Signing a contract, moreover, it ensures and is consistent with the management rights of the employer. According to current regulations, for employees under 15 years old, the labor contract is signed by the legal representative, which does not ensure the principle of voluntariness and is inconsistent with the regulations that employees directly sign labor contracts, and labor contracts are specific. It is necessary to stipulate that people under 15 years old can directly sign labor contracts and have the written consent of that person's legal representative.
Third, recommendation on the need for a job offer letter when notifying successful candidates to employees
Currently, the labor law does not have a specific regulation on ensuring the conclusion of a probationary contract. The employee and the enterprise, on the principle of free agreement, equality and consensus, create a contract to establish a future labor relationship with a certain time frame. However, due to subjective and objective reasons from both sides, this labor relationship is not established. That directly affects and damages the enterprise, at the same time, the employee loses job opportunities and becomes unemployed when they leave the old company and are rejected by the company that previously agreed to establish a labor relationship. The party that is more seriously damaged is probably the employee. Because the enterprise and the employer can immediately find a replacement employee, with the current labor market where demand exceeds supply, that is not a big problem. On the contrary, workers who lose their stable jobs and their job opportunities may face difficulties in their lives and those of their families. Therefore, to ensure the agreement to establish a probationary contract for workers, it is necessary to stipulate that businesses and employers have
An invitation letter or probationary notice to the employee when the interview results are available, and at the same time clearly stating the rights and obligations that the employee will receive when working at the enterprise. When there is sufficient evidence on this issue, it must be considered a binding legal obligation. Thereby, the employee can be assured of securing his or her future job and the enterprise can limit the cases where the employee agrees and then refuses to work in order to reorient the human resource needs and recruitment plan of the enterprise.
Fourth, recommendations on extending the probationary period for workers who do not belong to the group of workers with intermediate, college, university degrees or higher.
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With the current regulations, the regulation of probationary period not exceeding 06 working days according to Clause 3, Article 27 of the Labor Code 2012 for simple, uncomplicated jobs is no longer suitable for the requirements of the labor market. The group of people performing these jobs, the majority of whom only have a high school or junior high school education. To suit the culture and working environment, businesses need time to train and help them get used to the job, thereby being able to assess whether the employee is suitable for the conditions required by the business or not? On the contrary, employees also need time to get used to and adapt to the working environment, in addition to stabilizing their mentality when entering a new job. This is very important for businesses in industrial parks, manufacturing and processing, when facing pressure on productivity and daily work efficiency. So, should the probationary period be extended from 06 days to 10 days or 14 days?
Fifth, study to amend regulations on notification of probation results.
Clause 1, Article 29 of the 2012 Labor Code stipulates that when the probationary work meets the requirements, the employer must enter into a labor contract with the employee. More specifically, in Article 7, Decree 05/2015/ND-CP on notification of probationary work results, within 3 days before the end of the probationary period, the employer must notify the employee of the results of the probationary work; in case the probationary work meets the requirements, at the end of the probationary period, the employer must immediately enter into a labor contract with the employee.
However, in reality, enterprises only comply with the regulations on notifying employees of probation results when the employees do not meet the results, that is, they will notify employees of the probation results before the probation period ends. In cases where employees continue to work after the probation period ends and the employer has not signed a labor contract, will they have to sign a fixed-term contract or an indefinite-term contract?
This issue has not been raised in the 2012 Labor Code and its guiding documents. In the student's personal opinion, there should be a regulation similar to Clause 2, Article 22, Labor Code 2012: "Within 30 days from the date of expiration of the probationary period, if the employee continues to work, the two parties must sign a definite or indefinite-term labor contract. The term of this labor contract is agreed upon by the two parties, but must be at least 12 months". Thus, it raises the awareness of employers that they must sign a labor contract with employees after the probationary period.
Sixth, study the amendment on the term of the labor contract
Regulations on types of labor contracts need to be amended to be more flexible to suit the practical work and ensure harmony between the interests of employees and employers. Because according to current regulations, in case the two parties sign a labor contract with a fixed term, it can only be signed a maximum of 02 times, after that if the employee continues to work, an indefinite-term labor contract must be signed. Thus, the maximum time for signing a fixed-term labor contract is 72 months. The regulation of the time of a fixed-term labor contract from 12 months to 36 months is too short. This limits flexibility in labor relations, forcing employers and employees to sign labor contracts many times to perform work with a term of completion of more than 36 months. However, there are jobs that have a defined end date of more than 72 months (such as 8 years), so how will that be resolved? The regulations on contract types need to be amended to be more flexible, to suit the realities of life and other legal regulations. The above regulations will ensure maximum respect for the right to self-determination of both parties in legal relationships. Accordingly, the parties have full authority to decide the term of the labor contract for the relationship in which they participate. Thus, even if the type of job is of an indefinite term, if the parties want, they can still sign a contract with a definite term.
Seventh, supplement regulations on penalties for cases of signing other types of contracts in place of labor contracts when labor relations arise.
In fact, many businesses are currently taking advantage of the provisions on vocational training and apprenticeship stipulated in Articles 61 and 62 of the 2012 Labor Code to sign labor contracts under the name of training contracts. In essence, when employees are signed to this type of training contract, they will receive a basic salary.
and other allowances as an official employee of that company. According to the provisions of Clause 2, Article 61 of the Labor Code 2012, if an employee during the apprenticeship period participates in the production of qualified products, the employer will pay the salary agreed upon by both parties. However, there are the following issues: On what basis can the employer and the employee reach an agreement on that salary, and is this agreement truly based on the principle of free will or not because the employer has the complete advantage of imposing their will on the employee. Along with that, the validity of this type of contract often lasts for several months, which directly affects the rights and interests of the employee. Employers take advantage of this to avoid having to participate in social insurance and unemployment insurance for employees. For these reasons, should labor law stipulate a prohibition on signing other types of contracts in place of labor contracts when labor relations arise?
3.2. Some solutions to limit violations of the law on labor contract conclusion.
First, raise employees' awareness of the law on labor contracts.
Strengthening the propaganda, dissemination and guidance on the implementation of regulations on labor contracts so that workers can better understand the importance of signing labor contracts. One of the important requirements for workers is to improve their skills and legal knowledge. Holding a key role in labor relations, improving skills and knowledge will contribute to improving labor quality. To do so, in addition to learning about the law, workers must learn about labor law before participating in labor relations. So what to do so that workers
In these units, do they have access to information, thereby raising their awareness and understanding so that they can exercise their rights and responsibilities well? Through community activities to discuss issues related to labor law. To achieve that, in addition to training legal knowledge at each business unit, there needs to be joint efforts from state agencies in the form of free legal consultation or training to improve legal understanding. The General Confederation of Labor needs to coordinate with media and mass media units to integrate labor law education into entertainment programs, open training courses for union officials and workers. State labor management agencies and labor federations at all levels regularly organize training courses, test and certify the level of understanding of labor law for business owners, business directors, grassroots union chairmen, and people in charge of business organizations; At the same time, businesses and employers are required to commit to creating conditions for employees to study labor laws.
Second, strengthen the role and responsibility of employers in organizing, training and disseminating labor laws.
As business owners, employers must shoulder all tasks from production and business activities to human resource management. In addition, employers must also comply with the provisions of labor law. To achieve this goal, employers must first improve their understanding and awareness of the law. Not only that, employers must promote the role of business owners by organizing, training, and disseminating labor laws. It is necessary to build harmonious, stable, and progressive labor relations in enterprises, ensuring the rights and legitimate interests of employees. This is a very important activity to strengthen relationships and share
responsibilities between employers and employees. Enterprises need to create conditions for employees to establish representative organizations, create opportunities and time to meet and discuss with employees or their representatives, listen to their opinions, wishes and suggestions, organize dialogue between related parties, especially between employees and enterprises. In case of problems, employers can ask local labor management agencies or relevant agencies for advice and assistance. Through that, the role and responsibility of employers are constantly enhanced.
Third, promote the role of representatives of the parties in labor relations.
Employers' representatives need to take measures to promptly receive and synthesize the opinions and aspirations of enterprises on State management, on labor laws and policies that need to be amended to promptly adapt to the labor market, thereby taking specific measures to support enterprises. Carry out necessary consulting and support activities for enterprises on labor laws, promptly correct violations of enterprises as well as protect the legitimate rights and interests of employers. Along with that, assist enterprises in resolving disagreements and disputes between employers and employees within the enterprise, closely coordinate with the Vietnam General Confederation of Labor, the Vietnam Cooperative Alliance, the labor - invalids and social affairs sector and relevant agencies in managing, consulting and assisting enterprises.
The trade union is the legal representative and stands up to protect the rights of workers. With such a role, the trade union needs to be built and strengthened to promote its strength in the enterprise. The trade union is the organization that protects the rights of workers, so first of all, they need to be knowledgeable about labor laws, helping workers to implement contracts.
Labor contracts are not only legal but also ensure the interests of employees, must be close to, understand the aspirations of employees to solve their difficulties. At the same time, it is necessary to help them raise awareness to properly exercise their rights and obligations. It is necessary to focus on improving the role and quality of trade union activities in enterprises. To achieve this, it is necessary to establish a trade union organization, with a team of trade union officials who are knowledgeable about the law, have professional qualifications, and are enthusiastic about their work and duties. In case of disputes, trade union officials need to promptly grasp the thoughts and aspirations of employees, and take timely measures to help employees both protect their legitimate rights and comply with labor laws.
Fourth, strengthen state management of labor, strengthen inspection and examination of the implementation of laws on labor contract signing.
Currently, labor inspectors are only established at the provincial and municipal levels, not at the district and county levels. With the rapidly increasing number of enterprises with many forms of ownership, the inspection agency will not be able to handle it in a timely and quick manner. Timely supplement and increase the quantity and quality of inspections to meet the diverse and complex requirements of law violations by enterprises. In professional work, it is necessary to strictly handle violations of labor laws, and prescribe strong enough sanctions to handle violations. In reality, many inspected enterprises believe that the benefits gained from violating the law are much greater than the administrative penalties in the field of labor. That mentality makes them no longer afraid of being prosecuted and no longer afraid of violating regulations on labor contracts.