On December 14, 2020, the Government issued Decree 145/2020 / ND-CP guiding the Labor Code on working conditions and labor relations (“Decree 145“). In which, there are many new regulations that Employees and Employers need to consider.
One of which is stipulated in labor regulation, detailed guidelines for Article 118 of the Labor Code in 2019, as follows:
– First, the employer must issue the labor regulations:
+ If 10 or more employees are employed, the labor regulations must be in writing;
+ If employing less than 10 employees, it is not required to issue a written labor rule, but must agree on the content of the labor discipline and material responsibility in the labor contract.
The Labor Code 2012, in Clause 1, Article 119 only stipulates: “The employer who employs 10 or more employees must have a written labor regulation.”
– Secondly, to add provisions on the basic contents that a labor regulation must have, specifically:
(1) Working time, rest time;
(2) Order at work;
(3) Occupational safety and sanitation at the workplace;
(4) Preventing and combating sexual harassment at the workplace; the order and procedures for handling sexual harassment at the workplace;
(5) Protection of assets and business secrets, technology secrets, and intellectual property of employers;
(6) In case of temporarily transferring the employee to work other than the labor contract;
(7) Acts of violation of labor discipline of the employee and forms of labor discipline;
(8) Material responsibility
(9) Persons competent to handle labor discipline
Items (4), (6) and (9) are the additional contents that are the basic contents that a labor regulation must have.
– Third, the works before and after the promulgation / amendment of the labor regulations:
+ Before issuing the labor regulations or amending and supplementing the labor regulations, the employer must consult with the representative organization of the employee at the grassroots level, for the workers at the facility. The consultation with the representative organizations of workers at the grassroots level shall comply with the provisions of Clause 1, Article 41 of Decree 145.
+ Labor regulations, after being issued, must be sent to each employee representative organization at the grassroots level (if any) and notified to all employees, and the main contents must be posted in necessary places at work.
+ In addition to detailed guidance in Decree 145, in Clause 4, Article 119 of the Labor Code 2019, there is also a provision related to the registration of the labor regulations, whereby: For branches, units, and production and business establishments located in many different geographical areas, the registered labor regulations shall be sent to the labor-specialized agency of the People’s Committee of the province where branches, units, and production and business establishments is located.
The above are some noteworthy new points related to the labor regulations under the new labor law, guided in Decree 145. Decree 145 takes effect from February 1, 2021.
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On December 14, 2020, the Government issued Decree 145/2020 / ND-CP guiding the Labor Code on working conditions and labor relations (“Decree 145“). In which, there are many new regulations that Employees and Employers need to consider.
One of them is the regulation on the order of handling the labor discipline, specifically as follows:
Decree 145 was born with some different adjustment contents compared to the provisions in Clause 12, Article 1 of Decree 148/2018/ND-CP on the process of handling labor discipline, specifically, the process of labor discipline will be conducted according to a 5-step process as follows:
(Legal basis: Article 70 + 71 Decree 145/2020/ND-CP)
Step 1: Employer make minutes of violation and notify relevant entities:
+ Case 1: Detecting at the time of violation: The employer makes a minute of violation => Notifies the grassroots trade union that the employee is a member; The employee’s legal representative is under 15 years old.
+ Case 2: Discovered after the time of violation: The employer does not make a minute of violation, the employer collects evidence proving the employee’s fault.
Step 2: Notice of the meeting on labor discipline:
+ Subject must receive the notice: Employee; The employee representative organization at the grassroots level where the employee is being disciplined is a member; Lawyers or advocacy representative organizations; For persons under 15 years old, there must be the participation of the legal representative.
+ Form of notice: The law does not specify the form of notification, but must ensure that all parties receive the notice before the meeting;
+ Content of notice: Content; Time; Place; The person is disciplined labor; The violation is subject to labor discipline.
+ Time limit for notification: At least 05 working days before the date of the meeting to handle the labor discipline.
Step 3: Check attendance confirmation and conduct a meeting on labor discipline
Subjects receiving notice must confirm their ability to attend the meeting:
+ Case 1: Unable to attend according to the notice => Negotiable with the employer, if the parties can not reach an agreement, the employer decides.
+ Case 2: Confirming attendance but absent or not confirming participation, the disciplinary meeting will be held.
Step 4: Meeting content
+ The content of the meeting to handle the labor discipline must be made in minutes, approved before the end of the meeting and signed by the meeting participant.
+ In case someone does not sign the record, the person making the record shall clearly state full name and reason for not signing (if any) in the content of the record.
Step 5: Make a disciplinary decision
+ Time limit for promulgation: The decision to handle the labor discipline must be issued within the period of the statute of limitations for handling the labor discipline.
+ Sending disciplinary decisions: The decisions on labor discipline must be sent to: Employees; The employee representative organization at the grassroots level where the employee is being disciplined is a member; Lawyers or advocacy representative organizations; For persons under 15 years old, there must be the participation of the legal representative.
Above is the process of labor discipline stipulated in Decree 145. Decree 145 days effective from February 1, 2021.
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On December 14, 2020, the Government issued Decree 145/2020 / ND-CP guiding the Labor Code on working conditions and labor relations (“Decree 145”). In which, there are many new regulations that Employees and Employers need to consider.
One of them is the salary basis to pay for the days the employee has not taken leave, as follows:
The employee, due to resignation, job loss or other reasons, has not taken annual leave or has not taken all the annual leave days, shall be paid in cash for these days. The salary basis to pay for the days the employee has not taken leave = Salary basis (:) The number of normal working days of the preceding month (X) the number of days has not been off or have not finished.
– According to Article 114 of the Labor Code 2012, detailed in Clause 3 and Clause 4 of Decree 05/2015/ND-CP, the salary basis for the employees’ days without leave is determined as follows:
The salary basis:
+ For the employee who has worked for 06 months or more: Is the average salary under the labor contract of the preceding 06 months before the employee resigns or loses his job or before the employer calculation of paying in cash for the unpaid annual days;
+ For employees who have worked under 06 months: Is the average salary under the labor contract of the whole working time.
– According to Article 113 of the Labor Code 2019, detailed in Article 66 and Clause 3, Article 67 of Decree 145, the calculation of salary for the employees’ unpaid days is determined as follows:
The salary basis: Is the salary under the labor contract of the month preceding the month the employee resigns or loses his job.
The above is the change in the salary basis to pay for the employee’s days without leave is specified in Decree 145. Decree 145 takes effect from February 1, 2021.
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On December 14, 2020, the Government issued Decree 145/2020/ND-CP guiding the Labor Code on working conditions and labor relations. Accordingly, this Decree provides for the labor sublease, including the conditions for the grant of a labor outsourcing license.
Labor sublease operation license means a permit granted by the President of the People’s Committee of the province where the enterprise is headquartered to an enterprise established in accordance with the Law on Enterprises to conduct labor outsourcing.
Accordingly, enterprises that are entitled to labor outsourcing must satisfy the following conditions to be granted a license:
After being licensed, the labor leasing enterprise will be able to recruit, sign a labor contract with the employee, then transfer the employee to work and be subject to the direction of another employer, but still maintain the labor relationship with the enterprise that has entered into the labor contract.
This Decree takes effect from February 1, 2021.
On December 14, 2020, the Government issued Decree 145/2020/ND-CP guiding the Labor Code on working conditions and labor relations. Accordingly, this Decree provides for the rights, obligations and interests of the parties when the Labor Contract is invalidated as follows:
In case the salary under the invalidated employment contract is lower than the minimum salary prescribed by labor laws or the effective collective bargaining agreement, both parties shall negotiate the salary to ensure conformity with regulations. The employer shall pay the difference between the initial salary and the re-negotiated salary for the actual work period under the invalidated employment contract.
This Decree takes effect from February 1, 2021.
On December 14, 2020, the Government issued Decree 145/2020/ND-CP guiding the Labor Code on working conditions and labor relations. Accordingly, this Decree provides for the settlement upon invalidation of labor contracts as follows:
This Decree takes effect from February 1, 2021.
On June 17, 2020, the Law on Enterprise 2020 was passed by the National Assembly to replace the Law on Enterprise 2014, effective from January 1, 2021.
One of the typical points in the Law on Enterprise 2020 is the regulation on the legal representative. Specifically as follows:
– As prescribed in Clause 2 Article 13 of the Law on Enterprises 2014: “A limited liability company or joint-stock company may have one or multiple legal representatives. The quantity, titles, rights and obligations of legal representative of the enterprise shall be specified in the company’s charter.”
– As regulated in Clause 2 Article 12 of the Law on Enterprises 2020: “A limited liability company and a joint-stock company may have one or more legal representatives. The company’s charter specifies the number, managerial position and rights and obligations of the enterprise’s legal representative. If the company has more than one legal representative, the company’s charter specifies rights and obligations of each legal representative. In case the division of rights and obligations of each legal representative is not clearly specified in the company’s charter, each legal representative of the company will be the authorized representative of the enterprise to the party third; All legal representatives are jointly liable for any damage caused to the enterprise in accordance with the civil law and other relevant laws. ”
Thus, it can be seen that the Law on Enterprise 2020 has more specific provisions in the following points:
+ If the company has more than one legal representative, the company’s charter specifies rights and obligations of each legal representative.
+ In case the division of rights and obligations of each legal representative is not clearly specified in the company’s charter, each legal representative of the company will be the authorized representative of the enterprise to the party third;
+ All legal representatives are jointly liable for any damage caused to the enterprise in accordance with the civil law and other relevant laws.
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On June 17, 2020, the Law on Enterprise 2020 was passed by the National Assembly to replace the Law on Enterprise 2014, effective from January 1, 2021.
One of the typical points in the Law on Enterprise 2020 is the regulation: The Controller is no longer a title in The Organizational structure of a single-member limited liability company owned by an organization. Specifically as follows:
– According to the provisions of Clause 1, Article 78 of the Law on Enterprises 2020, a single-member limited liability company owned by an organization shall apply one of the two models below:
+ A company with a President and the Director/General Director;
+ A company with a Board of Members and the Director/General Director.
– Previously, according to Clause 1 Article 78 of the Law on Enterprises 2014, a single-member limited liability company owned by an organization shall apply one of the two models below:
+ A company with a President and the Director/General Director and The Controller;
+ A company with a Board of Members and the Director/General Director and The Controller.
Thus, from January 1, 2021 onwards, the title of Controller does not exist in The Organizational structure of a single-member limited liability company owned by an organization, this is considered a positive change by The controller’s role is not important in a Company that is not a state-owned enterprise.
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On June 17, 2020, the Law on Enterprise 2020 was passed by the National Assembly to replace the Law on Enterprise 2014, effective from January 1, 2021.
Some of the typical points in the Law on Enterprise 2020 are the provisions in the reduction of administrative procedures. Specifically, as follows:
According to Clause 2 Article 44 of the Law on Enterprises 2014: Before using the seal, the enterprise must send the seal design to the business registration authority in order for the business registration authority to post it on the National Business Registration Portal. In Article 43 of the Law on Enterprises 2020, this provision is removed.
In addition, the Law on Enterprises 2020 also recognizes a number of new points related to the seal of the enterprise, specifically as follows:
+ Record the form of digital signature seal in accordance with the law on electronic transactions.
+ The law does not stipulate what the sign must show (in the past, the name and code of the enterprise was required). Accordingly, the enterprise decides on its own: Type of seal, quantity, form and content of the seal of the enterprise, branch, representative office and other units of the enterprise.
+ The management and storage of the seal: Due to the company’s charter or the regulations stamped by the enterprise, branch, representative office or other unit of the enterprise. (Previously only recorded the charter).
However, there are shortcomings in Article 43 of the Law on Enterprises 2020: It is not clear how to determine the seal of the enterprise if there is no public database on the seal sample.
2. The enterprise is not required to notify the Business Registration Authority of changes related to the company’s manager
Removing Article 12 of the Law on Enterprises 2014, specifically, previously stated: The enterprise must notify the business registration authority of the changes to the name, address, nationality, ID number, passport number or other ID papers of the following persons within 05 days from the day on which such changes are made:
+ Members of the Board of Directors of the joint-stock company;
+ Members of the Control Board or controllers;
+ The Director or General Director.
In summary, since 2000 up to now, Vietnam has had 04 versions of the Law on Enterprise (the Law on Enterprise 1999; the Law on Enterprise 2005; the Law on Enterprise 2014; the Law on Enterprise 2020). The change can be viewed from many different perspectives, both positive and negative. However, one thing is for sure, the introduction of the Law on Enterprise 2020 more or less will affect the investment and business situation of enterprises in Vietnam.
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