Levels and conditions for enjoying benefits of sickness, maternity, one-time social insurance of for

Legal situation: Hi Lawyer, I am a foreigner working at an X English Center in Vietnam. It is stipulated in the labor contract that I am paid hourly, my hourly wage is 400,000 VND, and my actual working hours are 70 hours/month. I have a work permit, sign an indefinite labor contract with X Center and fully participate in compulsory social insurance payment under Vietnamese law. Recently, I received an email from the Center informing me that my additional benefits will depend on the total number of actual teaching hours in the month. Specifically:

 

- Employees who work less than 80 hours/month will be supported by the Center with 100% of fuel and lunch costs.

 

- Employees who work more than 80 hours/month are entitled to maternity allowance, sickness allowance and one-time social insurance.

 

So does the Center have the right to set a minimum number of working hours in a month for me to enjoy the above benefits? Sincere thanks.

 

FDVN opinion:

 

Thank you for sending your question to FDVN Law Firm (“FDVN”). For your consulting request, after researching the relevant legal regulations, FDVN has some exchanges as follows:

 

[1]. Can Center X choose the basis of 80 hours of practical teaching in a month as a basis for you to receive subsidies for petrol and lunch?

 

According to the provisions of Article 103 of the Labor Code 2019 on Pay rise

 

“Pay rises including increases in salary, pay grades, allowance, benefits and other types of incentives for an employee shall be agreed on in the employment contract or the collective bargaining agreement, or stipulated in the regulations of the employer.”

 

And Article 104 of the Labor Code 2019 on Bonuses:

 

“1. A bonus means an amount of money, a piece of property or item that is provided by an employer for his/her employees on the basis of the business performance or the employees’ performance.

 

2. A bonus regulation shall be decided and publicly announced at the workplace by the employer after consultation with the representative organization of employees (if any).”

 

Thus, in Vietnam, there are no specific regulations on specific bonuses and support levels for employees. The levels of bonuses and support level is agreed upon by the employee and the employer or the employer decides on the basis of the annual production and business results, the level of work completion of the employees. Therefore, the fact that Center X stipulates to choose 80 hours of practical teaching/month as a basis for calculating bonuses and support for employees is not contrary to the law.

 

[2]. Conditions for enjoying sickness, maternity, and one-time social insurance benefits

 

Pursuant to Clause 2, Article 2 of the Law on Social Insurance 2014 and Clause 1, Article 2 of Decree 143/2018/ND-CP dated October 15, 2018 of the Government, employees who are foreign nationals working in Vietnam shall be required to participate in the compulsory SI program if they obtain work permits, practicing certificates, practicing licenses issued in Vietnam, indefinite-term employment contracts of employment contracts valid for at least one year with employers in Vietnam.

 

Based on the above provisions and compared to your case, you are subject to compulsory social insurance participation in Vietnam. According to the provisions of Clause 1, Article 5 of Decree 143/2018/ND-CP dated October 15, 2018 of the Government, you must implement the following compulsory social insurance regime: sickness, maternity, occupational accident, disease, retirement and death insurance benefits.

 

Conditions and level of social insurance benefits are implemented under Vietnamese law, specifically the Law on Social Insurance and Decree 143/2018/ND-CP dated October 15, 2018 of the Government. Therefore, the fact that Foreign Language Center X has regulations on conditions for enjoying sickness, maternity and social insurance benefits is inconsistent with the law.

 

According to the provisions of Vietnamese law, the conditions for foreign citizens working in Vietnam (subject to compulsory social insurance) to enjoy the benefits of sickness, maternity, and one-time social insurance benefits are as follows:

 

Conditions for enjoying sickness benefits:

 

Pursuant to Clause 1, Article 6 of Decree 143/2018/ND-CP and Article 25 of the Law on Social Insurance 2014, the conditions for enjoying the sickness benefits are:

 

“1. Employees who have to take leave due to sickness or accidents other than occupational accidents, with the certification of a competent health establishment under the Ministry of Health’s regulations.

The sickness benefits do not cover employees who take leave due to sickness or accidents as a result of self-infliction, drunkenness or use of narcotics or narcotic precursors on the Government-prescribed list.

2. Employees who have to take leave for caring for sick children aged under 7 years, with the certification of a competent health establishment.”

 

Conditions for enjoying the maternity benefits

 

Pursuant to Clause 1, Article 7 of Decree 143/2018/ND-CP and Article 31 of the Law on Social Insurance 2014, the conditions for enjoying the maternity benefits are:

 

“1. Employees shall be covered by the maternity benefits in one of the following cases:

 

a/ Pregnant female employees;

 

b/ Female employees giving birth to children;

 

c/ Female employees as surrogate mothers and intended mothers;

 

d/ Employees adopting under-6-month children;

 

dd/ Female employees having intrauterine devices or employees taking sterilization measures;

 

e/ Male employees currently paying social insurance premiums whose wives give birth to children.

 

2. To enjoy the maternity benefits, employees defined at Points b, c and d, Clause 1 of this Article must have paid social insurance premiums for at least full 6 months within 12 months before childbirth or child adoption.

 

3. To enjoy the maternity benefits, employees defined at Point b, Clause 1 of this Article who have paid social insurance premiums for at least full 12 months and need to take a leave during pregnancy for pregnancy care as prescribed by a competent health establishment must have paid social insurance premiums for at least full 3 months within 12 months before childbirth.

 

4. Employees who fully satisfy the conditions specified in Clause 2 or 3 of this Article and terminate their labor contracts or working contracts or cease working before the time of childbirth or the time of adoption of under-6-month children are still entitled to the maternity benefits prescribed in Articles 34, 36 and 38, and Clause 1, Article 39, of this Law.”

 

Conditions for enjoying the one-time social insurance benefits

 

According to the provisions of Clause 6, Article 9 of Decree 143/2018/ND-CP, you shall be entitled to social insurance benefits if you fall into one of the following cases:

 

- You reach the retirement age, but have not yet reached the period of 20 years of SI contribution: The retirement age of employees under normal working conditions is adjusted according to the roadmap until reaching 62 years of age for male employees in 2028 and full 60 years of age for female employees in 2035. From 2021, the retirement age of employees under normal working conditions is 60 years and 03 months for male employees and 55 years and 04 months for female employees; after that, every year increases by 03 months for male employees and 04 months for female employees.

 

- You are currently suffering from one of the deadly diseases, such as cancer, polio, cirrhosis with ascites, lapra, serious tuberculosis, HIV infection moved to the phase of AIDS disease and others regulated by the Ministry of Health;

 

- You have fully satisfied retirement pension entitlement requirements as per clause 1 of this Article, but has discontinued residing in Vietnam;

 

- Your employment contract is terminated, or your labor permit, practicing certificate or practicing license expires without being permitted for renewal.

 

The above is FDVN's consulting opinion related to your consulting request based on studying legal regulations. Hope the advice of FDVN will be useful to you.

 

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