Clarification on Contract Signing with Public Employees

Mr. Tuyen graduated from a Professional Intermediate School for Marine Machinery and holds a 2nd Class Chief Engineer certificate for inland waterway vehicles. In 2002, he worked at the Dredging and Waterway Construction Company I. Since April 2006, he has transferred to work at the Technical Worker Training School for Waterways, which has now merged into the Waterway Transport Vocational College I.

Mr. Tuyen's recruitment process at the school is as follows:

- Signed a 3-month probationary labor contract (from April 17, 2006, to June 30, 2006)

- Signed a fixed-term labor contract (from July 01, 2006, to June 30, 2007)

- Signed a fixed-term labor contract (from July 01, 2007, to June 30, 2008)

- Signed a fixed-term labor contract (from July 01, 2008, to June 30, 2009)

- Signed a fixed-term employment contract (from July 01, 2009, to June 30, 2010)

- Signed a fixed-term employment contract (from July 01, 2010, to June 30, 2011) and extended by 1 month

- Signed a fixed-term labor contract (from August 01, 2011, to July 31, 2012)

On June 26, 2012, Mr. Tuyen received a Notice of termination of labor contract from the Waterway Transport Vocational College I. Mr. Tuyen is concerned if the need to renew labor contracts annually is conformable and how the transition from labor contracts to employment contracts and back to labor contracts was handled.

Additionally, Mr. Tuyen questions whether the school's notification of terminating his labor contract is correct and whether he can continue to be recruited as a public employee at the Waterway Transport Vocational College I. What is the proper way to handle this in accordance with the Law on Public Employees?

Lawyer Tran Van Toan from Khanh Hung Law Office - Hanoi Bar Association addresses Mr. Tuyen’s questions as follows:

Types of Employment Contracts for Public Employees

Prior to January 1, 2012, the recruitment, utilization, and management of public employees at public service providers were stipulated in Article 15 of Decree 116/2003/ND-CP dated October 10, 2003, of the Government of Vietnam, which was amended and supplemented by Clause 4, Article 1 of Decree 121/2006/ND-CP dated October 23, 2006, specifying types of employment contracts for public employees in public service providers as follows:

- The initial employment contract has a duration equal to the probation period corresponding to each type of public employee. If requirements are met during the probation period, the managing agency or unit signs a subsequent employment contract for a fixed-term period from 12 months to 36 months, an indefinite term contract, or a special contract.

- The first employment contract applies to those recruited during the probation period.

- Fixed-term employment contracts apply to those who meet requirements after the probation period.

- Indefinite term employment contracts apply to those who have consecutively signed two fixed-term employment contracts.

Currently, according to Article 25 of the Law on Public Employees 2010, effective from January 1, 2012, employment contracts for public employees include:

- A fixed-term employment contract is a contract in which both parties determine the duration and the time of termination of the contract within a period ranging from 12 months to 36 months. A fixed-term employment contract is applicable to those who are successfully recruited as public employees, except for officials transitioning to public employees.

- An indefinite term employment contract is a contract in which both parties do not determine the duration and the time of termination of the contract. An indefinite term employment contract applies to those who have completed a fixed-term employment contract and to officials transitioning to public employees.

Certain Jobs Applicable to Labor Contracts

Article 1 of Decree 68/2000/ND-CP dated November 17, 2000, of the Government of Vietnam stipulates the implementation of policies for contracting certain types of work at state administrative agencies and public service providers as follows: Maintenance and repair work for electrical, water supply, and drainage systems at offices, automobiles, and other machinery and equipment currently used in agencies and public service providers; Driving; Security; Cleaning; Vehicle parking for officials and guests working with agencies and public service providers; Other jobs such as collective cooking, minor services, carpentry, manicure, caring, and protecting landscapes in agencies, organizations, units, etc.

Per the above regulations, the job position, professional title of the public employee, or the job position and types of service work at public service providers determine the applicability of employment contracts or labor contracts when concluding contracts.

For Mr. Trinh Khac Tuyen currently working at the Waterway Transport Vocational College I, the information provided does not detail the job position and the duties performed at the school throughout different periods. However, if the contracts the school has signed reflect accurate appellations, this indicates Mr. Tuyen's employment at this public service provider can be divided into two phases corresponding to the relevant jobs and contract titles as follows:

- During the phase Mr. Tuyen was recruited for one of the jobs listed in Article 1 of Decree 68/2000/ND-CP: On July 1, 2006, he signed his first fixed-term labor contract of one year. On July 1, 2007, he signed his second one-year fixed-term labor contract. On July 1, 2008, he signed his third one-year fixed-term labor contract.

According to Clause 2, Article 27 of the Labor Code, if both parties sign a new fixed-term labor contract, it can only be extended once more; thereafter, if the employee continues to work, an indefinite-term labor contract must be signed.

According to the lawyer, if the provision in Clause 2, Article 27 of the Labor Code is followed properly, from the contract signed on July 1, 2008, the unit should transition to an indefinite-term labor contract, making it unnecessary for both parties to continue signing labor contracts. However, on July 1, 2009, Mr. Tuyen was recruited as a public employee, and both parties agreed to sign an employment contract. The labor contract signed on July 1, 2008, terminated from the moment he signed the employment contract.

- During the phase Mr. Tuyen was recruited into the job position and professional title of a public employee: On July 1, 2009, the unit signed the first one-year fixed-term employment contract with Mr. Tuyen. Subsequently, on July 1, 2010, they signed the second one-year fixed-term employment contract (and extended it by one month).

According to Point c, Clause 2, Article 15 of Decree 116/2003/ND-CP, as revised by Clause 4, Article 1 of Decree 121/2006/ND-CP, by August 1, 2011, if the school still required the position and headcount for Mr. Tuyen's job, they should have signed an indefinite term employment contract with him, but instead, they signed a contract termed as a labor contract. According to the lawyer, if after August 1, 2011, Mr. Tuyen continued working in the same job position and professional title as a public employee as fit over the previous two employment contracts, the change in title from employment contract to labor contract did not alter the nature or content of the employment contracts. The contract the school signed with Mr. Tuyen on August 1, 2011, although termed differently, was essentially an employment contract for a public employee, which by regulation should be an indefinite term employment contract, i.e., without a defined end date.

Based on Clause 2, Article 59 of the Law on Public Employees 2010, since January 1, 2012, Mr. Tuyen continues to execute the employment contract signed with the school on August 1, 2011, and this employment contract does not have a set end date.

The school can only unilaterally terminate Mr. Tuyen’s employment contract if there is a valid basis as per Clause 1, Article 29 of the Law on Public Employees.

According to the E-Government Portal of the Government of Vietnam

>> CLICK HERE TO READ THIS ARTICLE IN VIETNAMESE