Thông tư 08/2020/TT-BLDTBXH

CIRCULAR

ON GUIDELINES FOR PROTECTION OF EMPLOYMENT STATUS OF WHISTLEBLOWERS WORKING UNDER LABOR CONTRACTS

Pursuant to the Whistleblowing Law 2018;

Pursuant to the Government’s Decree No. 31/2019/ND-CP dated April 10, 2019 on guidelines for implementation of the Whistleblowing Law;

Pursuant to the Government’s Decree No. 14/2017/ND-CP dated February 17, 2017 defining the functions, tasks, entitlements and organizational structure of the Ministry of Labor, War Invalids and Social Affairs;

At the request of the Chief Inspector of Ministry of Labor, War Invalids and Social Affairs;

The Minister of Labor, War Invalids and Social Affairs promulgates a Circular on guidelines for protection of employment status of whistleblowers working under labor contracts.

Article 1. Scope

This Circular set forth procedures for protection of employment status of whistleblowers (labor contract-based employees) and their relatives, including: spouse, natural father, natural mother, adoptive father, adoptive mother, natural child or adoptive child of the whistleblower (hereinafter referred to as the protectees); responsibilities of agencies, organizations and individuals in the protection of protectee’s employment status.

Article 2. Regulated entities

This Circular applies to:

1. Protectees; alleged wrongdoers on the whistleblower’s report; persons who address wrongdoing.

2. Competent authorities that enforce protection of employment status of protectees (hereinafter referred to as enforcing authorities) and relevant agencies, organizations, and individuals.

Article 3. Interpretation of terms

For the purposes of this Circular, the following expressions have the following meanings assigned to them:

1. “labor contract-based employee” means an employee specified in labor legislation, including a labor contract-based employee in a regulatory agency or public sector entity.

2. “employment protection” means that the competent authority considers taking measures deemed necessary as prescribed in clause 2 Article 57 of the Whistleblowing Law to protect the protectee’s employment status.

Article 4. Request for enforcement of employment protection

1. In the case mentioned in clause 3 Article 47 of the Whistleblowing Law, the whistleblower or the person addressing wrongdoing may file a request for enforcement of employment protection with the enforcing authority. In case of urgency, the whistleblower may comply with clause 3 Article 50 of the Whistleblowing Law.

2. The request for enforcement of employment protection filed by the whistleblower must contain the contents prescribed in clause 2 Article 50 of the Whistleblowing Law, using Form No. 01 of Appendix thereto.

3. The request for enforcement of employment protection filed by the person addressing wrongdoing is specified in Form No. 02 of Appendix thereto. The issuance, process and keeping of the request shall ensure confidentiality of protection as prescribed in clause 2 Article 49 of the Whistleblowing Law.

Article 5. Decision, modification and termination of protection measures

1. If the said request is found well-grounded as prescribed in clause 1 Article 51 of the Whistleblowing Law, the enforcing authority shall issue a decision on adoption of measure to protect employment status (hereinafter referred to as employment protection decision) as prescribed in Article 52 of the Whistleblowing Law. The employment protection decision is specified in Form No. 03 of Appendix thereto.

2. If the said request is found not grounded or not necessary as prescribed in clause 3 Article 51 of the Whistleblowing Law, the enforcing authority shall issue a notice of non-adoption of protection measure, using Form No. 04 of Appendix thereto.

3. The decision maker in clause 1 shall enforce the protection measure as prescribed in clause 2 Article 57 of the Whistleblowing Law; and may modify the protection measure as prescribed in clause 1 Article 54 of the Whistleblowing Law. The decision on modification to measure to protect employment status is specified in Form No. 05 of Appendix thereto.

4. The decision maker in clause 1 may issue a decision to terminate the employment protection decision as prescribed in clause 2 Article 54 of the Whistleblowing Law. The decision on termination of measure to protect employment status is specified in Form No. 06 of Appendix thereto.

Article 6. Responsibilities of the People’s Committees

a) Direct relevant entities to cooperate in considering the employment protection decision as prescribed in Article 51 of the Whistleblowing Law; adopt the protection measure since the effective date of the employment protection decision as prescribed in clause 4 Article 52 of the Whistleblowing Law.

b) Ensure facilities and funding available for adoption of employment protection measures.

c) Direct relevant entities to request the employer to abide by the employment protection measures as per the law.

d) Deal with entities who commit labor violations against the protectee.

2. People’s Committee of commune

Adopt employment protection measures in favor of protectees who are maids or those who are working in establishments licensed by the People’s Committee of commune.

3. People’s Committee of district

a) The People's Committee of district shall adopt employment protection measures in favor of protectees who are working at the head office, branch, representative office or affiliated entity located in that district of the agency or business entity licensed by the competent authority of district.

b) The Division of Labor, Ward Invalids and Social Affairs shall advise the People's Committee of district to enforce the employment protection measures in favor of the protectees.

4. People’s Committee of province

a) The People's Committee of district shall adopt employment protection measures in favor of protectees who are working at the head office, branch, representative office or affiliated entity located in that province of the agency or business entity licensed by the competent authority of the province, sector or central level.

b) The Department of Labor, Ward Invalids and Social Affairs shall advise the People's Committee of province to enforce the employment protection measures in favor of the protectees.

Article 7. Responsibilities of employers

1. Do not place employment discrimination against the protectee.

2. Do not retaliate, slam or threaten to affect the protectee's employment, income and other legitimate interests from their job.

3. Promptly and fully comply with the employment protection measures in favor of the protectee at the request of the enforcing authority.

4. Report the enforcing authority on and notify the employee representative of the result of the employment protection measures.

5. The governing body of the enterprise, agency, or business entity; and the immediate employer of the protectee who is working at the branch, representative office or affiliated entity shall cooperate, provide information and relevant documents upon request of the competent authorities during the receipt, verification and adoption of the employment protection measures.

Article 8. Responsibilities of employee representatives

1. Grassroots employee representative

a) Supervise the employer in the compliance with employment protection measures at the request of the enforcing authority.

b) In a case where the employer fails to comply with the employment protection measure, the executive board of grassroots trade union or other legal representative organization of the employee must request the employer to comply with the employment protection measure in writing, and report to the enforcing authority and immediate superior trade union or the immediate superior legal representative organization of the employee (if any) for timely handling and further protection measures.

2. Confederation of Labor of district, province

a) Direct the executive board of grassroots trade union to supervise the employer in compliance with the employment protection measures.

b) Supervise the enforcing authority of the same level in taking charge and cooperating with relevant entities in adoption of the employment protection measures.

c) Cooperate with People’s Committee of the same level in requesting the employer to comply with the employment protection measures under the decision of competent authority.

Article 9. Responsibilities of relevant entities

Political, socio-political organizations and relevant agencies, organizations and individuals, within the scope of their duties and powers, have the responsibilities to coordinate with enforcing authorities in adopting employment protection, providing information and documents, and enforcing the employment protection.

Article 10. Entry in force

This Circular comes into force as of December 1, 2020.

Article 11. Implementation

1. Ministers, Heads of ministerial-level agencies, Heads of Governmental agencies, the Presidents of People’s Committees of provinces and central-affiliated cities and relevant entities shall implement this Circular.

2. Difficulties arising during the implementation of this Circular shall be reported to the Ministry of Labor, War Invalids and Social Affairs for consideration./.