1. Can employers transfer employees?

When an individual participates in labor at an organization or enterprise, the labor contract is one of the indispensable documents before the parties can exercise their rights and obligations. The content of the labor contract clearly states all information such as job, work location, working time, salary, bonus, etc. These contents can completely change if both parties proceed. sit down to dialogue and negotiate with each other about the adjustment content. Pursuant to Article 29 of the 2019 Labor Code, in some cases it is necessary to transfer employees to jobs other than the originally signed labor contract, the following legal elements must be ensured:

– One of the important factors for employers to transfer jobs when in reality the operations of the business organization encounter unexpected difficulties due to natural disasters, fires, dangerous epidemics, or pressure. Use measures to prevent and overcome labor accidents, occupational diseases, electricity and water incidents or due to production and business needs.

– For the above force majeure events, the employer has the right to temporarily transfer the employee to another job compared to the labor contract. According to the law, the time for job transfer must not exceed 60 cumulative working days in 1 year; In the case of transferring an employee to a job other than the labor contract for more than 60 cumulative working days in 1 year, the employee's approval is required through written consent.

– Before entering into a labor contract, the employer is responsible for discussing all factors surrounding the work in advance, including specific regulations on job transfer. ; In addition, should information be recorded in the labor regulations about cases where due to production and business needs, the employer is allowed to temporarily transfer employees to work other than the labor contract in order to avoid disputes;

– The job transfer needs to be carried out in the correct order, accordingly, when temporarily transferring an employee to a job different from the labor contract specified in Clause 1 of this Article, the employer is responsible for reporting Let workers know at least 3 working days in advance. The notification process must clearly state the temporary employment period and work arrangements appropriate to the worker's health and gender.

With the above regulations, if the employer is in the specific cases mentioned above, he has the right to temporarily transfer the employee to a job other than the labor contract, but the transferred job does not apply. exceed 60 cumulative working days in 01 year. If this period exceeds, written consent is required. The transfer notification period is 3 working days.

2. Labor dispute over job transfer:

When individuals participate in labor, it is impossible not to have conflicts over rights. According to the provisions of Article 179 of the Labor Code 2019, labor disputes are understood as disputes about rights, obligations, and benefits arising between the parties when establishing, implementing or terminating labor relations. ; Currently, labor disputes may exist between employee representative organizations; or during the working process, disputes arise due to relationships directly related to labor relations. A transfer dispute is when an employee disagrees with the employer's transfer decision because this activity greatly affects the employee's work and life;

– Today, in labor relations, if there is a dispute that the parties cannot resolve among themselves, specifically related to job transfer disputes, the agency or individual has the authority to resolve the labor dispute. Individual actions include labor conciliators and People's Courts.

– Statute of limitations for requesting resolution

+ If the parties choose to mediate an individual labor dispute, the statute of limitations for making a request is 6 months;

+ For individual labor disputes, the statute of limitations to request the Court to resolve an individual labor dispute is within 01 year.

In order to accurately determine the statute of limitations, the law will consider this the date of discovery of the act that each party believes its rights and interests have been violated to determine the statute of limitations for dispute resolution.

– Conduct conciliation of work transfer disputes

For disputes in general, and job transfer disputes in particular, conciliation is a mandatory procedure, except in some cases otherwise prescribed by law. The labor dispute conciliation process needs to be carried out within 05 working days from the date of receiving the request to conciliate the transfer dispute. After this time, the mediator will have to end the mediation process. When holding a conciliation meeting, it is necessary to ensure that both disputing parties are present.

The law also does not limit the authorization of the disputing parties, who can completely authorize others to participate in the conciliation meeting. The labor conciliator must be responsible for guiding the parties to negotiate and agree on a solution;

In cases where the two parties can reach an agreement, the conciliator must fulfill his obligation to prepare a record of successful conciliation;

In case the two parties cannot reach an agreement, the mediator will propose a settlement plan for the two parties to consider. If both parties accept the conciliation plan, the labor conciliator prepares a record of successful conciliation. If the two parties do not accept the conciliation plan or one disputing party is not willing to negotiate, has received a valid summons notice for the second time but is still absent without a legitimate reason, conciliation will take place. The employee made a record of unsuccessful conciliation.

In order for the conciliation process to take place in the correct order, the minutes must be signed by the disputing party and the labor conciliator. A copy of the record of successful or unsuccessful conciliation must be sent to the two disputing parties within 01 working day from the date of making the record.

– Dispute resolution at Court:

If one of the parties, after going through conciliation, cannot find a common voice, each disputing party has the right to request the Court to resolve the dispute, due to one of the following reasons:

+ Unsuccessful reconciliation between the parties;

+ When successful conciliation has been established but one of the two parties does not implement the agreements in the successful conciliation record;

+ In addition, if at the end of the legal resolution time limit (5 working days), if the labor conciliator does not conduct conciliation, each disputing party has the right to request the Court to resolve the dispute.

Thus, conciliation is a mandatory procedure in the process of resolving labor transfer disputes. Since the 2019 labor code came into effect, there have been new points, recording a number of additional cases where the law does not require conciliation procedures such as:

+ Disputes related to labor discipline in the form of dismissal or disputes regarding unilateral termination of the labor contract;

+ Unable to find agreement on compensation and benefits upon termination of labor contract;

+ In the relationship between the domestic worker and the employer, there is no agreement on the rights and obligations of the parties;

+ Fields related to social insurance according to the provisions of the law on social insurance, and health insurance according to the provisions of the law on health insurance;

+ Factors related to compensation between workers and businesses and public service units sending workers to work abroad under contracts.

3. How is illegal labor transfer handled??

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

– Individuals may be subject to a fine of 1,000,000 - 3,000,000 VND in cases where the employer temporarily transfers the employee to a job other than the labor contract but:

+ Violations in notifying employees, which according to regulations must be given 3 working days in advance;

+ The information provided about the temporary employment period is also unclear or this procedure is omitted; In addition, there is an act of assigning work inconsistent with the health and gender of the employee.

– The fine can be increased from 3,000,000 - 7,000,000 VND for employers who commit one of the following acts:

+ Taking action to arrange employees to work at a location other than the work location agreed in the labor contract, except for the case specified in Article 29 of the 2019 Labor Code.

+ The initial agreement was approved by the employee, but in reality, the employee was transferred to a job different from the labor contract for the wrong reason; period or without the employee's written consent as prescribed by law.

Worth noting: The above fines for administrative violations of labor transfer only apply to individuals. In case the violation is committed by an organization, the fine will be 2 times the fine for an individual (Clause 1, Article 6 of Decree No. 12/2022/ND-CP).

– In addition to being fined for administrative violations, individuals and organizations may be subject to the following remedial measures:

– The employer is required to accept the employee back to work at the location agreed upon in the labor contract in case of transferring the employee to another location.

– If there is an act of assigning workers to jobs that are not in accordance with the signed labor contract, in case of transferring employees to other jobs, it is mandatory to arrange jobs in accordance with the original agreement.

Legal documents used:

– Labor Code 2019;

– Decree No. 12/2022/ND-CP of the Government: Regulations on sanctions for administrative violations in the fields of labor, social insurance, and Vietnamese workers working abroad under contracts.