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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.:
41/2009/TT-BLDTBXH
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Hanoi,
December 30, 2009
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CIRCULAR
GUIDING
AMENDMENT, SUPPLEMENTATION TO THE CIRCULAR NO.03/2007/TT-BLDTBXH ON JANUARY 30,
2007 ON GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE DECREE
NO.152/2006/ND-CP DATED DECEMBER 22, 2006 OF THE GOVERNMENT GUIDING A NUMBER OF
ARTICLES OF THE LAW ON SOCIAL INSURANCE ON COMPULSORY SOCIAL INSURANCE
Pursuant to the Decree No.152/2006/ND-CP of
December 22, 2006 of the Government guiding a number of Articles of the Law on
Social Insurance regarding compulsory social insurance (hereinafter referred to
as the Decree No.152/2006/ND-CP) and the Decree No.190/2007/ND-CP of December
28, 2007 of the Government guiding a number of Articles of the Law on Social
Insurance on voluntary social insurance (hereinafter referred to as the Decree
No.190/2007/ND-CP), the Ministry of Labor, War Invalids and Social Affairs
guides the amendment and supplementation of a number Clauses of the Circular
No.03/2007/TT-BLDTBXH dated January 30, 2007 on guiding the implementation of
some Articles of the Decree No.152/2006/ND-CP (hereinafter referred the Circular
No.03/2007/TT-BLDTBXH) amended and supplemented in the Circular No.19/2008/TT –
BLDTBXH dated September 23, 2008 as follows:
Article 1. To amend and supplement some
clauses in the Circular No.03/2007/TT-BLDTBXH
1. To amend and supplement Clause 2, Section
II, part B of maternity regime as follows:
"2. Duration for maternity leave
entitlement when having baby to be 5 months as prescribed at Point b, Clause 1,
Article 15 of the Decree No.152/2006/ND-CP is applied to employees working
hard, poisonous and hazardous jobs, including employees working extremely hard,
hazardous or dangerous jobs; female employees working full time of 6 months or
more in the areas with weighting coefficient of 0.7 or more, during 12 months
before giving birth."
2. To amend Clause 6, Section II, part B of
maternity regime as follows:
"6. Duration that employees are entitled
the maternity leave from 14 working days or more during the month, both the
employee and the employer must not pay social insurance in that month but still
be counted as duration of payment for social insurance."
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"In case of labor accidents and
occupational diseases which cannot be determined later the time of completion
of the treatment, leaving the hospital (in the discharge paper, it still has
indication of appointment for re-examination; removing the powder; removing the
splint; removing the screw), time to enjoy allowance for labor accidents and
occupational diseases every month is calculated from the conclusion month of
the Council of Medical Examination ".
4. To supplement Clause 12 into Section IV,
Part B of pension regime as follows:
"12. Calculation of pension for people participating
in compulsory social insurance previously participated in voluntary social
insurance.
a) People participating in compulsory social
insurance previously participated in voluntary social insurance and reserved
time paid voluntary social insurance, the time as a basis for calculation of
pension is the total time paid for compulsory social insurance and voluntary
social insurance.
Example 1: Mr. A has 10 years of payment
for voluntary social insurance and reserved the duration paid for voluntary
social insurance, then has 15 years of payment for compulsory social insurance.
The time of paying for social insurance as a basis for calculation of pension
of Mr. A is 10 years + 15 years = 25 years. "
b) The average of monthly salaries, wages and
income paid for social insurance for people participating in compulsory social
insurance previously participated in voluntary social insurance and reserved
the period of paying voluntary social insurance under the provisions of Clause
2, Article 40 of the Decree No.152/2006/ND-CP is calculated as follows:
The average of
salaries, wages and monthly income paid for social insurance (Mbqtl,tn)
=
Total monthly
income paid for voluntary social insurance
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The average of
monthly salaries, wages paid for compulsory social insurance
x
Total number of
months paid for compulsory social insurance
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Total number of
months paid for voluntary social insurance
+
Total number of
months paid for compulsory social insurance
In which:
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b1) When calculating the average of monthly
salaries, wages and income paid for social insurance, salaries or wages for the
subjects to the implementation of the wage regime determined by the employer
and monthly income paid for voluntary social insurance are adjusted on the
basis of cost-of-living index defined in Article 32 of the Decree
No.152/2006/ND-CP and Article 18 of the Decree No.190/2007/ND-CP.
b2) The average of monthly salaries, wages and
income paid for social insurance mentioned above is used as a basis for
calculating pensions, lump-sum allowance as retirement, allowance for lump-sum
social insurance, death grant.
Example 2: Mr. A (in example 1) has 10
years paid for voluntary social insurance with the total monthly incomes paid
for voluntary social insurance, after adjusted by the consumption price index
is 138 million VND and 15-years paid for compulsory social insurance with the
average of monthly salaries, wages and income paid for compulsory social
insurance is 2.2 million VND/month. The average of monthly salaries, wages and
income paid for social insurance of Mr. A is:
Mbqtl,tn
=
{138,000,000VND
+ (2,200,000 VND/month x 15 years x 12 months)}
{(10 years x 12
months) + (15 years x 12 months)}
= 1,780,000 VND/month.
Example 3: Mr. B is eligible for pension
from 01/2013, with the progress of participation in social insurance as
follows:
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- From 01/2008 to 12/2008 (1 year) paid for
voluntary social insurance with the total monthly incomes paid for the
voluntary social insurance, after adjusted by the consumption price index is
8.2 million VND, then reserved the period of paying for voluntary social
insurance;
- From 01/2009 to 12/2009 (1 year) participated
in compulsory social insurance, and continued to reserve the period of paying
for compulsory social insurance;
- From 01/2010 to 12/2011 (2 years) paid for
voluntary social insurance with the total monthly incomes paid for the
voluntary social insurance, after adjusted by the consumption price index is
25.1 million VND, then continued to reserve the period of paying for voluntary
social insurance;
- From 01/2012 to 12/2012 (1 year) participated
in compulsory social insurance.
As such, Mr. B has 17 years paid for compulsory
social insurance, the average of monthly salaries, wages paid for compulsory
social insurance is 3,000,000 VND/month.
Period paid for voluntary social insurance is 3
years, the total monthly incomes paid for voluntary social insurance after
adjusted by consumption price index is:
8.2 million VND + 25.1 million VND = 33.3
million VND.
The average of monthly salaries, wages and
income paid for social insurance of Mr. B is calculated as follows:
Mbqtl,tn
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{33,300,000VND
+ (3,000,000 VND/month x 17 years x 12 months)}
{(1 year + 2
year) x 12 months + (15 years + 1 year + 1 year) x 12 months)}
= 2,688,750 VND/month.
c) The monthly pension is calculated equal to
the product of the rate of monthly pension with the average of monthly
salaries, wages and income paid for social insurance specified at Point b of
this Clause.
d) People with total duration paid for
compulsory social insurance for full 20 years or more, if the monthly pension
after calculating as prescribed at Point c of this Clause is lower than the
common minimum wage, it shall be adjusted so as equal to the common minimum
wage.
đ) The lump-sum allowance rate as retirement is
calculated in accordance with provisions of Clause 4 of Article 28 of the
Decree No.152/2006/ND-CP, each year of paying social insurance is calculated
equal to 0.5 month of the average of monthly salaries, wages and income paid
for social insurance specified at Point b of this Clause.
e) People participating in compulsory social
insurance previously participated in voluntary social insurance and reserved
the period paid voluntary social insurance, conditions to get lump-sum social
insurance shall comply with the provisions in Clause 1, Article 30 of the
Decree No.152/2006/ND-CP. The duration of paying social insurance for
calculation for getting lump-sum social insurance is total time paid for
compulsory social insurance and voluntary social insurance. Rate of lump-sum
social insurance entitlement is calculated equal to 1.5 months of the average
of monthly salaries, wages and income paid for social insurance specified at
Point b of this Clause, for each year of paying social insurance. In case of
paying social insurance for full 3 months to full 6 months, rate is equal to
0.75 month of the average of monthly salaries, wages and income paid for social
insurance; paying for social insurance for more than 6 months to full one year,
rate is equal to 1.5 months of the average of monthly salaries, wages and
income paid for social insurance."
5. To amend Clause 4 Section V, Part B of
death regime as follows:
"4. Relatives of the subjects specified in
Clause 1, Article 36, if they are reduced working capacity, assessment of
decrease level of working capacity for reviewing monthly death grant shall
comply with Clause 2, Article 36 of the Decree No.152/2006/ND-CP introduced by
the social insurance organization. Time limit for introduction of assessment of
working capacity decrease is within 4 months after the employee died.
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6. To supplement Clause 6 in Section V Part B
of death regime as follows:
"6. Death grant for people participating in
compulsory social insurance previously participated in voluntary social
insurance.
a) People participating in compulsory social
insurance previously participated in voluntary social insurance and reserved
time paid voluntary social insurance, the time as a basis for calculation of
death grant is the total time paid for compulsory social insurance and
voluntary social insurance.
b) People who have had a duration to pay
compulsory social insurance for full 15 years or more when they die, their
relatives shall be paid monthly death grant as provided for in Clause 2 of
Article 36 and Article 37 of the Decree No.152/2006/ND-CP.
c) People who have had a duration to pay
compulsory social insurance for under 15 years or those who have had a duration
to pay compulsory social insurance for full 15 years or more but when they die
without relatives eligible for monthly death grant, their relatives shall be
entitled to get lump-sum death grant, lump-sum death grant rate is calculated
as follows:
Lump-sum death grant rate = N x 1.5 x
Mbqtl,tn
In which:
- N: the number of years of paying social
insurance (including voluntary social insurance and compulsory social
insurance).
- Mbqtl,tn: the average of monthly
salaries, wages and income paid for social insurance in accordance with
provisions of Clause 6a, Section IV, Part B of this Circular.
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d) Those who are being entitled to pensions that
have less than 15 years of paying compulsory social insurance or have from 15
years of paying compulsory social insurance or more, but do not have relatives
eligible for monthly death grant, their relatives are entitled to receive
lump-sum death grant, method of calculation is the same as specified in Clause
2, Section V, Part B of the Circular No.03/2007/TT-BLDTBXH; Lowest lump-sum
death grant rate is equal to three months of pension being received before
their death."
7. To add to the end of Point b, Clause 5 of
Part D as follows:
"The time for pension entitlement of these
subjects is calculated from the month next to the month that is calculated
enough time for paying social insurance and submit complete dossier.
Example 4: Mr. C is old enough to enjoy
pension in April/2009, up to April/2009, he has 19 years and 7 months of paying
social insurance. If Mr. C is continued to pay for 5 missing months, May/2009
Mr C paid once for 5 missing months and submitted a complete dossier to the
social insurance agency. So the time of enjoying pension of Mr. C is calculated
from September/2009.
Example 5: If Mr. C (example 4), until
11/2009 Mr. C has just paid enough money for 5 missing months and submitted a
complete dossier to the social insurance agency. So the time of enjoying
pension of Mr.C is calculated from 12/2009."
8. To add to the end of Point c, Clause 5 of
Part D as follows:
" The time for monthly death grant
entitlement of these subjects is calculated from the month next to the month
the employee died."
9. To supplement the Clauses 13, 14, 15, 16,
17, 18, 19 and Clause 20 in Part D as follows:
"13. Those who are being entitled benefits
for labor accidents and occupational diseases monthly before 01/01/2007, the
equipment of means supporting to living, orthopedic devices shall comply with
the guidance in the documents issued before 01/01/2007.
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15. Copies of documents residing abroad for
employees entitled lump-sum social insurance regime in the case of going
overseas to settle as prescribed in Clause 4 of Article 120 of the Law on
Social Insurance is the visa of entry for long-time permanent residence or
permanent residence card or long-term residence certificate issued by the
competent authorities of the home countries; these documents must be translated
and notarized.
16. Paper of discharge or hospital consultation
slip for sick workers on the list of diseases requiring long-term treatment, as
prescribed for in Clause 2, Article 112 of the Social Insurance Law, which
clearly indicates the names of diseases that employees are required treatment.
The payment for the sickness regime is carried out according to the profile of
each batch that workers leave their jobs for treatment (inpatient or
outpatient).
17. Time to be communal officials calculated for
social insurance entitlement of workers is considered as the time of paying for
social insurance under the salary regime set by the State as the basis for
calculating the average of monthly salaries and wages of paying for social
insurance.
18. The calculation for working time before
January 01, 1995 to enjoy social insurance shall comply with the guidance in
the previously prescribed documents on calculation of the working time before
January 01, 1995 for enjoying social insurance of officials, public servants,
public employees, workers, soldiers and police officers.
19. Workers both having period paid for
voluntary social insurance, having period paid for compulsory social insurance,
the duration paid for voluntary social insurance are not calculated for
enjoying regime of sickness, maternity, labor accidents and occupational
diseases.
20. Those who are entitled to pension or monthly
social insurance allowance temporarily suspended due to missing, then the court
declared dead, then duration calculated from the suspension until the court
declared dead is not calculated for enjoying pension, monthly social insurance
allowance."
Article 2. Implementation provisions
1. This Circular takes effect 45 days after its
signing date.
2. The provisions of clauses 1, 2, 4, 6, 7, 8
and the points 13, 14, 15, 17, 18, 19 and 20 of Clause 9, Article 1 of this
Circular are applied from January 01, 2007.
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3. In the implementation process, any problem
arises, the concerned units should report to the Ministry of Labor, War
Invalids and Social Affairs for study and settlement./.
FOR MINISTER
DEPUTY MINISTER
Pham Minh Huan