Thông tư 18/2021/TT-BLDTBXH

CIRCULAR

REGULATIONS ON HOURS OF WORK AND HOURS OF REST APPLICABLE TO workers DOING SEASONAL PRODUCTION WORK AND PROCESSING OF GOODS UNDER ORDERS

Pursuant to Clause 2 Article 68 of the Government’s Decree No. 145/2020/ND-CP dated December 14, 2020 elaborating and guiding on implementation of some Articles of the Labor Code on labor conditions and labor relations;

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

At the request of the Director of the Department of Labor safety;

The Minister of Labor, War Invalids and Social Affairs promulgates a Circular providing regulations on hours of work, hours of rest applicable to workers doing seasonal production work and processing of goods under orders.

Article 1. Scope

This Circular stipulates plan preparation and implementation of hours of work, hours of rest applicable to workers doing seasonal production work and processing of goods under orders.

Article 2. Regulated entities

1. Workers working under labor contracts of between 12 and 36 months or labor contracts of an indefinite term for the following jobs:

a) Seasonal production work in the fields of agriculture – forestry – fishery - salt production that require instant harvest or instant processing after harvest without delay;

b) Processing of goods under orders, of which delivery time requested by the goods owners.

2. 2. Employers that are prescribed in Clause 2 Article 3 of the Labor Code and whose employees do the works prescribed in the Clause 1 of this Article.

Article 3. Standard hours of work in a year

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

Where:

- T_Q: A worker’s standard hours of work 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 weekly days off in a year, determined under Article 111 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 113 and 114 of the Labor Code and Article 66 of Decree No. 145/2020/ND-CP dated December 14, 2020 on guidelines for the Labor Code on labor conditions and labor relations;

-  T_L: Number of official holidays in a year, which is 11 according to the regulations in Article 112 of the Labor Code;

-  T_n: Number of daily normal hours of work, which is 8 according to Article 105 of the Labor Code.

Article 4. Formulating plan for determination of daily standard hours of work

Annually, based on the standard hours of work in a year (T_Q) calculated as prescribed in Article 3 of this Circular, each employer shall make a plan to determine the number of daily standard hours of work of each worker in the following cases:

1. The number of daily standard hours of work is 8

2. The number of daily standard hours of work may be more than 8 but may not exceed 12

3. The number of daily standard hours of work is from 4 to less than 8

4. A whole day-off is allowed.

Article 5. Principles of using the standard hours of work

1. In a year, the total number of standard hours of work planned and determined under Article 4 of this Circular (including daily hours of rest expressed as hours of work) must not exceed the standard hours of work in the year (T_Q) already determined in Article 3 of this Circular.

2. In case the number of daily standard hours of work which is less than 8 has been planned and determined under Clauses 3 and 4 of this Circular, furlough wage needs not to be paid.

3. Furlough wage must be paid for the number of daily standard hours of work already planned during which a company actually did not arrange work for its workers.

4. In case the number of daily standard hours of work which is more than 8 has been determined under the plan mentioned in Clause 2 Article 4 of this Circular, such difference in hours may not be counted as extra working time.

5. The number of actual daily hours of work in excess of the number of standard hours of work already planned under Article 4 of this Circular may be counted as extra hours of work to be added to the total number of extra hours of work in a year. At the same time, overtime pay and other relevant benefits must be provided under current regulations of the Labor Code.

Article 6. Maximum daily standard hours of work and extra hours of work

1. The total maximum number of standard hours of work and extra hours of work in a day is 12

2. Maximum weekly and monthly standard hours of work and extra hours of work are prescribed as follows:

The total maximum number of standard hours of work and extra hours of work in a week is 72.

b) The total maximum number of extra hours of work in a month is 40.

c) The employer shall decide whether to apply the regulations prescribed in point a or b of this clause and then record it into a plan for annual hours of work and hours of rest prescribed in Clause 2 Article 8 of this Circular.

3. Total of extra hours of work in a year of each worker shall not exceed 300 hours.

Article 7. Hours of rest

1. Workers 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 days off cannot be arranged, the employer shall arrange at least 4 days off every month for the workers.

2. During-shift and between-shift breaks for workers shall comply with the provisions of the Labor Code and Decree No. 145/2020/ND-CP .

3. The employer shall allow workers to take all official holidays, annual leave days and other paid days off; shorten hours of work and ensure hours of rest for female workers, minor workers, and elderly workers; decide on unpaid leave in accordance with the provisions of the Labor Code.

Article 8. Responsibilities of employers

1. Annually, based on their production and business plans, each employer shall take the initiative in applying their plans on normal hours of work and hours of rest according to the Labor Code, or on hours of work prescribed in this Circular.

2. In case it is decided to implement hours of work and hours of rest according to this Circular, the following contents must be fully complied with:

a) A plan of hours of work and hours of rest during the year shall be made and adjusted according to the form in the Appendix 1 issued together with this Circular. When making and adjusting the plan, it is necessary to consult the representative organization of workers at the work place. The employer shall refer to the examples in the Appendix 2 issued herewith during the formulation and implementation of the plan for hours of work and hours of rest;

b) The employer shall notify workers within their enterprises, agencies, organizations, cooperatives, households and individuals of plans on hours of work and hours of rest at least 30 days before implementation, and reach agreement with workers on overtime work under regulations of the Labor Code.

c) The employer shall pay wage to their workers according to the labor contract and regulations of the law on wage;

d) The employer shall include the report on implementation of this Circular in the annual report on occupational safety and hygiene to the Department of Labor, War Invalids and Social Affairs.

Article 9. Responsibility of Services of Labor, War Invalids and Social Affairs

1. Cooperate with related agencies in disseminating this Circular to enterprises in their provinces.

2. Regularly expedite, supervise, examine and inspect the implementation of regulations on hours of work and hours of rest at enterprises; and handle violations against legislation on labor.

3. Send annual reports on the implementation of this Circular by enterprises, agencies, organizations, cooperatives, households and individuals in their provinces to the Ministry of Labor, War Invalids and Social Affairs.

Article 10. Effect

1. This Circular comes into force from January 02, 2022.

2. Circular No. 54/2015/TT-BLDTBXH dated December 12, 2015 of the Minister of Labor, War Invalids and Social Affairs on guidelines for hours of work and hours of rest applicable to workers doing seasonal production work and processing of goods under orders shall be ineffective from the date this Circular takes effect.

3. Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Labor, War Invalids and Social Affairs for consideration./.

APPENDIX 1

FORM OF PLAN FOR HOURS OF WORK AND HOURS OF REST

PLAN

HOURS OF WORK AND HOURS OF REST

YEAR…

- Name⁽²⁾:.......................................................................................................................

- Job/work of business/production ⁽³⁾: ...........................................................................

- Type of business/production ⁽⁴⁾...................................................................................

1. Average standard hours of work in a year …………… applicable to a worker working in normal conditions:T_Q=

2. Apply the maximum weekly and monthly extra hours of work:

3. Plan for allocating standard hours of work in a year:

Instructions:

-  (1):

The name of Parent Company or group ( in case it is a member enterprise in the group);

The name of controlling company (in case it is affiliated units of the controlling company);

The name of Department or provincial authority (in case it is affiliated to a Department or provincial authority);

The name of a Ministry or ministerial agency (in case it is affiliated with the Ministry or ministerial agency);

Skipped in other cases.

- (2) and (3): present according to the certificate of business registration.

- (4): specify entity of the group prescribed in Point a, b Clause 1 Article 2 of this Circular

APPENDIX 2

EXAMPLES OF HOURS OF WORK, HOURS OF REST APPLICABLE TO WORKERS DOING SEASONAL JOBS AND PROCESSING of GOODS UNDER ORDERS

Examples of making plan for hours of work and hours of rest in the year of the company

Example 1 – Calculation of T_Q for Company X

So Company X’s general standard hours of work in 2021 is 2320 hours.

Examples 2 -  Table of plan for hours of work and hours of rest in the year of the company X (according to the Appendix 1)

II. Examples of making plan for determination of daily standard hours of work of workers

Example 3: Worker A has worked under normal conditions for Company X for 15 years. Worker A’s standard hours of work in 2021 shall be calculated as follows:

The number of annual leave days of worker A is: 12+15/5 = 15 days

Where: 12 days are determined under Article 113 of the Labor Code; 15/5 is the increase in number of leave days based on working seniority under Article 114 of the Labor Code.

Calculation table:

So Worker A’s standard hours of work in 2021 is 2296 hours.

Example 4: Worker B has been working for Company Y for 15 years doing extremely arduous works. Worker B’s standard hours of work in 2021 shall be calculated as follows:

The number of annual leave days of worker B is: 16+15/5 = 19 days

Where: 16 days are determined under Article 113 of the Labor Code; 15/5 is the increase in number of leave days based on working seniority under Article 114 of the Labor Code.

Calculation table:

So Worker B’s standard hours of work in 2021 is 1698 hours.

Example 5: According to example 3, Worker A’s standard hours of work in 2021 is 2296 hours. Company X shall distribute Worker A’s number of daily standard hours of work in 2021 as follows:

III. Example of rules for using standard hours of work

Example 6: In February, Company X assigned Worker A to work 7 hours a day for 8 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 hours of work is 1 (= 8-7) hour fewer than the number of normal hours of work; furlough wage needs not to be paid for this 1 hour;

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

Example 7: 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 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 hours of work is 2 (= 7 - 5) hours fewer than the number of daily standard hours of work; furlough wage must be paid for this 2 hours;

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

Example 8: In September, Company X assigned Worker A to work 8 hours a day. So, compared to the company’s plan set for Worker A in September in Example 5 above, the number of actual hours of work is 2 (= 8 - 6) hour more than the number of standard hours of work. This 2 hour may be included in the total number of extra hours of work in a year and overtime pay and other relevant benefits must be provided under current regulations.

Example 9: In October, Company X assigned Worker A to work 10 hours from Monday to Friday and 8 hours on Saturday every week according to the plan mentioned in example 3 above.  The number of hours of work is 2 (=10-8) hours more than the number of normal hours of work; This 2 hour may not be counted as extra working hour.

IV. Examples of maximum daily standard hours of work and extra hours of work

Example 10: To meet urgent needs, in May and June, Company X needed to arrange overtime work.  The company has registered maximum monthly extra hours of work. The company may arrange with Worker A about overtime work as follows:

- 12 hours a day from Monday to Saturday.

- 33 more hours in May; 30 more hours in June.