Currently, due to the impact of the Covid-19 pandemic, many enterprises are facing difficulties and hence want to reassign employees to a different job compared to what was agreed in the Employment Contract. How are employees paid when employers reassign employees in Vietnam?
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How are employees paid when employers reassign employees in Vietnam? (Illustrative image)
When can an enterprise reassign an employee in Vietnam?
According to Article 31 of the Labor Code 2012 (from January 1, 2021, this provision will be replaced by Article 29 of the Labor Code 2019) and guided by Article 8 of the Decree 05/2015/ND-CP, an enterprise has the right to temporarily reassign an employee to another job different from the employment contract but not exceeding 60 cumulative working days in a year in the following cases:
- Natural disaster, fire, epidemic;
- Implementation of measures to prevent and remediate occupational accidents, occupational diseases;
- Electrical or water incidents;
- Due to production and business needs. It should be noted that in this case, the enterprise must specifically stipulate in its internal regulations the cases due to production and business needs where the enterprise is temporarily allowed to reassign the employee to another job different from the employment contract.
Additionally, if the enterprise continues to temporarily reassign the employee to another job different from the employment contract after the cumulative 60 working days within a year, it must obtain the employee's written consent. In cases where the employee does not agree and has to stop work, the enterprise must pay full downtime wages to the employee.
Thus, based on the above provisions, an enterprise can temporarily reassign an employee to another job different from the employment contract for up to 60 cumulative working days within a year in cases of natural disaster, fire, epidemic, implementation of measures to prevent and remediate occupational accidents, occupational diseases, electrical or water incidents, or due to production and business needs. If the enterprise continues to reassign the employee after 60 days, it must obtain the employee's consent.
How are employees paid when being reassigned in Vietnam?
Based on Clause 3 of Article 31 of the Labor Code 2012 (Note: from January 1, 2021, this provision will be replaced by Clause 3 of Article 29 of the Labor Code 2019) regarding wage payment when reassigning employees in Vietnam as follows:
Article 31. reassign of employees to another job different from the employment contract
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3. employees performing the tasks specified in Clause 1 of this Article will be paid according to the new job; if the wages of the new job are lower than those of the old job, the old wage level will be maintained for 30 working days. The wage for the new job must be at least 85% of the old job wage but not lower than the regional minimum wage prescribed by the Government.
Therefore, based on the above provisions, when reassignring an employee to another job, the enterprise must pay the employee according to the new job wage, and simultaneously, the wage for the new job must be at least 85% of the old job wage but not lower than the regional minimum wage prescribed by the Government. In case the wage of the new job is lower than the wage of the old job, the old wage level will be maintained for 30 working days.
Example: Ms. Nguyen Thi A works for company H (in District 5, HCM City) and is reassigned to a new job due to the Covid-19 pandemic. Previously, Ms. A's salary was 10,330,000 VND after deducting social insurance, health insurance, unemployment insurance, and union fees. Thus, if Ms. A is reassigned to a new job, company H must pay at least 85% x 10,330,000 = 8,780,500 VND.
In the case where the enterprise pays wages to the employee not in accordance with the above regulations, it can be administratively fined up to 50,000,000 VND. Specifically, Clause 2 of Article 16 of the Decree 28/2020/ND-CP stipulates fines for enterprises that do not pay conformable wages to employees when temporarily reassigning employees different from the employment contract at the following levels:
- From 5,000,000 VND to 10,000,000 VND for violations involving from 01 to 10 employees;- From 10,000,000 VND to 20,000,000 VND for violations involving from 11 to 50 employees;- From 20,000,000 VND to 30,000,000 VND for violations involving from 51 to 100 employees;- From 30,000,000 VND to 40,000,000 VND for violations involving from 101 to 300 employees;- From 40,000,000 VND to 50,000,000 VND for violations involving over 301 employees.
Ty Na
