19/08/2022 10:19

Cases eligible for employment contract extension in Vietnam

Cases eligible for employment contract extension in Vietnam

Hello Lawnet, As far as I know, after the labor contract expires, the employee and the employer must sign a new contract if they still want to continue working. However, I would like to know if there is any case where it is allowed to extend the contract without signing a new one? (Asked by Mr. Hoang Nam - Tien Giang, Vietnam)

Mr. Nam, thank you for your question. Regarding this matter, Lawnet has the following comments:

According to the reulationss of the Vietnam Labor Code, there are two types of employment contracts as follows:

- An indefinite-term employment contract is a contract in which the two parties neither fix the term nor the time of termination of the contract;

- A fixed-term employment contract is a contract in which the two parties fix the term of the contract for a duration of up to 36 months from the date of its conclusion.

As the regulations above, the extension of the employment contract only occurs if two parties are signing a fixed-term employment contract.

Cases eligible for employment contract extension in Vietnam are specified in the Law on Trade Union 2012.

"Article 25. Assurance of trade union cadres

1. Case labor contract or working contract is expired but laborer being part-time trade union cadre and being his tenure, he shall be prolong labor contract or working contract till the end of his tenure.

2. Unit employing laborers shall not unilaterally terminate the labor contract or working contract, dismissal, enforce to quit or transfer jobs with respect to part-time trade union cadre if the primary trade union Committee or trade union Committee of directly higher level had no agreement idea in written. Case not reaching agreement, two parties must report to competent agency, organization. Within 30 working days, from of reporting to competent agency, organization, unit employing laborers shall be entitled to decide and must be responsible for its such decision.

3. If employee being part time trade union cadre is terminated labor contract or working contract, enforce to quit or unlawful dismissal, Trade Union shall require competent state agencies to interfere; if being authorized, Trade Union may represent to sue at Court to protect legal rights and interest of such trade union cadre; and support to find new job and pay allowances in period of interrupted work as prescribed by the Vietnam General Confederation of Labour."

Thus, according to Clause 1, Article 25 of Law on Trade Union 2012, case labor contract or working contract is expired but laborer being part-time trade union cadre and being his tenure, he shall be prolong labor contract or working contract till the end of his tenure.

Therefore, the case of contract extension only applies to employees who are part-time trade union officials and whose term has not yet expired. As for the remaining cases, the labor law stipulates as follows:

Within 30 days from the expiration date of the employment contract, both parties shall conclude a new employment contract. Before such a new employment contract is concluded, the parties’ rights, obligations and interests specified in the old employment contract shall remain effective;

If a new employment contract is not concluded after the 30-day period, the existing employment contract mentioned in Point b Clause 1 of this Article shall become an employment contract of indefinite term;

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  Labor Code.

Best regard!

Phuong Uyen
74


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