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.

Employment contracts

The Labour Code 2019 has a similar definition of an employment contract to that of the Labour Code 2012. In particular, an employment contract means an agreement between an employee and an employer on a job with wage or salaries, on working conditions, and on the rights and obligations of each party to the labour relationship. However, consistent with the change to the definition of employees, the Labour Code 2019 goes further to provide that if the parties have an agreement with a different name but such an agreement still contemplates a job with wages, or salaries, management, instruction and supervision by one party, then such an agreement is deemed to be an employment contract.

Workers without an employment relationship

For the first time, the Labour Code 2019 also introduces the concept of “worker without an employment relationship” who is defined to mean an individual working not on a basis of being hired or employed through an employment contract. Since a worker without an employment relationship does not work under an employment contract, he/she needs not to be subject to the management, instruction and supervision of the company that he/she works for. Accordingly, the concept of “worker without an employment relationship” could capture more individuals working for companies not under an employment contract.

The Labour Code 2019 does not contemplate the specific rights and obligations of a worker without an employment relationship. However, the Labour Code 2019 provides that certain provisions of the Labour Code 2019 will apply to workers without an employment relationship. It is likely that the Government will provide detailed guidance on this issue.

This post is written by Tran Kim Chi and Nguyen Quang Vu

Vietnam Business Law