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THE MINISTRY OF LABOR, WAR INVALIDS AND SOCIAL AFFAIRS
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No.13/2005/TT-BLDTBXH
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Hanoi, February 25, 2005
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CIRCULAR
GUIDING THE IMPLEMENTATION OF POLICIES
TOWARD LABORERS UNDER THE GOVERNMENT’S DECREE NO. 187/2004/ND-CP DATED NOVEMBER
16, 2004 ON TRANSFORMATION OF STATE COMPANIES INTO JOINT-STOCK COMPANIES
In furtherance of the Government's Decree No.187/2004/ND-CP dated
November 16, 2004 on transformation of State companies into joint-stock
companies (hereinafter referred to as Decree No. 187/2004/ND-CP); after
obtaining opinions of ministries, branches and Vietnam Labor Confederation, the
Ministry of Labor, War Invalids and Social Affairs hereby guides the
implementation of policies toward laborers as follows:
1.
This Circular applies to laborers currently working in to be-equitized State
companies, where the State does not hold 100% of their charter capital,
prescribed in Article 2 of Decree No. 187/2004/ND-CP.
2. Joint-stock companies shall
have to inherit all obligations toward laborers according to Clause, Article 8
of Decree No. 187/2004/ND-CP, covering all contents already agreed upon in the
labor contracts or collective labor accords (if any) between employers and
laborers as well as other obligations prescribed by law.
3. The
duration calculated for division of cash balances of reward and/or welfare
funds as prescribed in Article 15 and assets for production and/or business
invested with reward and/or welfare funds as prescribed in Clause 4, Article 10
of Decree No. 187/2004/ND-CP shall be the duration the laborers have actually
worked in such enterprises up to the time of obtaining decisions on enterprise
equitization.
4.
Laborers entitled to purchase preferential shares according to Clause 1 of
Decree No. 187/2004/ND-CP are those on the list of regular laborers of the
enterprises at the time of equitization, including: laborers currently working
under labor contracts with indefinite terms and labor contracts with a term of
between full 12 months and 36 months, including those who are subject to
postponement of labor contract performance awaiting jobs under decisions of
enterprises' directors; workers and officials recruited before August 30, 1990
(the effective date of the Ordinance on Labor Contracts) but have not yet
signed labor contracts.
5. The
working duration calculated for the purchase of shares at preferential prices
is the total period of time (excluding odd months) the laborers have actually
worked in State enterprises, agencies or units of State sectors, or the armed
forces' units up to the time of equitization, including the duration for which
the laborers had received job-loss allowances, severance allowances or enjoyed
demobilization entitlements.
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7.
Apart from the duration the laborers have actually worked in enterprises as
prescribed at Points 5 and 6, Section I of this Circular, the durations defined
at Point d, Clause 3, Article 14 of Decree No. 44/2003/ND-CP dated May 9, 2003,
if any, shall also be calculated as durations of actual working in enterprises,
agencies or units.
8.
Working duration with odd months shall be prescribed as follows:
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Under 1 month, it shall not be calculated.
- From
full 1 month to 6 months, it shall be calculated as 6 working months.
- From
full 6 months to 12 months, it shall be calculated as 1 working year.
9.
Time of equitization means the time of obtaining decisions of competent
authorities allowing enterprises to carry out the equitization.
II. POLICIES TOWARD LABORERS AT THE TIME OF TRANSFORMING STATE
ENTERPRISES INTO JOINT-STOCK COMPANIES
When
obtaining decisions of competent authorities on the equitization of
enterprises, the directors of to be-equitized enterprises shall, together with
the Enterprise Renewal and Development Boards, work out labor plans (included
in the equitization plans) for submission to competent authorities for approval
according to Article 40 of Decree No. 187/2004/ND-CP and settle regimes for
laborers as follows:
1.
Elaboration of labor plans:
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Laborers other than those subject to labor contract (directors, deputy
directors, chief accountants);
- Laborers
working under labor contracts with indefinite terms (including laborers
recruited before August 30, 1990 but having not yet signed labor contracts);
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Laborers working under labor contracts with a term of between full 12 months
and 36 month;
- Laborers
working on a seasonal or piece-work basis for less than 12 months.
b) To
make the list of laborers eligible for retirement according to current
regulations;
c) To
make the list of laborers whose labor contracts shall terminate, including
those with expired labor contracts; those who voluntarily terminate their labor
contracts or for other reasons as prescribed by law at the time of
equitization;
d) To
make the list of laborers for whom jobs cannot be placed at the time of
equitization and shall be subject to contract termination, covering the list of
redundant laborers under the Government's Decree No. 41/2002/ND-CP dated April
11, 2002 on policies toward laborers redundant from the reorganization of State
enterprises, which was amended and supplemented under the Government's Decree
No. 155/2004/ND-CP dated August 10, 2004 (hereinafter referred to as amended
and supplemented Decree No. 41/2002/ND-CP) and Circular No. 19/2004/TT-BLDTBXH
dated November 22, 2004 of the Ministry of Labor, War Invalids and Social
Affairs guiding the implementation of a number of articles of amended and
supplemented Decree No. 41/2002/ND-CP;
e) To
make the list of laborers who shall be transferred to work in joint-stock
companies, including:
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Laborers whose labor contracts are still valid;
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Laborers who meet all conditions on age and fitness and shall be re-trained for
continuing to work in joint-stock companies according to companies' demands;
The
lists of laborers specified at Items a thru e above shall be made by
enterprises themselves according to set forms and included in labor plans.
2.
Settlement of policies toward laborers:
a) For
laborers eligible for retirement as prescribed at Item b, Point 1, Section II
of this Circular, the directors of to be-equitized enterprises and social
insurance agencies where enterprises pay social insurance premiums (hereinafter
called social insurance agencies for short) shall settle all social
insurance-related interests for the laborers according to law provisions.
b) For
cases where labor contracts have expired is prescribed in Item c, Point 1,
Section II, the enterprise directors shall apply the job-severance allowance
regimes to laborers according to the provisions of Article 42 of the Labor Code
and have to fulfill procedures for the social insurance agencies to settle
social insurance-related interests for laborers according to law provisions.
c)
Laborers for whom new jobs cannot be placed as defined at Item d, Point 1,
Section II shall be settled as follows:
c1.
For equitized enterprises, which obtain equitization, decisions before December
31, 2005:
+
Redundant laborers being subjects defined in the amended and supplemented
Decree No. 41/2002/ND-CP shall enjoy policies according to the provisions of
such Decree and Circular No. 19/2004/TT-BLDTBXH dated November 22, 2004 of the
Ministry of Labor, War Invalids and Social Affairs guiding above-said amended
and supplemented Decree No. 41/2002/ND-CP;
+
Laborers other than subjects governed by the amended and supplemented Decree
No. 41/2002/ND-CP shall enjoy job-severance allowance or job-loss allowance
regimes according to labor legislation and be supported with funding from the
money amounts collected by the State from State enterprise equitization or from
the fund in support of enterprise reorganization under the Ministry of
Finance's guidance.
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d) For
laborers who shall be transferred to work in joint-stock companies according to
Item e, Point 1, Section II, the to be-equitized enterprises shall have to make
lists thereof and carry out procedures for social insurance agencies to
continue with the social insurance regimes and grant social insurance books (if
such books have not yet been granted) according to regulations, then transfer
such lists together with dossiers of laborers under enterprises' management to
the Managing Boards or the directors of joint-stock companies.
e) To
be-equitized enterprises shall have to pay social insurance premium debts to
social insurance agencies as well as debts owed to laborers before being
transformed into joint-stock companies or terminate labor contracts.
III. POLICIES TOWARD LABORERS WHEN ENTERPRISES HAVE BEEN TRANSFORMED INTO
JOINT-STOCK COMPANIES
1. The
Managing Boards and directors of joint-stock companies have the
responsibilities:
a) To
receive the laborers defined in Item e, Point 1, Section II of this Circular
and all relevant dossiers of such laborers.
b) To
continue realizing the commitments in labor contracts or collective labor
accords signed previously with laborers according to law provisions.
c) To
organize job-retraining for laborers who must be restrained so as to continue
working in joint-stock companies.
d) For
laborers newly recruited by joint-stock companies, to comply with law
provisions.
2.
Policies toward laborers who lose their jobs:
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a) For
laborers who lose their jobs before December 31, 2005:
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Laborers being subjects defined in the amended and supplemented Decree No.
41/2002/ND-CP shall enjoy policies toward redundant laborers, which are
specified in such Decree and Circular No. 19/2004/TT-BLDTBXH dated November 22,
2004 of the Ministry of Labor, War Invalids and Social Affairs. Funds for
realization of such policies shall be supported by the Redundant Labor Support
Fund.
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Laborers who lose or give up their jobs shall enjoy job-loss or job-severance
allowances according to labor legislation. Funds therefore shall be provided
from the money amounts collected by the State from the State equitization,
prescribed in Article 35 of Decree No. 187/2004/ND-CP.
b) For
laborers who lose their jobs after December 31, 2005:
Within
12 months as from the date the joint-stock companies are granted the business
registration certificates, if laborers transferred from State enterprises lose
or give up their jobs, including those who voluntarily give up their jobs, for
reasons of reorganization of production and/or business activities or
technology renewal, such laborers shall be entitled to job-loss allowances
according to Clause 1, Article 17 of the Labor Code; or job-severance
allowances according to Clause 1, Article 42 of the Labor Code.
Sources
for payment of job-severance or job-loss allowances shall come from the money
amounts collected by the State from enterprise equitization or the fund in
support of enterprise reorganization prescribed in Article 35 of Decree No.
187/2004/ND-CP and Section VI (management and use of proceeds from
equitization) of the Ministry of Finance's Circular No. 126/2004/TT-BTC dated
December 24, 2004 guiding the implementation of Decree No. 187/2004/ND-CP.
2.2.
In cases where laborers transferred from State companies to joint-stock
companies lose or give up their jobs in the period from the second year to the
fifth year as from the date the joint-stock companies are granted business
registration certificates, they shall be entitled to job-loss allowances
according to Article 17 or job-severance allowances according to Article 42 of
the Labor Code. The joint-stock companies shall have to pay 50% of the total
allowances mentioned above according to the provisions of the Labor Code; the
remainder shall be paid from the money amounts
collected
by the State from State company equitization or the fund in support of
enterprise reorganization as prescribed in Article 35 of Decree No.
187/2004/ND-CP. Past the above-said time limit, the joint-stock companies shall
have to pay the total job-loss or job-severance allowances to laborers,
including the amount for the duration the laborers worked for the State sector.
3.
Policies toward laborers to be re-trained for continuing to work in joint-stock
companies:
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b)
Joint-stock companies shall continue to pay social insurance premiums for
laborers during the period of re-training according to law provisions (at the
salary levels inscribed in the apprenticeship contracts).
c) The
procedures for apprenticeship contracts shall comply with law provisions.
d) The
funding sources for providing support for re-training shall comply with the
provisions of Item b, Clause 1, Article 35 of the Government's Decree No.
187/2004/ND-CP and Item b, Point 1, Section VI of above-said Circular No.
126/2004/TT-BTC.
e)
After the period of re-training, the joint-stock companies shall have to
arrange jobs for laborers. lf the re-trained laborers refuse to work as
committed, they shall have to compensate training expenses and other costs, if
any.
1. The
directors of to be-equitized enterprises shall, together with the Enterprise
Renewal and Development Boards, have to elaborate plans on labor rearrangement,
determine the number of necessary laborers according to production and business
requirements, the number of laborers for whom new jobs cannot be arranged and
the number of laborers subject to contract termination at the time of
equitization, then submit them to competent authorities for approval and
settlement of policies toward laborers according to law provisions.
Within
30 days after the settlement of policies toward laborers, the directors of to
be-equitized enterprises shall have to report the results of transformation of
State companies into joint-stock companies (made according to a set form). Such
a report shall be made in 8 copies and sent to the agency approving the
equitization plan; the Ministry of Labor, War Invalids and Social Affairs; the
Ministry of Finance; the provincial/municipal Labor, War Invalids and Social
Affairs Services and the Labor Federations of the localities where the
enterprises are headquartered; the branches' trade unions, the social insurance
agencies where enterprises pay social insurance premiums; one copy shall be archived
at enterprises.
2. The
social insurance agencies where enterprises pay social insurance premiums shall
have to effect social insurance policies toward laborers before and after the
equitization of enterprises according to the State's regulations.
3. The
provincial/municipal Labor, War Invalids and Social Affairs Services and the
Enterprise Renewal and Development Boards of ministries, branches, provinces or
centrally-run cities shall have to coordinate with the provincial/municipal
Labor Federations and branches' trade unions in guiding, monitoring and
inspecting the implementation of Decree No. 187/2004/ND-CP and relevant legal
documents for laborers, then sum-up and report thereon to the Steering
Committee for Enterprise Renewal and Development (the Government Office), the
Ministry of Labor, War Invalids and Social Affairs and the Ministry of Finance.
4.
This Circular takes effect 15 days after its publication in the Official Gazette
and replaces Circular No. 15/2002/TT-BLDTBXH dated October 23, 2002 of the
Ministry of Labor, War Invalids and Social Affairs guiding policies toward
laborers upon transformation of State enterprises into joint-stock companies
under the Government's Decree No. 64/2002/ND-CP dated June 19, 2002 on
transformation of State enterprises into joint-stock companies.
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MINISTER OF LABOR, WAR
INVALIDS AND SOCIAL AFFAIRS
Nguyen Thi Hang