The article with the title: “Who bears the weight of responsibility?” written by Lawyer Nguyen Huu Phuoc & Lawyer Nguyen Van Quynh – Phuoc & Partners is published on Saigon Economic Times dated 23/01/2014
In the beginning of January 2014, the Director of a Company X specializing in the manufacture of storage batteries suddenly received a request from Ms. Y that Company X would transfer her from the current job to another one because under 26/2013/TT-BLDTBXH Circular of the Ministry of Labor, War Invalids and Social Affairs that has been in effect from 15 December 2013 (“Circular 26“) Company X has no right to use female employees (“FE”) who are mothers of under-12-month infants to do the job of operating the equipment for lead foil boiling. The Director and HR Department did not know how to resolve the case of Ms. Y because the company had no new job to assign to her even whilst also unable to terminate the labour contract with her because as they had no legal basis.
This is only one among many problems with Circular 26 that is currently causing a number of difficulties in its application to employers.
Firstly, the obligation to provide retraining and new jobs for female employees
Despite the fact that Circular 26 was issued to replace Joint Circular No. 40/2011/TTLT-BLDTBXH-BYT of 28 December 2011 of the Joint Ministry of Labor – Invalids and Social Affairs – Ministry of Health regarding hazardous working conditions and jobs which are not to be undertaken by FE and FE who are pregnant or nursing up to 12 months after delivery (“Circular 40”). This means that Circular 26 does not create any new policy issues with respect to health protections of FE. However, Circular 26 simply supplemented additional lines not allowing certain employments for FE in general and those who are pregnant or nursing women up to 12 months after delivery in particular. This can be interpreted as since mid-December 2013, there are more cases where the employer is required to re-train, organize and arrange new jobs for FE to match the provisions of Circular 26.
This obligation is similar at first glance to that of the Employer in relation to the change in corporate structure, technology or due to economic reasons. However under Circular 26, are employers permitted to have FE stop working if no new job is created for them, and just retrain them if new jobs are available as stipulated in Article 44 of the Labour Code? If the answer is ‘no’, the Employer is subject to extra difficulty in re-training and creating a new occupational arrangement for FE. If the answer is ‘yes’, they have no legal basis to do that.
Furthermore there is currently there is no specific regulation regarding the retraining of FE i.e. who is to be the trainer? Is it permitted for Employer themselves to execute the retraining? How is the retraining to be undertaken? Is there any requirement for an admission exam when there are more employees needed to be retrained for only a small number of available jobs?
Secondly: Legal status of the signed labour contracts
Whilst labour contracts between FE and the Employer may have assigned jobs to FE stipulated in Circular 26, and so as Circular 26 takes effect, the signed labour contracts may become totally invalid because the jobs stated in the contracts are prohibited by the law. Nevertheless, those contracts cannot be automatically invalidated, as in accordance with the provisions of the law they must await the decision on its invalidation from a labour inspector or the court. Therefore, as long as the labour inspectors or the court has not declared the contracts’ invalidity, it will continue to be deemed as valid and implemented.
In order to abide by Circular 26, in their position as Employers, they may have proposed amendments to the signed labour contracts to arrange a more appropriate job for FE, however, the difficulty is that if FE disagree with the amendment of the labour contract when they see that wages and benefits are lower than those in their previous hazardous jobs. Employers therefore face a dilemma in that they will violate the provisions of the labour law if they continue to perform the labour contract, or that their labourers will refuse the modified labour contract.
As to the last choice, the Employer retains the right to require a labour inspector or the court to declare that the signed labour contract is invalid. Then, if the FE refuses to sign a new labour contract, the employer may terminate the labour relationship between them. Such a request for the intervention of labour inspector or the court however is not a desirable method for employers as these are complex and time consuming procedures. At last the employer still must find a way to settle the case, but clearly Circular 26 does not contain provisions to deal with such cases and requires employers to work with the authority, leaving the trouble to the employer; demonstrating a view that a resolution will not be friendly more inclined toward confrontation – making the labour relationship between employees and employers more strained.
Thirdly: terminate labour contracts with FE who are pregnant or nursing under-12-month infants
When employers cannot sign a new labour contract with normal FE or employees in general after the signed labour contracts were declared invalid, the employer may terminate the employment relationship with the employees, but how about cases of FE who are pregnant or nursing under-12-month infants? The current law provides that employers shall not dismiss and unilaterally terminate labour contracts with FE who are pregnant or nursing under-12-month infants but does not refer to when the labour contracts are declared invalid and new labour contracts have not been signed. May the employers terminate the employment relationship with FE who is pregnant or nursing under-12-month infants?
Another case is that while the FE readily agreed to amendments of the signed labour contracts but the employers are unable to arrange new jobs for FE who is pregnant or nursing under-12-month infants. Thus, how can employers settle the case? As with company restructures, the employers can temporarily hold the current position for FE until they no longer nurse under-12-month infants, but if FE who are pregnant or nursing under-12-month infants are doing the job lines as stipulated in Circular 26 and cannot have a new job arranged, employers do not currently know how to settle the case satisfactorily.
Fourth: Implementation of Circular 26
Circular 26 does not specify a transition period for employers to complete the retraining obligation and create a new job for FE. Thus, as soon as Circular 26 takes effect, not to mention the jobs that were defined in Circular 40, employers shall immediately be deemed not to comply with the law if they have not arranged new jobs to replace those which are defined in Circular 26 for FE. This is not rational and realistic because retraining and new job arrangement for FE cannot be done instantaneously. Furthermore, when employers switch FE to a new job, they must recruit other male employees to replace their position and this process cannot be undertaken in a short time. Thus, employers are forced into a difficult situation –to violate the law in the process of carrying out the work to comply with the law. The risk for employers in this situation may also be sanctions for administrative violations in the labour field.
FE is special subjects which are protected by Vietnamese labour law and with many incentives. Circular 26 was issued based in that spirit, but with current regulation unrefined and without detailed guidance for its implementation, it will lead to difficulties because employers do not know how to comply with this regulation. Lacking both specific guidelines and a reasonable transition period, and with the legal risks hypothetically in force, it is highly probable that employers will be silent and continue the current situation if FE do not know about the regulation and having no opinion. This means that FE will continue to do the dangerous, heavy or hazardous jobs, and at the most, the employers will only be sanctioned for an administrative violation. To achieve the goal of protecting the FE and for employers to have a legal basis to carry out the goal, labour authorities need to develop more clear and specific guidance in the course of the implementation of Circular 26.