On January 1, 2021, the Labor Code 2019 with various amendments and innovations aimed at minimizing the burden of administrative procedures for employers as well as better guaranteeing the rights and benefits of employees, entered into force. Correlatively, the provisions relating to apprenticeship, practical training and vocational training agreements are more precise and detailed than in the former Labor Code. However, some contentious issues regarding training agreements and liability to reimburse training costs remain unresolved. Thus, in the context of this article, the author will address issues relating to training agreements as well as the obligation to reimburse training costs that companies should take into consideration when concluding this type of agreement.
1. General provisions relating to Professional Training Agreements
A training agreement is a contract of rights and obligations between an employer and an employee in the event that the employer offers training in order to improve the qualifications and skills of the employee currently working for him (“employee”), or between an employer and an apprentice or trainee in the case where the employer recruits trainees to work for them.
Training activities must be carried out by a company with its budget or sponsorships with the aim of training its own workforce, without generating profits from these training activities.
- Case 1: Signature of professional training agreements with employees
If a company provides training to improve the qualifications, professional skills or retraining of its employees, the company and the employees must sign a professional training agreement as prescribed in the Labor Code 2019 with the following main content:
- The profession of trainer;
- The place and duration of the training and the wages to be paid during the training period;
- Time spent on compulsory labor after being trained;
- Training fees and responsibility for reimbursing training fees;
- The responsibilities of the employer;
- The responsibilities of the employee.
- Case 2: Signing of vocational training agreements with apprentices and trainees
Companies can recruit workers for on-the-job training (also calledlearning“) or recruit the trainees to guide them in vocational training, practical training according to the job positions in the workplace for a period of time not exceeding 03 months (also called “practical training”), in order to train their human resources.
Apprentices and trainees recruited by a company must be fourteen (14) years of age or older and have a sufficient state of health for the requirements of the apprenticeship or practical training. For companies that recruit apprentices, trainees for trades appearing on the list of heavy, dangerous, toxic or dangerous trades or extremely heavy, toxic or dangerous trades, the apprentices, trainees must be at least eighteen years old ( 18) years of age, except in the arts, physical preparation and sports sectors.
When a company recruits people for apprenticeship or practical training, it is not required to register vocational training activities, must not collect tuition fees, must remunerate apprentices, trainees if the apprentices, trainees work directly for the company during the period of apprenticeship, practical training and must sign a training agreement as prescribed by the law on vocational training with the following content:
- The name of the trade being trained or the professional skills acquired;
- The place of training;
- The end time of the course;
- Tuition fees and method of payment of tuition fees;
- The responsibility of each party to indemnify losses and damages in the event of breach of the agreement;
- The liquidation of the agreement;
- The learner’s commitment to work for the company;
- The company’s commitment to employ the learner after completing the course;
- Agreements on time and rate of pay for learners who directly participate in or participate in the manufacture of products for the company during the training period.
- Other agreements were not contrary to law and social morality.
After completing the apprenticeship or practical training, the company must conclude an employment contract with the learner if the latter fulfills the conditions required by the company and prescribed by law.
2. Responsibility to reimburse training costs
With regard to the reimbursement of training costs, in accordance with the provisions of paragraph 2 of article 61 of the Law on Vocational Education, persons who complete training courses with scholarships granted by or supported by an employer but do not work for this employer for a period such as it is committed to in the internship agreement, must reimburse scholarships and training costs.
Meanwhile, according to the Labor Code 2019, the reimbursement of training costs will be made in accordance with the agreements between the company and the employees specified in the professional training agreements or when the employee unilaterally terminates the employment contract illegally.
Thus, according to the law on vocational education, apprentices, trainees are responsible for reimbursing the training costs when they violate the term of work undertaken within the framework of the training agreement, whether the termination of the contract has been legal or not. However, the provisions on the right to reimbursement in the Labor Code 2019 pose some problems. In particular, currently the Labor Code 2019 only regulates the reimbursement of training costs by employees in the event of unilateral and illegal termination of the employment contract, while there is no provision on the reimbursement of training costs. when they unilaterally and legally terminate the employment contract. Therefore, there are many cases in which, although the company and the employee entered into an employment contract, there were no explicit provisions on the right to reimbursement, and the employee terminated the contract working legally and exploited this loophole to avoid liability to reimburse training costs. , a source of frustration for many companies.
In addition, the rates of training costs that employees must reimburse to their employers are also a headache for companies. Currently, according to the Labor Code 2019, training fees include fees with valid source documents for fees paid to trainers, training materials, school classes, machines, equipment and practical materials, other fees paid to support the trainee, salaries, social insurance, health insurance and unemployment insurance paid to the trainee during the training period. In the event that an employee is sent abroad for training, the training costs also include travel and living expenses for the employee’s training period. In the event of a dispute over reimbursement of training costs, the courts will determine the rates of training costs to be reimbursed by the employee to the employer based on the above provision regarding training costs and will require the employer to provide legitimate receipts and supporting documents as proof. . However, many companies cannot provide enough valid supporting documents as proof of the expenses they covered to train employees, leading to them not receiving the full training costs they paid for employees. .
Therefore, when drafting and signing training agreements with employees, apprentices or trainees, companies must stipulate the working time involved and the right to reimbursement with a detailed table listing all the training costs that employees , apprentices, trainees are expected to reimburse in case of violation. of the period of work involved. At the same time, companies must collect and archive sufficient supporting documents of the source of the expenses they have borne to train employees so that they can be used as evidence in the event of a dispute.