Question:
Dear Lawyer, during the period of social distancing in line with Directive No.16/CT-TTg, our Company are currently developing and implementing the “3 on-site” plan (working, eating, resting at factories) for our employees to ensure both disease prevention control and economic growth.
Even so, in the process of implementing the plan, some employees refuse to follow it and stop working. In this situation, do we have to pay wage for ceasing work to our employees?
Are there any measures that we can take in this circumstance?
Thank you. Looking forward to hearing from you soon.
Answer:
First of all, SB Law would like to thank you for your interest in our legal consulting
services. In response to your question, whether or not the obligation to pay wages for ceasing works to employees are currently containing 02 circumstances as follows:
Circumstance 1: The Company may not be obligated to pay wage for ceasing work when the employees refuse to comply with the “3 on-site” plan.
According to the Official Dispatch 1386 of the Economic Zone Management Board – the People’s Committee of Tay Ninh Province, the Company must obtain the employees’ approval to carry out the “3 on-site” plan. For this regulation, the employees are free to choose whether to stay at the company. In the event that the employee disagrees, the Company shall engage in active negotiations and implement measures such as: paying wages not lower than the regional minimum wage or deducting annual leave or taking unpaid leave or suspending the contract during the days the employee does not work.
The viewpoint of the Economic Zone Management Board – the People’s Committee of Tay Ninh Province is also consistent with the Official Dispatch 264 by the Department of Labour and Wage – Ministry of Labour-Invalids and Social Affairs. In light of the Official Dispatch 264, the salary regime for paying wage for ceasing works due to COVID-19 is specified as follows:
“1. In case of a suspension of work according to Article 99 of Labor Code, the Company have to consider the cause of the stoppage (due to fault on the part of the employee or employer, or due to objective reasons) when determining the suspension for the employee.
2. In the event the employee is forced to stop working due to the COVID-19 as follows:
(i) the employee has to suspend the employment request during the quarantine period at
the competent authority request; (ii) the employee has to suspend the employment when the workplace or residence is blocked due to the conduct of the competent authority; (iii) the employee has to suspend the employment because their enterprise or business has to suspend operations in response to a request from competent authorities; (iv) the employee has to suspend the employment because the business or part of a business is shut down due to the Manager or employees of the same business being quarantined or not returning to work; the suspension pay of the employee shall comply with Clause 3, Article 99 of the Labor Code:
a) If work was ceased for fourteen (14) or less working days, then the wage for ceasing work shall be as agreed but not less than the minimum wage rate;
b) If work was ceased for more fourteen (14) working days then the wage for ceasing work to be paid shall be as agreed by the two parties but ensuring that the wage for ceasing work in the first fourteen (14) days is not lower than the minimum wage rate.”
In light of Official Dispatch 264, the Company has responsible to pay the suspension only in cases where the employee meets the criteria listed in Clauses 1 and 2 in this Official Dispatch. Therefore, there is a ground for the Company not to pay wage on ceasing work under general guidance of the Department of Labor Relations and Wage, and/or specific instructions issued by the competent authority in each area in case the employee refuses to follow the “3 on-site” plan.
Circumstance 2: The Company may be obligated to pay wage for ceasing work when the employees refuse to comply with “3 on-site” plan.
Due to the urgency in supporting businesses and employees in the complicated context of the epidemic, the issuance of guiding documents related to “3 on-site” plan is considered an indispensable measure. However, it should be noted that, unlike the nature of legislative documents, guiding documents relating to epidemic prevention and control measures are only temporary and applied in a certain geographical area. Depending on the actual situation of each region, the applicable conditions and the method of paying wage for ceasing work specifying in the guiding documents of each locality and province may be different.
Ho Chi Minh City as an example, besides Official Dispatch No. 2337, there is presently no official document regulating precisely the obligation to pay wages for ceasing works when employees refuse to comply with “3 on-site” plan. Therefore, based on the provisions of Clause 3, Article 99 of Labor Code, the Company still have the “risk” of paying wages to employees in case there is the absence of official guiding documents. In particular, clause 3, Article 99 of the Labor Code provides:
“3. If there is a breakdown in electricity or water through no fault of the employer or due to a natural disaster, fire, dangerous epidemic, enemy destruction, relocation of operational address pursuant to a request of the competent State authority or for economic reasons, then the two parties shall reach agreement on the level of wages for ceasing work as follows:
(a) If work was ceased for fourteen (14) or less working days, then the wage for ceasing work shall be as agreed but not less than the minimum wage rate;
(b) If work was ceased for more fourteen (14) working days then the wage for ceasing work to be paid shall be as agreed by the two parties but ensuring that the wage for ceasing work in the first fourteen (14) days is not lower than the minimum wage rate.”
In conclusion, with the above analysis, the determination of whether or not the obligation to pay the wage for ceasing work in case the employees refuse to comply with “3 on-site” plan has not been clarified in some areas. Therefore, in order to create favorable conditions and ensure flexibility in operations, the Company should actively seek opinions and policies of the local competent labor authorities to obtain detailed instructions and to limit the risk of infringing upon the legitimate rights and interests of the Company itself and the employees.
Reference legal basis:
– Labor Code 2019 No. 45/2019/QH14 enacted by the XIV National Assembly of the Socialist Republic of Vietnam on November 20, 2019 (“Labor Code”);
– Official Dispatch No 264/QHLĐTL-TL dated July 15, 2021 enacted by the Department of Labour and Wage under the Ministry of Labour-Invalids and Social Affairs regarding payment of suspension to employees during the suspend of employment due to the Covid-19 epidemic (“Official Dispatch 264”).
– Official Dispatch No 1386/BQLKKT-QLLĐ dated July 13, 2021 enacted by the Economic Zone Management Board – the People’s Committee of Tay Ninh Province on guiding the payment of suspension to employees during the suspend of employment due to the Covid-19 epidemic (“Official Dispatch 1386”).
– Official Dispatch No 2337/ UBND-TH dated July 13, 2021 enacted by the People’s Committee of Ho Chi Minh City regulating the enterprises in Ho Chi Minh City to halt operation if they fail to meet COVID-19 prevention and control measures (“Official Dispatch 2337”).
