How to Determine Labour Relationship under Labour Code?

How to Determine Labour Relationship under Labour Code? Opinions of Labour Dispute Law Firm in Vietnam

In situations where employees begin to question the nature of their contract with the company, particularly during challenging economic times like the COVID-19 pandemic, the role of a labour dispute law firm in Vietnam becomes crucial in safeguarding the interests of employees.

Labour Contract of Consulting Contract?

During Covid pandemic, many companies face economic challenges that need to reduce the high paid workers’ cost. There are situations which dispute arisen and the employee started to realize that the contract he or she signs with the company he or she spends eight hours each day, follows instructions of work from supervisors, and receives monthly payment at the end of the month, seems to be a consulting contract on the face instead.

Is this a consulting contract or a labour contract? It is suggested the disputants engage the dispute lawyers in Vietnam to help resolve the potential conflict or help provide legal opinions if a labour relationship is established or not.

What is a Labour Contract in Vietnam?

A labour contract is essentially a civil transaction, whereby the employer and the employee enter into it on the basis of voluntarily, equality, goodwill, cooperation and honesty. According to the provisions of the Vietnam Labor Code, “a labor contract is an agreement between an employee and an employer on a paid job, salary, working conditions, and the rights and obligations of each party in the labor relations”.

In addition, the agreements which are not under the name of a labor contract but have content showing paid employment, salary and the management, administration and supervision of one party are considered as labor contracts.

An employee is allowed to enter into many labor contracts, but the employee must ensure compliance with signed contracts, this provision creates conditions allowing employees to use their full working capacity and have additional sources of income.

Contents of the labor contract must contain information about the employer and employee; Specific information about the job and workplace; Duration of the employment contract; Job- or position-based salary, form of salary payment, due date for payment of salary, allowances and other additional payments; Regimes for promotion and pay rise; Working hours, rest periods; Personal protective equipment for the employee; Social insurance, health insurance and unemployment insurance; Basic training and advanced training, occupational skill development, these are basic but very important contents that employees need to pay attention to negotiating closely and fully to ensure the interests of employees in the process of contract performance.

Besides, depending on the job and job position, the employer and the employee can agree in writing on issues related to information confidentiality, however, the employer needs to pay attention to building an appropriate system of internal labor documents to ensure the practical and effective application of information confidentiality.

Regarding the probationary contract, Labor Code allows employees and employers to agree on the content of the probationary period in the labor contract itself or sign a separate probationary contract. The agreement on the content of the probationary period in the labor contract will cause some insurance obligations to the insurance agency, therefore, the employer and the employee need to carefully search relevant legal provisions in order to negotiate and agree on the contents of the labor contract to ensure compliance with the law and the rights and obligations of both parties.

In addition, in case the employee and the employer wish to amend, supplement or replace the agreed contents in the labor contract, the two parties sign an addendum to the labor contract to amend the respective contents. However, if the term of the labor contract is changed, the parties must agree to terminate the old labor contract and enter into a new labor contract. The labor contract appendix is ​​an integral part of the labor contract and has the same effect as the labor contract.

The Role of a Labor Dispute Law Firm in Vietnam

A reliable labor dispute law firm in Vietnam can assist employees in several ways when such disputes arise:

Contract Analysis:

The first step is to thoroughly analyze the contract in question. Labor dispute lawyers have expertise in reviewing employment contracts to determine whether they meet the legal criteria for a labor contract. They can identify key clauses and assess whether the contract accurately reflects the employment relationship.

Legal Opinion:

The labour dispute law firm in Vietnam can provide legal opinions on whether a labor relationship is established or not based on the contract’s content. This opinion carries weight in negotiations and potential legal proceedings.

Negotiation: If it’s determined that the contract should be a labor contract, the labour dispute law firm in Vietnam can represent the employee in negotiations with the employer. This could involve discussions about employment terms, compensation, or other related matters to ensure the employee’s rights are protected.

Dispute Resolution:

In cases where negotiations fail, a labour dispute law firm in Vietnam can represent the employee in legal proceedings. This could include filing complaints with labor authorities or pursuing legal action in court to resolve the dispute.

Protection of Employee Rights:

The primary role of a labor dispute law firm in Vietnam is to protect the interests and rights of the employee. This includes ensuring the employee receives fair compensation, benefits, and protection under labor laws.

Keeping the Process Ethical:

It’s crucial to emphasize that a reputable labour dispute law firm in Vietnam adhere to ethical practices. They prioritize fair and honest negotiations to achieve the best outcome for the employee.

In a time when economic challenges can lead to disputes over employment contracts, engaging the services of a labor dispute law firm in Vietnam is a prudent step for employees. These professionals possess the legal expertise to analyze contracts, provide legal opinions, negotiate on behalf of employees, and represent them in legal proceedings if necessary.

By seeking legal counsel, employees can safeguard their rights and ensure that their employment contracts accurately reflect the nature of their work, providing them with the protection and benefits they deserve.

About ANT Lawyers, a Law Firm in Vietnam

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers has lawyers in Ho Chi Minh city, Hanoi,  and Danang, and will help customers in doing business in Vietnam.