Decree No. 44/2013/ND-CP detailing the implementation of certain articles of the Labor Code regarding labor contracts

DECREE

Detailed Implementation of Certain Provisionsof the Labor Code on Employment Contracts

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Pursuant to the Law on Organization of the Government dated December 25, 2001;

Based on the Labor Code dated June 18, 2012;

Pursuant to the Enterprise Law dated November 29, 2005;

Decree No. 07/2021/NĐ-CP

The Government promulgates this Decree to provide detailed implementation of certain provisions of the Labor Code on employment contracts,

PART I
GENERAL PROVISIONS

Article 1. Scope of Regulation

This Decree provides detailed implementation of the Labor Code regarding mandatory social insurance, unemployment insurance, and mandatory health insurance for workers when entering into employment contracts with multiple employers; contents of employment contracts for workers hired as directors in state-owned enterprises; procedures and formalities for declaring void employment contracts by labor inspectors and handling void employment contracts.

Article 2. Applicability

1. Workers as defined in Clause 1, Article 3 of the Labor Code.

2. Employers as defined in Clause 2, Article 3 of the Labor Code.

3. Agencies, organizations, and individuals related to the contents prescribed in Article 1 of this Decree.

Article 3. Explanation of Terms

In this Decree, the following terms are understood as follows:

1. State-owned enterprise means an enterprise operating under the Enterprise Law where the State holds less than 100% of the charter capital.

2. Workers hired as directors in state-owned enterprises are Vietnamese or foreign nationals meeting the criteria and conditions stipulated by law (hereinafter referred to as "hired directors").

3. Head of inspection team is the head of the labor inspection team performing labor inspection tasks, including: Head of the Department of Labor, Invalids and Social Affairs' inspection team; Head of the Ministry of Labor, Invalids and Social Affairs' inspection team; Head of specialized inspection teams of the Departments and General Departments under the Ministry of Labor, Invalids and Social Affairs.

Chapter II
PARTICIPATION IN MANDATORY SOCIAL INSURANCE, UNEMPLOYMENT INSURANCE, AND MANDATORY HEALTH INSURANCE FOR WORKERS WHEN ENTERING INTO EMPLOYMENT CONTRACTS WITH MULTIPLE EMPLOYERS

Article 4. Obligations to participate in mandatory social insurance, unemployment insurance, and mandatory health insurance of employers and workers

1. Obligations to participate in mandatory social insurance and unemployment insurance of employers and workers:

a) When a worker enters into employment contracts with multiple employers and both the worker and the employers are subject to mandatory social insurance and unemployment insurance, the worker and the employer of the first employment contract entered into shall be responsible for participating in mandatory social insurance and unemployment insurance according to the law.

Employers of the remaining employment contracts shall be responsible for paying concurrently with the wage payment period of the worker an amount equivalent to the mandatory social insurance and unemployment insurance contributions due from the employer according to the law.

b) When the employment contract that the worker and the employer are participating in mandatory social insurance and unemployment insurance terminates or changes and neither the worker nor the employer is subject to mandatory social insurance and unemployment insurance, the worker and the employer who are subject to mandatory social insurance and unemployment insurance of the subsequent employment contract shall be responsible for participating in mandatory social insurance and unemployment insurance according to the law.

2. Obligations to participate in mandatory health insurance of employers and workers:

a) When a worker enters into employment contracts with multiple employers and both the worker and the employers are subject to mandatory health insurance, the worker and the employer of the employment contract with the highest salary shall be responsible for participating in mandatory health insurance according to the law on health insurance.

Employers of the remaining employment contracts shall be responsible for paying concurrently with the wage payment period of the worker an amount equivalent to the mandatory health insurance contributions due from the employer according to the law on health insurance.

b) When the employment contract that the worker and the employer are participating in mandatory health insurance terminates or changes and neither the worker nor the employer is subject to mandatory health insurance, the worker and the employer who are subject to mandatory health insurance of the employment contract with the highest salary among the remaining contracts shall be responsible for participating in mandatory health insurance according to the law.

3. Changes in obligations to participate in mandatory social insurance, unemployment insurance, and mandatory health insurance as prescribed in Point b Clause 1 and Point b Clause 2 of this Article are regulated as follows:

a) The worker and the employer have the responsibility to amend and supplement the contents on mandatory social insurance, unemployment insurance, and mandatory health insurance in the employment contract according to the law;

b) The worker has the responsibility to notify and submit the Social Insurance Booklet, Health Insurance Card, and other relevant documents to the employer of the subsequent employment contract for implementation.

4. The worker has the responsibility to notify and attach copies of the employment contracts entered into, amended, supplemented, or terminated for the remaining employer's knowledge.

Article 5. Obligations of employers towards employees who suffer work-related accidents or occupational diseases

1. In case an employee suffers a work-related accident or occupational disease while performing their job duties under a labor contract with an employer who participates in mandatory social insurance, the employer and the social insurance organization shall be responsible for resolving benefits for the employee in accordance with the provisions of the law. Within two working days from the date of the work-related accident or the determination of the occupational disease, the employer shall have the responsibility to notify in writing the health status of the employee to other employers under remaining labor contracts.

2. In case an employee suffers a work-related accident or occupational disease while performing their job duties under a labor contract with an employer who does not participate in mandatory social insurance or mandatory health insurance for employees, that employer shall be responsible for:

a) Paying expenses from first aid, emergency care to stable treatment for the employee in accordance with Clause 1, Article 144 of the Labor Code;

b) Paying full wages according to the labor contract to the employee suffering a work-related accident or occupational disease who must take time off for treatment;

c) Compensating or providing assistance to the employee in accordance with Clause 3 or Clause 4, Article 145 of the Labor Code;

d) Notifying in writing other employers under remaining labor contracts about the health status of the employee.

3. Employers under labor contracts may not unilaterally terminate the labor contract with an employee who suffers a work-related accident or occupational disease during the treatment period, except in cases provided for in Point b, Clause 1, Article 38 of the Labor Code.

When the health of the employee recovers, the employer and the employee shall agree to continue implementing the labor contract or amend and supplement the contents of the labor contract or terminate the concluded labor contract in accordance with the provisions of the law.

Chapter III
CONTENT OF LABOR CONTRACT FOR EMPLOYEES HIRED AS MANAGERS IN STATE CAPITAL ENTERPRISES

Article 6. Content of labor contract for employees hired as managers in state-owned enterprises

1. Name, address of the state-owned enterprise; name, date of birth, identification number of the Chairman of the Board of Members or the Chairman of the company.

2. Name, date of birth, gender, nationality, professional qualifications, place of residence, identification number or other legal documents as prescribed by law of the person hired as manager.

3. The term of the labor contract is determined by both parties within a period of at least twelve months to thirty-six months.

The term for the employer and the person hired as manager to agree on terminating the labor contract, extending the term of the labor contract, or concluding a new labor contract shall be agreed upon by both parties but not more than forty-five days before the expiration of the labor contract. For the case of extending the term of the labor contract, the term of the labor contract shall be agreed upon by both parties but shall not exceed twelve months at most.

4. Work assignments, prohibited work, and responsibilities for performing work by the person hired as manager as prescribed by law.

5. Place of work of the person hired as manager.

6. Contents, deadlines, responsibilities for protecting business secrets and technological secrets of the person hired as manager and handling violations.

7. Rights and obligations of the employer, including:

a) Ensuring capital, assets, and other resources for the person hired as manager to perform their work;

b) Providing information for the person hired as manager to perform their work;

c) Inspecting, supervising, and evaluating the effectiveness of the work performed by the person hired as manager;

d) Issuing work regulations for the manager;

đ) Other rights and obligations as prescribed by law;

e) Other rights and obligations agreed upon by both parties.

8. Rights and obligations of the person hired as manager, including:

a) Performing assigned tasks;

b) Reporting difficulties encountered during the performance of assigned tasks and proposing solutions to overcome them;

c) Reporting the management and use of capital, assets, labor, and other resources;

d) Other rights and obligations as prescribed by law;

đ) Other rights and obligations agreed upon by both parties.

9. Benefits of the person hired as manager, including:

a) Annual salary, advance payment, and salary settlement, salary increase system;

b) Bonuses, advance payment, and bonus payment;

c) Working hours, rest periods;

d) Social insurance, health insurance, unemployment insurance as prescribed by law;

đ) Training and upgrading skills to perform assigned tasks;

e) Work equipment, transportation means, communication tools, and other supplements;

g) Other benefits agreed upon by both parties.

10. Conditions, procedures, and formalities for amending, supplementing the labor contract, and unilateral termination of the labor contract.

11. Rights and responsibilities of the employer and the person hired as manager when terminating the labor contract.

12. Labor discipline, material liability, resolution of labor disputes, and complaints.

13. Other agreements.

Article 7. Content of the labor contract for workers hired as directors in state-owned enterprises

The content of the labor contract for workers hired as directors in state-owned enterprises shall be agreed upon by the Board of Members or the Board of Management and the person hired as director, applying the provisions set forth in Article 6 of this Decree.

Chapter IV
PROCEDURE AND PROCEDURES FOR ANNOUNCING THE INVALIDITY OF LABOR CONTRACTS BY LABOR INSPECTORS AND HANDLING INVALID LABOR CONTRACTS

Section 1
PROCEDURE AND PROCEDURES FOR ANNOUNCING THE INVALIDITY OF LABOR CONTRACTS BY LABOR INSPECTORS

Article 8. Authority to declare labor contracts invalid by labor inspectors

The Chief Inspector of the Department of Labor, Invalids, and Social Affairs has the authority to declare labor contracts invalid.

Article 9. Procedure and procedures for announcing the invalidity of labor contracts by labor inspectors

1. During the inspection process or while resolving complaints and reports related to labor, if violations of the content of labor contracts as stipulated in Article 50 of the Labor Code are discovered, the Head of the Inspection Team or the independent labor inspector or the person assigned to conduct specialized inspections shall prepare a record of the violation and request the employer and employee to amend and supplement the invalid labor contract.

2. Within five working days from the date of receiving the record of the violation, the employer and employee must amend and supplement the invalid labor contract.

3. Within three working days from the expiration of the deadline to amend and supplement the invalid labor contract, if both parties have not amended and supplemented it, the Head of the Inspection Team or the independent labor inspector or the person assigned to conduct specialized inspections shall send the record along with a copy of the invalid labor contract to the Chief Inspector of the Department of Labor, Invalids, and Social Affairs where the enterprise's main office is located.

4. Within three working days from the date of receipt of the record of the violation, the Chief Inspector of the Department of Labor, Invalids, and Social Affairs shall examine and issue a decision declaring the labor contract invalid.

5. The decision declaring the labor contract invalid must be sent to the employer and each employee involved in the invalid labor contract, the representative organization of employees, and the competent state agency on labor at the location of the enterprise's main office.

Section 2
TREATMENT OF VOID LABOR CONTRACTS

Article 10. Handling partially invalid labor contracts

1. Within three working days from the date of receipt of the decision declaring the partial invalidity of the labor contract, the employer and employee must amend and supplement the labor contract by signing an annex to the labor contract or entering into a new labor contract according to the provisions of the law.

2. From the time the partial invalidity of the labor contract is declared until both parties amend and supplement the invalid part, the rights and interests of the employee shall be resolved according to the provisions of the internal regulations on labor, collective labor agreement (if any), and the provisions of the labor law.

If the invalid labor contract has a lower salary than that prescribed by the labor law, internal regulations on labor, and collective labor agreement currently in effect, both parties shall renegotiate according to the provisions of Clause 1 of this Article. The employer is responsible for refunding the difference between the agreed salary and the salary in the invalid labor contract based on the actual working time of the employee, but not exceeding twelve months.

Article 11. Handling of void employment contracts

1. Within fifteen days from the date of receipt of the decision declaring the employment contract wholly void due to the contracting parties not having the appropriate authority, the state management agency for labor at the location where the enterprise's main office is situated shall be responsible for guiding the parties to re-sign the employment contract.

2. The employment contract containing wholly unlawful contents shall be canceled when there is a decision declaring the employment contract wholly void.

3. Within three working days from the date of receipt of the decision declaring the employment contract wholly void due to the contract's provisions on employee benefits being lower than those stipulated by labor laws, internal regulations, and collective labor agreements currently in force, the employer and employee shall be responsible for concluding a new employment contract in accordance with labor laws.

During the period from the declaration of the employment contract as wholly void until both parties conclude a new employment contract, the rights and interests of the employee shall be resolved according to the provisions of Clause 2, Article 10 of this Decree.

4. Within three working days from the date of receipt of the decision declaring the employment contract wholly void due to the work agreed upon in the employment contract being prohibited by law, the employer and employee shall be responsible for concluding a new employment contract in accordance with labor laws.

In case a new employment contract cannot be concluded, the employer shall be responsible for paying the employee an amount of money agreed upon by both parties but not less than one month's minimum regional wage published by the Government for each year of work from the date of the decision declaring the employment contract wholly void.

5. Within three working days from the date of receipt of the decision declaring the employment contract wholly void due to the contract's contents restricting or preventing the right to establish, join, and operate trade unions, the employer and employee shall be responsible for concluding a new employment contract in accordance with labor laws.

Article 12. Initiating litigation or lodging complaints against decisions declaring employment contracts wholly void

If disagreeing with the decision declaring the employment contract wholly void, the employer or employee may initiate litigation before the court or lodge a complaint with the competent state agency in accordance with the law.

Chapter V
IMPLEMENTING PROVISIONS

Article 13. Effective Date

1. This Decree takes effect from July 1, 2013.

2. Decree No. 44/2003/NĐ-CP dated May 9, 2003 of the Government detailing and guiding the implementation of certain provisions of the Labor Code regarding employment contracts and previous provisions contrary to this Decree cease to be effective from the date this Decree takes effect.

1. The Minister, Heads of Ministries equivalent to ministries, Heads of government agencies, Chairmen of provincial People's Committees under the central government, and related agencies, units, and individuals are responsible for implementing this Circular.

1. The Minister of Labor, Invalids, and Social Affairs shall be responsible for guiding the implementation of this Decree.

2. Ministers, Heads of ministerial-level agencies, Heads of agencies under the Government, Chairpersons of provincial People's Committees directly under the central government, and related agencies, enterprises, organizations, and individuals are responsible for implementing this Decree./.