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THE GOVERNMENT
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
33/2003/ND-CP
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Hanoi, April 2, 2003
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DECREE
AMENDING AND SUPPLEMENTING A NUMBER OF
ARTICLES OF THE GOVERNMENT’S DECREE NO. 41/CP OF JULY 6, 1995 WHICH DETAILS AND
GUIDES THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LABOR CODE REGARDING
LABOR DISCIPLINES AND MATERIAL RESPONSIBILITIES
THE GOVERNMENT
Pursuant to the Law on Organization of the
Government of December 25, 2001;
Pursuant to the June 23, 1994 Labor Code and the April 2, 2002 Law Amending and
Supplementing a Number of Articles of the Labor Code;
At the proposal of the Minister of Labor, War Invalids and Social Affairs,
DECREES:
Article 1.- To amend and supplement a number of articles of
the Government’s Decree No. 41/CP of July 6, 1995 detailing and guiding the
implementation of a number of articles of the Labor Code regarding labor
disciplines and material responsibilities, which was amended and supplemented
by the Law Amending and Supplementing a Number of Articles of the Labor Code
(hereinafter referred to as the Labor Code) as follows:
1. Article 5 is amended and supplemented as
follows:
"Article 5.- The registration of
internal regulations on labor under Article 82 of the Labor Code is prescribed
as follows:
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2. For enterprises in export-processing zones,
industrial parks and hi-tech parks (hereinafter referred collectively to as
industrial parks), the internal regulations on labor shall be registered at the
Industrial Parks-Managing Boards under the authorization of the
provincial/municipal Labor, War Invalids and Social Affairs Services of the
localities where such Managing Boards are headquartered. Once every six months,
the Industrial Parks-Managing Boards shall have to synthesize and report to the
provincial/municipal Labor, War Invalids and Social Affairs Services on the
situation of registration of the internal regulations on labor by the
enterprises under their respective managing competence.
3. Within 10 days (working days) after receiving
the enterprises’ internal regulations on labor, the provincial/municipal Labor,
War Invalids and Social Affairs Services or the Industrial Parks-Managing
Boards must notify in writing the registration of the internal regulations on
labor; if, past the above-said time limit, no notification is made, the
internal regulations on labor shall automatically take effect. In cases where
internal regulations on labor and the prescribed documents enclosed herewith
contain provisions contrary to law, they shall guide the employers to amend
and/or supplement them and make the re-registration thereof."
2. Article 6 is amended and supplemented as
follows:
"Article 6.- The application of forms of
handling labor discipline violations under Article 84 and Article 85 of the
Labor Code is prescribed as follows:
1. Oral or written reprimand shall apply to
those laborers who commit minor mistakes for the first time.
2. Prolongation of salary grade promotion
duration for no more than six months, or transfer of offenders to other
lower-paid jobs for a maximum period of six months, or demotion shall apply to
those laborers who have been reprimanded in writing but repeated their
violations within three months thereafter, or who have committed violations
already prescribed in the internal regulations on labor. The employers shall
base themselves on the seriousness of discipline violations committed by
laborers, their enterprises’ practical situation and the laborers’
circumstances to opt for one of the three forms prescribed in this Clause.
3. Dismissal, applicable to those laborers
committing one of the violations prescribed in Clause 1, Article 85 of the
Labor Code, which are specified in the internal regulations on labor, is
prescribed as follows:
a/ For laborers who commit one of the violations
prescribed at Point a, Clause 1, Article 85 of the Labor Code, if such
violation act lacks adequate evidences or it is difficult to determine its
evidences, the competent agencies shall be requested to make investigation,
verification and conclusion thereon, which shall serve as basis for deciding on
forms of discipline.
b/ Those laborers who arbitrarily abandon their
work without plausible reasons for an aggregate of 5 days in a month or 20 days
in a year calculated in a solar month or a solar year.
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3. Article 8 is amended and supplemented as
follows:
"Article 8.- The statute of limitations
for handling labor discipline violations under Article 86 of the Labor Code is
prescribed as follows:
1. The statute of limitations for handling labor
discipline violations shall be three months at most after the violations are
committed or detected, in cases where the violating acts are related to
finance, assets or disclosure of enterprises’ technological or business
secrets, the statute of limitations for handling labor discipline violations
shall be 6 months at most.
2. Labor disciplines shall not be imposed on
laborers in the duration:
a/ They are on sickness leave or convalescence;
or who are on leave with the consent of the employers;
b/ They are being held in custody or detention;
c/ They are waiting for results of
investigation, verification and conclusion by competent agencies on the
violation acts prescribed at Point a, Clause 1, Article 85 of the Labor Code;
d/ The female laborers are pregnant; on
maternity leave; nursing their under-12 month children; and male laborers who
have to nurse their under-12 month children.
At the end of the durations prescribed at Points
a, b and c, Clause 2 of this Article, if the statute of limitations for
imposing labor disciplines is still valid, the employers shall impose the labor
disciplines immediately, if such statute of limitations has expired, it shall
be restored for imposing labor disciplines, which, however, must not exceed 30
days after the expiry of the above-said duration.
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4. Article 10 is amended and supplemented as
follows:
"Article 10.- The employers shall be the
persons competent to handle labor discipline violations, including the
temporary suspension of work prescribed in Article 87 and Article 92 of the
Labor Code; those persons who are authorized by the employers shall impose
labor disciplines only in form of reprimand. Other disciplining forms shall be
authorized only in writing when the employers are absent."
5. Point a, Clause 3 of Article 11 is amended
and supplemented as follows:
"a/ The persons competent to handle labor
discipline violations must issue written decisions thereon (except for form of
oral reprimand), in cases where disciplines are imposed in form of dismissal,
the employers must consult and reach agreement with Executive Boards of
grassroots Trade Union organizations. In case of disagreement, the Executive
Boards of grassroots Trade Union organizations shall report thereon to the
immediate superior Trade Union organizations, and the employers shall report
thereon to the provincial/municipal Labor, War Invalids and Social Affairs
Services. Only after 20 days as from the date of reporting thereon to the
provincial/municipal Labor, War Invalids and Social Affairs Services, can the
employers issue disciplining decisions and be answerable for their own
decisions."
6. Clause 1 of Article 12 is amended and
supplemented as follows:
"1. When deciding to shorten the
disciplining duration or cancel disciplines for those laborers who are
disciplined in form of prolongation of salary grade promotion duration or
transfer to lower-paid jobs, the employers shall issue written decisions and
settle as follows:
For laborers who are disciplined with the
prolongation of salary grade promotion duration, the salary grade promotion for
laborers shall be made right after the decisions to shorten the discipline
duration or cancel the disciplines are issued, if the laborers fully meet the
conditions for salary grade promotion.
Those laborers who are disciplined with the
transfer to lower-paid jobs shall be arranged to return to their former jobs
under the signed labor contracts."
7. Article 18 is amended and supplemented as
follows:
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2. For newly set up units, 6 months after they
commence the operation, the employers must register the internal regulations on
labor at the provincial/municipal Labor, War Invalids and Social Affairs
Services."
8. To annul Article 2.
Article 2.- This Decree takes effect 15 days after its
publication on the Official Gazette.
The Ministry of Labor, War Invalids and Social
Affairs shall have to guide this Decree.
Article 3.- The ministers, the heads of the
ministerial-level agencies, the heads of the agencies attached to the
Government, and the presidents of the People’s Committees of the provinces and
centrally-run cities shall have to implement this Decree.
ON BEHALF OF THE GOVERNMENT
PRIME MINISTER
Phan Van Khai