On 15 October 2018, the Government issued Decree 143/2018, which details regulation on compulsory social insurance (Social Insurance) applicable to foreign employees under the Social Insurance Law 2014. Before the issuance of Decree 143/2018, the Social Insurance Law 2014 only provides that foreign employees would be “allowed” to participate in Vietnam’s Social Insurance from 1 January 2018. For a long time, this vague regulation has given rise to concern as to whether the Social Insurance contribution for foreign employees is compulsory or voluntary. Decree 143/2018 now officially confirms that this is compulsory. In particular,
According to Social Insurance Law 2014, from 1 January 2018, any employee working under a labor contract with a term of from one month to three months must participate in the compulsory social insurance scheme (SI Requirement). The social insurance contributions are paid by both employer and employee subject to the contribution rate, of which the employer usually pays larger part. However, it is not clear whether an employee working under a “probation labour contract” (hợp đồng thử việc) with a term of from one to two months (Probationary Contract) must comply with the SI Requirement. There are various views on this issue.
Under the Labour Code 2012, a labour contract means an agreement between an employee and an employer on a paid job, working conditions, and rights and obligations of each party to the labour relationship. A labour contract between an employer and its employee can fall into one of the following types:
- Seasonal Contract: a seasonal contract (or contract for a specific job) is a labour contract with the duration of less than 12 months;
- Definite Term Contract: a definite term contract means a labour contract with the duration of between 12 months and 36 months. The term of a definite term contract can be extended one time only. Thereafter, the employer must enter into an Indefinite Term Contract (see below); and
- Indefinite Term Contract: an indefinite term contract means a labour contract in which the two parties do not fix the term nor the time of termination of the contract.
The Labour Code 2012 does not expressly require an employer, who intends to terminate an employment contract on the grounds of companies restructuring, change of technology or economic reasons (Company Restructuring), to give advance notice to the relevant employees.
The advance notice requirement is provided in Article 38.2 of the Labour Code 2012. Article 38.2 follows Article 38.1 which only covers termination of an employment contract on other grounds such as poor performance, prolonged illness, or force majuere events. Therefore, one can argue that Article 38.2 only applies to the scenarios contemplated under Article 38.1 of the Labour Code 2012 but not a Company Restructuring.
On the other hand, the above view may be not reasonable since:
- Although in terms of presentation, Article 38.2 follows Article 38.1, the wording of Article 38.2 can cover any termination of an employment contract by the employer including termination on the ground of Company Restructuring.
- An advance notice period may give the terminated employee an opportunity to (1) look for a new job before leaving his/her current job; or (2) make a complaint against the employer’s decision in case of wrongful termination. Therefore, there is no reason why a termination due to Company Restructuring should be treated differently from other cases.
- This interpretation has been adopted by the courts in certain cases.
This post is contributed in parts by Nguyen Hoang Duong, a trainee at Venture North Law Limited.