Question 58. If an Employer violates the regulations on overtime, does the agency responsible for dealing with offenses rely on overtime hours in the following cases: (i) exceeding 50% of normal working hours/day; or (ii) exceeding 40 hours/month; or (iii) exceeding 200 hours/year for setting out a specific administrative penalty? Is the Employer required to arrange a medical check-up for the Employee after excessive overtime?

Answer:

Pursuant to the labour law, the Employer must ensure that the overtime hours of any Employee are as follows[1]:

  • No more than 50% of normal working hours/day, in case of applying weekly working regulations, the total number of normal working hours and overtime must not exceed 12 hours/ day; in case of part-time employment, the normal working hours plus overtime hours must not exceed 12 hours/day;
  • No more than 12 hours/day in case of overtime working on public holidays, Tet holidays and weekends;
  • Not exceeding 40 hours/month; and
  • Total number of hours not exceeding 200 hours/year, for some special cases stipulated by the Government, the Employee can work overtime but not exceeding 300 hours/year.

Accordingly, the conditions on overtime hours must be obeyed by the Employer at the same time. Failure to comply with any of the said conditions is a violation of labour law on overtime working. For example, the Employee’s daily working time is 08 hours. When requesting the Employee to work overtime, the Employer must ensure that the overtime hours of the Employee does not exceed 04 hours/ day and the total number of overtime hours in the same month must not exceed 40 hours. 

In cases where the Employee is mobilised to work overtime in excess of the prescribed number of hours, the Employer may be subject to a fine of between VND40,000,000 and VND50,000,000[2]. Rather than imposing penalty levels, the competent authority will rely on the said penalty levels and additional sanctions for dealing with in case of finding that the Employer has breached the regulation on overtime working.

The labour law does not cover any other regulation that the Employer must take the Employee to a medical consultation after a period of continuous overtime. Instead, the Employer is only required to hold annual health checks for the Employee[3]. However, in order to ensure the health of the Employee after each period of overtime working, labour law encourages the Employer to hold a medical check-up for the Employee who has worked overtime[4].

[1]Article 107.2 of the Labour Code and Article 60 of Decree 145/2020/NĐ-CP dated 14/12/2020

[2]Articles 5.1 and 17.3(a) of Decree 28/2020/NĐ-CP dated 01/3/2020 

[3]Article 21.1 of the Law on Labour Safety and Hygiene 

[4]Article 4.1 of the Labour Code