Does requesting employees to work overtime have to notify the state agency in Vietnam?

Does requesting employees to work overtime have to notify the state agency in Vietnam?

Pursuant to Article 107 of the 2019 Labor Code, there are provisions on overtime work as follows:

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.

Thus, according to the above regulations in Vietnam, only in case your company employs employees to work overtime for no more than 300 hours in a year in certain ifields, works and jobs, it must notify the Department of Labor- Invalids and Social Affairs on the use of overtime employees.

Is it possible to dismiss employees who do not agree to work overtime in Vietnam?

Article 125 of the Labor Code 2019 stipulates that dismissal for disciplinary reasons in the following cases:

An employer may dismiss an employee for disciplinary reasons in the following circumstances:

1. The employee commits an act of theft, embezzlement, gambling, deliberate infliction of injuries or uses drug at the workplace;

2. The employee discloses technological or business secrets or infringing the intellectual property rights of the employer, or commits acts which are seriously detrimental or posing seriously detrimental threat to the assets or interests of the employer, or commits sexual harassment in the workplace against the internal labor regulations;

3. The employee repeats a violation which was disciplined by deferment of pay rise or demotion and has not been absolved. A repeated violation means a violation which was disciplined and is repeated before it is absolved in accordance with Article 126 of this Code.

4. The employee fails to go to work for a total period of 05 days in 30 days, or for a total period of 20 days in 365 days from the first day he/she fails to go to work without acceptable excuses.

Justified reasons include natural disasters, fires; the employee or his/her family member suffers from illness with a certification by a competent health facility; and other reasons as stipulated in the internal labor regulations.

According to this Article, the law does not currently allow an employer to fire an employee on the grounds that he does not agree to work overtime. So your company is not allowed to dismiss employees because they do not agree to work overtime in Vietnam.

Is overtime limited in Vietnam? 

In Article 60 of Decree 145/2020/ND-CP, there are overtime limits as follows:

1. The total overtime must not exceed 50% of normal working hours in 01 day if the overtime occurs within a normal working day, except for the cases specified in Clause 2 and Clause 3 of this Article.

2. In case the employer has regulations on weekly normal working hours, the normal working hours plus overtime must not exceed 12 hours in 01 day.

3. In case of part-time employment prescribed in Article 32 of the Labor Code, the normal working hours plus overtime hours must not exceed 12 hours in 01 day.

4. The total overtime hours must not exceed 12 hours a day during public holidays and weekly days off.

5. The periods specified in Clause 1 Article 58 are deductible when calculating the total overtime hours in the month or year for determination of conformity prescribed in Point b and Point c Clause 2 Article 107 of the Labor Code.

Thus, overtime will be limited according to the above regulations in Vietnam. Specifically, the total number of overtime hours must not exceed 50% of normal working hours in 01 day.

Best Regards!