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Labor code Vietnam 2012 - Chapter XI EXCLUSIVE PROVISIONS FOR UNDER AGE EMPLOYEE AND A NUMBER OF TYPES OF EMPLOYEE

Chapter XI EXCLUSIVE PROVISIONS FOR UNDER AGE EMPLOYEE AND A NUMBER OF TYPES OF EMPLOYEE

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VIET NAM LABOR CODE 2012

(THE LABOR CODE OF VIETNAM)

The Labor Code specifies the labor standards; the rights, obligations and responsibilities of the employees, the employers, the labor representative organizations, the employer representative organizations in the labor relation and other relations directly related to the labor relation, the State management of labor

 

Chapter XI

EXCLUSIVE PROVISIONS FOR UNDER AGE EMPLOYEE AND A NUMBER OF TYPES OF EMPLOYEE

Section 1. UNDERAGE EMPLOYEE

Article 161. Underage employee

The underage employee is the employee under 18 years old

Article 162. Employment of underage employee

1. The employer only employs the underage employee in the jobs appropriate with his health to ensure the physical, intellectual development and personality development and is responsible for paying attention and taking care of the underage employee in terms of labor, salary, health and education in the labor process.

2. When employing underage employee, the employer must make a separate monitoring book, recording the full name, birth date, current job, the results of the periodical health examination and produce it upon the requirement of the competent state agency.

Article 163. Principle to employ the underage employee

1. Do not employthe underage employee to perform heavy, hazardous and dangerous jobs or the jobs negatively affecting his personality under the list issued by the Ministry of Labour - Invalids and Social Affairs in coordination with the Ministry of Health

2. The working hours of the underage employee from full 15 years of age to under 18 years must not exceed 08 hours in 01 days and 40 hours in 01 week

The working hours of person under 15 years must not exceed 4 hours in 01 days and 20 hours in 01 week without working overtime and at night.

3. The person from full15 years of age and under 18 years is entitled to work overtime and at night in some occupations and jobs in accordance with the Ministry of Labour - Invalids and Social Affairs.

4. Do not employthe underage employee to produce and trade in alcohol, wine, beer, tobacco, substances affecting mind and other drugs;

5. The employer must provide opportunities for the underage employee and person under 15 years old to take part in labor and cultural learning.

Article 164. Employing employee under 15 years old

1. The employer is only entitled to employ the person from full 13 years and under 15 years to perform light job under the list prescribed by the Ministry of Labour - Invalids and Social Affairs.

2. When employing the person from full 13 years and under 15 years, the employer must comply with the following provisions:

a) Must sign the labor contracts in writing with the legal representative and must be agreed by the full 13 year and under 15 year old person;

b) To arrange the working hours in order not to affect the class hour of the children;

c) To ensure the working conditions, labor safety and hygiene appropriate with the age of the underage employee;

3. Do not employ the employee under age 13 except for some specific work regulated by the Ministry of Labour - Invalids and Social Affairs.

When employing people under age 13 to work, the employer must comply with the provisions of Clause 2 of this Article.

Article 165. The work and workplace prohibiting employment of underage employee

1. Prohibiting the employment of underage employee to perform the following jobs:

a) Wearing, carrying and lifting heavy objects beyond the physical condition of the underage person;

b) Producing and using or transporting the chemicals, gases, explosives;

c) Maitaining the equipment and machinery;

d) Demolishing constructional building;

dd) Cooking, blowing, casting, rolling, stamping, welding metals;

e) Diving,offshorefishing;

g) Other work harming the health, safety or the ethics of the underage person.

2. Prohibiting the underage person to work at the following places

a) Underwater,underground,in caves andin the tunnel;

b) Constructional site;

c) Slaughter facility;

d) Casinos, bars, discos, karaoke rooms, hotels, motels, saunas and massage rooms;

dd) Other workplace harming the health, safety or the ethics of the underage person.

3. The Ministry of Labour - Invalids and Social Affairs specifies the list at Point g, Clause 1 and Point d, Clause 2 of this Article.

Section 2. ELDERLY EMPLOYEE

Article 166. Elderly employee

1. The elderly employee is the person who continues working after age as prescribed in Article 187 of this Code.

2. The elderly employee is entitled to shorten daily working hours or apply the regime of shorter hour working.

3. The final year before retirement, the employee is entitled to reduce the normal working hours or apply the regime of shorter hour working.

Article 167. Employment of elderly employee

1. When required, the employer may agree with healthy elder employee to prolong the term of labor contract or sign the new labor contract under the provisions of Chapter III of this Code.

2. Once retired, if working under a new labor contract, in addition to the interests under pension regime, the elderly employee still enjoys the interests agreed upon in labor contracts.

3. Do not employ the elderly employee to do the hard, hazardous and dangerous job adversely affecting the health of the elderly employee, except for the special cases as prescribed by the Government.

4. The employer is responsible to pay attention to and take care of the health of the elderly employee at the workplace.

Section 3. VIETNAMESE EMPLOYEE WORKING ABROAD, WORKING FOR FOREIGN ORGANIZATION AND INDIVIDUAL IN VIETNAM, FOREIGN EMPLOYEE WORKING IN VIETNAM

Article 168. Vietnamese employee working abroad, working for foreign organization and individual in Vietnam, foreign employee working in Vietnam

1. The State encourages the enterprises, agencies, organizations and individuals to seek and expand the labor market to send Vietnamese to work abroad.

Vietnamese employee working overseas must comply with the provisions of the law of Vietnam, the host country law, except the case of international agreement in which Vietnam is a member contains different provisions.

2. Vietnamese citizens working in foreign enterprises in Vietnam, in industrial parks, economic zones and export processing zones, in foreign or international agencies and organizations or working for individuals who are foreign citizens in Vietnam must comply with the law of Vietnam and are protected by law.

Article 169. Conditions of employee being the foreign citizen working in Vietnam.

1. The employee who is the foreign citizen working in Vietnam must have the following conditions:

a) Having capacityfor civil actsin full;

b) Having qualification, skills and health in accordance with the job requirements;

c) Not being the criminal or prosecuted for criminal liability in accordance with the law of Vietnam and foreign law;

d) Having working permit granted by the Vietnamese competent state authorities, except for the cases as prescribed in the Article 172 of this Code.

2. The employee who is a foreign citizen working in Vietnam must comply with Vietnam's labor law, international agreement in which Vietnam is a member contains different provisions and protected by the law of Vietnam.

Article 170. Conditions for labor recruitment of foreign citizen

1. The enterprises, agencies, organizations, individuals and contractors in the country are only entitled to recruit foreign citizen to work as manager, operating director, specialist  and technical employee while Vietnamese employee has not meet the production and business demand.

2. The foreing enterprises, agencies, organizations, individuals and contractors before recruiting employees who are foreign citizens to work in the territory of Vietnam must explain the demand for labor employment and be approved in writing from the competent state agency.

Article 171. Work permit for the employee being the foreign citizen to work in Vietnam

1. The employee who is a foreign citizen must present a work permit when carrying out the procedures related to the exit, entry and present as required from the competent state agency

2. The foreign citizen coming to work in Vietnam without work permits will be expelled from the territory of Vietnam as stipulated by the Government.

3. The employer who employs foreign citizen without a work permit to work for him, shall be handled as prescribed by law.

Article 172. Foreign citizen working in Vietnam not subject to the grant of work permit

1. As contributing member, or owners of limited liability company.

2. As a member of the Board of Directors of the Joint Stock Company

3. As a Head of Representative Office, project of international organization, non-governmental organizations in Vietnam.

4. Coming to Vietnam with a period of less than 03 months to offer services

5. Coming to Vietnam with a period of less than 03 months to handle the problem, technical situation and complex technology arising that affect or threaten to affect the production and business that the Vietnamese and foreign experts currently in Vietnam can not be handled.

6. As a foreign lawyer who has been licensed to practice law in Vietnam under the Law on Lawyers.

7. Under the provisions of international agreement in which the Socialist Republic of Vietnam is a member.

8. As students who are studying and working in Vietnam, but the employer must give a notice 07 days in advance to the provincial state management agency on labor.

9. Other cases as prescribed by the Government

Article 173. Time limit of the work permit

The time limit of the work permit is 02 maximally.

Article 174. Cases of expriration of work permit

1. Work permit has expired

2. Termination of labor contract

3. The content of the labor contract is not consitent with that of the issued work permit.

4. Contract in the area of economy, trade, finance, banking, insurance, technical science, culture, sports, education and health has been expired or terminated.

5. There is a written notice from the foreign countries on stopping sending foreign employees to work in Vietnam.

6. The work permit is revoked

7. Enterprises, organizations and partners from Vietnam or non-governmental organizations in Vietnam have ended their activities.

8. The employee is a foreign citizen who is imprisoned, dead or declared dead or missing by the court

Article 175. Grant, re-grant and revocation of work permit

The Government has specified the conditions for grant, re-grant and revocation of work permit for employee as foreign citizen working in Vietnam.

Section 4. DISABLE EMPLOYEES

Article 176. State policies for disabled employee

1. The State shall protect the right of work and self-employment of the disabled employee, having the policies of encouragement and incentives to the employer to create job and receive the disabled person to work as prescribed by the Law on disabled persons

2. The Government has stipulated the policies for preferential loans from the national Fund for the employer to employ disabled employee.

Article 177. Employing disabled employee

1. The employer must ensure that the working conditions, labor tools, labor safety and hygiene are in accordance with the disabled employee and regularly take care of their health.

2. The employer must gather the disabled employee upon making decisions on the issues related to their interests.

Article 178. Prohibited acts upon employment of disabled employee

1. Employing disabled employee with the working capacity reduced from 51% or more to work overtime or work at night.

2. Employing disabled employee to do heavy, hazardous or dangerous work, or exposure to toxic substances under the list issued by the Ministry of Labour - Invalids and Social Affairs in coordination with the Ministry of Health.

Section 5. EMPLOYEE AS HOUSEMAID

Article 179. Employee as housemaid

1. Employee working as housemaid is the employee regularly performs work in a household or many household

The house work including the housework, housekeeping, child care, patient care, elder care, driving, gardening and other work but not related to the commercial activities.

2. The person performing housework in the form of piecework is not subject to the application of this Code.

Article 180. Labor contract for employee as a housemaid

1. The employer must sign a labor contract in writing with the housemaid.

2. The time limit of the labor contract for the employee as a housemaid shall be agreed by both parties. One party has the right to unilaterally terminate the labor contract at any time but has to give a notice 15 days in advance.

3. Both parties shall agree and specify in the labor contract on the form of salary payment, term of payment, daily working hours, accommodation…

Article 181. Employer’s obligations

1. Fully implementing all agreements already signed in the labor contract.

2. Paying the housemaid an amount of social insurance, health insurance as prescribed by law for employee to buy insurance herself.

3. Respecting the honor and dignity of the housemaid

4. Arranging the clean and hygienic accommodation for the housemaid if agreed.

5. Creating opportunities for the housemaid to participate in education, vocational training.

6. Paying fares when the housemaid terminates work and get home except for the case the housemaid terminates the labor contract ahead of time.

Article 182. Housemaid’s obligations

1. Fully executing all agreements signed by both parties in the labor contract.

2. Having to compensate as agreed or as prescribed by the regulations of law if causing damage and loss of property of the employer.

3. Giving timely notice to the employer about the possibility, the risk of accidents and threat to the safety, health, life and property of employer’s family and themselves.

4. Denouncing to the competent authorities if the employer has the acts of maltreatment, sexual harassment, forced labor or other acts of law violation.

Article 183. Prohibited acts for the employer

1. Maltreatment, sexual harassement, forced labor, force using for the employee as a housemaid.

2. Assigning the housemaid the work not specified in the labor contract

3. Keeping the housemaid’s personal papers

Section 6. OTHER LABOUR ACTIVITIES

Article 184. Employee working in area of art and sports

Person who performs trade or work in the area of art and sports is entitled to apply a number of appropriate regimes about the age of trade learning; about the labor contract signing, working and break time; the salary, salary allowance, bonus, labor safety and hygiene as prescribed by the Government.

Article 185. Employee receiving work to do at home

1. The employee can agree with the employer to receive work to do at home regularly.

 

2. The employee who works at home in the form of processing is not subject to the application of this Code