Through the System of Receiving and Responding to Businesses’ recommendations, the Mednovum Trading Service Co., Ltd., asked the authorities to answer a number of problems for businesses in implementing policies for employees.

Can the company change the employee's working location on its own?

On September 1, 2017, the Company signed an indefinite-term labor contract with the employee. Job position is salesman.

In the labor contract, it is clearly stated that the working location is "in the Ho Chi Minh City area or elsewhere depending on the employer's mobilization from time to time".

On April 26, 2018, the Company had a discussion with the employee about changing the working area in Binh Duong Province (only changing the working area, except that there was no other change) but the employee did not agree.

Then, due to the characteristics of the job, the Company issued a notice to change the working area with the starting date of May 28, 2018 and sent it to the employees.

More than 5 working days from the date of starting work at the new area, the employee did not present at the working area, so the Company decides to discipline the employee with the form of dismissal discipline (handling form and this discipline level is clearly stated in the Company's internal regulations (stipulated under Article 126 of the 2012 Labor Code). The internal regulations have also been registered in accordance with the law and are still valid.

Regarding this issue, The Department of Labor Relations and Wages, the Ministry of Labor, War Invalids and Social Affairs has the following comments:

According to the provisions at Point b, Clause 3, Article 4 of Decree No. 05/2015/ND-CP dated January 12, 2015 of the Government detailing and guiding the implementation of a number of contents of the Labor Code that have been approved by the Government. amending and supplementing Decree No. 148/2018/ND-CP dated October 24, 2018 of the Government, the content of the labor contract must clearly state the scope and location of the employee doing the agreed job; In case the employee has to work at many different locations, write the main locations where the employee works.

According to the provisions of Article 35 of the Labor Code 2012, during the implementation of the labor contract, if any party requests to amend and supplement the contents of the labor contract, it must notify the other party at least 3 working days in advance of the content that needs to be amended or supplemented.

If the two parties can reach an agreement, the amendment and supplementation of the labor contract shall be carried out by signing an appendix to the labor contract or concluding a new labor contract; in case the two parties cannot agree on the amendment and supplementation, the signed labor contract shall continue to be performed.

Pursuant to the above provisions and the recommendation of Mednovum Trading and Service Co., Ltd., in case the Company wants to change the working location compared to the content stated in the labor contract, it must agree with the employee to amend the labor contract or signing a new labor contract, in case no agreement is reached, they must continue to perform according to the signed labor contract.

Regulations on termination of labor contracts with personnel of representative offices

Regarding the labor relationship between the head of the representative office and foreign traders, Mednovum Company proposes to answer the following questions:

- When a foreign trader terminates the operation of a representative office in Vietnam, which labor law provisions will be applied to terminate the labor relationship with the personnel in the representative office (including the head of the representative office and other employees). Employees working in representative offices)? In which, the chief representative signs labor contracts with foreign traders and employees working in the representative office sign labor contracts with the representative office.

- Is it true that the foreign trader issued a decision to terminate the labor contract with the head of the representative office according to Clause 7, Article 36 of the Labor Code? Because Clause 7, Article 36 of the Labor Code applies to the case where the employer terminates its operation but the employer of the head of the representative office is a foreign trader (operating abroad)?

Regarding this issue, The Department of Labor Relations and Wages, Ministry of Labor, War Invalids and Social Affairs has the following comments:

The termination of operation of a representative office shall comply with the provisions of Articles 35, 36 and 37 of the Government's Decree No. 07/2016/ND-CP dated January 25, 2019 detailing the Commercial Law on representative offices and branches of foreign traders in Vietnam.

The labor contract between the employee and the representative office (which has been terminated) shall be terminated according to the provisions of Clause 7, Article 36 of the Labor Code. The rights of employees who have worked at the representative office shall comply with the provisions of Article 38 of Decree No. 07/2016/ND-CP.

Accordingly, foreign traders whose representative offices or branches have ceased operations are responsible for performing contracts, paying debts, including tax debts, and settling all legal rights for employees has worked at representative offices and branches as prescribed by law.

The termination of the labor contract between the head of the representative office and the foreign trader is not in the case of termination of the labor contract as prescribed in Clause 7, Article 36 of the 2012 Labor Code of Vietnam.

Maternity leave without paying UI

Regarding the maternity leave regime, as reflected by the Mednovum Company, Clause 2, Article 11 of Decree No. 28/2015/ND-CP stipulates: “In case the employee takes maternity leave or is sick for 14 working days or more without receiving monthly salary at the unit but enjoying social insurance allowance, the employee shall suspend the performance of the labor contract or the employment contract that has already been signed. Contract in accordance with the law, the employee is not eligible to participate in unemployment insurance (UI) during this time.

Accordingly, during the maternity leave period, the enterprise will not pay unemployment insurance premiums for employees and the maternity leave will be counted into the working time to calculate the severance allowance.

However, enterprises now want to apply the provisions of Clause 3, Article 186 of the Labor Code 2012 to pay more at the same time as the employee's salary period at the rate of 1%, equivalent to the level of UI payment for employees in 6 months. This maternity leave, so that the maternity period is still included in the time when the employee participates in unemployment insurance as prescribed in Point b, Clause 3, Article 14 of Decree No. 05/2015/ND-CP.

Thereby, when a female employee quits, the severance allowance calculation period will not include the maternity leave period (the time calculated to pay the severance allowance will be shortened or zero).

Example: Employee A signs a 2-year labor contract with the Company. A year later, employee A takes maternity leave for 6 months. During this maternity leave, the Company will pay the UI contribution in the same salary period of the employee (the provisions of Clause 3, Article 186 of the Labor Code 2012). At the end of the maternity leave period, the employee continues to work until the end of the labor contract and then the enterprise does not have to pay severance allowance to the employee during this 6 months of maternity leave.

Mednovum Company wants to know, is the implementation reasonable or not?

Regarding this issue, the Department of Labor Relations and Wages, the Ministry of Labor, War Invalids and Social Affairs has the following comments:

According to the provisions of Clause 2, Article 11 of Decree No. 28/2015/ND-CP dated March 12, 2015 of the Government detailing the implementation of a number of articles of the Employment Law on unemployment insurance, employees who take leave shall enjoy the following benefits: maternity or sick benefits for 14 working days or more without receiving monthly salary at the unit but enjoying social insurance benefits, the employee suspends the performance of the labor contract or the signed work contract in accordance with the law employees are not eligible to participate in unemployment insurance during this period.

According to the provisions of Clause 3, Article 186 of the Labor Code 2012, employees are not eligible to participate in compulsory social insurance, compulsory health insurance, unemployment insurance, in addition to paying salary according to the job, the employer has the responsibility for additional payment together with the employee's salary payment period an amount equivalent to the payment of social insurance, health insurance, unemployment insurance and annual leave as prescribed.

Pursuant to the regulations and recommendations of Mednovum Trading and Service Co., Ltd., female employees during the maternity leave period are not eligible to participate in unemployment insurance. Laborers do not receive salary from the enterprise, so there is no basis for the enterprise to pay an amount equivalent to the payment of UI contributions in the same period of salary payment to the employee.