EMPLOYEES' RIGHTS WHEN WORKING OTHER WORK WITH THE LABOR CONTRACT
Question: Sir, I am working as an accountant for a company. Its warehouse keeper suddenly quit and the director asked me to take over her role for a while until a replacement is found. Honestly, I don't really like it because the storekeeper's salary is lower than mine, and I don't know how long I have to work instead. But nowadays, finding a job is not easy, so I have no intention of quitting even though I was assigned a job that is not in accordance with the contract. Please advise me whether my benefit is guaranteed or not in this case?
DTD Consulting: Thank you for your trust and sending your questions to DTD. With the information you have provided, DTD advises as follows:
1. Legal basis
Labor Code 2019
Decree No. 38/2022/ND-CP prescribing statutory minimum wages paid to employees working under labor contracts.
2. Does the employer have the right to transfer the employee to a job other than the labor contract?
According to the provisions of Clause 1, Article 29 of the Labor Code 2019:
“In the event of sudden difficulties such as natural disasters, fire, major epidemics, implementation of preventive and remedial measures for occupational accidents or diseases, electricity and water supply failures, or for reasons of business and production demands, the employer may temporarily assign an employee to perform a work which is not prescribed in the labor contract for an accumulated period of up to 60 working days within 01 year, unless otherwise agreed in writing by the employee.
The employer shall specify in the internal labor regulations the cases in which the employer may temporarily reassign employees against the labor contracts.”
Thus, in your case, the employer could temporarily assign an employee (specifically, you in this case) to take over a work which is not prescribed in the labor contract for an accumulated period of up to 60 working days within 01 year. However, if you are relegated to storekeeper for more than 60 cumulative working days in a year, your written consent must be obtained.
In addition, the employer shall inform you at least 03 working days in advance, specify the reassignment period and only assign works that are suitable for the employee’s health and gender.
3. Employee's rights when doing work different from the labor contract
According to the provisions of Clause 3,4, Article 29 of the Labor Code 2019:
“3. The reassigned employee will receive the salary of the new work. If the new salary is lower than the previous salary, the previous salary shall be maintained for 30 working days. The new salary shall be at least 85% of the previous salary and not smaller than the minimum wages.
4. In case the employee refuses to be reassigned for more than 60 working days in 01 year and has to suspend the employment, he/she shall receive the suspension pay from the employer in accordance with Article 99 of this Labor Code.”
Thus, the salary of the warehouse keeper job (new job) is lower than that of the accounting department (old job), you will be able to keep the salary of the old job for a period of 30 working days. After this time, you will receive a salary according to the new job, but it must be at least 85% of the salary of the old job and must not be lower than the minimum salary specified in Decree no. 38/2022/ND-CP.
In addition, if you refuse to be reassigned for more than 60 working days within 01 year and have to suspend the employment, the employer must pay the suspension payment as prescribed in Article 99 of the Labor Code.
In addition to the employee's rights when doing another job than the labor contract as prescribed by law, you can negotiate and propose to the employer about the level of benefits commensurate with the new job.
To facilitate further consultation, please contact DTD's legal team directly. Thank you!
