Labor relationship is a key relationship in current social life. To earn income, from which getting spending, investment, and promoting economic development, labor is essential. However, the practice in Vietnam shows that the interests of employees are not guaranteed. There are many cases that employers do not sign contracts with employees or the contract contains many disadvantage terms for employees but employees do not understand clearly or underestimate these terms. Until being terminated the labor contract, employees could not claim their benefits they signed and accepted disadvantage terms. To protect their interests, firstly, employees must understand the labor law and read the labor contract carefully before signing. In addition, employees must pay attention to the following contents in the labor contract:
1. Probationary period
Under provisions of the law, employees and employers can sign a labor contract with a term of probation. This is also the premise for the two sides to enter official labor relations later. However, many employees often underestimate this regulation without knowing that their rights are being violated.
Regarding the probation period regulated in Article 25 of the Labor Code 2019, in case the employer stipulates the probation period exceeding the stipulations of Article 25, it will violate the law and may be sanctioned administrative violation.
Pursuant to Article 26 of the Labor Code, the salary in the probation period of employees is agreed by the two parties but must be at least 85% of the salary of that job. This is a regulation employers violate a lot in practice, so employees need to pay special attention to protect their interests.
Pursuant to Article 27 of the Labor Code, at the end of the probationary period, the employer must announce the probation result to the employee. If the employee’s probation has met requirements, the employer must continue to perform the signed labor contract.
Thus, to ensure the interests of employees, when agreeing to sign a labor contract, employees need to check whether the time limit and the probationary salary are lawful or not. However, employees should note that according to the current regulations, during the probation period, each party has the right to cancel the probationary contract or the signed labor contract without prior notice and does not have to compensate.
2. Salary and other interests
When working, employees are always concerned about salary and other interests such as social insurance, health insurance, allowances such as bonuses, annual leave, and salary increases regulations, … Therefore, employees must pay attention to contents of salary and others when signing a labor contract.
Regulations of salary are stipulated in Chapter VI of the Labor Code, in which the salary includes the salary of the job or title, allowance, and other additional payments. The law does not regulate the maximum salary or the fixed salary for each job so employer and employee can freely negotiate. However, the law stipulates that the salary of the job or title must not be lower than the minimum salary specified by the Government.
3. Labor discipline
Pursuant to Article 124 of the Labor Code, the forms of labor discipline include: reproving, prolonging the period of increasing salary for no more than 6 months, unseating, dismissing.
In which, there are two issues that employers often violate:
- Salary reduction/deduction penalty: Currently, there is no shortage of companies applying salary deduction penalty when staff, employees violate rules and regulations such as being late for work, taking a day off without permission, or failing with KPIs, … However, salary reduction/deduction of penalty is not a form of labor discipline. Therefore, if the employer stipulates the application of salary reduction/deduction penalty in the labor contract, it will violate the regulations of the law in Clause 2 Article 127 of the Labor Code.
- Dismissal: In fact, when applying the dismissal, the employer often violates the labor discipline such as: the labor discipline does not have the participation of the representative organization of the employee at the workplace where the employee being disciplined is a member; the employee is absent from the session of labor discipline or does not have the right to defend himself; the disciplinary action is not recorded in writing (Clause 1 Article 122 of the Labor Code).
Therefore, before signing a labor contract, employees should note regulations of labor discipline in labor contract as well as the labor rules of the company where the employee intends to work.
4. Termination of labor contract
Unilateral termination of labor contract is one of the most common disputes and often occurs in labor relations. To be able to protect their interests, employees need to understand the following issues:
- The cases that employees and employers are allowed to unilaterally terminate the labor contracts: Employees are allowed to unilaterally terminate the labor contract pursuant to Article 35 of the Labor Code. Employers are allowed to unilaterally terminate the labor contract pursuant to Clause 1 Article 36 of the Labor Code. In addition, employers are not allowed to unilaterally terminate the labor contract if it belongs to one of the cases in Article 37 of the Labor Code. In some special cases, employers are allowed to unilaterally terminate the labor contract due to changes in structure, technology, or due to economic reasons (Article 42 of the Labor Code); due to total division, partial division, amalgamation, acquisition; selling, renting, converting business type; transferring the ownership, use-rights of assets of enterprises, or cooperatives (Article 43 of the Labor Code).
- Procedures of unilateral termination of the labor contract: In the cases of unilateral termination of the labor contract specified in Article 35 and Clause 1, Article 36 of the Labor Code, the employee and the employer must notify a reasonable period of time in advance according to the Labor Code’s regulations. In special cases in Article 42 and Article 43 of the Labor Code, the employer must execute the plan of using employees and must exchange opinions with the employees’ representative organization at the workplace.
In summary, with the analyses above, the main contents that employees should pay attention to when signing a labor contract with the employer are probation period, salary and other interests, labor discipline, termination of labor contracts. TNTP hopes these legal shares will be useful to you.
Best regards.
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TNTP & Associates International Law Firm
Lawyer: Nguyen Thanh Ha
Email: ha.nguyen@tntplaw.com
