INCORPORATE BY REFERENCES IN LABOUR CONTRACTS IN VIETNAM

In practice, instead of providing rights and obligations of the employees specifically in the labour contract, an employer may cross-refer to its existing “internal regulations” (quy chế) to impose such internal regulations on the employees. Unfortunately, there is no clear definition of the internal regulations as well as a legal basis for issuing the internal regulations by an employer under labour law. However, there are various provisions, which suggest that employer has rights to issue the internal regulations (such as bonus regulations, regulation on raising wage grade, recruitment, etc).

Article 5.2(b) of the Labour Code 2012 provides that employees have obligation to be subject to the lawful management by the employer. From the view of the employer, one may argue that the issuance of internal regulations is to manage the employees. Theoretically, a labour contract which cross-refers to the employer’s internal regulations will be valid if:

· The employees have agreed with the contents of such internal regulations before entering into the labour contracts; and

· The contents of such internal regulations comply with relevant laws.

Is hourly minimum wage in Vietnam permitted?

The Labor Code 2012 is silent whether a part time employee’s monthly salary could be lower than the monthly minimum wage published by the Government (currently VND 3,750,000 per month) as long as his/her hourly salary is higher than the hourly minimum wage converted from the monthly minimum wage.

Verification of employee’s background information during probation period in Vietnam

Under the Labour Code 2012, an employer and an employee are permitted to agree about working on a probation basis (thử việc) and the rights and obligations of the parties during the probation period. In addition, before entering into the probation contract, the employer may request the employee to submit various information, including full name, age, sex, residential address educational standard, professional qualifications, health status, and other “information directly relevant to the employment agreement”. To select the qualified candidates, the employer may also agree with the employee on a verification for such information, which shall give the employer the right to terminate probation contract in case of unsuccessful verification results. While it is not entirely clear, there is a risk to the employer to be considered as illegal termination. This is because:

Changes to long-term visa rules for foreign directors/managers in Vietnamese companies

Under the Law on Entry, Exit, Transit, and Residence of Foreigners in Vietnam, which came into effect on 1 January 2015, a “foreign investor” (nhà đầu tư nước ngoài) may be granted a long-term visa (or temporary resident permit) of up to five years. The problem is, however, that many foreign investors in Vietnam are companies, not individuals. Technically, the individual representatives of such foreign companies are not considered as foreign investors and are therefore not qualified for long-term visas to stay in Vietnam. In the past, individual representatives of foreign companies which invest in Vietnam may obtain a long-term visa on the ground that they enter into Vietnam to implement investment projects. Such regulations are now no longer valid. Accordingly, foreign directors/managers in Vietnamese companies who have obtained a long-term visa on the ground that they are representatives of foreign investors in the Vietnamese companies may now need to obtain a shorter visa on the ground that they are employees or staffs of the Vietnamese companies.

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Vietnam Business Law