WORKING HOURS IN LABOR CODE 2025

WORKING HOURS IN LABOR CODE 2025

Topic 30:

WORKING HOURS IN LABOR CODE

MSc. Lường Minh Sơn  

SUMMARY OF THE SITUATION

[The Labor Regulations of B.R. Rubber Joint Stock Company, issued on March 14, 2018.]

The working hours of employees are stipulated in a table within the Labor Regulations of B.R. Rubber Joint Stock Company (hereinafter referred to as B.R. Company), with specific provisions as follows:  

“… Article 6. Working Hours of Employees:  

1. For employees engaged in rubber tapping and rubber processing:  

– Daily working hours: an average of 6 hours per day. The working hours schedule is attached to the collective agreement and will be adjusted annually.  

– Annual standard working hours quota:  

Standard working hours quota = {365 – (52 + 18 + 10)} x 6 hours = 1,710 hours.  

2. For employees engaged in rubber planting and maintenance:  

– Daily working hours: an average of 8 hours per day.  

– Annual standard working hours quota:  

Standard working hours quota = {365 – (52 + 16 + 10)} x 8 hours = 2,296 hours.  

3. For the following positions: Managers (including members of the Board of Directors, General Management Board, Chief Accountant, Head of the Supervisory Board); professional staff, administrative personnel, and support staff:  

– Daily working hours: 8 hours.  

– Weekly working hours: 40 hours (equivalent to 5 days).  

– Annual standard working hours quota:  

Standard working hours quota = {365 – (52 + 52 + 15 + 10)} x 8 hours = 1,888 hours.  

4. For other job titles and tasks: Production team leaders (in rubber tapping and processing); mechanical, electrical, and automotive repair team leaders and employees; tractor and truck drivers; technical staff; quality control and environmental inspection staff; etc.:  

– Daily working hours: 8 hours. The working hours schedule is attached to the collective agreement and will be adjusted annually.  

– Annual standard working hours quota:  

Standard working hours quota = {365 – (52 + 52 + 15 + 10)} x 8 hours = 1,888 hours.  

For employees guarding rubber plantations, due to the specific nature of the job requiring constant presence to protect the plantation, in addition to the standard working hours, the farms arrange for these employees to take turns being present at guard posts within the rubber plantation. This ensures readiness to perform protection duties promptly when necessary. Regarding overtime and night shift policies, employees are entitled to benefits in accordance with the current provisions of the Labor Code.  

Annually, B.R. Company prepares an appendix detailing the working hours schedule and rest periods. Each unit, based on the physiological conditions of the plantation, shall establish a working hours schedule and rest periods suitable to its production situation, provided that the total standard working hours quota for the year set by the Company is maintained.  

Article 7. During the peak rubber harvesting season in the months of January, September, October, November, and December each year, employees engaged in tapping, processing, and other tasks related to primary production shall work on Sundays. Therefore, any employee needing to take a Sunday off during this period must notify their unit in advance so that a replacement can be arranged. Employees are not permitted to take leave without prior notification.”

COMMENTARY

I. Introduction  

Working hours refer to the period during which an employee must perform one or more tasks for the employer as agreed upon in the employment contract. In other words, it is the time during which the employee provides their labor to the employer. Throughout this period, the employer is responsible for organizing, arranging, and utilizing this time in the most scientific and efficient manner to maximize benefits for production and business activities.  

From a legal perspective, working hours represent the duration of an employee’s obligation. During this obligatory period, the employee must work and be subject to the management and direction of the employer. Put differently, the employer has the right to utilize, manage, arrange, and direct the employee to ensure that their labor is transferred effectively, thereby achieving the highest productivity for production and business operations.  

Under the current provisions of the Labor Code, an employee’s working hours consist of: (i) normal working hours; (ii) overtime hours; and (iii) night working hours. In the situation described above, we will examine the regulations on working hours for different types of tasks performed by employees. As evident from the labor regulations table provided, the working hours of employees are categorized based on the specific groups of employees and their respective job functions.  

II. Legal Issues  

1. Normal Working Hours  

The concept of “normal working hours” in Vietnamese labor law aligns with the notions of “standard working hours” or “regulated working hours” found in the labor laws of various countries worldwide.  

Accordingly, normal working hours represent the maximum duration agreed upon by the parties, during which the employee, pursuant to the agreed obligation, must work for the employer. This period is carried out regularly and continuously under specific working conditions. This implies that the law does not prescribe a fixed amount of working hours for employees but establishes a framework of limitations to protect their health. When determining labor obligations through agreement, the parties must not exceed this time framework.  

When an employee fulfills their labor obligation within the normal working hours, they are entitled to a benefit, commonly referred to as wages, as per the agreement. However, as each employment relationship varies, so too do the labor obligations, resulting in differences in normal working hours. These differences may stem from the agreement between the parties or from the nature and conditions of the work itself.  

Currently, based on the nature of the work or the parties involved in the employment relationship, the law permits the parties to agree on normal working hours within certain limits, as detailed below:  

1.1. For Ordinary Work  

Ordinary work is understood as tasks performed under simple working conditions. Pursuant to Article 105 of the 2019 Labor Code, the working hours for ordinary work must not exceed 8 hours per day and 48 hours per week.

Examining the labor regulations table presented in the situation, the employer identifies ordinary work as including managerial tasks (such as members of the Board of Directors, General Management Board, Chief Accountant, and Head of the Supervisory Board), as well as professional staff, administrative personnel, and support staff. For these tasks, the daily working hours of employees are set at 8 hours, and the weekly working hours are 40 hours (equivalent to 5 days). This regulation is appropriate and compliant with the current provisions of the Labor Code. Notably, this arrangement benefits employees by limiting their work to 40 hours per week, allowing them more time to rest and recover their labor capacity.  

Additionally, tasks such as rubber planting and maintenance, production team leaders (in rubber tapping and processing), mechanical, electrical, and automotive repair team leaders and employees, tractor and truck drivers, technical staff, quality control and environmental inspection staff, and others are also classified as ordinary work within the company. Consequently, the normal working hours for these employees are also set at 8 hours per day. However, unlike managerial and administrative roles, these tasks do not possess absolute stability. Thus, depending on the circumstances, the working hours schedule attached to the collective labor agreement will be adjusted annually, while ensuring compliance with the company’s total standard working hours quota for the year.  

This approach to regulating normal working hours for different groups of employees and job categories demonstrates the employer’s authority. The law permits employers to establish normal working hours based on the nature and requirements of the work. However, such regulations must adhere to the legal framework of limitations corresponding to the nature of the work as prescribed by law.  

To enhance the employer’s authority and autonomy, as well as to accommodate the specific characteristics of production and business activities, current law allows employers to determine and specify working hours on an hourly, daily, or weekly basis. In the case of a weekly basis, normal working hours must not exceed 10 hours per day and 48 hours per week [Clause 2, Article 105 of the 2019 Labor Code].

In the labor regulations under review, due to the nature of the work, the employer specifies working hours on a daily basis and determines the total annual working hours quota [Article 3 of Circular No. 18/2021/TT-BLDTBXH dated December 15, 2021, issued by the Ministry of Labor, Invalids and Social Affairs], without providing specific provisions for weekly working hours.  

1.2. For Arduous, Hazardous, or Dangerous Work  

Arduous, hazardous, or dangerous work refers to tasks that, when performed, have a greater impact on the employee’s strength, health, and safety compared to ordinary work. Currently, the list of arduous, hazardous, and dangerous jobs is issued by the Ministry of Labor, Invalids and Social Affairs in coordination with the Ministry of Health [See Circular No. 11/2020/TT-BLDTBXH dated November 12, 2020, issued by the Ministry of Labor, Invalids and Social Affairs]. This list is updated and specified periodically. For this reason, the 2019 Labor Code stipulates: “Employers are responsible for ensuring that the working hours involving exposure to hazardous or harmful factors comply with national technical standards and relevant legal provisions.”  

In the labor regulations table provided, rubber tapping and processing are considered arduous, hazardous, and dangerous work [Decision No. 915/LDTBXH dated July 30, 1996 (which has been repealed since Circular No. 11/2020/TT-BLDTBXH took effect)]. Accordingly, the normal working hours for employees in these roles are set at an average of 6 hours per day. The specific working hours schedule is detailed in an attachment to the collective labor agreement and adjusted annually. This regulation fully complies with the current provisions of the Labor Code.  

Moreover, the labor regulations indicate that, in addition to being classified as arduous, hazardous, and dangerous, rubber tapping and processing are seasonal production tasks. Therefore, for these tasks, beyond setting a standard daily working hours limit, a specific time schedule is also established. Nevertheless, this allocation must still ensure an average of 6 hours per day for arduous, hazardous, and dangerous work. This is entirely consistent with Article 4 of Circular No. 18/2021/TT-BLDTBXH regarding the establishment of plans to determine daily standard working hours.

Thus, it can be generally understood that normal working hours for arduous, hazardous, or dangerous work also constitute the obligatory working period for employees. However, since these tasks demand more physical effort from employees compared to those performing ordinary work, their working hours are regulated with a lower limit to better safeguard their health.  

1.3. For Specific Labor  

Specific employment relationships may arise from the nature of the work or the biological characteristics of the employee. Consequently, in addition to regulating working hours within the limits set for ordinary work or arduous, hazardous, and dangerous work, employers may establish distinct schedules for specific tasks.  

For specific work, the law permits employers to define a fixed schedule to serve the job’s requirements. Nonetheless, the minimum rights of employees must still be ensured. For instance, in the labor regulations referenced in the situation, Article 7 stipulates: “During the peak rubber harvesting season in the months of January, September, October, November, and December each year, employees engaged in tapping, processing, and other tasks related to primary production shall work on Sundays. Therefore, any employee needing to take a Sunday off during this period must notify their unit in advance so that a replacement can be arranged…”

This provision indicates that rubber tapping and processing depend on seasonal factors. As such, during these periods, the normal working hours of employees are determined by the nature of the work.  

Specifically, the plan for allocating the annual standard working hours quota for employees engaged in rubber tapping and processing is as follows:  

Thus, depending on production and business conditions, the employer will regulate and arrange the working hours of employees for seasonal production tasks, as stipulated and guided by Circular No. 18/2021/TT-BLDTBXH. In the labor regulations above, this specifically pertains to rubber tapping and processing. However, this regulation demonstrates that the employer must still ensure the maximum working hours for employees align with the prescribed time quota.

2. Overtime Hours  

Pursuant to Article 107 of the 2019 Labor Code, overtime hours (commonly referred to as additional working hours) are defined as the period of work exceeding the normal working hours as stipulated by law, the collective labor agreement, or the labor regulations. In essence, whenever an employee works beyond the obligatory working hours agreed upon between the employee and the employer for specific tasks and under certain working conditions, such time is considered overtime.  

In the situation described, for employees guarding rubber plantations, due to the specific nature of the job requiring constant presence to protect the plantation, in addition to the standard working hours, the farms arrange for these employees to take turns being present at guard posts within the rubber plantation. This ensures readiness to perform protection duties promptly when necessary. Consequently, these additional periods are classified as overtime hours, and the related policies concerning overtime and night shifts are ensured by the employer in accordance with the current provisions of the Labor Code.  

It should be noted that for seasonal production tasks, such as rubber tapping and processing as mentioned above, if the daily standard working hours exceed 8 hours—or more than 4 hours for employees engaged in particularly arduous, hazardous, or dangerous work as outlined in the plan under Clauses 2 and 3 of Article 4 of Circular No. 18/2021/TT-BLDTBXH—the excess hours are not considered overtime.

However, if the actual daily working hours exceed the standard working hours established in the plan as guided by Article 6 of Circular No. 18/2021/TT-BLDTBXH, those excess hours are counted as overtime. These hours are then added to the total annual overtime hours, and the employer must pay overtime wages and provide related benefits in compliance with the Labor Code [Articles 4 to 6 of Circular No. 18/2021/TT-BLDTBXH].  

However, conditions for overtime work must be observed. Firstly, current labor law stipulates that overtime must arise from the employer’s needs (request). Consequently, in disputes regarding the determination of overtime hours and overtime wages, courts typically require the employee to prove that the employer requested the overtime. Absent such proof, there is no basis to uphold the employee’s claims [See Judgment No. 100/2016/LD-ST dated April 22, 2016, of the People’s Court of District 7, Ho Chi Minh City].  

3. Night Working Hours  

Under Article 106.Concurrent of the 2019 Labor Code, night work is defined as work performed from 10:00 p.m. of the previous day to 6:00 a.m. of the following day.  

Thus, it can be understood that whether an employee is working normal hours or overtime, if the work occurs within the aforementioned timeframe, it is additionally classified as “night work.” Accordingly, in terms of benefits, employees are entitled to additional rights for working at night. Furthermore, if an employee works overtime within this timeframe, the “night work” factor is also applied, resulting in greater benefits compared to those working during the day [See Clauses 2 and 3 of Article 98 of the 2019 Labor Code].  

III. Conclusion  

Working hours represent the recorded period during which an employee provides their labor to the employer. Therefore, in addition to the employment contract, an employee’s working hours are also documented in the labor regulations and collective labor agreement. Through these instruments, not only is the obligatory working period of the employee recorded, but specific schedules are also established to serve the employer’s production and business activities.  

Current law allows employees and employers the freedom to negotiate working hours. However, the law also establishes a legal framework of limitations to protect employees’ rights, preventing the excessive use of labor that could harm their lives, health, and other legitimate interests.

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“The article’s content refers to the regulations that were applicable at the time of its creation and is intended solely for reference purposes. To obtain accurate information, it is advisable to seek the guidance of a consulting lawyer.”

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