Since last year, some companies have recently carried out the amendment and/or supplement to the internal labour rules, followed by registration with the competent authority in accordance with the Labour Code. There are critical points to these rules that can be looked at from a legal perspective in terms of the practice of Vietnam, with a strong focus on notification.
The internal labour rules (ILR) is one of the overarching documents for not only employers but also employees. In general, employers must issue it – the written rules are required if the employers employ 10 or more people (Article 118.1 of the Labour Code). If fewer than 10 employees are hired, the ILR in writing is not required, but the contents of breach of labour discipline and liabilities for material loss shall be incorporated in the labour contract.
|Ho Tuong Vy-Lawyer, Ho Chi Minh City Bar Association |
As regulated, the registration of the ILR with the specialised agency for labour under the provincial people’s committee where the employer has registered business is required if the employer employs 10 or more people (Article 119.1 of the Labour Code).
As for the ILR subject to the registration with the competent state authority, it comes into effect after 15 days from the date that authority has received a completed registration dossier, known as the effective date.
In the eyes of the applicable regulations, employers including sub-leasing employers must implement some statutory obligations including but not limited to: delivering the registered ILR to each organisation representing the employer at the grassroots level (if any); notifying all the employees; and posting the main contents of the rules at essential locations in the workplace.
Employers and sub-leasing ones who have failed to comply with the statutory obligations are subject to administrative sanctions (Articles 13.1.a and 19 of Decree No.12/2022/ND-CP dated January 2022 providing penalties for administrative violations in the fields of labor, social insurance, and overseas manpower supply under contract). Although the employer is obliged to notify the employees of the registered ILR, the applicable regulations seem to go quiet on the specific duration that the employer shall perform this obligation.
If an employer carries out the notification of the registered ILR to employees at the time later than the effective date, it is clear that the employees have not been notified from the effective date to the date before the notification date for their information and compliance; this is known as the silence period.
Assuming that the employees might have committed some violations as prescribed in the registered ILR during the silence period, two concerns may be considered: whether the employees are subject to the ILR during the silence period; and whether the effective date overrides the notification date in application of the ILR to the employees.
For instance, the completed registration dossier has been fully received from the competent state authority on October 1, 2022, and the effective date will therefore be after 15 days from that date. On November 1, 2022, the employer notified by email the employees of the registered ILR; but two employees on October 28 committed violations as prescribed in the rules. A question is then raised of whether the two employees and their violations committed on October 28 are subject to the registered ILR while it has not been notified to those employees by that date.
From that viewpoint, the registered ILR in this situation is applicable to the employees from the notification date because they are only aware of the rules from the date the employer has notified them. For full awareness and compliance, employers shall proactively keep them notified of the ILR once it enters into effect. Do not give rise to and/or prolong the silence period.
Apart from the particular forms and means of notification as regulated in Article 43.2 of Decree No.145/2020/ND-CP dated December 2020 elaborating on the Labour Code on working conditions and labor relations, the employers are permitted and entitled to opt for multiple forms and means of notification of the registered ILR to their employees insofar as the law of Vietnam does not prohibit. Specifically, employers rely on their own line, structure, and size of business and will decide on appropriate form and means of notification of the ILR.
When employers put employees and their compliance at the heart of operations, some solutions may – in the era of digitalisation and technology – be taken into consideration. First, employers may upload the ILR to their internally electronic information system, and simultaneously prepare a very short email template to send to all the employees in notifying them and also encouraging them to find the full version as posted on such a system.
Secondly, employers can upload the registered ILR to such a system so that automated email notification with or without the full version-related link shall be immediately generated and sent to employees.
Some foreseeable benefits of this are to fully provide the employees with the registered ILR and the commencement of application for their information, awareness and compliance; and on the other side, to support the employers to have in hand evidence of their compliance with notification. Businesses that are considered great places to work will, in their best capacity, come up with a multitude of solutions to bring the registered ILR to its employees.
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