Regulations on job transfer and salary adjustment

Illustration.

In 2017, the Company issued a decision to transfer this employee, specifically as follows: "Position: Senior Sales Engineer; work to be done: According to assignment and reporting to the Head of Technical Department".

Through the Enterprise Petition Receiving and Response System, Yokogawa Vietnam Co., Ltd. asked, does this transfer case fall under the case of "transferring employees to do work other than the Labor Contract" as prescribed in Article 31 of the 2012 Labor Code, Article 8 of Decree No. 05/2015/ND-CP dated January 12, 2015 of the Government detailing and guiding the implementation of a number of contents of the Labor Code?

In addition, during the operation process, to suit the actual business situation and staff capacity in each period, the Company's General Director often makes decisions on increasing/decreasing employee salaries.

However, the adjustment of employee salaries always follows the principle: The adjusted salary is always higher than the salary in the Labor Contract signed between the Company and the employee; the adjusted salary is higher than the regional minimum wage as prescribed by the State; and complies with the Company's salary regulations. Yokogawa Vietnam Co., Ltd. asks, does the Company have the right to make unilateral decisions on adjusting employee salaries?

Regarding this issue, the Department of Labor Relations and Wages, Ministry of Labor, War Invalids and Social Affairs responded as follows:

According to the provisions of Clause 1, Article 23 of the Labor Code, Clause 3, Article 4 of Decree No. 05/2015/ND-CP dated January 12, 2015 of the Government, the Labor Contract must include the content of the employee's work and workplace, in which the content of the work is the work that the employee must perform.

Article 35 of the Labor Code stipulates that during the implementation of the Labor Contract, if either party requests to amend or supplement the contents of the Labor Contract, it must notify the other party at least 3 working days in advance of the contents that need to be amended or supplemented. In case the two parties reach an agreement, the amendment or supplement of the Labor Contract shall be carried out by signing an appendix to the Labor Contract or concluding a new Labor Contract.

According to Article 31 of the Labor Code, Clause 2, Article 8 of Decree No. 05/2015/ND-CP, employers have the right to temporarily transfer employees to other jobs in the following cases: natural disasters, fires, epidemics; applying measures to prevent and overcome occupational accidents and diseases; electricity and water incidents; due to production and business needs specifically stipulated in the internal regulations of the enterprise. The time of temporarily transferring employees to other jobs other than those specified in the labor contract must not exceed 60 cumulative working days in one year, except in cases where there is written consent from the employee.

The Department of Labor Relations and Wages, Ministry of Labor - Invalids and Social Affairs requests Yokogawa Vietnam Co., Ltd. to base on the above regulations and compare with the specific case of the Company for implementation.

On adjusting workers' wages

According to Article 24 of the Labor Code, the Labor Contract Appendix specifies some provisions or amends and supplements the Labor Contract. In case the Labor Contract Appendix is ​​used to amend and supplement the Labor Contract, it must clearly state the content of the amended and supplemented provisions and the effective date. The Labor Contract Appendix is ​​a part of the Labor Contract and has the same effect as the Labor Contract.

Based on the above provisions, in case the content of the labor contract regarding salary changes, the employer and employee shall use the labor contract appendix to amend and supplement the content of the labor contract accordingly.