Answer:
1. In the case that the Employer temporarily assigns the Employee to a working position different from that specified in the LC.
In order to temporarily assign the Employee to another working position, the Employer must meet the requirements of the Labour Code as follows:
- Reason for the temporary assignment[1]: The Employer is entitled to temporarily assign the Employee to a working position different from that specified in the signed LC due to production and business requirements. In particular, the production and business requirements for which the Employer is allowed to temporarily assign the Employee to another working position must be specified in the registered ILR of the enterprise.
- With the above provisions, the Employer is entitled to temporarily change the working position of the Employee due to changes in the business operation of the enterprise if the ILR of the enterprise has clearly defined the production and business requirements that the Employer is entitled to temporarily change the Employee’s job. If the ILR of the enterprise does not stipulate the above content, the temporary assignment could be considered contrary to the provisions of the law and the Employer may face legal risks for this violation.
- Period of temporary assignment: the period for assigning the Employee to another working position can not exceed 60 cumulative working days in 01 year[2]. If the Employer is required to continue temporarily assigning the Employee to another working position, the Employer must obtain the consent of the Employee in writing.
Salary of the Employee in the new job: when temporarily be assigned to another working position, the Employee will be paid by the Employer the salary for the new job; if the new job’s salary is lower than that of the old job, the old job’s salary rate will be paid within 30 working days from the date of assignment. The salary for the new job of the Employee must be at least equal to 85% of the salary for the old job but not lower than the regional minimum salary in that place[3].
In respect of the procedure of temporary assignment, the Employer must inform the Employee at least 03 working days in advance, clearly announce the duration of the temporary position and arrange the position suitable to the Employee’s health and gender[4].
In respect of whether to ask the Employee to sign the LC appendix recording the temporary assignment or not, in general, this proposal is unnecessary because the temporary assignment is of a temporary nature. Meanwhile, pursuant to Article 22.2 of the Labour Code, the function of the LC appendix is to detail several provisions of the LC (such as bonuses, allowances, etc.) or to amend and supplement the LC. Therefore, the recognition of temporary changes in work and salary of the Employee in a LC appendix is not accurate. To have a solid legal ground and avoid legal risks for the enterprise in the future, the Employer should have an agreement with the Employee about temporarily assigning the Employee to another working position with a lower salary than that of the previous LC.
2. In the case that the Employer permanently assigns the Employee to a working position different than that in the LC
Permanently assigning the Employee to another working position within the enterprise with a new salary is considered as amending and supplementing the LC during the contract term as prescribed in Article 33 of the Labour Code. Therefore, except for the right to temporarily assign the Employee to another working position as analysed above, the Employer is not allowed to change, arrange another position and pay the Employee a salary lower than the salary agreed by the parties in the LC. The fact that the Employer unilaterally modifies the LC on the job description, workplace, and salary without the prior consent of the Employee will be considered as a breach of the LC. In that case, the Employer may face risks if the Employee makes a complaint against the Employer at the labour dispute resolution agency or initiate a lawsuit against the Employer at the competent Courts. In addition, the Employer may also be subject to administrative penalties ranging from VND6,000,000 to VND14,000,000 for this violation[5].
Thus, if there is a need to amend, the content of the LC about the working position and the salary with the Employee, the Employer must notify the Employee at least 03 working days in advance and must obtain the consent of the Employee on the amendment and supplement result in a signed LC appendix or a new LC[6].
[1] Article 29.1 of the Labour Code
[2] Article 29.1 of the Labour Code
[3] Article 29.3 of the Labour Code
[4] Article 29.2 of the Labour Code
[5] Articles 5 and 10.2 (c) of Decree No. 28/2020/ND-CP of the Government dated 01 March 2020
[6] Articles 33.1 and 33.2 of the Labour Code
