Tiếng Việt
Table of Contents
1. What is a employment contract? How many types of employment contracts are there?
2. Is a employment contract required to be in written form?
3. What will the law do if a employment contract is not signed?
1. What is a employment contract? How many types of employment contracts are there?
According to Clause 1, Article 13 of the 2019 Labor Code, “1. An employment contract is an agreement between a worker and employer about remunerated work, wages, working conditions and the rights and obligations of each party to the labour relations.”
Currently, according to Article 20 of the 2019 Labor Code, the types of labor contracts are stipulated as follows:
“Article 20. Types of employment contract
1. Employment contracts must be concluded according to one of the following types:
a) An indefinite term employment contract, which is a contract in which the two parties do not specify the term of the contract or the time at which it terminates.
b) A definite term employment contract, which is a contract in which the two parties specify the term of the contract and the time at which it terminates, which will be no later than 36 months from when the contract comes into force.
2. Where an employment contract as stipulated in point b, Clause 1 of this Article expires and the worker continues to work, the following conditions apply:
a) Within 30 days from the date of expiration of the employment contract, the two parties must conclude a new employment contract. Prior to the signing of the new employment contract, the rights, obligations and interests of both parties as prescribed in the expired contract shall be maintained.
b) If no new employment contract is entered into within 30 days from the date of expiration of the contract, the contract concluded according to point b, Clause 1 of this Article shall become an indefinite term employment contract.
c) Where the two parties conclude a new employment contract with a definite term, only 01 additional definite-term employment contract may be signed. After that, if the worker continues to work, an indefinite term employment contract must be signed, except in the case of individuals employed as directors of State-Owned Enterprises and other cases stipulated in Clause 1 of Article 149, Clause 2 of Article 151 and Clause 4 of Article 177 of this Code.”
Based on the above provisions, there are 2 types of labor contracts as follows:
– Indefinite-term employment contract: A contract in which the two parties do not specify the term of the contract or the time at which it terminates.
– Definite term employment contract: A contract in which the two parties specify the term of the contract and the time at which it terminates, which will be no later than 36 months from when the contract comes into force.
2. Is a employment contract required to be in written form?
According to Article 14 of the 2019 Labor Code, the form of labor contracts is stipulated as follows:
“Article 14. Forms of employment contracts
1. An employment contract must be concluded in writing and made in two copies. The worker keeps 01 copy and the employer keeps 01 copy, except in cases stipulated in Clause 2 of this Article.
An employment contract concluded through electronic means in the form of a data message in accordance with the law on electronic transactions has the same validity as a written employment contract.
2. For contracts with a duration of less than 01 month, the two parties may enter into a verbal employment contract, except in cases stipulated in Clause 2 of Article 18; point a, Clause 1 of Article 145; and Clause 1 of Article 162 of this Code.”
According to the above provisions, it is not mandatory to enter into a written employment contract, but depending on the case, the employee and the employer may choose to enter into a contract in 01 of 03 ways:
– In writing;
– Through electronic means in the form of data messages;
– Verbally.
A verbal employment contract is only used for contracts with a duration of less than 01 month, except for the case of entering into a contract with a domestic worker, a person under 15 years old, or a group of employees through an authorized person to do work for less than 12 months. The employment contract for domestic workers is stipulated in Article 162 of the 2019 Labor Code as follows:
“Article 162. Employment contracts for domestic workers
1. An employer must enter into a written employment contract with a domestic worker.
2. The duration of the employment contract for the domestic worker shall be agreed by both parties. Either party has the right to unilaterally terminate the employment contract at any time provided that advance notice of at least 15 days is given.
3. The form of wage payment, pay period, daily working hours and accommodation shall be agreed by both parties in the employment contract.”
Cases where a labor contract must be made in writing.
A employment contract must be concluded in writing if it falls under one of the following cases:
– Employment contracts employing employees under 15 years of age as prescribed in Point a, Clause 1, Article 145, Labor Code 2019, specifically:
“a) To enter into a written employment contract with persons who are less than 15 years of age and with their legal representatives;”
– Labor contracts with domestic workers as prescribed in Clause 1, Article 162, Labor Code 2019, specifically:
“1. An employer must enter into a written employment contract with a domestic worker.”
– Labor contracts are concluded in accordance with the provisions of Clause 2, Article 18, Labor Code 2019.
“2. For seasonal work, or certain work with a duration of less than 12 months, a group of workers who are 18 years of age or older may authorise one worker in the group to enter into an employment contract; in such cases, the employment contract must be concluded in writing and has the same validity as if it were entered into with each of the workers.
An employment contract concluded by an authorised worker must include a list that clearly states the full name, date of birth, sex, residence address and signature of each of the workers.”
– Labor contracts concluded with other employees with a term of 01 month or more as prescribed in Article 14, Labor Code 2019.
3. What will the law do if a employment contract is not signed?
Pursuant to Clause 1, Article 9 of Decree No. 12/2022/ND-CP stipulating administrative sanctions in the field of labor, social insurance, and Vietnamese workers working abroad under contracts:
“Article 9. Violations of regulations on labor contract conclusion
1. The following fines shall be imposed upon an employer for commission of one of the following violations: failing to enter into written employment contracts with employees who do jobs with a term of full 01 month or longer; failing to enter into a written employment contract with the authorized representative of the group of employees aged 18 or older to do seasonal works or certain jobs with a term of less than 12 months as prescribed in Clause 2 Article 18 of the Labour Code; failing to enter into the right type of employment contract with employees; entering into employment contracts that do not contain primary information as prescribed by law:
a) A fine ranging from VND 2.000.000 to VND 5.000.000 shall be imposed if the violation involves 01 – 10 employees;
b) A fine ranging from VND 5.000.000 to VND 10.000.000 shall be imposed if the violation involves 11 – 50 employees;
c) A fine ranging from VND 10.000.000 to VND 15.000.000 shall be imposed if the violation involves 51 – 100 employees;
d) A fine ranging from VND 15.000.000 to VND 20.000.000 shall be imposed if the violation involves 101 – 300 employees;
dd) A fine ranging from VND 20.000.000 to VND 25.000.000 shall be imposed if the violation involves 301 employees or more.”