Sunday, December 7, 2014

Can a state official sign a labor contract with the private entity in Vietnam?

In order to answer this question, it is important to clarify for what purpose and which position he/she signs labor contract with the private entities. Moreover, it also needs to check whether that state official is a civil servant or a public employee since the law of Vietnam classifies those 02 terms:
Under the Law on Cadres and Civil Servant No. 22/2008/QH12: Civil servants are Vietnamese citizens who are recruited and appointed to ranks, posts or titles in agencies of the Communist Party of Vietnam, the State, socio-political organizations at the central, provincial and district levels; in People’s Army agencies and units, other than officers, professional military personnel and defense workers; in People’s Police offices and units other than officers and professional non-commissioned officers, and in the leading and managerial apparatuses of public non-business units of the Communist Party of Vietnam, the State and socio-political organizations (below collectively referred to as public non-business units), included in the payrolls and salaried from the state budget; for civil servants in the leading and managerial apparatuses of public non-business units, they are salaried from the salary funds of these units according to law.
Under the Law on Public Employees No 58/2010/QH12: Public employees are Vietnamese citizens recruited according to working positions, working in public non-business units under working contracts and salaried from salary funds of public non-business units in accordance with law.
Generally speaking, the laws of Vietnam do not prohibit the state official from having legal income by working out of working hours, provided that he/she complies some requirement and does not perform the prohibited acts. There is no provision regulating that the state official cannot be employed by the private entities.
The Law on Public Employees No 58/2010/QH12 allows the public employee to carry out professional activities after working hours stated in labor contracts; to sign with agencies, organizations and units other than their employing public non-business units contracts which are not banned by law, provided that they accomplish their assigned tasks and obtain consent of the heads of their public non-business units.
According to the Law on Anti-corruption No. 55/2005/QH11, the public servant, public employee, cadre may not, including but not limited:
i.                    participate in the management and administration of private enterprises, limited liability companies, joint-stock companies, partnership companies, cooperatives, private hospitals, private school and/or private scientific research establishments; or
ii.                  act as consultants for other domestic or foreign enterprises, organisations or individuals on affairs related to state secrets, work secrets, or affairs that fall under their respective settling jurisdiction or of which they have joined the settlement
Therefore, we must check after being employed, that state official will participate in the management and administration or not? And the business lines of that employing private entity? Whether its’ business lines are under the management scope of that state official or not?
After having clarified the above issues, we may determine whether a state official sign a labor contract with the private entity or not.