Answer:
Regardless of internships or vocational training, interns and vocational trainees are allowed to work in the workplaces of the Employer. However, most of the legal issues related to these two subjects are different.
- Internship agreement
On the basis of the Labour Code, there is no specific regulation on internships at the workplaces of the enterprise. However, according to Article 12.6 of the Law on Higher Education and Article 97 of the Law on Education, in general, the enterprise is entitled to provide students studying at universities with an internship at their workplaces and create satisfactory conditions for their practice, do scientific research to improve the quality of education. In other words, the enterprise has the right to support interns to put into practice knowledge that such interns have learned at universities other than vocational training so that they can be employed by the enterprise after internships.
For this reason, if an Employer provides an internship as mentioned above, that internship will be adjusted by the Law on Higher Education and the Education Law instead of the Labour Code. Accordingly, the Employer can provide an internship for a reasonable duration that is agreed between the Employer and the interns and specified as an internship agreement in writing. Please note that the Employer has no statutory obligation to accept interns to work officially upon the end of the internship.
Regarding regimes and benefits of interns during internships, there is no provision in the Education Law that obliges the enterprise to pay benefits for interns during his or her internship at the enterprise. Therefore, an Employer, in its business capacity, may consider providing interns with a reasonable benefit such as lunches, parking, gas, and telephone charges, etc. In fact, to avoid any doubt, the rights and obligations of parties during an internship must be specified in internship agreements. To be more precise, parties must agree on: internship term, work, benefits (meals, accommodation, travel, etc. allowances). Moreover, the Employer may also consider purchasing accident insurance for interns if threats are arising from jobs undertaken by such interns.
2. Vocational training contract
In addition to the internship regime in accordance with the Law on Higher Education and the Education Law as above-mentioned, according to the Labour Code, the Employer also has the right to recruit the Employee for vocational training at the workplaces. During the period of vocational training, the Employer, apprentices, and trainees must sign a vocational training contract with main contents as specified in Article 62 of the Labour Code. Specifically, mandatory contents include: training profession; training location, training duration and wages; training costs; the duration that the Employee commits to work for the Employer after being trained; and responsibilities to reimburse training costs and obligations of the Employer and the Employee.
Thus, the Employer can only recruit apprentices and trainees to work for the enterprise in the form of a vocational training contract, but not in the form of an internship contract because the Labour Code does not have any provisions about entering into such internship contracts.
In respect of the regimes and benefits of apprentices and trainees, during vocational training, the Employer should be noted as follows:
- Apprenticeship period: The Labour Code prescribes that an apprenticeship period will depend on the training program of each level according to the Law on Vocational Education. And a traineeship period does not exceed 03 months.
- Wage during vocational training:
- – According to Article 61.5 of the Labour Code, depending on the performance of apprentices, trainees during the period of vocational training, the Employer must pay them a reasonable wage rate on the basis of the agreement between the parties;
- – Although parties are allowed to agree on the pay rate under the Labour Code, to avoid legal risks where apprentices or trainees claim the enterprise on the salary rate they received, the Employer should consider paying them a salary at least 7% higher than the regional minimum wage rate set by the Government (because these jobs can be considered trained workers, vocational training from self-employed enterprises vocational training as prescribed in Article 5.1 of the Government’s Decree 90/2019 / ND-CP); and
- – Please note that apart from the salary of apprentices, and trainees during the vocational training periods that Employer may have to pay as mentioned above, the Labour Code does not have any specific provisions on the Employer’ responsibilities to provide other allowances for apprentices and trainees. Therefore, regarding other expenses such as travel expenses, housing costs of apprentices and trainees, the Employer can consider and make decisions to support them further if these allowances are deemed reasonable, necessary and fit the financial situation of the enterprise.
- Annual leave
- – Article 113 of the Labour Code prescribes that: “Any Employee who has full 12 months working for the Employer is entitled to annual leave with full salary”. Therefore, if the Employee has been working for less than 12 months, the annual leave of the Employee will be calculated in proportion to the number of working hours as agreed. Thus, the Employee is entitled to take annual leave after they officially entered into a LC with the Employer;
- – For the above reason, apprentices, and trainees who have to undergo vocational training before entering into the LC (if they fully meet the work conditions required by the Employer) will not be eligible for the annual leave during his or her vocational training. However, after being officially recruited to work for the enterprise, his or her vocational training periods will still be included in the working time for the enterprise as a basis for calculating his or her annual leave.
- Compulsory insurance:
- – Similar to the principle of annual leave, in accordance with Article 2.1 of the Law on Social Insurance, Article 43.1 of the Law on Employment and Article 12.1 of the Law on Health Insurance 2008 amended and supplemented in 2014, only when apprentices and trainees enter into a LC with an Employer, they will be required to participate in all kinds of compulsory insurance. Accordingly, because apprentices and trainees are not subject to compulsory insurance, the Employer will not be obliged to pay compulsory insurance for them during the vocational training period; and
- – The Employer is also not obliged to pay apprentices and trainees an amount equivalent to the rate of compulsory insurance as prescribed in Article 168.3 of the Labour Code at the time the salaries are paid because this clause applies for those who are already the Employees of the enterprise but not subject to compulsory insurance under the Law on Social Insurance.
After finishing the vocational training periods in accordance with the Labour Code, the Employer and apprentices, or trainees must enter into the LC when meeting the required conditions. However, the Labour Code does not provide for the case that an apprentice or a trainee does not meet job requirements at the end of the vocational training period, whether the Employer can extend the period or not. In fact, labour authorities are fairly strict in this case because they are often afraid that the Employer will abuse this to prolong apprenticeship, traineeship before signing official LC with the Employee. Accordingly, the Employer is required to sign the LC with apprentices or trainees instead of extending the vocational training periods. Therefore, the Employer needs to consider carefully before entering into apprenticeship and traineeship contracts with apprentices and trainees.
2.1 Does the enterprise have to register for vocational training activities when entering into vocational training contracts?
According to Article 61.3 of the Labour Code, the Employer who recruits people into the vocational training periods to work for the enterprise is not required to register for vocational training activities but cannot collect tuition fees.
2.2 Is the enterprise required to comply with the requirements of the instructor’s curriculum and certification accordance with the Law on Vocational Education?
Regarding the requirements (such as vocational curriculum, instructor’s certification, commitment to vocational training results) of the enterprise providing vocational training for apprentices and trainees, the Labour Code does not have regulations on the same. Meanwhile, the Law on Vocational Education 2014 has some requirements for the enterprise that carries out “vocational training” activities, and one of the requirements is that enterprise must have an education and training plan, curriculum, teaching and learning materials, the contingent of vocational teachers and vocational education administrators must meet professional standards, sufficient in quantity and synchronise.
Accordingly, the above requirements should be construed as applicable only to the enterprise doing business specialising in vocational training (such as vocational training centers, vocational secondary schools, vocational colleges) for the purpose of training apprentices and trainees so that they can find jobs, create jobs or continue to study at higher levels after vocational training periods end. With this purpose, the new law sets forth the above requirements to control the quality of vocational training of that enterprise. However, in order to achieve the best results for vocational training, the enterprise should also refer to the Law on Vocational Education to develop vocational training programs suitable to the specifics of the enterprise.
