Nghị định 111/2022/NĐ-CP hợp đồng một số loại công việc trong cơ quan hành chính

DECREE

On contracts for performance of tasks of administrative bodies and public service providers

Pursuant to the Law on Governmental Organization dated June 19, 2015; Law on amendments to the Law on Governmental Organization and the Law on Local Government Organization dated November 22, 2019;

Pursuant to the Labor Code dated November 20, 2019;

Pursuant to the Civil Code dated November 24, 2015;

Pursuant to the Law on Officials dated November 13, 2008;

Pursuant to the Law on Public Employees dated November 15, 2010;

Pursuant to the Law on Officials dated November 13, 2008; Law on amendments to some articles of the Law on Officials and Law on Public Employees dated November 25, 2019;

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The Government hereby promulgates a Decree on contracts for performance of tasks of administrative bodies and public service providers.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Decree provides for the execution of contracts for performance of tasks of administrative bodies and public service providers.

Article 2. Regulated entities

1. State administrative bodies (SAAs) of the Central Government, provinces, districts and communes.

2. Agencies of the Communist Party of Vietnam (CPV), Vietnam Fatherland Front and socio-political organizations of the Central Government, provinces and districts.

3. Public service providers (PSPs).

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5. Public service providers affiliated to the Ministry of National Defense and the Ministry of Public Security comply with relevant laws; applying the regulations in this Decree at the request of the Minister of National Defense and the Minister of Public Security.

6. Diplomatic missions, consulates, representative missions of international organizes and other missions of Vietnam in foreign countries complying with regulations of law on overseas Vietnamese representative missions and the regulations in this Decree.   

7. Agencies, organizations, units and individuals signing service contracts and employment contracts.

Article 3. Policies of the State on execution of contracts for performance of tasks of administrative bodies and public service providers

1. Strengthen the mechanism for self-control and self-responsibility of PSPs; conclude employment contracts with public employees to fill the vacancies at PSPs according to their level of autonomy while still maintaining the downsizing policies and decreasing salaried employees getting paid from the state budget in PSPs.

2. Promote socialization and ensure sources performing the task for providing basic and essential public services; strengthen the public-private partnership performance in terms of human resources, especially health and education; grant financial autonomy to PSPs that are fully funded by the State.

3. Sign employment contracts and service contracts to hold administrative support positions in administrative bodies and PSPs of which service contract is given priority; do not sign employment contracts to hold professional positions in administrative bodies and service contracts to hold professional positions in PSPs, except cases prescribed in Clause 6 Article 9 of this Decree.  

4. Employees signing employment contracts to hold professional positions in PSPs must fully satisfy standards and requirements of job titles of specialists and generalists; shall apply regulations on rights and obligations of public employees as prescribed by law, rules and statutes of agencies, organizations, units and agreements in such contracts; the planning and appointment shall comply with regulations of the VCP and of law.

5. Employees working under employment contracts in administrative bodies and PSPs shall not be on government payrolls and employees whose salaries are paid from the state budget shall be approved by competent authorities. PSPs are responsible for reviewing annually to recruit a number of salaried employees getting paid from state budget according to the assignment of competent authorities; the conclusion of contracts prescribed in this Decree is not meant to replace the recruitment of officials and public employees.  

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Article 4. Works for executing contracts  

1. Administrative support positions in administrative bodies and PSPs that are under management and regulations of labor law, civil law and other relative laws include:

a) Drivers, security guards, except cases prescribed in clause 2 of this Article;

b) Receptionists, staffs; housekeepers; security vehicle patrol officers; maintenance and operations staffs of headquarters, equipment and machinery serving operations of agencies, organizations and units;

c) Other administrative support positions which are specified in the list of administrative support positions in administrative bodies and PSPs and are not identified as officials and public employees as prescribed by law.

2. Administrative support positions in administrative bodies that are under management and regulations similar to officials include:

a) Security guards at agencies and units: Central Office of the Communist Party of Vietnam, Office of the President, Office of the National Assembly, Office of the Government; Vaults or archives of money-equivalent prints of the State Bank of Vietnam, State Treasury, archives of tax prints, archives of customs prints;

b) Drivers of Ministers or positions and titles equivalent to Ministers or higher positions; drivers of cash transport vehicles of the State Bank of Vietnam and State Treasury;

c) Other administrative support positions at central crucial agencies and secret services according to decisions of heads of competent authorities.

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Article 5. Forms and types of contracts and contract requirements

1. Employees holding positions prescribed in Article 4 of this Decree shall be contracted in writing; if a contract is made by electronic means in the form of data messages according to regulations of law on electronic transactions, the electronic contract is valuable as the written contract. Types of signed contracts include:

a) Service contracts under regulations of civil law and other relative laws;

b) Employment contracts under regulations of labor law and regulations in this Decree.

2. Contract requirements

a) For administrative bodies and PSPs: it is required to have demands for conclusion of contracts for performance of tasks prescribed in Article 4 of this Decree and fully meet other requirements as prescribed by law;

b) For organizations providing services: it is required to fully meet operating requirements as prescribed by law, ensure employees’ regulations as prescribed by labor law and other relative laws;  

c) For individuals: it is required to fully meet standards and requirements as prescribed in Clause 1 Article 8 if individuals conclude employment contracts for having administrative support positions or Clause 1 Article 10 if individuals conclude employment contracts for professional positions as prescribed in this Decree.

Chapter II

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Article 6. Contracts for holding administrative support positions

1. Administrative agencies and PSPs shall conclude service contracts to hold administrative support positions in their agencies, organizations and units; if there is no qualified service provider, they shall conclude employment contracts with individuals for performance of the above-mentioned tasks.

2. Terms and conditions of contracts; contents, rights, obligations and other regulations shall be under regulations of labor law, civil law and other relative laws.  

Article 7. Power to conclude contracts for holding administrative support positions

1. For administrative bodies: heads of administrative bodies that are assigned human resources and funding to act as focal points  have power over conclusion of contracts and decision on the number of contracts or are able to decentralize or authorize heads of affiliated agencies and units in writing.

2. For PSPs: Heads of PSPs have power to conclude contracts.  If they do not directly conclude contracts, they are able to authorize heads of affiliated units. The authorization must be granted in writing.

Article 8. Standards, requirements, rights and obligations of parties of contracts for holding administrative support positions

1. Individuals concluding employment contracts for holding administrative support positions must fully satisfy the following standards and requirements:

a) Have Vietnamese nationality;

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c) To be in good health for working;

d) Have resumes confirmed by competent authorities;

dd) Be able to satisfy requirements of positions;

e) Is not undergoing criminal prosecution or serving an imprisonment, community sentence or compulsory educational measures in the community; be sent to reformatories; be sent to compulsory educational institutions and compulsory drug rehabilitation centers; do not be in the period of prohibition against practice or prohibition on performing tasks related to required tasks in contracts;

g) Meet other standards and requirements according to specialized law and standards and requirements of positions as prescribed by competent recruiting agencies. 

2. Rights of employees

a) Employees holding administrative support positions prescribed in Clause 1 Article 4 of this Decree shall be entitled to salaries and other benefits as agreed upon in employment contracts.  Salaries prescribed in employment contracts shall be applied in two forms: salary levels are applied according to salary agreements in conformity with labor law or salary levels are applied according to pay grades of officials and public employees within budgets of agencies, organizations and units. If pay grades officials and public employees are applied as prescribed in salary agreements, allowances (if any) in their salaries; salary increments and other benefits of officials and public employees shall also be applied;

b) In case of resignment of employees prescribed in Clause 2 Article 4 of this Decree who are not on payrolls of competent authorities and are entitled to the benefits prescribed in Section II Chapter II of the Law on Officials in 2008 and other laws on benefits and policies for officials, they shall not be entitled to the benefits prescribed in this Point and shall work under employment contracts as prescribed in Clause 1 Article 4 of this Decree if they still wish to hold administrative support positions. Recruitment, evaluation, planning, appointment and other contents related to official tasks shall comply with regulations of heads of managing authorities;

c) Employees holding positions prescribed in Clause 1 and Clause 2 Article 4 of this Decree shall be entitled to other rights as prescribed by labor law, except for other agreements.

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a) Perform tasks as agreed on in employment contracts and other tasks assigned by competent authorities;

b) Comply with rules, regulations and charters of agencies, organizations and units;

c) Abide by decisions of competent managing authorities.

4. For administrative bodies and PSPs

a) Conclude contracts included in the total contracts decided by competent authorities;

b) Pay salaries and provide benefits and policies to employees as agreed on or pay them according to service contracts in conformity with labor law and other relative laws.

5. For service providers

a) Fully meet standards and requirements of fields of operations;

h) Ensure quality of service provision;

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d) Provide services meeting requirements of service users as agreed on in contracts.

Chapter III

CONCLUSION OF CONTRACTS FOR HOLDING PROFESSIONAL POSITIONS

Article 9. Contracts for holding professional positions in PSPs

1. PSPs that cover their own regular expenditures and investment expenditures (hereinafter referred to as “group-1 units”) and PSPs that cover their own regular expenditures (hereinafter referred to as “group-2 units”) shall conclude employment contracts for holding professional positions undertaken by public employees in order to fill the vacancies of the units.

2. PSPs that cover part of their own regular expenditures (hereinafter referred to as “group-3 units”) shall conclude employment contracts to fill their vacancies for professional positions of providing public services that are not funded by state budget. For units that cover less than 70% of their own regular expenditures or units which are not assigned financial autonomy, it must be reported to competent supervisory authorities of PSPs for consideration before conclusion.  

3. PSPs of which regular expenditures are covered by state budget (hereinafter referred to as “group-4 units”), except for units providing education and health services, shall conclude employment contracts for a period of not exceeding 12 months for holding job titles of specialists and generalists to add human resources to add human resources found lacking compared to the number of employees assigned by competent authorities or to promptly replace the number of public employees who are on maternity leave, severance or retirement.

4. Group-4 units providing education and health services shall conclude employment contracts for a period of not exceeding 12 months for holding job titles of specialists and generalists to add human resources but the number of signers must not exceed 70% of the difference between the number of the assigned employees and the number of employees prescribed in the norm issued by the Ministry of Education and Training and the Ministry of Health.   The number of contracts shall be considered and decided by the People's Councils of provinces or ministries, ministerial agencies, Governmental agencies and supervisory agencies of the Central Government.

5. Group-3 units and group-4 that still have vacancies for the positions assigned by competent authorities must fill them.

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Article 10. Standards, requirements, rights and obligations of parties to employment contracts

1. Individuals concluding employment contracts for holding professional positions must fully satisfy the following standards and requirements and have the following rights:

a) Fully meet the standards and requirements specified in Clause 1 Article 8 of this Decree;

b) Fully meet standards and requirements for professional positions as prescribed by specialized law;

c) Be responsible for their professions as prescribed by law, as agreed on in contracts and at the requests of PSPs;

d) Working periods under employment contracts (excluding training periods and challenge periods) for employees signing employment contracts for holding professional positions shall be the basis for salary payment based on positions that employees hold if they are recruited to work as officials or public employees. The building of pay grades corresponding to positions that employees are recruited shall comply with regulations of law;

dd) Be entitled to benefits and policies as prescribed in Point a, Point c Clause 2 Article 8 of this Decree.

2. For PSPs

a) Conclude contracts included in total contracts decided by competent authorities;

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c) Regularly monitor and evaluate specialities of employees signing employment contracts for folding professional positions;

d) Be responsible before state regulatory authorities for completion of tasks assigned;

dd) In case PSPs conclude employment contracts with individuals, they must increase contribution amounts to welfare funds in conformity with regulations of law on financial autonomy of PSPs for ensuring provision of benefits and policies in case of termination of employment contracts.

3. For service providers: Fully meet the standards and requirements as prescribed in Clause 5 Article 8 of this Decree.

Article 11. Power to conclude contracts for holding professional positions

1. Regarding group-1 units, group-2 units and group-3 units that cover from 70% to less than 100% of their own regular expenditures: heads of units or persons authorized to sign contracts.

2. Regarding group-3 units that cover from 10% to less than 70% of their own regular expenditures and group-4 units: persons having power to sign employment contracts with public employees as prescribed by law on public employees or person authorized to sign contracts.

3. Regarding conclusion of service contracts: heads of authorities having power to manage PSPs shall directly sign contracts according to proposals of PSPs or authorize heads of PSPs to sign them. In case the People’s Committees of districts are competent authorities, reports and written consents issued by the People’s Committees of provinces should be required and before signing contracts.

Chapter IV

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Article 12. Implementation fund

Funds for conclusion of contracts in this Decree are prescribed as follows:

1. For service contracts or employment contracts for holding administrative support positions in:

a) Administrative bodies: Funds for execution of such contracts are provided from state budget and other revenues (if any); beyond wage-fund of agencies and units;

b) Group-1 units and group-2 units: Funds for execution of such contracts shall be provided by the units as prescribed by law on financial autonomy of PSPs;

c) Group-3 units: revenues from service operations are used to execute such contracts; funding from state budget (if any) is used if total regular expenditures covered by state budget are not increased as prescribed;

d) Group-4 units: Funds for execution of such contracts are allocated from regular expenditures as prescribed by law on financial autonomy of PSPs.

2. For employment contracts for holding professional positions in:

a) Group-1 units and group-2 units: Comply with the regulations in Point b Clause 1 of this Article;

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c) Group-4 units (excluding group-4 units providing education and health services): Comply with the regulations in Point d Clause 1 of this Article;

d) Group-4 units providing education and health services: funds for execution of contracts for contractual employees decided by the People's Councils of provinces as prescribed in Clause 1 Article 9 of this Decree are allocated from regular expenditures covered by local budget (except for the unit's own budget). Units affiliated to ministries, ministerial agencies, Governmental agencies and supervisory agencies of the Central Government shall be funded by state budget as prescribed by law on government budget hierarchy.

3. With regard to service contracts for holding professional positions prescribed in Clause 6 Article 9 of this Decree:  

a) Group-1 units and group-2 units: Comply with the regulations in Point b Clause 1 of this Article;

b) Group-3 units: Comply with the regulations in Point c Clause 1 of this Article;

c) Group-4 units: Comply with the regulations in Point d Clause 2 of this Article.

4. With regard to units providing particular financial mechanisms: salaries paid for contractual employees and other expenses (if any) for contractual employees shall comply with particular financial mechanisms approved by competent authorities.

Article 13. Transitional clauses

1. If employees holding administrative support positions as prescribed in Clause 1 Article 4 of this Decree are not transferred to sign employment contracts as prescribed in Decree No. 161/2018/ND-CP dated November 29, 2018 amending certain regulations on recruitment of officials, public employees, paygrade advancement for officials, rank promotion for public employees and conclusion of contracts for performance of tasks of administrative bodies and public service providers (hereinafter referred to as “Decree No. 161/2018/ND-CP”) and agencies, organizations and units refuse to sign service contracts, within 12 months from the date on which this Decree comes into force, such agencies, organizations and units must transfer to sign employment contracts. Signed employment contracts must provide assurance about legal rights and benefits of salaries, social insurance benefits and other benefits as by law. In case one of parties to a contract refuses to resign their contracts, severance terms shall be applied as prescribed by law.  

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If an employee, under regulations of this Clause, only is on a contract for less than 24 months of the remaining contractual period up to the day of retirement from the day on which this Decree comes into force, his/her tasks, benefits and policies shall be applied continuously and a contract renewal is not required at that time as prescribed in this Decree.

2. Employees who used to hold administrative support positions and then removed from government payrolls due to government downsizing may sign employment contracts if they still wish to work and the following requirements are fully satisfied:

a) They used to hold administrative support positions as prescribed in Article 3 of Decree No. 68/2000/ND-CP which is amended by Clause 3 Article 3 of Decree No. 161/2018/ND-CP and have resigned such positions before the day on which this Decree comes into force;

b) They are on payrolls of agencies, organizations and units and have resigned administrative support positions prescribed in Clause 2 Article 4 of this Decree before the day on which this Decree comes into force.

3. Employees who are holding positions prescribed in Clause 2 Article 4 of this Decree and are on contracts according to Decree No. 68/2000/ND-CP shall not be required to renew their contracts as prescribed in this Decree. Benefits and policies shall be applied as prescribed in Point b Clause 2 Article 8 of this Decree.

4. Employees applicable to regulated entities prescribed in Article 3 of Decree No. 68/2000/ND-CP which is amended by Clause 3 Article 3 of Decree No. 161/2018/ND-CP, except for employees working at the Government Office and being recruited from the day on which this Decree comes into force, shall abide by regulations in Clause 2 Article 4 of this Decree, and shall not be on state official payrolls approved by competent authorities.

5. Employee who is working under an employment contract for holding a professional position as prescribed in Resolution No. 102/NQ-CP dated July 03, 2020 of the Government on solutions for state payroll in education and health sectors shall continue to execute his/her contract until the end of contractual period and be given priority over signing contracts for holding professional positions as prescribed in this Decree if contracting parties have demands for a contract renewal.

6. Agencies having power to manage officials are responsible for showing statistics on the number of employees who are holding administrative support positions as prescribed in Clause 1 and Clause 2 Article 4 of this Decree. If an employee is not on the payroll, a report must be submitted to a competent authority for considering and adjusting accordingly.

7. Employees who have been put on government payrolls before the day on which Decree No. 25/CP dated May 23, 1993 of the Government comes into force and are holding positions prescribed in Article 4 of this Decree shall not work under employment contract.

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Article 14. Entry into force

1. This Decree comes into force from February 22, 2023.

2. The following documents and regulations are invalid from the day on which this Decree comes into force:

a) Decree No. 68/2000/ND-CP dated November 17, 2000 of the Government on imposing contract regimes on certain tasks of state administrative bodies and service providers.

b) Article 3 of Decree No. 161/2018/ND-CP dated November 29, 2018 of the Government on amendments to certain regulations on recruitment of officials and public employees, paygrade advancement for officials, rank promotion for public employees, and conclusion of contracts for performance of tasks of administrative bodies and public service providers;

c) Clause 2 Article 7 of Decree No. 06/2013/ND-CP dated January 09, 2013 of the Government providing for protection of agencies and enterprises;

d) Resolution No. 102/NQ-CP dated July 03, 2020 of the Government on solutions for state payroll in education and health;

Article 15. Responsibilities for implementation

Ministers, Heads of ministerial agencies, Heads of Governmental agencies, Presidents of the People's Committees of provinces and central-affiliated cities, relevant organizations and individuals are responsible for implementation of this Decree./.

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ON BEHALF OF. GOVERNMENT OF VIETNAM
PP. PRIME MINISTER
DEPUTY PRIME MINISTER




Pham Binh Minh