Transfer An Employee To Another Job In Accordance With The Law

The labor contract after being signed and sealed can still be changed by the will of one party or both parties. In fact, in the process of its non-stop movement, there are times when enterprises need to mobilize and transfer employees to ensure the progress of a certain job or contract. This transfer can take one of two forms: temporary transfer and permanent transfer.

Lac Duy & Associates will provide relevant legal information for employers and employees to have a more specific view on this issue.

Temporary job transfer

Article 31 of Labor Code 2012 specifies the transfer of employees to jobs other than labor contracts as follows:

• When meeting with sudden difficulties such as natural disaster, fire or epidemic, or taking measures to prevent and deal with a working accident, an occupational disease or an electricity or water supply incident, or when due to business and production needs, the employer may temporarily assign an employee to perform a job which is not stated in the labor contract provided that the assignment does not exceed 60 accumulated workdays within one year, unless otherwise agreed by the employee.

• When an employer temporarily assigns an employee to perform a job which is not stated the labor contract, the employer shall inform the employee at least 3 working days in advance, clearly stating the duration of temporary work and the assigned work which must be suitable to the health and gender of the employee.

• The employee who performs the job as stipulated in Clause 1 of this Article is entitled to a wage for the new job; if the wage for the new job is lower than the previous wage, he/she is entitled to the previous wage for 30 working days. The wage for the new job must be at least 85% of the previous wage but not lower than the regional minimum wage stipulated by the Government.

Decree 05/2015/ND-CP dated 12 January 2015 of the Government detailing and guiding the implementation of several contents of the Labor Code (“Decree 05/2015/ND-CP“) also prescribe this case as follows:

Article 8. Temporary job transfer

Temporary transfer of employees to perform jobs which are not stated in employment contracts in Clause 1, Article 31 of Labor Code shall be prescribed as follows :

1. The employer shall be entitled to temporarily transfer the employee to perform jobs other than those in the labor contract in the following cases:

a) Natural disasters, conflagration, epidemics;

b) Application of preventive and remedial measures against occupational accidents and diseases;

c) Electricity and water supply failure;

d) Operating demands.      

2. The employer shall specify in the corporate rules that the employer may temporarily transfer the employee to jobs other than those in the labor contract due to production and business demands.

3. If employers have temporarily transferred their employees to perform jobs other than those in the employment contract for 60 cumulative working days in a year, and they continue to temporarily transfer the employees to perform jobs other than those defined in the employment contract, the written consent shall be obtained from the employees.

4. If the employees do not agree to be temporarily transferred to the jobs other than those in the employment contracts as specified in Clause 3 of this Article and quit their jobs, the employers shall pay them salary for such quit as prescribed in Clause 1 of Article 98 of the Labor Code.

For this matter, the Labor Code 2019 has synthesized the contents of the provisions of Labor Code 2012 and Decree 05/2015/ND-CP, thus in general the provisions on the job transfer of Labor Code 2019 are more detailed and do not conflict with Labor Code 2012.

Permanent job transfer

Based on Point c, Clause 1, Article 23 of the Labor Code 2012 (corresponding to Point c, Clause 1, Article 21 of Labor Code 2019), the job and the workplace are one of the must-have contents of the labor contract. Therefore, when wanting to change job (change of job, workplace), the employer must amend and supplement the labor contract in accordance with Article 35 of Labor Code 2012 (similar provisions in Article 33 of Labor Code 2019).

The employer must notify the employee at least 3 working days in advance of the job transfer. If the two parties can reach an agreement, the amendment and supplement shall be carried out by signing the labor contract appendix or concluding a new labor contract. If the two parties do not come to an agreement, they will continue to perform the signed labor contract.

In addition, the law also stipulates cases of sanctioning employers when transferring jobs in contravention of the law, specifically:

• The employer may be fined from 1,000,000 VND to 3,000,000 VND if he / she temporarily transfers the employee to work other than the labor contract without notifying the employee in advance 03 working days or not clearly informing the temporary work duration or the job placement is not suitable for the health and gender of the employer.

• The employer can be fined from 3,000,000 VND to 7,000,000 VND if he/she transfers the employee to work other than the labor contract without suitable reasons, term or without a  consent of employees in writing in accordance with the law.

Therefore, employees and employers need to have a clear understanding of the rules and procedures for job transfer to protect their legitimate rights and interests. To better understand these contents or other information such as: unilateral labor contract termination disputes, labor discipline disputes, salary disputes, insurance disputes, labor transfer disputes, disputes about the dismissal … or information about excellent labor consulting lawyers, salary consulting lawyers, insurance consulting lawyers …. Readers can contact Lac Duy & Associates for timely advice and support.

More information: The Procedures For Settlement Of Individual Labor Disputes