Issue of May 2022 – Increase the maximum number of overtime hours of employees

Dear Valued Clients,

To meet the increasing demand for production and business in the context of the Covid-19 pandemic, the National Assembly Standing Committee passed Resolution No. 17/2022/UBTVQH15 dated March 23, 2022 (“Resolution 17”) on overtime hours in a year and a month of employees in the context of Covid-19 pandemic prevention and socio-economic recovery and development.

In this Legal Update, we would like to summarize the number of overtime hours in 01 year and 01 month of employees as well as applicable objects and relevant sanctions for violation in this regard.

Annual overtime hours[1]

Employers are permitted to assign their employees to work overtime for over 200 hours but not exceeding 300 hours per year if this is agreed upon by both the employer and the employees, except the following cases:

a)     Employees aged between 15 and under 18;

b)     Employees having mild disabilities with work capacity reduction of least from 51% and above or employees with severe disabilities or extremely severe disabilities;

c)     Employees doing arduous, hazardous, dangerous or extremely arduous, hazardous or dangerous works;

d)     Female employees in their 7th month of pregnancy onward (or the 6th month of pregnancy onward in case they work in the highlands, remote areas, bordering areas or islands);

e)     Female employees nursing children aged under 12 months.

Monthly overtime hours[2]

Employers that are permitted to assign their employees to work overtime for up to 300 hours per year may assign their employees to work overtime for more than 40 hours but not exceeding 60 hours per month if this is agreed upon by both the employer and the employees.

Employees’ consent to overtime work

Except for the cases specified in Article 108 of the Labor Code[3], the employer must obtain the employees’ consent to the following matters when organizing overtime work[4]:

a)     Overtime hours;

b)     Overtime location;

c)     Overtime works.

Employers and employees can agree by signing a separate document in the Form No. 01/PLIV Appendix IV issued together with Decree 145/2020/ND-CP.

Overtime hours limit

The employer ensures that the employee’s overtime hours do not exceed 50% of the normal working hours in 01 day; in case of weekly work, the total normal working hours plus overtime working hours shall not exceed 12 hours in 01 day, and 40 hours in 01 month[5].

Notification of the organization of overtime work

When organizing overtime work from over 200 hours to 300 hours a year, the employer must notify Department of Labor, Invalids and Social Affairs in the following localities[6]:

a)     The province where the employer organizes overtime work from over 200 hours to 300 hours a year;

b)     The province where the enterprise is headquartered if it is different from the one where the employer organizes overtime work from over 200 hours to 300 hours a year.

The notification shall be sent within 15 days from the initiation date of the overtime work[7]. The notification shall be prepared in the Form No. 02/PLIV in Appendix IV of Decree 145/2020/ND-CP.

Administrative sanctions

Employers will be fined:

a)     from 2,000,000 VND to 5,000,000 VND if they fail to send written notifications of overtime work totaling between more than 200 and 300 hours a year to competent authorities assisting People’s Committees of provinces and centrally-run cities in state management of labor issues[8];

b)     from 20,000,000 VND to 25,000,000 VND if they mobilize employees to work overtime without their consent, except for the case in Article 107 of the Labor Code[9];

c)     from 5,000,000 VND to 75,000,000 VND depending on the number of employees being violated (from 01 person to 301 people or more) if they mobilize employees to work overtime in excess of the hours specified in the [Overtime hours limit] section of this Legal Update[10].

As always, we hope you find this Legal Update informative and helpful and look forward to working with you in the near future.

Kind regards,

ENT Law LLC

The full version of this Legal Update can be found here.

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[1] Article 1 of the Resolution 17.

[2] Article 2 of the Resolution 17.

[3] Article 108 of the Labor Code:

“In the following cases, an employer has the right to request any employee to work overtime on any day without limits on the overtime hours as prescribed in Article 107 of this Labor Code and the employee must not decline:

a)     Execution of a conscription order for the purpose of national security or national defense as prescribed by law;

b)    Performance of tasks necessary to protect human life or property of certain organizations or individuals in the prevention and recovery of natural disasters, fires, epidemics and disasters, unless those tasks threaten the employees’ health or life as prescribed by occupational safety and health laws”.

[4] Article 59 of Decree 145/2020ND-CP.

[5] Article 107.2(b) of the Labor Code.

[6] Article 62.1 of the Decree 145/2020/ND-CP.

[7] Article 62.2 of the Decree 145/20202/ND-CP.

[8] Article 17.1(c) of the Decree 28/2020/ND-CP.

[9] Article 17.3(b) of the Decree 28/2020/ND-CP.

[10] Article 17.4 of the Decree 28/2020/ND-CP.