Answer:
Article 16.2 of the Labour Code prescribes that the Employee must provide the Employer with information on his or her name, age, gender, place of residence, educational level, occupational skill level, health status and other matters directly related to the conclusion of the LC (“Personal Information“). Accordingly, the collection of Personal Information in accordance with the law is only for the purpose of entering into the LC.
Pursuant to the Labour Code and current guiding documents on the Employer’s obligation to pay salary, the Employer must pay salary to the Employee directly, in full and on time[1]. The late salary payment is only considered in some force majeure cases where the Employer cannot pay the salary on schedule as agreed in the contract despite of seeking all remedies.
However, the late salary payment in the said cases must not be delayed for more than 30 days and the Employer must pay the Employee an additional amount at least equal to the late interest calculated on the amount of late payment multiplying the ceiling interest rate of mobilised one-month term deposits announced by the Commercial Bank opening the personal account for salary payment of the Employee if the period of delay is 15 days or more[1].
In addition, the Employer and the Employee may agree to choose one of the following two types of salary payment: (i) in cash; or (ii) transfer via the Employee’s personal accounts opened at the bank[1]. In cases where the Employer and the Employee agree in the LC on salary payment through transfer, the Employer will has the right to request the Employee to provide more information on his or her personal account in order to make payment.
Pursuant to the Law on PIT, the Employer is responsible for deducting PIT from the Employee’s salary to pay to the competent tax authority before paying the Employee[1]. Therefore, in order to deduct PIT, in principle, the Employee must register and provide information on his or her dependents and personal tax codes for tax reduction in accordance with the law, if applicable. However, in cases where the Employee fails to provide sufficient information on his or her dependents for PIT deduction at the time of salary payment, the Employer must still deduct an amount of PIT from the Employee’s salary without any reduction for his or her dependents to be able to pay salary to the Employee and remit PIT to the competent State agency in line with the agreement and time limit. The PIT law has covered no specific provisions on allowing the deferral of tax deduction and salary payment for the reason that the Employee fails to provide full information on his or her dependents and PIT codes.
Thus, except for the reason that the Employee has not yet provided bank account information for the Employer to pay salary, the Employer is not entitled to delay the salary payment to the Employee because the Employee has not yet provided his or her sufficient Personal Information.
Therefore, if the local labour management State agency detects any delay in paying the Employee’s salary, the Employer may be subject to administrative penalties as follows[1]:
- Between VND10,000,000 and VND20,000,000 for violations involving between 1 and 10 Employees;
- Between VND20,000,000 and VND40,000,000 for violations involving between 11 and 50 Employees;
- Between VND40,000,000 and VND60,000,000 for violations involving between 51 and 100 Employees;
- Between VND60,000,000 and VND80,000,000 for violations involving between 101 and 300 Employees; or
- Between VND80,000,000 and VND100,000,000 for violations involving 301 Employees or more.
In addition, the Employer is obliged to pay the Employee full salary plus interest on the insufficient and/or late overtime payment calculated at the highest interest rate of demand deposits of the commercial banks announced at the time of imposing penalties on the offence.
[1]Article 94.1 of the Labour Code
[2] Article 97.4 of the Labour Code
[3]Article 96.2 of the Labour Code
[4]Article 25 of Circular 111/2013/TT-BTC of the Ministry of Finance dated 15/08/2013 and Article 20.1 of Circular 92/2015/TT-BTC of the Ministry of Finance dated 15/06/2015
[5]Articles 5.1, 16.2 and 16.5 of Decree 28/2020/NĐ–CP dated 01/03/2020
