Answer:
Any Employee who has full 12 months of work are entitled to annual leave and receive the full salary according to the LC[1]. The number of annual leave days of the Employee will increase according to the working seniority, for every full 05 years of service for an Employer, the Employee will be entitled to 01 extra day of annual leave[2]. The Employer normally calculates the annual leave according to the calendar year, from 01 January to the end of 31 December of the corresponding year. However, some of them prefer calculating the Employee’ annual leave in accordance with the fiscal year of the business, for example from 01 April to 31 March of the following year. The selection of the calendar year or the fiscal year of the enterprise as the basis for calculating the Employee’ annual leave has not been adjusted by the Labour Code. However, in practice, the competent labour management State agencies also agree with the above point, provided that the Employer has to specify in the enterprise’s ILR or CLA whether calendar year or fiscal year as the basis for calculating the number of annual leave days of the Employee.
In fact, not all Employees sign the LC that starts to work at the beginning of the calendar year or the fiscal year of the enterprise. Therefore, the Employee may not be entitled to the full number of annual leave as prescribed. The Labour Code does not have any specific guidance on when does the Employee start to be entitled to annual leave and how to calculate the number of annual leave in this case. According to the above-mentioned provisions of the Labour Code, it can be understood that the Employee is only entitled to enjoy annual leave from the date they have worked for the full 12 months for an Employer. However, of note, any Employee who has less than 12 months of work is also entitled to annual leave in proportion to the number of working months[3]. In the same way, the seniority extra day of annual leave only is granted to the Employee from the date they have worked for a full 05 years under the signed LC.
Thus, for example, the Employer stipulates that the number of the Employees’ annual leave is 12 days, calculated according to the calendar year, from 01 January to 31 December. The Employee starting to work from 01/8/2021, falling in the middle of the calendar year, will have 05 days annual leave in 2021 (as of 31/12/2021) in proportion to 05 working months due to the fact that Employee has not worked for a full 12 months as of 31 December 2021. In respect of annual leave of that Employee in 2022, since Employee has fulfilled 12 working months only as of 01/8/2022, the number of annual leave of the employee in 2022 counted from 01/01/2022 to 01/8/2022 will also be calculated in the same manner of the above (07 days). Although the employee has worked for a full 12 months from 01/8/2022 onwards, because the basis chosen to calculate the annual leave is the calendar year, the Employee will enjoy the annual leave calculated according to the proportion of working time from 01/8/2022 to 31/12/2022. From 01/01/2023 onwards, the Employee will be entitled to 12 days of annual leave. The number of annual leave per seniority will be added to the annual leave for the Employee starting from 01/8/2026.
For the purpose of reference, the DOLISA of Ho Chi Minh City and Hanoi have the same interpretation and guidance on when and how to calculate the number of the Employees’ annual leave as set out above.
[1] Article 113.1 of the Labour Code.
[2] Article 114 of the Labour Code.
[3] Article 113.2 of the Labour Code.
