In the employment relationship, it is possible for the employer to transfer the employee to another job that is not in accordance with the valid signed labor contract. Because not in all cases, the employer’s production and business activities are carried out exactly as originally intended. In case there are changes in objective obstacles, force majeure events, or changes within the enterprise that affect the production, operation and management of the enterprise, the labor transfer is one of the urgent and necessary solutions. In particular, in the past time, due to the impact of the Covid-19 pandemic, the restructuring and reorganization of labor has taken place strongly, many cases of labor transfer have affected the rights of employees.

Currently, the Labor Law has specific provisions to regulate the issue of labor transfer that employers need to pay attention to implement in order to ensure the legitimate rights of employees and comply with the law.

1. Cases of labor transfer are allowed:

According to the provisions of Clause 1, Article 29 of the Labor Code No. 45/2019/QH14, the employer may transfer the employee to a job other than the labor contract in the following cases:

• When facing difficulties due to natural disasters, fires or dangerous diseases;
• When the employer applies measures to prevent and remedy occupational accidents and diseases;
• When there is an electricity and water problem;
• Due to production and business needs. When transferring employees in this case, the employer must specify in the internal labor regulations which cases are considered due to business and production needs that the employer is temporarily entitled to transfer the employee to do other job than the labor contract.

2. Time limit for labor transfer:

According to Clause 1, Article 29 of the Labor Code No. 45/2019/QH14, the employer is allowed to temporarily transfer the employee to a job other than the labor contract, but for no more than 60 cumulative working days in a year. In case the employer wishes to transfer the employee for more than 60 days, the employee’s written consent must be obtained.

In case the transfer time expires but the employer wants the employee to work at the new position, the employee’s consent must be obtained. Consent can be expressed by:

• An appendix to the labor contract, which contains provisions on transferring a new job that is different from the original job; or
• New labor contract between employer and employee. In this case, the employer and employee can agree to terminate the original labor contract and then sign a new labor contract.

In case the transfer period expires, the employer wants the employee to work at the new position but the employee still wants to continue doing the old job, the two parties continue to perform the contract as originally signed. The employer has no right to unilaterally terminate the labor contract with the employee in this case. However, the employee has the right to unilaterally terminate the labor contract if the employer fails to arrange the work, working place or working conditions as agreed upon in the labor contract.

3. Employee’s salary when transferring labor:

According to Clause 3, Article 29 of the Labor Code No. 45/2019/QH14, the employee changes to a job other than the labor contract to be paid according to the new job, in which:

• The salary for the new job must be at least 85% of the salary of the old job but not lower than the minimum wage;
• If the salary of the new job is lower than the salary of the old job, the salary of the old job will be kept the same for 30 working days.

In case the employee does not agree to temporarily do a job other than the labor contract for more than 60 cumulative working days in a year and has to stop working, the employer must pay the stoppage pay as prescribed in Clause 3, Article 99 of the Labor Code No. 45/2019/QH14 as follows:

• In case of having to stop working for 14 working days or less, the agreed-upon stoppage salary shall not be lower than the minimum wage;
• In case of having to stop working for more than 14 working days, the salary for stopping work shall be agreed upon by the two parties, but it must be ensured that the salary for stopping work in the first 14 days is not lower than the minimum wage.

4. Responsibilities of the employer when transferring employees:

According to the provisions of Clause 2, Article 29 of the Labor Code No. 45/2019/QH14, when temporarily transferring an employee to another job, the employer must notify the employee at least 03 working days in advance, the notice must clearly state the temporary working term of the employee. At the same time, the employer is responsible for arranging new jobs suitable to the employee’s health and gender conditions.

5. Legal responsibilities of the employer when transferring employees illegally:

According to Article 11 of Decree No. 12/2022/ND-CP, the levels of penalties for employers when transferring employees illegally are prescribed as follows:

– A fine ranging from VND 1,000,000 to VND 3,000,000 shall be imposed in case the employer temporarily transfers the employee to a job other than the labor contract but:

• • Failing to notify the employee before 03 working days;
  • Failing to notify or notifying clearly the temporary working term or arranging work that is not suitable for the employee’s health and gender.

– A fine ranging from VND 3,000,000 to VND 7,000,000 shall be imposed on the employer who commits one of the following acts:

• • Arranging employees to work at a location other than the one agreed upon in the labor contract, except for the case of lawful labor transfer according to the provisions of Article 29 of the Labor Code 45/2019/QH14;
  • Transferring employees to a job other than the labor contract for no reason, time limit or without the employee’s written consent as prescribed by law.

Note: The above-mentioned administrative penalty for labor transfer is the penalty for an individual employer. The fine level for the employer being an organization will be 2 times higher than the fine level for the above-mentioned individual (as prescribed in Clause 1, Article 6 of Decree No. 12/2022/ND-CP).

Remedial measures for illegal labor transfer:

• Forcing the employer to arrange the employee to work at the location agreed upon in the labor contract in case of relocating the employee to another location;
• Forcing the employer to arrange the employee to do the job in accordance with the signed labor contract in case the employee is transferred to another job.

Contact us if you need further advice.

Note: This article is for informational purposes only and it is not a legal advice. The content of the article represents its own of TTVN Legal, it subject to change without prior notice.