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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
44/2003/ND-CP
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Hanoi,
May 9, 2003
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DECREE
DETAILING AND GUIDING THE IMPLEMENTATION OF A NUMBER OF
ARTICLES OF THE LABOR CODE REGARDING LABOR CONTRACTS
THE GOVERNMENT
Pursuant to the December 25, 2001 Law on
Organization of the Government;
Pursuant to the June 23, 1994 Labor Code; 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:
Chapter I
GENERAL PROVISIONS
Article 1.- This Decree details and guides the implementation of a
number of articles of the Labor Code and the Law Amending and Supplementing a
Number of Articles of the Labor Code (hereinafter referred collectively to as
the amended, supplemented Labor Code) regarding labor contracts.
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1. The following
organizations and individuals, when employing labor, must enter into labor
contracts:
a) Enterprises set up and operating under the
Law on State Enterprises, the Law on Enterprises, the Law on Foreign Investment
in Vietnam;
b) Enterprises of political organizations,
socio-political organizations;
c) Administrative, non-business agencies
employing laborers other than State officials and employees;
d) Economic organizations of the people’s army,
the people’s police, which employ laborers other than officers,
non-commissioned officers, soldiers;
e) Cooperatives (for laborers other than
cooperative members), households and individuals, that employ laborers;
f) Non-public educational, medical, cultural or
sport establishments set up under the Government’s Decree No.73/1999/ND-CP of
August 19, 1999 on policies to encourage the socialization of activities in the
educational, medical, cultural and sport domains.
g) Foreign or international agencies,
organizations or individuals, that are based in the Vietnamese territory and
employ laborers being Vietnamese except for cases otherwise provided for by
international treaties which the Socialist Republic of Vietnam has signed or
acceded to;
h) Vietnamese enterprises, agencies,
organizations and individuals, that employ foreign laborers, except for cases
otherwise provided for by international treaties which the Socialist Republic
of Vietnam has signed or acceded to.
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a) People being subjects governed by the
Ordinance on Public Officials and Employees;
b) Deputies to the National Assembly, deputies
to the People’s Councils of all levels, who work on a full-time basis; persons
holding various positions in the agencies of the National Assembly, the
Government, the People’s Committees at all levels, the People’s Courts and the
People’s Procuracies, who are elected or appointed by the National Assembly or
the People’s Councils at all levels according to terms of office;
c) Persons appointed by competent bodies to the
posts of general director, deputy-general director, director, deputy-director
and chief accountant in the State enterprises;
d) Members of the Managing Boards of
enterprises;
e) Persons of political organizations,
socio-political organizations, operating under the statutes of such
organizations;
f) Full-time officials performing the works of
the Party, Trade Union or Youth organizations in enterprises but not salaried
by the enterprises;
g) Cooperative members under the Law on Cooperatives,
who do not enjoy salaries, remuneration;
h) Officers, non-commissioned officers,
soldiers, career armymen and public employees in the people’s army and the
people’s police forces.
Chapter II
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Article 3.- Forms and contents of entering into labor contracts
prescribed in Articles 28 and 29 of the Labor Code are stipulated as follows:
1. Labor contracts concluded in writing shall
comply with the forms set by the Ministry of Labor, War Invalids and Social Affairs.
2. Labor contracts concluded in writing or
verbally entered into must ensure the contents prescribed in Article 29 of the
amended and supplemented Labor Code.
In case of verbal conclusion, if witnesses are
needed, the two parties shall reach agreement thereon.
Article 4.- The application of types of labor contracts prescribed in
Article 27 of the amended and supplemented Labor Code is stipulated as follows:
1. The labor contracts with indefinite terms
shall apply to jobs with undeterminable time of termination or jobs with a term
of over 36 months.
2. The labor contracts with definite terms shall
apply to jobs with determined termination time of between full 12 months and
full 36 months;
3. The labor contracts based on seasons or
certain jobs with a term of under 12 months shall apply to jobs which can be
completed within a period of less than 12 months or to cases of temporary
replacement of disciplined laborers who have been transferred to other jobs for
given periods of time, laborers subject to temporary postponement of the
performance of contracts, laborers who leave their jobs for other reasons and
to pensioners.
4. When the labor contracts prescribed in
Clauses 2 and 3 of this Article expire while the laborers keep working, within
30 days as from the date the labor contracts expire, the two parties must sign
new labor contracts. Pending the signing of new labor contracts, the two
parties must abide by the signed labor contracts. If past the 30 day- time
limit, new labor contracts are not signed, the already concluded labor
contracts shall become labor contracts with indefinite terms. In cases where
newly signed labor contracts are those with definite terms, they can be signed
only for an additional period of no more than 36 months; then if the laborers
continue to work, the labor contracts with indefinite term shall be signed; if
no signing is made, they shall naturally become the labor contracts with
indefinite term.
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CONCLUSION, CHANGE,
POSTPONEMENT AND TERMINATION OF LABOR CONTRACTS
Article 5.- The conclusion of labor contracts, prescribed in Articles 30
and 120 of the Labor Code is stipulated as follows:
1. Labor contracts shall be concluded directly
between laborers and employers or can be concluded between employers and
lawfully authorized persons representing groups of laborers. In cases where
labor contracts are signed by lawfully authorized persons, the lists of
laborers with their full names, ages, residence addresses, professions and
signatures must be enclosed therewith. These contracts shall be valid as those
signed with laborers separately and shall apply only to cases where employers
need laborers to do a certain seasonal job which shall be completed within a
period of less than 12 months or jobs which shall be completed within a
definite period of between full 12 months and 36 months.
2. A laborer can enter into many contracts with
many employers if they are capable of performing many contracts and must ensure
the time for working and the time for rest as prescribed by law. For labor
contracts signed with pensioners, with persons doing jobs for a period of less
than 3 months, the social insurance and medical insurance premiums, travel
fares and annual leave pay shall be included in the salaries or remuneration of
the laborers.
3. For production and business lines and jobs
where under-15 children can be employed as provided for in Article 120 of the
Labor Code, the conclusion of labor contracts must be consented in writing by
such children’s fathers, mothers or lawful guardians in order to be valid.
Article 6.- The employment plans prescribed in Article 31 of the amended
and supplemented Labor Code are stipulated as follows:
In case of merger, consolidation, separation of
enterprises, transfer of rights to own, manage or to use property of,
enterprises, where the existing number of laborers are not used up, the
employment plans must be worked out to cover the following major contents:
1. The number of laborers continued to be
employed;
2. The number of laborers to be re-trained for
continued employment;
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4. The number of laborers who must terminate
their labor contracts;
5. The previous employers and the succeeding
employers shall have to settle the interests of the laborers, clearly
identifying the responsibility for the re-training funding, job-loss allowance
funding for laborers who have to terminate their labor contracts.
The elaboration of the employment plans must be
participated by the grassroots trade union organizations and the implementation
thereof must be notified to the provincial-level State management agencies in
charge of labor.
Article 7.- The provision that employers and the laborers shall reach
agreement on job probation prescribed in Article 32 of the Labor Code, is
stipulated as follows:
1. The probation period must not exceed 60 days
for jobs requiring the professional and technical qualifications of collegial
or higher level.
2. The probation period must not exceed 30 days
for jobs requiring the intermediate level, technical workers, professional
personnel.
3. The probation period must not exceed 6 days
for other laborers.
4. Upon the expiry of the probation periods, the
employers shall notify the probationary results to the laborers. If the
requirements are met, the two sides shall proceed with the conclusion of labor
contracts or if the laborers are not notified thereof but continue working,
they shall naturally be officially employed.
Article 8.- Effect and change of contents of labor contracts, prescribed
in Article 33 of the amended and supplemented Labor Code, are stipulated as
follows:
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2. If in the course of performance of labor
contracts either party requests the change of contents of the labor contracts,
it/he/she must notify the other party thereof at least three days in advance.
If such is agreed upon, the two parties must proceed with the amendment and
supplementation of the contents according to the procedures guided by the
Ministry of Labor, War Invalids and Social Affairs or sign new labor contracts.
During the period of negotiation thereon, the two parties must still abide by
the already signed contracts. In cases where the two parties fail to reach
agreement, they shall continue with the already concluded labor contracts or
agree to terminate the labor contracts according to Clause 3, Article 36 of the
Labor Code.
Article 9.- The temporary transfer of laborers to other jobs which they
are not accustomed to, as provided for in Article 34 of the Labor Code is
stipulated as follows:
1. When employers meet with unexpected
difficulties due to natural calamities, fires, epidemics; the application of
measures to prevent, overcome labor accidents, occupational diseases; power and/or
water supply failure or due to production and business demands, they may
temporarily transfer laborers to other jobs which they are not accustomed to,
but for not more than 60 days (gradually added up) in a year. During this
period, if the laborers refuse to abide by the employers’ decisions, they may
be subject to labor discipline and shall not be paid for their work
interruption as provided for in Clause 2, Article 62 of the Labor Code, and
shall, depending on the seriousness of their violations, be disciplined under
the provisions in Article 84 of the amended and supplemented Labor Code.
2. Where employers temporarily transfer laborers
to other jobs which they are not accustomed to for more 60 days (added up) in a
year, there must be the laborers’ consents; if the laborers refuse to accept
and have to stop working, they shall enjoy salaries as provided for in Clause
1, Article 62 of the Labor Code.
Article 10.- The temporary postponement of contract performance under
the provisions in Article 35 of the Labor Code is stipulated as follows:
1. Upon the expiry of the period of contract
performance postponement prescribed at Points a and c of Clause 1, Article 35
of the Labor Code, the laborers must be present at the workplace; the employers
shall have to arrange jobs for the laborers; if the laborers come to work at
the right time as prescribed and have to wait for work, they shall enjoy
salaries as provided for in Clause 1, Article 62 of the Labor Code.
In cases where past five working days as from
the date of expiry of the temporary postponement of the labor contracts, the
laborers fail to come to the workplaces without plausible reasons, they shall
be handled according to the provisions at Point c, Clause 1, Article 85 of the
amended and supplemented Labor Code.
2. Laborers kept in criminal custody, detention
shall, upon the expiry of the temporary postponement of labor contracts, be
handled as follows:
a) Regarding the criminal custody or detention
related directly to the labor relations, when the custody or detention expires
or when the court concludes that the laborers are victims of injustice, the
employers must reinstate them to their former jobs, fully pay their salaries
and other interests for the duration they were held in custody or detention under
the provisions in the Government’s Decree No.114/2002/ND-CP of December 31,
2002 detailing and guiding the implementation of a number of articles of the
Labor Code regarding salaries and wages.
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b) Where laborers are criminally held in custody
or detention without relating directly to the labor relations, upon the expiry
of the custody or detention period, the employers shall arrange them to their
former jobs or to new jobs.
Article 11.-
The laborers working under labor contracts with definite
terms, or doing seasonal or certain jobs with terms of less than 12 months are
entitled to unilaterally terminate the labor contracts ahead of time for cases
prescribed at Points c and d, Clause 1, Article 37 of the amended and supplemented
Labor Code is stipulated as follows:
1. They are ill-treated or forced to work, being
the cases where the laborers are beaten, insulted or forced to do jobs not
suitable to their genres, affecting their health, dignity and honor.
2. They or their families are really in plight,
thus being unable to continue with the labor contracts for the following
reasons:
a) Changing their permanent residence to other
places, which cause numerous difficulties in travel and working;
b) Being allowed to go abroad for residence;
c) Having to stop working in order to look after
their wives (husbands); fathers and/or mothers, including their in-law parents,
or children, who get sick for 3 months or more;
d) Their families meet with other difficult
circumstances with certification by the commune-level administrations of the
localities where they reside, which render them unable to continue with the
performance of their labor contracts.
Article 12.-
The provision that employers are entitled to
unilaterally terminate their labor contracts in cases prescribed at Points a
and d, Clause 1, Article 38 of the amended and supplemented Labor Code is
stipulated as follows:
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The extent of failure to fulfill the work shall
be inscribed in labor contracts, collective labor agreements or labor
regulations of the units.
2. Force majeure reasons mean the cases where
due to the requests of competent State bodies of the provincial or higher
level, to enemy sabotage or epidemics which cannot be overcome, the production
and/or business are subject to change or shrink.
Article 13.-
The compensation for training costs prescribed in Clause
3, Article 41 of the amended and supplemented Labor Code, is stipulated as
follows:
Laborers who unilaterally terminate their labor
contracts shall have to reimburse the training costs as prescribed at Clause 4,
Article 32 of the Government’s Decree No.02/2001/ND-CP of January 9, 2001,
detailing the implementation of the Labor Code and the Education Law regarding
the job training, except for cases where the termination of labor contracts
strictly and fully comply with the provisions in Article 37 of the amended and
supplemented Labor Code.
Article 14.- The severance allowance upon termination of labor
contracts, prescribed in Article 42 of the Labor Code is stipulated as follows:
1. The employers shall have the responsibility
to pay severance allowances to the laborers who have worked for full 12 months
or more, as prescribed in Clause 1, Article 42 of the Labor Code, in cases of
terminating the labor contracts under Article 36 of the Labor Code; Article 37,
Points a, c, d and e, Clause 1, Article 38, Clause 1 of Article 41; Point c,
Clause 1, Article 85 of the amended and supplemented Labor Code.
In cases where labor contracts are terminated
under the provisions at Points a and b of Clause 1, Article 85 and laborers
retire and enjoy the monthly pension regime prescribed in Article 145 of the
amended and supplemented Labor Code, the laborers shall not be provided with
severance allowances.
In cases where labor contracts are terminated
under the provisions in Clause 1, Article 17 of the Labor Code and Article 31
of the amended and supplemented Labor Code, the laborers shall not enjoy the
severance allowances prescribed in Clause 1, Article 42, but the job-loss
allowances prescribed in Clause 1, Article 17 of the Labor Code.
In cases where laborers terminate their labor
contracts in contravention of law, as prescribed in Clause 2, Article 41 of the
amended and supplemented Labor Code, which means they terminate the labor
contracts not for the right reasons prescribed in Clause 1 or without advance
notices as provided for in Clauses 2 and 3 of Article 37 of the amended and
supplemented Labor Code, they shall not be paid with the severance allowances.
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a) For enterprises, the sources of funding for
payment of severance allowances shall be accounted into their production costs
or circulation charges;
b) For administrative and/or non-business
agencies enjoying salaries and wages from the State budget and employing
contractual laborers, the sources of budget for payment of severance allowances
shall be provided by the State budget in such agencies’ regular expenditures;
c) For other agencies, organizations, units and
individuals employing laborers under labor contracts, they have to pay
severance allowances by themselves.
3. Working seniority for calculation of
severance allowances:
a) The working seniority for calculation of
severance allowance means the total time amount for working under concluded
labor contracts (including orally concluded contracts), during which the
laborers have actually worked for the employers;
b) Laborers who were once workers or State
employees and now still work in their units, the working seniority for
calculation of severance allowances is the total amount of time working in such
units;
c) Where laborers, before working for State
enterprises, once worked for other units in the State sector, but have not yet
enjoyed the severance allowances, the enterprises where the laborers terminate
their labor contracts shall have to pay severance allowances to such laborers
according to law provisions. The units employing such former laborers shall
have to make payment to the enterprises which paid the severance allowance; if
the previous enterprises have already terminated their operation, the State
budget shall make the reimbursement.
In cases where after the merger, consolidation,
division and separation of enterprises, the transfer of the rights to own,
manage or use the assets of, enterprises as provided for in Article 31 of the
amended and supplemented Labor Code, the laborers terminate the labor
contracts, the succeeding employers shall have to pay the severance allowances
to laborers, including the duration the laborers worked for the preceding
employers.
d) Apart from the above-mentioned duration, the
following duration, if any, shall also be counted as working duration for
employers:
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- The duration when enterprises, agencies or
organizations raise the laborers’ professional qualifications or send them for
job training;
- The duration the laborers take leave according
to the social insurance regime, the duration of rest under the provisions of
the Labor Code;
- The duration of waiting for work assignment
upon the expiry of the period of labor contract postponement or laborers’ paid
work stoppage;
- The duration of apprentice, practice at
enterprises, agencies or organizations;
- The duration of labor contract postponement
agreed upon by both parties;
- The duration of being wrongly handled with
dismissal from jobs or unilateral termination of labor contracts;
- The duration the laborers are suspended from
work under the provisions in Article 92 of the Labor Code.
4. The wage levels plus wage allowances (if any)
for calculation of severance allowances shall comply with the provisions in the
Government’s Decree No.114/2002/ND-CP of December 31, 2002 detailing and
guiding the implementation of a number of articles of the Labor Code regarding
wages.
5. The working duration with odd months for
laborers working for more than 12 months shall be rounded up as followed:
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- From full 6 months to 12 months, it shall be
rounded up to 1 working year.
6. The laborers enjoying severance allowances at
the levels prescribed in Clause 1, Article 42 of the Labor Code, shall be paid
directly in lumpsum at their workplaces and within the time limits prescribed
in Article 43 of the Labor Code.
Article 15.-
Responsibility of each party upon the termination of
labor contracts as provided for in Article 43 of the Labor Code:
The time limits for payment of amounts related
to the interests of each party shall comply with the provisions in Article 43
of the Labor Code.
For the following special cases: payment of
severance allowances to laborers who have worked at various enterprises as
provided for at Point c, Clause 3, Article 14 of this Decree; termination of
operation by enterprises or meeting with natural calamities or fires by either
party, for which the severance allowances, compensations and other amounts must
be paid, the payment thereof must not prolong for more than 30 days as from the
date of termination of labor contracts.
Article 16.- The rights, obligations and interests of the parties,
inscribed in the labor contracts which are declared invalid as provided for in
Clause 3, Article 29 and Clause 4 of Article 166 of the amended and
supplemented Labor Code shall be settled as follows: For any contents declared
invalid, the rights, obligations and interests of the parties shall be handled
according to the corresponding contents prescribed in the current legislation
and the lawful agreements in collective labor agreements (if any) as from the
time the labor contracts are concluded and take effect.
Chapter IV
IMPLEMENTATION PROVISION
Article 17.-
If the labor contracts concluded before the effective
date of this Decree contain contents not compatible with the amended and
supplemented Labor Code, they must be amended and supplemented; any articles
and clauses beneficial to laborers as compared to the provisions in the amended
and supplemented Labor Code shall still be implemented until the expiry of the
labor contracts. The amendment and supplementation of labor contracts must be
done within 6 months as from the date this Decree takes implementation effect;
if past the above time limit, no amendments and/or supplements are made, such
failure shall be regarded as acts of violating the labor legislation and the
labor contracts can be declared invalid by competent bodies under the provisions
in Clause 3, Article 29 and Clause 4 of Article 166 of the amended and
supplemented Labor Code.
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Article 18.-
1. This Decree takes
effect 15 days after its publication in the Official Gazette and replaces
Decree No.198/CP of December 31, 1994 of the Government, detailing and guiding
the implementation of a number of articles of the Labor Code on labor
contracts.
2. The Ministry of Labor, War Invalids and
Social Affairs and the Ministry of Finance shall base themselves on their
respective functions and assigned tasks to guide the implementation of this
Decree.
Article 19.- 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 centrally-run cities, the concerned
agencies, organizations, enterprises and individuals shall have to implement
this Decree.
ON BEHALF OF THE GOVERNMENT
PRIME MINISTER
Phan Van Khai