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REGULATIONS IN LABOR LAW FOR PART TIME EMPLOYEES

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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 ........................................................................................................... 3
INTRODUCTION
1. The subject’s imperativeness ..................................................................................... 4
2. Research object .......................................................................................................... 5
3. Research scope ........................................................................................................... 6
4. Research objective...................................................................................................... 6
5. Research situation ...................................................................................................... 7
6. Research methods ....................................................................................................... 8
7. The thesis’s structure .................................................................................................. 8
Chapter 1
GENERAL THEORIES OF PART-TIME EMPLOYEES
1.1 Definition of part-time employees ............................................................................ 9
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 2
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
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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

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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

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INTRODUCTION
1.

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 do 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 do 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

1

International Labor Conference 80th Session 1993, Part-time Work: Fifth Item on the Agenda Volume 2,
International Labor Office, 1993.


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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.
2.

Research object

The thesis concentrates on researching the characteristics of regular parttime employees (part-time employees for short) and analyzing, evaluating rights
2

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.

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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.
3.

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.
4.

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
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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.
5.

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
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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.
6.

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.
7.

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

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REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES

Chapter 1
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

3

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 do 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).


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States agreed with an obvious definition containing the level of working time for
part-time employees.
Meanwhile, the majority of countries objected to the above viewpoints and
argued that they needed a flexible definition to be consistent with “the diversity
not only of situations in various countries or enterprises but also of national
regulations and their objectives”.4Moreover, part-time job has different and
changeable working time. Practice in EU member States, especially United
Kingdom5has indicated that a strict regulation can affect the growth of part-time
employment because it restricts the latitude in arranging the work schedule of
parties, which is an important factor influencing their decision in joining this
employment relationship. This can be more serious if it causes the decline of
demand of part-time jobs and the rise of unemployment.
Thus, the definition of the term “part-time employee” should only indicate
his normal hours in comparison with those of a comparable full-time employee
without determining a specific number of working hours per day or working
days per week for the such workers, which is more appropriate to be identified
by collective agreement or by practice rather than by competent authorities.
As a result, ILO issued a definition of this term in Convention 175: “The
term [part-time worker] means an employed person whose normal hours of work
are less than those of comparable full-time workers”. There are two following
concepts which need to be explained in this definition:
The first is the term “normal hours of work”. According to Convention
175, ILO does not define and give a concrete number of working time for fulltime employees as well as for part-time employees. It only regulates a basis for
calculation, which is “the regular weekly working time or the average time over

a period of employment” This is a reasonable regulation because it has been
popularly applied in national practice and fits with the temporality of part-time
jobs. Moreover, it is easier to compare with full-time employees.
Another term which needs to be considered is “comparable full-time
employee”. This indicates a full-time employee who satisfies conditions below:
(i) has the same type of employment relationship;
(ii) is engaged in the same or a similar type of work or occupation; and

4

International Labor Conference 80th Session 1993, Part-time Work: Fifth Item on the Agenda Volume 2,
International Labor Office, 1993, page 19.
5
Patricia Maxwell, Discrimination against part-time workers, Blackstone Press Ltd, 1995.

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(iii) is employed in the same establishment or, when there is no
comparable full-time worker in that establishment, in the same
enterprise or, when there is no comparable full-time worker in that
enterprise, in the same branch of activity, as the part-time worker
concerned6;
Basing on the above conditions member States continue to expand or
restrict them in their own manner to be consistent with national practice.
Besides, when determining a comparator, national court need base on not only
domestic regulations but also the collective agreements or the contracts of
employment. Hence, it is more accurate when evaluating the legislation of each

State relating to the determination of a comparator.
Although EU’s regulations of the term “part-time employee” are quite
similar with those of ILO, they are more specific and clearer for the application.
Particularly, EU restricts the period of time to calculate normal hours, which is
“up to one year” and specifically determines a “comparable full-time employee”,
who works in the same establishment, has the same type of employment contract
or relationship and is engaged in the same, or a similar work/ occupation.
Furthermore, other features such as seniority, qualification, skill… also need to
be considered for the determination7.
“The same establishment” means that a part-timer and his comparator have
to be hired by an employer. “The type of employment contract or relationship”
will be specified in the relevant law but it shall not consist of relations regarding
self-employed and independent contractor. It is not clear to determine that it
includes whether or not contract of service, contract of apprenticeship, fixedterm contract. However, the same “type of contract” can be also specified
certainly in two following situations: firstly, when an employee has moved from
full-time to part-time work. Particularly, he can compare terms of his current
part-time contract of employment and those of his past full-time one. Secondly,
when he returns the company in a part-time position after his leave which lasted
less than a year. In this case, he could compare himself with the comparator who
has being worked his full-time job since he was absent.8For, “the same or a
similar type of work or occupation”, it is not easy to compare works or
occupations each other but part-timers can consider aspects such as working
6

Convention 175 ILO, Article 1.
Framework Agreement on Part-Time Work, Clause 3.
8
Simon Deakin and Gillian S Morris, Labour Law, page 202.
7


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conditions, performance process, values gained from the works. Moreover, the
insignificant differences which do not change the nature of the jobs can be also
accepted. It is shown that when there is no comparable full-time employee in the
same establishment, which will depend on the applicable collective agreement. If
the latter does not exist, the comparator will be defined according to national
law, collective agreements or practice.9The regulation is expanded much more
than that of ILO because it permits the comparison with another establishment to
seek a reasonable employee who can be compared with a part-time employee
concerned. In practice this has not yet, however, ensured a proportionate ratio
between the number of comparators and the amount of part-time employees.
Presently, it has been calculated that the rate of the former and the latter is one –
six. It means that there are about five millions part-time employees who cannot
be compared with full-time employees concerned.10
Unlike EU, Singapore determines clearly the conditions of a “similar fulltime employee” when there has no one satisfying section 2(1) of Employment
Act (Chapter 91, Section 66B) – Employment (Part-Time Employment)
Regulations. In particular, a similar full-time employee is who:
(a) is required to work 8 hours a day and 44 hours a week;
(b)

is entitled to paid annual leave, based on a period of continuous

service equal to that of the part-time employee, in accordance with
section 43 (1) of the Act; and
(c) is entitled to pay sick leave in accordance with section 89(1) or (2) of
the Act.

Instead of giving the autonomy for employees, Ministry of Manpower has
assigned concrete standards of a similar full-timer, which may create an
indiscrimination for different part-timers. However, this helps fill legal gaps
relating to the lack of comparators, which is very important due to the fact that
the statutory rights of part-time employees rely on the existence of a comparable
full-timers.
The differences in regulations of EU and Singapore are explained by the
nature of labor market of each State. The rate of part-time employees in
Singapore is very low (at 9.6 percent in 2012)11 so it has not yet been necessary
to expand this regulation. Opposite, part-time workforce has developed rapidly
9

Framework Agreement on Part-Time Work, Clause 3.
Simon Deakin and Gillian S Morris, Labour Law, page 203.
11
Report Labor Force in Singapore 2012, page 22.
10

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in EU, which requires the extension of legislation to ensure the respective
number of similar full-timers for the comparison. Therefore, this regulation is an
appropriate solution for the current labor market of EU which has a great supply
of such works.
VLC 2012 has used another concept which is “employees working shorter
hours”. It means that they are who “work less than the normal working hours by
day or by week specified in the law provisions on labor, enterprise collective

labor agreement, sector collective labor agreement or the employer’s
provisions”. This term clearly shows the nature of such employees whose
working time is less than that of full-time employees. It seems, however, to be
rather wide because it covers both part-time employees and other objects
including temporary employees and seasonal employees. Meanwhile, such types
of workers are governed by other regulations of VLC 2012 relating to causal
work and house work.
The Code 2012 only compares the working time of part-time employees
with normal hours of work, which is lame and incorrect in certain situations.
Particularly, there are various kinds of work in an enterprise, especially service
companies, which have different working schemes including start and finish
hours, rest breaks, weekly day-off, Hence, if we base on the regulation of normal
working hours regulated in Article 104(1) of the Code 2012 to determine a parttimer, it is unreasonable in practice because it only specifies the maximum
threshold of working full-time. This means that a person working less than 8
hours per day or 48 hours per week could be a full-timer or a part-timer.
Oppositely, if we consider internal rules of the company, it cannot identify a
certain threshold because there are numerous different normal working time for
each group of works. Therefore, the Code needs to determine a full-timer whose
normal working hours to ensure the correct comparison. Moreover, it also helps
to specify the rights of a part-timer more easily.
Furthermore, there is a notice of part-time agency workers who have a
labor contract with an “employment agency” known as an outsourcing service
provider and work for an “employment business” providing part-time jobs for
them. A problem is issued that they should be compared whether to a similar
full-time employee who work in the same employment business or to a
comparable full-time agency worker who are employed in the same employment
agency. Under the regulations of United Kingdom, “a part-time agency worker
can only compare himself/herself to a comparable employee who is also an
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agency worker. Likewise a part-time employee, who is not an agency worker,
cannot compare himself to an agency worker.”12In this case, VLC 2012
separates salary from other benefits such as holiday pay, annual leave pay, work
suspension pay, severance and redundancy allowances, and social insurances for
the comparison. Particularly, a part-time agency worker is ensured an equal
salary to a comparable full-timer in the same employment business.13 It is
impliedthat he will be compared to a similar full-time agency worker of the same
outsourcing service provider for the determination of other benefits.
In the definition of the term “employees working shorter hours”, it is
unreasonable to compare the working time of part-timers consisting of normal
working hours and overtime to the normal working hours of full-timers. Because
it may cause an incorrect understanding relating to the determination of a parttimer. Moreover, if the overtime of part-timers is deemed as the normal working
time of full-timers, it will create an inequality to part-time employees because
they shall not be received overtime pay, which is inconsistent with Article 34(3)
VLC 2012 implying that part-timers are entitled to an extra amount as full-timers
for their overtime. Therefore, the definition of the term “employees working
shorter hours” needs to be codified, which may be “employees working shorter
hours are employees whose normal working hours by day or by week are less
than those of comparable full-time employees specified in the provisions on
labor law, enterprise collective labor agreement, sector collective labor
agreement or the employer’s provisions”. In the new definition, the term
“comparable full-time employees” should be also explained clearly. The
regulation of this concept in Convention 175 of ILO may be quite appropriate for
Vietnamese Law.
In International Labor Conference in 1993, some States suggested that the
definition of the term “part-time workers” should help distinguish part-time
employees from casual employees or temporary employees. Practically, member

States used different methods to restrict the governing scope of the part-time
employment law. For instance, Japan claimed that the definition of the term
“part-time workers” should specify a threshold below of normal working hours

12

Department of Jobs, Enterprise and Innovation, Protection of Employees (Part-Time Work) Act 2001
Explanatory Booklet for Employers and Employees, page 9.
13
Article 56 (5) of VLC 2012

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to exclude other categories of workers who do not have the correspondent
characteristics of a part-time worker.14
Meanwhile, Malaysia directly regulates a separate clause of nonapplication in Employment Act 1995 – Employment (Part-Time Employees)
Regulations 2010. Particularly, it is shown that: “These Regulations shall not
apply to part-time employee –
(a) who is engaged occasionally or on an irregular basis, as and when
needed, and whose working in one week does not exceed thirty per
centum of the normal hours of work of a full time employee in one week
(who is also known as a casual employee); and
(b) who performs work for an employer within the employee’s residence,
irrespective of occupation (who is also known as a home working
employee)”.
In practice, the definition of these terms is different from country to
country. According to the above article, casual employee is a kind of part-time

employees. This is also indicated in Protection of Employees (Part-Time Work)
Act 2001: “A casual employee is a part-time employee who works on a casual
basis”.
Oppositely, the term is not familiar in America and mainly used in the
universities here. It is popular to see the term “temporary worker” in this
country. Commonly, a casual employee can be a person who is employed in a
specific period of time if needed and there is no an expectation of continuing
employment.15It is generally agreed that the distinction between part-time
employees and casual employees is necessary to establish the reasonable rights
and obligations for each group of workers. Because part-time basis and casual
basis are quite different.
To determine whether a casual employee, it depends much on the
assessment of national Courts on case-by-case. Because the term is not defined
clearly, but Courts may specify such employees basing on the employment
agreements together with the certain criteria such as the period of time, how to
pay wage, the number of working hours, the expectation of continuity of
employment, etc.

14

International Labor Conference 80th Session 1993, Part-time Work: Fifth Item on the Agenda Volume 2,
International Labor Office, 1993, page 17.
15
http://www.dol.govt.nz/er/services/law/case/themes/2011-05-casual-employment-decisions.asp

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In comparison with a part-time employee, a casual employee works in a
short-term due to many reasons such as the completion of a specific project or
the fill of irregular position. His working time is often less than that of a parttime employee, it varies in each week and there is no guarantee of work from a
week to the next one. Furthermore, he is only paid basing on the number of
actual working hours without overtime pay.16In other words, he shall not be
received benefits such as annual leave, personal leave, and public holidays.
Instead of that, he will gain a higher rate of pay than permanent employees 17but
it is difficult for him to get a leave during period of work.
Oppositely, part-time employment is deemed to be an ongoing one. A parttime employee will work according to roster system which is published in
advance and there is a mutual expectation between the employee and his
employer of remaining the employment relationship. Part-time employees are
usually paid weekly salary and overtime pay in proportion with the number of
working hours. Besides that, they are also entitled to the same things as full-time
employees on principle of “pro rata” e.g. holidays, sick leave, annual leave, the
notice of termination of employment, rest day, etc.
VLC 2012 does not define the term “casual employee” but it is implied
through the provisions regarding casual labor contract. According to Article
22(1) of the Code 2012, casual employees are persons who work under casual
labor contracts with terms less 12 months. Nevertheless, they can undertake
regular works with longer period because of the reasons as “the temporary
replacement of employees doing military service, taking maternity leave,
suffering from sickness or occupational accidents, or taking other temporary
leave”. Hence, it can be understood that casual employees will consist of parttime casual employees and full-time casual employees, which depends on their
working time. This is also recognized in Australia.18In other words, the scope of
casual employees and that of part-timers partly intersected. It is explained that
VLC 2012 does not restrict threshold of daily or weekly working time for casual
employees, so that casual employees are who may work part- or full-time in a
specific term. If so, the working time of casual employees may be more than that
of part-timers when they work full-time. However, whereas part-timers can be
offered the jobs with the term of 12 months or more, casual employees can only

16

General Retail Industry Award 2010, Clause 29 does not indicate casual employee for the entitlement to
overtime pay on reasonable rate.
17
General Retail Industry Award 2010, Clause 13.
18
Part Time Employment: The Australian Experience – Characteristics of Part Time Jobs, page 158.

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REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES

work under contracts in the period of less than 12 months (excluding situations
specified by the Code). Therefore, part-timers will be paid severance allowance,
redundancy allowance and other benefits as full-timers.19By contrast, a casual
employee will be only paid some of benefits restrictively in comparison with
part-time employees. Particularly, Vietnamese casual employees are not received
severance allowance20 and redundancy allowance owing to such period of
work.21 However, they are paid annual leave rate corresponding to working
hours22and are noticed before least 3 working days for the termination of
employment.23 Moreover, they are entitled to be gained overtime payment, rest
breaks, public holidays and weekly day-off if they are like full-time employees.
For all comparisons, it is important to determine that an individual is
whether a part-time employee or not in order to find out the characteristics of
such employees as well as the real nature of part-time employment relationship,
which are the bases to establish the rights and obligations for this group of
people appropriately.
1.2 Characteristics of part-time employees


There have been numerous surveys relating to part-time employees since
the late 20th century where part-time works became a popular phenomenon and
part-timers are no longer “atypical” employees. At that time, the majority of
enterprises tended to develop this type of employment. For instance, the amount
of part-timers in America increased from 15.5 percent to 18.8 percent of the total
work force between 1969 and 1993.24In 1996, part-time workers accounted for
16 percent within fifteen-member EU, particularly, the percentage of Netherland
was the highest (38 percent) and that of Greece was the lowest (5 percent).25
Such surveys were conducted for the purposes as estimating the number of
part-time employees, analyzing characteristics of them or reviewing the State’s
policies in correlation between theories and practices regarding such workers,
etc. According to Thomas J. Nardone in his article “Part-time workers: who are
19

Article 34 (3) of VLC 2012
Article 48 (1) of VLC 2012
21
Article 49 (1) of VLC 2012
22
Article 114 (2) of VLC 2012
23
Article 38 (2) (c) of VLC 2012
24
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, Table 1.
25
Don Jones, The Evolution ofEmployment policy in the European Union, H-German, 2006.
20


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REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES

they?”, it is difficult to answer the question “How many part-time employees are
there?” in a certain period of time due to the tenuous distance between parttimers and full-timers. For example, if we only base on the normal working
hours which are identified that part-timers usually working less than 35 hours
per week are compared to full-timers having 40 hours per week or more to carry
out their tasks, we will classify the employees who temporarily work “part-time
for economic reasons” as whether part-timers or full-timers. The economic
reasons here may be slack work or business conditions, economic crisis, material
shortages or repairs to plant and equipment26and other reasons which influence
the distribution of labor market. Particularly, these persons could only find parttime jobs despite the fact that they want full-time works or they are full-timers
but they must work less than 35 hours per week due to the low demand and they
expect to be returned to work full-time. It is generally agreed that the first group
should be classified as involuntary part-timers who are willing to work part-time
but would prefer to full-time hours27, so that they will always look for wholetime jobs and they are ready to abandon part-time position. It is reasonable to
recognize the second group as full-timers28because they only work part-time
temporarily and they will return their initial status which is full-time position
after the economy is recovered.
In summary, it belongs to many factors to determine whether a part-time
employee. Therefore, the research in characteristics of part-timers is important
for the distinction between these employees and full-timers as well as for the
establishment of appropriate regulations of such people. These characteristics
include:
1.2.1 The development of part-time workforce depends on a specific
economic and social environment
As we knew, part-time jobs have been only really popular for recent several
decades. This is one of reasons for the increase of part-time workforce because

the supply source is always parallel to the demand source. Reviewing original
reasons, we see that this development is derived from the changes of economic
and social conditions.
26

Thomas J. Nardone, Part-time workers: who are they?, Monthly Labor Review, 1986.
H. Luke Shaefer, Part-time workers: some key differences between primary and secondary earners, Monthly
Labor Review, 2009.
28
Thomas J. Nardone, Part-time workers: who are they?, Monthly Labor Review, 1986.
27

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REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES

Firstly, it is indicated that a gloomy economy will create more part-time
jobs, which is completely opposite to the growth of full-time works. United
States can be cited here, particularly, during the period of 1968 - 1980, the
number of part-timers which grew from 14 percent to 17 percent which was
more rapid than that of full-timers and reached 18 percent in 1982 when the
economy in the world was slow down resulting from two energy crises (1973
and 1979). However, when the economic condition was improved in the duration
1983 -1985, this percentage returned the old rate (at 17 percent). 29 For another
example, the rate of part-timers in total work force in United Kingdom
surprisingly increased from 4 percent to 25 percent during 1951 – 1990 which is
the period of economic and political changes. Similarly, the number of such
workers accounted for 14 percent of total community labor force in EU.30 There
are reasons presented for the explanation of this growth. First, the economy is

down, which will cause the decline in consumption so that manufacturers must
reduce production because the increase in inventory goods. This leads to the
demand for labor falling. However, when consumption rises in peak hours in
day, weekends or certain seasons, employers need the number of workers to
serve in these durations. Hence, they must choose one of two solutions which are
that the employer will remain the amount of full-timers but reducing their
working time or they will dismiss redundant full-timers and hire new part-timers.
At that moment, most of employers selected the second way because it created
greater flexibility in their management such as the latitude in the work schedules,
the better use of capital equipment31. Especially, it could reduce labor costs.
Actually, part-timers were not protected much by a separate legislative regime
during 1970 - 1990. They were only paid basing on really working hours, fewer
or without other benefits comparing to full-timers. Understandably, instead of
paying full benefits to full-timers who worked part-time temporarily, employers
preferred part-timers.
However, the above explanation will be more correct if it is associated with
another important economic factor, which is the development of service
industries as “retail trade, hotel, restaurant and personal services”32. Because the
29

Thomas J. Nardone, Part-time workers: who are they?, Monthly Labor Review, 1986, see Chart 1, page 16.
Patricia Maxwell, Discrimination against part-time workers, Blackstone Press Ltd, 1995.
31
International Labor Conference 80th Session 1993, Part-time Work: Fifth Item on the Agenda Volume 2,
International Labor Office, 1993.
32
Hielke Buddelmeyer, Gilles Mourre and Melanie Ward, The Determinants of Part-Time Work in EU
Countries: Empirical Investigations with Macro-Panel Data, DP No. 1361, Forschungsinstitut zur Zukunft der
Arbeit Institute for the Study of Labor, 2004, page 11.
30


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REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES

demands which rise sharply in peak hours, evening, weekends or certain seasons
are normally service needs. This is reason why for part-time workforce did not
develop before 1970s although this period also had many economic crises.
Particularly, in United States, the percentage of part-timers working in
“precision production, craft, and repair” or working as “operators, fabricators,
and laborers” as well as undertaking the responsibility of executive, in
administrative and managerial roles was usually low33. Due to the fact that the
nature of above jobs requires to be conducted in at least 8 hours per day and
sometimes needs to be lasted overtime. Meanwhile, part-time workers accounted
for 29 percent in services and 31 percent in retail trade in
1992.34Understandably, these jobs allow the flexibility of time for part-time
employees who want to balance their job and other responsibilities as well as
employers who cannot request the full-timers to work beyond their single shift.35
In conclusion, the combination of slow economy and the development of
service industries are economic conditions which affected the growth of parttime work force. This is the reason of the rapid increase of such force in most
countries around the world now. That Vietnam’s economy is going down and the
economic restructure from agriculture to industry – service has been
implemented since more than 10 years ago is facilitating for the extension of
part-timers. Hence, Vietnam needs to establish a separate legislative regime for
such subjects so as to govern their employment relationship with the employers
according to the State’s orientation.
For social condition, female, younger (aged 16 to 24) and older (aged 65
and over) workers account for a high percent in total part-time workforce.
Therefore, they play an important role in the development of such labor force.

For instance, according to Current Population Survey (CPS) in United Stated in
1993, the percentage of part-timers in total workers aged 16 -17 employed was
84.4 percent and 56.3 percent for part-timers aged 65 and over, respectively. By
contrast, the majority of workers aged 45-54 and aged 25-44 undertook full-time
jobs (in turn 86.6 percent and 85.4 percent). In addition, the ratio of female part33

Thomas J. Nardone, Part-time workers: who are they?, Monthly Labor Review, 1986, see Chart 1, page 18.
See more in 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, Chart 2.
34
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, Chart 2.
35
Hielke Buddelmeyer, Gilles Mourre and Melanie Ward, The Determinants of Part-Time Work in EU
Countries: Empirical Investigations with Macro-Panel Data, DP No. 1361, Forschungsinstitut zur Zukunft der
Arbeit Institute for the Study of Labor, 2004, page 11.

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REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES

timers over 16 year olds was 65 percent comparing to that of respective male
was 35 percent.36Especially, there was a clearer difference in the proportion of
married female and male employees who work part-time.37These statements are
known similarly in many countries as most of EU member States38, Australia…
There are some explanations of this characteristic. First, it is based on the nature
of part-time jobs which has a short working time and a flexible schedule, less.
Moreover, those are less difficult and complex than full-time jobs. The employer
does not require high skills or experience to conduct such tasks so that parttimers are less stressful influential by their jobs than full-timers. Thus, younger

people whose schooling is important, older workers who are in retirement and
usually feel tired as well as married women having childcare and other family
obligations usually wish reasonable jobs with their current skills, health and
time. They are known as voluntary part-time employees. Another reason is
indicated that labor costs for a younger worker may be cheaper for an adult
person. Moreover, in practice, there are some of service jobs which are only
appropriate for the characters of female (“gender flexibility” was issued by
Delsen in 1998)39.
With above characteristics, Vietnam which has a young population
structure will become an attractive supply source for the part-time labor market.
This is a basis for the growth of part-time workforce. Moreover, the rate of
unemployment in Vietnam is quite high and the degree of Vietnamese cultural is
low, which require the government to have policies in order to expand the
number of part-time works helping Vietnamese find jobs more easily to
supplement their income, stabilize their life, contribute for the development of
the economy and society.

36

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, page 15.
37
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, page 19.
38
In 2001, the EU average female part-time employment rate is at 34 percent while the male rate is at 6.2
percent. (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).
39

Hielke Buddelmeyer, Gilles Mourre and Melanie Ward, The Determinants of Part-Time Work in EU
Countries: Empirical Investigations with Macro-Panel Data, DP No. 1361, Forschungsinstitut zur Zukunft der
Arbeit Institute for the Study of Labor, 2004, page 11.

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REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES

Beside factors as business cycles, labor market institutions40…, legislation
also affects considerably the growth of part-timers. Therefore, for this purpose
and to protect such employees better, Vietnam needs to regulated clearly rights
and obligations for employers and part-time employees who are vulnerable
groups in society, especially, for female employees protected by world
community under the principle of “non-discrimination” regarding sex in the
international legislation of human rights as well as in Vietnamese Labor Law.
1.2.2

The number of working hours of part-time employees less than

those of full-time employees
The working time is always the first criterion to distinguish part-timers
from full-timers. As mentioned in the definition part of this thesis, part-time
employees are individuals whose working hours of a certain job are shorter than
those of comparable full-timers.This comparison is shown in two aspects below:
The first is the difference in the amount of hours per week. In many States
as America, Australia, Singapore, 35 hours a week is the threshold to distinct
between full-timers and part-timers. Whereas part-timers work less than 35 hours
per week, full-timers usually work from 40 hours to 48 hours per week.
However, as stated previously, there is an exception for full-time employees who

are bound to work less than 35 hours a week for economic reasons. According to
ILO, they are also called as workers in under-employment, which comprise of
“all employed persons who during a specified period work less than 35 hours a
week and who wish to work additional hours”.
Another aspect is the difference in the number of hours a day. It can be
understood that part-timers have the hours of work per day fewer than fulltimers. That is clearly shown in Australia. Particularly, the percentage of parttimers working fewer than 6 hours per day was about 50 percent while parttimers working 8 hours or more per day only accounted for about 20 percent in
2005.41
It is noticed that the working hours a day and the hours of work a week can
be also combined to compare part-timers with full-timers, which is shown in the
regulations of Vietnamese Law. In particular, Article 104(1) and Article 34(1)
40

Hielke Buddelmeyer, Gilles Mourre and Melanie Ward, The Determinants of Part-Time Work in EU
Countries: Empirical Investigations with Macro-Panel Data, DP No. 1361, Forschungsinstitut zur Zukunft der
Arbeit Institute for the Study of Labor, 2004.
41
Part Time Employment: The Australian Experience – Characteristics of Part Time Jobs, page 156.

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REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES

VLC 2012 implies that like full-timers, part-timers will be also bound by the
number of working hours per day and those of each week, respectively.
A shorter working time is always the desire and the advantage of voluntary
part-time employees. Because the part-time job is only one of their duties which
include childcare, family or personal obligations, schooling or training. In some
cases, health situation (illness, disability, old ages).is also a deciding factor in
selecting part-time works.42 Moreover, the use of part-timers who voluntarily

reduce their work schedule is also beneficial to employers. Owing to the fact that
it creates greater latitude in the employment, which helps employers raise the
employee effectiveness, reduce labor costs and enhance the competitiveness,
especially, for business owners of service industries. It is understood that parttimers are mainly hired during recurring workload surges which may be peak
hours, evening shifts and night shifts or the rise of social demand in a certain
season. Their schedule may be regular or irregular days of the week. Thus, they
are only paid on actual working hours and receive non-wage benefits
restrictively.
There is an extension of this characteristic which is the difference in the
number of working days in each week. In 2005, a survey in Australia was shown
that part-timers working from one to three days per week accounted for nearly
50 percent while two-thirds of full-timers worked five days each week.43This is
partly explained by travel time and cost of part-timers. Understandably, parttimers usually wish to carry out their tasks in a short time to save time and cost
for their movement. However, the explanation also depends on whether the
location of office near or far from their house. It means that if the travel time is
longer, the employees wish to work fewer days in a week.
Moreover, the working time also affects directly the estimation of
minimum salary, the contributions of the employers and the State to social
insurances as well as the enjoyment of other benefits. Hence, the difference in
working hours between part-timers and full-timers is an important factor to make
a claim of separate regulations intended for part-timers.
1.2.3
A part-time employee is paid lower salary and non-wage benefits
in comparison with a comparable full-time employee.
42

H. Luke Shaefer, Part-time workers: some key differences between primary and secondary earners, Monthly
Labor Review, 2009.
43
Part Time Employment: The Australian Experience – Characteristics of Part Time Jobs, page 159.


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REGULATIONS IN LABOR LAW FOR PART-TIME EMPLOYEES

As an effect of the shorter working hours together with the combination of
other factors including the lower occupational skills/ qualifications, no overtime
pay, the share of jobs, the concentration on the works having the lowest wages,
the exclusion of part-time salary from the main wage structure of enterprises or
the less favorable treatment of employers, 44 a part-timer usually receive fewer
salary and interests than a full-timer for a same work. In particular, the part-time
average hourly pay were only 66 percent of the full-time average hourly earnings
during 1996 - 1997.45For the employer’s purpose of minimizing labor costs, this
seemed to be an understandable practice.
However, it started becoming more difficult for employers when
governments of the industrial countries enacted the relative legislation in 1990s
to enforce the payment of certain benefits to such workers on them. Because the
rapid increase of such force required an official protection of their legal rights. In
fact, all of practical circumstances cannot be covered entirely by law and parttimers must much depend on their company policies or collective agreements to
determine their benefits. The States’ laws regulate that “part-time employee are
not treated less favorably than a full-time employee” and give the principle of
“pro rata” to estimate the benefits of part-timers basing on their working hours
and those of comparable full-timers. Practically, the surveys of Australia in 2005
indicated that there only had 37.4 percent of part-timers paid holidays and sick
leave which are the most basic benefits. Meanwhile, it accounted for 89.2
percent of full-timers, respectively.46
Accordingly, in comparison with a full-timer, a part-timer who wants to
gain benefits equally to the comparable full-timer must satisfy some of certain
standards provided by employers such as how long his labor contract lasts, he

works how many hours in a year, his occupation belongs to which work groups
and requires how skill levels… All factors will be considered by employers for
the decision in whether or not providing some of non-wage benefits with parttimers like promotion, training, parental leave, social insurances… These
surveys showed that workers whose works need higher skill levels receive more
non-wage benefits such as sick leave and holidays.47 There are some reasons
which can be presented here. Particularly, employers request the proportion
44

Hugh Collins, K.D. Ewing and Alleen McColgan, Labor Law – Text and Materials, page 344.
Hugh Collins, K.D. Ewing and Alleen McColgan, Labor Law – Text and Materials, page 344.
46
Part Time Employment: The Australian Experience – Characteristics of Part Time Jobs, page 166.
47
Part Time Employment: The Australian Experience – Characteristics of Part Time Jobs, page 167.
45

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