The Labour Code 2019 has significantly expanded its scope of application by expanding the definition of employees (người lao động), employment contracts (hợp đồng lao động) and introducing a new concept of workers without an employment relationship (người làm việc không có quan hệ lao động). The changes could have significant impacts on many individuals including gig workers.

Employees

Under the Labour Code 2019, an employee means a person working for an employer pursuant to an agreement, who is paid wages, and who is subject to management, instruction, and supervision by the employer. On the other hand, the Labour Code 2012 defines an employee to mean a person working under an “employment contract”. Accordingly, under the Labour Code 2012, an individual working for a company under a contract which is not named “employment contract” could argue that he/she is not an employee of the company. However, such an argument may not work under the Labour Code 2019 if it can be established that there is an agreement between the company and the individual and such individual is managed, instructed and supervised by the company.

Decree 145/2020 of the Government clarifies several contents of the Labor Code 2019. One notable point is the guidance on how to calculate the overtime (OT) cap. Specifically, under Article 60.5 of Decree 145/2020, “break time within a work shift will be deducted when calculating the monthly or yearly overtime hours” (“Exemption”). Without further clarification on this provision, it is however unclear how to interpret this Exemption in practice.

Example: A company organizes for its employees to work under the shift pattern of 12 hours/shift (7.00am-7.00pm; 7.00pm-7.00am). For each shift, 10 hours are considered as normal working time, and the remaining 2 hours are overtime. Within a shift, the employees shall be entitled to 60 minutes of break falling within first 10 normal working hours. Will 60 minutes of break be excluded from the total monthly or yearly OT cap of an employee under Article 60.5 above?

Based on Article 60.5 of Decree 145/2020, there may be two different interpretations on the calculation of OT in this case.

The current Labor Code 2012 does not make it clear on whether a foreigner could be entitled to an indefinite term employment contract (ITEC) although the foreigner only has a work permit with limited term (two years at the maximum). In theory, the foreigner can demand for an ITEC with the employer based on the following legal basis and arguments:

• Article 22.2 of the Labor Code 2012 generally suggests that any employees will be entitled to an ITEC after two consecutive definite term employment contracts. Technically, a foreign employee can also enjoy this treatment;