How will employees who go to work on annual leave be paid in Vietnam?

How will employees who go to work on annual leave be paid in Vietnam? (Internet image)

On June 28, 2022, Deputy Minister Le Van Thanh chaired a meeting to answer some questions about the Labor Code 2019 and its guiding documents.

Based on the conclusions of Deputy Minister Le Van Thanh at the meeting, in order to have a unified understanding and implementation among units under the Ministry, the Legal Department announces conclusions on the contents answering some questions about the Labor Code 2019 and its guiding documents as follows:

1. How will employees who work on annual leave be paid in Vietnam?

Question:

If an employee goes to work during annual leave, how is the employee paid?

Answers and instructions:

(1) It is necessary to identify three regulations/principles stated in the Labor Code 2019, including:

- Annual leave is the right of employees. Therefore, employees can use it or not use it. Employees have the right to take time off but do not have the obligation to take time off.

- Employers are responsible for regulating annual leave schedules.

- It will only be considered overtime and must be paid 300% when the employee's work has been determined to be done on a day off.

(2) In the event that the annual leave schedule clearly defines specific leave days; If an employee goes to work on a specific day off (mobilized by the employer or agreed upon by both parties), it is determined that the employee works overtime on a paid day off, and the employer must pay at least 300% according to the provisions of Point c, Clause 1, Article 98 of the Labor Code 2019.

(3) In case the annual leave schedule does not specify specific leave days (For example: in case the leave schedule is flexible, creating conditions for employees to register for leave at times according to personal needs)

In this case, the Employer has reserved the right to decide specific days off for employees by stipulating flexible leave schedules by month or year, and the Employees must register/notify the Employer in advance. Therefore, if the employee does not register/notify, it is understood that the employee has given up his or her right to take annual leave during the month or year. At the same time, in this case, it is also not possible to determine which specific working day is the employee's day off. Therefore, the employer has the obligation to pay the employee normal working salary without the obligation to pay overtime salary to the employee for the days the employee does not take leave or does not take full annual leave.

In cases of necessity, additional guidance can be given to employers to stipulate stricter content in the internal labor regulations, specifically: "In case the labor rules or internal regulations of the enterprise stipulate that the employee has the right to register for leave but the employee does not register, the employee is considered to have waived his or her right to annual leave."

2. Regarding insurance policies for probationers entering into probationary contracts in Vietnam

Question:

During the working period under the probationary contract, does the employer have to pay an additional amount of money to the employee at the same time as the salary period equivalent to the amount the employer pays for mandatory social insurance, health insurance, and unemployment insurance for the employee according to the provisions of Clause 3 and Article 168 of the Labor Code 2019?

Answers and instructions:

Employers are obliged to pay because:

- Pursuant to the provisions of Clause 1 and Clause 5, Article 3 and Clause 1 and Clause 2, Article 24 and Article 26 of the Labor Code 2019, the probationer is the employee (The probationary contract still contains all the elements of the labor relationship, and the probationer still receives a salary).

- Application of provisions of Clause 3 of Article 168 of the Labor Code 2019 to probationers to ensure fairness and equality between two groups of subjects: probationers who sign separate probation contracts and probationers whose probation content is written in the labor contract. Probationers whose probation is stated in the labor contract are eligible to participate in mandatory social insurance, health insurance, and unemployment insurance. Therefore, the probationer who signs a separate probationary contract needs to be paid by the employer at the same time as the salary period, an amount equivalent to the amount the employer pays for mandatory social insurance, health insurance, and unemployment insurance.

- According to the provisions of the Social Insurance Law, probationers under probation contracts are not subject to compulsory social insurance participation; Clause 3 of Article 168 of the Labor Code 2019 applies to employees who are not subject to compulsory social insurance. Therefore, probationary employees subject to Clause 3 and Article 168 of the Labor Code 2019 are guaranteed this benefit.

- Clause 3, Article 8 of Decree 145/2020/ND-CP stipulate that the probationary period is calculated as the time the employee actually works for the employer to calculate severance pay, if during this time the employee has not been paid an amount equivalent to the amount the employer pays for unemployment insurance.

Diem My

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