06/04/2023 11:23

Are employees working under employment contracts with a term of less than 1 month subject to compulsory social insurance in Vietnam?

Are employees working under employment contracts with a term of less than 1 month subject to compulsory social insurance in Vietnam?

Are employees working under employment contracts with a term of less than 1 month subject to compulsory social insurance in Vietnam? How many times can you sign this type of contract? “Nhat Anh-Hai Phong, Vietnam”

Hello, Lawnet would like to answer the following:

1. Form of contract with a term of less than 01 month in Vietnam

According to the provisions of Article 14 of the Labor Code 2019, the forms of employment contract are as follows:

Article 14. Forms of employment contract

1. An employment contract shall be concluded in writing and made into two copies, one of which will be kept by the employee, the other by the employer, except for the case specified in Clause 2 of this Article.

An employment contract in the form of electronic data conformable with electronic transaction laws shall have the same value as that of a physical contract.

2. Both parties may conclude an oral contract with a term of less than 01 month, except for the cases specified in Clause 2 Article 18, Point a Clause 1 Article 145 and Clause 1 Article 162 of this Labor Code.

Thus, both parties may conclude an oral contract with a term of less than 01 month, except for the following cases:

- Concluding the employment contract with the representative of a group of employees aged 18 or older.

- Concluding the employment contract with employees who are under 15 years old

- Concluding the employment contract with employees who are domestic worker.

2. How many times can you sign an employment contract with a term of less than 01 month?

According to point b, Clause 1, Article 20 of the Labor Code 2019, contract with a term of less than 01 month is a fixed-term employment contract

On the other hand, according to Point c, Clause 2, Article 20 of the Labor Code 2019:

Article 20. Types of employment contracts

1. ...

2. If an employee keeps working when an employment contract mentioned in Point b Clause 1 of this Article expires:

...

c) The parties may enter into 01 more fixed-term employment contract. If the employee keeps working upon expiration of this second fixed-term employment contract, the third employment contract shall be of indefinite term, except for employment contracts with directors of state-invested enterprises and the cases specified in Clause 1 Article 149, Clause 2 Article 151 and Clause 4 Article 177 of this Labor Code.

Thus, contract with a term of less than 01 month are mostly only signed twice. However, in some special cases, the law allows signing multiple labor contracts under 01 month, specifically as follows:

- In case of using elderly workers

- In case of using foreign workers to work in Vietnam

- In case of extension of the signed labor contract to the end of the term for the employee who is a member of the leadership board of the employee's representative organization at the grassroots during the term.

3. Are employees working under employment contracts with a term of less than 1 month subject to compulsory social insurance in Vietnam?

According to the provisions of Clause 1, Article 2 of the Law on Social Insurance 2014, persons working under employment contracts with a term of 1 month or more shall be covered by compulsory social insurance.

On the other hand, according to Article 43 of the Employment Law 2013 and Clause 1, Article 12 of the Law on Health Insurance in 2008, amended in 2014 also stipulates that the subjects participating in these types of insurance must be employees working under employment contracts with a term of 3 months or more.

Thus, if the employee signs a employment contracts with a term of less than 1 month, the employee is not required to pay insurance according to the law.

However, in Clause 3, Article 168 of the Labor Code 2019, it is stipulated:

Article 168. Participation in social insurance, health insurance and unemployment insurance

...

3. Where an employee is not covered by compulsory social insurance, compulsory health insurance or unemployment insurance, the employer shall, in addition to and at the same time with salary payment, pay the employee an amount equal to the compulsory social insurance, compulsory health insurance, unemployment insurance premiums payable by the employer in accordance with regulations of law on social insurance, health insurance and unemployment insurance.

Thus, for employees who are not covered by insurance, the employer is responsible for paying an additional amount equivalent to the payment of social insurance, health insurance and unemployment insurance according to regulations of the Law.

Best regards!

Le Thi Phuong Ngan
383


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