REGULATIONS FOR EMPLOYEES WORKING OVERTIME

1. Legal basis

- The labor code 2019

- Decree 145/200/ND-CP on elaboration of some articles of the labor code on working conditions and labor relations

2. Overview on overtime work hours

According to Clause 1 Article 107 of the labor code 2019, Overtime work is the duration of work performed at any other time than during normal working hours, as indicated in the law, collective bargaining agreement or internal labor regulations of an employer.

3. Regulations for employees working overtime

3.1 Conditions for using overtime employees

Clause 2, Article 107 of the labor code 2019 stipulates requirements when employers want employees to work overtime as follows:

- The employee agrees to work overtime. Specified by Article 59 of Decree 145, except for the cases specified in Article 108 of the Labor Code, the employer must obtain the employees’ consent to the following matters when organizing overtime work: Overtime hours, Overtime location, Overtime works.

- The number of overtime working hours of the employee does 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;

- The overtime hours for workers do not exceed 200 hours in one year, except as specified in Clause 3 of Article 107.

3.2. Overtime working hours

a) Overtime limits

According to Article 60 of Decree 145, overtime limits are specified as below:

- The total overtime must not exceed 50% of normal working hours in 01 day if the overtime occurs within a normal working day, except for the cases specified in Clause 2 and Clause 3 of this Article

- In case the employer has regulations on weekly normal working hours, the normal working hours plus overtime must not exceed 12 hours in 01 day

- In case of part-time employment prescribed in Article 32 of the Labor Code, the normal working hours plus overtime hours must not exceed 12 hours in 01 day

- The total overtime hours must not exceed 12 hours a day during public holidays and weekly days off

- The periods specified in Clause 1 Article 58 are deductible when calculating the total overtime hours in the month or year for determination of conformity prescribed in Point b and Point c Clause 2 Article 107 of the Labor Code

b) Regulations on overtime for specific cases

First, in cases not specifically regulated by law, employees must work no more than 200 hours in a year (Point c, Clause 2, Article 107 of the Labor Code 2019)

Second, employers are allowed to employ employees to work overtime for no more than 300 hours in 01 year in some industries, occupations, jobs or the following cases (Clause 3, Article 107 of the Labor Code 2019):

- Manufacture, processing of textile, garment, footwear, electric, electronic products, processing of agricultural, forestry, aquaculture products, salt production

- Generation and supply of electricity, telecommunications, refinery operation; water supply and drainage

- Works that require highly skilled workers that are not available on the labor market at the time

- Urgent works that cannot be delayed due to seasonal reasons or availability of materials or products, or due to unexpected causes, bad weather, natural disasters, fire, hostility, shortage of power or raw materials, or technical issue of the production line

- Other cases prescribed by the Government

Thirdly, overtime work exceeding 200 hours but not exceeding 300 hours is permissible in the following cases:

- The works are urgent and cannot be delayed due to objective factors that are directly relevant to performance of state agencies and units, except the cases specified in Article 108 of the Labor Code

- Provision of public services; medical services; educational and vocational training services

- Production and business operation works at enterprises whose normal working hours do not exceed 44 hours per week

According to Article 62 Decree 145/2020/ND - CP, when organizing overtime from over 200 hours to 300 hours in a year, the employer must notify the Department of Labor, War Invalids and Social Affairs at the employer's place. The employer organizes overtime work from over 200 hours to 300 hours in a year and the location of the head office, if the head office is located in a province or centrally run city different from the place where the employer organizes Overtime work from over 200 hours to 300 hours in a year. In addition, this notification must be made no later than 15 days from the date of overtime work from over 200 hours to 300 hours in a year and the written notification must be made according to Form No. 02/PLIV Appendix IV promulgated together with this Decree.

c) Overtime working in special cases

According to the Article 108, of the labor code 2019, 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:

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

- 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

3.3. Overtime wages for employees

First of all, overtime workers are paid based on the salary unit price or actual salary paid according to the job they are doing as follows:

- On weekdays, at least 150%;

- On weekly holidays, at least 200%;

- On holidays, New Year, paid days off, at least equal to 300%, not including the salary for holidays, New Year, paid days off for employees receiving daily wages.

In addition, if employees work overtime at night, in addition to being paid according to legal regulations on overtime and night work, they will also be paid an additional 20% of their salary calculated according to the salary unit price or salary according to the law. work done during the day on a normal working day or on a weekly day off or on a public holiday.

Above are the specific labor law regulations on overtime for employees.

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For more information, please contact:

Hoang Pham (James) / Managing Partner at: hoang.pham@vselawyers.com

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Attention: This legal update is not an advice and should not be treated as such.