Question:
When the previous employment contract has expired, but a new labor contract hasn’t been signed, if the employee continues to work for the employer, are the rights and obligations of both parties determined based on the old or new contract?
Answer:
According to the labor law regulations governing legally recognized types of employment contracts, there are currently two types of contracts:
1. Indefinite-term employment contract: This type of contract is where both parties do not specify a duration, and the termination date’s validity ends.
2. Fixed-term employment contract: This type of contract is where both parties define a specific duration and termination date, which cannot exceed 36 months from the contract’s effective date.
– The scenario described falls under the category of entering into a fixed-term employment contract. According to the provisions of Article 20, Clause 2 of Labor Code, when a fixed-term employment contract expires and the employee continues to work, within 30 days from the contract’s expiration date, both parties must sign a new employment contract. If the fixed-term employment contract has expired and the employee continues working, both parties are required to sign a new employment contract within 30 days from the contract’s expiration date. Should a new employment contract not be signed within this timeframe, the rights, obligations, and benefits of both parties are to be upheld based on the terms of the previous contract (i.e., the contract that has been concluded).
– Furthermore, the law also stipulates the following: If 30 days have passed since the expiration date of the employment contract and both parties have not signed a new employment contract, the previously concluded fixed-term contract will become an indefinite-term employment contract. In cases where both parties sign a new fixed-term employment contract, it can only be renewed once. After that, if the employee continues working, they must sign an indefinite-term employment contract. This provision applies except in cases of employment contracts for individuals appointed as directors in state-owned enterprises and specific cases such as:
1. When an elderly person is employed, both parties may agree on conclusion of multiple fixed-term employment contracts. (Clause 1, Article 149 of the Labor Code 2019)
2. Recruitment of foreign employees in Vietnam shall be explained and subject to written approval by competent authorities. (Clause 2, Article 152 of the Labor Code 2019)
3. In case the employment contract with a member of the management board expires before the end of his/her term of office, the contract shall be extended until the end of the term of office. (Clause 4, Article 177 of the Labor Code 2019)
