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Lawyer in Vietnam Oliver Massmann ALERT IMPRISONMENT/JAIL for Labour Law violation – New Penal Code sanctions – Unprecedented !

Lawyer in Vietnam Oliver Massmann ALERT IMPRISONMENT/JAIL for Labour Law violation – New Penal Code sanctions – Unprecedented !

On 27 November 2015, the National Assembly adopted a new Criminal Code No. 100/2015/QH13, which takes effective from 01 July 2016. This new Criminal Code will replace the old Criminal Code in 1999 and its amending / guiding documents.
Notably, the new Criminal Code provides new sanctions for violations in employment sector. Details of these sanctions are set out below:

Illegal dismissal of employees
In particular, if a person for his/ her own sake conducts one of the following behaviours that make dismissed employees or their families fall into difficult situations or go on strike, he/ she will be subject to monetary fine of VND10 million – VND100 million, non-custodial reform of up to 1 year or IMPRISONMENT/JAIL of 3 months to 1 year:
• Illegal dismissal of employees;
• Illegal issuance of decision on dismissing public servants; or
• Forcing, threatening the employees or public servants to quit their jobs.
The violating person will be subject to VND100 million – VND 200 million monetary fine or 1-3 year IMPRISONMENT/JAIL if he / she commits the crimes in either of the following situations:
• Dismissing 2 employees and more;
• Dismissing pregnant employees;
• Dismissing mothers of less than 12-month old baby; or
• Causing the dismissed employees commit suicide.
At the same time, the violating person may also be prohibited from holding certain professional positions within 1- 5 years.

Employment of employees under 16
Anyone who employs a person under 16 to do hard or dangerous work or work that involves contact with harmful substances in any of the following cases will be subject to a fine of VND 30 million – VND 200 million or up to 03-year non-custodial reform or 06 – 36 month imprisonment:
• The offender previously incurred a civil penalty or has a previous conviction for the same offence which has not been expunged;
• The offence results in bodily harm to 01 people who suffers from 31% – 60% physical disability;
• The offence results in bodily harm to 02 people or more who suffer from a total physical disability of 31% – 60%.
A sanction of 03 – 07 year imprisonment applies in the following cases:
• The offence has been committed more than once;
• The offence involves 02 workers or more under 16;
• The offence results in the death of 01 person or bodily harm to 01 person who suffers from over 61% physical disability;
• The offence results in bodily harm to 02 people, each of whom suffers from 31% – 60% physical disability;
• The offence results in bodily harm to 03 people or more who suffer from a total physical disability of over 61%.
A sanction of 05 – 10 year imprisonment applies in the following cases:
a) The offence results in the death of 02 people or more;
b) The offence results in bodily harm to 02 people or more, each of whom suffers from over 61% physical disability;
c) The offence results in bodily harm to 03 people or more who suffer from a total physical disability of over 122%.
The offender might also be subject to a monetary fine of VND 10 million to VND 50 million.

Evading payment of social insurance, health insurance, unemployment insurance for employees
A corporate legal entity who commits the following crimes is subject to monetary fine of VND 200 million to VND 500 million:
• The amount of insurance contribution evaded is VND 50 million to under VND 300 million;
• The offender fails to pay insurance for 10 – 49 employees.
A corporate legal entity who commits the following crimes is subject to monetary fine of VND 500 million to VND 1 billion:
• The offence has been committed more than once;
• The amount of insurance contribution evaded is VND 300 million to under VND 1 billion;
• The offender fails to pay insurance for 50 – 199 employees;
• The offender collects or deducts insurance contribution from the employees at the amount of VND 50 million to under VND 300 million or from 10 -49 employees but fails to pay insurance [to the authority].
A corporate legal entity who commits the following crimes is subject to monetary fine of VND 1 billion to VND 3 billion:
• The amount of insurance contribution evaded is VND 1 billion or more;
• The offender fails to pay insurance for 200 employees or more;
• The offender collects or deducts insurance contribution from the employees at the amount of VND 300 million to under VND 1 billion or from 50 – 199 employees but fails to pay insurance [to the authority].

Coercive labour
Any person that uses violence or threat of violence or other methods to force a person to work against his/her will, depending on each case, be subject to monetary fine of VND30 million – VND200 million, 06-month to 12-year imprisonment, or prohibited from holding certain positions or doing certain jobs within 01 – 05 years.

Action plan
What we recommend to you now:
• You should update your Internal Labour Rules
• You should inform your managing team about these new rules !
We are fully qualified to assist you with this work. Kindly let us know if you require our assistance.

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Please do not hesitate to contact Mr. Oliver Massmann under omassmann@duanemorris.com if you have any questions on the above or should you request our assistance. Mr. Oliver Massmann is the General Director of Duane Morris Vietnam LLC.