Circular 47/2015/TT-BLDTBXH guiding a number of articles on labor contracts, labor discipline and material responsibilities in Decree 05/2015/ND-CP

CIRCULARS

INSTRUCTIONS ON IMPLEMENTATION OF SOME ARTICLES ON CONTRACTS, LABOR DISCIPLINE, MATERIAL RESPONSIBILITIES OF DECREE NO. 05/2015/ND-CP DECEMBER 12, 01 OF THE GOVERNMENT DETAILS AND DECREE NUMBER OF CONTENT OF LABOR CODE

Pursuant to Decree No. 106/2012/ND-CP dated February 20, 12 of the Government defining the functions, tasks, powers and organizational structure of the Ministry of Labor, War Invalids and Social Affairs;

Pursuant to Decree No. 05/2015/ND-CP dated January 12, 01 of the Government detailing and guiding the implementation of a number of contents of the Labor Code;

At the proposal of the Director of the Department of Labor - Salary;

The Minister of Labor, War Invalids and Social Affairs promulgates a Circular guiding the implementation of a number of articles on labor contracts, labor discipline and material responsibilities of Decree No. 05/2015/ND-CP dated 12 January 01 of the Government detailing and guiding the implementation of a number of contents of the Labor Code.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Circular guides the implementation of a number of articles on labor contracts, labor discipline, and material responsibilities of the Government's Decree No. 05/2015/ND-CP dated January 12, 01 detailing and guiding the implementation of a number of contents of the Labor Code (hereinafter referred to as Decree No. 2015/05/ND-CP).

Article 2. Subject of application

Employees, employers, representative organizations of the labor collective, other relevant agencies, organizations and individuals as prescribed in Article 2 of Decree No. 05/2015/ND-CP.

Chapter II

LABOR CONTRACT

Article 3. Authorization to enter into labor contracts

1. A written authorization to enter into a labor contract in case the person entering into a labor contract on the employer's side specified at Points a, b and c, Clause 1, Article 3 of Decree No. 05/2015/ ND-CP does not directly enter into labor contracts according to form No. 01 in the Appendix issued with this Circular.

2. The authorization to enter into a labor contract for an employee in the group specified at Point d, Clause 2, Article 3 of Decree No. 05/2015/ND-CP must be made in writing. A written authorization to enter into a labor contract must contain the following principal contents:

a) Full name, date of birth, gender, permanent address, occupation, signature of the authorized employee;

b) Full name, date of birth, gender, permanent address, occupation, signature of each employee in the authorization group;

c) Authorization content, authorization duration.

Article 4. Salary and other regimes and benefits stated in the labor contract

The salary, salary allowance and other additional amounts agreed upon in the labor contract specified at Point a, Clause 5, Article 4 of Decree No. 05/2015/ND-CP include:

1. Salary level, write the salary calculated according to the time of the job or title according to the salary scale, the salary table developed by the employer in accordance with the provisions of the labor law as agreed by the two parties. For employees who receive salary by product or package salary, write the salary calculated by time to determine the product unit price or package salary.

2. Salary allowance, write down the salary allowances that the two parties have agreed, specifically:

a) Salary allowances to compensate for factors such as working conditions, job complexity, living conditions, and level of labor attraction that the salary agreed upon in the labor contract has not been taken into account. or incomplete calculation.

b) Salary allowances associated with the employee's working process and performance results.

3. For other additional amounts, write additional amounts as agreed by the two parties, specifically:

a) The additional amounts can be determined with a specific salary along with the salary agreed in the labor contract and paid regularly in each pay period.

b) Additional amounts for which a specific amount cannot be determined together with the salary agreed upon in the labor contract, paid regularly or irregularly in each pay period associated with the working process and work performance results. workers' work.

For other regimes and benefits, such as bonuses as prescribed in Article 103 of the Labor Code, initiative bonuses; Mid-shift meal; allowances for petrol, phone, travel, housing, child care, child rearing; support when employees have relatives died, employees have relatives getting married, employees' birthdays, allowances for employees in difficult circumstances when suffering from occupational accidents, occupational diseases and Other supports and allowances shall be recorded in a separate section in the labor contract according to Clause 11 Article 4 of Decree No. 05/2015/ND-CP.

Article 5. Labor contracts with elderly employees

1. Elderly employee means a person who continues to work after the age specified in Article 187 of the Labor Code.

2. When continuing to work after the age specified in Article 187 of the Labor Code, the elderly employee and the employer shall agree to amend and supplement the labor contract to suit the provisions of the Labor Code. Labor law for elderly employees.

3. A labor contract with an elderly employee must ensure the contents specified in Clauses 2 and 3, Article 166 and Clauses 2, 3, and 4, Article 167 of the Labor Code.

Article 6. Agreement to suspend the performance of the labor contract when appointed or appointed as the representative of the State's contributed capital

The postponement of the performance of the labor contract when the employee is appointed or appointed as the representative of the State's contributed capital according to the provisions of Article 9 of Decree No. 05/2015/ND-CP is prescribed as follows: :

1. Suspension of the performance of a labor contract must be made in writing A written suspension of the performance of a labor contract must contain the following principal contents:

a) Name and address of the employer and the legal representative of the employer;

b) Full name, date of birth, gender, residential address, identity card number or passport number of the employee;

c) Information about the temporary employment contract: contract number; date, month, year of signing of the labor contract;

d) Time to suspend the performance of the labor contract: the time of starting and ending the time of suspension;

dd) The reason for the suspension of the performance of the labor contract;

e) Rights and responsibilities of the parties during the period of suspension and after the expiration of the period of temporary suspension of the performance of the labor contract.

2. In case the labor contract suspension period expires and the employee is appointed or appointed by a competent authority as the representative of the State's capital contribution, the employee is responsible for notifying the employee. the employer knows to agree to continue to suspend the performance of the labor contract. The document on continuing to suspend the performance of the labor contract has the same main content as the document suspending the performance of the labor contract.

Article 7. Notification to provincial-level state management agencies in charge of labor upon changes in structure, technology and economic reasons

1. The employer is responsible for giving a written notice 30 days in advance from the date of sending the notice to the provincial labor State management agency before severing 02 employees. or higher as prescribed in Clause 3, Article 13 of Decree No. 05/2015/ND-CP.

2. The written notice specified in Clause 1 of this Article must contain the following principal contents:

a) Name and address of the employer and the legal representative of the employer;

b) Total number of employees; number of employees laid off;

c) Reasons for employees to quit their jobs; the time the employee quits his job;

d) Expected funding to pay job loss allowance.

3. Provincial-level labor agencies are responsible for receiving, monitoring and inspecting the termination of many employees by the employer.

Article 8. Job severance allowance and job loss allowance

1. The salary used as the basis for calculating severance allowance or job loss allowance is the average salary under the labor contract specified in Clause 1, Point a, Clause 2 and Point a, Clause 3, Article 4 of this Circular of 06 consecutive months before the employee quits or loses his/her job.

2. In case the employee works for the employer under many successive labor contracts as prescribed in Clause 2, Article 22 of the Labor Code, upon termination of the last labor contract, the working time will job to calculate severance allowance, job loss allowance is the total time the employee has worked for the employer under the labor contract. In case the last labor contract is illegally terminated unilaterally or dismissed by the employee, the working period under the last labor contract shall not be counted as a severance allowance. The salary used as the basis for calculating severance allowance or job loss allowance is the average salary according to Clause 1 of this Article before the termination of the last labor contract.

Example 1: Ms. Nguyen Thi A works continuously under three labor contracts at company B; the first labor contract has a term of 12 months, performed from January 01, 01 to the end of December 2004, 31 (12 year); the second labor contract has a term of 2004 months, performed from January 01, 36 to the end of December 01, 01 (2005 years); The third labor contract with indefinite term, performed from January 31, 12 to the end of December 2007, 03 (01 years), Ms. A illegally unilaterally terminates the labor contract. Ms. A has been paid unemployment insurance premiums by her employer continuously from January 01, 2008 to the end of December 31, 12 (2015 years). The average salary according to Clause 08 of this Article before Ms. A terminates the third labor contract is VND 01/month.

Because Ms. A's third labor contract (labor contract of indefinite term) illegally terminates unilaterally, the time Ms. A works under the third labor contract (08 years) is not included in the calculation. severance allowance. The severance allowance for Ms. A is calculated as follows:

– The working time to calculate Ms. A's severance allowance for the previous two contracts is: 02 year + 01 years = 03 years (from January 04, 01 to the end of December 01, 2004);

– The amount of severance allowance paid by company B to Mrs. A is: 04 years x 4.500.000 VND/month x 1/2 = 9.000.000 VND.

3. For enterprises with 100% state capital or enterprises equitized from state enterprises, upon termination of a labor contract, the employee has worked for an agency, organization, unit or enterprise. state-owned enterprises and moved to work at state-owned enterprises before January 01, 01 but have not received severance allowance or job loss allowance or lump-sum allowance before serving, or demobilization allowance For employees who have worked in a unit of the armed forces, the employer is responsible for paying severance pay or job loss allowance for the time the employee has worked for the employee. and pay severance allowance for the time the employee has worked for agencies, organizations, units and enterprises in the state sector before as prescribed in Clause 1995, Article 2 of Decree No. 38/ 05/ND-CP.

Working time at state-owned agencies, organizations, units and enterprises before January 01, 01 includes: time actually working at state administrative agencies, unit State non-business units, political organizations, socio-political organizations, units of the armed forces receiving salaries from the state budget, working time at other state enterprises.

4. In case an employee who has actually worked for the employer for 12 months or more loses his job, but the working period used to calculate the unemployment allowance is less than 18 months, the job loss allowance of employees is at least equal to 02 months' salary.

Example 2: Mr. Nguyen Van C worked at company D from September 01, 9, to December 2007, 31, due to changes in production technology. The company could not arrange jobs for Mr. C and D. to terminate the employment contract. Mr. C is paid unemployment insurance premiums by the employer from January 12, 2015 to the end of December 01, 01 (2009 years). The average salary according to Clause 31 of this Article before Mr. C lost his job was VND 12/month. Job loss allowance for Mr. C is calculated as follows:

– Working time to calculate unemployment allowance is: 08 years 04 months – 07 years = 01 year 04 months (16 months).

– The amount Company D pays job loss allowance to Mr. C is at least equal to 02 months' salary (4.500.000 VND/month x 2 = 9.000.000 VND).

5. In case after the merger, consolidation, division or separation of an enterprise or cooperative, the employee terminates the labor contract, the employer is responsible for paying severance allowance or loss allowance. employment for the time the employee has worked for himself and the time the employee has worked for the employer before the merger, consolidation, division or separation of the enterprise or cooperative.

Example 3: Mr. Nguyen Thanh H has worked for company P since June 01, 6. In 2002, company P merged with company Q to become PQ company and officially operated from October 2006, 01. ; Mr. H continued to work at PQ until December 10, 2006, when Mr. H had to quit because PQ company changed its organizational structure. Mr. H has been paid unemployment insurance premiums by the employer from January 31, 12 to the end of December 2015, 01 (01 years). The average salary according to Clause 2009 of this Article before Mr. H lost his job at PQ company was VND 31/month. Job loss allowance for Mr. H is calculated as follows:

– The actual working time of Mr. H at company P is 04 years and 04 months; at PQ company is 9 years and 03 months. Total actual working time is: 13 years 07 months;

– Working time to calculate unemployment allowance is: 13 years 07 months – 07 years = 06 years 07 months, rounded to 07 years;

– The amount PQ company pays for job loss allowance for Mr. H is 07 years x 5.400.000 VND/month = 37.800.000 million VND.

Article 9. Responsibilities of the next employer after transferring the right to own or use the enterprise's assets

1. Amend and supplement the labor contract or enter into a new labor contract for employees to continue to be employed, employees to be retrained for continued employment, employees are switch to a part-time job at the enterprise.

2. To pay severance allowance as prescribed in Article 48 or job loss allowance as prescribed in Article 49 of the Labor Code for the time the employee actually works for him/her and severance allowance for the employee. with the time when the employee actually worked at the enterprise before transferring ownership or right to use the property (including the time working in the public sector when last recruited into the enterprise transferring ownership or the right to use the property before January 01, 01) when the employee terminates the labor contract.

Example 4: Mr. Dao Xuan K, worked at the People's Committee of District T (state administrative agency) from September 01, 9 to November 1990, 01. Mr. K changed his job and worked at S company (state-owned enterprise). On September 11, 1993, company S was equitized into S' joint stock company, Mr. K continued to work at S' joint stock company until December 01, 9, then the labor contract was terminated. unlawful. Mr. K was paid unemployment insurance by the employer continuously from January 2007, 01 to December 12, 2015. The average salary according to Clause 01 of this Article before Mr. K resigned from the joint-stock company. S' is 01 VND/month. Mr. K's severance allowance is calculated as follows:

– The actual working time in the state sector before January 01, 01 is 1995 years and 03 months;

– Actual working time at company S (before equitization) is 13 years and 10 months;

– The actual working time at S' joint-stock company is 08 years and 03 months;

- The period of participating in unemployment insurance is 06 years and 11 months;

– Working time to calculate severance allowance is: 03 years 02 months + 13 years 10 months + 08 years 03 months – 06 years 11 months = 18 years 04 months, rounded to 18,5 years;

The amount of severance allowance S' must pay to Mr. K is: 18,5 years x 5.500.000 VND/month x 1/2 = 50.875.000 VND.

Chapter III

LABOR DISCIPLINE, MATERIAL RESPONSIBILITY ONLY

Article 10. Registration of labor regulations and effectiveness of labor regulations

1. The written certification of receipt of the application for registration of labor regulations from the provincial-level state management agency in charge of labor specified in Clause 2, Article 28 of Decree No. 05/2015/ND-CP must contain the main contents. the following weaknesses:

a) Name of the provincial-level state management agency in charge of labor;

b) Full name and title of the person receiving the application for registration of labor regulations;

c) Name and address of the enterprise, agency, organization, cooperative, household or individual registering the labor regulations; if it is a household or an individual that has registered the labor regulations, clearly write the full name and identity card number of the head of the household or individual;

d) Hour, day, month and year of receipt of complete application for registration of labor regulations;

d) Signature of the person receiving the application for registration of labor regulations.

2. The provincial-level state management agency in charge of labor is responsible for making a register of labor regulations using form No. 02 in the Appendix issued with this Circular.

3. The written notice of the provincial state management agency in charge of labor in case the internal labor regulations are contrary to the law specified in Clause 3, Article 28 of Decree No. 05/2015/ND-CP must be has the following main contents:

a) Name of the provincial-level state management agency in charge of labor;

b) Name and address of the enterprise, agency, organization, cooperative, household or individual registering the labor regulations; if it is a household or an individual that registers the labor regulations, clearly state the full name and identity card number of the head of the household or individual;

c) Contents of the labor regulations are contrary to the law proposed to be amended or supplemented (specify the content contrary to the provisions of Points, Clauses, Articles, legal documents and the proposed amendments); , additional);

d) Signature, full name and title of the competent person under the provincial labor State management agency.

4. Employers employing less than 10 employees are not required to register labor rules; In case of promulgation of written labor regulations, the validity of the labor rules shall be decided by the employer in the labor regulations; in case of failure to promulgate written labor regulations, the employer and employee shall agree on the content of labor discipline, material responsibility and write it in the labor contract for implementation.

Article 11. Handling of labor discipline for employees raising children under 12 months old

Employers are not allowed to take disciplinary action against employees who are raising children under 12 months of age as prescribed in Article 29 of Decree No. 05/2015/ND-CP when falling into one of the following cases: this:

1. Raising natural children under 12 months old;

2. Legally adopt children under the law on marriage and family under 12 months old;

3. Raising a gestational surrogacy child under 12 months old for employees who are gestational surrogates according to the provisions of the law on marriage and family.

Article 12. Conduct meeting to handle labor discipline

1. The meeting to handle labor discipline shall be conducted according to the provisions of Clause 2, Article 30 of Decree No. 05/2015/ND-CP when all participants are present as prescribed in Clause 1, Article 30 of Decree No. Decree No. 05/2015/ND-CP.

2. In case the employer has given a written notice of attendance at the meeting for handling labor discipline but one of the participants is not present, the employer shall continue to notify the next time. next.

3. After 03 times of written notice of attendance at the meeting to handle labor discipline (excluding the postponement or cancellation or change of meeting location) but one of the participants is not present, The employer shall conduct a meeting to handle labor discipline, except for the case where the employee is not being disciplined as prescribed in Clause 4, Article 123 of the Labor Code.

4. In case the person entering into a labor contract on the employer's side legally authorizes another person in writing to enter into a labor contract as prescribed in Clause 1, Article 3 of Decree No. 05/2015/ND - CP, when conducting a meeting to handle labor law, the person authorized to enter into a labor contract shall convene and chair the meeting to handle labor discipline.

The person authorized to enter into a labor contract has the right to issue a decision to discipline the employee in the form of a reprimand. For other forms of labor discipline, after the meeting of labor discipline is over, the person authorized to enter into a labor contract is responsible for completing the dossier and requesting the employer to consider, make decisions and organize the implementation according to the issued decisions on handling of labor discipline.

Article 13. Employees leave work for a good reason

An employee leaves his/her job for a legitimate reason specified in Clause 2, Article 31 of Decree No. 05/2015/ND-CP in one of the following cases:

1. Due to natural disasters, fires, employees have tried all remedies but could not be present to work;

2. Self, natural father, natural mother, adoptive father, adoptive mother, father-in-law, mother-in-law, father-in-law, mother-in-law, spouse, natural child, legally adopted child, child the employee is surrogacy being raised in accordance with the law on marriage and sick family with a certification from a medical examination and treatment establishment established and operating in accordance with law.

Chapter IV

TERMS ENFORCEMENT

Article 14. Enforcement

1. This Circular takes effect from August 01, 01.

2. Circular No. 19/2003/TT-BLDTBXH dated September 22, 9 guiding the implementation of a number of articles of the Government's Decree No. 2003/CP of July 41, 06 detailing and guiding a number of Articles of the Labor Code on labor discipline and material responsibility as amended and supplemented in Decree No. 7/1995/ND-CP dated April 33, 2003 of the Government cease to be effective since effective date of this Circular.

3. Salary as the basis for paying wages to employees during work stoppage, annual leave, public holidays, New Year holidays, paid personal leave, salary advance according to Article 26 of Decree No. 05/2015/ ND-CP is the salary according to the labor contract specified in Clause 1, Point a, Clause 2 and Point a, Clause 3, Article 4 of this Circular.

4. Amendment and annulment of a number of articles and clauses in Circular No. 23/2015/TT-BLDTBXH dated June 23, 6 of the Minister of Labor, War Invalids and Social Affairs guiding the implementation of a number of articles about money Salary of Decree No. 2015/05/ND-CP dated January 2015, 12 of the Government detailing and guiding the implementation of a number of contents of the Labor Code as follows:

a) To amend Point c Clause 1 Article 4 as follows:

“c) The daily salary is paid for a determined working day on the basis of the monthly salary divided by the number of normal working days in the month as prescribed by law that the enterprise chooses, but not exceeding 26 days. ".

b) To amend Clause 1, Article 5 as follows:

"first. Employees receiving monthly salary are paid once a month or semi-monthly and paid at the time of salary payment.

c) To amend Point a, Clause 1, Article 6 as follows:

“a) The actual hourly wage paid for a normal working day is determined on the basis of the actual salary paid for the work performed in the month in which the employee works overtime divided by the actual number of hours worked in the month (not over 208 hours for jobs with normal working conditions and working environment, excluding overtime hours). In case of daily or weekly salary payment, the actual hourly wage paid is determined on the basis of the actual salary paid for that working day or week (except overtime wages, overtime wages paid when working in the morning). night) divided by the actual number of hours worked in a day or a week (not exceeding 8 hours/day and excluding overtime hours).

The actual hourly wages mentioned above do not include overtime wages, overtime wages paid for working at night, wages on public holidays, New Year's Day, and paid holidays according to the provisions of the Labor Code; bonuses as prescribed in Article 103 of the Labor Code, initiative bonuses; Mid-shift meal; allowances for petrol, phone, travel, housing, child care, child rearing; support when employees have relatives died, employees have relatives getting married, employees' birthdays, allowances for employees in difficult circumstances when suffering from occupational accidents, occupational diseases and other supports and allowances not related to the performance of jobs or titles in the labor contract”.

d) Clause 2 Article 9 is annulled.

Article 15. Transitional provisions

Labor contracts, collective labor agreements, internal labor regulations, regulations and other lawful agreements entered into or promulgated that are more beneficial to employees than the provisions of this Circular. continue implementation; If the regulations and agreements are not in accordance with the provisions of this Circular, the relevant parties shall review, amend, supplement and carry out the promulgated procedures strictly according to the provisions of this Circular.

In the course of implementation, if there are any problems, agencies, units and enterprises are requested to report to the Ministry of Labor, War Invalids and Social Affairs for timely supplementary guidance./.

APPENDIX

(Issued together with Circular No. 47/2015/TT-BLDTBXH dated November 16, 11 of the Ministry of Labor, War Invalids and Social Affairs)

Sample number 1

SOCIAL REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
------

AUTHORIZATION LETTER

About entering into labor contracts

Pursuant to the 2005 Civil Code;

Base …. (first)……………………………………………………………….. ;

…………, date…..month…..year 20….; we include:

1. AUTHORIZED PARTY:

Name:………………………………………………………………………………………………

Date of birth:……………………………………………………………………………………….

Address of residence: ……………………………………………………………………………………………….

Position:…………………………………………………………………………………………………………

ID card number:……………. …………., date and place of issue………..……

Passport number (if any):……………………………………………………………………………………………….

Nationality:………………………………………………………………………………………………………..

2. AUTHORIZED PARTY (2):

Name:………………………………………………………………………………………………

Date of birth:……………………………………………………………………………………….

Address of residence: ………………………………………………………………………………………………

Position (if any): ……………………………………………………………………………………………….

ID card number:……………. …………., date and place of issue………..……

Passport number (if any):……………………………………………………………………………………………….

Nationality:………………………………………………………………………………………………………..

3. AUTHORIZED CONTENTS:

By this power of attorney, the Authorizing Party is entitled to perform the following tasks on behalf of the Authorizing Party:

Article 1. The authorized party is entitled to sign a labor contract with the employee on behalf of the authorizing party….(3) according to the provisions of the labor law.

Article 2. Authorization term:

The authorization period is from date ... month ... ... to date ... month ... year ...

Article 3. Other agreements (if any).

4. COMMITMENT OF THE PARTIES:

– The two parties commit to take full responsibility before the law for all the above authorization information;

– Any dispute arising between the authorizing party and the authorized party will be resolved by the two parties themselves.

The above power of attorney is made in….copy, each party keeps…copy./.

Note:

(1) For agencies, organizations and enterprises, the supplement shall be based on relevant Laws, Operation Charter and relevant Regulations (if any);

(2) In case the legal representative of the enterprise authorizes in writing the heads of branches, production and business establishments to directly enter into labor contracts with employees, write the following: authorized recipient is the head (director...) of branches, production and business establishments according to the list of authorized recipients enclosed with this authorization.

(3) Specify the scope of authorization to enter into a labor contract, for example: The director of bank X's branch in Hanoi, on behalf of the general director of bank X, enters into labor contracts for employees to work at bank X's branch in Hanoi.

(4) In case the legal representative of the enterprise authorizes in writing the head of the branch, production or business establishment to directly enter into a labor contract with the employee, the receiver shall authorized to sign the list of authorized recipients attached to this power of attorney.

Sample number 02

LABOR RULES MANAGEMENT BOOK

YEARS 20……

Recording Instructions:

– Column (2): write according to the Certificate of Business Registration.

– Column (3) is classified according to classification: state-owned enterprises, non-state enterprises, foreign-invested enterprises.

– Column (6): write down the industry using the most employees of the enterprise (level 2) in the System of Economic Sectors issued together with Decision No. 10/2007/QD-TTg dated January 23, 01 of the Prime Minister. Prime Minister.

– Columns (7) and (11): record according to the document management book of the state management agency.

– Column (8): after 15 days from the date written on column number (7), unless the labor regulations contain contents contrary to the law.

– Columns (9), (10): mark an X in the corresponding box according to the inspection and review results.

– Column (12): after 15 days from the date recorded on column number (11).