Question 187. Is a foreign Employee entitled to overtime wage rating payments if he or she works on traditional public holidays and National Day of the country where the foreign Employee is a citizen?


Article 112.2 The Labour Code stipulates that a foreign Employee working in Vietnam has a maximum of 13 public holidays, New Year including 11 public holidays, Vietnamese New Year, also entitled to one traditional public holiday and one national day of his or her country. The MOLISA also has additional guidance on this issue on their online FAQ page as follows: A country has one National Day and possibly many traditional public holidays. Therefore, to comply with Article 112.2 of the Labour Code, the Employer needs to learn about the National Day and the traditional public holidays of foreign Employees to decide the extra (01) one more day off of the National Day and (01) one more day off of his or her traditional public holidays with not included in the traditional public holidays and the New Year of Vietnam have been specified in Article 112.1 of the Labour Code.

In addition, based on actual conditions annually, the Prime Minister will decide specifically the day off of the Lunar New Year and National Day (02 September, Calendar year plus the immediately preceding or immediately following day) [1]. Because the Labour Code applies to Vietnamese Employees and foreign ones, the foreign Employees are also entitled to the benefits prescribed in the Labour Code, same as Vietnamese Employees.

In addition, there are not any regulations from the Labour Code regarding payment for the foreign Employee if he or she has not taken 02 holidays and his or her traditional public holidays except entitled to payment of salary for the days for which leave has not yet been taken[2]. Because of his or her National Day, the traditional public holidays are not annual holidays but full paid holidays[3]. If the Employee is a foreigner who works on these (02) two days, overtime salary will be paid at a rate of at least 300% excluding the 100% of wages for such holiday and paid days off[4].

In fact, most of the foreign Employees are given leave by the enterprise on their National Day, the traditional public holiday. If the foreign Employee has to work on these days, the Employer is obliged to pay overtime wage rating payments as stated above.

[1] Article 112.3 of the Labour Code

[2] Article 113.3 of the Labour Code

[3]Article 112.1 of the Labour Code

[4] Article 98.1 (c) of the Labour Code