8 new policies on working hours and rest periods that will take effect from January 01, 2021 in Vietnam

1. Overtime working hours shall not exceed 40 hours in 01 month

According to Clause 2 Article 107 of the Labor Code 2019 of Vietnam, an employer has the right to request an employee to work overtime when all of the following conditions are met:

- The employee agrees to work overtime;

- 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;

- The total overtime working hours do not exceed 200 hours in 01 year, except for some specific cases.

Thus, an employer has the right to request an employee to work overtime if all prescribed conditions are met, especially ensuring that overtime working hours shall not exceed 40 hours in 01 month.

Therefore, from 2021, employees can work overtime for no more than 40 hours in 01 month, facilitating employees to complete work as well as to increase their income.

2. Supplementing cases eligible to work overtime up to 300 hours in 01 year

According to Clause 3 Article 107 of the Labor Code 2019 of Vietnam, an employer must not request an employee to work overtime exceeding 300 hours in 01 year in the following fields, works, jobs and cases:

- Manufacture, processing of textile, garment, footwear, electric, electronic products, processing of agricultural, forestry, aquaculture products, salt production;

- Generation and supply of electricity, telecommunications, refinery operation; water supply and drainage;

- Works that require highly skilled workers that are not available on the labor market at the time; (new provision compared to previous regulation)

- 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. (new provision compared to previous regulation)

According to Article 61 of the Decree No. 145/2020/NĐ-CP of Vietnam’s Government on elaboration of some articles of the Labor Code on working conditions and labor relations, in addition to the above-listed cases, overtime work exceeding 200 hours but not exceeding 300 hours in 01 year is permissible in the following cases:

- The works are urgent and cannot be delayed due to objective factors that are directly relevant to performance of state agencies and units, except some specific cases;

- Provision of public services; medical services; educational and vocational training services;

- Production and business operation works at enterprises whose normal working hours do not exceed 44 hours per week.

Thus, from January 01, 2021, there will be some supplemented cases in which employers may request employees to work overtime up to 300 hours in 01 year.

3. Employees have the right to decline to work overtime in special cases

According to Article 108 of the Labor Code 2019 of Vietnam, in the following cases, an employer has the right to request any employee to work overtime on any day without limits on the overtime hours as prescribed in Article 107 of this Labor Code (which may exceed 300 hours/year) and the employee must not decline:

- Execution of a conscription order for the purpose of national security or national defense as prescribed by law;

- Performance of tasks necessary to protect human life or property of certain organizations or individuals in the prevention and recovery of natural disasters, fires, epidemics and disasters, unless those tasks threaten the employees’ health or life as prescribed by occupational safety and health laws.

It can be seen that from January 01, 2021, an employer has the right to request any employee to work overtime on any day without limits on the overtime hours compared to previous regulation. Concurrently, employees also have the right to decline to work overtime in cases where there are threats to the employees’ health or life as prescribed by occupational safety and health laws, which is a completely new provision compared to previous regulation.

4. 1 more fully paid day off on National Day September 02

According to Point đ Clause 1 Article 112 of the Labor Code 2019 of Vietnam, employees shall be entitled to fully paid days off on National Day which is 02 days (the 2nd of September of the Gregorian calendar and the previous or next day) depending on annual basis and decision of the Prime Minister of Vietnam. Compared to previous provision, it was only 01 fully paid days off (the 2nd of September of the Gregorian calendar).

In accordance with this provision, the Prime Minister has decided the National Day 2021 holiday schedule as 04 days, from September 02, 2021 (Thursday) to September 05, 2021 (Sunday). The agencies and units implementing the above holiday schedule are assigned by the Prime Minister the task of arranging reasonable working parts to handle work continuously, ensuring good service to organizations and individuals.

5. Supplementing cases of fully paid personal leave

According to Clause 1 Article 115 of the Labor Code 2019 of Vietnam, an employee is entitled to take a fully paid personal leave in the following circumstances, at long at is notified to the employer in advance:

- Marriage: 03 days;

- Marriage of his/her biological child or adopted child: 01 day;

- Death of his/her biological or adoptive parent; death of his/her spouse’s biological or adoptive parent; death of spouse, biological or adopted child: 03 days.

Thus, from January 01, 2021, in cases of an employee's adopted child getting married; death of his/her spouse’s adoptive parent; death of adopted child, employee is entitled to take a fully paid personal leave. This is a completely new regulation compared to the previous one.

6. Female employees raising children while pregnant are entitled to a reduction of 01 hour of full-wage work

According to Clause 2 Article 137 of the Labor Code 2019 of Vietnam, whenever an employer is informed of the pregnancy in the following cases, the employer shall assign her to a less laborious or safer work, or reduce the working hours by 01 hour per day without reducing her salary, rights or benefits until her child reaches 12 months of age:

- An female employee who is doing a laborious, toxic or dangerous work;

-  An female employee who is doing a highly laborious, toxic or dangerous work;

-  An female employee who is doing any work that might negatively affect her maternity.

In comparison with the Labor Code 2012 of Vietnam, it is stipulated that a female employee who performs heavy work, upon reaching her seventh month of pregnancy, is entitled to be transferred to a lighter work or have her daily working time reduced by 1 hour while still receiving her full wage. Thus, from January 01, 2021, female employees in the above-mentioned cases shall be assigned to a less laborious or safer work, or reduce the working hours by 01 hour per day.

7. Agree on working hours of elderly employees

According to Article 148 of the Labor Code 2019 of Vietnam, elderly employee is a person who continues to work after the retirement age.  An elderly employee may reach agreement with the employer on reduced daily working hours or the regime of part-time work.

This is a difference compared to the current regulations when allowing elderly employees and employers to agree on shortening daily working hours or applying part-time working regimes that are not unilaterally decided by the employer.

In addition, the Labor Code 2019 of Vietnam also abolishes the regulation that in the last year before retirement, employees can shorten their normal working hours or apply the part-time working regime. Accordingly, the elderly employees will still work normally as agreed without any change in the last year as before.

8. Supplementing several special jobs with separate working time and rest periods

For jobs of special nature in the following cases, management ministries and branches shall specify working hours and rest periods after reaching agreement with the Ministry of Labor, War Invalids and Social Affairs of Vietnam and comply with the provisions of Article 109 of the Labor Code 2019:

- Jobs in the field of road, railway, waterway, air transportation;

- Oil and gas exploration and exploitation at sea;

- Work in the field of art;

- Work using radiation and nuclear techniques;

- Work applying high frequency wave technology;

- Diver's work;

- Work in the pit;

- Seasonal production work, processing work according to orders;

- The work must be on duty 24/24 hours;

- Industrial design work (completely new provision);

- Computer work, information technology (completely new provision);

- Research and application of advanced science and technology (completely new provision);

- Other special jobs prescribed by the Government (completely new provision).

Le Vy

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