Thông tư 10/2003/TT-BLDTBXH

CIRCULAR

GUIDING THE IMPLEMENTATION OF COMPENSATION AND ALLOWANCE REGIMES FOR LABORERS GETTING LABOR ACCIDENTS OR OCCUPATIONAL DISEASES

In furtherance of the Government's Decree No. 110/2002/ND-CP of December 27, 2002 amending and supplementing the Government's Decree No. 06/CP of January 20, 1995 detailing a number of articles of the Labor Code regarding labor safety and hygiene; after obtaining the opinions of the Ministry of Health, the Ministry of Finance, Vietnam Labor Confederation and concerned agencies, the Ministry of Labor, War Invalids and Social Affairs hereby guides the implementation as follows:

I. SUBJECTS AND SCOPE OF APPLICATION

The subjects of application of the regimes of compensation and allowance for labor accidents and occupational diseases prescribed in Clause 4, Article 1 of Decree No. 110/2002/ND-CP of December 27, 2002 include:

1. Laborers working under labor contracts in the following enterprises, agencies and organizations:

a/ Enterprises established and operating under the State Enterprise Law, including production and business enterprises; public-utility enterprises and enterprises of the armed forces;

b/ Enterprises established and operating under the Enterprise Law, including limited liability companies, joint-stock companies, partnerships and private enterprises;

c/ Enterprises established and operating under the Law on Foreign Investment in Vietnam, including joint-venture enterprises and enterprises with 100% foreign-invested capital;

< p="">< p="">f/ Administrative, non-business agencies, political organizations, socio-political organizations, professional socio-political organizations, other social organizations, armed forces, including organizations and units permitted to conduct production, business and/or service activities, which belong to administrative, non-business agencies, Party and mass organizations as well as self-financing mass associations;

g/ Semi-public, people-founded and private establishments in the cultural, medical, educational, training, scientific, sport and physical training and other non-business sectors;

< p="">, except otherwise provided for by international agreements which the Socialist Republic of Vietnam has signed or acceded to;

< p="">2. Officials, public employees and servants under the Ordinance on Officials and Public Employees.

3. Laborers and cooperative members who work and enjoy remuneration under labor contracts in cooperatives set up and operating under the Cooperative Law.

4. Laborers specified at Points 1, 2 and 3 of this Section also include job trainees and apprentices for working at enterprises, agencies or organizations shall also enjoy the regimes of compensation and allowance for labor accidents and occupational diseases.

II. COMPENSATION AND ALLOWANCE REGIMES

1. The compensation regime:

a/ For laborers who get labor accidents or occupational diseases prescribed below and, therefore, suffer from a working capacity decline of 5% or more or die, they shall be compensated as follows:

- If labor accidents occur because of dangerous and/or hazardous factors in labor, which cause injury to any body part or function of laborers or cause their death in the laboring process associated with the performance of the jobs or labor tasks (including the time for settling essential needs during the working time as prescribed in the Labor Code, such as breaks, time for having mid-shift meals and additional food, menstrual hygiene, washing, baby breast feeding, toilet, work preparation and completion time).

- Occupational diseases are diseases contracted because of hazardous working condition factors of the laborers' occupations, which are on the list of occupational diseases promulgated jointly by the Ministry of Health and Ministry of Labor, War Invalids and Social Affairs (Appendix 1).

< p="">- For labor accidents:

Laborers get labor accidents under the provisions at Item a of Point 1 above, and such labor accidents occur at the employers' fault according to the conclusions made in the labor accident investigation records.

Compensation shall be paid in lump sum for each accident. It is forbidden to pay aggregate compensation for many accidents that have occurred.

- For occupational diseases:

Laborers who suffer from occupational diseases under the provisions at Item a, Point 1 above shall be compensated according to the conclusions of the conclusion records of the competent forensic medicine agencies or Medical Expertise Councils in the following cases:

+ They die from occupational diseases while still working or before changing to other jobs, before quitting or loosing their jobs or before retirement.

+ Through regular checks of occupational diseases (according to the Health Ministry's regulations) which determine the degree of working capacity decline.

The compensation for occupational diseases shall be made in lump sum for each time according to the following provisions:

The first-time compensation shall be based on the percentage (%) of working capacity decline at the first-time health check, and the second-time and subsequent compensations shall be based on the percentage (%) of increasing working capacity decline so as to compensate for the increased capacity labor decline percentage (%) compared to the preceding decline.

< p="">The levels of compensation for labor accidents or occupational diseases under the provisions at Item b above are calculated as follows:

- Being equal to at least 30 months' salary and salary -based allowance (if any) for laborers who suffer from working capacity decline of 81% or higher or die in labor accidents or from occupational diseases.

- Being equal to at least one and a half months' salary and salary -based allowance (if any) for those who suffer from working capacity decline of between 5% and 10%; if they later suffer from working capacity decline of between over 10% and under 81%, they shall enjoy an additional 0.4 month's salary and salary-based allowance (if any) per increased 1%.

Method of calculating compensation levels:

- The compensation levels for laborers who suffer from working capacity decline of between over 10% and < p="">

Tbt = 1.5 + {(a-10) x 0.4} of which:

Tbt is the compensation level for laborers suffering from working capacity decline of over 10% or higher (calculation unit: one month's salary and salary -based allowance, if any);

1.5 is the compensation level for working capacity decline of between 5% and 10%;

< p="">0.4 is the compensation co-efficient per increased 1% of working capacity decline.

Example:

Mr. A suffers from an occupational disease. His first health check shows that his working capacity decline is 15%. His compensation level is calculated as follows:

The first-time compensation level for Mr. A is:

Tbt = 1.5 + {(15-10) x 0.4} = 3.5 (months' salary and salary -based allowance, if any).

Mr. A's second regular health check shows that his working capacity decline is 35% (his working capacity decline increases over the first-time check by 20%).

The second compensation level for Mr. A is:

Tbt = 20 x 0.4 = 8.0 (months' salary and salary -based allowance, if any).

2. The allowance regime:

< p="">- Labor accidents specified at Item a, Point 1 above, which, however, occur due to the laborers' fault according to the conclusions of the labor accident investigation records;

- Accidents regarded as labor accidents are those occur to laborers who are going from home to working place or vice versa or accidents due to objective causes such as natural calamity, fire and other risks associated with the performance of their jobs or labor tasks, or accidents occurring at working places but their causers are unidentifiable.

Allowance shall be paid in lump sum for each time. Allowance shall be paid per accident and it is not allowed to pay aggregate allowance for many accidents which have occurred.

< p="">The levels of allowance for labor accidents are calculated as follows:

- Being equal to at least 12 months' salary and salary -based allowance (if any) for laborers who suffer from working capacity decline of 81% or higher or die in labor accidents.

- Being equal to at least 0.6 month's salary and salary -based allowance (if any) for those who suffer from working capacity decline of between 5% and 10%; if they later suffer from working capacity decline of between over 10% and under 81%, use the following formula or refer to the table for calculation of compensation and allowance levels based on the working capacity decline percentage of between 5% and death (Appendix 2).

Method of calculating allowance levels

(< p="">

Ttc = Tbt x 0.4.

< p="">Ttc is the allowance level for laborers suffering from working capacity decline of 10% or higher (calculation unit: one month's salary and salary-based allowance, if any).

Tbt: is the compensation level for laborers suffering from working capacity decline of 10% or higher (calculation unit: one month's salary and salary-based allowance, if any).

Example:

Mr. B gets a labor accident (due to his fault of violating safety regulations). His first-time health check shows that his working capacity decline is 15%. His allowance level is calculated as follows:

The first-time allowance level for Mr. B is:

Ttc = Tbt x 0.4 = 3.5 x 0.4 = 1.4 (months' salary and salary -based-allowance, if any).

Mr. B gets the second accident while going home from his working place (this is regarded as labor accident) and his second health check shows that his working capacity decline is 20%.

The second-time allowance for Mr. B is:

Ttc = 5.50 x 0.4 = 2.20 (months' salary and salary-based allowance, if any).

3. The prescribed compensation and allowance levels are minimum < p="">

4. Salaries used as a basis for calculating compensation or allowance amounts are those stated in labor contracts, calculated as an average salary of the six months preceding the time when labor accidents occur or occupational diseases are determined, including rank or position salary, region-based allowance and/or position allowance (if any) according to the current regulations.

If laborers have worked for less than six months only, the salary of the preceding month or the salary paid at the time when labor accidents occur or occupational diseases are identified shall be used for calculating compensation and/or allowance amounts.

5. The subjects enjoying compensations and/or allowances for labor accidents or occupational diseases under this Circular shall still enjoy the regime of social insurance for labor accidents and occupational diseases (if they participate in compulsory social insurance) prescribed in the Government's Decree No. 12/CP of January 26, 1995 promulgating the Social Insurance Regulation.

III. DOSSIERS AND PROCEDURES

1. Compilation of dossiers and procedures:

< p="">- The labor accident investigation record according to the current provisions of law;

- The examination record (written certification of the working capacity decline due to labor accident) of the competent Medical Examination Council;

- The employer's decision on payment of compensation or allowance.

< p="">- The laborer's occupational disease dossiers according to the current provisions of law.

- The forensic medicine agency's record confirming the laborer's death due to occupational disease or the competent Medical Examination Council's record certifying the working capacity decline caused by occupational disease;

- The employer's decision on payment of compensation or allowance.

< p="">- One copy is kept by the employer;

- One copy is kept by the laborer (or a next of kin of the dead laborer) who gets a labor accident or an occupational disease;

+ One copy is sent to the Labor, War Invalids and Social Affairs Service of the locality where the enterprise, agency or organization is headquartered.

2. Time limit for payment of compensation or allowance:

- The employer's decisions on paying compensation or allowance to people who have labor accidents or occupational diseases must be issued within five days after the examination records of the Medical Examination Council or forensic medicine agency are available;

- Compensation and allowance money must be paid in lump sum to people who get labor accidents or occupational diseases within five days after the employer's decisions are issued.

3. Expenditures on compensations and allowances for people who get labor accidents or occupational diseases shall be accounted in the product costs or circulation costs of production and business enterprises or establishments. Administrative and non-business agencies may account such expenditures into their regular expenditures. Households and individuals shall have to pay compensations and allowances.

IV. ORGANIZATION OF IMPLEMENTATION

1. Employers shall have to:

- Enhance measures to improve the working conditions, to prevent and propagate and educate to raise awareness so as to minimize possible labor accidents and occupational diseases for laborers.

- Regularly take care of laborer's health and provide regular health checks; if detecting any cases of suffering from occupational diseases, provide treatment and functional rehabilitation convalescence for the patients. Organize examinations or seek for expertise on the working capacity decline levels; pay compensation to laborers suffering from occupational diseases (if any).

- Properly implement policies and regulations on compensation for labor accidents and occupational diseases and allowances for labor accidents to laborers or next of kin of laborers who die in labor accidents or from occupational diseases.

- Biannually and annually send a general report on the situation of labor accidents and occupational diseases and on the implementation of the regime of compensation and allowance for labor accidents and occupational diseases to the provincial/municipal Labor, War Invalids and Social Affairs Services and Labor Federations of the localities where their enterprises, agencies or organizations are headquartered.

2. The provincial/municipal Labor, War Invalids and Social Affairs Services shall coordinate with the Labor Federations of the localities in regularly inspecting and overseeing the implementation of policies and regimes on labor safety and hygiene as well as the provisions of this Circular; if detecting any mistakes, they shall guide the employers to correctly implement the provisions; serious violations shall be strictly handled.

3. The ministries, the ministerial-level agencies, and the People's Committees of the provinces and centrally-run cities shall popularize, and guide the implementation of, this Circular for every enterprise, agency and/or organization under their respective management.

4. The subjects determined as having got labor accidents or occupational diseases as from January 1, 2003 shall enjoy the regime of compensation and allowance for labor accidents and occupational diseases under the provisions of this Circular.

5. This Circular takes effect 15 days after its publication in the Official Gazette. To repeal Circular No. 19/LDTBXH-TT of August 2, 1997 promulgated by the Ministry of Labor, War Invalids and Social Affairs guiding the implementation of the regime of compensation for labor accident victims.

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.

APPENDIX 1

LIST OF OCCUPATIONAL DISEASES ENTITLED TO

 (Promulgated together with Joint Circular No. 08/TTLB of May 19, 1976 and Joint Circular No. 09/TTLB of December 25, 1991 and the Health Minister's Decision No. 167/BYT-QD of February 4, 1997)

Group I: Dust diseases and bronchitis

1.1. Occupational silicosis

1.2. Asbestosis

1.3. Cotton dust disease

1.4. Occupational chronic bronchitis

Group II: Occupational intoxication diseases

2.1. Intoxication of lead and lead compounds

2.2. Intoxication of benzene and benzene compounds

2.3. Intoxication of mercury and mercury compounds

2.4. Intoxication of manganese and manganese compounds

2.5. Intoxication of TNT (trinitrotoluence)

2.6 Occupational intoxication of arsenic and arsenic matters

2.7. Occupational intoxication of nicotine

2.8. Occupational intoxication of pesticides

Group III: Occupational diseases due to physical elements

3.1. Diseases due to X-ray and radioactive substances

3.2. Deafness caused by noise

3.3. Occupational vibration disease

3.4. Occupational chronic low-pressure disease

Group IV: Occupational skin diseases

4.1. Occupational skin tanning disease

4.2. Skin ulcer, nasal septum ulcer, dermatitis, contact eczema.

Group V: Occupational infectious diseases

5.1. Occupational tuberculosis

5.2. Occupational viral hepatitis

5.3. Occupational leptospirosis

APPENDIX 2

TABLE FOR CALCULATION OF COMPENSATION LEVELS PAID BY EMPLOYERS TO LABORERS GETTING LABOR ACCIDENTS OR OCCUPATIONAL DISEASES
(Promulgated together with Circular No. 10/2003/TT-BLDTBXH of April 18, 2003 guiding the implementation of compensation and allowance regimes for laborers getting labor accidents or occupational diseases).