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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
114/2002/ND-CP
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Hanoi,
December 31, 2002
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DECREE
DETAILING AND GUIDING THE IMPLEMENTATION OF A NUMBER OF THE
LABOR CODE’S ARTICLES ON WAGES
THE GOVERNMENT
Pursuant to the December 25, 2001 Law on
Organization of the Government;
Pursuant to the June 23, 1994 Labor Code and the April 2, 2002 Law Amending and
Supplementing a Number of Articles of the Labor Code;
At the proposal of the Minister of Labor, War Invalids and Social Affairs,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- This Decree
specifies and guides the implementation of a number of articles of the Labor
Code and the Law Amending and Supplementing a Number of Articles of the Labor
Code (hereinafter called the revised Labor Code for short) on wages.
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1. Enterprises set up and operating under the
State Enterprise Law;
2. Enterprises set up and operating under the
Enterprise Law;
3. Enterprises set up and operating under the
Law on Foreign Investment in Vietnam;
4. Enterprises of political organizations and
socio-political organizations;
5. Non-business units operating according to the
economic cost-accounting regime;
6. Cooperatives, farms, households and
individuals that employ laborers;
7. Foreign or international agencies and
organizations based on the Vietnamese territory and employing Vietnamese
laborers, except otherwise provided for by international agreements which the
Socialist Republic of Vietnam has signed or acceded to.
The above-mentioned enterprises, agencies,
organizations and units are referred to as enterprises and agencies for short.
Article 3.- According to
Article 4 of the Labor Code, subjects and scope of non-application of wages
under the provisions of this Decree include:
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2. People belonging to political organizations
or socio-political organizations operating under the Regulations of such
organizations.
3. Members of cooperatives under the Cooperative
Law.
4. Officers, non-commissioned officers,
soldiers, professional armymen and non-contractual employees in the armed
forces.
Chapter II
MINIMUM WAGE, WAGE
SCALE, PAYROLL AND LABOR NORMS
Article 4.-
1. The minimum wage level
under Article 56 of the Labor Code and Clause 3 of Article 132 of the amended
and supplemented Labor Code is the wage level defined on the basis of the labor
supply and demand, economic capability and cost-of-living index in each period.
The Ministry of Labor, War Invalids and Social
Affairs shall, after consulting Vietnam Confederation of Labor, representatives
of employers and concerned ministries and branches, submit to the Government
for promulgation a general minimum wage level; the minimum wage level for
Vietnamese laborers working in foreign-invested enterprises under the Law on
Foreign Investment in Vietnam, and in Vietnam-based foreign or international
agencies or organizations.
2. Depending on their conditions and business
operation capability, enterprises and agencies may apply a minimum wage level
higher than that prescribed by the State, which shall serve as basis for the
payment of wages to their laborers.
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1. Principles for formulating wage scale and
payroll:
a/ The wage scale and payroll shall be
formulated for laborers involved in managerial, professional or technical work and
workers directly involved in production and business activities according to
their jobs and occupations they are trained in;
b/ The multiple of the wage scale and payroll is
the coefficient of the highest wage level for laborers with the highest managerial,
technical or professional qualifications as compared to the laborers with the
lowest qualifications;
c/ The number of grades of the wage scale and
payroll depends on the complexity of the management and work requirements. The
gap between the conse-cutive wage grades must ensure encouragement to raise the
technical and professional qualifications as well as talents and experience
accumulation;
d/ The grade 1 of the wage scale and payroll
must be higher than the minimum wage level prescribed by the State. The wage
level applicable to hazardous and dangerous as well as specially hazardous and
dangerous occupations or jobs must be higher than that applicable to
occupations or jobs with normal labor conditions.
2. Principles for formulating labor norms:
a/ The labor norms are formulated on the basis
of the job ranks and in compatibility with the workers
grades, ensuring the improvement of working conditions, technical and
technological renovation, and labor standards;
b/ The prescribed labor norm is the advanced
average norm, which ensure that the majority of laborers can attain it without
having to excessively prolong the regular working time prescribed by law;
c/ The new or revised labor norm must be applied
experimentally for not more than 3 months before being officially promulgated.
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4. The Ministry of Labor, War Invalids and
Social Affairs shall, after consulting Vietnam Confederation of Labor, submit
to the Government for promulgation the wage scale and payroll applicable to
State enterprises; guide the methods of formulating wage scales, payrolls and labor
norms and Regulation on wage payment applicable to enterprises and agencies.
Article 6.- The wage
scales and payrolls of enterprises and agencies shall serve as basis for:
1. Reaching agreement on wages upon the
conclusion of labor contracts;
2. Determining the wage unit price, implementing
the regime of raising wage levels as agreed upon in labor contracts and
collective labor agreements;
3. Paying social and health insurance premiums
and enjoying social and health insurance regimes under law provisions;
4. Paying job-termination wages and other
entitlements under the provisions of the labor legislation;
5. Handling other interests under the two parties agreement and provisions of the labor
legislation.
Chapter III
THE REGIME OF WAGE AND
BONUS PAYMENT
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1. The time-based wage shall be paid to laborers
on the basis of their actual working time, concretely:
a/ The monthly wage shall be paid for a working
month, determined on the basis of labor contracts;
b/ The weekly wage shall be paid for a working
week, determined on the basis of the monthly wage multiplied by 12 months and
divided for 52 weeks;
c/ The daily wage shall be paid for a working
day, determined on the basis of the monthly wage divided for the standard
number of working days in the month as prescribed by law and selected by the
concerned enterprises or agencies, which, however, must not exceed 26 days;
d/ The hourly wage shall be paid for a working
hour, determined on the basis of the daily wage divided for the standard number
of working hours as prescribed in Article 68 of the Labor Code.
2. The piecework wage shall be paid to laborers
on the basis of the quantity and quality of their products.
3. The package wage shall be paid to laborers
according to the volume and quality of the work, which they must complete.
4. The Ministry of Labor, War Invalids and
Social Affairs shall guide the employers to pay wages according to the forms
defined at Clauses 1, 2 and 3 of this Article.
Article 8.- For
particular cases specified in Clause 1, Article 59 of the Labor Code, i.e.
natural calamities, fires or other force majeure circumstances defined at Point
d, Clause 1, Article 38 of the revised Labor Code, which cannot be overcome
though the employers have resorted to every possible measure, the employers may
delay wage payment but for not more than one month and must pay compensation to
laborers as follows:
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2. If the delay lasts for 15 days or more,
compensation shall be made with an amount being at least equal to the wage
arrears multiplied by the interest rate of time-savings deposits announced at
the time of wage payment by the commercial banks where the concerned
enterprises or agencies open their transaction accounts.
Article 9.- The
deduction of wage of laborers under Clause 1 of Article 60 of the Labor Code is
prescribed as follows:
Based on the monthly wage amounts received by
laborers after paying social and health insurance premiums and income tax for
high-income earners (if any), the employers shall make gradual deduction of
advances, which have already been made according to the provisions in Articles
12 and 13 of this Decree and compensations for material damage prescribed in
Article 89 of the Labor Code.
Article 10.- The wage
payment when laborers work overtime and/or during the night-time under Article
61 of the revised Labor Code is specified as follows:
1. If the payment is made according to the
working time, the laborers shall be paid for the work done beyond the regular
time.
2. If the payment is made according to piecework
or package wage, the laborers shall be paid for their overtime work when they
are requested by the employers to make an additional quantity of products or
undertake an additional volume of work besides the quantity or volume to be
achieved during the regular time.
3. Laborers working overtime as mentioned at
Clauses 1 and 2 of this Article shall be paid overtime wage according to the
wage unit price or wage actually paid for the work being done, which shall be
as follows:
a/ At least equal to 150%, for weekdays;
b/ At least equal to 200%, for weekends as
defined in Article 72 of the Labor Code;
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4. Laborers working in night shifts defined in
Article 70 of the Labor Code shall get an additional pay at least equal to 30%
of their wage, calculated according to the wage unit price or the wage paid for
the daytime work. If they work overtime at night, they shall also be paid
overtime wage.
5. The overtime and nighttime wage paid to
laborers shall be calculated corresponding to the forms of wage payment
specified in Article 7 of this Decree.
Article 11.- The
payment of bonuses to laborers working in enterprises under Article 64 of the
revised Labor Code is specified as follows:
1. For State enterprises, basing themselves on
the annual production and business results and extent of work performance by
laborers, the enterprises shall make deduction from the after-tax profits for
setting up the reward funds in order to give bonuses to their laborers. The
deduction level for setting up the reward fund shall comply with the guidance
of the Finance Ministry.
2. For enterprises of other economic sectors,
basing themselves on the annual production and business results and extent of
work performance by laborers, the employers shall give bonuses to laborers
working at their respective enterprises on the basis of the mutually- agreed
labor contracts and collective labor agreements.
3. Enterprises shall have to issue regulations
on rewards for laborers after consulting the grassroots Trade Union Executive
Committees. The reward regulations must be announced publicly within
enterprises.
Article 12.- The
advance payment of wage to laborers under Clauses 1 and 2 of Article 67 of the
Labor Code is specified as follows:
1. When laborers or their families meet with
difficulties, the laborers shall be paid an advance of wage, which, however,
must be at least equal to one-month wage amount. The mode of advance payment
shall be agreed upon by the two parties, but the advance amount must be
interest free.
2. When a laborer has to temporarily cease to
work to discharge the citizens duties for one week or longer, he/she shall be
paid a wage advance corresponding to the number of his/her days of temporary
work cessation, which shall be deducted into his/her wage under the provisions
of the Labor Code.
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1. For a laborer kept in custody or detention
due to violation related to his/her labor relations with the employer, during
the period of temporary custody or detention, every month he/she shall be paid
under the labor contract by the employer an advance of 50% of his/her wage of
the preceding month, including the rank and position wage and region and
position allowances (if any).
2. Upon the expiry of the custody or detention
duration, if the laborer is at fault, he/she shall not have to return the wage
advance already made under Clause 1 of this Article. If the employer is at
fault, such employer shall have to fully pay wage amount under the labor
contract and the law-prescribed social insurance premium amount to the laborer
for the time the latter is kept in custody or detention. If the legal
proceeding agency is at fault, it shall have to return to the employer the wage
amount already advanced to the laborer under Clause 1 of this Article and pay
the laborer a compensation equal to the latters remaining wage amount as well
as the law prescribed social
insurance premium amount payable for the custody or detention duration
according to the wage level inscribed in the labor contract.
3. If the laborer is kept in custody or
detention for violations irrelevant to the labor relations, the employer shall
not have to pay him/her wage advance.
Article 14.-
1. The wages paid to
laborers for their annual paid leave, holidays or paid leave for personal
affairs shall be calculated according to the time-based wage and equal to the
contractual wage of the preceding month, including the rank and position wages,
region and position allowances (if any), divided for the number of regular
working days in the month as prescribed by law and selected by the enterprises
or agencies, which however, must not exceed 26 days, and multiplied by the prescribed
number of days of the paid leave.
2. In a work-shift, if laborers stop their work
according to the provisions in Clause 1, Article 62 of the Labor Code for 2
hours or more, they shall be paid work-stoppage wage according to Article 16 of
this Decree.
Article 15.- The wage
serving as basis for calculation of job severance allowance, job-loss
allowance, compensation for unlawful unilateral termination of labor contracts,
compensations for labor accidents and occupational diseases is the contractual
wage calculated as being equal to the average wage of the 6 preceding
consecutive months before the incidents occur, including the rank and position
wages, region and position allowances (if any).
Article 16.- The wage
paid for the laborers leave as prescribed in Articles 53, 62 and 92 of the
Labor Code is the contractual wage of the preceding month and calculated
corresponding to the forms of time-based wage payment defined at Clause 1,
Article 7 of this Decree.
Chapter IV
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Article 17.-
Apprentices and job learners prescribed in Clause 2, Article 23 of the Labor
Code, if personally turning out products, shall enjoy wage. The wage level
shall be agreed upon by the two parties but not lower than 70% of the wage unit
price or the wage of laborers doing the same job.
In cases where the apprenticeship or training
time is prolonged as compared to the commitments in the apprenticeship or
training contracts, the employers shall have to fully pay wage to the
apprentices or job learners according to the latter’s
work.
Article 18.- Female
laborers defined in Article 111 of the Labor Code, if doing the same jobs as
male laborers shall enjoy the same wage.
Article 19.- Minor
laborers defined in Article 121 of the Labor Code, if doing the same jobs as
major laborers shall enjoy the same wage.
Article 20.- Aged
laborers are entitled to shorter working time prescribed in Article 123 of the
Labor Code and receive full wage.
Article 21.-
Handicapped laborers defined in Article 125 of the Labor Code, if doing the
same jobs as ordinary laborers, shall enjoy the same wage.
Article 22.- Laborers
with high professional and technical qualifications as defined in Article 129
of the Labor Code shall be paid wage under agreement according to the levels of
their contributions to production and business efficiency of the concerned
enterprises or agencies. The employers shall elaborate wage-payment regulations
to attract these laborers.
Article 23.- Vietnamese
citizens laboring overseas in the forms defined in Article 134a of the revised
Labor Code, who are managed and paid wage by Vietnamese enterprises or agencies
shall, during their working time overseas, be paid part of their wage in the
currencies of the concerned foreign countries or in convertible foreign
currencies.
Article 24.- Basing
itself on the provisions of Article 36 of the Labor Code, the Ministry of
Labor, War Invalids and Social Affairs shall coordinate with the concerned
ministries and branches in submitting to the Government for decision a number
of wage and wage allowance regimes for persons involved in special occupations
or doing special jobs in the field of arts.
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IMPLEMENTATION PROVISIONS
Article 25.- The
Ministry of Labor, War Invalids and Social Affairs shall have to guide the
implementation of this Decree; guide foreign and international agencies and
organizations based in the Vietnamese territory as well as cooperatives, farms,
households and individuals employing laborers to appropriately apply a number
of the provisions of this Decree.
Article 26.- This
Decree takes effect as from January 1, 2003 and replaces the Governments Decree
No. 197/CP of December 31, 1994 detailing and guiding the implementation of a
number of the Labor Codes articles on wages.
Article 27.- The
ministers, the heads of the ministerial-level agencies, the heads of the
agencies attached to the Government and the presidents of the Peoples
Committees of the provinces and centrally-run cities shall have to implement
this Decree.
ON BEHALF OF THE GOVERNMENT
FOR THE PRIME MINISTER
DEPUTY PRIME MINISTER
Nguyen Tan Dung