Thông tư 14/1999/TT-BLDTBXH

CIRCULAR

GUIDING THE IMPLEMENTATION OF THE REGIME ON WORKING TIME AND REST TIME FOR LABORERS DOING SEASONAL JOBS AND PROCESSING EXPORT GOODS ON ORDERS

In furtherance of the Government’s Decree No. 10/1999/ND-CP of March 1st, 1999 on the supplements to 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", the Ministry of Labor, War Invalids and Social Affairs hereby stipulates and guides the implementation of the regime on working time and rest time of laborers who do jobs of seasonal nature and process export goods on order as follows:

I. OBJECTS AND SCOPE OF APPLICATION

1. The scope of application shall cover the following enterprises as well as production and business establishments:

- State enterprises;

- Foreign-invested enterprises, enterprises in export-processing zones, industrial parks and hi-tech parks;

- Enterprises of other economic sectors as well as labor-employing organizations and individuals.

2. Objects of application shall include people having labor contracts with definite terms of from 1 to 3 years or with indefinite terms, and doing the following jobs:

- Jobs of seasonal nature, such as harvesting or processing agricultural-forestry-fishery products, which require the immediate harvesting or post-harvest processing;

- Jobs of export goods processing on goods orders, which usually depend on the time of goods ordering.

II. WORKING TIME AND REST TIME

1. The working time of the above-said objects is stipulated as follows:

1.1. To determine the standard number of working hours per day as follows:

a/ Calculation of the fund of standard working hours in a year:

T_Q= [ 365 - (T_t + T_P + T_L) ] x t_n (hours)

+ T_Q: Fund of standard working hours of the laborer in a year;

+ T_t: Total of rest days per week, to be determined according to Article 72 of the Labor Code;

+ T_P: Number of rest days per year, to be determined according to Articles 74 and 75 of the Labor Code; and Point 3, Section II of Circular No.07/LDTBXH-TT of April 11, 1995;

+ T_L: Number of holidays: 8 days;

+ t_n: Number of working hours per day: 8 hours; or 6 hours for laborers performing specially heavy, hazardous or dangerous occupations and jobs.

Example 1: Company A has a fund of standard working hours in 1999 as follows:

TQ= [ 365 - (52 + 15 + 8) ] x 8 = 2,320 hours

b/ Determination of the standard number of working hours per day:

On the basis of the fund of standard working hours per year (TQ) already calculated above, the employer shall determine the standard number of working hours of laborers per day in the following cases:

b.1. A normal working day: 8 hours; or 6 hours for laborers performing specially hard, hazardous or dangerous occupations and jobs;

b.2. A working day with more than 8 hours but less than 12 hours; or with more than 6 hours but less than 9 hours for laborers performing specially hard, hazardous or dangerous occupations and jobs. The number of working hours exceeding 8 hours/day (or 6 hours/day for laborers performing specially hard, hazardous or dangerous occupations and jobs) shall not be considered the overtime;

b.3. A working day with less than 8 hours but not less than 4 hours. In this case, the employer shall not have to pay the laborers for work stoppage arising from the difference of working hours of such a day, compared with a normal day. The arrangement of laborers to work for less than 4 hours per day is not allowed;

b.4. Permitting a full rest day without having to pay wages for work stoppage

- The total number of working hours mentioned in this Point b (including the hours calculated as paid working hours according to the current provisions of the Labor Code) shall not exceed the fund of standard working hours of the year. For each specific laborer, the employer shall have to arrange his/her paid personal leaves, breast-feeding and other rest time regime which he/she is entitled to under the current provisions of the Labor Code.

If during the already determined standard working hours per day the employer fails to arrange work for the laborers, he/she shall still have to pay the latter for work stoppage.

Example 2: Determination of the standard number of working hours per day of Company A:

1.2. The overtime

a/ The number of working hours of laborers that exceeds the standard number of working hours per day as determined in Point b, Item 1.1 above shall be considered the overtime.

b/ The total of standard working hours and overtime per day must not exceed 12 hours or 9 hours for laborers performing specially heavy, hazardous or dangerous occupations and jobs.

Example 3: Taking Example 2 above, if due to urgent demand, in April Company A has to organize overtime work for its laborers, such may be arranged as follows:

- From Monday to Friday of the second week, the overtime work is not allowed;

- From Monday to Friday of other weeks, the overtime may be 1 hour at most;

- For Saturday of every week, the overtime may be 4 hours at most.

c/ The total of overtime per year must not exceed 200 hours/person.

2. The rest time:

2.1. The standard number of working hours per day that exceeds 8 hours shall be counted for compensational rest time or reduction of working hours during the off-season days or when export goods processing orders are not available;

2.2. During the harvest months or the months when the export goods processing is speeded up to fulfil the goods orders, if the weekly leave regime cannot be arranged, the employer shall have to ensure that the laborers may take at least 4 rest days a month;

2.3. The regime of rest during, in the middle and in between work-shifts for laborers shall comply with the current provisions of the Labor Code; where the laborers work 10 hours per day, the employer shall have to arrange at least 30 minutes as additional rest for them, which shall be counted into their working hours;

2.4. The employer shall make arrangement so that the laborers may take leave or compensational rest time on or for their holidays and New Year days; and organize the annual leave, leave for personal affairs and other holidays for laborers according to the current provisions of the Labor Code.

III. ORGANIZATION OF IMPLEMENTATION

1. The employer shall have:

- On the basis of this Circular, to reach agreement with the establishment�s trade union executive committee on the yearly plan on working time and rest time and include them in the collective labor agreements and labor contracts. The working timetable of each month must be publicized and posted up at the concerned workshops and production teams/groups; where the enterprise has not yet set up a trade union organization, the yearly plan on working time and rest time must be approved by the conference of officials and public employees of the concerned enterprise or production and business establishment;

- To reach agreement with the laborers on the mode of wage payment on the seasonal or monthly basis.

- Annually, enterprises having work demands as stipulated in this Circular shall have to register with the provincial/municipal Labor, War Invalids and Social Affairs Services according to the set form. The provincial/municipal Labor, War Invalids and Social Affairs Services may authorize the Management Boards of industrial parks of the provinces and centrally-run cities to receive the registration forms on working time and rest time of enterprises in industrial parks, export-processing zones and hi-tech parks, make a sum up thereof and send it to the provincial/municipal Labor, War Invalids and Social Affairs Services.

2. The provincial/municipal Labor, War Invalids and Social Affairs Services shall have to provide guidance on the implementation of this Circular to each unit and enterprise in their respective localities; make registration of such enterprises and organize the inspection and examination of the implementation of their registered plans.

3. This Circular takes effect 15 days after its signing. Any problem arising in the course of implementation should be reported to the Ministry of Labor, War Invalids and Social Affairs for settlement.