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THE MINISTRY OF
LABOR, WAR INVALIDS AND SOCIAL AFFAIRS
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SOCIALIST REPUBLIC
OF VIETNAM
Independence - Freedom - Happiness
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No.
47/2015/TT-BLDTBXH
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Hanoi, November
16, 2015
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CIRCULAR
ON
GUIDELINES FOR LABOR CONTRACTS, LABOR DISCIPLINE AND MATERIAL RESPONSIBILITY PRESCRIBED
IN DECREE NO. 05/2015/ND-CP DATED JANUARY 12, 2015 OF THE GOVERNMENT PROVIDING
GUIDANCE ON THE LABOR CODE
Pursuant to the Government's Decree No.
106/2012/ND-CP dated December 20, 2012, defining the functions, tasks, powers
and organizational structure of the Ministry of Labor, War Invalids and Social
Affairs;
Pursuant to the Government's Decree No.
05/2015/ND-CP dated January 12, 2015 providing guidance on the Labor Code;
At the request of Director of the Department of
Labor and Wage;
The Minister of Labor, War Invalids and Social
Affairs promulgates a Circular on guidelines for labor contracts, labor
discipline and material responsibility prescribed in Decree No. 05/2015/ND-CP
dated January 12, 2015 of the Government providing guidance on the Labor Code.
Chapter I
GENERAL PROVISIONS
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This Circular provides guidelines for labor
contracts, labor discipline and material responsibility prescribed in Decree
No. 05/2015/ND-CP dated January 12, 2015 of the Government providing guidance
on the Labor Code (hereinafter referred to as the Decree No. 05/2015/ND-CP).
Article 2. Regulated entities
Employees, employers, trade unions, other relevant
agencies, organizations, and individuals prescribed in Article 2 of the Decree
No. 05/2015/ND-THE GOVERNMENT.
Chapter II
LABOR CONTRACTS
Article 3. Authorization to
conclude labor contracts
1. When a person prescribed in Points a, b and c
Clause 1 Article 3 of the Decree No. 05/2015/ND-CP does not directly conclude a
labor contract, he/she shall authorize another person in writing to conclude
the labor contract using the form No. 1 in the Appendix issued herewith.
2. When a group of employees authorizes an employee
to conclude their labor contracts prescribed in Point d Clause 2 Article 3 of
the Decree No. 05/2015/ND-CP, they must make a written authorization. A written
authorization to conclude labor contract(s) must contain:
a) Full name, date of birth, gender, permanent residence,
occupation, signature of the authorized employee;
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c) Content of authorization, term of authorization.
Article 4. Salaries and other
benefits in labor contracts
Salary, allowances and other extra payments
determined in the labor contract prescribed in Point a Clause 5 Article 4 of
the Decree No. 05/2015/ND-CP include:
1. The time-based salary or position-based salary
shall be the salary rate in salary scale and salary table defined by the
employer under law on labor. Employees paid product-based salary or piecework
salary, the time-based salary rates shall be used to determine the product unit
price or the piecework salary.
2. Allowances, specifying contractual allowances,
in particular:
a) The allowances that are amounts offset against
the working conditions, the complexity of jobs, the living conditions, and the
employee attraction level which is not included or incompletely included in the
contractual salary.
b) The allowances concerning the working progress
and output of the employee.
3. Other extra payments, specifying other
contractual extra payments, in particular:
a) Measured extra payments and the contractual
salary mentioned in the labor contract that are be paid regularly in each
period of salary payment.
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The following benefits shall be specified in a
separate item in the labor contract prescribed in Clause 11 Article 4 of the
Decree No. 05/2015/ND-CP: bonuses prescribed in Article 103 of the Labor Code,
initiative bonuses; food expenses between shifts; subsidies on petrol,
telephone, transportation, housing, child care, raising children; allowances
for employees having dead relative(s), employees having relatives married
relatives, employees’ birthday, benefits for employees facing difficulties due
to their labor accidents and occupational diseases and other allowances and
benefits.
Article 5. Labor contracts
concluded with elderly employees
1. Elderly employee is a person who continues to
work after the age defined in Article 187 of this Code.
2. The elderly employee and the employer shall
agree to amend the labor contract in accordance with legislation on labor
applicable to elderly employees.
3. The labor contract concluded with the elderly
employee must conform to regulations in Clauses 2 and 3 of Article 166 and
Clauses 2, 3 and 4 Article 167 of the Labor Code.
Article 6. Agreement on
temporary suspension of labor contracts when employees are appointed or
assigned as representative of the State contributed capital
When an employee is appointed or assigned as
representative of the State contributed capital, his/her labor contract shall
be suspended temporarily as follows:
1. The temporary suspension of the labor contract
shall be made in an agreement which at least contains:
a) Name and address of the employer and its legal
representative;
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c) Details of the suspended labor contract: number;
date of conclusion;
d) Period of suspension: the start time and the end
time of the suspension period;
dd) Reasons for the suspension;
e) Rights and obligations of the parties in and
after the period of suspension.
2. If the employee is still appointed or assigned
as representative of the State contributed capital, upon expiry of period of
suspension, the employee shall request the employer to give another suspension
of the labor contract. The second written suspension of the labor contract
shall have the same contents with the first written suspension of the labor
contract.
Article 7. Notification of
changes of structure, technology and economic reasons sent to labor authorities
1. If an employer dismisses 2 employees or more as
prescribed in Clause 3 Article 13 of the Decree No. 05/2015/ND-CP, it must
notify them in writing within 30 days before a notification of dismissal is
sent to a labor authority.
2. The notification of dismissal prescribed in
Clause 1 of this Article must contain the following information:
a) Name and address of the employer and its legal
representative;
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c) Reasons for layoffs; time of layoffs;
d) Expected budget for redundancy pay.
3. The labor authority of province shall receive,
monitor, and inspect the layoffs imposed on multiple employees.
Article 8. Severance pay and
redundancy pay
1. The salary as the basis for determination of
severance pay or redundancy pay is the average salary specified in the labor
contract prescribed in Clause 1 Point a Clause 2 and Point a Clause 3 Article 4
of this Circular of the 6 continuous months before the employee is laid off or
2. With respect to each employee concluding
multiple continuous labor contracts prescribed in Clause 2 Article 22 of the
Labor Code, his/her total working time under such labor contracts shall be
considered to determine the severance pay or redundancy pay, upon the
termination time of the last labor contract. If the last labor contract is
terminated because the employee unilaterally and unlawfully terminates labor
contract or the employee is be disciplined in the form of dismissal, the
working time of the last labor contract shall not be included in the total
working time as the basis for determination of severance pay. The salary as the
basis for determination of severance pay or redundancy pay is the average
salary determined as prescribed in Clause 1 of this Article before the
termination time of the last labor contract.
Example 1: Ms. A works for Company B under 3
continuous labor contracts; the first labor contract is a 12-month contract
which is executed from January 1, 2014 to December 31, 2004 (1 year); the
second labor contract is a 36-month contract which is executed from January 1,
2005 to December 31, 2007 (3 years); the third labor contract is an
indefinite-term contract which is executed from January 1, 2008 to December 31,
2015 (8 years), then Ms. A terminates the third labor contract unilaterally and
unlawfully. Ms. A's employer pays unemployment insurance for her continuously
from January 1, 2009 to December 31, 2015 (7 years). The average monthly salary
determined as prescribed in Clause 1 of this Article before her termination
time of the third labor contract is VND 4.5 million.
Because Ms. A terminates the third labor contract
unilaterally and unlawfully, her working time under the third labor contract (8
years) shall not be included in the working time as the basis for determination
of severance pay. Ms. A’s severance pay shall be calculated as follows:
- Her working time in the first and the second
labor contract as the basis for severance pay is: 1 + 3 = 4 years (from January
1, 2004 to December 31, 2007);
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3. If wholly state-owned enterprises or enterprises
equitized from the state-owned enterprises terminate the labor contract that
the employees have the time to work in agencies, organizations, units and
business in the state sector and transfer to another work at the enterprise
before January 01, 1995 but have not received a severance pay or redundancy
pay, the employer shall pay the severance allowance or redundancy pay for the
time when the employee has worked for him/ her and pay severance allowance for
the time when the employee has worked for previous agencies, organizations,
units and enterprises in the state sector as prescribed in Clause 3 Article 38
of the Decree No. 05/2015/ND-CP.
The working time at agencies, organizations, units
and enterprises in the state sector before January 1, 1995 includes: actual
working time in State administrative agencies, public service providers,
political organizations, socio-political organizations, the armed forces whose
salaries/wages funded by government budget and other state-owned enterprises.
4. If an employee has worked for 12 months or
longer, then he/she is laid off, but his/her working time as the basis for
determination of redundancy pay is under 18 months, his/her redundancy pay is
at least 2-month salary.
Example 2: Mr. C worked for Company D from
September 1, 2007 to December 31. Then, due to changes of company's production
technology, the company has no more work available for him. Accordingly,
Company D terminates his labor contract. Mr. C's employer pays unemployment
insurance for him continuously from January 1, 2009 to December 31, 2015 (7
years). His average monthly salary prescribed in Clause 1 of this Article
before he loses his job is VND 4.5 million. Mr. C’s redundancy pay shall be
calculated as follows:
- The working time as the basis for determination
of redundancy pay is: 8 years 4 months – 7 years = 1 year 4 months (16 months).
- His redundancy pay paid by Company D is at least
2-month salary: (VND 4.5 million x 2 = VND 9 million).
5. When an enterprise or a cooperative is acquired,
consolidated or divided, if an employee terminates his/her labor contract
concluded with the transferor enterprise/cooperative, the transferee
enterprise/cooperative must pay severance pay or redundancy pay to the employee
for his/her working time in both enterprise/cooperative.
Example 3: Mr. Nguyen Thanh H worked for Company P
from June 1, 2002. In 2006, Company P and Company Q are consolidated into
Company PQ which operates officially from October 1, 2006; Mr. H keeps working
at Company PQ until December 31, 2015 before he is laid off due to the changes
of organizational structure of the Company PQ. Mr. H's employer pays
unemployment insurance for him continuously from January 1, 2009 to December
31, 2015 (7 years). His average monthly salary prescribed in Clause 1 of this
Article before he loses his job is VND 5.4 million per month. Mr. H’s
redundancy pay shall be calculated as follows:
- His actual working time at Company P is 4 years 4
months; his actual working time at Company PQ is 9 years 3 months. Total actual
working time is 13 years 7 months;
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- Severance pay paid to Mr. H by Company PQ is: 7
(years) x VND 5.4 million per month = VND 37.8 million.
Article 9. Responsibilities of
transferee employees upon the transfer of ownership or rights to use of
enterprise’s assets
1. Each employee kept being employed, employee kept
being employed after retraining, and employee working under a part-time job at
the transferee enterprise shall have his/her labor contract amended or have a
new labor contract concluded.
2. The severance pay prescribed in Article 48 or
redundancy pay prescribed in Article 49 of the Labor Code shall be paid for the
total actual working time
Example 4: Mr. Dao Xuan K worked for the People’s
Committee of district T (State administrative agencies) from September 1, 1990
to November 1, 1993. Then, he moves to Company S (state-owned enterprise). On
September 1, 2007, Company S is equitizated into Joint-stock company S’, Mr. K
keep working at Joint-stock company S’ until December 1, 2015 before he
terminate his labor contract lawfully. Mr. K’s employer pays unemployment
insurance for him continuously from January 1, 2009 to December 1, 2015. His
average monthly salary prescribed in Clause 1 of this Article before he is laid
off at Joint-stock company S’ is VND 5.5 million per month. Ms. K’s severance
pay shall be calculated as follows:
- His actual working time in the State sector
before January 1, 1995 is 3 years 2 months;
- His actual working time at Company S (before
equitization) is 13 years 10 months;
- His actual working time at Joint stock company S’
is 08 years 03 months;
- His participation time of unemployment insurance
is 6 years 11 months;
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Severance pay paid to Mr. K by Joint stock S’ is:
18.5 (years) x VND 5.5 million x ½ = VND 50,875 million.
Chapter III
LABOR DISCIPLINE AND MATERIAL LIABILITY
Article 10. Registration of
labor regulations and the effect of labor regulations
1. The document certifying the receipt of the
registration dossier of labor regulations issued by a labor authority of
province prescribed in Clause 2 Article 28 of the Decree No. 05/2015/ND-CP must
contain at least the following information:
a) Name of the labor authority of province;
b) Full name and position of the person receiving
the registration dossier of labor regulations;
c) Name and address of the enterprise, agency,
organize, cooperative, household or individual registering labor regulations;
the household or individual is also required to specify the full name and ID
number of the householder or individual;
d) Hour and date of receipt of adequate
registration dossier of labor regulations;
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2. The labor authority of province must make a
register of labor regulations using the form No. 2 of Appendix issued herewith.
3. The document notifying labor regulations
contrary to regulations of law issued by the labor authority of each province
prescribed in Clause 3 Article 28 of the Decree No. 05/2015/ND-CP must contain
at least the following information:
a) Name of the labor authority of province;
b) Name and address of the enterprise, agency,
organize, cooperative, household or individual registering labor regulations;
the household or individual is also required to specify the full name and ID
number of the householder or individual;
c) Contents of labor regulations contrary to
regulations of law required necessary amendments and supplements (specific
contents prescribed in particular Point, Clause, Article and legislative
document and amended contents);
d) Signature, full name and position of the
competent person of the labor authority of province.
4. The employer hiring less than 10 employees shall
not be required to register the labor regulations; if the employee issues labor
regulations in writing, its effect shall be specified in such written labor
regulations; if the written labor regulations are not issued, the employer and
the employee shall agree the contents of labor discipline and material
responsibility that are included in the labor contract.
Article 11. Actions against
breaches of labor discipline imposed on the employees raising children under 12
months of age
Each employer may not handle violations against
labor discipline committed by an employee raising children under 12 months of
age prescribed in Article 29 of the Decree No. 05/2015/ND-CP in any of the
following cases:
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2. Raising an adopted child as prescribed in law on
marriage and families;
3. Raising a surrogacy child under 12 months of age
by a surrogate mother as prescribed in law on marriage and families.
Article 12. Organizing
meetings about handling of violations against labor discipline
1. The meeting about handling of violations against
labor discipline shall be organized as prescribed in Clause 2 Article 30 of the
Decree No. 05/2015/ND-CP in the presence of sufficient participants notified
under the provisions of clause 1 of Article 30 of the Decree No. 05/2015/ND-CP.
2. In case the employer has sent written
notification of participation in the meeting of handling of violations against labor
discipline, but one of the participants is absent, the employer shall send
another written notification to such person.
3. If the employer has noticed in writing 03 times,
but one of the participants is absent (excluding the case that the meeting is
postponed or cancelled or the meeting’s place is changed, the employer shall
conduct the meeting unless the employee is in time that labor disciplinary
measures may not applied as specified in clause 4 of Article 123 of the Labor
Code.
4. If the person in charge of concluding contract
of the employer authorizes another person to conclude the labor contract in
writing lawfully as prescribed in Clause 1 Article 3 of the Decree No.
05/2015/ND-CP, the authorized person shall be entitled to convene and preside over
the meeting about actions against breaches of labor discipline.
The authorized person may issue a decision on
actions against breaches of labor discipline in the form of reprimands.
Regarding other forms of actions against breaches of labor discipline, the
authorized person must complete the documents on actions against breaches of
labor discipline, and then request the employer to decide the forms of actions
and implement the effective decision.
Article 13. Employees absent
from work with plausible reasons
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1. A natural disaster or conflagration occurs that
the employee is unable to present herself/himself at work regardless of every
remedial measure adopted;
2. Illness of the employee or his/her mother,
father, adoptive mother, adoptive father, mother-in-law, father-in-law,
husband, wife, natural child or lawfully adopted child, surrogacy child with
certification by a health facility founded and operated as prescribed in law.
Chapter IV
IMPLEMENTATION
Article 14. Effect
1. This Circular comes into force from January 1,
2016.
2. The Circular No. 19/2003/TT-BLDTBXH dated
September 22, 2003 on guidelines for the Decree No. 41/CP dated July 6, 1995 on
guidelines for the Labor Code in terms of labor discipline and material
responsibility that is amended by the Decree No. 33/2003/ND-CP dated April 2,
2003 of the Government shall be annulled from the effective date of this
Circular.
3. The salary as the basis for calculating the pay
for an employee in work suspension time, annual leave, public holiday leave,
paid leaves or salary advance prescribed in Article 26 of the Decree No.
05/2015/ND-CP is the salary specified in his/her labor contract prescribed in
Clause 1, Point a Clause 2 and Point a Clause 3 Article 4 of this Circular.
4. A number of Articles and Clauses of Circular No.
23/2015/TT-BLDTBXH dated June 23, 2015 of the Minister of Labor, War Invalids
and Social Affairs on guidelines for some Articles on wages of the Decree No.
05/2015/ND-CP dated January 12, 2015 of the Government on guidelines for some
contents of the Labor Code shall be amended as follows:
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“c) Daily wage is paid for one working day which
equals (=) a monthly wage divided by (:) number of working days in the under
regulations of law as selected by the enterprise, provided that it does not
exceed 26 days”.
b) Clause 1 of Article 5 shall be amended as
follows:
“1. Monthly wage shall be paid on a monthly or
semi-monthly basis on payday”.
c) Point a Clause 1 of Article 6 shall be amended
as follows:
“a) Actual hourly wage on a normal working day
equals (=) the actual wage for the current job of the month in which the
employee works overtime divided by (:) actual number of working hours in the
month (not exceeding 208 hours for jobs with normal labor and environment
conditions and exclusive of overtime hours). If the employee receives a daily
or weekly wage, the overtime pay equals (=) the actual wage of that working day
or week (minus overtime pay and extra pay for night work) divided by (:) actual
number of working hours in the day or week (not exceeding 8 hours per day and
exclusive of overtime hours).
The aforesaid wage is exclusive of work overtime
pay, extra pay for night work, the wage of public holiday leave, paid leave
prescribed in the Labor Code; bonuses prescribed in Article 103 of the Labor
Code, initiative bonuses; food expenses between shifts; subsidies on
petrol, telephone, transportation, housing, child care, raising children;
allowances for employees having dead relative(s), employees having relatives
married relatives, employees’ birthday, benefits for employees facing
difficulties due to their labor accidents and occupational diseases and other
allowances and benefits not related to their jobs or positions mentioned in the
labor contracts”.
d) Clause 2 of Article 9 shall be annulled.
Article 15. Transitional
regulations
If the employment contracts, collective bargaining
agreements, labor regulations and other lawful regulations or agreements of the
employer that are signed or issued before the effective date of this Decree are
more beneficial to employees than regulations in this Circular, they shall be
still effective; if those regulations are contrary to the regulations of this
Circular, the parties involved shall revise, amend, supplement and implement
procedures promulgated in accordance with the provisions of this Circular.
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PP. MINISTER
DEPUTY MINISTER
Pham Minh Huan
APPENDIX
(Issued together
with Circular No. 47/2015/TT-BLDTBXH dated November 16, 2015 of the Minister of
Labor, War Invalids and Social Affairs)
Form
No. 1
SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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AUTHORIZATION
To conclude labor contract
Pursuant to the Civil Code 2005;
Pursuant to ……………..
(1).......................................................................... ;
……….., [date]……………………….; We are:
1. AUTHORIZING PARTY:
Full name: ……………………………..
Date of birth: …………………………
Address: ………………………
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ID number: ……………., Date of issue …………………., Place of
issue ……………….
Passport number (if any): ……………………….
Nationality: ……………………………………………
2. AUTHORIZED PARTY (2):
Full name: ……………………………..
Date of birth: …………………………
Address: ………………………
Position (if any): ……………………….
ID number: ……………., Date of issue …………………., Place of
issue ……………….
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Nationality: ……………………………………………
3. CONTENT OF AUTHORIZATION:
The authorized party shall, on behalf of the
authorizing party, by this written authorization, perform the following tasks:
Article 1. The authorized party is entitled
to conclude a labor contract with .......................[employer] (3) on
behalf of the authorizing party as prescribed in legislation on labor.
Article 2. Authorization duration:
Authorization duration: from ……………………to………………………….
Article 3. Other agreements (if any).
4. COMMITMENTS OF PARTIES:
- The two Parties shall take full legal responsibility
for the accuracy and truthfulness of the above declaration;
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The above written authorization shall be made in
……..[number] copies, each party shall hold ……[number] copy/copies./.
AUTHORIZING
PARTY
(Signature and full name)
AUTHORIZED
PARTY (4)
(Signature and full name)
Notes: ………………………
(1) Relevant Laws, Charter and Regulations (if any)
for agencies, organizations or enterprises;
(2) In case the legal representative of the
enterprise authorizes the head of its branch or business facility to conclude a
labor contract directly with the employee, the authorized party shall be the
head (director, etc.) of such branch or business entity according to the list
of authorized parties issued herewith.
(3) Limits of scope of authorization of labor
contract, for example: The Director of the branch of bank X in Hanoi city will
conclude labor contracts with employees on behalf of Director General of the
bank X in order for the employees to work at the branch of bank X.
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Form
No. 2
SUPERIOR AGENCY
(if any)
NAME OF AGENCY IN CHARGE OF STATE MANAGEMENT OF LABOR
SOCIALIST REPUBLIC
OF VIETNAM
Independence - Freedom - Happiness
-----------------
LABOR
REGULATIONS MANAGEMENT BOOK
Year: 20……
No.
Enterprise’s name
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Enterprise’s address
Certificate of Enterprise registration
Primary business lines
Registration of labor regulations
Amended labor regulations
Re-registration of labor regulations
Notes
Receipt date of labor regulations
Effective date of labor regulations
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Enterprise changes contents of the labor regulations
(including duration)
Receipt date of labor regulations
Effective date of labor regulations
(1)
(2)
(3)
(4)
(5)
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(7)
(8)
(9)
(10)
(11)
(12)
(13)
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ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
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Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
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Prepared by
(signature and full name)
[Location]…….,[date]………….
Head of agency
(Signature, full name and seal)
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ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
Instructions:
- Column (2): according to Certificate of
Enterprise registration
- Column (3) according to classification: state-owned
enterprises, non-state-owned enterprises or foreign-invested enterprises.
- Column (6): the line of business employing the
highest number of employees in the enterprise (level 2) as mentioned in the
System of industries issued together with Decision No. 10/2007/QD-TTg dated
January 23, 2007 of the Prime Minister.
- Column (7) and (11): according to the document of
management of regulatory agencies.
- Column (8): after 15 days from the date mentioned
in the column (7), unless the labor regulations are not in accordance with
regulations of law.
- Columns (9) and (10): mark X in the equivalent
box according to the inspection result.
- Column (12): after 15 days from the date
mentioned in the column (11).