Tiếng Việt
中文 (中国)
In Vietnam, the labor issue is a very complex issue and is surrounded by many legal troubles. One of those troubles is the question of whether the time off during breaks is paid in Vietnam, or in other words, is break time during a working day paid in Vietnam?
Normally, the break in a standard 8-hour workday in Vietnam is not a big deal at all to the point of dissecting it to see if it counts as working time.
However, for some particular businesses that calculate working hours by the literal hour, there are a few business owners who have made strange regulations that a break time, even if only for 10 minutes, 15 minutes a session will not be included in the working hours.
Thereby, a tiring working day added with the efforts need to make in order to carefully calculate how the rest time is enough to not affect the salary is a tedious burden for the employee.
However, considering the case from a legal perspective, does this behavior of business owners violate the Vietnamese labor code?
If it is a violation, what should the employee do to reclaim his/her rights?
Legal basis
According to Article 109 of the Labor Code 2019, employees who work according to the working hours specified in Article 105 of the Labor Code from 06 hours or more in a day are entitled to at least 30 consecutive minutes of rest between hours.
In case the working time is at night, the break between hours is at least 45 minutes continuously.
In case the employee works a continuous shift of 06 hours or more, the break between hours is counted in the working hours.
In addition to the rest period specified in Clause 1, Article 105, the employer shall establish his/her own regulations, arrange for employees to take breaks, and record them in the internal working regulations.
In addition, shift workers are entitled to at least 12 hours off before switching to another shift.
Time off – working time
According to the above regulations, during daytime work, employees need to have at least 30 minutes of rest a day for shifts of more than 6 hours.
Because the standard working day of the business in Vietnam is 8 hours, taking a break of at least 30 minutes a day is the employee’s right and this time will be included in the working time.
It should be noted, however, that this rest period is not necessarily ‘consecutive’ as required by the labor code.
That means businesses can split their 30-minute break into 15 minutes in the morning, 15 minutes in the afternoon, or 10 minutes in the morning and 20 minutes in the afternoon.
In the opinion of ASL LAW, the rest period according to the labor law is the minimum level, as well as other provisions of the labor code such as minimum wage, number of leaves, etc., business owners are encouraged to establish rest periods beyond the minimum amount of rest time. Specifically, businesses can stipulate in their labor regulations that the rest time is 35 minutes, 40 minutes, or 45 minutes a day depending on the needs and operation model of the company.
To answer the question in the title, if the enterprise stipulates that the break time does not count as working time, then the business is definitely violating the law of Vietnam.
If the employee discovers that the employer is violating their rights, he or she can file an application with the Department of Labor, War Invalids, and Social Affairs where the company is located to ask for intervention to resolve or initiate a lawsuit against the employer to the People’s Court of the district where the company’s headquarters is located.
ASL LAW is the top-tier Vietnam law firm for Employment and Labor Law. If you need any advice, please contact us for further information or collaboration.
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Oversea investment consultancy for Vietnamese enterprises |
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