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THE GOVERNMENT
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.: 63/2015/ND-CP
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Hanoi, July 22nd, 2015
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DECREE
PROVIDING FOR POLICIES TOWARDS REDUNDANT EMPLOYEES DUE TO THE
RESTRUCTURING OF STATE-OWNED SINGLE MEMBER LIMITED COMPANIES
Pursuant to the Law on
Government organization dated December 25, 2001;
Pursuant to the Labor
Code dated June 18, 2012;
At the request of the
Minister of Labor, War Invalids and Social Affairs,
The Government
promulgates the Decree providing for policies towards redundant employees due
to the restructuring of state-owned single member limited companies.
Article
1. Scope of regulation
This Decree provides for
policies towards redundant employees in state-owned single member limited
companies affiliated to Ministries, ministerial-level agencies, Governmental
agencies, People’s Committees of provinces; parent companies of state-owned economic
corporations, parent companies of state-owned general companies, parent
companies of groups of companies - parent companies that are restructured
according to the plans approved by competent agencies (hereinafter referred to
as restructured companies), including:
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2. Conversion into
multi-member limited liability companies.
3. Conversion into public
service providers.
4. Merger, amalgamation,
split-up, separation.
5. Dissolution,
bankruptcy.
Article
2. Regulated entities
1. Redundant employees in
restructured companies specified in Article 1 of this Decree, including:
a) Employees on the list
of regular employees of the restructured companies according to the regulations
in Clause 1, 2, 3 and 4 Article 1 of this Decree that were recruited before
April 21st, 1998 (when the Directive No. 20/1998/CT-TTg made by the
Prime Minister on the promotion of restructuring and renovation of state-owned
enterprises is applicable), including:
- Employees who were
working for company, by the time of restructuring, the company cannot give them
any job after taking every possible measure;
- Employees who are on
the enterprises payrolls but have no work to do and, by the time of
restructuring, the company still cannot give them any job;
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b) Employees contained in
the list of regular employees of the company restructured according to
the regulations in Clause 5 Article 1 of this Decree that were recruited before
April 26th, 2002 (when the Decree No. 41/2002/ND-CP dated April 11th,
2002 by the Government on policies towards redundant employees due to the
restructuring of state-owned enterprises is applicable);
b) Employees contained in
the list of regular employees of the company restructured according to the
regulations in Clause 1, 2, 3 and 4 Article 1 of this Decree that were
recruited on April 21st, 1998 and afterwards, by the time of restructuring, the
company cannot give them any job after taking every possible measures;
d) Employees contained in
the list of regular employees of the company restructured according to the
regulations in Clause 1, 2, 3 and 4 Article 1 of this Decree that were
recruited on April 26th, 2002 and afterwards.
2. People who are
authorized by the restructured companies to carry out rights and
responsibilities of the company towards the capital of the company invested in another
enterprise and assume a specialized work in the management board in such
enterprise (hereinafter referred to as representative of the capital of the
company), including:
a) Representatives of the
capital of the restructured companies specified in Clause 1, 2, 3 and 4 Article
1 of this Decree, by the time of restructuring/the expiration of authority, the
company cannot give them any job after taking every possible measures;
b) Representatives of the
capital of the restructured companies specified in Clause 5 of this Decree.
3. Any agencies,
organizations, and individuals relating the implementation of the policies
towards the redundant employees due to the restructuring of state-owned single
member limited companies according to the regulations in this Decree.
Article
3. Policies towards redundant employees that are recruited before April 21st,
1998 or before April 26th, 2002
The policies towards the
redundant employees specified in Points a and b Clause 1 Article 2 of this
Decree by the time the competent agencies grant approval for the plans on labor
arrangement or the Court begins the bankrupt procedures are specified as
follows:
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a) Retirement pension is
not reduced due to premature retirement;
b) A pension equivalent
to 03-month salary shall be provided for every year of retirement (regardless
of odd months) before the regular time specified in Point a Clause 1 Article 50
of the Law on social insurance 2006 (applicable to people who retire before
January 01st, 2016) or in Point a Clause 4 Article 54 of the Law on social
insurance 2014 (applicable to people who retire from January 01st, 2016 or
later);
b) A pension equal to 01
month’s salary regulated by the Government shall be provided for every working
year having social insurance
2. Male redundant
employees from over 59 years old to under 60 years old and female redundant
employees from over 54 years old to under 55 years old who have been paying
social insurance for at least 20 years are eligible for retirement pension
according to the regulations in Clause 1 Article 50 of the Law on social
insurance 2006 (applicable to people who retire before January 01st, 2016) or
according to the regulations in Clause 4 Article 54 of the Law on social
insurance 2014 (applicable to people who retire from January 01st, 2016 or
later) and are eligible for the following benefits:
a) Retirement pension is
not reduced due to retirement before regular time;
b) A pension equal to 0.5
month’s salary regulated by the Government shall be provided for every working
year having social insurance.
3. If a employee is
eligible for retirement according to the regulations in Point a Clause 1
Article 50 of the Law on social insurance 2006 (applicable to people who retire
before January 01st, 2016) or according to the regulations in Point a Clause 1
Article 54 of the Law on social insurance 2014 (applicable to people who retire
from January 01st, 2016 or later) but still has to pay the social insurance
premiums for not more that 06 more months to be eligible for retirement
pension, then the remaining amount shall be paid in lump sum by the State to
the pension funds and death benefit funds to handle the retirement. The level
of payment for the remaining amount shall be equivalent to the social insurance
premium of the month before the resignation that is paid by the employee and
employer multiplied the number of remaining months.
4. Any redundant
employees specified in Point a Clause 1 Article 2 of this Decree who is not
eligible for the benefits prescribed in Clause 1, 2 and 3 of this Article shall
have the labor contract terminated and are eligible for:
a) Redundancy pay
according to the regulations in Article 49 of the Labor Code;
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- 1.5 months’ salary
regulated by the Government if the employee’s seniority is below 20 years;
- 0.5 month’s salary
regulated by the Government if the employee’s seniority is 20 to below 25
years;
- 0.2 month’s salary
regulated by the Government if the employee’s seniority is 25 years or more.
5. Any redundant
employees specified in Point b Clause 1 Article 2 of this Decree who is not
eligible for the benefits prescribed in Clause 1, 2 and 3 of this Article shall
have the labor contract terminated and are eligible for:
a) Severance pay
according to the regulations in Article 48 of the Labor Code;
b) A subsidy for each
year working at the restructured company as follows:
- 02 months’ salary if
the employee’s seniority is below 15 years;
- 0.7 months’ salary if
the employee’s seniority is 15 years to below 20 years;
- 0.3 months’ salary if
the employee’s seniority is 20 years or more.
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By the time the competent
agency grants approval for plans on labor arrangement or the Court begins the
bankrupt procedures, redundant employees specified in Point c and d Clause 1
Article 2 of this Decree shall have the labor contract terminated and are
eligible for:
1. Redundancy pay
prescribed Article 49 of the Labor Code applicable to redundant employees in
restructured companies specified in Clauses 1, 2, 3 and 4 Article 1 of this
Decree.
2. Severance pay
prescribed in Article 48 of the Labor Code applicable to redundant employees in
restructured companies specified in Clauses 5 Article 1 of this Decree.
Article
5. Policies towards representatives of the capital of company
1. Representatives of the
capital of the company prescribed in Clause 2 Article 2 of this Decree are
eligible for appropriate benefits specified in Article 3 of this Decree
(applicable to employees recruited before April 21st, 1998 or before
April 26th, 2002) or in Article 4 of this Decree (applicable to
employees recruited from April 21st, 1998 afterwards or from April
26th, 2002 afterwards).
2. Representatives of the
capital of the company are eligible for severance pay given by enterprise
invested by a restructured company for the actual working time of such
representatives at such enterprise.
Article
6. Working time as the basis for calculation of benefits
1. Working time for
calculation of redundancy pay, severance pay and subsidies specified in clauses
4 and 5 Article 3 and Article 4 of this Decree is the total of actual working
time of the employees (the employee who presents at working place and is
included in the payroll of the company) at the restructured company after
deducting the period of time the employee pay the unemployment insurance
premium according to the law provisions on unemployment insurance and the time
for which the restructured company has given severance pay, redundancy pay (if
any).
2. If the employee worked
for the restructured company since before January 01st, 1995, then working time
for calculation of redundancy pay, severance pay and subsidies specified in
Clauses 4 and 5 Article 3 and Article 4 of this Decree include the working time
for calculating redundancy pay, severance pay and subsidies specified in clause
1 of this Article and the actual working time of the employee at the State
organizations (State administrative agencies, public service providers of the
State, agencies affiliated to the armed forces paying by the State budget,
wholly state-owned enterprises, state-owned plantation/afforestation).
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Article
7. Salary as the basis for benefits
1. Salary as the basis
for benefits specified in Point b Clause 1 Article 3 of this Decree is
prescribed as follows:
a) Regarding redundant
employees specified in Clause 1 Article 2 of this Decree, salary as the basis
for benefits is the average salary agreed in the labor contracts of 05 last
years before the resignation;
b) Regarding the
representatives of the capital of the company specified in Clause 2 Article 2
of this Decree, salary as the basis for benefits is the monthly salary on which
social insurance premiums are paid of the last 05 years before the resignation.
2. Salary as the basis
for calculating the redundancy pay and severance pay specified in Point a
Clause 4, Point a Clause 5 Article 3 and Article 4 of this Decree and the
salary as the basis for calculating the subsidies specified in Point b Clause 5
Article 3 of this Decree is prescribed as follows:
a) Regarding redundant
employees specified in Clause 1 Article 2 of this Decree, salary as the basis
for calculating the pay is the average salary agreed in the labor contracts of
06 constant months before the resignation;
b) Regarding the
representatives of the capital of the company specified in Clause 2 Article 2
of this Decree, salary as the basis for calculating the pay is the average
salary agreed in the labor contracts of 06 constant months before being
authorized to take on the power and responsibilities of the company towards
their investment in another enterprise.
Article
8. Fundings for the implementation of policies towards redundant employees in restructured
companies
1. Fundings for the
implementation of policies towards redundant employees specified in Article 3
of this Decree and the representatives of the capital of the company are
prescribed as follows:
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b) Regarding companies
restructured according to the regulations in Clauses 2, 3 and 4 Article 1 of
this Decree, fundings for the implementation of policies towards redundant
employees shall be covered by Enterprise Arrangement and Development Fund shall
be provided;
c) Regarding companies
restructured according to the regulations in Clause 5 Article 1 of this Decree,
fundings for the implementation of policies towards redundant employees shall
be given by the income according to the law provisions; if the money is
insufficient, a subsidy from Enterprise Arrangement and Development Fund shall
be provided.
2. Fundings for the
implementation of policies towards redundant employees specified in Article 4
of this Decree and the representatives of the capital of the company are
prescribed as follows shall be included in production and business costs of the
restructured company.
Article
9. Responsibilities of restructured companies and the companies after
restructuring
1. Responsibilities of
restructured companies:
a) Recheck the
organizational structure of divisions, system of norms, positions in each
groups, workshops, divisions;
b) Depending on the
development strategy of the company after restructuring, establish a plan on
use of employees according to the regulations in Article 46 of the Labor Code
ensuring the effective use of employees;
c) Cooperate with the
representative organizations of employees at the establishment organizing Labor
conference to collect suggestions about plans on use of employees and handling
of redundant employees, request competent agencies to approve; publish the
plans on use of employees and handling of redundant employees in companies;
d) Propagate, disseminate
the policies on redundancy to employees in the company;
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e) Report to the owner
the solution of redundancy according to the regulations in this Decree.
2. Responsibilities of
companies after restructuring:
a) Every year, conduct
assessment of the recruitment and use of employees of the company;
b) Give the redundancy
pay/severance pay to employees transferring from restructured companies when
such employees lose or resign from their job after the restructuring for the
actual time working at the companies after restructuring and the actual time
working at restructured companies, including the time such employees working at
other state-owned companies who transfer to restructured companies before
January 01, 1995 and have not received redundancy pay/severance pay.
Article
10. Responsibilities
1. Responsibilities of
the Ministry of Labor, War Invalids and Social Affairs:
a) The Minister of Labor,
War Invalids and Social Affairs is responsible for providing guidance on the
implementation of this Decree;
b) Monitor the
implementation of policies towards redundant employees according to the
regulations in this Decree;
c) Every year,
periodically reckon up and report to the Prime Minister the implementation of
this Decree.
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a) Guide the restructured
companies to provide the benefits and make statements of funding for policies
towards redundant employees according to the regulations in this Decree;
b) Receive the documents,
conduct appraisal and give decision on taking money from Enterprise Arrangement
and Development Fund to implement the policies towards redundant employees
according to the regulations in this Decree;
c) Direct the State
Capital and Investment Corporation to draw on its fund, supervise the provision
of benefits and making of statements by restructured companies within the
coverage of the Enterprise Arrangement and Development Fund, report the
management and use of the Enterprise Arrangement and Development Fund for
general report;
d) Monitor the payout of
Enterprise Arrangement and Development Fund for redundant employees;
dd) Cooperate with the
Ministry of Labor, War Invalids and Social Affairs in the inspection and
monitoring of the implementation of policies towards redundant employees
according to the regulations in this Decree;
e) Every year,
periodically collect and report to the Prime Minister the management and use of
Enterprise Arrangement and Development Fund, concurrently report to the
Ministry of Labor, War Invalids and Social Affairs for collection and general
supervision.
3. Responsibilities of
social insurance:
a) Guide the collection of
social insurance money according to the regulations in this Decree;
b) Carry out the social
insurance scheme for employees according to the regulations in this Decree and
the guidance of the Ministry of Labor, War Invalids and Social Affairs.
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a) Guide the restructured
companies to draw up plans on use of employees according to the law provisions
and implement the policies towards redundant employees according to the
regulations in this Decree;
b) Grant approval for the
plans on use of employees and handling of redundant employees for each
restructured company specified Article 1 of this Decree;
c) Establish an
organization to carry out the policies towards redundant employees in companies
that are dissolved or bankrupt;
d) Monitor the
implementation of policies towards redundant employees of restructured
companies according to the regulations in this Decree;
dd) Every year,
periodically report to the Ministry of Labor, War Invalids and Social Affairs
the implementation of policies towards redundant employees for collection and
report to the Prime Minister.
5. Request Vietnam General
Confederation of Labour to:
a) Direct the
organization representing the employees at the establishment to cooperate with
restructured companies to propagate and disseminate the policies towards
redundant employees according to the law provisions; contribute in the plans on
use of employees; supervise the provision of benefits for redundant employees
of restructured companies;
b) Cooperate with the
Ministry of Labor, War Invalids and Social Affairs, the Ministry of Finance and
the owners in monitoring the implementation of policies towards redundant
employees of restructured companies according to the regulations in this
Decree.
Article
11. Effect
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The Decree No.
91/2010/ND-CP dated August 20th, 2010 by the Government providing
for the policies towards redundant employees due to the restructuring of
state-owned single member limited companies is annulled by the effect of this
Decree.
Any restructured
companies having plans on handling of redundant employees approved by a
competent agency before the effective date of this Decree shall comply with the
regulations in the Decree No. 91/2010/ND-CP dated August 20th, 2010
by the Government.
2. Any single member
limited companies owned by a political organization or a socio-political
organizations that carries out the restructuring according to the plans
approved by a competent agencies may apply the regulations in this Decree to
handle the policies towards redundant employees. Fundings for handling of policies
towards redundant employees taken from the initial sale of shares or sale of
enterprises (applicable to companies that are equitized or sold) or from other
lawful sources (applicable to companies that are dissolved, bankrupt) or from
lawful fundings from the owners (applicable to companies that are transformed
into multi-member limited liability companies or public service providers,
companies that are merged, amalgamated, split up or separated); if such
fundings are not sufficient, a supplement from other lawful fundings shall be
provided according to the decision of the owners.
3. Any state-owned
companies, agriculture companies, forestry companies having not been
transformed into State-owned limited liability companies that is restructured
according to the regulations on Article 1 of this Decree shall carry out the
policies towards redundant employees according to the regulations in this
Decree.
4. Any public service
providers carrying out the equitization according to the decision of a
competent agency may apply the regulations in this Decree to implement the
policies towards redundant employees/officials in joint-stock companies.
Fundings for implementing the policies towards redundant employees/officials in
joint-stock company are taken from the initial sale of shares when carrying out
the equitization of public service providers; if the fundings are not
sufficient, a supplement taken from Enterprise Arrangement and Development Fund
shall be provided.
5. Any limited liability
companies owned by the parent company of a state-owned economic corporation,
parent company of a state-owned general company, parent company of a group of
companies - parent companies specified in Article 1 of this decree that carries
out the restructuring according to the plans approved by a competent agency may
apply the regulations in this Decree to implement the policies towards
redundant employees. Fundings for the implementation of policies towards
redundant employees, representatives of the capital of the company shall comply
with the regulations in Article 8 of this Decree. If the fundings are not
sufficient, a supplement taken from Enterprise Arrangement Fund at state-owned
economic corporations, state-owned general companies, groups of
companies-parent companies shall be provided.
6. The salary as the
basis for calculating the benefits specified in Point b Clause 1, Clause 3,
Clause 4, Clause 5 Article 3 and Article 4 of this Decree shall be the amount
for calculating social insurance premium according to the regulations and
guidance of competent agencies until the restructured company formulates the
pay scale and payroll according to the regulations in the Decree No.
49/2013/ND-CP dated May 14th, 2013 by the Government.
7. Apart from the
benefits specified in Articles 3, 4 and 5 of this Decree, state-owned single
member limited companies that are restructured according to the regulations in
Article 1 of this Decree should provide additional support for redundant
employees taken from the lawful fundings of the company after discussing with
representative organizations of employees at the company.
8. Ministers, Heads of
ministerial-level agencies, Heads of Governmental agencies, the President of
the People’s Committees of provinces, Member assemblies of state-owned economic
corporations, state-owned general companies shall be responsible for
implementing this Decree./.
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ON BEHALF OF THE GOVERNMENT
THE PRIME MINISTER
Nguyen Tan Dung