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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
41-CP
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Hanoi,
July 06, 1995
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DECREE
GIVING DETAILED STIPULATIONS AND GUIDANCE ON THE
IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LABOR CODE ON LABOR DISCIPLINE
AND MATERIAL RESPONSIBILITY
THE GOVERNMENT
Pursuant to the Law on
Organization of the Government on the 30th of September 1992;
Pursuant to the Labor Code on the 23rd of June 1994;
At the proposal of the Minister of Labor, War Invalids and Social Affairs,
DECREES
Chapter I
THE PERSONS AND SCOPE OF
REGULATION
Article 1.-
The persons and scope regulated by labor discipline and material responsibility
under Articles 2 and 3 of the Labor Code are the laborers working in the
following enterprises, agencies and organizations (hereunder referred to as
units):
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2. Enterprises belonging to the
other economic sectors, the organizations and individuals hiring and employing
labor according to labor contracts;
3. Professional units operating
along the self-accounting system;
4. Trading and service
organizations belonging to administrative and professional offices, the
people's armed forces, the people's security forces, mass organizations, and
other political and social organizations, which are permitted to register their
trading activities;
5. Foreign invested enterprises,
enterprises in export processing zones and industrial parks;
6. Foreign offices and
organizations, international organizations based on Vietnamese territory which
hire or employ Vietnamese citizens as labor.
Article 2.-
The persons and scope not regulated by labor discipline and material
responsibility according to Article 4 of the Labor Code are the following:
1. Public employees and
officials working in administrative and professional offices of the State;
2. Persons elected, assigned or
appointed to positions in State organs;
3. Persons appointed to the
positions of Director, Deputy Director, Chief Accountant, and members of the
Managing Board in State enterprises;
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5. Officers, non-commissioned
officers, and soldiers in the people's armed forces and the people's security
forces.
Chapter II
LABOR DISCIPLINE
Article 3.-
Labor discipline in Item 1, Article 82, of the Labor Code includes stipulations
on:
1. Observing work hours and rest
hours;
2. Observing orders by the
employers in conducting production and business activities;
3. Observing the technological
process and the regulations on labor safety and labor hygiene;
4. Protecting the property and
technological and business secrets within the scope of activity assigned.
Article 4.- The
labor regulations in Item 1, Article 83, of the Labor Code include the
following main contents:
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2. Order in enterprises: the
area of work and movement; contacts and other requirements for maintaining
general order;
3. Labor safety and labor
hygiene at work places: observance of the measures to ensure labor safety,
labor hygiene, and to prevent labor accidents and occupational diseases; observing
the norms and conditions for labor safety and labor hygiene; the use and
protection of equipment for individual safety; industrial hygiene at work
places;
4. Protecting the property,
technological and business secrets of the unit: different kinds of property,
documents, files and data of the unit within the scope of activity assigned;
5. Acts in violation of labor
discipline, forms of handling violations of labor discipline and material
responsibility: the employers shall have to concertize each kind of violations
and the seriousness of a violation; the forms of handling violations of labor
discipline; defining kinds of material responsibility, the extent of damage,
and the way of compensation suitable to the characteristics of the unit, with
the collective labor agreement (if any), and not at variance with the law.
The labor regulations must be
popularized to each laborer, and the main points of the labor regulations must
be put up at the work place, the recruitment office and other necessary places
of the unit.
Article 5.-
The labor regulations must be registered according to Article 82 of the Labor
Code as follows:
1. The labor regulations must be
registered at the Labor, War Invalids and Social Affairs Service. In
registering its labor regulations, the unit concerned must enclose with it
concrete conditions concerning labor discipline and material responsibility (if
any);
2. The enterprises in export
processing zones and industrial parks must send a copy of their labor
regulations to the Managing Committee of export processing zones and industrial
parks for registration at the Labor, War Invalids and Social Affairs Service in
the locality where the Managing Committee is headquartered;
3. The Labor, War Invalids and
Social Affairs Service must notify in writing the registration of the labor
regulations of the unit concerned within 10 days after it receives the
regulations. In case the labor regulations and the enclosed conditions have an
article contrary to the law, the Service must single it out and guide the
employers to amend it for registration;
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Article 6.-
The forms of handling violations of labor discipline according to Article 84 of
the Labor Code are stipulated as follows:
1. Oral or written reprimand
shall apply to those laborers who commit a minor mistake for the first time;
2. Transfer of the offender to
another work with a lower wage within a maximum period of 6 months shall apply
to those laborers who have received a written reprimand, but who have committed
a mistake again within the 3 following months or who have violated other
stipulations of the labor regulations;
3. Sacking shall apply to those
laborers who have violated one of the cases defined in Item 1, Article 85, of
the Labor Code, and which has been defined in the labor regulations.
Article 7.-
The principles of handling violations of labor discipline:
1. Each violation of labor
discipline shall be subject to only one form of discipline. When a laborer
commits many acts in violation of labor discipline at a time, he/she is liable
to the highest form of discipline corresponding to his/her most serious
violation;
2. No labor discipline is
imposed on a laborer who infringes on the labor regulations while he/she is
suffering from mental disease or another disease which deprives him/her of the
capacity of perception or his/her ability to control his/her behavior;
3. All physical assault or
insult to his/her dignity on the laborer when he/she is being disciplined is
prohibited.
4. No monetary fine or wage cut
shall be imposed in replacement of the application of labor discipline.
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Article 8.-
The handling of violations of labor discipline shall be undertaken within a
maximum period of 6 months for the following cases according to Article 86 of
the Labor Code:
1. A violation of labor
discipline involving complicated circumstances which take time to investigate
and confirm the mistake and personal identification of the person concerned;
2. The person concerned is in
detention.
Article 9.-
Recidivism under Item 1, Article 88, of the Labor Code means the person
concerned re-commits the same violation of labor discipline while he/she is
still penalized for the previous offence.
Article
10.- The person authorized to handle a violation of labor discipline,
including temporary suspension of his/her work under Article 8, Item 1 of
Article 87, and Item 1 of Article 92, of the Labor Code is the employer; the
person using labor by delegation can handle only a violation of labor
discipline by way of reprimand.
Article
11.-
1.
Violations of labor discipline under Article 87 of the Labor Code shall be
considered and handled as follows:
a/ The employer shall have to
prove the mistake of the laborer with evidence or a witness (if any);
b/ A representative of the
Executive Committee of the Trade Union at the grassroots unit must take part in
the handling of a violation of labor discipline, except when an oral reprimand
is given;
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2. The minutes of the handling
of a violation of labor discipline includes the following main contents:
- The day, month, year, and
location where the violation of labor discipline is handled;
- Full names and functions of
those present;
- The act in violation of labor
discipline, the seriousness of the violation, and the extent of damage caused
to the enterprise (if any);
- Opinion of the person
concerned, of the juror, or of the witness (if any).
- Opinion of the representative
of the Executive Committee of the grassroots Trade Union organization;
- Conclusion on the form of
handling the violation of labor discipline, the extent of damage, the level of
compensation and the way of compensation (if any);
- The person concerned, the
representative of the Executive Committee of the grassroots Trade Union
organization, and the person authorized to handle the violation of labor
discipline shall sign the minutes. The person concerned and the representative
of the Executive Committee of the grassroots Trade Union organization have the
right to reserve their own opinion; if they refuse to sign their names, they
must write down clearly the reason.
3. Decision on handling
violations of labor discipline:
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b/ The discipline decision must
write clearly the name of the unit where the offender is working; the day,
month and year of the decision; the full names and occupation of the offender;
the contents of the violation of labor discipline; the form of discipline, the
extent of damage, the level of compensation and the form of compensation (if
any); the date when the decision begins to apply; the signature, full names and
position of the person who issues the decision;
c/ The employer must send copies
of his/her discipline decision to the person concerned and the Executive
Committee of the grassroots Trade Union organization. In case of sacking,
within 10 days after issuing the decision, the employer must send a copy of
his/her discipline decision enclosed with the minutes of the handling of labor
discipline to the Labor, War Invalids and Social Affairs Service.
Article
12.- The commutation and cancellation of discipline under Article 88 of the
Labor Code are stipulated as follows:
1. When deciding to reduce the
time of discipline or cancel discipline for the laborer who has been
transferred to a lower-paid job for violation of labor discipline, the employer
shall issue a written decision and reinstate him/her in the former job under
the labor contract already signed.
2. The discipline decision shall
become invalid on expiry of the discipline period.
Chapter
III
MATERIAL RESPONSIBILITY
Article
13.- The seriousness of the offense and the actual extent of damage must be
the basis for considering and deciding how much the laborer has to compensate
for having damaged or lost tools, equipment and other property of the unit. No
compensation shall be made for any damage resulting from force majeure.
Article
14.- The extent of damage which is considered not serious under Article 89
of the Labor Code is a damage worth less than 5 million VND.
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Article
16.- The procedure of handling the compensation for losses caused by the
damage or loss of tools, equipment and other property of the unit under Article
91 of the Labor Code shall be undertaken as stipulated in Items 2, 3, and 4 of
Article 7, and Articles 8, 10, and 11 of this Decree.
Chapter IV
IMPLEMENTATION PROVISIONS
Article
17.- The People's Committees at different levels are authorized to settle
complaints by the persons who are subject to labor discipline, who are
suspended from their work, or who must make compensation under the regime of
material responsibility. The local labor offices shall help the People's
Committees in considering and settling these complaints.
Those persons who are subject to
labor discipline, who are temporarily suspended from their work, or who must
make compensation according to the regime of material responsibility, have the
right to complain, but pending the settlement of their complaints by the
authorized agency, they must still comply with the discipline decision, suspend
their work, and make compensation according to the regime of material
compensation.
Article
18.-
1. Three
months at the latest after this Decree takes effect, any units which have no
labor regulations must draft them, and those units which already have labor
regulations must amend or supplement them to suit this Decree, and they must
register these regulations at the Labor, War Invalids and Social Affairs
Service;
2. With regard to newly
established units, 6 months after they start operation, the employer must
register the labor regulations at the Labor, War Invalids and Social Affairs
Service.
Article
19.- This Decree takes effect from the date of its signing.
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Article
20.- The Ministers, the Heads of the ministerial-level agencies, the Heads
of the agencies attached to the Government, the Presidents of the People's
Committees of the provinces and cities directly under the Central Government
shall have to implement this Decree.
ON
BEHALF OF THE GOVERNMENT
FOR THE PRIME MINISTER
DEPUTY PRIME MINISTER
Nguyen Khanh