Regulations in labor law for part time employees

I hereby affirm that this thesis is my own study under the supervisor’s guidance All of the information other than my idea to be used or quoted has been acknowledged by means of complete references I would bear full responsibility for my protest July 15th, 2013 NGUYEN VU MINH NGUYEN REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES TABLE OF CONTENTS ABBREVIATIONS INTRODUCTION The subject’s imperativeness Research object Research scope Research objective Research situation Research methods The thesis’s structure Chapter GENERAL THEORIES OF PART-TIME EMPLOYEES 1.1 Definition of part-time employees 1.2 Characteristics of part-time employees 17 1.2.1 The development of part-time workforce depends on a specific economic and social environment 19 1.2.2 The number of working hours of part-time employees less than those of full-time employees 22 1.2.3 A part-time employee is paid lower salary and non-wage benefits in comparison with a comparable full-time employee 24 1.3 The principles of “non-discrimination” in regulations of part-time employees 26 Chapter LEGAL REGIME IN VIETNAMESE LABOR LAW FOR PART-TIME EMPLOYEES – INSUFFICIENCES AND COMPLETE ORIENTATION 2.1 Trade Union 31 2.2 Contract of employment 33 2.2.1 Contents of the labor contract 34 -1- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES 2.2.2 Kinds of labor contracts 35 2.2.3 Termination of the labor contract 36 2.3 Rest day, public holidays and annual leave 38 2.3.1 The threshold of working time for the enjoyment of benefits 38 2.3.2 The amount of benefits paid on the principle of “pro-rata” 40 2.3.3 Definition of the term “comparable full-time employee” 43 2.4 Salary and overtime pay 44 2.4.1 Salary 45 2.4.2 Overtime pay 46 2.5 Social security 48 2.5.1 Compulsory social insurance 49 2.5.2 Unemployment Insurance 50 CONCLUSIONS 52 LIST OF REFERENCES 54 APPENDIX 56 -2- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES ABBREVIATIONS ILO International Labor Organization EC European Courtof Justices EU Europe Union CPS Current Population Survey EAT Employment Appeal Tribunal VLC Vietnamese Labor Code EC Europe Community LEL Lower Earnings Limit NICs National Insurance Contributions UI Unemployment Insurance SI Social Insurance -3- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES INTRODUCTION The subject’s imperativeness The change of economic and social environment around the world leads to the expanse of part-time works in many States, particularly in industrial countries so as to satisfy the needs of employers and certain employees who desire greater latitude in managing the working time Because part-time works not only facilitate employers trading service sector to use effectively the labor source and capital equipment, especially in peak hours for the aim of reducing labor cost and increasing the business competitiveness but also allow employees allocating their working hours in order to suit the study in school, family obligations or healthy situation Moreover, the development of part-time works helps to redistribute works and reduce the tension of labor market during the period of economic recession1because it creates more jobs by the share of fulltime works; therefore, it helps to decline unemployment rate However, some of other ideas indicated that part-time works not meet the expectations of employees who usually prefer jobs which have stable salaries and non-wage benefits as full-time works Meanwhile, part-timers are only back-up workers In addition, part-time works prejudice full-time employees and reduce the competitiveness of labor market as well as the quality of labor force Because employers not require part-time employees to gain high skills or qualifications for and practically, such workers have fewer chances of the trainings and promotions than comparable full-timers Hence, it is suggested that States should restrict the growth of part-time works Although there exist conflicts between these trends, it is widely recognized that part-time works need to be expanded in current conditions including the recession of the economy and the development of service sector As a result, part-time employees are no longer “atypical” workers in labor market Instead of that, they have rapidly developed for two past decades and become a typical workforce together with full-timers For example, the rate of part-time employment rose from 13 percent to 18 percent of total employment in the International Labor Conference 80th Session 1993, Part-time Work: Fifth Item on the Agenda Volume 2, International Labor Office, 1993 -4- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES Europe Union (EU) during 1983 – 2001.2 This is also indicated similarly in Canada, Australia, Japan, and United States Thus, it is essential that States establish a separate legal regime for such type of employees In practice, International Labor Organization (ILO) and many countries enacted regulations of part-time employment beyond Employment Act such as Singapore, Malaysia, EU, and United Kingdom… It is predicted that part-time workforce will develop sharply in near future in the favorable economic and social environment as Vietnam Although the first regulations of part-time employees are recorded in Vietnamese Labor Code (VLC) 2012, they seem to be too few to cover all problems relating to such workers Moreover, Vietnamese Law has not yet had a distinct between regulations of full-timers and those of part-timers while the nature of part- and full-time works as well as characteristics of these two types of workers are different Understandably, legislation which is not based on the substantiality of a social relationship and does not suit the objective practice will affect the development of that relation as well as benefits of parties concerned Therefore, it is suggested that Article 34 of the Code 2012 should be revised for the purpose of protecting part-time employees and balancing the profits of employers with part- and full-timers Understanding this imperative requirement, the writer has selected the subject “Regulations in Labor Law for part-time employees” to research the nature of part-time workforce and legal regime of such employees in Vietnam and some countries around the world, which allows considering comprehensively the insufficiencies in regulations of Vietnamese Labor Law for part-timers, then gives the recommendations to improve them for the final purpose of harmonizing the employment relationship between the employer and employees, contributing to stabilize laborers’ life, develop the economy and society Research object The thesis concentrates on researching the characteristics of regular parttime employees (part-time employees for short) and analyzing, evaluating rights Hielke Buddelmeyer, Gilles Mourre and Melanie Ward, Recent Developments in Part-Time Work in EU-15 Countries:Trends and Policy, DP No 1415, Forschungsinstitut zur Zukunft der Arbeit Institute for the Study of Labor, 2004, page7 -5- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES and obligations of such workers in correlation to comparable regular full-time employees Moreover, the writer also mentions casual employees consisting of casual part- and full-time employees in comparison with part-time employees for the purpose of distinguishing and clarifying the nature of part-timers Research scope The determination of research scope is based on many factors including documentary sources, the resemblance in economic, political and social characteristics between Vietnam and States chosen for the comparison, the development of legislation regarding the research field in those States Therefore, beside Vietnamese Labor Law and Convention 175 of ILO which is the treaty regulating part-time work, the writer has collected to study Malaysia Law and Singapore Law regarding the certain aspects of part-time works and employees due to the fact that there are many similarities in the nature of labor market and economic conditions between Vietnam and such countries Moreover, the research of EU Law, United States Law and United Kingdom Law, which are the States having established separate regulations of part-time employees and applied them for a long time, has facilitated the writer to look for the relative documents more easily and consider, analyze the issues more comprehensively Especially, the writer can propose greater solutions basing on the experiences of such developed countries Research objective As mentioned in the part of the subject’s imperativeness, the research of part-time employees has a huge meaning for the later trend in the development of such workforce and the establishment of reasonable regulations to adjust labor relationships concerned in the society Therefore, the thesis focuses on clarifying some of certain problems relating to part-time employees for the following purposes: First, the writer wishes to provide a general view of part-time employees through the consideration of definitions and characteristics of such workers in some countries around the world in order to understand thoroughly the nature of part-time works and employees, evaluate their positive and negative influences -6- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES to economic and social life, which contributes to orient to the growth of parttime workforce and the establishment of an appropriate legal regime to govern such workers Second, while building a protection mechanism for part-time employees, it is essential to consider their correlation to employers and full-time employees in order to guarantee the balance of benefits between such subjects each other Because if the protection is too strict, it can create negative reactions, which may result in declining the demand of part-time labor from employers or rising the conflicts between full- and part-time employees Therefore, when mentioning legal regime in Vietnamese Labor Law for part-timers, the writer will analyze, evaluate and petition to revise the unreasonable regulations basing on these purposes Research situation Part-time works have developed since the 1980s in many countries around the world, especially, in developed countries Therefore, there are numerous foreign books, articles, reports, commentaries, surveys regarding this problem as well as part-time workforce There can be enumerated here such as the books “Employment regulation and patterns of work in EC countries” is written by David Grubb and William Wells, “Employment policy and the regulation of part-time work in the European Union: A comparative analysis” of the authors who are Silvana Sciarra, Paul Davies and Mark Freedland of Cambridge University, “Part-time work in Europe” of Antonio Corral and Inigo Isusi (IKEI, Spain) is published in 2007 by European Foundation for the Improvement of Living and Working Conditions; the article is named “Part-time workers: who are they?” by Thomas J Nardone and “Part-time workers: some key differences between primary and secondary earners” by H Luke Shaefer; the report “Characteristics of part-time work force” is based on the March 1993 Current Population Survey… Those not only provide the information relating to the economic and social issues which affect the development of part-time workers but also indicate legal problems concerned of some countries like United States, Australia, EU… However, this is also new issue in a developing country as Vietnam, which is proved that part-time employees had never been indicated in Vietnamese Labor Law for a long time until they are regulated formally in VLC 2012 as -7- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES “employees working shorter hours” Therefore, up to now, the writer has not found any monographic book or article yet which analyses, evaluates the regulations in domestic labor law regarding part-time employees Research methods The thesis builds on the basis which is theory of Marxism and Leninism relating to State and Legislation for the purpose of explaining regulations and orienting to the improvement legal regime regarding part-time employees in order to ensure the harmonization between benefits of government and those of the whole society The writer uses two main methods including dialectical materialism and historical materialism to consider all issues in this thesis Moreover, the writer also combines some of others such as comparison, analysis, synthesis in economic, social and legal sides so as to guarantee that every problem is evaluated comprehensively in different aspects In addition, this helps identify reasons correctly and fully, which contributes to seek reasonable measures to solve those issues effectively and absolutely The thesis’s structure Based on the research purpose and scope, the thesis is established under following structure: a Introduction b The content consists of two chapters:  Chapter 1: General theories of part-time employees  Chapter 2: Legal regime in Vietnamese Labor Law for part-time employees – Insufficiencies and complete orientation c Conclusions d List of references -8- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES Chapter GENERAL THEORIES OF PART-TIME EMPLOYEES 1.1 Definition of part-time employees The definition of the term “part-time employees” is difficult for lawmakers International Labor Organization, which is a specialized agency of the United Nations consisting of 185 member States, consulted representatives from various States about this matter at the 80th session of International Labor Conference in 1993, which is recorded in the book “Part-time work: Fifth Item on the Agenda, Volume 2” In this conference, there was an intense debate over the following issues relating to the term: For the first argument, member States was considering whether or not they should regulate a specific level of working time for part-time workers.3Some countries claimed that a clear definition was appropriate for the purpose of ensuring justice and avoiding the arbitrary application of the employer which may prejudice the employees’ rights Practically, in employment relationship, employees are always the weaker party in comparison to the employer Therefore, if a labor contract only depends on the free will of parties, it may be unequal to workers Moreover, a precise definition can help distinguish concepts each other as well as limit the group of objects concerned Accordingly, it is essential that the governments should specify a threshold above or below which allows determining whether or not an employee is a part-timer Oppositely, a wide definition could include other objects having the different nature, which hampers the performance of measures only applying for a category of certain employees Another important reason was stated that the determination of a threshold below could guarantee a minimum income for part-time employees and prevent them from holding several part-time jobs at the same time Furthermore, it is also one of bases for them to get the social security For these aims, few member In comparison with an employee, a worker is a broader category consisting of employees and others such as most agency workers, short-term casual workers and some freelancers Whereas an employee works under a labor contract, a worker is hired whether under a labor contract or under any other contract where he undertakes to personally the work or service It is noted that when the term “worker” is mentioned in this thesis’s scope, the writer is indicating an employee (http://www.nidirect.gov.uk/are-you-a-worker-employee-or-self-employed) -9- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES documents, it is necessary to regulate this rule to calculate the benefits for parttime employees As mentioned in Chapter 1, the differences in the working time, occupational skills, the creation of value, the complicated nature of work, the job sharing…between full- and part-time works lead to the fact that part-timers are only paid lower benefits than full-timers in practice Hence, it is difficult for the employer to apply the principle of “pro-rata” for the purpose of ensuring the equality between part-and full-timers For example, under the laws of States, all employees are entitled to public holidays but suppose there is a public holiday which is beyond the fixed working schedule of part-timers In this case, parttime employees in United States will not be entitled to holiday if they not have the normal working schedule on that day67, which seems to be unfair for them and may create chance for the employer to avoid his responsibility by trying to arrange the working time beyond public holidays According to the law of United Kingdom, this may organize the less favorable treatment between partand full-timers of the employer if he does not provide any other equivalent benefit In this case, the employer is required to pay an allowance proportionately to the number of working hours of part-timers in order to replace that day-off.68 This settlement is more reasonable because it creates the equality between part-timers each other as well as between themand full-timers Vietnamese Labor law also follows this viewpoint In practice, if public holiday coincides with rest day of employees, they will be enjoyed additional day-off However, for any less favorable treatment, if the employer proves that his decision is justified on an objective ground which means that this ground is “based on considerations other than the status of the employee as a part-time worker and the less favorable treatment is for the purpose of achieving a legitimate objective of the employer and such treatment is necessary for the purpose”69, he can be exempted from the legal responsibility To be clearer this issue, we can consider the lawsuit Gibson v Scottish Ambulance Service (2004) in United Kingdom In this case, Gibson, who was employed on part-time basis by Scottish Ambulance Service, complained to Employment Tribunal that the number of stand-by hours of him more than those of Wick – his similar fulltimer It was recognized by the Court that Gibson is treated less favorably than 67 http://www.opm.gov/policy-data-oversight/hiring-authorities/part-time-and-job-sharing/#url=Benefits http://www.nidirect.gov.uk/part-time-work 69 Department of Jobs, Enterprise and Innovation, Protection of Employees (Part-Time Work) Act 2001 Explanatory Booklet for Employers and Employees, page 11 68 -41- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES full-timers However, after listening the explanation of Scottish Ambulance Service and conducting the “but for” test again, Employment Appeal Tribunal (EAT) stated that there was a sole reason for the less favorable treatment of Scottish Ambulance Service, which is due to the demand of business, especially, this does not base on the part-time status of Gibson,70which was an important evidence for EAT to lean toward respondent’s side In summary, according to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 there will not exist any justified objective ground for the less favorable treatment of the employer if his manner is based on the part-time status of employee Practice has shown that in some circumstances, due to numerous reasons the employer cannot guarantee all benefits for all groups of workers and it is allowed by law for him to treat favorably to full-timers who contribute their health and intelligence in many years for their employer Besides that, it is also because such group is the most important human resource of companies However, to protect part-timers in these cases, the laws of some States force the employer to provide a written letter to explain his unequal treatment.It will be the basis for the part-timer to consider the reasonableness of his employer’s treatment From there, he decides to send a complaint to the competent court or not and that letter can become an evidence to proving the less favorable treatment of his employer For the orientationof the improvement of the domestic law relating to these issues, Vietnamese Labor Law should consider to supplement the important insufficiencies: First, Article 34(3) needs to record the principle of “pro-rata” to estimate the benefits for part-timers in order to guarantee the equality between the parttimer and his comparable full- timers Second, Article 34 of the Code 2012 should provide exemptions of the principle of “non-discrimination”, which allows the employer to treat part-timers less favorably than full-timers These exclusions can be detailed or generalized depending on the practice and legislative level of the lawmakers 70 http://www.veitchpenny.com/employment-updates/employment-update/gibson-v-scottish-ambulanceserviceemployment-appeal-tribunal-16-december-2004/menu-id-147.html -42- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES Third,when issuing the defenses for the employer, Article 34 of VLC 2012 should also regulate an additional right for a part-timer who incurred the less favorable treatment to require his employer a written letter for the explanation his less favorable manner 2.3.3 Definition of the term “comparable full-time employee” It is also difficult for part-time employees to specify a similar full-time employee in order to compare with themselves for the purpose of claiming the equality in the way of the employer’s treatment As mentioned above, the court will only recognize a full-timer as the comparator of the part-timer if there exists evidence proving that this person satisfies all conditions regulated by law of a comparable full-timer Vietnamese law has not yet established this concept, which creates numerous disadvantages for part-timer in proving the discrimination of the employer and for the courts in considering whether or not the inequality between part- and full-timers in the treatment of the employer Accordingly, from the research the regulations of Convention 175 and of some countries in the world, it is suggested that Vietnamese Labor Law should establish the term of a “comparable full-time employee”who: (a) works full-time in the same enterprise; (b) hasthe same type of labor contract; and (c) hasthe same or similar work/ occupation In case there is no comparable full-timer in the same enterprise, a comparator can be determined in another enterprise which has the same branch of activity.71 Especially, the Code 2012 should specifya comparable full-timer bylawin case a part-timer cannot find a comparator in practice to compare himself for the purpose of estimating the above benefits on the principle of “pro-rata” In this case, a comparable full-timer is who: (a) works hours per day and 48 hours per week (b) is entitled to the basic benefits of a full-timer such as rest day, public holidays, annual leave, social insurances…72 2.4 Salary and overtime pay 71 Article of Convention 175 Learn the experiene of Singapore 72 -43- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES According to Vietnamese Labor Law, salary and overtime pay are specified as follow: Under Article 90(1) of VLC 2012,salary “is amount that the employer pays to the employee for the performance of work as agreed.”It is always a sensitive problem, mainly depends on the agreement between parties Importantly, it connects directly other benefits of workers because it is the main basis to estimate the payment for work on rest day, overtime pay, social insurance, underemployment insurance, allowances… Overtime is additional time which employees work beyond their normal working time It means that if a full-timer whose working time is hours a day and 48 hours a week works more than hours per day or more than 48 hours per week, he will receive overtime pay “at least 150% according to salary unit price or salary by the job duties” In other cases, overtime pay will be “at least 200% on weekly days-off and at least 300% not including the salary of holiday and days-off for employee enjoying daily salary on holidays and days-off with pay” (Article 97(1) of VLC 2012) In the respect of part-time employees, the above regulations will be applied to such objects similarly to full-timers However, when considering the theories and practice regarding these provisions, it is seen that there are some of unclear issues here: 2.4.1 Salary In many countries, their laws regulate the minimum salary and require employers to pay wage to employees no less than this threshold Practice has proved that due to many reasons part-timers usually receive a lower pay in comparison with full-timers.73 In United Kingdom, female part-timers on average only receive 58% of the hourly pay rate of male full-time workers Especially, the formers remain the low pay for a long time and tend to expand this period of time in comparison with the latters This affects much the rights to receive short-term and long-term benefits of part-time employees because their earning which is below LEL (Lower Earnings Limit) is not enough to pay NICs (National Insurance Contributions).74 Particularly, both the employee whose 73 74 It is analyzed specifically in Chapter Hugh Collins, K.D Ewing and Alleen McColgan, Labor Law – Text and Materials, page 346 -44- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES wage falls under LEL and his employer are exempted from paying social security contribution Similarly, American part-timers in 2003 only earned $8.25 per hour comparing to $14.64 of full-timers, respectively It is one of main reasons resulting in the fact that UI (Unemployment Insurance) weekly benefits of part-timers whose length and amount are determined on worker’s salary is low.75 However, when focusing on the relationship of individuals and ignoring objective reasons which can be listed that part-timers have no overtime pay, the majority of such employees are hired in low-wage works, the job sharing, etc., we can find that it shall be unequal to a part-timer if he receives a hourly rate pay less than his comparable full-timer, especially, in case he is not paid several benefits as full-timers Because regardless of whether full-timers or part-timers, in a same work they use their own skills in order to try to finish that task Clearly, there is not much difference here Therefore, the law of United Kingdom states that a part-time employee is entitled to receive the same hourly rate of pay as his comparator unless there exists a justified objective ground provided by his employer for another treatment Like the current situation of States, Vietnamese part-timers are also paid alow salary rate.In principle, like full-timers, Vietnamese law also requires that the employer must pay salary to part-timers no less than the common minimum salary as prescribed by the Government Practically, this is difficult to implement In particular, because the working time of part-timers is unfixed so that they usually are hourly paid salary for the purpose of easy and equal calculation Meanwhile, the common minimum salary in Vietnam is specified in month and bases much on the nature of full-time works Under the Article 90(1) of the Code 2012, the hourly minimum salary of a part-timer equals the monthly minimum salary divided by his number of normal working hours If so, the hourly minimum pay rate of a part-timer will be much higher than that of the comparable full-timer because his working hours fewer than those of the comparator in the same task This is unequal to the employer as well as to fulltimers whose works are more complex and difficult Oppositely, if the hourly minimum salary of part-timer is specified equivalently to that of full-timer which equalsthe monthly minimum salary divided by the number of normal working hours of the similar full-timer, the minimum salary of part-timers will be lower than the common minimum salary, which conflicts with Article 90(1) of VLC 75 National Employment Law Project (NELP), Part Time Workers andUnemployment Insurance, 2004, page -45- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES 2012 However, this calculation is more reasonable and equal but it does not guarantee that the salary of part-timers must be high enough to join the social insurance Therefore,to ensure the rights of parties, the Government should determine anhourly common minimum salary for part-time employees instead of forcing the employer to comply with Article 90(1) of VLC 2012 Moreover,VLC 2012 needs to record the right of the part-timer to receive the same hourly pay rate as the comparable full-timer This is a method to improve the salary rate of such employeeswhich make the basis to contribute and receive benefits 2.4.2 Overtime pay Currently, there exist two different viewpoints about overtime pay on weekday in the world Particularly, in United Kingdom and United States, the employer has the right not to provide overtime pay for part-timers untilsuch employees work beyond the normal working time of full-timers It means that part-timers are not entitled to overtime pay unless they have worked full-time, which is one of reasons leading to the rise of inequality in paying hourly salary to such employees.76 Therefore, it shall not be a less favorable treatment if the employer applies an overtime rate of pay in the same period to a comparable full-timer higher than to a part-timer whose working time, including overtime, does not exceed the normal working time of his comparator.77Meanwhile, the laws of Singapore and Malaysia state that a part-timer shall always receive overtime pay if he works beyond his normal hours of work However, when estimating payment of hourly rate for overtime, it is divided into two following kinds: (a) at his hourly basic rate of pay for each hour or part thereof which exceeds his normal hours of work but does not exceed the normal hours of work of a similar full-time employee; and (b) at one and a half times his basic hourly rate for each hour or part thereof which exceeds the normal hours of work of a similar full-time employee.78 76 Simon Deakin and Gillian S Morris, Labour Law, page 198 Regulation 5(4) of Part-time Workers Regulations 2000 78 Section 5(1) of Employment (Part-time employees) Regulations of Singapore 77 -46- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES Considering the regulations of all these States, there is only a small difference here In particular, United States and United Kingdom not recognize that a part-timer who has not worked beyond the normal working time of his comparator is entitled to overtime pay although he exceeds his normal hours of work By contrast, Malaysia and Singapore acknowledge this Simply, that difference is only a way to regulate and does not make to change anything in its nature, especially, in the calculation of overtime pay The rate at 150% only applies to part-timers who work more than the normal working time of fulltimers Understandably, the regime of working time is formed on the bases of thebiological and psychological of laborers as well as the social and economic characteristics of every country In particular, the threshold of working time is established to ensure employees to have enough time to rest, recover their health and reproduce labor If they force to work beyond that threshold, they must be more effort to finish their job Therefore, when the employer requires his workers to work overtime due to certain reasons, he obliges to pay an allowance which is enough to offset their rest time lost It is indicated that overtime affects full-timers more sharply than part-timers who not work beyond the normal working hours of full-timers Because the former has less rest time than the latter in the same work Practically, overtime of type (a) belongs to the working hours of part-timers but it is of another job Meanwhile, that of type (b) and that of full-timers are withdrawn from rest time of such employees Thus, the division of overtime pay into two types together with two different rates of payment is reasonable According to Article 34(3) of VLC 2012, it can be understood that like fulltimers, part-timers are always entitled to overtime rate of pay at least 150% under their salary as long as they work beyond their normal working time However, as analyzed above, it is unequalto full-timers and the employer Learning from the experiences of States, Article 97(1) of VLC 2012 should supplement a extra condition for part-timers’ right to receive the payment of overtime rate at 150%, which is that they have to work more than the normal working time of full-timers It is also one of the ways to restrict overtime of fulltimers, which helps strengthen health of workers and increase labor productivity Moreover, it can result in reducing the financial burden of their employer, expanding production and promoting the development of part-time works 2.5 Social insurance -47- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES Social insurance is animportant part of social security system Ithas a special meaning for laborers because it helps offset a part or whole of income of laborers in case they encounter the risks or other difficult circumstances in their life.79According to Article of Vietnamese Law on Social Insurance, Social Insurance (SI) consists of compulsory SI, voluntary SI andUnemployment Insurance (UI) In the research scope of this content, the writer focuses on compulsory SI and UI, which directly affect laborers 2.5.1 Compulsory social insurance In principle, the employer who uses 10 workers or more and the employees working under the labor contract which is unfixed-term or fixed-term with the period of3 months or more force to join compulsory SI includingoccupational disease and accidents, maternity, sickness,pension and survival benefits.80 Like this, according to these regulations, part-time employees who satisfy the above condition are also taken part in compulsory SI.In other words, the law forces the employer to contribute the amount of money to the fund of compulsory social insurance for such part-timers.That VLC 2012 records the rights of part-timers to receive the above benefits equally to the comparable full-timers is suitable to international law and keeps pace with the development of the world However, the application of those to part-timers in practiceneeds to be considered Like other benefits, it is unreasonable to regulate the same conditions for both part-timers and full-timers to gain the interests of compulsory SI Because the working time of such groups of workers is different The salary of parttimers is much lower than that of full-timers in the same work.In some cases, even the earning of part-timers is fewer than the common minimum salary Meanwhile, one of the rules of SI is that compulsory SI premiumbases on the salary of workers which is not lower than the common minimum salary This influences hugely the ability of joining SI of part-timers This is also shown clearly in United Kingdom Particularly, this State provides pension scheme for both full- and part-time workers on the same basis, excluding the justified objective grounds for another treatment, to ensure that there is no indirect sex 79 Ho Chi Minh City University of Law, Labor Law Curiculum, Ho Chi Minh City National University Publisher, page 357 80 Article of Vietnamese Law on Social Insurance -48- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES discrimination However, the rate of part-timers joining this scheme in practice is lower than that of full-timers Particularly, the former accounts for just 21% of male part-timers and 44% of female part-timers Meanwhile, the latter is 78% of male full-timers and 72% female full-timers There are two reasons to explain this issue First, many part-timers cannot take part in this benefit due to the fact that their wage is too low (below LEL) to contribute social security system Second, if they satisfy the conditions to join this scheme, they are not reluctant to pay the contributions which may be because its benefits have not been enough to attract them Clearly, in case they are members of pension scheme, they will receive fewer profits than full-timers on the principle of “pro-rata” owing to the fact that they contribute less Besides that, their wage is low so that they not want to spend too much money on really unnecessary costs with their current life Therefore, although managers of pension fund try to encourage the participation of such employees, the number of members who are part-timers are fewer than full-timers.81 Accordingly, Vietnamese law should supplement a condition regarding the minimum number hours per month of part-timers to ensure that the earning of them is no lower than the common minimum salary.However, the establishment of this condition has to guarantee the equality in the attainment of benefits between part-and full-timers.82For example, a part-timer must have worked the minimum of 25 hours per week for the period of at least twelve months before taking maternity leave so as to qualify maternity benefits.83 2.5.2 Unemployment Insurance UI is a regime helping the unemployed stabilize their life when they lose the job through the payment ofseverance allowance.84According to Article of Vietnamese Law on Social Insurance, the employee who is Vietnam citizen working under the labor contract which is unfixed-term or fixed with the term of full 12 months to 36 months This regulation is applied to both full- and parttimers However, this is difficult to implement in practice 81 Hugh Collins, K.D Ewing and Alleen McColgan, Labor Law – Text and Materials, page 345 Article of Convention 175 83 http://voices.yahoo.com/maternity-leave-benefits-if-re-part-622657.html?cat=25 84 Ho Chi Minh City University of Law, Labor Law Curiculum, Ho Chi Minh City National University Publisher, page 392 82 -49- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES In United States, it took a long time for part-time workers to gain partial UI Eligibility Before 2001when UI rules excluded such employees from UI programs because they are not “available for and seek full-time worksin order to get UI benefits” However, after part-time works became an important part of the economy and were really necessary for certain employers and employees, UI Eligibility has started expanding for part-timers with different conditions issued in each state of America.85Practically, such part-timers are only paid a part of UI benefits because their earning is quite low It is realized that the right of part-timer to receive UI lacks the reality the current economic and social conditions of Vietnam In particular, Vietnam is a developing country and has been in the period of economic crisis Although the minimum salary has risen regularly, it is not considerable comparing to the living costs which always increase together with the former, even more sharply Therefore, their earnings are too low to pay numerous insurances at the same time Practically, it is easier to seek a part-time work than a full-time job Moreover, part-timers usually remain their work in short term Meanwhile, it needs a long and consecutive period of working time to enjoy UI benefits In summary, in current the economic situation of Vietnam, it may be more reasonable if a part-timer who satisfies the certain conditions for the enjoyment of UI benefits is paid a severance allowance proportionally to his comparator instead of participating UI This allows not only reducing the financial burden of the employer but also increasing the earnings of part-timers After all, basing on the theories of part-time employees, the writer has researched deeply in legal regime of part-timers in Vietnamese Law comparing to the laws of some countries such as United Kingdom, United States, EU, Malaysia, and Singapore Beside the same rights of part-timers and full-timers, it is more important to consider and analyze the different points in rights and benefits between two groups of workers From there, the writer has identified the insufficiencies in regulations of VLC 2012 and issued the reasonable solutions to supplement and revise those on the basis of the characteristics of part-timers and thetrend inthe development such workforce in Vietnam.All above recommendations are issued for the purpose of establishing a legal regime of part-time employees which guarantees the constitutionality and the legality, suits 85 National Employment Law Project (NELP), Part Time Workers and Unemployment Insurance, 2004 -50- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES to the practice in Vietnam and harmonizes with international treaties and foreign laws -51- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES CONCLUSIONS Part-time workforce has grown for two past decades in developed countries It has continued to spread to developing countries in recent years, particularly, Vietnam Especially, part-time works are being expanded more rapidly in current economic condition This derives not only from the enterprise’s problem of conducting its business strategy but also from the desire of the employees who have to balance their job and family obligations, training, schooling or health situation In Vietnam, part-time works have appeared since several years ago but the lawmakers only started concerning this social relationship in 2012 through Vietnamese Labor Code 2012 which has forced formally since May 1st, 2013 Therefore, although this is a “hot issue” now, it has not been researched deeply in this country yet, which is the main reason for the writer to select the subject “Regulations in Labor Law for part-time employees” In the scope of this thesis, after learning about the characteristics of part-timers, analyzing and evaluating legislation regarding such workers of Vietnam as well as some countries, the writer has some conclusions below: First, the precise definition of the term “part-time employee” as well as the determination of a comparable full-timer is not easy, which depends much on the collective agreement of each enterprise and the nature of every work Second, part-time works develop in the disadvantage economic environmentand havethe numerous different characteristics to full-time works.Those require the law to establish a separate legal regime for part-time employees, especially in the current economic situation of Vietnam Third, the interests of part-time employees are always considered in comparison with those of the comparable full-time employees on the principle of “non-discrimination” for the purpose of ensuring the equality in society Fourth, the current legal regime of part-time employees in Vietnamese Lawcontains many insufficiencies and needs to be codified Especially,VLC 2012 should specify the reasonable thresholds of working time as conditions for the enjoyment of benefits and regulatethe principle of “pro-rata” as legal basis to estimating such benefits for part-time employees Moreover, Vietnamese Labor Law needs to supplement separate regulations relating part-time labor contract, overtime pay, unemployment insuranceand salary for part-time employees In summary, after considering all of aspects, the above settlements are issued for the main purpose of protecting part-timers and balancing the benefits -52- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES between the three groups of objects including employers, part-timers and fulltimers Currently, those can be reasonable but the changes of economic and social environment in future may affect the structure of labor market in general and part-time workforce in particular, which requires the changes of law respectively Moreover, it is necessary to continue expanding these contents in researches afterwards regarding the establishment the specificthe thresholds for the purpose of ensuring the equality in the enjoyment of benefits between parttime and full-time employees Importantly, these solutions are awaited to become the positive factors contributing on the development of part-time workforce in Vietnam -53- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES LIST OF REFERENCES Books David Grubb and William Wells, Employment regulation and patterns of work in EC countries, OECD Economic Studies No.21, Winter 1993 Don Jones, The Evolution ofEmployment policy in the European Union, HGerman, 2006 H Luke Shaefer, Part-time workers: some key differences between primary and secondary earners, Monthly Labor Review, 2009 Hielke Buddelmeyer, Gilles Mourre and Melanie Ward, The Determinants of Part-Time Work in EU Countries: Empirical Investigations with MacroPanel Data, DP No 1361, Forschungsinstitut zur Zukunft der Arbeit Institute for the Study of Labor, 2004 Ho Chi Minh City University of Law, Labor Law Curiculum, Ho Chi Minh City National University Publisher Hugh Collins, K.D Ewing and Alleen McColgan, Labor Law – Text and Materials Patricia Maxwell, Discrimination against part-time workers, Blackstone Press Ltd, 1995 Simon Deakin and Gillian S Morris, Labour Law Thomas J Nardone, Part-time workers: who are they?, Monthly Labor Review, 1986 10 Part Time Employment: The Australian Experience – Characteristics of Part Time Jobs 11 Non-Discrimination in International Law – A Handbook for Practitioners, Interights, Edition 2011 12 International Labor Conference 80th Session 1993, Part-time Work: Fifth Item on the Agenda Volume 2, International Labor Office, 1993 13 National Employment Law Project (NELP), Part Time Workers andUnemployment Insurance, 2004 14 Department of Jobs, Enterprise and Innovation, Protection of Employees (Part-Time Work) Act 2001 Explanatory Booklet for Employers and Employees -54- REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES 15 A Special Report Characteristics of the Part-Time Work Force – Analysis of the March 1993 Current Population Survey, SR – 22, EBRI Issue Brief, May 1994 16 Report Labor Force in Singapore 2012 - Websites http://voices.yahoo.com/maternity-leave-benefits-if-re-part622657.html?cat=25 http://www.veitchpenny.com/employment-updates/employmentupdate/gibson-v-scottish-ambulance-serviceemployment-appeal-tribunal-16december-2004/menu-id-147.html http://www.opm.gov/policy-data-oversight/hiring-authorities/part-time-andjob-sharing/#url=Benefits http://www.nidirect.gov.uk/part-time-work http://mith.umd.edu//WomensStudies/GenderIssues/WomenInWorkforce/Con tingentLabor/Implications/appelbam http://www.nidirect.gov.uk/part-time-work http://www.dol.govt.nz/er/services/law/case/themes/2011-05-casualemployment-decisions.asp -55- ... regulations for part- time employees in Vietnam which will be indicated in Chapter -29- REGULATIONS IN LABOR LAW FOR PART- TIME EMPLOYEES Chapter LEGAL REGIME IN VIETNAMESE LABOR LAW FOR PART- TIME. .. http://www.nidirect.gov.uk /part- time- work -28- REGULATIONS IN LABOR LAW FOR PART- TIME EMPLOYEES Especially, as a rule of lawmaking, any law follows specific principles “Nondiscrimination” is a dominant principle of Labor. .. had never been indicated in Vietnamese Labor Law for a long time until they are regulated formally in VLC 2012 as -7- REGULATIONS IN LABOR LAW FOR PART- TIME EMPLOYEES ? ?employees working shorter