IN CASE AN EMPLOYEE AGREES TO WORK OVERTIME, IS IT REQUIRED TO MAKE A WRITTEN AGREEMENT

Legal situation: In order to keep up with the delivery schedule during the peak period, enterprise X needs employees to work overtime to ensure productivity. The parties have reached an agreement in the Contract, so is it necessary to make a written agreement for overtime work? Thank you.

FDVN’s opinions: 

Thank you for sending your question to FDVN Law Firm (FDVN). For your consulting request, after looking into the relevant legal regulations, we would like to provide you with some information as follow:

[1] Working hours of employees in accordance with the law

“Article 105. Normal working hours

1. Normal working hours shall not exceed 08 hours per day or 48 hours per week.

2. An employer has the right to determine the daily or weekly working hours and inform the employees accordingly. The daily working hours shall not exceed 10 hours per day and not exceed 48 hours per week where a weekly basis is applied.

The State encourages employers to apply 40-hour workweeks.”

[2] The consent of the employee can be made in writing

Article 59 of Decree 145/2020/ND-CP regulates the consent of employees on overtime work as follows:

“Article 59. Employees’ consent to overtime work

1. Except for the cases specified in Article 108 of the Labor Code, the employer must obtain the employees’ consent to the following matters when organizing overtime work:

a) Overtime hours;

b) Overtime location;

c) Overtime works.

2. In case the employees’ consent is made into a separate document, refer to form No. 01/PLIV in Appendix IV issued together with this Decree”.

Therefore, the making of a written document on the consent to work overtime is not mandatory, in case it is made, the enterprise can refer to Form No. 01/PLIV Appendix IV according to Decree 145/2020/ND-CP.

[3] Fines imposed on employers for forcing employees to work overtime

In case the employer forces the employee to work overtime without the consent of the employee, the employer may be fined according to the provisions of Clause 3, Article 18 of Decree No. 12/2022/ND-CP as follows:

“Article 18. Violations against regulations on working hours and rest periods

…..

3. A fine ranging from VND 20.000.000 to VND 25.000.000 shall be imposed upon an employer for commission of one of the following violations:

a) Applying normal working hours exceeding the working hours prescribed by law;

b) Mobilizing employees to work overtime without their consent, except for the cases specified in Article 108 of the Labour Code”.

In order to avoid being fined, as well as ensure the interests of employees and employers, FDVN recommends that the parties should make a written agreement on overtime work in accordance with the law.

Above is FDVN’s legal opinion related to your consulting request based on relevant regulations. We hope the advice will be useful to you.

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