What are the notable points when concluding employment contract with domestic workers in Vietnam? - Dinh Toan (Bac Lieu)
Article table of contents
Who is a domestic worker?
A domestic worker is also an employee defined in Clause 1 Article 3 of the Labor Code who does the works specified in Clause 1 Article 161 of the Labor Code under a written employment contract.
Notable points when concluding employment contract with domestic workers in Vietnam (Internet image)
Notable points when concluding employment contract with domestic workers in Vietnam
(1) Regulations on employment contracts mentioned in Article 14 and Clause 1 Article 162; responsibility to provide information when concluding employment contracts mentioned in Article 16; contents of the employment contract mentioned in Clause 1 Article 21; unilateral termination of employment contracts mentioned in Clause 2 Article 35, Clause 3 Article 36 and Clause 2 Article 162; obligations upon illegal unilateral termination of employment contracts mentioned in Article 40 and Article 41; severance allowance mentioned in Article 46 of the Labor Code shall be implemented as follows:
- A written employment contract shall be prepared by the employer when a domestic worker is hired in accordance with Clause 1 Article 14 and Clause 1 Article 162 of the Labor Code;
- Before the employment contract is concluded, the domestic worker (employee) and the employer shall provide information in accordance with Article 16 of the Labor Code, information about the employee’s duties, living conditions at the employer’s family and other information necessary for assurance of the employee’s health safety as requested by the employee;
- Contents of the employment contract shall comply with Clause 1 Article 21 of the Labor Code. According to Form No. 01/PLV in Appendix V of Decree 145/2020/ND-CP, the employer and the employee shall negotiate their rights, obligations and interests that are suitable for their condition and conformable with Clause 1 Article 21 of the Labor Code;
- During the implementation of the employment contract, both parties has the right to unilateral terminate the employment contract without explanation but a prior notice must be made at least 15 days before the termination date, except in the following cases in which a prior notice is not required:
+ The employee unilaterally terminates the employment contract because the works, working location or working conditions are not as agreed, except in the cases specified in Article 29 of the Labor Code; the employee is not paid fully and/or punctually, except in the cases specified in Clause 4 Article 97 of the Labor Code; the employee is maltreated, physically or orally assaulted by the employer; he/she is a victim of coercive labor or sexual harassment; the employee is pregnant and has to terminate the employment contract as prescribed in Clause 1 Article 138 of the Labor Code; the employee reaches the retirement age prescribed in Article 169 of the Labor Code unless otherwise agreed upon by both parties; the employer provided false information according to Clause 1 Article 16 of the Labor Code in a manner that affects the execution of the employment contract;
+ The employer unilaterally terminates the employment contract because: the employee is not present at the workplace after the deadline specified in Article 31 of the Labor Code; the employee leaves his/her job for at least 05 consecutive days without justified reasons;
- It will be illegal if the employment contract is unilaterally terminated against regulations of Point d of Clause 1 of Article 89 of Decree 145/2020/ND-CP, in which case regulations of Article 40 and Article 41 of the Labor Code will apply to the employee and the employer respectively.
In case the employer fails to comply with the provisions on notice period specified in Point d of Clause 1 of Article 89 of Decree 145/2020/ND-CP, the employer shall pay the employee a compensation that is worth his/her salary for the remaining notice period from the termination date;
- When the employment contract is terminated in the cases specified in Clauses 1, 2, 3, 4, 6 and 7 Article 34 of the Labor Code and Point d of Clause 1 of Article 89 of Decree 145/2020/ND-CP, the employer shall pay severance allowance to the employee in accordance with Article 46 of the Labor Code; each party shall fully pay the amounts relevant to the other party’s interests.
(2) The employee and employer shall negotiate the salary and bonuses in accordance with Chapter VI (except Article 93). The base salary and allowances (if any) shall be specified in the employment contract in accordance with Clause 1 and Clause 2 Article 90 of the Labor Code.
The base salary is inclusive of the employee’s cost of accommodation at the employer’s household as the case may be and must not be lower than the region-based minimum wage announced by the Government.
The employer and the employee shall negotiate the monthly accommodation cost (if any) which must not exceed 50% of the salary written in the employment contract.
(3) The employee’s working hours and rest periods shall comply with Chapter VII of the Labor Code and Chapter VII of Decree 145/2020/ND-CP. To be specific:
- On normal working days, in addition to the working hours specified in the employment contract, the employer must enable the employee to have at least 8 hours of rest, including 6 consecutive hours, every 24 hours.
- The employee is entitled to weekly breaks as prescribed in Article 111 of the Labor Code. In case the employer cannot arrange weekly breaks, the employee must have at least 04 days off per month.
(4) The employer is entitled to pay the employee, together with the salary, an amount equal to the mandatory social insurance and health insurance premium payable by employers as prescribed by relevant laws. The employee will decide whether to participate in social insurance and health insurance.
In case the employee enters into more than one employment contract to work as a domestic worker, the social insurance and health insurance premiums payable by the employers shall vary according to each contract.
(5) Occupational hygiene and safety for domestic workers:
- The employer have the responsibility to provide instructions for the domestic worker (employee) on how to use the devices and equipment and fire safety that are relevant to his/her works; provide personal protective equipment for the employee to use while working;
- In case the employee has an occupational accident or disease, the employer shall fulfill their responsibility to the employee as prescribed in Article 38 and Article 39 of the Law on Occupational Hygiene and Safety;
- The employee shall follow the employer’s instructions on how to use the devices and equipment and fire safety; comply with regulations on hygiene and environmental safety of the household and community.
(6) Labor discipline and material responsibility of domestic workers:
- The employer and the employee shall specify in the violations, disciplinary actions and material responsibility according to Clause 2 Article 118 and Article 129 of the Labor Code in the employment contract or another form of agreement;
- Disciplinary actions taken against the employee include reprimand and dismissal as prescribed in Clause 1 and Clause 4 Article 124 of the Labor Code;
- The employee will be dismissed by the employer if: the employee commits any of the acts specified in Clauses 1, 2 and 4 Article 125 of the Labor Code; the employee maltreats, physically or orally assaults or insults the employer or any of the employer’s household members;
- In case an employee’s violation is discovered, the employer shall handle the situation in accordance with Point b of Clause 6 of Decree 145/2020/ND-CP. If the employee's age is from 15 to under 18 years, the employer must inform the employee's legal representative of the disciplinary actions;
- The taking of disciplinary actions taken against the employee shall comply with the principles and procedures specified in Point a and Point c Clause 1, Clause 2, Clause 3, Clause 4 and Clause 5 Article 122 of the Labor Code.
Mai Thanh Loi
