Legal update on December 2020 (Part 4)

Legal updates of BLawyers Vietnam

Our Vietnam legal update #143 would lead you on 03 legal issues:

I. New Decree guiding the Labor Code 2019

The Government issued Decree No. 145/2020/ND-CP dated 14 December 2020, detailing and guiding the implementation of a number of articles of the Labor Code regarding working conditions and labor relations, effective from 01 February 2021. In which, some notable contents are as follows:

(i) Regulations on sexual harassment in the workplace:

  • Sexual harassment can be in any form of communication, from offering, asking, suggesting, to threatening, forcing the exchange of sexual relations for any work-related benefit. In addition, it includes sexual behaviors that are not intended for communication, but that cause the work environment to become uncomfortable and unsafe, cause harm to physical, mental performance, productivity and life of the person being harassed.
  • Sexual harassment at the workplace means:

(a) Physical behavior including a sexual act, gesture, contact, or physical impact on the body;

(b) Verbal sexual harassment includes direct verbal sexual harassment, or over the phone or through electronic means that has sexual or sexual implications; or

(c) Non-verbal sexual harassment including body language; display, describe visual material about sexual or related to sexual activity directly or electronically.

  • The specified workplace is any place where the employee actually works according to the agreement or assignment of the employer, including work-related locations or spaces such as social activities, workshop, seminars, training, formal business trips, meals, phone conversations, electronic communication activities, vehicles arranged by the employer from residence to workplace and vice versa, accommodation provided by the employer and other locations specified by the employer.

(ii) Labor management:

  • Within 30 days from the date of commencement of operation, the employer must make a labor management book at the head office, branch, representative office;
  • The labor management book is made in paper or electronic version but must ensure basic information about employees;
  • Every 6 months (before 05 June) and annually (before 05 December), the employer must report the change of labor to the Department of Labor, War Invalids and Social Affairs through the National Service Portal and notify the district social insurance agency where the head office, branch or representative office is located.

(iii) Termination of labor contracts:

  • The enterprise’s managers, when unilaterally terminating the labor contract, must give notice prior to at least 120 days regarding the labor contract with indefinite term or fixed term contract of 12 months or more; and at least a quarter of the term of the labor contract less than 12 months.

(iv) Overtime:

  • When organizing overtime work, the employer must obtain the consent of the employee participating in overtime work in terms of time, location and overtime work, unless otherwise specified. In case the employee agrees in writing, they should follow the prescribed form.

(v) Regulations for female employees:

  • Female employees during their menstruation are entitled to a 30-minute break every day counted in working hours and still receive a full salary under the labor contract. Number of days with time off during menstruation is agreed upon by both parties but at least 03 working days per month;
  • Female employees who have children under 12 months of age have the right to take 60 minutes a day off from work to breastfeed, express, store milk and rest. The break time is still entitled to the full salary according to the labor contract;
  • In case the female employee has no need to take those breaks and is allowed to work by the employer, in addition to the salary to be entitled to the labor contract, the employee is paid additional salary according to the work that the employee did during time-off and this working time is not included in the employee’s overtime;
  • Employers with 1,000 or more female employees must install lactation breastmilk storage room at the workplace.

II. Settling the overpaid tax

The General Tax Department issued Official Letter No. 5271/TCT-CS dated 11 December 2020 on handling the overpaid tax with the following contents:

In case taxpayers have the paid tax amount larger than the payable tax, late payment amount, or fine (“Tax Amount”), it shall be settled as follows:

  • Subtracting the outstanding Tax Amount;
  • Subtracting from Tax Amount of next tax payment; or
  • Refunding the overpaid tax amount if taxpayers have no tax debt.

III. PIT on allowance for employees after termination of labor contracts

Tax Department of Binh Duong Province issued Official Letter No. 27401/CT-TTHT dated 01 December 2020 on PIT policy for allowance for employees after termination of labor contracts. In case enterprises pay allowances and support to employees (with labor contracts from 12 months or more) upon termination of the labor contract, PIT is guided as follows:

  • For severance allowance for employees who leave jobs according to regulations, such amount is not included in the taxable income from salary and wages of employees.
  • For bonuses with the nature of salaries and wages paid by enterprises when employees leave jobs, the severance allowance for employees which is higher than the prescribed level, enterprises total such amount with salary and wages to deduct PIT according to the partially progressive tax schedule before payment.
  • For financial support of VND2 million or more that enterprises pay additionally to employees after the termination of labor contract, enterprises must deduct PIT at the rate of 10% of the total paid income.

For down-loading: 

Legal Update #143 (EN version)

See other Vietnam legal updates: December 2020 (P3) | December 2020 (P2) | December 2020 (P1) | November 2020 (P4) | November 2020 (P3)November 2020 (P2) | November 2020 (P1) | October 2020 |September 2020 | August 2020 | July 2020 | June 2020 | May 2020 | April 2020 

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