Thông tư 19/2003/TT-BLDTBXH

CIRCULAR

OF THE MINISTRY OF LABOUR, WAR INVALIDS AND SOCIAL AFFAIRS NO.19/2003/TT-BLDTBXH DATED SEPTEMBER 22, 2003 GUIDING THE IMPLEMENTATION A NUMBER OF ARTICLES OF THE DECREE NO.41/CP DATED JULY 06, 1995 OF THE GOVERNMENT DETAILING AND GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LABOR CODE REGARDING LABOR DISCIPLINES AND MATERIAL RESPONSIBILITIES AMENDED, SUPPLEMENTED IN THE DECREE NO.33/2003/ND-CP DATED APRIL 02, 2003 OF THE GOVERNMENT

To implement the Decree No.41/CP dated July 06, 1995 of the Government detailing and guiding the implementation of a number of Articles of the Labor Code regarding labour disciplines and material responsibilities amended, supplemented in the Decree No.33/2003/ND-CP dated April 02, 2003 of the Government (hereinafter collectively called as the Decree No.41/CP), after collecting opinions of Vietnam General Confederation of Labour and relative Ministries, Branches, the Ministry of Labour, War Invalids and Social Affairs guides the implementation as follows:

I. SUBJECTS AND SCOPE OF APPLICATION

Subjects and scope of application under provisions in Article 1 of the Decree No.41/CP are employers and employees who work in accordance with regime of labour contracts in the enterprises, agencies, organizations as follows:

1. Enterprises established and operating under the State Enterprise Law, Enterprise Law, Law on Foreign Investment in Vietnam;

2. Enterprises of political organizations, political-social organizations;

3. Administrative agencies using employees who are not government officials and employees of state;

4. The economic organization to be of people's armed forces, people’s public security using employees who are not the officers, non-commissioned officers and soldiers;

5. The cooperatives established and operating under the Cooperative Law using employees;

6. The non-public centers of education, health, culture, sports established under the Decree No.73/1999/ND-CP dated August 19, 1999 of the Government on the policy to encourage socialization for activities in the field of education, health, culture, sports;

7. International, domestic agencies, organizations and individuals based in Vietnam’s territory using Vietnamese laborers unless international agreements which the socialist Republic of Vietnam has signed or acceded to otherwise provided for;

8. Vietnamese enterprises, agencies, organizations and individuals using foreign laborers unless international agreements which the socialist Republic of Vietnam has signed or acceded to otherwise provided for.

Enterprises, agencies, organizations and individuals mentioned above hereinafter referred to as units.

II. ORDER TO MAKE AND REGISTRATION OF INTERNAL RULE OF LABOUR

The units make, register internal rule of labour as prescribed in Article 4, Article 5 of the Decree No.41/CP according to the following orders:

1. Based on the characteristics of production – business, the units make internal rule of labour according to regulations of labour legislation and other relevant laws and state fully the principal contents prescribed in Article 4 of the Decree No.41/CP;

2. Getting the consultation of the grassroots trade union executive committee or the provisional trade union executive committee in the unit before signing the decision to issue;

3. Heads of the units sign the decisions to issue the internal rule of labour and publicize in the units;

4. For the units employing 10 workers or more, the internal rules of labour are registered at the Departments of Labour - War Invalids and Social Affairs of provinces and cities under Central Government where the units locate its head offices; or at head offices of the management units of industrial zones, export processing zones, hi-tech parks (hereinafter referred to as industrial zones) for the units to be of the industrial zones as authorized by the Department of Labour - Invalids and Social Affairs. When registering labor internal rules, the units can be directly file or mail by certified mail.

For administrative agencies specified in point 3 item I of this Circular, labor internal rules are prescribed in the internal rules or regulations of the agencies and not required to register.

Dossier of registering labor internal rules includes:

- Written request for registering labor internal rules (Form 1 attached herewith).

- Decision to issue labor internal rules (Form 1 attached herewith).

- Table of labor internal rules.

- Regulation documents of the units related to labor disciplines and material responsibilities (if any).

5. Within 05 working days since the date of signing the decision, the unit must apply dossier of registering labor internal rule. After 02 days (working days) of dossier receipt, the Department of Labour – War Invalids and Social Affairs or industrial zone management unit shall notify the unit of day, month and year of dossier receipt (Form 3 attached herewith). Where the unit directly apply dossier, dossier receipt shall be notified right after it is applied.

Time limit for notifying the results of registering labor internal rule is made ​​under provisions in clause 3 Article 5 of Decree No.41/CP, the contents of the notice (Form 4 attached herewith). Where labor internal rules are amended and supplemented, the employers may issue new labor internal rules to replace the old one or issue decision to amend and supplement (Form 5 attached herewith).

III. FORM OF HANDLING VIOLATIONS OF LABOUR DISCIPLINES

1. Employees violate one of the cases provided in point a clause 3 Article 6 of the Decree No.41/CP is stipulated specifically as follows:

To handle labour disciplines suitable to the seriousness of the violation of employees when breaching one of the cases stipulated in section a, clause 1, Article 85 of the Labor Code, the employers base on its characteristics of manufacture, business to specify the value level of assets to be theft, corrupted, disclosure of business technology secrets or other acts causing serious harm on property and interests of units to decide the dismissal of the employees.

2. Employees arbitrarily leaving jobs for the 05 cumulative days in a month or 20 cumulative days in a year as prescribed in point b, clause 3, Article 6 of Decree No.41/CP are calculated upon working days of the units, including extra day agreed in writing.

3. The cases considered as having legitimate reasons as stipulated in point b, clause 3, Article 6 of Decree No.41/CP are specified as follows:

a) Due to natural disasters, fires with certification of the commune, ward- level People's Committees where they happened;

b) Due to to be sick by their own with written request for sick leaving of the competent health centers under the provisions of law or with certification of the medical establishment legally established for medical examination, treatment;

c) Due to their relative to be sick in case of emergency and with certification of the medical establishment legally established where received to examine and make treatment. Relatives to be sick include: nature parents; mother, father in law; wife, husband; children;

d) Other cases provided by employers in the labour internal rules.

IV. HANDLING OF LABOUR DISCIPLINE VIOLATIONS

1. The handling of labour discipline violations under provisions in clause 2 Article 8 of the Decree No.41/CP is specified as follows:

Where the labor contract expires but the employee continues to work or the parties mutually agreed upon signing a new labor contract, the employer shall conduct the handling of labour discipline complying with limitation in accordance with law regulations.

2. Order, procedures of handling of labour disciplines according to provisions in Article 11 of the Decree No.41/CP is specified as follows:

a) Dossier of handling of of labour discipline includes:

- Written statement of employees handed in to employers for a maximum period of 05 days (working day) since the date of employer’s requirement (Form 6 attached herewith).

- The relative documents such as:

+ Minute of facts.

+ Written denunciation, vouchers, invoices and other documents (if any).

- Dossier is supplemented in the following cases:

+ In case of temporary detention, seizure: documents of the competent to detent, seize agencies; written conclusions of competent agencies when termination of temporary detention, seizure’s term.

+ In case concerned people are absent: written notice of 3 times (Form 7 attached herewith).

+ In case of leaving job with legitimate reasons: papers considered as with legitimate reasons;

b) The handling of labour disciplines must be made in minutes (Form 8 attached herewith);

c) Organization of meeting of handling of labour disciplines:

- Attendants include:

+ Employer or person who is authorized by employer being presiding person.

+ Representative of the grassroots trade union executive committee or provisional trade union executive committee in the unit.

+ Concern person (except for being executed sentence of imprisonment).

+ Parents or legal guardians if concern person is under 15 years old.

+ Eyewitness (if any).

+ Defense counsel for concerned person (if any).

+ Other people decided by employer (if any).

- Presiding person declares reason and introduces attendants.

- Contents of meeting include:

+ Concerned person presents the statement of facts. In case employee has no statement, presiding person presents the statement of facts or the facts that have been detected (stating clearly the reason of having no statement).

+ Presiding person presents dossier of handling discipline.

+ Eyewitness presents (if any).

+ Presiding person proves fault of employee and determines the violation corresponding to form of labour discipline under law regulations specified in the labour internal rule.

+ Representative of the grassroots trade union executive committee or provisional trade union executive committee in the unit, concerned person, defense counsel (if any) comment on contents that presiding person proves fault of employee and determines that the violation corresponding to form of labour discipline is true or false under law regulations, labour internal rule.

+ Presiding person’s conclusion on violation of labour discipline corresponding to form of labour discipline.

+ Passing and signing in the minute.

+ Employer signs the decision of labour discipline (Form 9 attached herewith), if employee is temporarily suspended his/her job (Form 10 attached herewith);

d) Dossier is stored in the unit.

3. The reduction and deletion of discipline as prescribed in Article 12 of Decree No. 41/CP is specified as follows:

a) The employee was disciplined under the form of prolonging salary increase term for a period of not exceeding six months, such prolonged time is not included in salary increase term as prescribed.

For example: Mr. Nguyen Van A, up to May 20, 2003 has full time for salary increase as prescribed, but Mr. Nguyen Van A has the violation of labor discipline corresponding to the form of prolonging salary increase term for a period of not exceeding six months, therefore, Mr. Nguyen Van A shall be extended his salary increase term for a period of not exceeding six months from May 20, 2003;

b) The employee who was disciplined under form of transfer for another job with lower salary within a maximum period of six months, when his/her term of transfer for another job expires; the employer shall allocate the employee to return with his/her previous job under the labour contract had been signed. Where there is no longer previous work or unable to allocate the employee to return with his/her previous job, the two parties shall negotiate to settle.

V. MATERIAL RESPONSIBILITIES

1. The consideration of damage compensation decisions must be based on faults, the actual degree of damage. When determining compensation levels, it needs to consider the actual situation of the family, and person and property of concerned person;

2. The cases considered to be the cause of force majeure include: Natural calamities; fire; other cases decided by the employer and specified in the labor internal rule of the unit.

VI. PERIODICAL REPORT

1. Management units of industrial zone synthesize the report of registration results of labor internal rules six months before July 15 every year and a year report before February 15 of the next year (Form No.11 attached herewith) and sent to the Department of Labour – War Invalids and Social Affairs;

2. The Departments of Labour – War Invalids and Social Affairs synthesize the annual reports before March 15 of the next year and sent to the Ministry of Labour – War Invalids and Social Affairs (Form No.12 attached herewith).

VII. IMPLEMENTATION PROVISIONS

1. This Circular takes effect 15 days after its publication in the Official Gazettes;

2. Annulling the Official Dispatch No.3155/LDTBXH-CV dated 19/8/1995 of the Ministry of Labour, War Invalids and Social Affairs on guiding the implementation of labour disciplines and material responsibilities.

In the course of implementation if any problem arises, promptly report them to the Ministry of Labour – War Invalids and Social Affairs for study and settlement.