Answer:
- What are the applicable entities of the Labour Code?
According to Article 2 of the Labour Code, the applicable entities of the Labour Code include:
| Vietnamese Employee[1] | : | – Employee being of full the age of 18 and over; – Employee being of full the age of 15 but under 18 years of age who have his or her legal representatives’ written consents; and – Employee being under 15 years of age and his or her legal representatives; and – The Employee who is capable of working under the LC, get paid and are subject to the Employer’s management. |
| Employee in apprenticeship[2] | : | – An Apprentice whom the Employer recruited for vocational training in the workplace; – A trainee whom the Employer recruited for practically guiding for a particular work or job at workplaces; – Apprentices and trainees must be aged a full 14 years or more and must have health adequate for the requirements of jobs; For jobs on the list of heavy, hazardous, toxic or dangerous jobs or extremely heavy, toxic and dangerous jobs issued by the MOLISA must be aged a full 18 years or more except in the sectors of the arts, physical training and sports. |
| Workers without labour relationships[3] | : | A person who works not on the basis of being hired via a labour contract. |
| Employer [4] | : | An enterprise, agency, organisation, co-operative, household business or individual who hires, employs a worker pursuant to an agreement; if an Employer is an individual, then he or she must have full legal capacity for civil acts. |
| Employee being a foreigner working in Vietnam | : | Employee being a foreign citizen in Vietnam with the forms prescribed at Article 2.1 of Decree No. 152/2020/ND-CP of the Government dated 31 December 2020. |
| Other agencies, organisations and individuals directly involved in the labour relationship | : | A labour management State agency, individual: DOLISA, MOLISA, People’s Courts of all levels, Chairpersons of the Provincial Peoples’ Committees, etc. and other State agencies, organisations. |
2. Which legal relationships are governed by the labour law? Is a valid LC a compulsory precondition for an employment relationship between parties?
The Labour Code prescribes the rights, obligations and responsibilities of the Employer and the Employee in the employment relationship, specifically the relationship arising from hiring, employment and salary payment between the Employer and the Employee, and other relationships directly related to the employment relationship. Other than the relationships established in the LC, the Labour Code also governs the relationships which arise in the course of training, apprenticeship, off-the-job training[5], and the probationary period[6]. For foreigners working in Vietnam, only the form of working to execute a LC requires the parties to enter into a LC. The LC is not required for other forms of working performed by foreigners in Vietnam (e.g. internal secondment, or to execute economic, commercial and service contracts). Accordingly, a LC is not a precondition required for every employment circumstance.
Particularly, according to Article 13 of the Labour Code, a LC is an agreement between an Employee and an Employer on a paid job, salary, working conditions, rights and obligations of each party in the employment relationship. Besides, the Labour Code also governs the relationships which arise in the course of apprenticeship. Therefore, referring to the LC to fully determine the employment relationships between the Employer and the Employee is not enough, but it is necessary to consider other employment relationships that have arisen before the LC is entered into, such as probationary contracts, and training contracts in the apprenticeship, not to mention the case the Employees are foreigners. It is impossible to rely only on the LC to determine the employment relationships because signing the LCs with the foreign Employees who have obtained work permits is only required in cases where foreign Employees work in Vietnam in the form of LC execution[7].
[1] Articles 3.1 and 18.4 of the Labour Code.
[2] Article 61 of the Labour Code.
[3] Article 3.6 of the Labour Code.
[4] Articles 3.2 and 18.3 of the Labour Code.
[5] Articles 59, 61 and 62 of the Labour Code.
[6] Article 24 of the Labour Code.
[7]Article 2.1 (a) of the Decree No. 152/20202/ND-CP of the Government dated 31/12/2020.
