Thông tư 33/2011/TT-BLDTBXH

CIRCULAR

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

Pursuant to Article 80 of the June 23, 1994 Labor Code; the April 2, 2002 Law Amending and Supplementing a Number of Articles of the Labor Code; the June 29, 2006 Law Amending and Supplementing a Number of Articles of the Labor Code; and the April 2, 2007 Law Amending and Supplementing a Number of Articles of the Labor Code;

Pursuant to the Government’s Decree No. 109/2002/ND-CP of December 27, 2002, amending and supplementing a number of articles of the Government’s Decree No. 195/CP of December 31, 1994, detailing and guiding a number of articles of the Labor Code regarding working time and rest time;

Pursuant to the Government’s Decree No. 186/2007/ND-CP of December 25, 2007, defining the functions, tasks, powers and organizational structure of the Ministry of Labor, War Invalids and Social Affairs;

The Ministry of Labor, War Invalids and Social Affairs guides the implementation of regulations on working time and rest time for laborers doing seasonal production jobs and processing export goods under orders as follows:

Article 1. Scope of regulation and subjects of application

1. Scope of regulation:

This Circular guides the formulation and implementation of regulations on annual working time and rest time for laborers doing seasonal jobs in agricultural-forestry-fishery production requiring quick harvest or quick processing after harvest, and processing export goods under orders to satisfy time requirements of goods owners.

2. Subjects of application:

This Circular applies to laborers working under labor contracts of between 12 and 36 months or labor contracts of an indefinite term in enterprises and production and business establishments (below collectively referred to as enterprises) below:

a/ Companies and enterprises of all economic sectors;

b/ Cooperatives and cooperative unions operating under the Law on Cooperatives and employing laborers under labor contracts.

Article 2. Working time

1. The standard working time fund in a year:

T_Q = [T_N – (T_t + T_p +T_L] x t_n (hours)

Of which:

+ T_Q: A laborer’s standard working time fund in a year;

+ T_N: Number of days in a year, which is 365 in a calendar year, or 366 in a leap year;

+ T_t: Total number of weekends in a year, determined under Article 72 of the Labor Code;

+ T_p: Number of annual leave days, which is 12, 14 or 16 and may be increased depending on working seniority under Articles 74 and 75 of the Labor Code and Clause 2, Section II of Circular No. 07/TT-BLDTBXH of April 11, 1995;

+ T_L: Number of official holidays in a year, which is 9;

+ t_n: Number of daily normal working hours, which is 8; particularly for laborers doing extremely hard, hazardous and dangerous jobs on the list issued by the Ministry of Labor, War Invalids and Social Affairs, this number is 6.

Example 1: Worker A has worked under normal conditions for Company X for 15 years. Worker A’s standard working time fund in 2011 shall be calculated as follows:

- The number of Worker A’s annual leave days is: 12 + 15/5 = 15

Of which:

+ 12 days are determined under Article 74 of the Labor Code;

+ 15/5 is the increased number of leave days based on working seniority under Article 75 of the Labor Code.

- To make the following calculation table:

So Worker A’s standard working time fund in 2011 is 2,312 hours.

Example 2: Worker B has done extremely hard jobs for Company Y for 15 years. Worker B’s standard working time fund in 2011 shall be calculated as follows:

- The number of Worker B’s annual leave days: 16 + 15/5 = 19

Of which:

+ 16 days are determined under Article 74 of the Labor Code;

+ 15/5 is the increased number of leave days based on working seniority under Article 75 of the Labor Code.

- To make the following calculation table:

So Worker B’s standard working time fund in 2011 is 1,710 hours.

2. Number of daily standard working hours:

Annually, based on the standard working time fund in a year (T_Q) calculated above, enterprises shall work out plans to determine the number of daily standard working hours of each laborer in the following cases:

a/ The number of daily normal working hours is 8; or 6, for laborers doing extremely hard, hazardous and dangerous jobs;

b/ The number of daily working hours may be more than 8 but may not exceed 12; or may be more than 6 but may not exceed 9, for laborers doing extremely hard, hazardous and dangerous jobs;

c/ The number of daily working hours may be more than 4 but must be fewer than 8; or may be more than 3 but must be fewer than 6, for laborers doing extremely hard, hazardous and dangerous jobs;

d/ A whole day-off is allowed.

Example 3: According to example 1, Worker A’s standard working time fund in 2011 is 2,312 hours. Company X shall distribute Worker A’s number of daily standard working hours in 2011 as follows:

3. Principles of using the standard working time fund:

a/ In a year, the total number of standard working hours planned and determined under Clause 2 of this Article (including daily rest time regarded as working time) must not exceed the standard working time fund in the year (TQ) already determined in Clause 1 of this Article;

b/ In case the number of daily standard working hours which is fewer than 8; or fewer than 6, for laborers doing extremely hard, hazardous and dangerous jobs, has been planned and determined under Points c and d, Clause 2 of this Article, job stoppage wage needs not to be paid.

Example 4: In February, Company X assigned Worker A to work 7 hours a day for 9 working days then allowed Worker A to have 11 whole days off. The company arranged work according to the plan mentioned in Example 3 above, so:

- The number of actual working hours is 1 (= 8-7) hour fewer than the number of normal working hours; job stoppage wage needs not to be paid for this 1 hour;

- Job stoppage wage also needs not to be paid for the 11 days off.

c/ Job stoppage wage must be paid for the number of daily standard working hours already planned during which a company actually did not arrange work for its laborers.

Example 5: In March, as required by its production and business situation, Company X assigned Worker A to work 5 hours a day for 13 working days, and then allowed Worker A to have 14 whole days off. So, compared to the company’s plan set out for Worker A in March in example 3 above:

- The number of actual working hours is 2 (= 7 - 5) hours fewer than the number of daily standard working hours; job stoppage wage must be paid for this 2 hours;

- The number of job stoppage days is 14 against the plan, so job stoppage wage must be paid for these 14 days.

d/ In case the number of daily standard working hours which is more than 8; or more than 6, for laborers doing extremely hard, hazardous and dangerous jobs, has been determined under the plan mentioned at Point b, Clause 2 of this Article, such difference in hours may not be counted as extra working time.

Example 6: In April, Company X assigned Worker A to work 9 hours a day from Monday to Saturday according to the plan mentioned in Example 3 above. So, the number of actual working hours is 1 (= 9 - 8) hour more than the number of normal working hours. This 1 hour may not be counted as extra working hour.

e/ The number of actual daily working hours in excess of the number of standard working hours already planned under Clause 2 of this Article may be counted as extra working hours to be added to the total number of extra working hours in a year and, at the same time, overtime pay and other relevant benefits must be provided under current regulations.

Example 7: In March, Company X assigned Worker A to work 8 hours a day. So, compared to the company’s plan set for Worker A in March in Example 3 above, the number of actual working hours is 1 (= 8 - 7) hour more than the number of standard working hours. This 1 hour may be included in the total number of extra working hours in a year and, at the same time, overtime pay and other relevant benefits must be provided under current regulations.

f/ The total number of standard working hours and extra working hours in a day must not exceed 12; or 9, for laborers doing extremely hard, hazardous and dangerous jobs.

g/ The total number of standard working hours and extra working hours in a week must not exceed 64; or 48, for laborers doing extremely hard, hazardous and dangerous jobs.

Example 8: To meet urgent needs, in May and June, Company X needed to arrange overtime work. The company may arrange overtime work as follows:

- In May, the company may only arrange overtime work under the plan mentioned in Example 3 but may not arrange overtime work because the total number of weekly working hours was: (11 hours/day x 4 days) + (10 hours/day x 2 days) = 64 hours.

- In June, the company may arrange an extra working hour a day from Monday to Friday.

h/ The total number of extra working hours in a year for a laborer complies with current provisions of the revised Labor Code.

Article 3. Rest time

1. Laborers are entitled to at least one day off (24 consecutive hours) a week. In seasonal-work months or when export goods must be urgently processed under orders, if weekly day offs cannot be arranged, the employer shall arrange at least 4 days off every month for laborers.

2. During-shift, mid-shift and between-shift breaks for laborers comply with the provisions of the revised Labor Code. For laborers working 10 or more hours a day, the employer shall allow them to have at least extra 30 minutes off regarded as working hour besides rest time during normal working shifts.

3. Enterprises shall allow laborers to take all official holidays, annual leave days and other paid days off or other days off in compensation as prescribed in the revised Labor Code.

Article 4. Responsibilities of enterprises

1. Annually, based on their production and business plans, to take the initiative in formulating and adjusting their plans on working time and rest time, made according to the form provided in the Appendix to this Circular (not printed herein), and consult grassroots or provisional trade union executive boards of their enterprises.

If ascertaining that the number of daily normal working hours is only 8, or 6, for laborers doing extremely hard, hazardous and dangerous jobs, enterprises are not required to formulate plans under the above regulations.

2. To notify laborers within their enterprises of plans on working time and rest time and upload these plans on their enterprises’ websites at least 30 days before implementation. To reach agreement with laborers on overtime work under current regulations.

3. To reach agreement with laborers on either seasonal payment or monthly payment of wages in a year.

Article 5. Responsibilities of provincial-level Labor, War Invalids and Social Affairs Departments

1. To coordinate with related agencies in disseminating this Circular to enterprises in localities.

2. To regularly urge, supervise, examine and inspect the implementation of regulations on working time and rest time at enterprises; to handle violations, especially recidivism, according to law.

3. To annually summarize and report on the implementation of this Circular by enterprises in localities to the Ministry of Labor, War Invalids and Social Affairs.

Article 6. Effect

1. This Circular takes effect on January 10, 2012.

2. This Circular replaces Circular No. 16/2003/TT-BLDTBXH of June 3, 2003, of the Ministry of Labor, War Invalids and Social Affairs, guiding the implementation of regulations on working time and rest time for laborers doing seasonal jobs and processing export goods under orders.

Any problems arising in the course of implementation should be reported to the Ministry of Labor, War Invalids and Social Affairs for study and settlement.-