Vietnam Business Law is a website managed by lawyers of Venture North Law Limited (VNLaw). Venture North Law Limited (VNLaw) is a Vietnamese commercial law firm. We won the Rising Law Firm of the Year Award at the Southeast Asia Law Awards for the years 2020 and 2021 held by The Legal 500. Very few Vietnamese law firms have achieved a similar regional recognition.
On 17 November 2020, the National Assembly passed a new law on environment protection (Environment Protection Law 2020) which will take effect from 1 January 2022 and replaces the old Environment Protection Law 2014. Below are some of notable new points of the Environment Protection Law 2020.
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 below diagram summarises the key steps in an arbitration proceeding at Vietnam International Arbitration Center (VIAC) and Singapore International Arbitration Center (SIAC). A pdf version can be downloaded here. This post is written by Ha Kieu Anh.
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: