DO WE NEED TO SIGN A LABOUR CONTRACT WHEN WORKING A PART-TIME JOB?

Nowadays, working part-time (or called part-time working) is becoming a trend and almost is the necessary work in the young people’s life, especially a generation of gene Z. However, the appearance of freelance working (or called as freelancer) has misunderstood the notion of part-time working as freelance working and vice versa. The basic difference between the above forms is the compulsory time to perform the work and project. In terms of working part-time, an enterprise can hire an employee for 4 hours/day to work as a part-time job position, the person taking this job just spends 4 hours doing this job and receives the salary based on such working time. In contrast, in terms of freelance working, an enterprise, normally, will assign a project, work corresponding with the duration of this project, work, so there is no limit working time as long as the person assigned work finishes the work on time; therefore, the person who works freelance can take on any job in the same of their time fund. Currently, many employees, especially people who have the flexible working hours or can remotely work, in addition to the main labour contract (“LC”) signed with one employer, also increase their income through the work, project related to their major, expertise or even not related to the main major in their time off. Hence, it is easy to see that the demand for working part-time tends to increase in recent times.

According to the principle of supply-demand, the number of part-time jobs has increased over time. Taking the work in restaurants as an example, the restaurants often hire students to work as a waiter/waitress for a party which is about from 05 to 06 hours, and then pay salaries to them, instead of training and teaching a professional team in serving, preparing for the wedding party. This will help the person who does the part-time job to work for other restaurants in a week and be flexible about arrangements for their working hours. However, such works are short-term and seasonal; restaurants just assign those people to negotiate verbally with the person who does the part-time job. There are many cases in which students have agreed with the party’s supervisor – representing the restaurant on working hours and the salary that they will receive after the end of the party, but after finishing their work, they do not receive their salary. In such circumstances, most of them keep quiet and forgive since almost employees are not clear that how their work regulated by law, and what is their rights and benefits when doing such work.

Do we need to sign a labour contract when working a part-time job?

It needs to concede that part-time jobs bring many economic benefits as well as practice experiences, collaborative relationships, etc. for each individual. However, whether each individual knows legal matters related to part-time jobs in order to protect their own rights or not?

The reality shows that many young people who work part-time do not care about their benefits except for salaries and benefits,.. even though many people who work part-time do not enter into a LC. Thus, the concern is when working part-time jobs, do employees need to enter into a LC, and how is this matter regulated by the law on labour?

Although the labour laws have not yet provided a specific definition of working part-time, in terms of words as well as proper analysis of the nature of part-time job, it can be understood that this is a form of working part-time. Pursuant to Article 32.1 of the Labour Code, “part-time employee means an employee having working hours shorter than the average daily, weekly, or monthly working hours prescribed in the labour laws, in the collective agreement or in the internal labour regulations”; from that, it can be seen that an employee with working hours shorter than average daily, weekly, or monthly working hours is compatible with the nature of part-time job.

Aside from that, one of the need-to-be-concerned issues is the type of LC that will be concluded. According to the labour laws, currently, there are 2 types of LC[1]: (i) an indefinite term LC is a contract signed between two parties with an indefinite term and termination time; (ii) a definite term LC is a contract signed between two parties with a definite term which does not exceed 36 months from the effective date of such contract. And, currently, no regulation requires part-time people to sign what kind of contract. Hence, depending on the nature of work and an agreement between employee and employer, they can choose one of two types of contract as aforementioned. It should be noted that, if an employee just performs the work with the term lower than one month, parties completely enter into a definite term LC shorter than one month by verbal[2], except for some special circumstances in accordance with the law on labour such as entering into a LC with an individual lower 15 years old.

Determining the accurate nature of work is vital since freelancers often sign service contracts (or collaborator contract) in writing (if such work is of a highly professional nature) or in verbal or electronic data. Hence, the main rights and obligations in the relationship between parties are regulated by the Civil Code and there is no labour relationship between them. Regarding part-time job, the employer shall enter into a LC with the employee in any circumstances.

Rights and obligations of the parties in labour relationship related to working part-time

With the nature of labour relationship and being constrained by the labour laws, there are no distinctions between part-time employees and full-time employees, pursuant to Article 32 of Labour Code, a part-time employee is still entitled to receive the benefits like other employees in labour relationship, including: be entitled to receive salaries, have equality in exercising rights and discharging obligations, be entitled to have equal opportunity, must not be discriminated, and be entitled to be ensured on occupational safety and hygiene.

In principle, plus the above mentioned, a part-time employee is still entitled to receive the rights as same as a full-time employee, which includes social insurance. However, one of the necessary conditions for employees to be eligible to participate in social insurance is that they must be employees working under a LC for full 01 month[3]. In addition, if the period of non-working and unpaid is more than 14 days/month, they are not eligible to contribute to the insurance for that month[4].

The practice currently shows that many jobs are called part-time jobs (employee is paid according to a certain number of working hours), but such employee still has to spend more time than the paid one to complete the work/project, which means doing a part-time job as a freelance job. Since no current law regulating this issue, an employee can only improve their knowledge of the law to protect their legitimate interests when negotiating with employers. Besides, usually, many part-time jobs are performed remotely, so it is difficult for employer to control the employee’s performance to have a reasonable calculation for paying salary to them based on the determined number of their working hours when entering into a contract. Regardless, the law always tends to protect employee, so enterprise should comply with the provisions of the labour laws, ensure working hours as agreed, do not force employee to complete their work beyond the working hours unless enterprise can prove that the employee’s working performance is poor, which is to avoid the case that employee relies on it to sue the employer in Court.

The risk for enterprise in case of failure to sign a LC

Currently, according to regulations on sanctioning of administrative violations, if enterprise hire employee to work for more than one month but do not sign a written LC, they will be fined from VND4,000,000 to VND50,000,000[5]. Aside from that, employee also have the right to file a lawsuit against enterprise since enterprise has been violating their obligations in the labour relationship, leading to a prolonged dispute, which consumes a lot of time, effort, and money of the enterprise.

The above are issues related to entering into LC with part-time employee that enterprise needs to take into consideration, as for employee, they need to know these important legal points to protect their own interests in the best ways when participating in the labour market.

[1] Article 20.1 of Labour Code

[2] Article 14.2 of Labour Code

[3] Article 2.1 of Law on social insurance 2014

[4] Article 85.3 of Law on social insurance 2014

[5] Articles 6.1 and 9.1 Decree 12/2022/ND-CP