Will break time within a normal work shift be excluded from the overtime calculation?

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.

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Written by Nguyen Quang Vu On In

Can an Uber driver be regarded as an employee under Vietnamese law?

The UK court has recently considered that an Uber driver is a worker of Uber under UK employment law. In this post, we will consider if similar conclusion could be reached under Vietnamese law using the UK court’s reasoning. Under Labour Code 2019, an employee means a person working for an employer pursuant to an agreement, such person is paid wages and he/she is subjected to management and supervision by the employer. Based on the definition of employee under the Labour Code 2019, it is more likely than not a Uber driver or, since Uber has left Vietnam, a similar “gig” driver could argue that he/she is an employee of the platform owner instead of a third party contractor using the arguments raised by UK court.

The table below provides a more detailed analysis:

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Written by Nguyen Quang Vu On In ,

Can the secured party in a secured transaction be different from the obligee under Vietnamese law?

Under Vietnamese law, it is a common understanding that the obligee (e.g, the lender) must be the secured party (e.g., the mortgagee) in a secured transaction although the securing party (e.g., the mortgagor) could be different from the obligor (e.g., the borrower). In fact, this has been the position under Decree 163/2006 for several years. However, the new Decree 21/2021 replacing Decree 163/2006 from 15 May 2021 removes the express description that the oblige is the secured party in a secured obligation. It is not clear if this change provides for the possibility that the secured party needs not to be the obligee in a secured transaction.

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Written by Nguyen Quang Vu On In