A contract is an agreement concluded between an employer and an employee. When signing a labor contract, the two parties must agree on issues of paid employment, working conditions, rights and obligations of each party in the labor relationship, the content of the labor contract stipulating the working place and the work that the employee must perform. However, in case the employer transfers the employee to a different workplace than the contract, it is resolved like this. Today’s article Vo Consultants will provide information on this issue.

Before getting into this, we will go to understand the following basic concepts specified in the Labor Code 2022.

Basis

• Employers

According to Clause 2, Article 3 of the Labor Code 2019: “employer means an enterprise, agency, organization, cooperative, household or individual who employs other people under agreements. An employer that is an individual shall have full legal capacity.

In the easiest way to understand, the employer is the employer, there is a need to hire workers to work for them.

• Employees

According to Clause 1, Article 3 of the Labor Code 2019: “employee means a person who works for an employer under an agreement, is paid, managed and supervised by the employer.

• Employment contract

According to Clause 2, Article 3 of the Labor Code 2019 stipulates that:

“An employment contract is an agreement between an employee and an employer on a paid job, salary, working conditions, and the rights and obligations of each party in the labor relations.

A document with a different name is also considered an employment contract if it contains the agreement on the paid job, salary, management and supervision of a party.”

Regulations on the transfer of employees to other workplaces

Cases where it is permissible to transfer employees to work other than the contract

The cases in which the employer is allowed to transfer employees are specified in Clause 1, Article 29 of the Labor Code 2019:

“In the event of sudden difficulties such as natural disasters, fire, major epidemics, implementation of preventive and remedial measures for occupational accidents or diseases, electricity and water supply failures, or for reasons of business and production demands, the employer may temporarily assign an employee to perform a work which is not prescribed in the employment contract.”

The employer must specify in the internal labor regulations the cases “Due to production and business needs” in which the employer is allowed to transfer the employee to a job other than the labor contract. If the enterprise transfers an employee for one of the above reasons, it is necessary to notify the employee 03 days in advance.

The current situation of employers transferring workers in a “coercive” way.

There are many reasons, the employer wants to terminate the contract with the employee but cannot give grounds, for example, when the recruitment has not properly assessed the capacity of the employee, the employee does not meet the wishes of the employer (not to the extent of violating the contract and company regulations), don’t like the attitude of the staff, etc. therefore, the employer transfers the employee “around” so that the employee is depressed and quits, so that the employer is not guilty of unilaterally terminating the contract illegally as prescribed by the Labor Code 2019.

When transferring an employee to a job other than the employment contract, the employee can still work in the current location or move to another place with another job and this adjustment is only temporary, according to the law of 60 community days of the year, specified in Clause 29 of the Labor Code 2019. In the case of relocation, the employee still does the job in accordance with the signed labor contract, but the working location is different from the original location. Does an employer have the right to transfer workers to another place to work for a time that is not limited by law?

One of the mandatory contents in the labor contract as prescribed in Article 28 of the Labor Code 2019: “The works under an employment contract shall be performed by the employee who directly enters into the contract” and “The workplace shall be consistent with that indicated in the employment contract, unless otherwise agreed upon by both parties.” However, the location of work stated on the contract is not required to be just a place where the employee and the employer can agree on the labor contract of different workplaces. The right of transfer of the employer will depend on the agreement of the parties in the employment contract. In case the parties only agree on 01 workplace in the contract, when the employer wants to transfer the employee, there must be the employee’s consent in writing, or an agreement to terminate the old labor contract and sign a new labor contract, or sign an amended or supplemented appendix. Starting from the principle of agreement, the employer does not automatically have the right to transfer the employee to work elsewhere than the labor contract. If no agreement is reached, the employer may only use the right to temporarily transfer when the statutory conditions as stated in section 2.1 are met.

Penalties for violations of regulations on the transfer of employees to work at locations other than the contract.

The current law only provides for the temporary transfer of employees in some special cases, when the remedy is completed, the employee can return to work in the old position. In addition to the cases prescribed by law, the employer transfers the employee to work at a location other than specified in the contract, it is considered contrary to the provisions of law.

According to point a Clause 2 Article 11 of Decree 12/2022/ND-CP: “A fine ranging from VND 3.000.000 to VND 7.000.000 shall be imposed upon an employer” acts “Placing employees in jobs at places other than the ones agreed in employment contracts, except for the cases specified in Article 29 in the Labour Code”.

The above are the sharing of lawyers, providing information not for consulting purposes and not consulting opinions, Vo Consultants is not responsible in all cases.

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