employee; Social insurance, health
insurance and unemployment insurance; Basic training and advanced training,
occupational skill development, these are basic but very important contents
that employees need to pay attention to negotiating closely and fully to ensure
the interests of employees in the process of contract performance. Besides,
depending on the job and job position, the employer and the employee can agree
in writing on issues related to information confidentiality, however, the
employer needs to pay attention to building an appropriate system of internal
labor documents to ensure the practical and effective application of
information confidentiality.
Regarding the probationary contract, Labor Code 2019 allows
employees and employers to agree on the content of the probationary period in
the labor contract itself or sign a separate probationary contract. The
agreement on the content of the probationary period in the labor contract will
cause some insurance obligations to the insurance agency, therefore, the
employer and the employee need to carefully search relevant legal provisions in
order to negotiate and agree on the contents of the labor contract to ensure
compliance with the law and the rights and obligations of both parties.
In addition, in case the employee and the employer wish to amend,
supplement or replace the agreed contents in the labor contract, the two
parties sign an addendum to the labor contract to amend the respective
contents. However, if the term of the labor contract is changed, the parties
must agree to terminate the old labor contract and enter into a new labor
contract. The labor contract appendix is an integral part of the labor
contract and has the same effect as the labor contract.
Employees as well as the labor collective and
employers should pay attention to selecting the most appropriate and optimal
resolution solution when labor disputes occur. It is also suggested
to consult with labour lawyers of Labour dispute law firm in Vietnam speacializing
in employment matters for efficiency.
Source ANT Lawyers: https://antlawyers.vn/library/how-to-determine-labour-relationship-under-labour-code-2019.html
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