WHAT DO VIETNAMESE EMPLOYEES DO WHEN FACING THE CURRENT SITUATION OF EXPLOITATION?

In the context of the modern economy, labour exploitation is a thorny problem, reflected in the unbalanced relationship between employees and employers. The main reason for the current situation of exploitation is that employees are often in a weaker position in labour relations when they need a job to maintain a living. Labour exploitation is not only an unfair act but also contrary to the law and causes an imbalance in social relations, specifically, labour relations. This behaviour not only impacts the psychology of employees but also leads to resentment and hurts the employees are being exploited. Below is some legal analysis surrounding the topic “What do Vietnamese employees do when facing current exploitation?”

1. What is labour exploitation?

Labour exploitation is not only the unfair use of power, but also the systematic appropriation of the fruits of labour through the abuse of status, private property, or other factors. This behaviour reflects a social relationship based on a power asymmetry between employees and employers that puts employees in a weaker position than employers because they need jobs to maintain a living.

2. Legal provisions:

The applicable laws do not have a definition of “labour exploitation”, however, as mentioned above, labour exploitation is a case where an employer illegally appropriates the fruits of labour of an employee. Accordingly, labour exploitation is an act in which an employer forces an employee to work beyond the requirements and conditions committed in the employment contract and collective labour agreement and labour law. In order to prevent the current situation of exploitation, the labour law has stipulated many provisions and sanctions for this behaviour to protect  Vietnamese employees in particular and all employees within the Vietnamese territory in general. In addition, the labour law also governs detailed provisions on the performance of employment contracts and salary such as working hours, overtime and minimum salary, principles of salary payment to ensure the legitimate rights and interests of employees and prevent the labour exploitation of from employers.

3. The current situation of exploitation and sanctions for violations:

The labour exploitation is not a new issue but is always a thorny issue of special concern to employees and the State. In the context of international integration, many job opportunities are open for Vietnamese employees, but along with that, labour exploitation takes place in many methods and is carried out in a much more methodical and sophisticated way. Below are some common current situations of exploitation:

3.1. Organising overtime work for employees beyond the time limit prescribed by law

Article 107.2 of the Labour Code 2019 and Article 59.1 of Decree 145/2020/ND-CP not only stipulate that overtime work must be approved by the employee regarding the time, location and overtime work but also sets constraints on the maximum of overtime hours for employees to avoid the situation where employees are overworked, do not have enough rest time to regain their working energy, and cause imbalance for employees’ daily lives. Specifically, the overtime hours must not exceed 50% of the normal working hours in a day, in case the regulation on normal weekly working hours is applied, the total number of normal working hours and overtime hours must not exceed 12 hours in a day; must not exceed 40 hours in a month, except for some cases specified in Article 107.3 of the Labour Code 2019, the overtime hours must not exceed 200 hours in a year.

The aforementioned regulations emphasise the importance of agreement between enterprises and employees when performing overtime work specified in employment contracts and internal labour regulations as well as setting overtime hour limits for employers when negotiating overtime with employees. This is not only considered a measure to ensure transparency but also creates conditions for employees to have the right to decide on their overtime work as well as ensuring the health and quality of life of employees.

In case an enterprise violates regulations on overtime, specifically the act of organising overtime work for employees beyond the time limit prescribed by law, the employer may be fined from VND10,000,000 to VND150,000,000 depending on the number of violated employees or fined from VND40,000,000 to VND50,000,000 for the act of organising overtime work for employees without the consent of the employee as prescribed in Articles 6.1 and 18.3, 18.4 of Decree 12/2022/ND-CP. These sanctions are not only a deterrent to employers in complying with legal regulations, but also an opportunity for employers to improve the quality of human resource management and create a positive and trusting working environment.

3.2       Failure to pay overtime salary

The current situation of exploitation through failure to pay overtime salary to employees of enterprises is a prominent problem in the business environment in Vietnam. The demand for overtime is heightened due to work pressures and especially in industries that require high flexibility. However, many employers have not complied with the law on the payment of overtime salary, leading to several difficulties and labour disputes. Many Vietnamese employees are facing uncertainty about overtime regulations and how overtime pay is calculated from the employer. Businesses, especially those operating in highly competitive fields, frequently put pressure on employees to work overtime without a salary policy clearly regulating overtime hours and salary. This leads to a situation where employees do not receive a fair salary in line with the law for the overtime hours they have worked.

Legal issues surrounding it are also prominent when employees do not enjoy their rights properly. They often have difficulty proving overtime hours and face ambiguity in the terms of employment contracts and the internal labour regulations of enterprises. This is not only detrimental to employees but also creates conditions for dishonest businesses to evade their responsibility to pay overtime salaries.

Article 98 of the Labour Code 2019 and Article 55 of Decree 145/2020/ND-CP clearly stipulate the calculation and minimum overtime salary that employers must apply. In fact, the employer’s failure to pay or underpay overtime salaries to employees are not only a violation of the law but also negatively impacts labour relations as well as the reputation of the enterprise. Accordingly, in case the employer fails to pay salaries on time, fails to pay or or underpay overtime salaries for employees, they may be fined from VND10,000,000 to VND100,000,000, depending on the number of violated employees as prescribed in Articles 6.1 and 17.2 of Decree 12/2022/ND-CP.

In addition to the above-mentioned fine, the violating employer is also subject to remedial measures of paying additional interest on the late salaries payment to employees, with the highest demand deposit interest rates announced by State-owned commercial banks at the time of sanction.

• Failure to pay salaries on time or payment of salaries below the minimum wage

Salary is not only one of the top priorities of employees when choosing a job, but also a key determinant of their income and quality of life. Therefore, the fact that enterprises pay salaries in full in accordance with the law and on time not only creates motivation and shows reasonable concern for employees, but also promotes long-term relationships between employees and enterprises. According to Articles 90, 91, 94, 95 and 97 of the Labour Code 2019, employers shall comply with some basic principles such as paying salaries to employees equally, regardless of gender for employees doing jobs of equal value, do not pay salaries lower than the minimum wage stipulated by the Government, the payment of salaries must be made on time based on the agreed salary, labour productivity and quality of work performance, except  for cases of force majeure as prescribed by the lablout law.

In case of failure to pay salaries on time as prescribed by law, the employer may be fined from VND10,000,000 to VND100,000,000 depending on the number of violated employees and fined from VND40,000,000 to VND150,000,000 depending on the number of violated employees for the act of paying salaries to employees lower than the minimum wage stipulated by the Government as prescribed in Articles 6.1 and 17.2, 17.3 of Decree 12/2022/ND-CP. In addition, the employer who commits the aforementioned violations is also subject to remedial measures to pay additional interest on the late salaries payment to employees, with the highest demand deposit interest rates announced by State-owned commercial banks at the time of sanction.

• Some of the other relevant sanctions:

An employer who engages in the act of enticing, seducing, promising, advertising fraudulently or other tricks to recruit employees for the purpose of exploiting or taking advantage of the name of vocational training or apprenticeship to labour exploit may be fined from VND100,000,000 to VND150,000,000 under Article 6.1,  Article 8.3 and Article 14.2(a) of Decree 12/2022/ND-CP. In case a trainee or apprentice during their vocational training or apprenticeship directly or participates in labour but the employer fails to pay the agreed salary, the employer may be fined from VND1,000,000 to VND40,000,000 depending on the number of violated employees[1]. In addition, the employer must also pay salaries to the trainee or apprentice during the vocational training or apprenticeship period who directly or participate in labour and pay to the State budget the illegally obtained profits for the said violations as a remedy[2].

In the context of an increasingly internationalised labour market, compliance with legal regulations is not only duties for the employers, but also an opportunity for them to build a positive image in the community and create a positive working environment. Preventing labour exploitation not only ensures the rights of Vietnamese employees in particular and all employees within the territory of Vietnam in general but also increases competitiveness and sustainability for businesses in this global period. These regulations and measures not only protects employees’ rights but also helps build a just society where everyone has a fair opportunity to contribute to inclusive economic development.

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[1] Article 6.1 and Article 14.1 of Decree 12/2022/ND-CP

[2] Article 14.3 of Decree 12/2022/ND-CP