THE
GOVERNMENT
-------
|
SOCIALIST
REPUBLIC OF VIET NAM
Independence
- Freedom - Happiness
------------
|
No.
38-CP
|
Hanoi
,June 25, 1996
|
DECREE
ON ADMINISTRATIVE SANCTIONS AGAINST VIOLATIONS OF LABOR
LEGISLATION
THE GOVERNMENT
Pursuant to the Law on Organization of the
Government of September 30, 1992;
Pursuant to the Labor Code of June 23, 1994;
Pursuant to the Ordinance on the Handling of Administrative Violations of July
6, 1995;
At the proposal of the Minister of Labor, War Invalids and Social Affairs,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- This Decree
shall apply to the organizations and individuals that violate labor legislation
but not yet seriously enough to be examined for criminal liability.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article 2.- The
principles of sanctioning violations of labor legislation:
1. Any violations must be promptly discovered
and handled. The handling must be conducted rapidly and fairly as stipulated by
law.
2. A violation shall be sanctioned only once. A
person who commits several violations shall be sanctioned for each of his/her
violations. If many persons together commit a violation, each of them shall be
sanctioned.
3. The handling of violations must be based on
the character and seriousness of the violation, the personality and the
attenuating or aggravating factors to decide a suitable form and rate of
fining.
4. If a violation involves one of the
attenuating factors mentioned in Article 3, it shall be given a 50% reduction
of the fining rate set for such violation. If it involves 2 or more attenuating
factors, it shall be given a two-thirds reduction of the fining rate set for
such violation.
5. If a violation involves one of the
aggravating factors mentioned in Article 4, the fining rate set for such
violation shall be doubled. If it involves 2 or more aggravating factors, the
fining rate set for such violation shall be trebled.
Article 3.- The
following factors shall be regarded as attenuating factors:
1. The guilty person has tried to prevent or
diminish the damage caused by the violation, or offer to settle the
consequences and compensate for the damage;
2. The guilty person is a pregnant woman, a
minor, an elderly person, a person who is rendered hardly conscious of or
incapable of controlling his/her actions by disease or disability.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
4. The person concerned commits the violation
out of ignorance.
Article 4.- The
following factors shall be regarded as aggravating factors:
1. Organized violations;
2. Repeated violations or recidivism;
3. Infringement on the rights and interests of
many laborers;
4. Infringement on the rights and interests of
women laborers; minor laborers; handicapped laborers; elderly laborers;
5. Urging or enticing minors to commit
violations, compelling those who are materially or spiritually dependent on him
or her to commit violations;
6. Committing a violation while being drunk on
liquor, beer or other stimulants;
7. Abusing one’s position and powers to commit a
violation;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
9. Committing a violation while serving a
criminal sentence or while carrying out a decision on administrative sanction;
10. Trying to evade the sanction or to cover up
the violation after committing it;
11. Refusing to abide by the decisions of the
State Inspector on labor.
Article 5.- The statute
of limitation for administrative sanction against violations of the labor
legislation:
1. The statute of limitation for imposing
administrative sanction against violations of the labor legislation is one
year, beginning from the date when the administrative violation is committed.
2. With regard to a person against whom a legal
action has been taken or who is being prosecuted, or to whom a decision has
been issued to stand trial according to the criminal proceedings, but a
decision is later issued to cancel the investigation or to cancel the trial,
only an administrative sanction shall be imposed if his/her violation shows
signs of an administrative violation, the statute of limitation for sanctioning
is 3 months beginning from the date when the cancellation decision is issued.
3. Within the time limit set in Items 1 and 2 of
this Article, if the individual or organization concerned commits a new
violation or deliberately avoids or obstructs the sanction, the statute of
limitation set in Items 1 and 2 of this Article shall not apply.
Article 6.- The time
limit after which the guilty organization or individual shall be regarded as
not yet being sanctioned for administrative violation:
More than a year after the enforcement of the
sanctioning decision or after the expiry of the decision, if the organization
or individual sanctioned as stipulated in this Decree does not commit another
violation, they shall be regarded as not yet being sanctioned for
administrative violation of the labor legislation.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
VIOLATIONS, FORMS AND
RATES OF FINE
Section I.
VIOLATION OF THE PROVISIONS ON LABOR RELATIONS
Article 7.- A fine of
200,000 VND shall be imposed on one of the following acts:
1. Violating the stipulations on direct, full
and due payment of salaries at the working place; compensation is defined in
Article 59 of the Labor Code;
2. Failing to have a change room, a bathroom and
a toilet for women where women workers are employed as stipulated in Item 1,
Article 116, of the Labor Code;
3. Failing to consult the representative of
women workers while deciding issues concerning the rights and interests of
women and children as stipulated in Item 1, Article 118, of the Labor Code.
Article 8.- A fine of
400,000 VND shall be imposed on one of the following violations:
1. Paying less than 70% of the salary set for a
specific job during the probation period or extending the probation period for
more than 60 days for jobs with occupational grades which requires graduate or
post-graduate professional and technical level, and for more than 30 days for
jobs with occupational grades which requires the knowledge of medium-grade
workers, technical workers, specialized employees, and for more than 6 days for
other jobs;
2. Violating the stipulations on the period of
time for the temporary transfer of a worker to another work or on the payment
of wages to laborers during that period as stipulated in Article 34 of the
Labor Code;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
4. The employer fails to sign a labor contract
with the laborers; or signs a contract not in conformity with Article 27 of the
Labor Code;
As to employers who employ dancers at dancing
floors and room-maids and employees at hotels and restaurants without signing a
labor contract, they shall be fined in accordance with the provisions of Item
3, Article 15, and Item 2, Article 22, of Decree No.88-CP of December 14,1995
of the Government stipulating sanctions against administrative violations in
cultural activities, cultural services and the prevention of a number of social
vices.
5. Refusing negotiations to sign or amend or
supplement collective labor arrangements after receiving a request from the
side that requests negotiations as stipulated in Item 1, Article 46, of the
Labor Code;
6. Violating the stipulations on the time limit
for suspension of work or on the advance of wage to laborers during the
suspension period as stipulated in Article 92 of the Labor Code;
7. The employer fails to pay full wages to the
laborers in case the suspension of work is caused by the employer himself or
herself as stipulated in Item 1, Article 62, of the Labor Code;
8. The employer pays a bonus which exceeds the
total of 6 months�
salary plus title allowance and subsidy currently stipulated for State-owned
enterprises; or a bonus that is lower than one month�s salary in foreign invested enterprises, and
enterprises in export processing zones and industrial parks; or the rate
reserved for bonuses lower than 10% of the profits in private enterprises as
stipulated in Article 64 of the Labor Code;
9. Paying laborers during the probation period
or the training period less than 70% of the wage of the laborers doing the same
work as stipulated in Item 2, Article 23, of the Labor Code.
Article 9.- A fine of
1,000,000 VND shall be imposed on one of the following violations:
1. Violating the stipulations on rest time in
mid-shift and between two shifts or violating the stipulations on weekly
holidays in Article 71 and Article 72 of the Labor Code;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
3. Violating the stipulations on annual leave in
Article 74, Article 75 and Article 76 of the Labor Code;
4. Violating the stipulations on the employment
of women laborers who are in the 7th month or more of pregnancy, or who are
bringing up a child less than 12 months old as stipulated in Items 1 and 2,
Article 115, of the Labor Code;
5. Employing women laborers, elderly laborers or
handicapped laborers to do heavy or dangerous work, or work in which they have
to contact toxic substances at variance with the stipulations in Article 113,
Item 3, Article 124, and Item 3, Article 127, of the Labor Code;
6. Employing minors to do heavy or dangerous
work, or work in which they have to contact toxic substances listed by the
Ministry of Labor, War Invalids and Social Affairs and the Ministry of Public
Health as stipulated in Article 121 of the Labor Code;
7. Violating the stipulations on the handling of
labor discipline stipulated in Item 2, Article 84, and Article 87 of the Labor
Code;
8. Violating the stipulations on the working
time for minors and handicapped laborers stipulated in Item 1, Article 122, and
Item 4, Article 125 of the Labor Code.
Article 10.- A fine of
1,500,000 VND shall be imposed on one of the following violations:
1. Violating the stipulations on the working
time as stipulated in Article 68 of the Labor Code;
2. Violating the stipulations on the loss-of-job
allowance as stipulated in Item 1, Article 17; on the regime of severance
allowances stipulated in Item 1, Article 42, of the Labor Code;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
4. Employers who impose forms of labor
discipline at variance with Item 1, Article 84, and Article 85 of the Labor
Code;
5. Employers who violate the stipulations on
extra payments to laborers who work extra time or work at night as stipulated
in Article 61 of the Labor Code;
6. Employers who fine laborers by cutting off
their wages at variance with the stipulations in Item 2, Article 60, of the
Labor Code;
7. The succeeding employer who refuses to
continue carrying out the labor contract with the laborers till the two sides
reach agreement on amending or terminating it, or to sign a new labor contract
in case of a merger or splitting of the enterprise, or the transfer of its
ownership or management or of the right to use the enterprises property as
stipulated in Article 31 of the Labor Code;
8. Using fraudulent and deceptive means to
pocket the insurance premiums of the laborers.
Article 11.- A fine of
2,000,000 VND shall be imposed on one of the following violations:
1. Enticing the laborers, making promises, or
putting up false advertisements to deceive them as stipulated in Article 19 of
the Labor Code;
2. Taking advantage of job placement service to
commit law-breaking acts at variance with the stipulations in Article 19 of the
Labor Code;
3. Abusing the title of job-teacher or
job-trainer to make profit by exploiting the laborers, or enticing, compelling
the job learners and trainees to commit law-breaking acts as stipulated in
Article 25 of the Labor Code;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
5. Committing discriminatory acts against women,
infringing on the honor and dignity of women laborers at variance with the
stipulations in Item 1, Article 111, of the Labor Code;
6. The employer sacks or unilaterally terminates
a labor contract with women laborers just because they are married, pregnant,
on maternity leave, or are bringing up a child under 12 months old, at variance
with the stipulations in Item 3, Article 111, of the Labor Code;
7. With regard to those enterprises where social
insurance buying is compulsory, the employer fails to pay social insurance
premiums stipulated in Item 1, Article 141, or pays social insurance premiums
at variance with the stipulations in Points (a) and (b), Item 1, Article 149,
of the Labor Code;
8. The employer is 30 days or more late in
paying social insurance premiums after the payment for the preceding month as
stipulated in Article 37 of the Regulations on Social Insurance issued together
with Decree No.12-CP of January 26, 1995 of the Government.
Article 12.- A fine of
3,000,000 VND shall be imposed on one of the following violations:
1. Paying the laborers less than the minimum
rate or paying the minimum rate to the trained professional and technical
workers at variance with the stipulations in Article 55 and Article 56 of the
Labor Code unless otherwise stipulated by the Government;
2. Resorting to violence; damaging machinery,
equipment and property of the enterprise or infringing on public order and
safety while on strike at variance with the stipulations in Item 3, Article
173, of the Labor Code;
3. Discriminating or retaliating against those
who take part in or who lead a strike, at variance with the stipulations in Item
1, Article 178, of the Labor Code;
4. Obstructing the exercise of the right to
strike or compelling other people to strike, at variance with the stipulations
in Item 2, Article 178, of the Labor Code;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Section II. VIOLATION OF
THE STIPULATIONS ON LABOR SAFETY
Article 13.- A fine of
200,000 VND shall be imposed on one of the following violations:
1. The laborers violate the stipulations on
labor safety in Item 1, Article 95, of the Labor Code;
2. The laborers refuse to use labor safety means
supplied by the labor employer.
Article 14.- A fine of
1,000,000 VND shall be imposed on one of the following violations:
1. Violating the stipulations on the
organization, training, guidance and popularization to the laborers on the
stipulations and measures to ensure labor safety and to prevent possible labor
accidents as stipulated in Article 102 of the Labor Code;
2. Failing to observe the stipulations on
ensuring or arranging work suitable to the health of the laborers who have
contracted occupational disease or have suffered a labor accident according to
the conclusions of the Medical Evaluation Council stipulated in Item 1, Article
107, of the Labor Code.
Article 15.- A fine of
2,000,000 VND shall be imposed on one of the following violations:
1. Violating the stipulations on the supply of
equipment and means for personal safety, and on the supply of material
subsidies for those who work in an environment involving dangerous or toxic
substances as stipulated in Article 101 and Article 104 of the Labor Code;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
3. Violating the stipulations on the granting of
subsidies and compensations for those laborers when they fall victims to labor
accidents or contract occupational diseases as stipulated in Item 2 and Item 3,
Article 107, of the Labor Code;
4. Failing to report a labor accident when it
happens, failing to register and make periodical reports on labor accidents and
the incidence of occupational diseases as stipulated in Article 108 of the
Labor Code;
5. Failing to periodically check and overhaul
machinery, equipment, workshops and storages as stipulated in Item 1, Article
98, of the Labor Code.
Article 16.- A fine of
3,000,000 VND shall be imposed on one of the following violations:
1. Failing to provide covers for dangerous parts
of machinery and equipment; failing to put up rules on labor safety in work
places, in workshops with machinery and equipment, and in places involving
dangerous and toxic conditions as stipulated in Article 98 of the Labor Code;
2. Violating the stipulations on the supply of
technical and medical equipment and suitable labor safety means to ensure
timely rescue in case of an incident or a labor accident at the dangerous or
toxic work places likely to cause labor accidents as stipulated in Article 100
of the Labor Code.
Article 17.- A fine of
5,000,000 VND shall be imposed on one of the following violations:
1. Violating the labor safety norms in the
production, use, maintenance, keeping, storage and transportation of the
machinery, equipment, materials and substances which require strict observance
of labor safety according to the list issued by the Ministry of Labor, War
Invalids and Social Affairs;
2. Covering up or making false declarations
about labor accidents and occupational diseases as stipulated in Article 108 of
the Labor Code.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
1. Failing to present an exposition on measures
to ensure labor safety in building or upgrading establishments to produce, use,
maintain, keep or store the machinery, equipment, materials and substances
which require strict observance of labor safety according to the list issued by
the Ministry of Labor, War Invalids and Social Affairs;
2. Violating the stipulations on the
declaration, registration and application for permits for use of the machinery,
equipment, materials and substances which require strict observance of labor
safety according to the list issued by the Ministry of Labor, War Invalids and
Social Affairs;
3. The employer violates the stipulations on
labor safety, which causes a labor accident resulting in fatalities or a
serious labor accident as stipulated in the legal documents currently in force.
Section III. VIOLATION OF
THE STIPULATIONS ON ADMINISTRATIVE PROCEDURE OF STATE MANAGEMENT OF LABOR
Article 19.- A fine of
400,000 VND shall be imposed on one of the following violations:
1. Violating one of the stipulations in Article
182 of the Labor Code on:
a/ Declaration on the use of labor;
b/ Reporting changes in the employment of labor;
c/ Reporting the termination of the use of labor
in case the enterprise ceases its operation.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article 20.- A fine of
1,000,000 VND shall be imposed on one of the following violations:
1. Failing to register the labor regulations at
the Labor, War Invalids and Social Affairs Service as stipulated in Item 3,
Article 82, of the Labor Code;
2. Signing a collective labor arrangement
without registering it at the Labor, War Invalids and Social Affairs Service as
stipulated in Article 47 of the Labor Code;
3. Deciding to impose labor discipline outside
ones province as stipulated by law.
Article 21.- A fine of
3,000,000 VND shall be imposed on one of the following violations:
1. Violating the provisions of law on the
dispatch of Vietnamese laborers to foreign countries for work, and on the
admission of foreigners to work in Vietnam;
2. Foreigners working permanently for Vietnamese
enterprises or organizations, or for foreign invested enterprises in Vietnam
violate the stipulations on the application for and use of work permits
stipulated in Item 1, Article 133, of the Labor Code and other stipulations of
the relevant laws.
Chapter III
POWERS - PROCEDURE OF
SANCTION
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
1. Labor Inspectors can
serve a warning or fine up to 200,000 VND and impose supplementary forms of
sanction and other measures as stipulated in Point (c), Item 1, Article 34, of
the Ordinance on the Handling of Administrative Violations of July 6, 1995.
2. The Chief Labor Inspector and the Heads of
the Services performing the function of State Inspection on labor can serve a
warning and fine up to 10,000,000 VND, and impose supplementary forms of
sanction and other measures stipulated in Point (c), Item 2, Article 34, of the
Ordinance on the Handling of Administrative Violations of July 6,1995.
3. The Chief Labor Inspector and the Heads of
ministerial-level agencies performing the function of labor inspection can
serve a warning and fine up to 20,000,000 VND, and impose supplementary forms
of fining and other measures stipulated in Point (c), Item 3, Article 34, of
the Ordinance on the Handling of Administrative Violations of July 6, 1995.
4. The Presidents of the Peoples Committees of
districts, precincts, towns and cities in provinces can serve a warning and
fine up to 10,000,000 VND and impose supplementary forms of sanction and other
measures stipulated in Point (c), Article 27, of the Ordinance on the Handling
of Administrative Violations of July 6, 1995.
5. The Presidents of the Peoples Committees of
the provinces and cities directly under the Central Government can serve a warning
and fine up to 100,000,000 VND and impose supplementary forms of sanction and
other measures stipulated in Point (g), Article 28, of the Ordinance on the
Handling of Administrative Violations of July 6, 1995.
Article 23.- In
addition to applying the stipulations on fining stipulated in Chapter II of
this Decree, depending on the character and seriousness of the violation, the
persons authorized to impose sanctions as stipulated in Article 22 of this
Decree can apply, or petition the authorized State agencies to apply, other
administrative sanctions as stipulated in Item 4, Article 187, and Article 192
of the Labor Code.
Article 24.- The
procedure of imposing administrative sanction on violations of labor
legislation must comply with the stipulations in Article 45, Article 46,
Article 47, Article 48, Article 49, Article 50, Article 53, Article 54, Article
55 and Article 56 in Chapter VI of the Ordinance on the Handling of
Administrative Violations of July 6, 1995.
Chapter IV
IMPLEMENTATION PROVISIONS
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article 26.- If any
organization or individual violates the stipulations of this Decree, or the
persons authorized to impose sanctions as stipulated in Article 22 of this
Decree violate the stipulations on the imposition of administrative sanctions
againt violations of labor legislation, or those persons unauthorized to impose
fines deliberately impose a fine, they shall be subjected to an administrative
fine, disciplined or examined for criminal liability, depending on the
character and seriousness of the violation; if they cause material damage, they
must pay compensations.
Article 27.- Organizations
or individuals that are subjected to administrative sanctions as stipulated in
this Decree can complain about the sanctioning decision to the next higher
level of the person who issues it.
The procedure of complaining and of settling a
complaint about the decision to impose administrative sanction on a violation
of labor legislation must comply with the stipulations in Article 87, Article
88, Article 89 and Article 90 of the Ordinance on the Handling of
Administrative Violations of July 6, 1995.
Article 28.- The
Ministry of Labor, War Invalids and Social Affairs shall have to cooperate with
the Ministry of Finance to specify the receipt model and the procedure of
paying fines to the State Budget.
Article 29.- The
Ministers, the Heads of ministerial-level agencies and the agencies attached to
the Government, and 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,
Phan Van Khai