1. Do part-time employees have to sign labor contracts?
- “Part-time” refers to jobs worked in free time to earn extra income. This kind of work is mostly aimed at students.
- In particular, enterprises should note that the regulation on “part-time employees” is only valid for cases where the legal relation of the parties is governed by the Labor Code, which means the relationship between two parties must be a labor relation or a labor-related relation (collectively referred to as the labor relation), in which one party pays wages, salaries and manage, administer, and supervise the work of the other party.
- Therefore, for relations not regarding labor, even if students work part-time or full-time, they will not be subject to the Labor Code. Of course, the enterprise will not be required to sign a labor contract with such students in this case.
Student A receives materials (threads, fabrics, etc) from the outsourcing party, Mr. X, to make the required products, which are 10 completed embroidered pictures.
Thus, it can be seen that the nature of the relation between A and Mr. X is a civil transaction, specifically a processing contract. Because Mr. X does not manage or supervise the work of A but only cares about his interests which are finished products with the right and exact time, quantity, quality, model, etc as agreed upon or not. A organizes it by himself, not subject to any control and management of Mr. X, then completes the work, hands over the results to Mr. X.
The object of a processing contract is the finished and completed products as required by the outsourcing party, while that of the labor contract is the labor put effort by the employee. In the processing contract, the ordering party pays wages based on the finished products, unsatisfactory products will not be paid by the ordering party; in the labor contract, the payment shall be as agreed upon for the labor that the employee must take regardless of the satisfactory or unsatisfactory of the products. That is the basic difference between these two kinds of legal relations.
Thus, in which case that students who do part-time jobs shall be able to sign labor contracts?
- To answer this question, we have to determine whether the legal relation between the parties is a labor relation or not. If a party is students selling their labor, and the other party is an organization, or individuals paying wages and salaries to those students and managing, administering, and supervising their work as well.
- When determining that the relation between two parties is governed by the Labor Code, both parties are entitled to their rights and obligations under the Labor Code. At this time, according to the provisions of Clause 1, Article 32 of the Labor Code 2019, students who do part-time jobs will be identified as part-time employees, specifically:
“1. A part-time employee is an employee who works for less than the usual daily, weekly or monthly working hours as prescribed by labor laws, the collective bargaining agreement or internal labor rules.”
- And according to the provisions of Clause 3, Article 32 of the Labor Code 2019, even though students work part-time, enterprises still have to ensure certain benefits for them. Specifically:
“3. Part-time employee shall be entitled to receive salary, equal rights and obligations as a full-time employee; equal opportunity and treatment, and a safe and hygienic working environment.”
- Hence, part-time is also considered a form of labor relation and there is no distinction between full-time and part-time employees.
- As a result, enterprises hiring students to work part-time shall be responsible for entering into a labor contract with them and ensuring their rights under labor laws.
- And depending on the age, work, and duration of the contract, the parties can choose one of three forms of contract: Written, oral or electronic. This issue will be discussed in detail in Section 2.
2. Which form of labor contract can part-time employees sign?
Pursuant to Article 14 of the Labor Code 2019, a labor contract shall be concluded in three forms:
- Labor contract in writing.
- Verbal labor contract: shall only be concluded when having a term of less than 01 month, except for:
- Seasonal works or certain jobs which have a duration of less than 12 months. (A group of employees aged 18 or older may authorize the representative of the group to conclude the written labor contract, in which case such labor contract shall be effective as if it was separately concluded by each of the employees);
- Contract with the employee under 15 years old; (the employer shall conclude a written contract with the under-15 employee and his/her legal representative)
- Contract with domestic workers. (The employer shall enter into a written labor contract with them)
- Electronic labor contract: conformable with electronic transaction laws and shall have the same value as that of a physical contract.
=>> Thus, labor contract for part-time jobs must be entered into in writing or through electronic means in the form of electronic data conformable with electronic transaction laws, except for cases of a labor contract that meets the following 03 conditions, the parties may enter into a verbal contract: having a term of less than 1 month, not included in the case where the employee is a domestic worker and not authorizing a representative in a group of employees aged 18 or older to enter into a labor contract.
3. Are part-time contracts subject to social insurance?
- As analyzed above, despite employing part-time employees, the enterprise is still responsible for entering into a labor contract. Depending on the working term as agreed by the parties, a labor contract can be either a definite-term or an indefinite term contract.
- The form of contract is the basis for determining whether the employer has to pay social insurance for the employee or not. Clause 1, Article 2 of the Law on Social Insurance 2014 stipulates:
“1. Employees being Vietnamese citizens shall be covered by compulsory social insurance, including:
a) Those working under indefinite-term labor contracts, definite-term labor contracts, seasonal labor contracts, or contracts for certain jobs with a term from 3 months to under 12 months, also including labor contracts signed between employers and legal representatives of persons aged under 15 years under the labor law;
b) Those working under labor contracts with a term of between full 1 month and under 3 months;”
- Hence, students working under labor contracts with a term of full 1 month or more will be subject to compulsory social insurance.
- However, for students who do part-time jobs, they don’t often work for full month. According to the provisions of Clause 3, Article 85 of the Law on Social Insurance 2014:
“3. Employees who neither work nor receive salary for 14 working days or more in a month are not required to pay social insurance premiums in that month. This period shall not be counted for enjoyment of social insurance regimes, except cases of maternity leave.”
- Therefore, if the total time a student neither work nor receive salary is 14 working days or more in a month, the student will not be paid social insurance in that month.
In short, students working part-time will be paid social insurance if they meet the following conditions:
- Entering into a labor contract of full 01 month or more;
- Working time: having a cumulative total of less than 14 working days in a month compared to a full-time employee;
- The salary as the basis for payment of compulsory social insurance at the time of payment must not fall below the regional minimum wage prescribed by the Government.
Enterprises should note that a contract signed by an enterprise and an individual provided that contains regulations of paid employment, salary, and management, administration and supervision of the enterprise is still considered a labor contract and is governed by the Labor Code even if such contract is signed under another name (Collaborator contract, Cooperation contract, etc.)
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