Currently, many businesses are trying to find suitable solutions to ensure employees’ working hours, rest time and overtime schedule comply with current labour laws, as well as to increase labour productivity and efficiency of their business. This is especially important for enterprises in the field of manufacturing, information technology and enterprises operating in different time zones. Therefore, this article shall provide readers with an overview of working hours, rest time and overtime hours applicable to employees and employers in accordance with the provisions of the Labour Code No. 45/2019/QH14 (“Labour Code 2019“).
Normal working hours
The regulations on normal working hours of the Labour Code (2019) remain unchanged from the 2012 Labour Code:
- Article 105 of the Labour Code (2019) stipulates that the normal working hours of employees shall not exceed 8 hours within a day and 48 hours during the week.
- Employers can provide working hours by day or by week. However, those choosing weekly working time must guarantee that the normal working hours are not more than 10 hours per day and 48 hours per week.
However, the impact of the pandemic has forced businesses to adopt flexible working methods, mainly regarding:
- working from home,
- work alterations at workplace and from home
- full-time work at the workplace.
As a result, enterprises must consider different methods to calculate the actual number of working hours and the salary paid to employees. For example, calculating the salary at a rate lower than the rate originally agreed in the contract with the employee (for example – around 70% to 80% of the original agreed salary) or reducing the number of working hours for employees working from home despite the fact that such employees still work for 8 hours per day.
Applying these methods can be inconsistent with the provisions of the Labour Code if the employer does not consider labour productivity, quality of work performance, and does not make any adjustments to the previous employee’s agreement and does not record any provisions in the internal labour rules and documents. Therefore, companies need to be cautious and note such changes in the internal labour regulations, internal policies and labour contracts including:
- different forms of work,
- calculation of normal working hours, overtime
- and calculation of salaries for the corresponding forms of work
to ensure compliance with the current labour law and fulfilment of requirements in accordance with the actual production situation of the enterprise.
Overtime working hours
Issues regarding working overtime are considered to affect the physical and occupational health of employees. Thus, to overcome the negative impacts of overtime and protect the health of employees, the Labour Code (2019) stipulates that overtime schedule suggested by enterprises are valid only upon consent given by the concerned employees.
Also, the employer must ensure compliance with all conditions on number of overtime hours per day, month and year simultaneously as follows:
- The number of overtime hours of an employee shall not be more than 50% of the normal working hours in 1 day.
- The total number of normal working hours and overtime hours shall not be more than 12 hours per day and shall not be more than 40 hours per month if the enterprise calculates normal working on weekly basis.
- The number of overtime hours of an employee hall does not exceed 200 hours per year. In some special cases provided by the Law, if the enterprise conducts overtime work of 200-300 hours per year, the enterprise must submit written notice to the provincial-level labour agency.
Thus, to meet the needs of employers and increase flexibility in the production and business layout of enterprises, the Labour Code (2019) has expanded the framework of agreement on the total number of normal working hours and the total number of overtime hours to 40 hours per month instead of previous 30 hours per month prescribed by the Labour Code (2012).
At the same time, scenarios in which enterprises are allowed to do overtime work in accordance with the Labour Code (2019) are also additionally supplemented in comparison with the provisions of the previous Labour Code (2012).
The provisions on rest time pursuant to the Labour Code (2019), including rest time during working hours, weekly breaks, and annual leaves remain unchanged in comparison with the provisions of the Labour Code (2012). However, during holidays and new year, the Labour Code 2019 allows employees to take an additional day off before or after the National Day (September 2nd) increasing the total number of public holidays to 11 instead of 10 days.
Requests for recognition of working hours and rest time on contracts and labour regulations of enterprises
These provisions of the Labour Code (2019) form an important legal basis for enterprises to concretize their working time, rest hours and overtime regime suitable to their own business conditions. Concurrently, in the spirit of inheriting the provisions of Labour Code (2012), Labour Code (2019) has also stipulated that enterprises are required to clearly record the provisions on working hours, rest time and overtime in their labour regulations as well as labour contracts between employer and employees.
In common practice, when carrying out procedures for registration of internal regulations of enterprises, labour agencies often strictly review and check the rules on normal working hours, breaks and overtime working hours, and may also ask enterprises for additional explanation and clarification on the contents of internal labour regulations to detect possible labour violations.
In summary, the regulations on working hours, rest time and overtime are aimed at protecting the health and benefits of employees. So, if the enterprise needs to expand production capacity, the enterprise shall recruit more workers to ensure production capacity. This also helps create job opportunities for and ensures compliance with the current labour law. Therefore, before laying down the framework on working hours, rest time and overtime, enterprises should carefully apply these regulations to avoid labour violations.