Tiếng Việt
中文 (中国)
Recently, there has been many debates on the increase of the limit of overtime working hour in Vietnam to aid the recovery of the economy. Excluding the overall conflicts in the opinions, one of the favorably approved statements in these discussions is that no matter what the limit of the working hours/month is, the employer must have the employee’s consent first.
According to the provisions of Clause 2, Article 107 of the Labor Law 2019, an employer may request an employee to work overtime when the following conditions have been fully met:
- The consent of the employee;
- Ensure that overtime hours do not exceed 50% of normal working hours/day;
- In the case of applying the regulation on normal working hours per week, the total number of normal working hours and overtime hours shall not exceed 12 hours/day; no more than 40 hours/month;
- Ensure that the number of overtime working hours does not exceed 200 hours/year, except for the case of overtime work not exceeding 300 hours/year if doing jobs such as manufacturing, processing and exporting textile products, sewing, electricity, electronics, processing agricultural and forestry products, etc.
No matter what is the limitation on the overall working hours, whether it is calculated by day, week, month, or year, the consent of the employee is the most important condition to the overtime working regime.
Accordingly, if it is not in exceptional cases, the employer must have the consent of the employee to work overtime.
The consent of the employee
The consent of employees when working overtime is specifically guided in Article 59 of Decree 145/2020/ND-CP as follows:
“Article 59. Consent of employees when working overtime
1. Except for the cases specified in Article 108 of the Labor Code, the employer must obtain the employees’ consent to the following matters when organizing overtime work:
a) Overtime hours;
b) Overtime location;
c) Overtime works.
2. In case the employees’ consent is made into a separate document, refer to form No. 01/PLIV in Appendix IV issued together with this Decree.”
Although written consent to overtime is not required as this might complicate the matter, especially for producing enterprises that regularly organize overtime working regimes, however, the employer still has to get the consent of the employee to work overtime on the above contents.
The punishment for forcing the employees to work overtime
Although the regulation is clear, there are still many enterprises violating the law by forcing the employees to work overtime despite their disagreements.
This is a violation of the right of employees and in some rare cases, a violation of human rights.
Accordingly, the employers who commit such an action will be punishable by law.
Clause 3, Article 17, Decree 28/2020/ND-CP stipulating the fines for employers who violate the rights of employees:
“3. A fine ranging from VND 20,000,000 to VND 25,000,000 shall be imposed on the employer who commits one of the following acts:
b) Mobilizing employees to work overtime without the employees’ consent, except for the case specified in Article 107 of the Labor Code.”
Thus, if forcing an employee to work overtime without that person’s consent, the enterprise will be fined from 20-25 million VND. Therefore, the employer needs to pay close attention to the employee’s consent not just to avoid being fined but also to ensure the health of workers which has a direct relation to the productivity of the company.
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.
|
***Other service of ASL LAW – full service Vietnam law firm *** |
|
|
|
|
||
|
Oversea investment consultancy for Vietnamese enterprises |
|
|
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
