While awaiting the signing of a new labor contract, under which labor contract is the salary calculated?
During the period of waiting to sign a new labor contract, how is the salary calculated according to which contract?
Based on Article 20 of the Labor Code 2019 stipulating the types of labor contracts as follows:
Types of labor contracts
1. A labor contract must be entered into one of the following types:
a) An indefinite term labor contract, which is a contract in which the two parties do not determine the term or the time of termination of the contract’s effect;
b) A definite term labor contract, which is a contract in which the two parties determine the term, the time of termination of the contract’s effect, which is not more than 36 months from the effective date of the contract.
2. When the labor contract specified at point b, clause 1 of this Article expires and the employee continues to work, the following shall be carried out:
a) Within 30 days from the date the labor contract expires, the two parties must sign a new labor contract; during the time of not signing a new labor contract, the rights, obligations, and interests of the two parties shall be carried out according to the signed contract;
b) If after the 30-day period from the date the labor contract expires without signing a new labor contract, the signed contract specified at point b, clause 1 of this Article shall become an indefinite term labor contract;
c) In the case of signing a new definite term labor contract, it shall be signed only one more time; thereafter, if the employee continues to work, an indefinite term labor contract must be signed, except for the labor contract for a person hired as a director in an enterprise with state capital or as specified in clause 1, Article 149, clause 2, Article 151, and clause 4, Article 177 of this Code.
Thus, during the period of not signing a new labor contract, the rights, obligations, and interests of the two parties shall be carried out according to the signed contract.
Therefore, during the period of waiting to sign a new labor contract, the salary is calculated according to the signed contract.
*During the period of waiting to sign a new labor contract, how is the salary calculated according to which labor contract?*
What must a definite term labor contract include?
According to Article 21 of the Labor Code 2019 stipulating the contents of a labor contract as follows:
Contents of a labor contract
1. A labor contract must have the following principal contents:
a) Name, address of the employer and the full name, title of the person who concludes the labor contract on the employer’s side;
b) Full name, date of birth, gender, place of residence, identification card numbers, or passport of the person who concludes the labor contract on the employee’s side;
c) Job and workplace;
d) Term of the labor contract;
e) Salary based on the job or title, form of salary payment, payment term, salary allowances, and other additional amounts;
f) Promotion and salary raise regime;
g) Working hours, rest periods;
h) Labor protection equipment for the employee;
i) Social insurance, health insurance, and unemployment insurance;
j) Training, fostering, improving professional skills.
2. When the employee is working directly related to business secrets, technology secrets as prescribed by law, the employer has the right to agree in writing with the employee on the content, duration of protection of business secrets, protection of technology secrets, benefits, and compensation in case of violation.
3. For employees working in agriculture, forestry, fishery, and salt-making, depending on the job type, the two parties can reduce some principal contents of the labor contract and agree to include terms on handling in case of contract performance being affected by natural disasters, fire, weather.
4. The Government of Vietnam stipulates the contents of the labor contract for employees hired as directors in enterprises with state capital.
5. The Minister of Labor - Invalids and Social Affairs stipulates the specifics of clauses 1, 2, and 3 of this Article.
Thus, based on the above regulations, the content of a definite term labor contract must include the following:
- Name, address of the employer and the full name, title of the person who concludes the labor contract on the employer’s side.
- Full name, date of birth, gender, place of residence, identification card numbers, or passport of the person who concludes the labor contract on the employee’s side.
- Job and workplace.
- Term of the labor contract.
- Salary based on the job or title, form of salary payment, payment term, salary allowances, and other additional amounts.
- Promotion and salary raise regime.
- Working hours, rest periods.
- Labor protection equipment for the employee.
- Social insurance, health insurance, and unemployment insurance.
- Training, fostering, improving professional skills.
What is the time limit for the company to inform the employee when transferred to a different job than stated in the labor contract?
Based on Article 29 of the Labor Code 2019 stipulating the transfer of employees to different jobs than stated in the labor contract as follows:
Transfer of employees to different jobs than stated in the labor contract
1. When unexpectedly encountering difficulties due to natural disasters, fire, dangerous diseases, applying measures to prevent and remedy labor accidents, occupational diseases, power or water failures, or due to production and business needs, the employer has the right to temporarily transfer the employee to a different job than stated in the labor contract but not exceeding 60 working days cumulative in one year; in case of transferring the employee to a different job than stated in the labor contract exceeding 60 working days cumulative in one year, it can only be done with the written consent of the employee.
The employer clearly stipulates in the labor regulations the cases due to production and business needs that the employer is temporarily transferred to a different job than stated in the labor contract.
2. When temporarily transferring the employee to a different job than stated in the labor contract as prescribed in clause 1 of this Article, the employer must notify the employee at least 03 working days in advance, clearly stating the temporary duration and arranging jobs suitable to the health and gender of the employee.
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Thus, according to the above regulations, when the company transfers the employee to a different job than stated in the labor contract if falling under clause 1, Article 29 of the Labor Code 2019, the notification must be at least 03 working days in advance.
In which, clearly stating the temporary duration and arranging jobs suitable to the health and gender of the employee.
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