Thông tư 12/2005/TT-BLDTBXH

CIRCULAR

GUIDING A NUMBER OF ARTICLES OF THE GOVERNMENT'S DECREE NO. 113/2004/ND-CP DATED APRIL 16, 2004 PRESCRIBING ADMINISTRATIVE SANCTIONS AGAINST ACTS OF VIOLATION OF LABOR LEGISLATION

In furtherance of Article 37 of the Governments Decree No. 113/2004/ND-CP of April 16, 2004 prescribing administrative sanctions against acts of violation of labor legislation;
The Ministry of Labor, War Invalids and Social Affairs hereby provides the fol1owing guidance:

I. GENERAL PROVISIONS

1. Scope and objects of regulation

This Circular guides the implementation of a number of articles of the Government's Decree No. 113/2004/ND-CP dated April 16, 2004 prescribing administrative sanctions against acts of violation of labor legislation (hereinafter called Decree No.113/2004/ND-CP for short).

2. Cases where administrative violations shall not be sanctioned:

a) Violators are foreign individuals and organizations enjoying immunity from administrative sanctioning under the Ordinance on Privileges and Immunities of Diplomatic Missions, Consulates and Representative Offices of International Organizations in Vietnam;

b) The statute of limitations for sanctioning administrative violations prescribed in Article 6 of Decree No. 113/004/ND-CP has expired;

c) Administrative violations show signs of crimes, and their dossiers are transferred to competent criminal procedure-conducting agencies for examination and handling according to the provisions of penal legislation.

3. Persons with sanctioning competence, when handling acts of violation of labor legislation, must base themselves on acts of administrative violation of labor legislation, sanctioning forms and levels specified in Decree No. 113/2004/ND-CP to decide on the correct sanctioning levels, and concurrently guide the sanctioned organizations or individuals in properly executing the sanctioning decisions.

II. ACTS OF ADMINISTRATIVE VIOLATION OF LABOR LEGISLATION

1. Provisions on violations of regulations on employment at Point d, Clause 1; Cause 2; Point a, Clause 3, Article 8 of Decree No. 113/2004/ND-CP shall apply to:

a) Violation of one of the regulations on procedures for recruitment of laborers prescribed in the Government's Decree No. 39/2003/ND-CP dated April 18, 2003 detailing and guiding the implementation of a number of articles of the Labor Code on employment and the Labor, War Invalids and Social Affairs Ministry's Circular No. 20/2003/TT-BLDTBXH dated September 22, 2003;

b) Regarding the severance allowance levels for laborers: Labor users who pay severance allowances lower than the levels prescribed in Article 17 of the Labor Code;

c) The setting up of severance allowance funds in contravention of the provisions of Clause 3, Article 17 of the Labor Code, the Government's Decree No. 39/2003/ND-CP dated April 18, 2003, the Ministry of Finance's Circular No. 82/2003/ TT-BTC dated August 14, 2003 and Circular No. 07/2004/TT-BTC dated February 9, 2004.

2. Provisions on violation of regulations on job learning in Clauses 1 and 2, Article 9 of Decree No. 113/2004/ND-CP shall apply to:

a) Violation of one of the provisions on the establishment, registration, operation, division, separation, merger, operation suspension and dissolution of job-training establishments in Articles 4, 5, 6, 7, 8, 9, 15, 16, 17, 19, 24 and 27 of the Government's Decree No. 02/2001/ND-CP dated January 9, 2001 detailing the implementation of the Labor Code and the Education Law regarding job-training;

b) Collection of job-training fees from persons exempt from such fees defined in Articles 65 and 66 of the Government's Decree No. 28/CP dated April 29, 1995 detailing and guiding the implementation of a number of articles of the Ordinance on Preferential Treatment of Revolutionary Activists, Fallen Heroes and their Families, War Invalids, Diseased Soldiers, Resistance War Activists and People with Meritorious Services to the Revolution;

c) Collection of fees higher than the fee bracket set for job trainees at Point 2.1, Clause 2, Article 3 of the Prime Minister's Decision No. 70/1998/QD-TTg dated March 31, 1998 on the collection and use of school fees at public educational and training establishments within the national education system.

3. Provisions on violation of regulations on labor contracts in Clause 2, Article 10 of Decree No. 113/2004/ND-CP shall apply to the cases where laborers have actually worked for full 12 months or more but labor users still fail to sign labor contracts with them, or where laborers have fulfilled two consecutive labor contracts with fixed terms and then continued to work but labor users still fail to sign labor contracts with them or sign contracts with fixed terms, which are also considered contracts at < span="">

4. Provisions on violation of regulations on social insurance in Articles 18 and 21 of Decree No. 113/2004/ND-CP are guided as follows:

a) Failure to fully pay social insurance premiums for laborers who participate in social insurance according to the provisions of the Social Insurance Regulation promulgated together with the Government's Decree No. 12/CP dated January 26, 1995 (hereinafter called the Social Insurance Regulation) means:

- Failure to pay premiums at the prescribed levels;

- Failure to pay premiums for the prescribed duration.

b) Failure to pay social insurance premiums for or failure to pay social insurance sums to laborers under the above-said Social Insurance Regulation means:

- Labor users' failure to pay social insurance premiums;

- Labor users having collected 5% of laborers' salaries for payment of social insurance premiums but failing to set aside 15% of the total salary fund of social insurance participants in their units to pay premiums to social insurance agencies;

- Failure to pay premiums for all laborers subject to compulsory social insurance in their units;

- Failure to include the prescribed social insurance sums into salaries paid to laborers not subject to compulsory social insurance.

c) Acts of granting untruthful certificates to laborers mean the untruthful certification or drawing up of lists of laborers for enjoying illness, labor accident or occupational disease treatment allowances.

d) Acts of intentionally causing troubles or impediments to laborers' enjoyment of social insurance regimes mean:

- Delaying the compilation or completion of dossiers and the completion of procedures or the issuance of decisions for laborers to enjoy social insurance regimes after the passage of 30 days, counting from the date laborers submit complete and valid dossiers;

- Delaying the payment of insurance sums to social insurance beneficiaries after the passage of 30 days, counting from the date of receipt of payment decisions of social insurance agencies (for illness, maternity, labor accidents and occupational diseases);

- Prolonging by social insurance agencies the time limit for examining and approving social insurance dossiers of laborers after the passage of 30 days, counting from the date they are supplied with complete and valid dossiers.

e) Acts of late payment of social insurance premiums for 30 days or more after the payment time limit prescribed in Article 37 of the Social Insurance Regulation or past the time limit permitted by the Government.

f) Acts of failing to make social insurance books or failing to return social insurance books to laborers include:

- Labor users' failure to make dossiers or carry out procedures for social insurance agencies to issue social insurance books to laborers within 90 days after such laborers start to work and register for participation in social insurance at their enterprises, agencies or organizations;

- Labor users' failure to return social insurance books to laborers when labor contracts are terminated and laborers leave their units.

g) Laborers' acts of falsifying or forging dossiers for enjoying social insurance regimes include:

- Making untruthful declarations in their dossiers or modifying or erasing their dossiers' contents related to the enjoyment of social insurance;

- Forging documents of competent agencies and including them in dossiers for enjoyment of social insurance.

h) Acts of granting untruthful injury expertise or grading certificates of medical examination and treatment or expertise establishments mean the certification or grading of injuries caused by labor accidents or occupational diseases for social insurance participants in contravention of the Ministry of Health's regulations.

III. PROCEDURES FOR SANCTIONING ADMINISTRATIVE VIOLATIONS OF LABOR LEGISLATION

Persons competent to sanction administrative violations of labor legislation must strictly comply with the procedures for sanctioning and executing administrative sanctioning decisions prescribed in Article 31 of Decree No. 113/2004/ND-CP and the following regulations:

1. When detecting administrative violations in domains under their management, persons with sanctioning competence who are on duty must issue decisions to immediately stop the violations according to Article 18 of the Government's Decree No. 134/2003/ND-CP dated November 14, 2003 detailing the implementation of a number of articles of the 2002 Ordinance on Handling of Administrative Violations (hereinafter called Decree No. 134/2003/ND-CP) and promptly make written records of the administrative violations of labor legislation according to a set form promulgated together with Decree No. 134/2003/ND-CP enclosed with this Circular (not printed herein).

2. In case of sanctioning according to simple procedures prescribed in Article 19 of Decree No.134/2003/ND-CP competent persons shall not make written records but carry out the on spot sanctioning. On-spot sanctioning decisions applicable to the sanctioning form of caution and those applicable to the sanctioning form of pecuniary fine shall be made according to a set form promulgated together with Decree No. 134/2003/ND-CP enclosed with this Circular (not printed herein).

3. Within 10 days after making written records of administrative violations, or 30 days for administrative violations involving complicated circumstances, sanctioning decisions must be issued. Persons with sanctioning competence shall issue violation-sanctioning decisions according to a set form promulgated together with Decree No. 134/2003/ND-CP enclosed with this Circular (not printed herein).

4. In cases where violations go beyond the sanctioning competence of the record makers, such persons shall, within 5 days, have to send written records together with all violation dossiers to persons with sanctioning competence. When completing the enforcement of administrative sanctioning decisions against the sanctioned subjects, the sanctioning decision issuers shall send one copy of each sanctioning decision to the sanctioning requesters. In cases where persons with sanctioning competence, after receiving administrative sanctioning requests, refuse to satisfy them, they shall notify such in writing to the requesters, clearly stating the reasons therefor.

5. If persons competent to handle administrative violations defined in Articles 26, 27 and 28 of Decree No. 113/2004/ND-CP are absent, they must authorize their deputies to handle violations.

The authorization must be made in writing and signed by authorizers. Letters of authorization must clearly state the scope and duration of authorization.

6. Individuals and organizations that are sanctioned for administrative violations but fail to voluntarily abide by sanctioning decisions shall be coerced to do so according to the provisions of Article 66 of the 2002 Ordinance on Handling of

Administrative Violations. Coercive decisions shall be made according to a set form promulgated together with Decree No. 1 3412003/ND-CP enclosed with this Circular (not printed herein).

7. In cases where the statute of limitations prescribed in Clause 1, Article 6 of Decree No. 113/2004/ND-CP expires, no sanctions shall be imposed, but persons with sanctioning competence may decide to apply remedial measures. Decisions on application of measures to remedy consequences of administrative violations shall be issued according to a set form promulgated together with Decree No. 134/2003/ND-CP enclosed with this Circular (not printed herein) when no sanction for labor legislation violation is imposed.

IV. IMPLEMENTATION PROVISIONS

This Circular takes effect 15 days after its publication in the Official Gazette.

Any problems arising in the course of implementation which need to be further explained or guided should be reported to the Ministry of Labor, War Invalids and Social Affairs for it to make timely explanations or additional guidance within the ambit of its functions, tasks and powers.