Answer:
1. Must the Employer pay salary to the Employee for the period when the Employee is sent for studying and training abroad?
The costs of vocational training provided by the Labour Code are one of the compulsory provisions of the training contract[1]. Accordingly, such costs will include the expenses evidenced by valid documentation regarding tuition, study materials, schools, machines, equipment, practice materials and other expenses in support of learners; salaries, social and health insurance payments for learners during their overseas study and transport and living expenses during their stay abroad[2]. Working hours, rest periods, labour safety and hygiene and the time for meeting, study and training required by the Employer will also be calculated as the paid working time without restriction on the length of study time[3]. Therefore, in this case, the time which the Employee to be sent abroad for training will be calculated as working time, which serves as the basis for enjoying his or her salary.
2. Will the basis for calculating salary for the Employee during his or her study and training abroad be calculated according to working days of foreign countries or Vietnam?
The current Vietnamese labour law only regulates generally the Employer’s obligation to pay salary without specifically indicating how to calculate salary for the Employee during his or her overseas training. In addition, the Law on vocational education stipulates that when it is the Employer’s responsibility for sending the Employee for training, the salary paid to the Employee during study will be agreed upon by the Employer and the Employee in accordance with the law[4]. Thus, during the time of training abroad, the working hours for calculating salary as well as the Employee’ salary level will be mainly agreed upon by the parties.
For similar cases in the prevailing practice, after consultation with the DOLIS’s specialists of Ho Chi Minh City, the calculation of the Employee’s salary during training abroad will be based on the Vietnamese law and the current LC between the Employer and the Employee. Thus, the working hours, rest periods, holidays and Tet holidays will still be applied pursuant to the Labour Code.
It can be inferred that in this case, the Employee’s salary will be paid 100% as agreed by the parties in the signed LC. For holidays and Tet holidays prescribed by Vietnamese law and lying within the time of the Employee’s overseas study, the Employer must pay the Employee extra salary (at least 300%)[5]. Particularly for the days when the Employee is relieved of working abroad while according to the Vietnamese law, they are normal working days, the Employer must still pay the Employee’s salary during those days because the Employee’s rest period is within the plan and schedule of training the Employer has arranged and required the Employee to participate in.
However, in some one-on-one exchanges, DOLISA’s specialists made some comments quite in favour of the Employer with regard to the aforesaid issues. Specifically, if the Employee must study abroad on the same day as public holidays or Tet holidays in accordance with Vietnamese law, the Employer must not still pay overtime salary as the Labour Code. On the contrary, if the Employee is allowed to be absent from study abroad on the days as normal working days in accordance with the Vietnamese law, the Employer must still pay salary to the Employee as usual.
Thus, regarding the issue that the Employee is sent abroad for training as required by the Employer via training contracts where the Employee does not participate in making products (including goods/services distributed on the market) during his or her training abroad, in order to ensure uniformity of the rights and obligations of the parties during the Employee’s training and avoid potential disputes, the Employer should agree clearly and concretely on the issues included in the training contract.
[1]Article 62.2 of the Labour Code
[2]Article 62.3 of the Labour Code
[3]Article 58.6 of Decree 145/2020/ND-CP dated 14/12/2020 of the Government
[4]Article 43.6 of Decree 15/2019/ND-CP dated 15/5/2015 of the Government
[5]Article 98.1 (c) of the Labour Code
