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THE
MINISTRY OF LABOUR, WAR INVALIDS AND SOCIAL AFFAIRS
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.:
21/2003/TT-BLDTBXH
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Hanoi,
September 22, 2003
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CIRCULAR
OF THE MINISTRY OF LABOUR, WAR INVALIDS AND SOCIAL AFFAIRS
NO.21/2003/TT-BLDTBXH DATED 22/9/2003 GUIDING THE IMPLEMENTATION OF A NUMBER
ARTICLES OF THE DECREE NO.44/2003/ND-CP DATED 09/5/2003 OF THE GOVERNMENT ON
LABOUR CONTRACT
Implementing the
Decree No.44/2003/ND-CP dated May 09, 2003 of the Government detailing and
guiding the implementation of a number of Articles of the Labour Code on labour
contract (hereinafter called as the Decree No.44/2003/ND-CP), after collecting
opinions of the Vietnam General Confederation of Labour and of relative
Ministries, Branches, the Ministry of Labour, War Invalids and Social Affairs
guides the implementation as follows:
I. FORM,
CONTENTS AND TYPES OF LABOUR CONTRACTS
1. Form of
labour contracts according to Article 3 of the Decree No.44/2003/ND-CP is
stipulated specifically as follows:
a) Labor
contracts with indefinite term, labor contracts with definite term from full 12
months to less than 36 months and the labor contract with a term of 3 months to
less than 12 months must be signed in writing according to form 1 enclosed
herewith. The employers prepare labour contract according to form prescribed on
A4 paper size and seal between the pages for use in the unit.
Where a party
of signing labor contract being foreigner, the contract’s contents must be in
Vietnamese, after the Vietnamese, it may be added foreign language upon mutual
agreement. Vietnamese contents shall have legal value.
The written
contract may be written with pens of colors (other than the red) or may be
typed.
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c) Labor
contracts of the enterprises in the fields of agriculture, forestry, fishery
and salt can be reduced some of the contents to suit the enterprises’
conditions.
d) Besides
the labor contracts, both parties may sign liability contracts on assets
assigned.
2. The
application of types of labor contracts according to Article 4 of the Decree
No.44/2003/ND-CP is stipulated specifically as follows:
a) Employers
and employees based on the time of jobs to apply one of types of labor
contracts stipulated in 1, 2, 3 Article 4 of the Decree No.44/2003/ND-CP;
Particularly
for those who have retired, both parties may sign several times types of labor
contracts upon season or a specific job with a term of less than 12 months.
b) Labor
contracts with definite term which has signed before January 01, 2003 and till
that time it is still effective, shall be counted as the first labor contract
for the application of the provisions in clause 4 Article 4 of the Decree
No.44/2003/ND-CP.
II.
CONCLUSION, CHANGE OF CONTENTS OF THE LABOURS CONTRACTS
1. The
competent persons to conclude labour contracts with laborers according to
Article 5 of the Decree No.44/2003/ND-CP, are stipulated specifically as
follows:
- For
enterprises operating under the State Enterprise Law, Enterprise Law and Law
enterprises with foreign-owned capital in Vietnam as CEO or director of the
enterprises;
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- For
agencies, organizations, branches, representative offices (hereinafter referred
to as organizations) of internation or foreign countries in Vietnam being the
heads of the organizations (branch heads, office Chiefs, representative
Chief...).
- For
individuals, households being persons who directly use laborers.
Where the
competent persons who are not directly conclude labour contracts, may authorize
another person in writing, except for cases stipulated in the decentralization
of human resource management. Particularly for the employers who are
individuals, they are not entitled to authorize.
2. Labor
contracts signed with retirees enjoying monthly social insurance and those who
work with a less than 03 month term, apart from salaries by job levels, the
employees is also paid by the employers the following amounts:
- Social
insurance = 15%;
- Health
insurance = 2%;
- Annual
vacation = 4%;
- Travel
expenses when on leave due to mutual agreement not less than 9%.
The above %
rate calculated comparison with wages under the labour contract.
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- The requiring
party set out proposals to change the content and notify the other party in
writing.
- Party
receiving written request must take the initiative to meet the proposer on
agreement of the contents need to be changed, at least within 3 days from the date
of receipt of written request;
- Where both
parties may reach agreements on the change of the contents of labor contracts,
the appendix of labor contract shall be concluded according to Form No. 2
attached herewith.
- Where both
parties may not reach agreements on the change of the contents of labor
contracts, the labor contract which has been signed shall be continued to
implement or the agreement to terminate the labor contract is conducted as
stipulated in clause 3 Article 36 of the Labor Code.
III. TERMINATION OF LABOR CONTRACTS, TERMINATION
ALLOWANCES AND COMPENSATION FOR TRAINING EXPENSES
1. Prior
notice time limit for termination of labor contracts is implemented as follows:
a) In case of
termination of labor contracts according to Article 36 of the Labour Code, the
parties are not required for prior notice.
b) In case of
unilateral termination of labor contracts specified in Article 37 or Article 38
of the Labor Code, the party who is entitled to terminate unilaterally must
conduct the written prior notice to the other party. Number of prior notice
days of the employees defined in clause 2, clause 3 Article 37; of the
employers defined in clause 3 Article 38 of the Labor Code. The number of prior
notice days is working days. The case the employees who are disciplined by form
of dismissing shall not required conducting the prior notice.
2. The cases
being paid termination allowances and not according to clause 1 Article 14 of
the Decree No.44/2003/ND-CP are stipulated specifically as follows:
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- The
employees terminating the labour contract under Article 36, Article 37, point
a, c, d clause 1 Article 38, clause 1 Article 41, point c clause 1 Article 85
of the Labor Code.
- The
employees working in the state enterprises and being recruited before having
the labor contract regime shall be calculated for termination allowances as
those who concluded labor contracts when terminating their jobs.
- The
employees being terminated the labor contracts due to the enterprises,
agencies, organizations ending their activities as defined in point đ clause 1
Article 38 of the Labor Code are the cases: Enterprises, agencies and
organizations decided on the dissolution by the competent authorities, declared
bankrupt by the court, operation license has expired, law violation enterprises
that were withdrawed the operation license or were revoked the business
registration certificate by the competent authorities.
b) The
cases which are not paid termination allowances:
- The
employees being dismissed according to point a, point b, clause 1 Article 85 of
the Labor Code.
- The
employees unilaterally terminating the labor contracts but committing violation
on the reason for the termination or prior notice time limit specified in
Article 37 of Labor Code.
- The
employees leaving their jobs to enjoy the monthly pension regime as stipulated
in clause 1 and clause 2 of Article 145 of the Labor Code.
- The
employees being terminated the labor contracts according to clause 1 Article 17
and Article 31 of the Labor Code enjoyed redundancy payment.
3. The method
of calculation and payment of termination allowances shall be implemented as
follows:
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Money
for termination allowance
=
Total
time working in enterprises
x
Wage
used as a basis for calculation of termination allowances
x
1/2
In which:
- Total time
working in the enterprises is the number of years that the employees work in
the enterprises rounded under the principle set out in clause 5 Article 14 of
the Decree No.44/2003/ND-CP.
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a) Where the
employees perform many labor contracts in an enterprise that when ending each
contract had not been paid the termination allowance, then the enterprise
pluses working time under the labor contract and gets average wages of 6
preceding months prior to the termination of last labor contract for
calculating termination allowances to employees. Where the employees
unilaterally terminating the labor contract illegally for a labor contract
among many such labor contracts, the employees shall not be calculated
termination allowance for the working period of the labor contract terminated
illegally, the other remaining contracts are still calculated for termination
allowance.
Example 1:
Ms. Vu Thi Tam terminates labor contracts at Thang Long company after she
performed three labor contracts: Her working time for the first contract is 14
months with average salary of the last 6 months is 500,000 VND per month; for
the second one is 18 months with average salary of the last 6 months is 600,000
VND and for the third one is 24 months with average salary of the last 6 months
is 800,000 VND per month. The termination allowance of Ms. Tam is calculated as
follows:
- Total
working time is: 14 months + 18 months + 24 months = 56 months (rounded to 5
years);
- Termination
allowance is: 800,000 VND x 5.0 x 1/2 = 2,000,000 VND.
In case
Ms.Tam terminates the third labour contract illegally, Ms. Tam shall not be
calculated termination allowance for the third one. Thang Long company just
plus the working time under the first one and the second one for calculating
termination allowance as:
- Total working
time is: 14 months + 18 months = 32 months (rounded to 3 years);
- Termination
allowance is: 600,000 VND x 3 x 1/2 = 900,000 VND
Thang Long
Company pays to Ms.Tam the amount of termination allowance 7 days after the
date of terminating the third labour contract.
b) Where the
employees working in the state enterprises with both the time of working under
the State employee regime and the time of working under labor contract, then
plus both the time to calculate termination allowances.
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823,600 VND x
12.5 x 1/2 = 5,147,500 VND
c) Where the
employees work in various state enterprises due to transfer job before January
01, 1995, the calculation of termination allowances to employees in each
enterprise shall be made. Wages of employees before April 01, 1993 are
converted according to the Decree No.25/CP, 26/CP at the time of April 01,
1993.
Example 3:
Ms. Le Thi Be is basic construction worker (salary scale A6 Group II) with the
process of working in three units under the state enterprises: In Company Y
according to the State employee regime from October 1988 to December 1990 (22
months rounded to 2 years) with average salaries of the last 6 months converted
upon the Decree No.26/CP at the time of April 01, 1993 is 142,000 VND per month
(coefficient 1.55 ); in Company Z according to the State employee regime from
January 1991 to May 1994 (41 months rounded to 3.5 years) with average salaries
of the last 6 months is 186,000 VND per month (coefficient 1.55); in Company X
under the labor contract since June 1994 and to May 31, 2003 terminating
labor contracts with an average salary last 6 months is 823,600 VND per month
(coefficient 2.84). Time working in Company X is 108 months (rounded to 9
years). Ms. Be’s termination allowance is calculated as follows:
- In Company
Y: 142,000 VND x 2.0 x 1/2 = 142,000 VND
- In Company
Z: 186,000 VND x 3.5 x 1/2 = 325,500 VND
- In Company
X: 823.600 VND x 9 x 1/2 = 3.706.200 VND
Total:
4,173,700 VND.
Company X
pays the whole termination allowance to Ms. Be, then makes announcement upon
Form 3 attached herewith to Company Y and Company Z for these companies to
return the amount that Company X paid.
In case
Company Y or Company Z terminated its operations, Company X will be refunded by
the State budget under the guidance of the Ministry of Finance.
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Example 4:
Mr. Bui Van An working in the State owned enterprise A from June 1990. By June
1998 this enterprise was equitized and became a shareholding company and
operated under the Enterprise Law. By June 2003 Mr. An terminated the labour
contract. Mr An’ s average wage of 6 months prior to the equitization is
300,000 VND/month and 6 months prior to the termination of labor contracts is
800,000 VND per month. Mr. An’s termination allowance is calculated as follows:
- Termination
allowance in the State owned enterprise is: 300,000 VND x 8 x 1/2 = 1,200,000
VND.
- Termination
allowance in the shareholding company is: 800,000 VND x 5 x 1/2 = 2,000,000
VND.
Total:
3,200,000 VND.
The shareholding
company must pay the entire amount of termination allowances to Mr. An. Source
to pay termination allowance implemented under Article 27 of the Decree
No.64/2002/ND-CP dated June 09, 2002 of the Government on the transformation of
the State owned enterprises into shareholding companies.
4. The
compensation for training costs under Article 13 of the Decree No.44/2003/ND-CP
shall be implemented as follows:
a) The
employees are trained domestic or abroad from funds of the employers, including
expenses funded by the foreign side to the employers, after graduation, the
employers must work for the employers a period agreed by both parties.
b) The
employees left their jobs arbitrarily or unilaterally terminate labor
contracts, except for the cases stipulated in Article 37 of the Labor Code, as
not yet graduated or graduated but not working for the employers for the time
as agreed, the employees must compensate the costs of training including the
costs for trainers, learning materials, school, equipment, practice materials
and other costs to support learners calculated by the employers with the
consent of the employees.
The
agreements referred to in point a, point b above must be in writing with
signatures of employers and employees.
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1. This
Circular takes effect 15 days after its publication in the Official Gazette;
Annulling the following documents: the Decision No.66/LDTBXH-QD dated December
12, 1993 of the Minister of Labour, War Invalids and Social Affairs on issuance
and management of labour contracts; the Decision No.207/LDTBXH-QD dated April
02, 1993 of the Minister of Labour, War Invalids and Social Affairs on form of
labour contracts; the Circular No.21/LDTBXH-TT dated October 12, 1996 of the
Ministry of Labour, War Invalids and Social Affairs guiding the implementation
of a number of Articles of the Decree No.198/CP dated December 31, 1994 of the
Government on Labour contracts; the Circular No.02/2001/TT-BLDTBXH dated
January 09, 2001 of the Ministry of Labour, War Invalids and Social Affairs
annulling point 4 Item III of the Circular No.21/BLDTBXH-TT dated October 12,
1996 of the Ministry of Labour, War Invalids and Social Affairs.
2. Not to
apply the method to calculate redundancy payment prescribed in this Circular to
recalculate the redundancy payment for the cases teminated labor contract
before the effective date of this Circular.
3. Every 6
months and annually, units using laborers upon the labor contract must report
to the Department of Labor – War Invalids and Social Affairs or the Management
Units of local industrial parks where the units locate its headquarters on the
situation of signing, using and terminating labor contracts in accordance with
the law regulations.
4. Department
of Labour – War Invalids and Social Affairs, Management Units of Industrial
Zones of the provinces and cities directly under the Central Government are
responsible for assistting the People's Committees to guide, urge and inspect
the implementation of this Circular.
During the course
of implementation, if any difficulties arise, the relative individuals,
organizations need to reflect promptly to the Ministry of Labour, War Invalids
and Social Affairs for studying to settle./.
Nguyen
Thi Hang
(Signed)
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1. Recording
specifically names of enterprises, agencies and organizations, for example, the
Hanoi Housing Construction Company.
2. Recording
clearly name of career (if there are many careers, recording the main career), for
example: Engineer.
3. Recording
clearly type of labour contract, example 1: indefinite term; example 2: 06
months.
4. Recording
specifically the main location, for example: No.2 – Dinh Le - Hanoi; and
auxiliary location (if any), for example: No.5 – Trang Thi – Ha Noi.
5. Recording
the main tasks which laborer must do, for example: Installation, inspection and
repair of electrical system; ventilation equipment, refrigeration equipment ...
in the enterprise.
6. Recording
specifically the number of hours working per day or week, for example: 08
hours/day or 40 hours/week.
7. Recording
clearly vehicles undertaken by the employer or employee, for example:
transportation shall be undertaken by the employer or by individual.
8. Recording
specifically wage according to wage payroll or wage scale which the units
apply, for example: wage scale A.1. Mechanic,
Electric, Electronics - Informatics; Group III; Level 4/7; coefficient 2.04;
salary at the time of signing the labor contract is 428,400 VND/month.
9. Naming type
of allowances and coefficients, allowance level at the time of signing the
labor contracts, for example, responsible allowance of Deputy Manager;
coefficient is 0.3; Allowance level is 63,000 per month.
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For the
employees who are not subject to mandatory social insurance payment, the social
insurance amount shall be added to the wages for employees to participate in
voluntary insurance or self-insured by themselves, for example, social
insurance amount has been added to the wages for employees is 17% of monthly
salary.
11.
Specifically recording the cases that the units send for training, the
employees’ obligations and benefits, for example: During the time that the
units sent the employees to study, the employees must complete the course on
time, the employees shall be paid their full salaries and other benefits as
people who go to work, except for hazardous allowances.
12. Recording
interests which have not stated in the Labor Code, the collective labor
agreement or had but more favorable to the employees, for example, visit,
travel, vacation, birthday gift.
13. Recording
clearly the level of compensation for each case of violation, for example,
after being trained, the employees do not work for employers, they must pay
compensation 06 (six) million dong; not work for the full 02 years, they must
pay compensation 03 (three) million dong.
Unit name:.......
No:....................
LABOR
CONTRACT
We are, one side is
Mr./Mrs:…………………………Nationality:
Position:
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Address:
And one side is
Mr./Mrs:……………………………. Nationality:
Date of
birth: at……
Occupation (2):
Permanent residence:
ID No. ………………issued on
………………………….at……………….
Labour Book (if
any): ……………..issued
on,,,,,,,,,,,,,,,,,,,,,,,,,,,,at:
Both sides have agreed to sign
the labor contract and undertake to comply with the following provisions:
Article 1: Term and contract
work
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- From date……………………………………..to
date…………………
- Probation time from
date……………………..to date……………….
- Working place (4):
- Professional title:
Position (if any)):
- Work to be done (5):
Article 2. Working regulation
- Working time (6)
- To be equipped with the labor
instrument including:
Article 3. Obligations and
interests of the labor
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- Means of commutation (7):
- Basic salary or wages (8):
- Form of payment:
- Allowance (9):
- To be paid monthly on……..
- Bonus:
- Pay rise regulation::
- To be provided with the labor
equipment including :
- Time of rest (weekly leave, annual leave and public holiday…):
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- Training regulation (11):
Other agreements: (12):
2. Obligations:
-To fulfill the works undertaken
in the labour contract
- To comply with the direction and
order of production and business, internal rule of labour discipline and
occupational safety…..
- Compensation for material
violation (13):
Article 4: Obligations and
power of the employer
1. Obligations:
- To ensure the employment and
fully implement all commitments in the labour contract
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2. Power:
- To manage the employee to
fulfill the works in accordance with the labour contract (assign, appoint,
postpone…).
- To postpone, terminate the
labour contract and penalize the employee in accordance with the law,
collective labour agreement (if any) and internal labour rule of enterprise.
Article 5: Implementation
provisions
- The issues concerning the
labour not defined in the labour contract shall be applied with the provisions
of the collective labour agreement. In case there is not the collective labour
agreement, the regulations of labour legislation.
- This labour contract is made
into two copies of equal validity; each party keeps one copy that comes into
force on date…….. When both parties sign the appendix of the labour contract,
the content of appendix shall be also valid as the contents of this labour
contract.
This contract is made
at……………….on date……………..
Employee
(Signature and full name)
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INSTRUCTION
FOR RECORDING LABOUR CONTRACT
1. Specify name,
agency,
organization, eg Hanoi Housing Construction Company.
2. Specify the job
name
(if having many
occupations, specify the main occupation), for example: Engineer.
3. Specify the type of labor
contract, for example 1: No definite term, for example 2: 06 months.
4. Specify the
main location,
for example: No. 2 –
Dinh Le
- Hanoi
and minor
location (if
any), for example: No. 5 - Trang Thi - Hanoi.
5. Specify the main
job to
do, for
example, installation,
inspection and repairment
of electrical
system, ventilation
equipment, refrigeration equipment... in the enterprise.
6. Specify the
working hours of
a day or
week,
for example: 08
hours /
day
or
40 hours
/ week.
7. Specify the means
of commutation, for
example, enterprise’s commuter vehicle or individual’s vehicle
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9. Specify the type of allowance, coefficient,
the rate of
allowance at
the time of
signing labor
contracts, for
example, the responsibility
allowance for the Deputy
Head of department; coefficient 0.3; Allowance rate 63,000 dong
/ month.
10. For the employee
subject to
mandatory
payment of social insurance,
record the percentage of the monthly salary that both sides must pay to the
social insurance
agency. For example: Every month the employer shall deduct 6% from monthly salary
of employee and
the amount of
the corresponding
cost
equal to
17%
of monthly
salary of
the employee to
pay
20%
for
social
insurance agency
and 3% to
the health insurance
agency.
For employee who does not
pay the mandatory social insurance, the social insurance amount
is added to
the salary for
the employee to participate
in voluntary
insurance
or
manage the
insurance himself,
for example,
the social insurance
amount added to
the salary
for employee
is
17% of
monthly salary.
11. Specify in case
the unit sends
for training, what the employee shall be obliged to do and what benefit he will enjoy.
For example: During the time of study the employee must successfully complete
the course on
time, enjoy
full salary and
other benefits
as
people
who are working,
except for
hazardous
allowance.
12. Specify the rights that do not
exist in the
Labor Code and the
collective
labor agreement
or
do exist but
they are more
beneficial to
employee, for
example, tour,
travel, vacation,
birthday gift.
13. Specifies the rate of
compensation for
each case
of violation,
for example: After the training,
the employee
does not work for
the enterprise, he shall
pay compensation 06 (six) million; if not working 02 years in full,
the compensation
shall be 03 (three) million.
Form No. 2
Date……………month…………..year……………
Unit name:.......
...
...
...
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We, one side is
Mr./Mrs:............................ Nationality:......................
Position:......................................................................................................
Representative for (1):
................................................. Phone
No.:.....................
Address:.........................................................................................................
And one side is Mr./Mrs:..................................
Nationality::......................
Born
on……………………..at.........................................................
Occupation
(2):...........................................................................................
Permanent
residence:.......................................................................................
ID No.:....... issued
on...../...../...... at..................................................
...
...
...
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Based on the Labor Contract
No.
....
signed on
....
/ .... / .... and the employment
needs,
the two sides have
agreed upon the
change of some
contents of
the contract that
both parties have
signed as
follows:
1. Change of content (specify
the change of content and way of change)
.....................................................................................................................
.....................................................................................................................
2. Implementation period (specify
the contents
in
section 1
above mentioned
are valid for
how long):
.....................................................................................................................
.....................................................................................................................
This appendix is a
part of the
labor contract number
...
, and is made
into two copies
of the
same value, each
party keeps one
copy as
the basis for settling
the labor
disputes.
Employe
...
...
...
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Form No. 3
Date……..month…………year………
Unit name:.......
No:....................
To:
Company B
Pursuant to Decree
No. 44/2003/ND-CP
dated May 09,
2003 of the
Government detailing
and guiding
the
implementation of some articles of the Labor Code on the labor contract;
Based on the Circular No.……… of the
Ministry of Labour - Invalids and Social Affairs
...
...
...
...
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According to records, Mr.
Nguyen Van
A
has the working time
at
Company B
is
...
year
(from
date ... month
... year ...
to
date ... month
... year ...).
Our company has
been paid the
severance allowance
for
his working time
in Company
B with an amount of:
....
VND
Kindly request Company B to transfer and return the severance allowance that our company has
paid by the account number………../
Director
or unit Head
(signature
and seal)