Is an employer in Vietnam required to send a written notification of the organization of overtime work? Will penalties be imposed on employers failing to send a written notification of the organization of overtime work?
Is an employer in Vietnam required to send a written notification of the organization of overtime work?
Under Article 107 of the Labor Code 2019:
Overtime work
1. Overtime work is the duration of work performed at any other time than during normal working hours, as indicated in the law, collective bargaining agreement or internal labor regulations of an employer.
2. An employer has the right to request an employee to work overtime when all of the following conditions are met:
a) The employee agrees to work overtime;
b) The number of overtime working hours of the employee does not exceed 50% of the normal working hours in 01 day; in case of weekly work, the total normal working hours plus overtime working hours shall not exceed 12 hours in 01 day, and 40 hours in 01 month;
c) The total overtime working hours do not exceed 200 hours in 01 year, except for the cases specified in Clause 3 of this Article.
3. An employer must not request an employee to work overtime exceeding 300 hours in 01 year in the following fields, works, jobs and cases:
a) Manufacture, processing of textile, garment, footwear, electric, electronic products, processing of agricultural, forestry, aquaculture products, salt production;
b) Generation and supply of electricity, telecommunications, refinery operation; water supply and drainage;
c) Works that require highly skilled workers that are not available on the labor market at the time;
d) Urgent works that cannot be delayed due to seasonal reasons or availability of materials or products, or due to unexpected causes, bad weather, natural disasters, fire, hostility, shortage of power or raw materials, or technical issue of the production line;
dd) Other cases prescribed by the Government.
4. When organizing overtime work as prescribed in Clause 3 of this Article, the employer shall send a written notification to the provincial labor authority.
5. The Government shall elaborate this Article.
According to the above regulations, an employer has the right to request an employee to work overtime when with the employee's consent but must ensure the total overtime hours do not exceed 200 per year.
For specific sectors and jobs according to the above regulations, the total overtime hours do not exceed 300 per year.
For total overtime hours of at most 200 hours per year, the employer does not need to send a written notification of the organization of overtime work to the Department of Labor, War Invalids and Social Affairs.
However, the employer that requests employees to work overtime in specific sectors as per the above regulation must send a written notification of the organization of overtime work to the Department of Labor, War Invalids and Social Affairs.
Is an employer in Vietnam required to send a written notification of the organization of overtime work? Will penalties be imposed on employers failing to send a written notification of the organization of overtime work?
Will penalties be imposed on employers failing to send a written notification of the organization of overtime work in Vietnam?
Under Article 18 of Decree 12/2022/ND-CP:
Violations against regulations on working hours and rest periods
1. A fine ranging from VND 2.000.000 to VND 5.000.000 shall be imposed upon an employer for commission of one of the following violations:
a) Failing to grant personal leave or unpaid leave to employees in accordance with regulations of law;
b) Failing to send a written notification of organization of overtime working hours in excess of 200 hours to 300 hours in a year to the Department of Labour, War Invalids and Social Affairs of the province where such overtime works are performed and of the province where it is headquartered.
2. A fine ranging from VND 10.000.000 to VND 20.000.000 shall be imposed upon an employer for committing violations against regulations on weekly breaks or annual leave or public holidays.
3. A fine ranging from VND 20.000.000 to VND 25.000.000 shall be imposed upon an employer for commission of one of the following violations:
a) Applying normal working hours exceeding the working hours prescribed by law;
b) Mobilizing employees to work overtime without their consent, except for the cases specified in Article 108 of the Labour Code.
4. The following fines shall be imposed upon an employer for commission of one of the following violations: failing to give rest breaks during working hours or breaks between shifts to employees in accordance with regulations of law; mobilizing employees to work overtime in excess of overtime hours prescribed by law:
a) A fine ranging from VND 5.000.000 to VND 10.000.000 shall be imposed if the violation involves 01 - 10 employees;
b) A fine ranging from VND 10.000.000 to VND 20.000.000 shall be imposed if the violation involves 11 - 50 employees;
c) A fine ranging from VND 20.000.000 to VND 40.000.000 shall be imposed if the violation involves 51 - 100 employees;
d) A fine ranging from VND 40.000.000 to VND 60.000.000 shall be imposed if the violation involves 101 - 300 employees;
dd) A fine ranging from VND 60.000.000 to VND 75.000.000 shall be imposed if the violation involves 301 employees or more.
Employers failing to send a written notification of organization of overtime working hours in excess of 200 hours to 300 hours in a year to the Department of Labour, War Invalids and Social Affairs shall be administratively fined from 2,000,000 VND to 5,000,000 VND.
The above administrative fine is only applicable to individual violators. For organizational violators, the administrative fine is twice the amount for individuals.
What are the cases where an employer in Vietnam has the right to request any employee to work overtime on any day without limits on overtime hours?
According to Article 108 of the Labor Code 2019, there are two cases where an employer in Vietnam has the right to request any employee to work overtime on any day without limits on overtime hours as follows:
- Execution of a conscription order for the purpose of national security or national defense as prescribed by law;
- Performance of tasks necessary to protect human life or property of certain organizations or individuals in the prevention and recovery of natural disasters, fires, epidemics and disasters, unless those tasks threaten the employees’ health or life as prescribed by occupational safety and health laws.
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