Vietnam: Is a guest lecturer contract for teachers considered an employment contract?

Is a guest lecturer contract for teachers considered an employment contract?

Based on Article 7 of the Regulations issued together wwith Circular 44/2011/TT-BGDDT of the Minstry of Education and Training of Vietnam which prescribes policies for guest lecturing in educational institutions promulgated by the Minister of Education and Training, the following regulations concerning lecturing contracts are provided:

Lecturing contract

1. For guest lecturers who are officials and public employees:

a) The lecturing contract is a service contract. The conclusion, execution, modification, and termination of the lecturing contract shall be carried out according to the provisions of Section 7, Chapter XVII of the Civil Code. Work contracts are not executed for the lecturing activities of officials and public employees.

b) The lecturing contract must include a clause where the guest lecturer commits to ensuring the completion of work at their place of employment.

2. For guest lecturers who are not officials and public employees:

a) For activities mentioned in points a, b, c, d clause 1 Article 2 of this Regulation, the lecturing contract is a work contract as stipulated in the Labor Code. The conclusion, execution, termination of the lecturing contract, and the handling of complaints and denunciations shall be conducted in accordance with labor laws.

b) For lecturing activities mentioned in point đ clause 1 Article 2 of this Regulation, the lecturing contract is a service contract. The conclusion, execution, modification, and termination of the lecturing contract shall follow the provisions of Section 7, Chapter XVII of the Civil Code.

Thus, a lecturing contract for teachers who are officials and public employees is not a work contract but a service contract.

For guest lecturers who are not officials and public employees, the lecturing contract is a work contract in the cases specified in points a, b, c, d clause 1 Article 2 of the Regulation issued with Circular 44/2011/TT-BGDDT, including:

- Teaching subjects and courses prescribed in preschool, general education, continuing education programs, vocational and higher education;

- Teaching special topics;

- Guiding, participating in grading, participating in thesis committees for graduation projects, instructing, and participating in master's thesis and doctoral dissertation evaluation committees;

- Guiding experiments, practical sessions, and internships according to education programs.

Is a guest lecturer contract for teachers considered an employment contract? (Image from the Internet)

What are the penalties for educational institutions that do not sign contracts with guest lecturers as per regulation?

According to Article 24 of Decree 88/2022/ND-CP of Vietnam's Government:

Violations against regulations on employment of teachers and trainers

1. A fine ranging from VND 10.000.000 to VND 20.000.000 shall be imposed for commission of one of the following violations:

a) Failing to enter into contracts with visiting teachers as prescribed;

b) Arranging teachers to teach in excess of the maximum teaching hours as prescribed.

2. The following fines shall be imposed for employing unqualified teachers or trainers to deliver college-, intermediate- or elementary-level training programs and other vocational training programs, or to teach in vocations/majors different from their specialties:

a) A fine ranging from VND 5.000.000 to VND 10.000.000 shall be imposed if they are employed to deliver continuing training programs as prescribed in Points a, b, c and d Clause 1 Article 40 of the Law on Vocational Education and Training;

b) A fine ranging from VND 10.000.000 to VND 15.000.000 shall be imposed if they are employed to deliver elementary-level training programs;

c) A fine ranging from VND 15.000.000 to VND 20.000.000 shall be imposed if they are employed to deliver college- or intermediate-level training programs.

3. Remedial measures: The entity committing the violation in Clause 2 of this Article is compelled to employ qualified teachers and arrange them to teach vocations/majors appropriate to their specialties.

According to clause 3 Article 3 of Decree 88/2022/ND-CP:

Penalties, fines, power to impose penalties and rules for imposing penalties for repeated violations; responsibilities of Ministers, heads of ministerial agencies, Chairpersons of People’s Committees at all levels, heads of agencies/units competent to impose penalties for violations in vocational education and training field; suspension of vocational education and training activities as prescribed in Clause 1 Article 20 of the Law on vocational education and training and Decrees on vocational education and training

...

3. Fines for violations in the vocational education and training field

a) The maximum fine for a violation in the vocational education and training field imposed upon an individual is VND 75.000.000; that imposed upon an organization is VND 150.000.000;

b) The fine for each of the administrative violations specified in Chapter II of this Decree shall be imposed upon the violating organization, except the fines specified in Clauses 4 and 5 Article 11, Clauses 1 and 2 Article 16, Clauses 1, 2 and 3 Article 21, Point a Clause 3 Article 22, Clause 1 Article 23, Clause 1 Article 27, Point b Clause 1 Article 30, Clause 1 Article 34, Clause 1 Article 35, and Clause 1 Article 36 of this Decree which shall be imposed upon the violating individuals;

c) The fine imposed upon an individual is half of that imposed upon an organization for committing the same administrative violation;

d) When committing violations as prescribed in this Decree, household businesses or family households providing vocational training classes shall incur the same fines as violating individuals.

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Thus, in case vocational education institutions fail to sign contracts with guest lecturers as prescribed, they may be subjected to administrative fines ranging from 10,000,000 VND to 20,000,000 VND.

What is the statute of limitations for administrative penalties for vocational education institutions that do not sign contracts with guest lecturers?

Based on clause 1 Article 6 of the Law on Handling Administrative Violations 2012, amended by clause 4 Article 1 of the Law on Amendments to the Law on Handling Administrative Violations 2020, the statute of limitations for handling administrative violations is prescribed as follows:

Statute of limitations for handling administrative violations

1. The statute of limitations for handling administrative violations is as follows:

a) The statute of limitations for handling administrative violations is 1 year, except for the following cases:

Administrative violations on accounting; invoices; fees, and charges; insurance business; price management; securities; intellectual property; construction; fisheries; forestry; investigation, planning, surveying, exploitation, and use of water resources; petroleum activities and other mineral activities; environmental protection; nuclear energy; housing and public office management; land; dyke; press; publication; production, export, import, and trading of goods; production, sale of prohibited and counterfeit goods; labor management overseas, where the statute of limitations is 2 years.

Administrative violations on tax shall follow the statute of limitations prescribed by law on tax management;

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Thus, the statute of limitations for administrative penalties for vocational education institutions that do not sign contracts with guest lecturers is 1 year.