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GOVERNMENT
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No: 05/2015/ND-CP
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Hanoi, January 12, 2015
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DECREE
DEFINING AND PROVIDING
GUIDANCE ON THE IMPLEMENTATION OF A NUMBER OF CONTENTS OF THE LABOR CODE
Pursuant
to the Government's Law on Government Organization dated December 25, 2001;
Pursuant
to the Labor Code dated June 18, 2012;
Pursuant
to the opinion of the Standing committee of the National Assembly in Document
No. 716 / UBTVQH13-CVDXH dated August 13, 2014, providing guidance on
implementation of a number of articles and clauses of the Labor Code;
At
the request of the Minister of Labor, War Invalids and Social Affairs,
The
government promulgates the Decree providing guidance on the implementation of a
number of the contents of the Labor Code.
Chapter I
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Article 1. Scope of regulation
This
Decree defines the rights and responsibilities of employers, employees ,
representative organizations of labor collectives, agencies, organizations and
individuals involved in the implementation of some provisions of the Labor Code
on employment contracts, collective bargaining, collective bargaining
agreements, salaries, labor discipline, material liabilities and labor dispute
settlement.
Article 2. Regulated entities
The
employees; the employer; other agencies, organizations and individuals directly
related to labor relation as prescribed in Article 2 of the Labor Code.
Chapter II
EMPLOYMENT CONTRACT
Section 1:
CONCLUSION OF EMPLOYMENT CONTRACT
Article 3: Entities concluding employment contracts
1.
The person concluding employment contracts on the employer side (hereinafter
referred to as the employer’s authorized signatory) is either:
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b)
The head of the agency, unit or organization as prescribed in law;
c)
The family householder
d)
The individual directly using the employee
If
the persons specified at Points a, b and c, Clause 1 of this Article do not
directly conclude contracts, they shall legally authorize in writing others to
conclude the contracts using the form issued by the Ministry of Labor, War
Invalids and Social Affairs.
2.
The person concluding employment contracts on the employee side (hereinafter
referred to as the employee’s authorized signatory) is one of the followings:
a)
The employee from 18 years of age or older;
b)
The underage employee from 15 to under 18 years of age obtaining the written
consent from their legal representatives;
c)
The legal representative of persons under 15 years of age obtaining the written
consent from those persons.
d)
The employee legally authorized to conclude employment contracts by other
employees of the same group .
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Article 4: Contents of employment contract
The
main contents of the employment contract in Clause 1 of Article 23 of the Labor
Code shall be defined as follows:
1.
With regard to name and address of the employer :
a)
Name of businesses, agencies, organizations, cooperatives, households, who
hire, use the employers under employment contracts, as shown in the Certificate
of Enterprise Registration ,Certificate of cooperative registration or
investment certificate or decision on establishment of agencies and
organizations; if individuals hire or use the employees, the full names of such
individuals as shown in their identity cards or passports are required;
b)
Address of businesses, agencies, organizations, cooperatives, households,
individuals, who hire and use the employees, as shown in the Certificate of
Enterprise registration ,Certificate of cooperative registration or investment
certificate or decision on establishment of agencies and organizations in
accordance with law;
c)
Full name, date of birth, ID or passport number, residence address, title of
the employer’s authorized signatory at businesses, organizations, cooperatives,
households hiring and using the employees under the provisions of Clause 1 of
Article 3 hereof.
2.
With regard to ID number or other legal documents of employees:
a)
The employee’s ID or passport number granted by the competent authorities;
b)
Number, issuance date and place of work permits granted by the competent
authorities to foreign employees working in Vietnam;
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d)
Full name, date of birth, gender, place of residence, ID or passport number of
the legal representative of the person under 15 years of age
dd)
The written consent of under-15-years-old persons to their legal
representatives’ conclusion of their employment contracts.
3.
With regard to work description and work places:
a)
Work description: The details of work that the employee must perform;
b)
Workplace of employees: Scope of agreed work and location where the employees
work ; if the employees work in many different places, the main workplace shall
be provided.
4.
The term of the employment contract shall include: The number of months and
days of employment contract execution , time of the employment contract
commencement and termination (for fixed-term employment contracts or casual
employment contract or piece work); time of the employment contract
commencement (for indefinite term employment contract).
5.
With regard to salary rate, form of payment, payment duration, allowances and
other additional payment:
a)
Salary rate, allowances and other additional payments shall be determined under
the provisions of Clause 1 of Article 21 hereof;
b)
Form of payment shall be determined in accordance with the provisions of
Article 94 of the Labor Code;
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6.
With regard to promotion and wage raise regulations : requirements, schedule,
specific time, salary rate that has been raised under the mutual agreement
7.
With regard to the working time, rest time :
a)
Working hours per a day and a week; shift; start or end of a working day, week
or shift ; working days per week; overtime and overtime-related provisions;
b)
Start and end of break time; weekly , annual days-off, holidays, personal
leaves, unpaid leaves.
8.
With regard to personal protective equipment provided for employees : Specific
quantity, type, quality and service life of each type of personal protective
equipment as prescribed by the employers.
9.
With regard to social insurance, unemployment insurance and medical insurance :
a)
Percentage of the monthly salary shall be paid for social insurance,
unemployment insurance, medical insurance by employers and employees as
prescribed in the law on social insurance, unemployment insurance and medical
insurance
b)
Methods time of payments for social insurance, unemployment insurance and
medical insurance, made by employers and employees.
10.
With regard to training and refresher courses for employees: The rights and
obligations of employers and employees to schedule and budget these courses.
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Article 5: Amendment to the term of employment contracts
with the appendix
The
term of the employment contract shall be amended only once in employment
contract Appendix and not be changed in the type of the signed contract, except
when the term of employment contracts with elderly employees and those who are
part-time unionists are extended as specified in Clause 6 of Article 192 of the
Labor Code.
Article 6: Employment contract with elderly employees
1.
If the employers have a need and elderly employees are healthy enough in
accordance with the conclusions of healthcare establishments established and
operated under the provisions of the law, both parties shall agree to extend
the term of employment contracts or enter into new employment contracts.
2.
If the employers have no need or the elderly employees are not healthy enough,
both parties shall terminate the employment contracts.
Article 7.
Notice of probation results
1.
Within 03 days before the end of the probation period for the employee whose
probation period is stipulated in Clauses 1 and 2 of Article 27 of the Labor
Code, the employer must notify the employee of the probation results; if the
results meet the requirements, the employer shall immediately conclude the
employment contract with the employee at the end of the probation period.
2.
At the end of the probation period of employees whose probation period is
specified in Clause 3 of Article 27 of the Labor Code, the employer must notify
the employee of the probation results; if the results meet the requirements,
the employer must immediately conclude a employment contract with the employee.
Section 2: IMPLEMENTATION OF EMPLOYMENT CONTRACTS
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Temporary
transfer of employees to perform jobs which are not stated in employment
contracts in Clause 1, article 31 of the Labor Code shall be prescribed as
follows :
1.
The employer shall be entitled to temporarily transfer the employee to perform
jobs other than those in the employment contract in the following cases:
a)
Natural disasters, conflagration, epidemics;
b)
Application of preventive and remedial measures against occupational accidents
and diseases;
c)
Electricity and water supply failure;
d)
Operating demands.
2.
The employer shall specify in the corporate rules that the employer may
temporarily transfer the employee to jobs other than those in the employment
contract due to production and business demands.
3.
If employers have temporarily transferred their employees to perform jobs other
than those in the employment contract for 60 cumulative working days in a year,
and they continue to temporarily transfer the employees to perform jobs other
than those defined in the employment contract, the written consent shall be
obtained from the employees.
4.
If the employees do not agree to be temporarily transferred to the jobs other
than those in the employment contracts as specified in Clause 3 of this Article
and quit their jobs, the employers shall pay them salary for such quit as
prescribed in Clause 1 of Article 98 of the Labor Code.
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1.
The employer and the employee in a state-owned single member limited companies,
single member limited companies owned by state-owned economic corporations,
state-owned corporations, parent companies in the parent -subsidiary company
relationship shall agree to temporarily suspend the employment contracts in the
following cases:
a)
The employee is appointed as the member of Member assembly or President,
comptroller, General Director (Director), Deputy General Director (Deputy
Director)or Chief Accountant of the company by competent authorities ;
b)
The employee is assigned as the representative of the capital and works in an
enterprise to which the State or a parent company in parent company-subsidiary
company relationship contributes their capital by competent authorities.
2.
The period of temporary suspension of the employment contract shall be the time
when the employee is appointed or assigned as the representative of the capital
and works in an enterprise to which the State or the parent company in parent
company-subsidiary company relationship contributes their capital.
Article 10.
Reinstatement of employees upon expiry of the period of temporary suspension of
employment contracts
Reinstatement
of employees upon expiry of the period of temporary suspension of employment
contracts as prescribed in Article 33 of the Labor Code shall be as
follows:
1.
Within 15 days after the date of expiration of the employment contract
suspension, the employee must be present at the workplace and the employer must
reinstate the employee . If the employee can not be present at the workplace in
accordance with the regulated time, the employee shall agree with the employer
on the time of their presence.
2.
The employer shall be responsible for arranging the employee to perform the job
defined in the employment contract ; in case the employer fails to arrange the
job defined in the employment contract, both parties shall be agreed on a new
job and amend, supplement the existing employment contract or conclude a new
one.
Section 3: CONTRACT AMENDMENT, SUPPLEMENTATION AND
TERMINATION
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1.
The employee shall have the right to unilaterally terminate the employment
contract as stipulated at Point c, Clause 1, Article 37 of the Labor Code if
they suffer from the employer’s illegal acts like violent, aggressive
behaviors, disrespect and humiliating acts, acts affecting the employee’s
health, dignity, honor, and use of coercive measures or sexual harassment in
the workplace.
2.
The employee shall have the right to unilaterally terminate the employment
contract at Point d, Clause 1, Article 37 of the Labor Code in the following
cases:
a)
Quit the job to take care of their spouse, father , mother, father-in-law,
mother-in-law, natural children and adopted children who are sick or involved
in accidents;
b)
Leave for foreign countries to live or work;
c)
Help their families that are in trouble with natural disasters, conflagration,
hostility, enemy-inflicted destruction, epidemics or relocation which the
employee tries to overcome but can not continue to execute the employment
contract.
Article 12. Employer’s unilateral termination of the
employment contract
The
right to unilaterally terminate the employment contract that the employer is
granted at the points a and c, Clause 1, Article 38 of the Labor Code shall be
prescribed as follows:
1.
The employer must specify the criteria for assessing the work completion under
the regulations of enterprises, as a basis for assessing the employees who
often do not complete the work according to contract labor. Such assessment
regulations shall be issued by the employer after consultation with the
representative organizations of labor collectives at the company.
2.
Other force majeure in one of the following cases
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b)
Relocation or narrowing of the production and business sites, at the request of
competent State agencies.
Article 13.
Change of structure, technology and economic reasons
1.
Changes of structure, technology in clause 1 of Article 44 of the Labor Code
shall include the following cases
a)
Changes of organizational structure, re-organization of employments
b)
Changes of products, product structure;
c)
Changes of technology process, machinery, business manufacturing equipment,
associated with production, business activities of the employer.
2.
The economic reason in clause 2 of Article 44 of the Labor Code shall be one of
the following cases:
a)
Economic crisis or recession;
b)
Implementation of the governmental policy on restructuring the economy or
implementation of international commitments.
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Article 14. Severance pay
and redundancy pay
1.
The employer shall pay employment severance pay as prescribed in Article 48 of the Labor Code to
employees regularly working for 12 months or more if employment contracts are
terminated as specified in Clauses 1, 2, 3, 5, 6, 7, 9 of Article 36 and the
employers shall unilaterally terminate the employment contract in accordance
with the provisions of Article 38 of the Labor Code.
2.
The employer shall give redundancy pay as prescribed in Article 49 of the Labor
Code to employees regularly working for 12 months or more but losing their jobs
due to technological, structural change or economic reasons or a merger,
amalgamation, split or separation of enterprises or cooperatives as specified
in Clause 10, Article 36, Article 44 and Article 45 of the Labor Code.
3.
Working time serving as the basis for calculating severance pay, redundancy
pay shall be the total of actual working time subtracting the time when the
employees pay unemployment insurance contributions as prescribed by law, and
the working time when severance pay is offered by the employer. Of which:
a)
The actual time when employees work for employers shall include the following
periods such as time of employee’s working for the employer; probation, internship
and apprenticeship that take place at the employer’s enterprise; time of the
employer’s sending employees on courses; paid leaves of the insured employees
under the provisions of the Law on Social Insurance; weekly days-off in
accordance with Article 110, fully paid leaves in accordance with the Articles
111, 112,115 and Clause 1 of Article 116 of the Labor Code; time of employee’s
staying away from work to join Trade Union activities in accordance with the
law on trade unions; time of employee’s quitting or being kept away from work
by no fault of the employees; time of employee’s being temporarily suspended,
detained or jailed away from work after which the employees are permitted to
come back to work on account of the competent authority’s reaching the
conclusion that they are not guilty;
b)
The time when employees pay for unemployment insurance shall include: the time
when employers have paid for the unemployment insurance in accordance with the
law, and the abovementioned time corresponding to the time when employees are
paid a sum of salary equal to such unemployment insurance premiums in
accordance with laws;
c)
Working time serving as the basis for calculating severance pay and redundancy
pay
to employees shall be in years (full 12 months)and the period from 01 full
month to under 06 months shall be rounded to a half of year; the period from
full 06 months to 01 year shall be rounded to 1 year.
4.
Severance pay and redundancy pay in some special cases:
a)
If the employees who have actually worked for the employers for full 12 months
or more are made redundant but working time serving as the basis for
calculating the redundancy pay is less than 18 months, the employers shall
offer the amount of redundancy pay equal to at least 02 months of salary to the
employees ;
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5.
Within 07 working days after the date of termination of the employment
contracts, the employers shall be responsible for providing severance
pay or
redundancy pay to the employers. This
deadline may be extended but for up to 30 days
after the date of termination of the employment contract in one of the
following circumstances:
a)
Business operation is not terminated by the
employer;
b)
The employer or the employee suffers from natural disasters, conflagration,
hostile acts or infectious diseases;
c)
The employer changes their technology, organization structure, or is affected
by economic reasons as prescribed in Article 13 of this Decree
6.
Funding for making severance pay and redundancy pay shall be included
in the production and business costs
or operating budget of the employers.
Article 15.
Responsibilities for setting up the planning for using employees, calculation
and provision of severance pay and redundancy pay, assumed by employers, in
case of transfer of the right to own or use assets of enterprises
1.
In case of transfer of the right to own or use assets of business, the previous
employer shall develop the plans to use employees under the provisions of
Article 46 of the Labor Code.
2.
The employees must terminate the employment contracts under the plan for to use
the employees as specified in Clause 1 of this Article, the employers shall
make provide severance pay as prescribed in Article 49 of the Labor
Code.
3.
The employees continuing to work, the employees sent to retraining courses to
continue to work, the employees assigned to work part-time at employer’s
enterprises after the transfer of the right to own and use assets under the
plan to use the employees as specified in clause 1 of this Article, upon
termination of the employment contract, the next employers shall be responsible
for calculation and provision of severance pay as prescribed in Article 48 or redundancy pay under the
provisions of Article 49 of the Labor Code for the time when the employees have
actually worked for them, and severance pay for the time when the employees
actually have worked at these enterprises before the transfer of the right to
own and use assets, including the time of working in the state sector and being
last recruited into the business before January 01, 1995.
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Chapter III
COLLECTIVE BARGAINING, COLLECTIVE
BARGAINING AGREEMENT
Article 16. Periodic collective bargaining
Periodic
collective bargaining as specified in clause 2 of Article 67 of the Labor
Code shall be conducted at least once a year. Time of conducting periodic
collective bargaining shall be agreed by both parties
Article 17.
Responsibilities of trade unions, organizations representing employers and
regulatory agencies in charge of labor issues for attending collective
bargaining sessions
1.On
receipt of the written request made by either collective bargaining party,
Vietnam General Confederation of Labor, Confederation of Labor of
central-affiliated cities and provinces, Trade Union as the immediate superior
at grassroots level, central and local organizations representing employers ,
the Ministry of Labor – War Invalids and Social Affairs, the People's Committee
of a province and district shall appoint officials to attend collective
bargaining sessions
2.
Officials appointed to attend the collective bargaining sessions by agencies,
organizations shall provide information related to the negotiation contents,
guidance on laws on labor for participants in such collective bargaining
process.
Article 18.
Signatory of business collective bargaining agreements
1.
Signatory of the business collective bargaining agreement in clause 1 of
Article 83 of the Labor Code shall be prescribed as follows
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b)
Signatory on the employer side shall be legal representatives as prescribed in
the regulations of the enterprise, cooperative, the head of the agency,
organization or individual using the employees according to the employment
contracts.
2.
If signatory of the collective bargaining agreement as prescribed in clause 1
of this Article does not directly sign the collective bargaining agreement, he
or she shall legally authorize in writing others to conclude such agreement.
The authorized person shall not be allowed to authorize another person to
conclude the collective bargaining agreement .
Article 19.
Responsibilities for receiving the collective bargaining agreement of agencies
in charge of State management of labor
Responsibilities
of the agencies in charge of State management of labor for receiving the
collective bargaining agreement shall be prescribed as follows:
1.
Make management books of collective bargaining agreement in the form provided
by the Ministry of Labor, War Invalids and Social Affairs
2.
Within 15 days from the receipt of the collective bargaining agreement, if
collective bargaining agreements are detected with unlawful contents or ultra
vires conclusion, the State management agencies shall request in writing the
People's Court to declare the collective bargaining agreement is null and void,
and send this request to two contracting parties .
If
the collective bargaining agreement is not in effect, the state management agencies
shall request in writing the two parties to negotiate the amendments and
supplements to the collective bargaining agreement and send this request to the
state management agencies as prescribed.
Article 20. Petition for declaring that collective bargaining
agreement becomes invalid
During
the time of inspection or settlement of labor complaints and denunciation, if
collective bargaining agreement is detected with one of the cases prescribed in
Article 78 of the Labor Code, inspection delegation leaders or self-employed
inspectors or persons assigned to perform the specialized inspection tasks
shall make a report on the invalid collective bargaining agreement, and request
in writing the People’s Court to declare that collective bargaining agreement becomes
invalid.
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SALARY
Article 21. SALARY
Salaries
in clauses 1 and 2 of Article 90 of the Labor Code shall be prescribed as
follows:
1.
Salary identified in the employment contract shall be agreed with the employer
by the employee to perform certain jobs, including:
a)
Work- or position-based salary shall be the salary rates in salary scale,
salary table defined by the employer under the provisions of Article 93 of the
Labor Code. Salary for the most simple jobs in normal working conditions and
business hours (exclusive of extra payments for overtime and overnight work)
shall not be less than the region-based minimum salary defined by the
Government;
b)Salary
allowance shall be the amounts offset against the working conditions, the
complexity of jobs, the living conditions, the employee attraction level which
is not included or incompletely included in work- and position-based salary ;
c)
Other extra payments shall be the sums in addition to salary rates, salary
allowances, and shall be related to job performance or working position in the
employment contract, excluding bonuses, meal- between- shift allowances,
benefits, contributions of employers which are not related to job performance
or position in the employment contract.
2.
Salary paid to employees shall be based on the contractual salary,
productivity, workload and quality of work that the employees have done.
3.
The salary in the employment contract and the salary paid to employees shall be
specified in Vietnam Dong except salaries and allowances paid to non-residents,
foreigner residents under provisions of the law on foreign exchange.
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Form
of payment under clause 1 of Article 94 of the Labor Code shall be prescribed
as follows:
1.
The time-based salary paid to employees shall be based on actual working time
in specific months, weeks, days, hours:
a)
The monthly salary paid for a working month shall be determined on the basis of
employment contracts;
b)
The weekly salary paid for a working week shall be determined on the basis of
the monthly salary multiplied by 12 months and divided by 52 weeks;
c)
The daily salary paid for a working day shall be determined on the basis of the
monthly wage divided by the number of normal working days in the month under
the provisions of the law that businesses choose;
d)
The hourly salary paid for a working hour shall be determined on the basis of
the daily salary divided by the number of normal working hours in the day as
prescribed in Article 104 of the Labor Code.
2.
The product-based salary shall be paid with the basis of the degree of
completion of the quantity and quality of the product according to the labor
requirement and deliveried product unit price.
3.
Piecework salary shall be paid with reference to the quantity and quality of
work and completion time .
Article 23.
Salary payment period for employees paid monthly salary
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2.
The payment time shall be agreed by the two parties and fixed at a specific
date of a month.
Article 24. Payment principles
1.
The employee shall be paid directly, fully and punctually .
2.
In case natural disaster, conflagration or other force majeure events take
place, and employers have sought all remedial measures but can not make payment
on time as agreed in the employment contract, the payment shall be made within
01 month. The employer shall make additional payment to the employee due to
their late payment in the following cases:
a)
If such late payment is made within less than 15 days, additional payments are
not required;
b)
If the late payment is made for 15 days or more, an extra amount shall be at
least equal to the arrears of salary multiplied by the ceiling of interest rate
for 1-month deposits announced by the State bank of Vietnam at the time when
the payment is made. If the State Bank of Vietnam does not specify the ceiling
interest rate, 1-month deposit interest rate of commercial banks, where
businesses and agencies open trading accounts at the time of payment, shall be
applied.
Article 25.
Overtime and nightshift salary
1.
The employee paid for their overtime work in accordance with clause 1 of
Article 97 of the Labor Code shall be prescribed as follows:
a)
Employees paid time-based salary shall be paid for their overtime work if their
working hours exceed normal working hours defined by the employers in
accordance with the provisions in Article 104 of the Labor Code;
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2.
Overtime salary defined in clause 1 of this Article shall be calculated
according to the salary unit price or actual salary paid on the basis of the
current job as follows:
a)
On weekdays, minimum payment equals 150%;
b)
On the weekly days-off minimum payment equals 200%;
c)
On public holidays, paid days-off, minimum payment equals 300%, which is not
included in public holiday pays, paid leave pays under the provisions of the
Labor Code with respect to employees paid daily salary.
3.
If employees work at night under clause 2 of Article 97 of the Labor Code, they
shall be paid at least 30% of the salary calculated in salary unit price or
actual salary paid for the work of normal working days .
4.
If employees work overnight under clause 3 of Article 97 of the Labor Code,
they shall be paid an additional 20% of salary calculated by salary unit price
or actual salary paid by the work done on the day of the normal working day or
the weekly rest days or holidays.
5.
Employees who work overtime on holidays falling on the weekly days-off as
prescribed in Article 110 of the Labor Code shall be paid overtime salary.
Employees who work overtime on compensation days off for the holidays falling
on a weekly rest days under the provisions of clause 3 of Article 115 of the
Labor Code shall be paid overtime salary on weekly rest days.
6.
Salary paid to workers for overtime work, night work as prescribed in Clauses
2, 3, 4 and 5 of this Article shall be calculated in proportion to the form of
payment specified in Article 22 of this Decree .
Article 26.
Salary used as the basis for calculating the pay for employees in work
suspension time, annual, public holiday , paid leaves, salary advance and
deduction
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2.
The salary used as the basis for calculating the pay for employees in the
annual leave days in Article 111; increased annual leave days according to
their seniority in Article 112; public holidays in Article 115 and the paid
leave in clause 1 of Article 116 of the Labor Code shall be the salary in the
employment contract of the preceding month, divided by the number of normal
working days in months defined by employers, multiplied by the number of days
employees take annual leave, increased annual leave according to seniority,
public holidays, paid leave days.
3.
The salary on which employers base to pay for employees in untaken leave days
or fully untaken annual leave days in Article 114 of the Labor Code
shall be prescribed as follows:
a)
If employees have worked for 06 months or more, it shall be the average salary
of the employment contract of the preceding 06 months before the employees
terminate or lose their jobs. If employees have not taken or fully not taken
annual leave due to other reasons, it shall be the average salary of the
employment contract of the preceding 06 months before the employers pay annual
untaken leave day;
b)
If employees have worked less than 06 months, it shall be the average salary
under employment contracts of full working time .
4.
The salary paid to employees in untaken leave days or fully untaken
annual leave days shall be the salary prescribed in clause 3 of this Article
divided by the number of normal working days prescribed by employers of the
preceding month before the employers pay , and multiplied by the number of
annual untaken leave days or fully untaken annual leave days
5.
The salary used as the basis for calculating salary advance paid to the
employee during the temporary leave to perform civic duties as prescribed in
clause 2 of Article 100 or temporary suspension prescribed in Article 129 of
the Labor Code shall be the salary in the employment contracts of the preceding
month before the employees temporarily cease their jobs or are suspended from
work and shall be calculated in proportion to the pay paid in the form of
payment specified in clause 1 Article 22 of this Decree.
6.
The salary used as the basis for calculating salary deduction paid to indemnify
the damage caused by damaging the tools and equipment in clause 1 of Article
130 of the Labor Code shall be the actual salary employees received on the
monthly basis after deducting compulsory social insurance, health insurance, unemployment
insurance and paying personal income tax (if any) as prescribed
Chapter V
LABOR DISCIPLINE, MATERIAL
RESPONSIBILITIES
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Article 27: Contents of labor regulations
The
main contents of labor regulations under clause 2 of Article 119 of the Labor
Code shall be prescribed as follows ::
1.
Working time and rest time : regulations on normal working hours in 01 day, 01
week; shift; starting and ending time of the work shift; overtime (if any);
overtime in special cases; short breaks beside break time; shift exchange
breaks; weekly leave; annual leave, personal leave, unpaid leave .
2.
Order at workplace : Regulations on work scope, moving around in work time;
behavioral culture, costumes; compliance with assignment, appointment of the
employers (unless obvious risk of occupational accidents, occupational
diseases, serious threat the lives and health of the employees).
3.
Labor safety, labor hygiene at workplace : Responsibilities for mastering the
labor hygiene and safety, fire prevention ; compliance with measures to ensure
labor hygiene and safety, prevention against occupational accidents and
occupational diseases; compliance with rules, procedures, regulations and
standards of labor hygiene and safety; use and maintenance of personal safety
equipment; hygiene, decontamination, sterilization at work.
4.
Protection of assets and technological and business secrets and intellectual
property of the employer : List of assets, documents, technological and business
secrets and intellectual property that must be protected within the scope of
the assigned responsibilities
5.
Employees’ violations against labor discipline, forms of dealing with violations
against labor discipline, and material responsibilities shall include: List of
violations, the degree of violation in proportion to the form of handling the
labor discipline; extent of the damage, liability for indemnity of damages.
Article 28. Registration
of labor regulations and the effect of labor regulations
1.
Within 10 days after the date of issue of labor regulations, the employers must
submit labor regulation registration dossiers to the state management agencies
of the province where their business is registered.
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3.
Within 7 working days from the date of receipt of a dossier for registration of
the labor regulations, if the labor regulations have contents contrary to law,
the provincial agencies in charge of State management of labor shall notify in
writing and provide guidance for the employer to make necessary amendments and
supplements and the regulations must be re-submitted for registration. .
4.
If receiving a written notification of labor working regulations contrary to
the law, the employers shall amend and supplement the labor regulations ,
consult with representatives of the labor collective at the facilities and
re-register the labor regulations
5.
If amending and supplementing the effective labor regulations, the employers
must consult with organizations representing labor collective at the facilities
and re-regist the labor regulations.
6.
The re-registration dossiers of the labor regulations specified in clauses 4
and 5 of this Article shall be made in the same manner as labor regulations
dossiers
7.
The labor regulation shall take effect after 15 days after the provincial State
management agencies receive the registration dossiers or re-registration
dossiers of the labor regulations.
8.
The employer having branches, units, business production facilities in many central-affiliated
cities and provinces shall submit the effective labor regulations to the
provincial State management agencies where branches, units, business production
facilities are located .
9.
The employer hiring less than 10 employees shall not be required to register
the labor regulations.
Article 29.
Handling violations against labor discipline imposed on the employees raising
children under 12 months of age
1.
The employer shall not handle violations against labor discipline for
the employees being the fathers or mothers or legal adoptive fathers or mother
raising children under 12 months of age.
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Article 30.
Procedures for handling violations against the labor discipline
The
procedures foe handling of violations against labor discipline in Article 123
of the Labor Code shall be prescribed as follows
1.
The employer shall give a written notice of the participation in the meeting of
handling violations against labor discipline to the executive board of the
primary trade unions or trade union at the higher levels of grassroots one at
the place where the primary trade union has not been yet established,
employees, parents or legal representatives of the employees under 18 years of
age at least 5 working days prior to the meeting.
2.
The meeting about handling of violations against labor discipline shall be
conducted in the presence of sufficient participants notified under the
provisions of clause 1 of this Article. If the employer has noticed in writing
03 times, but one of the participants is absent, the employer shall conduct the
meeting unless the employee is in time that labor disciplinary measures may not
applied as specified in clause 4 of Article 123 of the Labor Code.
3.
The meetings for labor discipline must be made in minutes and such minutes must
be agreed by the participants before the end of the meeting. The minutes must
be signed by all meeting participants prescribed in clause 1 of this Article
and the minutes writer. If one of the participants attended the meeting without
signing the minutes, the reason for such refusal must be clearly provided.
4.
The persons concluding contracts prescribed at Points a, b, c and d, Clause 1,
Article 3 of this Decree shall be the persons entitled to make decision on
handling violations against labor discipline imposed on employees. Persons
authorized to conclude contracts may only handle violations against labor
discipline in the form of reprimands.
5.
The decision to handle violations of labor discipline to employees must be
issued within the statute of limitations of handling violations of labor
discipline or prolonged duration of the statute of limitations of handling
violations of labor discipline under Article 124 of the Labor Code, such
decision must be sent to the participants of meeting of handling violations of
labor discipline.
Article 31.
Dismissal imposed on employees being absent from work without permission
1.
Dismissal may be applied by an employer as a form of discipline for an employee
who has been absent from work without permission for a total of 5 working days
within 30 days or 20 days within 365 days since the first day of being absent
from the work without permission without plausible reasons
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a)
Natural disasters, conflagration;
b)
Illness of employees or their mother, father, adoptive mother, adoptive father,
mother-in-law, father-in-law, husband, wife, children or adopted children with
certification by a health facility founded and operated as prescribed in law
c)
Other cases defined in the labor regulations.
Section 2: MATERIAL RESPONSIBILITIES
Article 32. Compensation for damage
Compensation
for damage under the provisions of Article 130 of the Labor Code shall be
prescribed as follows:
1.
In case due to negligence, an employee causes damage to tools and equipment
valued at least 10 months’ regional minimum wage announced by the Government and
this damage is applied at the employee’s workplace, the employee shall pay
compensation of no more than 3 months’ wage which is written in the employment
contract of the preceding month before the damage that happens and this
compensation shall be deducted monthly from his/her wage in accordance with
Clause 3, Article 101 of this Code.
2.
The employee must pay compensation for damage in whole or in part in accordance
with the market price in one of the following cases:
a)
An employee, due to negligence, causes damage to tools and equipment valued at
no more than 10 months’ regional minimum wage announced by the Government and
this damage amount is applied at the employee’s workplace,
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c)
An employee consumes materials in excess of the permitted level defined by the
employer.
3.
If the employee causes any damage as prescribed in clause 2 of this Article and
has been bound by the liability contract with the employer, such employee must
compensate according to the liability contract .
4.
In case the damage is caused by a natural disaster, conflagration,
enemy-inflictes destruction, epidemic diseases, calamity or other objective
events which are unforeseeable and irremediable and every necessary measure has
been taken to full ability, no compensation is required.
5.
The process and effective term of payment for compensation for damages shall be
applied in the procedures and statute of limitations of handling violations of
labor discipline.
Article 33. Complaints about labor discipline and material
responsibilities
1.
If an employee subject to penalties for violations against labor disciplines,
work suspension, or pay compensation requirements in accordance with the
regulations on material responsibilities does not agree with the handling
decision, he/she shall file a appeal against the employer’s decision to a
competent agency prescribed by law, or request settlement of a labor dispute
according to the procedures prescribed by law.
2.
The employer must cancel or issue a decision to replace the issued decision and
notice to employee in the enterprise when competent authorities who have the
authority to hear such appeals draw conclusions which are different from the
content of decision on handling violation against labor discipline or decision
to temporarily suspend the work or decision on compensation under the
regulations of material responsibility of the employer.
3.
The employer must restore the violated rights and interests of the employee due
to their decision on handling violation against labor discipline or decision on
temporarily suspending the work or decision on compensation for damage paid by
employers. If disciplinary measures in the form of unlawful dismissal is taken,
the employer must implement the provisions of clauses 1, 2, 3 and 4 of Article
42 of the Labor Code.
Chapter VI
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Article 34. Labor arbitration council
1.
Labor arbitration council in article 199 of the Labor Code shall include:
a)
A chairperson who is the head of the state management agency of labor
b)
A secretary
c)
Members who are the representatives of the provincial-level trade union and the
employers’ representative organization
2.
The Chairman and members of the arbitration council shall hold part-time office
with 05-year tenure.
3.
The Secretary of the council shall be on the payroll of the Services of Labor,
War Invalids and Social Affairs and work full time and be entitled to the
responsibility allowance equivalent to the position-based allowance paid to the
Head of the Department.
4.
Chairperson of the labor arbitration council shall define working regulations
of the council
Article 35. Handling of labor strikes that does not follow
the regulatory procedures
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1.
Declaring that a strike violates the regulatory procedures permitted by the
provincial People’s Committee shall be carried out as follows :
a)
Whereas organizing and leading the strike do not comply with the provisions of
Articles 212 and 213 of the Labor Code, the employer shall immediately gives
notification to the Chairman of the district-level People's Committee and
provincial Confederation of Labor or Trade Union of industrial zones,
processing and exporting zones, economic zones, hi-tech zones at the places
where the strike takes place;
b)
Immediately after receiving the notice of the employer, the Chairman of the
district People's Committee shall direct the Division of Labor - Invalids and
Social Affairs in collaboration with the provincial Confederation of Labor or
Trade Union of industrial zones, processing and exporting zones, economic
zones, hi-tech zones at the place of the strike, within 24 hours after
receiving the direction, The Division of Labor - Invalids and Social Affairs
Committee Chairman shall report the Presidents of People’s Committees of districts
on test results;
c)
If the strike does not follow the prescribed procedures, within 12 hours after
receiving the report of the Department of Labor - Invalids and Social Affairs, the
Chairman of the district –level People's Committee shall request in writing the
Chairman of the provincial People's Committee to make decision on declaring
that the strike violates the prescribed procedures;
d)
Within 12 hours after receiving the request of the Chairman of the
district-level People's Committee, the Chairman of the provincial People's
Committee shall issue a decision on declaring that the strike violates the
prescribed procedures and immediately inform the Chairman of the district-level
People's Committee.
2.
Within 12 hours after receiving the decision to declare the strike violates the
prescribed procedures of the Chairman of the provincial People's Committee,
Chairman of the district-level People's Committee shall direct the Division of
Labor - Invalids and Social Affairs to take charge and cooperate with the
provincial Confederation of Labor or Trade Union of industrial zones,
processing and exporting zones, economic zones, hi-tech zones at the place of
the strike, involved agencies and organizations shall directly meet the
employer, the Executive board of The primary trade unions or the Trade Union as
the immediate superior to the grassroots level where the trade unions at
grassroots level have not been established to get the opinions from and give
support to parties for the purpose of strike settlement.
3.
Participants in strikes that do not follow the prescribed procedures shall not
be paid salary and other benefits under the provisions of the law in the time
of participating in the strike. Employees who do not participate in the strike
but have to stop working because of the strike shall be paid salary for such
stop in accordance with clause 2 of Article 98 of the Labor Code and other
benefits under the provisions of legislation on labor.
Article 36. Compensation for damage caused by illegal
strikes
Compensation
for damage in case of illegal strikes in clause 1 of Article 233 of the Labor
Code shall be prescribed as follows:
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a)
Damage to machinery, equipment, raw materials, fuel, semi-finished products and
finished products damaged after deducting the residual value due to liquidation
and recycling (if any);
b)
Remedial costs due to illegal strike including: Operation of machinery used to
meet technology demand ; repair and replacement of damaged machinery and
equipment ; recycling of damaged raw materials, fuel, semi-finished products
and finished products; preservation of natural materials, fuel, semi-finished
products, finished products during the strike; sanitation; customer
compensation or handling of contract violations that arise from the strike.
2.
The employer shall request in writing the trade union organization leading the
illegal strike to pay damage. A written request shall have some main contents
as follows:
a)
Value of damage due to illegal strike specified in clause 1 of this Article;
b)
The value of compensation claims;
c)
The deadline for compensation
3.
Based on the content of the written request for damage compensation from the
employer, trade union representatives directly leading the strike shall
compensate for damage as prescribed.
In
case of disagreement with the value of damage, compensation value, compensation
duration at the request of the employer, within 05 working days from receipt of
the written request, the representative of the trade union directly leading the
strike shall send a written request to the employer to negotiate the disagreed
contents.
After
negotiation, if agreement is reached, both parties shall have the
responsibility to implement the agreed content. If disagreement arises, either
of two parties shall in accordance with the law.
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IMPLEMENTATION
Article 37.
Effect
1.
This Decree takes effect from March 1, 2015.
2.
The Government’s Decree No. 196 / CP of December 31, 1994, detailing and
guiding the implementation of a number of articles of the Labor Code on
collective bargaining agreements; the Government’s Decree No. 93/2002 / ND-CP
of November 11, 2002, amending and supplementing a number of articles of the
Government’s Decree No. 196 / CP of December 31, 1994, detailing and guiding
the implementation of some articles of the Labor Code on collective bargaining
agreements; the Government’s Decree No. 41 / CP of July 6, 1995, detailing and
guiding the implementation of some provisions of the Labor Code on labor
discipline and material responsibility; the Government’s Decree No. 33/2003 /
ND-CP of April 2, 2003, amending and supplementing a number of articles of the
Government’s Decree No. 41 / CP of July 6, 1995, detailing and guiding the
implementation of some articles of the Labor Code on labor discipline and
material responsibility; the Government’s Decree No. 11/2008 / ND-CP dated January
30, 2008, defining compensation for damages if the illegal strike causes damage
or loss suffered by the employer and the previous provisions contrary to the
provisions of this Decree shall become ineffective from the effective date of
this Decree.
Article 38.
Transitional provisions
1.
If the employment contracts, collective bargaining agreements , labor
regulations and regulations of the employer are signed or issued before the
effective date of this Decree, the parties involved shall revise, amend, supplement
and implement procedures promulgated in accordance with the provisions of this
Decree.
2.
If 100% state-owned enterprises or enterprises equitized from the state-owned
enterprises terminate the employment contract that the employees have the time
to work in agencies, organizations, units and business in the state sector and
transfer to another work at the enterprise before January 01, 1995 but have not
received a severance allowance or redundancy pay, the employer shall pay the
severance allowance or redundancy pay for the time when the employee has worked
for him/ her and pay severance allowance for the time when the employee has
worked for previous agencies, organizations, units and enterprises in the state
sector.
3.
If employees working in a state-owned single member limited companies are
appointed by competent authorities to be the members of the Member assembly or
the company president, General Director (Director), Deputy general director
(Deputy director), Supervisor, chief Accountant or assigned to be
representatives of the contributed capital and work in other businesses before
the effective date of this Decree, the period of postponement of the employment
contract under the provisions of Article 9 of this Decree shall be counted from
the date on which these employees are appointed or assigned to represent the
contributed capital
Article 39. Responsibility for implementation
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2.
Minister, Heads of ministerial-level agencies, Heads of Governmental agencies,
the president of the People’s Committee in central-affiliated cities and
provinces and agencies, organizations, businesses and individuals involved
shall be responsible to implement this Decree
PP.THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung