Overtime is the period of work outside of normal working hours as prescribed by law, collective labor agreements, or labor regulations. Employers requiring their empoyees to work overtime need to pay attention to the following 05 important points.
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Vietnam: 05 things that employers requiring their empoyees to work over time need to know from January 01, 2021(illustration)
The 2019 Labor Code (effective from January 01, 2021) stipulates in detail the 05 points to be considered when using labor for overtime as follows:
1. Employers are not allowed to require employees to work overtime exceeding 40 hours per month
According to Article 107 of The 2019 Labor Code and Article 4 of Decree 45/2013/ND-CP, the overtime of employees is determined as follows:
- If employees work overtime and calculate working hours by day, the additional working hours must not exceed 50% of the regular working hours per day;
- If employees work overtime and calculate working hours by week, the total regular working hours and additional working hours must not exceed 12 hours per day and 40 hours per month;
- Must not exceed 12 hours per day when working overtime on holidays, New Year, and weekends;
- The total overtime of employees must not exceed 200 hours per year.
Additionally, employers are permitted to require employees to work overtime not exceeding 300 hours per year in certain industries, occupations, or situations as follows:
- Manufacturing, processing, exporting textile products, garments, footwear, electronics, wood, and forestry, saline, aquatic products;
- Production, supply of electricity, telecommunications, oil refining; water supply and drainage;
- Situations requiring high-skilled labor not adequately supplied by the labor market;
- Urgent work circumstances that cannot be delayed due to seasonal, time-sensitive materials, products or unforeseen work arising from objective factors like weather, natural disasters, fires, enemy attacks, electric shortages, raw material shortages, production line technical failures.
Note that when employers require employees to work overtime from 200 to 300 hours per year, they must notify in writing to the Department of Labor, War Invalids and Social Affairs where the enterprise is headquartered.
2. Employers are not allowed to use minor employees for overtime
According to Article 146 of The 2019 Labor Code the working hours of minors are as follows:
- The working hours for those under 15 years old must not exceed 04 hours per day and 20 hours per week. They are not allowed to work overtime or at night;
- The working hours for those between 15 and under 18 years old must not exceed 08 hours per day and 40 hours per week. Those from 15 to under 18 years old may work overtime, at night in certain occupations as listed by the Minister of Labor, War Invalids and Social Affairs.
Therefore, under the above regulations, employers are not allowed to use minors under 15 years old for overtime, and those from 15 to under 18 years may only work at night and overtime in certain occupations as regulated by the Ministry of Labor, War Invalids and Social Affairs. Currently, there is no specific regulation about occupations for those from 15 to under 18 years old to work overtime, only a regulation on the list of prohibited occupations and workplaces for minors. Hence, employers need to be cautious when using minors for overtime.
3. Employers are not allowed to use pregnant female employees for overtime
According to Clause 1, Article 137 of the 2019 Labor Code, employers are not allowed to use labor for night work, overtime, or distant assignments in cases where female employees are pregnant from the 7th month onwards or from the 6th month if working in highland, remote, border, or island areas.
Therefore, employers are not allowed to use pregnant female employees from the 7th month onwards or from the 6th month if working in highland, remote, border, or island areas for overtime. Violations will result in fines ranging from VND 10,000,000 to VND 20,000,000 (according to point a, clause 2, Article 27 of Decree 28/2020/ND-CP).
4. Employers can only require employees to work overtime if the employee agrees
According to point a, clause 2, Article 107 of the 2019 Labor Code, one of the requirements for employers to require employees to work overtime is the consent of the employee.
Thus, laborers are not obligated to comply with the management and arrangement of employers under all circumstances. employers can only require employees to work overtime if the employee agrees, especially for hazardous or harmful work.
However, Article 108 of the 2019 Labor Code stipulates that employers have the right to require employees to work overtime any day without limitation on additional hours, and employees cannot refuse in the following cases:
- Implementing mobilization orders to ensure national defense and security tasks according to the law;
- Handling work to protect human life, property of agencies, organizations, individuals in preventing, overcoming natural disasters, fires, dangerous epidemics, and disasters, except in cases where there is a risk to the life and health of the worker as regulated by the law on labor safety and hygiene.
5. employers must pay suitable wages when using labor for overtime
According to Article 98 of The 2019 Labor Code, employers must pay wages to employees based on the wage unit price or the actual wage paid for the task as follows:
- Overtime on regular days: at least 150%;
- Overtime on weekly rest days: at least 200%;
- Overtime on holidays, New Year, paid leave days: at least 300% not including wages for holidays, New Year, paid leave days for employees with daily wages.
- Employees working at night will receive an additional payment of at least 30% of the wage rate or the actual wage paid for work on regular working days.
- Besides the above wages, employees working overtime at night will receive an additional 20% wage calculated on the wage unit price or the wage for daytime work on regular, weekly rest, or holiday, New Year.
The above is the full 05 points to note when using labor for overtime applied from January 01, 2021. Therefore, employers need to comply with legal regulations, and simultaneously consider and choose appropriate options for labor use to ensure production and business operations meet product quantity and work efficiency requirements.
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