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THE
MINISTRY OF LABOR, WAR INVALIDS AND SOCIAL AFFAIRS
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SOCIALIST
REPUBLIC OF VIET NAM
Independence
- Freedom - Happiness
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No:
16/2003/TT-BLDTBXH
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Hanoi,
June 03, 2003
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CIRCULAR
GUIDING THE IMPLEMENTATION OF THE REGIME OF WORKING TIME AND
REST TIME FOR LABORERS DOING SEASONAL JOBS OR PROCESSING EXPORT GOODS ON ORDERS
In furtherance of the Government's Decree No.
109/2002/ND-CP of December 27, 2002 amending and supplementing a number of
articles of the Government's Decree No. 195/CP of December 31, 1994 detailing
and guiding the implementation of a number of articles of the Labor Code on
working time and rest time; after obtaining the opinions of the Ministry of
Health, the Ministry of Finance, Vietnam Labor Confederation and the concerned
agencies, the Ministry of Labor, War Invalids and Social Affairs hereby guides
the implementation of the regime of working time and rest time for laborers
doing seasonal jobs or processing export goods on orders as follows:
I. SCOPE AND SUBJECTS OF
APPLICATION
1. The scope of application covers enterprises
and production as well as business units (referred collectively to as
enterprises):
- Enterprises established and operating under
the State Enterprise Law, including enterprises engaged in production and
business activities; enterprises engaged in public-utility activities;
enterprises of the people's armed forces;
- Enterprises established and operating under
the Enterprise Law, including limited liability companies, joint-stock
companies, partnerships, private enterprises;
- Enterprises operating under the Law on Foreign
Investment in Vietnam, including joint-venture enterprises and enterprises with
100% foreign-invested capital;
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- Cooperatives operating under the Cooperative
Law and employing laborers under the labor contract regime;
- Individual production and business households,
cooperation groups.
2. The subjects of application are laborers
working under labor contracts with definite terms of between one and three
years and with indefinite terms at the enterprises mentioned in Clause 1 above,
including:
- Those doing seasonal jobs in agricultural,
forestry and/or fishery production, requiring prompt harvesting or immediate
post-harvest processing without delay;
- Those engaged in the processing of export
goods on orders, which often depend on the time requested by goods owners.
II. WORKING TIME AND REST
TIME
1. Working time of the above-mentioned
subjects is prescribed below:
1.1. The annual standard working time funds:
TQ = [TN - (Tt + TP + TL)] x
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+ TN is the number of days in a year, which is
365 days for calendar years; or 366 days for leap years;
+ Tt is the total number of weekly rest days in
a year, determined under the provisions in Article 72 of the Labor Code;
+ TP is the number of annual rest days, which is
12, 14 or 16 and increased according to working seniority under the provisions
in Articles 74 and 75 of the Labor Code and Clause 2, Section II of Circular
No. 07/LDTBXH-TT of April 11, 1995;
+ TL is the number of public holidays in a year,
which is 8;
+ tn is the number of normal working hours in a
day, which is 8; particularly for laborers doing extremely heavy, hazardous and
dangerous occupations or jobs on the list promulgated by the Ministry of Labor,
War Invalids and Social Affairs, this number is 6.
Worker A has been working for 15
years under normal working conditions at Company X. The 2003 standard working
time fund of Worker A is calculated as follows:
- The number of annual rest days of Worker A is:
15
12 + --------- = 15 days.
5
+ The number of 12 days is
determined under the provisions in Article 74 of the Labor Code;
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- To draw up the following calculation table:
1. The number of days in the year (calendar) :
TN = 365
2. The total number of weekly rest days in
2003 : Tt = 52
3. The number of annual rest days : TP
= 15
4. The number of public holidays : TL =
8
5. The number of normal working hours in a day
: tn = 8
TQ = [365 - (52+15+8)] x 8 = 2,320 hours
As a result, the 2003 standard working time fund
of Worker A is 2,320 hours.
Worker B has been doing an
extremely heavy occupation for 15 years for Company Y. The 2003 standard
working time fund of Worker B is calculated as follows:
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15
16 + -------- = 19 days.
5
+ The number of 16 days is
determined under the provisions in Article 74 of the Labor Code;
+ 15/5 is the number of rest days increased
according to working seniority as determined under the provisions in Article 75
of the Labor Code.
- To draw up the following calculation table:
1. The number of days in the year (calendar) :
TN = 365
2. The total number of weekly rest days in
2003 : Tt = 52
3. The number of annual rest days : TP = 19
4. The number of public holidays : TL = 8
5. The number of normal working hours in a day
: tn = 6
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As a result, the 2003 standard working time fund
of Worker B is 1,716 hours.
1.2. The standard number of daily working hours:
Annually, basing
a/ Normal working days, each consisting of 8
hours, or 6 hours for laborers doing extremely heavy, hazardous or dangerous
occupations or jobs;
b/ Working days, each consisting of between over
8 hours and 12 hours; or over 6 hours and 9 hours for laborers doing extremely
heavy, hazardous or dangerous occupations or jobs;
c/ Working days, each consisting of between over
4 hours and under 8 hours; or over 3 hours and under 6 hours for laborers doing
extremely heavy, hazardous or dangerous occupations or jobs;
Example 3: As in
example 1, Worker A has the 2003 standard working time fund of 2,320 hours.
Company X arranges the standard number of daily working hours of Worker A in
2003 as follows:
Calendar
years months
Standard
number of working hours per day
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Total number
of working hours per month
Note
January
8
25
200
1 solar New Year holiday
February
7
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70
4 Lunar New Year holidays,
11 whole working days off
March
7
26
182
April
9
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225
Victory Anniversary Holiday
May
11 hours from Monday thru Thursday, 10 hours
on Fridays and Saturdays
26
287
May Day
June
10 hours from Monday thru Friday, 9 hours on
Saturdays
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245
July
7
23
161
4 annual rest days
August
8
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120
11 annual rest days
September
6
20
120
5 whole working days off
National Day
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October
11 hours from Monday thru Friday 8 hours on
Saturdays
27
282
November
9 hours from Monday thru Saturday of the first
two weeks 8 hours on other working days in the month
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212
December
8
27
216
Total
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2,320
1.3. Principles for using the standard working
time funds:
a/ In a year, the total standard number of
working hours planned and determined under the guidance in Clause 1.2 above
(including daily rest time counted as working time) must not exceed the annual
standard working time fund (TQ) already determined in Clause 1.1 above;
b/ If the standard number of daily working hours
is less than 8 hours, or less than 6 hours for laborers doing extremely heavy,
hazardous or dangerous occupations or jobs has been planned and determined
under the guidance at Points c and d, Clause 1.2 above, work stoppage wage must
not be paid.
In February, Company X arranged
Worker A to work 7 hours a day for 10 working days, then to rest for 11 whole
working days. As the company made such arrangement according to the plan made
as stated in Example 3 above, so:
- The number of working hours less than 8 hours
of a normal working day is:
8 hours - 7 hours = 1 hour; for this one hour,
the work stoppage wage must not be paid;
- For 11 rest days, work stoppage wage must not
be paid.
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In March, due to the production
and business situation, Company X arranged Worker A to work 5 hours a day for
13 working days, then to rest for 10 whole working days. So, compared with the
plan made above by Company A for Worker A in March:
- The number of actual working hours is less
than the standard number of daily working hours is: 7 hours - 5 hours = 2
hours; for these two hours, the work stoppage wage must be paid;
- The number of work stoppage days as compared
with the planned number is 10 days; for these 10 days, the work stoppage wage
must be paid.
d/ If the standard number of daily working hours
exceeds 8 hours or exceeds 6 hours for laborers doing heavy, hazardous or
dangerous occupations or jobs, as determined at Point b of Clause 1.2. above,
then such extra hours shall not be counted in the total annual number of
overtime hours but wages must be paid therefor and other regimes related to
overtime work must be implemented strictly according to the provisions in
Circular No. 15/2003/TT-BLDTBXH of June 3, 2003 of the Ministry of Labor, War
Invalids and Social Affairs guiding the performance of overtime work as
stipulated in the Government's Decree No. 109/2002/ND-CP of December 27, 2002.
In April, Company X arranged
Worker A to work 9 hours/day from Monday thru Saturday according to its plan
stated in example 3 above. Thus, the number of hours in excess of the 8 normal
working hours is 9 hours - 8 hours = 1 hour. This one hour shall not be counted
in the total number of overtime hours in the year but wage must be paid
therefor and other regimes related to overtime work in the year must be
implemented strictly according to the provisions in Circular No. 15/2003/TT-BLDTBXH
of June 3, 2003 of the Ministry of Labor, War Invalids and Social Affairs
guiding the performance of overtime work as stipulated in the Government's
Decree No. 109/2002/ND-CP of December 27, 2002.
e/ If the number of actual daily working hours
exceeds the standard number of hours already planned under the guidance in
Clause 1.2 above, the number of extra hours shall be counted as overtime for
inclusion in the total number of overtime hours in the year and, accordingly,
wage must be paid therefor and other regimes related to overtime work in the
year must be implemented strictly according to the provisions in Circular No.
15/2003/TT-BLDTBXH of June 3, 2003 of the Ministry of Labor, War Invalids and
Social Affairs guiding the performance of overtime work as stipulated in the
Government's Decree No. 109/2002/ND-CP of December 27, 2002.
In July, Company X arranged
Worker A to work 8 hours/day. Thus, compared with the plan made by the Company
for Worker A in July as shown in example 3 above, the number of extra working
hours as compared with the standard number of working hours 8
hours - 7 hours = 1 hour. This one hour shall be counted in the total number of
overtime hours in the year and, accordingly, wage must be paid therefor and
other regimes related to overtime work must be implemented strictly according
to the provisions in Circular No. 15/2003/TT-BLDTBXH of June 3, 2003 of the
Ministry of Labor, War Invalids and Social Affairs guiding the performance of
overtime work as stipulated in the Government's Decree No. 109/2002/ND-CP of
December 27, 2002.
f/ The total standard number of working hours
and overtime hours in a day must not exceed 12 hours, or 9 hours for laborers
doing extremely heavy, hazardous or dangerous occupations or jobs;
g/ The total standard number of working hours
and overtime hours in a week must not exceed 64 hours, or 48 hours for laborers
doing extremely heavy, hazardous or dangerous occupations or jobs;
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- In May, it would only be allowed to organize
work according to the plan stated in example 3, must not organize overtime work
because the total number of working hours in a week is: (11 hours/day x 4 days)
+ (10 hours/day x 2 days) = 64 hours;
- In June, it may arrange one overtime hour a
day from Monday thru Friday.
2. Rest time of the
above subjects is prescribed as follows:
2.1. Weekly, laborers shall have at least one
rest day (24 consecutive hours). During seasonal months or when it is necessary
to process urgently export goods on orders, if weekly rest days can not be
arranged, it must be ensured that laborers have at least 4 rest days a month.
2.2. The regime of rest during or in the middle
of a work shift and between two work shifts shall comply with the amended and
supplemented Labor Code. Where laborers work over 10 hours a day, prior to the
ninth working hour, they must be arranged at least 30 minutes' rest counted
into the number of working hours.
2.3. Enterprises must make arrangements for
laborers to rest on festive, New Year days or annual leaves as well as other
paid rest days or have rest time as compensation therefor according to the
provisions and the amended and supplemented Labor Code.
III. ORGANIZATION OF
IMPLEMENTATION
1. Responsibilities of enterprises
- Annually, on the basis of their production and
business plans, to take initiative in planning working time and rest time in
the year. When planning, to refer to the opinions of the grassroots trade union
executive committees or provisional trade union executive committees in the
enterprises;
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- Annually, if the enterprises implement the
regime of working time and rest time under the provisions of this Circular,
they must make registration thereof with the provincial/municipal Services of
Labor, War Invalids and Social Affairs according to a set form. If they
determine the number of normal working hours per day as 8 or 6 for laborers
performing extremely heavy, hazardous or dangerous occupations or jobs, they
shall not have to make such registration.
2. Responsibilities of the provincial/municipal
Services of Labor, War Invalids and Social Affairs:
- To coordinate with the provincial/municipal
Labor Federations in disseminating this Circular to enterprises based in their
localities; to regularly urge, examine and supervise the implementation
thereof; and concurrently to intensify the implementation inspection and
strictly handle any violations which are detected;
- To receive the written registrations of the
working time and rest time plans under the guidance of this Circular. To create
favorable conditions for enterprises to organize their production and business;
- To sum up and send biannual and annual reports
to the Ministry of Labor, War Invalids and Social Affairs on the implementation
of this Circular by the enterprises based in their localities.
3. This Circular takes effect 15 days
after its publication in the Official Gazette.
To repeal Circular No. 14/1999/TT-BLDTBXH of May
18, 1999 of the Ministry of Labor, War Invalids and Social Affairs guiding the
implementation of the regime of working time and rest time for laborers doing
seasonal jobs or processing export goods on orders.
Any problems arising in the process of
implementation should be reported to the Ministry of Labor, War Invalids and
Social Affairs for settlement.
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MINISTER OF LABOR, WAR INVALIDS
AND SOCIAL AFFAIRS
Nguyen Thi Hang