THE
GOVERNMENT
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|
SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
113/2004/ND-CP
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Hanoi,
April 16, 2004
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DECREE
ON PENALIZATION FOR ADMINISTRATIVE VIOLATIONS IN THE FIELD
OF LABOUR LEGISLATION
THE GOVERNMENT
Chapter I
GENERAL PROVISIONS
Article 1.
Scope of application
1. This Decree stipulates
administrative penalties for Vietnamese organizations and individuals, who
violate labour laws but are not criminal and shall be penalized in accordance
with laws within the territory, economically privileged zones and the
continental shelf of Vietnam.
2. Foreign individuals and
organizations committing acts of administrative violations of labour laws
within the territory, economically privileged zones and the continental shelf
of the Socialist Republic of Vietnam shall be penalized as regulated by this
Decree except for cases stipulated by international treaties, in which the
Socialist Republic of Vietnam is a signatory or a supporting member;
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Article 2.
Principles for the penalization application to labour legislation violations
1. The penalization for acts of
labour law violations shall be conducted by the competent persons as stipulated
in Articles 26, 27 and 28 below.
Individuals and organizations
committing acts of violation as stipulated in Chapter 2 of this Decree shall be
penalized for their labour law violations.
2. The penalization for acts of
labour law violations shall be conducted promptly, fairly and thoroughly. A
violation detected should be suspended promptly by a decision; every
consequence caused by the act of administrative violation shall be surmounted
in accordance with laws.
3. One act of administrative
violation shall be penalized only once. Each of acts of violation committed by
the same person shall be penalized separately. Each of the persons who commit
the same act of violation shall be penalized separately.
4. Forms and measures of
penalization shall be based on the nature and seriousness of the violation, the
personal status of the guilty person, mitigating and aggravating factors as
stipulated in Articles 3 and 4 of this Decree.
5. Penalization for
administration violation is not applied for cases of emergency, legitimate
self-defense, sudden factors or administrative violators losing capacity of
consciousness or act control due to mental illness or other diseases.
Article 3.
The mitigating factors are determined as follows:
1. The guilty person who has
tried to prevent or diminish the damages caused by the violation, voluntarily
to take remedial measures or to pay compensation for damages caused.
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3. The guilty person is a
pregnant woman, a young, an elderly person, a sick or handicapped person whose
conscience and capability to control himself/herself is limited.
4. A violation driven by
extremely difficult circumstances, which were not intentionally created by the
violator.
5. A violation is committed by
backwardness.
Article 4.
The aggravating factors are determined as follows:
1. Violating in an organized
manner.
2. Multiple violation or
recidivism in the same field.
3. Inciting, enticing young
persons or compelling materially or spiritually dependant persons into committing
a violation.
4. Committing a violation while
being drunk with beer, wine or other stimulants.
5. Taking advantage of one's
position or powers to commit a violation.
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7. Committing a violation while
serving a criminal sentence or while fulfilling an administrative penalty.
8. Continuing to commit the act
of administrative violation despite having been requested to stop that act by
the competent person .
9. Trying to evade the sanction
or to conceal the violation after committing it.
Article 5.
Forms of penalization
1. Organizations, individuals
who commit acts of administrative violation of labour laws shall be punished
with one of the following major forms of penalization:
a) Serving a warning;
b) Fining
When the form of fining is
applied, the specific rate of fine for an act of violation is the medium rate
of the corresponding range of fines for that act as stipulated in this Decree;
if the violation involves in mitigating factors, the rate of fine might be
lower but not below the lowest rate of the stipulated corresponding range of
fines; if the violation involves in aggravating factors, the rate of fine might
be higher but not above the highest rate of the stipulated corresponding range
of fine.
2. Depending on the nature and
seriousness of the violation, organizations and individuals who commit
administrative violations of labour law might face supplementary forms of
penalization for taking away the use right of licences and operation
certificates.
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a) Being forced to pay
compensation for damages caused, including those in terms of machinery,
equipment and properties of the enterprise as regulated by laws;
b) Being forced to comply with
legal regulations on setting up the contingency fund for unemployment; plan for
employment; labour contract signing; labour bargaining registration; principles
of formulation of wage rates, payrolls, labour practice codes and reward
regulations; working principles; regulations for typical workers, foreign
workers, operational conditions for the trade union, measures for labour
management; ensuring occupational safety by the trade union, measures for
labour management; ensuring occupational safety and health;
c) Paying back the deposit and
interest rate amounts to workers;
d) Sending overseas workers back
to their countries;
e) Being forced to pay in
arrears of social insurance;
f) Being proposed to the
competent agencies to besiege account, collect social insurance or revoke
operation licences;
g) Being forced to upgrade and
repair factories and equipment that do not meet standards on occupational
safety and health;
h) Being forced to verify and
register the use of machine, equipment, materials and substances with strict
requirements of occupational safety and health;
i) Other measures as regulated
by laws.
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1. The prescription period for
penalization for administrative violations in the labour legislation is one
year, beginning from the occurrence date of the administrative violation as
stipulated in this Decree; after this period, remedial measures for damages
caused as stipulated in Item 3, Article 5 of this Decree shall be applied for
the guilty person instead of the penalization.
2. Within the time limit set in
Item 1 of this Article, if individuals or organizations concerned commit a new
act of administrative violation in the same field of labour or intentionally
evade or obstruct the penalization, the above limitation period shall not be
applied.
3. With regard to a person,
against whom a legal action has been taken or who is being prosecuted, or to
whom a decision has been issued for trial according to the criminal
proceedings, but later is subject to a decision issued to cancel the
investigation or to cancel the trial, shall be imposed an administrative
penalization if there is indication of his/her administrative violation, the
limitation period for penalizing is 3 months beginning from the date the
cancellation decision of investigation or the trial is issued.
Article 7.
Time limit regarded as not yet being penalized for an administrative violation
The time limit upon which guilty organizations or individuals shall be regarded
as not yet being penalized for an administrative violation is one year since
the decision of administrative penalization is finally executed or since the
expiration of the penal decision provided that they do not commit any another
violation.
Chapter 2
ACTS OF ADMINISTRATIVE
VIOLATION OF LABOUR LAWS, FORMS AND RATES OF FINES
Section 1.
VIOLATIONS OF THE PROVISIONS ON LABOUR RELATIONS
Article 8. Violations
of the provisions on employment
1. A fine from VND 1,000,000 to
VND 2,000,000 shall be imposed on an employer taking one of the following acts:
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b) Not discussing with the
executive board of the enterprise or the temporary trade union before
dismissing workers;
c) Not informing the provincial
labour authority before dismissing workers;
d) Violating one of the
regulations on procedures for employing Vietnamese labourers at enterprises,
agencies and organizations.
2. A fine of the following rates
shall be imposed on organizations, individuals who commit one of the following
acts of violation: violation of regulations on unemployment allowance for
workers; collection of job placement fees at a rate higher than the prescribed
one; collection of job placement fees without receipts:
a) From VND 1,000,000 to VND
2,000,000 if the violation is made for between 01 and 10 workers;
b) From VND 2,000,000 to VND
5,000,000 if the violation is made for between 11 and 50 workers;
c) From VND 5,000,000 to VND
10,000,000 if the violation is made for between 51 and 100 workers;
d) From VND 10,000,000 to VND
15,000,000 if the violation is made for between 101 and 500 workers;
e) From VND 15,000,000 to VND
20,000,000 if the violation is made for at least 500 workers;
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a) An enterprise does not set up
the contingency fund for unemployment as stipulated in Item 3, Article 17 of
the amended and supplemented Labour Code;
b) A job placement centre or job
placement enterprise does not have operation licence granted by the competent
agency or its operation is not in line with the regulations in the licence.
4. A fine of VND 15,000,000 to
VND 20,000,000 shall be imposed on an organization, individual committing one
of the following acts:
a) Acts of enticement, false
promises and false advertisements to deceive employees as stipulated in Article
19 of the amended and supplemented Labour Code;
b) Taking advantage of job
placement services to achieve unlawful purposes, which are contrary to the
stipulations in Article 19 of the Labour Code;
5. Supplementary forms of
penalization imposed on organizations, individuals committing an administrative
violation as stipulated in Item 4 of this Article are as follows:
a) The operation licence is
revoked in a fixed term if the violation is made for the first time and in a
permanent term if the violation is made for the second time; the operation
licence revocation is applied to enterprises operating in the field of job
placement;
b) The operation of a job
placement centre shall be suspended by the body having made decision on the
centre’s establishment in a fixed term if the violation is made for the first
time and in a permanent term if the violation is made for the second time.
6. Remedial measures for damages
caused:
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b) Setting up the Contingency
Fund for Unemployment in the case of violation as regulated in point a, Item 3
of this Article.
Article 9.
Violations of the provisions on vocational education
1. Serving a warning notice or a
fine from VND500,000 to VND 1,000,000 for organizations, individuals committing
a violation act of one of the regulations on the establishment, operation
registration, division, separation, merge, suspension and dissolution of
vocational establishments.
2. A fine shall be imposed on
organizations, individuals committing one of the acts of violation of paying
apprentices and trainees not in line with the stipulations in Item 2, Article
23 of the amended and supplemented Labour Code; collecting vocational training
fees from trainees who shall not pay; collecting vocational training fees
higher than ones stipulated by the laws at the following rates:
a) From VND 1,000,000 to VND
2,000,000 if the violation is made for between 01 and 10 workers;
b) From VND 2,000,000 to VND
5,000,000 if the violation is made for between 11 and 50 workers;
c) From VND 5,000,000 to VND
10,000,000 if the violation is made for between 51 and 100 workers;
d) From VND 10,000,000 to VND 15,000,000
if the violation is made for between 101 and 500 workers;
e) From VND 15,000,000 to VND
20,000,000 if the violation is made for at least 500 workers;
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4. Supplementary forms of
penalization: the training licence of an organization committing an
administrative violation as stipulated in Item 3 of this Article might be
revoked in a fixed term if the violation is made for the first time and in a
permanent term if the violation is made for the second time;
5. Remedial measures:
compensating workers for their losses if a violation as stipulated in Items 2
and 3 of this Article is made.
Article 10.
Violations of the provisions on labour contract
1. Serving a warning notice or a
fine from VND100,000 to VND500,000 for an employer committing one of the
following acts:
a) Not handing a signed copy of
the labour contract to the worker;
b) Violating stipulations on
hiring house servants in Article 139 of the amended and supplemented Labour
Code.
2. A fine shall be imposed on an
employer committing one of the following acts of violation: signing a labour
contract not of the type as stipulated in Article 27 of the amended and
supplemented Labour Code; signing a labour contract without signatures of
either side at the following rates:
a) From VND500,000 to
VND1,000,000 if the violation is made for between 01 and 10 workers;
b) From VND1,000,000 to
VND3,000,000 if the violation is made for between 11 and 50 workers;
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d) From VND5,000,000 to
VND7,000,000 if the violation is made for between 101 and 500 workers;
e) From VND7,000,000 to
VND10,000,000 million if the violation is made for at least 500 workers;
3. A fine shall be imposed on an
employer committing one of the following acts of violation: Applying a longer
probation period than that prescribed in Article 32 of the amended and
supplemented Labour Code and accompanied regulations; Violating stipulations on
a temporary period of time a worker is moved to another job; Violating
stipulations on paying salary for a worker during the temporary period of time
the worker is moved to another job as stipulated in Article 34 of the amended
and supplemented Labour Code.- Violating regulations on the unemployment
allowance statutes as stipulated in Item 1, Article 42 of the amended and
supplemented Labour Code.
The fine is applied at the
following rates:
a) From VND1,000,000 to
VND2,000,000 if the violation is made for between 01 and 10 workers;
b) From VND2,000,000 to
VND5,000,000 if the violation is made for between 11 and 50 workers;
c) From VND5,000,000 to
VND10,000,000 if the violation is made for between 51 and 100 workers;
d) From VND10,000,000 to
VND15,000,000 if the violation is made for between 101 and 500 workers;
e) From VND15,000,000 to
VND20,000,000 if the violation is made for at least 500 workers;
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a) Maltreating employees or
forcing them to work as stipulated in labour laws;
b) Forcing workers to pay a
deposit not in line with the laws’ regulations;
c) A employer successively
failing to continue employment of a worker in the labour employment way as
stipulated in Article 31 of the amended and supplemented Labour Code.
5. Apart from the forms of
penalization as stipulated in this Article, one of the following remedial
measures shall be applied to a violator:
a) For the violations as
stipulated in Item 1 of this Article, the employer has to hand one copy of the
labour contract over to workers;
b) Signing a labour contract of the
correct type as regulated by laws; in case without signatures of either side,
the absent signature shall be added as stipulated in Item 2 of this Article;
c) Paying back the deposit to
worker and an interest rate amount at a rate publicized by the State Bank at
the time of paying back for the violation as stipulated in Point b, Item 4 of
this Article;
d) Employing workers in the
labour employment way indicated in point c, Item 4 of this Article;
e) Compensating workers for
their losses by violations of regulations in Items 3 and 4 of this Article.
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1. A fine from VND1,000,000 to
VND3,000,000 for an employer who does not register a collective labour
agreement with the State administrative body in charge of labour as stipulated
in point d, Item 1, Article 47 of the amended and supplemented Labour Code.
2. A fine from VND5,000,000 to
VND8,000,000 shall be imposed on an employer committing one of the following
acts:
a) Refusing to conduct negotiations
for signing, amending or supplementing a collective labour agreement upon a
request from the other party as stipulated in Item 1, Article 46 of the amended
and supplemented Labour Code;
b) Conducting a collective
labour agreement which has been stated to be futile;
3. Remedial measures for damages
caused:
a) Registering a collective
labour agreement with the provincial State administrative body in charge of
labour in accordance with laws for the violations stipulated in Item 1 of this
Article;
b) Conducting negotiations to
sign, amend or supplement the collective labour agreement at the request of the
negotiations for the violations as stipulated in point a, Item 2 of this
Article.
Article 12.
Violations of the provisions on salary and bonus:
1. Serving a warning notice or a
fine from VND100,000 to VND500,000 for an employer committing one of the
following acts:
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b) Deducting salary of workers
without discussing with the enterprise or the temporary trade union (if any).
2. A fine from VND1,000,000 to
VND5,000,000 for an employer committing one of the following acts:
a) Not paying salary directly,
sufficiently, timely and at the site; paying salary late without compensation
as stipulated in Article 59 of the amended, supplemented Labour Code;
b) Not registering wage rates,
payrolls with the provincial State administrative authority in charge of
labour; not publicizing wage rates, payrolls, labour practice codes and reward
statutes at the enterprise.
3. A fine shall be imposed on an
employer committing one of the acts:
Deducting salary of a worker
without reasons; Deducting monthly salary of a worker at a higher rate than
that stipulated in Item 1, Article 60 of the amended, supplemented Labour Code;
Paying salary insufficiently for a worker in case of work stoppage not due to
the worker’s fault; Paying salary for a worker at lower rate than the minimum
one in case of work stoppage not due to the worker’s fault but due to electric
and water breakdowns or otherunavoidable factors as stipulated in Article 62 of
the amended, supplemented LabourCode; Not paying salary and allowance for a
worker in his/her duration of temporary job suspension as stipulated in Article
92 of the amended, supplemented Labour Code. The fine is applied at the
following rates:
a) From VND500,000 to
VND1,000,000 if the violation is made for between 01 and 10 workers;
b) From VND1,000,000 to
VND3,000,000 if the violation is made for between 11 and 50 workers;
c) From VND3,000,000 to
VND5,000,000 if the violation is made for between 51 and 100 workers;
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e) From VND7,000,000 to
VND10,000,000 if the violation is made for at least 500 workers;
4. A fine shall be imposed on an
employer committing one of the acts of violation: Paying employees less than
the fixed minimum wage; paying the minimum wage to professionally and technically
qualified employees, which is contrary to the stipulations in Article 55 and
Article 56 of the amended, supplemented Labour Code; not paying salary or
paying salary insufficiently for employees working in extra time, at the night
shift as stipulated by the labour laws; Penalization in the form of pay cut
shall be applied for that employer at the following rates:
a) From VND1,000,000 to
VND2,000,000 if the violation is made for between 01 and 10 workers;
b) From VND2,000,000 to
VND5,000,000 if the violation is made for between 11 and 50 workers;
c) From VND5,000,000 to
VND10,000,000 if the violation is made for between 51 and 100 workers;
d) From VND10,000,000 to
VND15,000,000 if the violation is made for between 101 and 500 workers;
e) From VND15,000,000 to
VND20,000,000 if the violation is made for at least 500
workers;
5. A fine from VND5,000,000 to
VND10,000,000 shall be imposed on an employer who does not set up wage rates,
payrolls, labour codes of practice, salary payment regulations and reward
statutes at the enterprise.
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a) Being forced to compensate
workers for losses caused by violations of the stipulations in Items 3 and 4 of
this Article;
b) Registering wage rates,
payrolls with the State administrative body in charge of labour; publicizing
wage rates, payrolls, labour codes of practice and reward statutes at the
enterprise for the violations as stipulated in point b, Item 2 of this Article;
c) Formulating wage rates,
payrolls, labour codes of practice and reward statutes at the enterprise in
accordance with laws applied for the violations as regulated in Item 5 of this
Article.
Article 13.
Violations of the provisions on work time, rest time:
1. A fine shall be imposed on an
employer committing one of the acts of violation of: standards of work time as
stipulated in Articles 68, 115, 122, 123 and 125 of the amended, supplemented
Labour Code; standards of between-shift and mid-shift rest time, weekly
days-off in contrast to the stipulations in Articles 71 and 72 of the amended,
supplemented Labour Code; standards of holidays stipulated in Article 73 of the
amended, supplemented Labour Code; standards of annual days-off regulated in
Articles 74, 75 and 76 of the amended, supplemented Labour Code; standards of
days- off due to personal affairs as stipulated in Article 78 of the amended,
supplemented Labour Code;
The fine is applied at the
following rates:
a) From VND1,000,000 to
VND2,000,000 if the violation is made for between 01 and 10 workers;
b) From VND2,000,000 to
VND5,000,000 if the violation is made for between 11 and 50 workers;
c) From VND5,000,000 to
VND10,000,000 if the violation is made for between 51 and 100 workers;
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e) From VND15,000,000 to
VND20,000,000 if the violation is made for at least 500 workers;
2. A fine shall be imposed on an
employer forcing his/her employees to work overtime hours more than those
stipulated in Article 69 of the amended, supplemented Labour Code at the
following rates:
a) From VND5,000,000 to
VND7,000,000 if the violation is made for between 01 and 50 workers;
b) From VND7,000,000 to
VND10,000,000 if the violation is made for between 50 and 100 workers;
c) From VND10,000,000 to
VND15,000,000 if the violation is made for between 100 and 500 workers;
e) From VND15,000,000 to
VND20,000,000 if the violation is made for at least 500 workers;
3. Remedial measures for damages
caused:
a) Arranging time off in compensation
for employees for the violations as stipulated in Item 1 of this Article;
b) Paying salary for overtime
hours in accordance with laws on overtime hours or work during the time off
(without compensation) for the violations as stipulated in Item 1 of this
Article;
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Article 14.
Violations of provisions on labour discipline and material responsibility
1. A fine from VND500,000 to
VND1,000,000 for an employer committing the act of not consulting the
enterprise or the temporary executive board of trade union (if any) in
implementing labour principles as stipulated in Item 2, Article 82 of the
amended, supplemented Labour Code.
2. A fine from VND1,000,000 to
VND5,000,000 shall be imposed on an employer committing one of the following
acts:
a) Not registering labour
principles with the provincial State administrative authority in charge of labour
as stipulated in Item 3, Article 82 of the amended, supplemented Labour Code;
b) Contents of labour principles
are contrary to the stipulations in Item 1, Article 83 of the amended,
supplemented Labour Code; labour principles are not publicized and posted at
the necessary places in the enterprise as stipulated in Item 2, Article 83 of
the amended, supplemented Labour Code;
c) Violating the time period for
job suspension applied to employees as stipulated in Item 2, Article 92 of the
amended, supplemented Labour Code.
3. A fine from VND5,000,000 to
VND10,000,000 shall be imposed on an employer committing one of the following
acts:
a) Not introducing labour
principles as stipulated in Item 1, Article 82 of the amended and supplemented
Labour Code;
b) Violating the stipulations on
the handling of labour disciplines stipulated in Article 87 of the amended,
supplemented Labour Code, and the stipulations on handling and compensating
the losses as stipulated in Article 91 of the amended, supplemented Labour Code;
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d) Not ensuring the rights of
workers according to laws after the competent body’s conclusion of wrong
discipline handling.
4. Remedial measures for damages
caused:
a) Being forced to compensate
workers for losses if the provisions in point c of Item 2, point d of Item 3
are violated, and to pay back the excess compensation amount as stipulated in
point c, Item 3 of this Article;
b) Registering labour principles
with the provincial State authority in charge of labour in accordance with laws
if the provisions in point a, Item 2 of this Article are violated;
c) Publicizing and posting the
labour principles in the enterprise for violation of the provisions in point b,
Item 2 of this Article;
d) Formulating labour principles
in accordance with laws for violation of the provisions in point a, Item 3 of
this Article.
Article 15.
Violations of the provisions on typical labour:
1. A fine from VND1,000,000 to
VND2,000,000 shall be imposed on organizations, individuals committing one of
the following acts:
a) Failing to provide a changing
room, a bathroom and a toilet for female employees as stipulated in Item 1,
Article 116 of the amended, supplemented Labour Code.
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c) Employing female workers in
their pregnancy of the 7th month plus or nursing under-12- month babies to work
overtime, in the night shift, for missions not stipulated in Item 1, Article
115 of the amended, supplemented Labour Code; and failing to move female
workers having to do hard jobs as stipulated in Item 2, Article 115 of the
amended, supplemented Labour Code to lighter jobs or to reduce work time by an
hour;
d) Not allowing female workers
to take a 30-minute rest per day during their menstruation or a 60-minute rest
in the time of nursing under-12-month babies as stipulated in Item 3, Article
115 of the amended, supplemented Labour Code;
f) Employing female, elderly or
disabled workers to do hard, dangerous jobs or be exposed to harmful substances
as stipulated in Article 113, Item 3 of Article 124 and Item 3 of Article 127
of the amended, supplemented Labour Code and the accompanied documents;
g) Failing to establish books
for monitoring, periodic health checking; abusing the strength of young workers
as stipulated in Article 119 of the amended, supplemented Labour Code;
h) Employing young and disabled
workers to work for more than 7 hours per day or 42 hours per week in contrast
to the stipulations in Item 1, Article 122 and Item 4, Article 125 of the
amended, supplemented Labour Code;
i) Employing disabled workers
whose labour strength has been degraded by 51% and above to work for extra
hours, in the night shift in contrast to the stipulations in Item 2, Article
127 of the amended, supplemented Labour Code.
2. A fine from VND5,000,000 to
VND10,000,000 shall be imposed on an employer committing one of the following
acts:
a) Dismissing or unilaterally
terminating an employment contract with female employees for the reasons of
their marriage, pregnancy, maternity leave, or nursing a child under 12 months
in contrast to the stipulations in Item 3, Article 111 of the amended,
supplemented Labour Code;
b) Employing young workers to do
hard, dangerous jobs or be exposed to hazardous substances or the workplace and
jobs for young workers might adversely affect their working dignity as
stipulated in the list jointly introduced by the Ministry of Labour, Invalids
and Social Affairs and Ministry of Health in Article 121 of the amended,
supplemented Labour Code;
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3, Article 125 of the amended,
supplemented Labour Code and the accompanied documents.
Article 16.
Violations of the provisions on foreigners working in Vietnam
1. A fine from VND5,000,000 to
VND10,000,000 shall be imposed if one of the following acts occurs:
a) Foreigners have acts of beating,
outraging the honour, dignity of workers without giving rise to criminal
liability as regulated by laws;
b) Employers recruiting
foreigners as workers without labour licence.
2. A fine from VND15,000,000 to
VND20,000,000 shall be imposed on an employer who commits the act of recruiting
foreign workers who make up a proportion more than the stipulated; does not
have any plan on providing training to Vietnamese workers to substitute foreign
workers as stipulated in Item 1, Article 132 of the amended, supplemented
Labour Code.
3. A penalization of expelling
foreign workers shall be applied to those who commit one of the following acts:
a) Foreigners working in Vietnam
at least three months without labour licence or using expired licence as
stipulated in Item 1, Article 133 of the amended, supplemented Labour Code;
b) Acts of violation as
stipulated in point a, Item 1 of this Article for the second time; The
expelling shall be done in accordance with competency and procedure stipulated
by laws.
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An employer shall employ foreign
workers with appropriate rates in comparison to domestic ones; develop plan on
training Vietnamese workers to substitute foreign workers for the acts
stipulated in Item 2 of this Article.
Article 17.
Violations of the provisions on sending workers abroad
1. Serving a warning notice or a
fine from VND200,000 to VND500,000 for enterprises committing one of the
following acts:
a) Failing to report or report
inadequately profiles of the enterprise's affiliates which are assigned to
export labour;
b) Failing to register contracts
of labour export; register an inadequate number of contracted workers; or
register a contract of labour export after sending workers abroad;
c) Failing to comply with the regulations
on nominating an officer to be the representative of workers abroad;
d) Failing to make periodic and
unscheduled reports adequately and timely as stipulated.
e) Failing to liquidate labour
contracts.
2. A fine from VND5,000,000 to
VND10,000,000 shall be imposed on enterprises committing one of the acts
violating one of the provisions in points c, d, e and h, Item 2, Article 135 of
the amended, supplemented Labour Code.
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a) Violation of one of the
provisions in points a, d, e, g, i, Item 2, Article 135 of the amended,
supplemented Labour Code;
b) Inappropriate management of
deposits of workers.
4. A fine from VND15,000,000 to
VND20,000,000 shall be imposed on organizations, individuals who commit one of
the following acts:
a) Recruiting, sending workers
abroad to work without licence from the competent body;
b) Taking advantage of labour
export to select, train and educate for illegal profit;
c) Sending workers abroad to do
jobs, occupations and in the fields that are prohibited.
5. Supplementary forms of
penalization: applying the provisions in points a, b, Item 1 Article 11 and
Item 2, Article 35 of Decree No 81/2003/ND-CP dated 17 July 2003 by the
Government stipulating in details and guiding the implementation of the Labour
Code on Vietnamese workers working abroad.
6. Remedial measures for damages
caused:
a) Organizations, individuals
violating points a and c, Item 4 of this Article have to bring the workers back
to Vietnam at the request of the local country or the Vietnam’s competent body;
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Article 18.
Violations of the provisions on social insurance
1. A fine shall be imposed on an
employer who pays social insurance insufficiently for the workers at the
following rates:
a) From VND500,000 to VND1,000,000
million if the violation is made for between 01 and 10 workers;
b) From VND1,000,000 to
VND3,000,000 if the violation is made for between 11 and 50 workers;
c) From VND3,000,000 to
VND5,000,000 if the violation is made for between 51 and 100 workers;
d) From VND5,000,000 to
VND10,000,000 if the violation is made for between 101 and 500 workers;
e) From VND10,000,000 to
VND15,000,000 if the violation is made for at least 500 workers;
2. A fine shall be imposed on an
employer who commits acts of not paying social insurance or not including
social insurance in a worker’s salary in case the worker is not a subject of
the compulsory social insurance scheme. The fine is applied at the following
rates:
a) From VND3,000,000 to
VND5,000,000 if the violation is made for between 01 and 10 workers;
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c) From VND7,000,000 to
VND10,000,000 if the violation is made for between 51 and 100 workers;
d) From VND10,000,000 to VND15,000,000
if the violation is made for between 101 and 500 workers;
e) From VND15,000,000 to
VND20,000,000 if the violation is made for at least 500 workers;
3. A fine from VND500,000 to
VND1,000,000 shall be imposed on an employer committing the act of granting
wrong certificates to workers who are sick or enjoying treatment for
occupational accidents and diseases.
4. A fine from VND2,000,000 to
VND5,000,000 shall be imposed on one of the following acts:
a) Using fraudulent and
deceptive documents to pocket the insurance premiums.
b) An employer, social insurance
agency or individual intentionally obstructs or raises difficulties for the
beneficiaries to enjoy the insurance premiums.
5. A fine from VND5,000,000 to
VND10,000,000 shall be imposed on one of the following acts:
a) Granting wrong certificates
of assessment or injury classification to workers suffering from occupational
accidents and diseases;
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6. Supplementary forms of
penalization: being proposed to the competent body to revoke the operation
licence for the third violation of the provisions in Items 1 and 2 of this
Article.
7. Remedial measures for damages
caused:
a) Paying the amount of social
insurance as stipulated and compensate workers for their damages if the
violation of Items 1 and 2 of this Article is made;
b) Reimbursing enjoyed benefits
back to social insurance agencies if violation of point a, Item 4 of this
Article occurs.
c) Being proposed to the
competent persons as stipulated Item 2, Article 26 of this Decree to besiege
the account until the employer pays social insurance premiums in full not later
than 30 days if violations of Item 1 and 2 of this Article occur. Beyond this
duration, the competent person asks the bank at which an employer, who does not
pay sufficiently social insurance premiums, to open his/her account to deduct
the debt of social insurance premiums from his/her account to the account of
the social insurance agency.
Article 19.
Violations of provisions on labour disputes and strikes
1. Serving a warning notice or a
fine from VND200,000 to VND500,000 for employees committing the following acts:
a) Going on strike after the
decision of the Prime Minister on the temporary postponement or suspension of a
strike as stipulated in Article 175, or deliberately going on strike as
stipulated in points a and b, Item 1, Article 176 of the amended, supplemented
Labour Code;
b) Committing an act causing
damage to machinery, equipment, property of the enterprise or an act in breach
of public order and security during a strike.
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3. A fine from VND15,000,000 to VND20,000,000
shall be imposed on a person who has an act of repressing or taking revenge on
the person who took part in or had a leading role in a strike, which is
contrary to the stipulations in Item 1, Article 178 of the amended,
supplemented Labour Code;
4. Remedial measures for damages
caused: forcing a person who commits the act of violation of the stipulations
in point b, Item 1 of this Article to compensate for material damages to
machinery, equipment, property.
Article 20.
Violations of the provisions on organizations of trade unions:
1. A fine from VND1,000,000 to
VND3,000,000 shall be imposed on an employer who commits one of the following
acts:
a) Failing to ensure necessary
working equipment for the trade union; failing to provide time for trade union
officers to take action as regulated in Item 2, Article 154 and Items 1,2 and 3
of the amended, supplemented Labour Code.
b) Discriminating against
workers who establish, join and take action in trade union; applying economic
measures or other tricks to interfere in the organization and operation of the
trade union as stipulated in Item 3, Article 154 of the amended, supplemented
Labour Code.
c) Dismissing or unilaterally
terminating the labour contract with members of the enterprise’s trade union executive
board without an agreement of the executive board, the chairperson of the
executive board of the enterprise’s trade union, or the higher level trade
union as stipulated in Item 4, Article 155 of the amended, supplemented Labour
Code.
2. A fine from VND5,000,000 to
VND10,000,000 shall be imposed on an employer who commits an act of obstructing
the establishment or operation of the trade union at the enterprise.
3. Remedial measures for damages
caused:
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b) Re-employing the employees
dismissed if violation of the stipulations in point c, Item 1 of this Article
is made.
Article 21.
Violations of other provisions
1. A fine from VND500,000 to
VND1,000,000 shall be imposed on an employer who commits one of the following
acts:
a) Failing to notify employment
and failing to report changes in labour; failing to report the stop of
employment in case the enterprise stops its operations as stipulated in Article
182 of the amended, supplemented Labour Code;
b) Failing to set up labour
books, salary books, social insurance books as stipulated in Article 182 of the
amended, supplemented Labour Code;
c) Failing to give back labour
books, social insurance books to employees.
2. A fine from VND5,000,000 to
VND10,000,000 shall be imposed on a person who commits the act of offending
honour and dignity of employees.
3. Remedial measures for damages
caused:
a) Notifying the employment;
reporting the changes in labour; reporting the stop of employment in case the
enterprise stops its operation in contrast to the stipulations in point a, Item
1 of this Article;
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c) Give back the labour books,
social insurance books to the employee for the violations indicated in point c,
Item 1 of this Article.
Section 2
VIOLATION OF THE PROVISIONS ON OCCUPATIONAL SAFETY, OCCUPATIONAL HEALTH
Article 22.
Violations of the provisions on equipment of occupational safety and health for
employees
1. Serving a warning notice or a
fine from VND100,000 to VND500,000 for employees commits one of the following
acts:
a) Failing to observe the
provisions on occupational safety and health stipulated in Item 1, article 95
of the amended, supplemented Labour Code;
b) Failing to use personal
protective equipment provided by the employer.
2. A fine from VND1,000,000 to
VND5,000,000 shall be imposed on an employer who fails to provide adequately
personal protective equipment to employees as stipulated in Item 1, Article 95
of the amended, supplemented Labour Code.
3. A fine from VND5,000,000 to
VND10,000,000 shall be imposed on an employer who commits one of the following
acts:
a) Failing to provide guards for
dangerous parts of machine, equipment; failing to provide signboards with
instructions on occupational safety in working places, machine and equipment
sites and in places holding dangerous and harmful elements as stipulated in
Article 98 of the amended, supplemented Labour Code;
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4. Remedial measures for damages
caused: forcing the employer to provide employees with technical, health and
labour protection equipment as stipulated if violation of the provisions in
Items 2 and 3 of this Article occurs.
Article 23.
Violations of the provisions on ensuring safety and health for workers
1. A fine shall be imposed on an
employer who commits one of the acts: failing to provide compensation in kind
to workers engaged in jobs with dangerous and hazardous elements as stipulated
in Article 104 of the amended, supplemented Labour Code; failing to provide
health treatment or periodic checks and to establish health profiles for
workers suffering from occupational diseases at the following rates:
a) From VND500,000 to
VND1,000,000 if the violation is made for between 01 and 10 workers;
b) From VND1,000,000 to
VND3,000,000 if the violation is made for between 11 and 50 workers;
c) From VND3,000,000 to
VND5,000,000 if the violation is made for between 51 and 100 workers;
d) From VND5,000,000 to
VND7,000,000 if the violation is made for between 101 and 500 workers;
e) From VND7,000,000 to
VND10,000,000 if the violation is made for at least 500 workers;
2. A fine from VND5,000,000 to
VND10,000,000 shall be imposed on an employer who commits one of the following
acts:
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b) Not providing periodic health
checks, care for health of workers as stipulated in Article 102 and Article 103
of the amended, supplemented Labour Code;
c) Not complying with
regulations on work time, rest time, measures for counterpoisoning,
sterilization, personal hygiene for workers engaged in jobs with dangerous and
hazardous elements as stipulated in Article 104 of the amended, supplemented
Labour Code.
3. Remedial measures for damages
caused:
a) Having to provide training
and guidance on safety measures, possibilities of occupational accidents;
provide periodic health checks, treatment; establish health profiles for
workers if violation of the provisions in Item 1 and points a and b of Item 2
of this Article occurs;
b) Having to refund allowance
back to workers if violation of Item 1 of this Article occurs.
Article 24.
Violations of the provisions on occupational safety and health standards
1. A fine from VND5,000,000 to
VND10,000,000 shall be imposed on an employer who commits one of the following
acts:
a) Not periodically checking,
repairing machine, equipment, workshops and stores as
stipulated in Item 1, Article 98
of the amended, supplemented Labour Code;
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c) Not registering to use
machine, equipment, materials and substances with strict OSH requirements as
stipulated in Item 2, Article 96 of the amended, supplemented Labour Code and
guiding documents;
d) Not ensuring standards on
workplaces as stipulated in Article 97 of the amended, supplemented Labour
Code.
2. A fine from VND15,000,000 to
VND20,000,000 shall be imposed on an employer who commits one of the following
acts:
a) There are no factual
foundations for measures of occupational safety in construction and upgrading
of undertakings to produce, use, maintain, keep and store machine, equipment,
materials and substances with strict OSH requirements as the list issued by the
Ministry of Labour, Invalids and Social Affairs and the Ministry of Health
indicated in Item 1, Article 96 of the amended, supplemented Labour Code;
b) Not conducting verification
of machines, equipment, materials and substances with strict OSH requirements
as stipulated in Item 2, Article 96 of the amended, supplemented Labour Code;
c) Not taking remedial measures
or not stopping operation of workplaces, machine, equipment exposed to risks of
occupational accidents and diseases as stipulated in Item 1, Article 99 of the
amended, supplemented Labour Code.
3. Remedial measures for damages
caused:
a) Being forced to take measures
for occupational safety and health; comply with safety practice codes,
standards if violation of the provision in points b and d of Item 1, point a of
Item 2 of this Article occurs;
b) Being forced to repair
machine, equipment which do not meet standards on occupational safety as
stipulated by the list issued by the Ministry of Labour, Invalids and Social
Affairs;
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Article 25.
Violations of the provisions on occupational accidents and diseases
1. A fine from VND1,000,000 to
VND5,000,000 shall be imposed on an employer who commits one of the following
acts:
a) Failing to comply with the
stipulations on settling, arranging work appropriate to the health of workers
suffering from occupational diseases or accidents in accordance with
conclusions by the Medical Assessment Council as stipulated in Item 1, Article
107 of the amended, supplemented Labour Code;
b) Failing to pay medical costs
for the periods of first aid service, emergency service and medical treatment
completion in favour of worker suffering from occupational accidents and
diseases as stipulated in Item 2, article 107 of the amended, supplemented
Labour Code;
c) Failing to pay allowance and
compensation for workers suffering from occupational accidents and diseases in
the cases stipulated in Items 2 and 3, Article 107 of the amended, supplemented
Labour Code.
2. A fine from VND5,000,000 to
VND10,000,000 shall be imposed on an employer who commits the act of not
notifying or wrongly notifying the fact of occupational accidents and diseases;
failing to make periodic statistics on occupational accidents and diseases as
stipulated in Article 108 of the amended, supplemented Labour Code.
3. Remedial measures for damages
caused: being forced to compensate workers for their damages from violation of
the provisions in points b and c, Item 1 of this Article.
Chapter III
POWERS, PROCEDURES OF
PENALIZATION, EXECUTION OF DECISION ON ADMINISTRATIVE PENALIZATION OF ACTS OF
LABOUR LAWS
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1. Chairpersons of People’s
Committees in districts, towns, cities under provinces have the right to:
a) Serve a warning notice.
b) Fine up to VND20,000,000.
c) Apply supplementary forms of
penalization as stipulated in Item 2, Article 5 of this Decree.
d) Apply remedial measures for
damages caused as stipulated in points a, b, c, d, e, g and h, Item 3, Article
5 of this Article.
2. Chairpersons of People’s
Committee in provinces and cities at the central level have the right to:
a) Serve a warning notice.
b) Fine up to VND20,000,000.
c) Apply supplementary forms of
penalization as stipulated in Item 2, Article 5 of this Decree.
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Article 27.
Powers of penalization of the State Inspectorate for Labour
1. Labour inspectors on their
mission have the right to:
a) Serve a warning notice.
b) Fine up to VND200,000.
c) Seize evidence, equipment
used for administrative violation worth up to VND2 million;
d) Apply remedial measures for
damages caused as stipulated in points a, b, c, d, e, g and h, Item 3, Article
5 of this Decree.
2. Chief Labour Inspector at the
Department has the right to:
a) Serve a warning notice.
b) Fine up to VND20,000,000.
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d) Apply remedial measures for
damages caused as stipulated in points a, b, c, d, e, g and h, Item 3, Article
5 of this Decree.
3. Chief Labour Inspector at the
ministerial level has the right to:
a) Serve a warning notice.
b) Fine up to VND20,000,000.
c) Apply supplementary forms of
penalization as stipulated in Item 2, Article 5 of this Decree.
d) Apply remedial measures for
damages caused as stipulated in points a, b, c, d, e, g and h, Item 3, Article
5 of this Decree.
Article 28.
Powers of penalization in the field of occupational safety and health in the
branches of Police, Defense, Science and Technology, Industry and Transport
Persons who are competent in inspection
over occupational safety and health in the fields stipulated in Item 3, Article
191 of the amended, supplemented Labour Code during the inspection have the
right to impose administrative penalization on labour law violations equivalent
to the powers of penalization of labour inspectors stipulated in this Decree.
The inspection over occupational
safety and health in the fields of radiation, oil and gas exploration,
transport means of railway, waterway, land and airway and in the armed force
units is conducted by administrative bodies in those fields in collaboration
with the State Inspectorate for Labour.
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1. For the acts of
administrative violations of labour laws within the competence of a various
number of State agencies, the penalization shall be conducted by the one
handling the case first as stipulated in this Decree.
2. The powers of penalization of
the persons mentioned in Articles 26, 27 and 28 are applied to one act of
administrative violation.
In case fining is made, the
powers of penalization are determined based on the maximum rate of the
corresponding fine range to each specific act of violation.
3. In case a person is penalized
for committing more than one acts of administrative violation, the powers of
penalization are determined based on the principles as follows:
a) If forms, rates of
penalization stipulated for each act are within the competence of the
penalizing person, the powers of penalization still hold for that person.
b) If forms, rates of
penalization stipulated for each act are beyond the competence of the
penalizing person, that person has to transfer that case to the competent level
for penalization;
c) If an act involves the powers
of penalization of various persons belonging to various agencies, the powers of
penalization shall be held by the Chairperson of People’s Committee at the
competent level administering the site of violation.
Article 30.
Authorization of penalization of administrative violations
In case competent persons in
administrative violations as stipulated in Articles 26, 27 and 28 of this
Decree are absent, the lower level person who is authorized shall be competent
in solving administrative violations and responsible for his/her decision.
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The procedures in dealing with
administrative violations in the field of labour and the execution of the penalization
decision shall comply with the provisions stipulated in Articles 54 to 68
Chapter VI of the Ordinance on the Handling of Administrative Violations of
2nd July, 2002.
Article 32.
Publicity of situation of labour law violation and result settlement
The chief labour inspector is
responsible for publicizing situation of labour law violations by enterprises
and the penalization of violation acts as regulated by laws via the mass media.
Chapter IV
REWARD, COMPLAINTS,
DENUNCIATIONS AND HANDLING OF COMPLAINTS AND DENUNCIATIONS
Article 33.
Complaints, denunciations against decisions on penalization of administrative
violation and handling of complaints and denunciations
1. Individuals, organizations penalized
for their administrative violation or their legitimate representatives have the
right to complain about the decision on penalization of administrative
violation, decision on application of preventive measures and to ensure the
handling of administrative violation.
2. Citizens have the right to
denounce to the State competent bodies about illegal acts in handling
administrative penalization of labour law violations.
3. Powers, procedures, steps and
duration of complaints, denunciations and handling of complaints and
denunciations shall comply with laws on complaints and denunciations.
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1. Individuals, organizations
having good performance in fighting, preventing administrative violations of
labour laws shall be rewarded in accordance with general regulations on
emulation and reward.
The use of money from
penalization of administrative violations or from evidences and equipment
seized for reward shall be banned.
2. Enterprises, individuals
employing workers, if seriously complying with labour laws and ensuring
industrial relations to develop healthily, shall be rewarded in accordance with
general regulations on emulation and reward.
Article 35.
Handling of violations
1. Competent persons responsible
for penalization of administrative violation of labour laws, if having acts of
exacting, winking, shielding, not penalizing or penalizing late or beyond their
competence, shall be disciplined or prosecuted depending on the nature and
seriousness of violations; and shall compensate for damages caused, if any, in
accordance with laws.
2. Persons facing penalization
for their administrative violation of labour laws, if committing acts of
obstructing, fighting against the competent persons, delaying, evading the
compliance with the decision on penalization or committing other acts of
violation, shall face administrative penalization or criminal prosecution
depending on the nature and seriousness of the violation; or compensate for
damages caused in accordance with laws.
Chapter V
IMPLEMENTATION PROVISIONS
Article 36.
Implementation effectiveness
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2. This Decree replaces Decree
No 38/CP dated 25 June 1996 by the Government on administrative penalization of
labour law violations.
3. Other regulations on
penalization of administrative violations of labour laws which are contrary to
this Decree shall be repealed.
Article 37.
Responsibility for implementation guidance
The Minister of Labour, Invalids
and Social Affairs is responsible for guidance and supervision of the
implementation of this Decree.
Ministers, heads of ministerial
agencies, heads of governmental agencies, chairpersons of this Decree.
ON
BEHALF OF THE GOVERNMENT
PRIME MINISTER
Phan Van Khai