Thông tư 04/2013/TT-BLDTBXH

Circular No. 04/2013/TT-BLDTBXH of March 01, 2013, amending the Circular No. 32/2010/TT-BLDTBXH dated October 25th 2010 of the Ministry of Labor, war invalids and social affairs, guiding the implementation of the Government's Decree No. 127/2008/ND-CP dated December 12th 2008, elaborating and guiding the implementation of a number of articles of the Law on social insurance applicable to unemployment insurance

Circular No. 04/2013/TT-BLDTBXH amending the Circular No. 32/2010/TT-BLDTBXH đã được thay thế bởi Circular No. 28/2015/TT-BLDTBXH guidelines for the Law on employment in terms of unemployment insurance và được áp dụng kể từ ngày 15/09/2015.

Nội dung toàn văn Circular No. 04/2013/TT-BLDTBXH amending the Circular No. 32/2010/TT-BLDTBXH


THE MINISTRY OF LABOR, WAR INVALIDS AND SOCIAL AFFAIRS
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
----------------

No. 04/2013/TT-BLDTBXH

Hanoi, March 01st 2013

 

CIRCULAR

AMENDING THE CIRCULAR NO. 32/2010/TT-BLDTBXH DATED OCTOBER 25TH 2010 OF THE MINISTRY OF LABOR, WAR INVALIDS AND SOCIAL AFFAIRS, GUIDING THE IMPLEMENTATION OF THE GOVERNMENT'S DECREE NO. 127/2008/ND-CP DATED DECEMBER 12TH 2008, ELABORATING AND GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LAW ON SOCIAL INSURANCE APPLICABLE TO UNEMPLOYMENT INSURANCE

Pursuant to the Government's Decree No. 106/2012/ND-CP dated December 20th 2012, defining the functions, tasks, powers and organizational structure of the Ministry of Labor, War Invalids and Social Affairs;

Pursuant to the Government's Decree No. 127/2008/ND-CP dated December 12th 2008, elaborating and guiding the implementation of a number of articles of the Law on Social insurance applicable to unemployment insurance (hereinafter referred to as the Decree No. 127/2008/ND-CP);

Pursuant to the Government's Decree No. 100/2012/ND-CP dated November 21st 2012, amending the Government's Decree No. 127/2008/ND-CP dated December 12th 2008, elaborating and guiding the implementation of a number of articles of the Law on Social insurance applicable to unemployment insurance;

At the request of the Director of the Department of Employment;

The Minister of Labor, War Invalids and Social Affairs issues a Circular to amend the Circular No. 32/2010/TT-BLDTBXH (hereinafter referred to as the Circular No. 32/2010/TT-BLDTBXH) dated October 25th 2010 of the Ministry of Labor, War Invalids and Social Affairs, guiding the implementation of the Government's Decree No. 127/2008/ND-CP dated December 12th 2008, elaborating and guiding the implementation of a number of articles of the Law on Social insurance applicable to unemployment insurance.

Article 1. Amending some articles of the Circular No. 32/2010/TT-BLDTBXH as follows:

1. Article 1 is amended as follows:

“Article 1. Subjects and scope of application

The subjects and scope of application of this Circular are the subjects and scope of application prescribed in Article 1, Article 2, and Article of the Decree No. 127/2008/ND-CP.”

2. Article 2 is amended as follows:

“Article 2. Conditions for receiving unemployment benefits

1. An unemployment insurance payer prescribed in Article 15 of the Decree No. 127/2008/ND-CP in particular:

An unemployment insurance payer that has been paying the unemployment insurance in the months preceding the dismissal or the termination of the labor contract (hereinafter referred to as preceding months). Those preceding months include :

a) The months before the dismissal or termination of the labor contract, during which the worker had been taking maternity leave or sick leave for at least 14 working days and receiving social insurance benefits, without salaries or wages.

b) The months before the dismissal or the termination of the labor contract, during which the worker had been suspending the labor contract and not receiving monthly salaries from his employer.

2. An unemployed person is eligible for unemployment benefits when all conditions in Article 15 of the Decree No. 127/2008/ND-CP are satisfied, in particular:

a) That person has paid the unemployment insurance for at least 12 months during the previous 24 months before the dismissal or the termination of the labor contract as prescribed by law.

A month in which the employer and the worker pay the unemployment insurance, and the worker has performed the labor contract at least 01 day therein, shall be included in insurance payment period.

b) That person has registered his unemployment with a Job Center affiliated to a provincial Service of Labor, War Invalids and Social Affairs (hereinafter referred to as Job Center) when he is dismissed or has his labor contract terminated within the law.

c) That person fails to find a job after 15 working days from the registration day prescribed in Point b of this Clause (the first day of this 15-day period is the working day succeeding the registration day).

Working days in all cases in this Circular are from Monday to the end of Friday in a week.”

3. Clause 6 and Clause 7 of Article 3 are amended as follows:

“6. A worker who is receiving unemployment benefit shall lose the unemployment benefit as prescribed in Clause 1 Article 23 of the Decree No. 127/2008/ND-CP when:

a) The benefit period is over according to the decision to provide unemployment benefit.

b) That person finds a new job.

A worker is considered to find a new job in one of the following cases:

- The labor contract has been concluded (including the paid probation) for at least 03 months. The day on which the worker is considered to find a new job is the day on which the labor contract takes effect as prescribed by law;

- A decision on employment is issued in case the labor contract is not concluded. The employment day in this case is the day on which that person starts to work as written in the decision on employment

- Owners of business households and sole traders are issued with Certificates of Business registration by competent agencies:

For unconditional lines of business: the employment day of a business household owner or a sole trader is the date of the Certificate of Business registration;

For conditional lines of business: the employment day of an business household owner or a sole trader is the day on which the business conditions are all satisfied.

c) That person does a military service. The day on which a person starts to do a military service is the day on which he is enlisted into the army.

d) That person gets monthly retirement pension as decided by a competent agency. The retirement date is the first day on which the pension is given in the Decision on monthly pension.

dd) That person refuses to take the jobs offered by the Job Center two times without legitimate reasons.

The following cases are considered rejection without legitimate reasons:

- The worker rejects to take a job that he has been trained to do;

- The worker rejects to take a job that he once did;

- The worker who is a manual worker refuses to take a job that only requires manual workers.

e) That person fails to report his job finding to the Job Center for 03 consecutive months while receiving unemployment benefit.

g) That person leaves the country to reside abroad. The day of departure from Vietnam is the day on which his residence registration is deleted as prescribed by the laws on residence.

h) That person has to implement a decision on administrative sanction at a reform school, a hospital (including detoxification centers) or go to jail without probation. The implementation date of the Decision on administrative sanction is the day on which the administrative sanction starts to be implemented.

i) That person dies.

 Where a worker who is receiving unemployment benefit loses it in any of the cases above in a month, he shall still receive the unemployment benefit of the whole month.

7. In the cases prescribed in Points b, c, d, g and h Clause 6 of this Article, within 03 working days, the worker must notify the Job Center where he gets unemployment benefit according to the form No. 21 enclosed with this Circular, together with the photocopies of papers related to the termination of unemployment benefit. In particular:

a) The photocopy of the labor contract or decision on employment or Certificate of Business registration in the cases prescribed in Point b Clause 6 of this Article.

b) The photocopy of the call-up paper in the cases in Point c Clause 6 of this Article.

c) The photocopy of the decision on pension in the cases in Point d Clause 6 of this Article.

d) The written certification by a competent agency on the removal or residence registration in the case in Point g Clause 6 of this Article.

dd) The photocopy of the decision on pension in the cases in Point d Clause 6 of this Article.

4. Clause 2 and Clause 3 of Article 4 are amended as follows:

“2. The support for vocational training is specified in Clause 2 Article 17 of the Decree No. 127/2008/ND-CP in particular:

The level vocational training support given to a worker who is receiving unemployment benefit depends on the tuition fee and decisions of the Prime Minister.

When a worker wishes to learn a vocation that costs more than the support, he shall pay for the difference.

3. The period of vocational training support is specified in Clause 3 Article 17 of the Decree No. 127/2008/ND-CP, in particular:

The period of vocational training support depends on the training time and the needs of each worker, but must not exceed 06 months. The fist day to receive vocational training support is the first day to receive the monthly unemployment benefit.

If a worker wishes to learn a vocation while receiving unemployment benefit, he must apply for the vocational training support. The Director of the Service of Labor, War Invalids and Social Affairs issue a decision to provide vocational training support within 15 working days from the day on which the application for vocational training support is received. In case a worker keeps learning a vocation or prepares to learn a vocation under the decision by the Director of the Service of Labor, War Invalids and Social Affairs when the unemployment benefit period is over, he shall still receive the vocational training support until the end of the training course.”

5. Clause 1, Clause 2 and Clause 3 of Article 9 are amended as follows:

“1. The unemployment registration is specified in Article 34 of the Decree No. 127/2008/ND-CP in particular:

a) Within 03 months from the dismissal or the termination of the labor contract, if a worker has not found a job and wishes to receive unemployment benefit, he shall go to a local Job Center to register the unemployment. If that worker wishes to register his unemployment at other Job Center than the local Job Center, a certification of non-registration of unemployment made by the local Job Center is required.

The application for the certification of non-registration of unemployment is made in accordance with the form No. 1a enclosed with this Circular. The local Job Center shall consider and certify the non-registration of unemployment in accordance with the form No. 1b enclosed with this Circular. The Job Center only issues 01 certification, and the receiver must carefully keep it.

The 03-month period above begins from the day on which the worker lost his job or had his labor contract terminated.

The worker that registers his unemployment shall fill the unemployment registration form No. 1 enclosed with this Circular, and submit it to the Job Center. If that worker wishes to register his unemployment at other Job Center than the local Job Center, a certification of non-registration of unemployment shall be submitted to that other Job Center in accordance with the form No. 1b above.

The Job center shall check the information in the unemployment registration form, and give the worker the unemployment information sheet according to the form No. 2 enclosed with this Circular when receiving the unemployment registration form.

Example 5: Mr. Nguyen Van A terminates his labor contract on January 15th 2013. The deadline for him to register his unemployment is April 15th 2013.

b) In case the deadline prescribed in Point a of this Clause is expired, but a worker register his unemployment within 07 days after that deadline, that person could be eligible for unemployment benefit if:

- That person is sick or pregnant, and that sickness or pregnancy is certified by a district-level hospital or above;

- That person has an accident, and that accident is certified by a district-level hospital or above or by the traffic police if the accident is a road accident;

- That person suffers from a natural disaster or a calamity, and it is certified by the President of the People’s Committee of the commune, ward, or town (hereinafter referred to as People’s Committees of the commune) according to the written request of that person.

2. The application for unemployment benefit is specified in Article 37 of the Decree No. 127/2008/ND-CP including:

a) The written request for the unemployment benefit made according to form No. 3 enclosed with this Circular.

b) The photocopy of an expired labor contract, or the agreement on the termination of the labor contract, or the decision on dismissal, or the certification of the unilateral termination of the labor contract as prescribed by law.

The employee must present the social insurance book, in which the social insurance agency certifies the payment of unemployment insurance.

The worker must directly submit the application for unemployment benefit within 15 working days from the unemployment registration date (the first day of the 15-day period is the day preceding the unemployment registration date).

The Job Center only receives the application when it has all required papers, and give the worker an appointment according to the form No. 4 enclosed with this Circular.

Example 6:

Mr. A registers his unemployment on January 15th 2013. The deadline for him to submit the application for unemployment benefit is February 05th 2013.

A worker is exempt from directly submitting the application from unemployment benefit when:

- That person is sick or pregnant, and that sickness or pregnancy is certified by a district-level hospital or above;

- That person has an accident, and that accident is certified by a district-level hospital or above or by the traffic police if the accident is a road accident;

- That person suffers from a natural disaster or a calamity, and it is certified by the President of the People’s Committee of the commune according to the written request of that person

When the worker is not able to directly submit the application to the Job Center, he shall appoint another person to submit it, or send it by post (the date stamp shall be use to determine the deadline).

3. Unemployment insurance is provided as prescribed in Clause 2 Article 38 of the Decree No. 127/2008/ND-CP in particular:

a) Deadline:

Within 20 working days from the day on which the application for unemployment benefit is received as prescribed in Clause 2 of this Article.

b) The unemployment insurance supports:

- Unemployment benefit:

+ The Director of the Job center shall determine the unemployment benefit level and term, and draft the Decision on unemployment benefit for each person, and send it to the Director of the Service of Labor, War Invalids and Social Affairs for decision.

+ 01 copy of the decision made by the Director of the Service of Labor, War Invalids and Social Affairs shall be sent to a provincial social insurance agency to start paying unemployment benefit; 01 copy shall be kept by the Service of Labor, War Invalids and Social Affairs; 01 copy shall be sent to the Job Center for consulting, offering jobs, and monitoring the job finding of the applicant, and decide whether the applicant is eligible for the unemployment benefit; and 01 copy shall be given directly to the applicant at the Job Center. The Decision to provide unemployment benefit is made according to the form No. 5 enclosed with this Circular.

Where benefit is given in a lump sum as prescribed in Clause 2 Article 23 of the Decree No. 127/2008/ND-CP the worker may apply for the lump sum payment of benefit according to the form No. 06 enclosed with this Circular; the Director of the Job Center shall determine the lump sum payment, draft the Decision on the lump sum payment of benefit, and send it to the Director of the Service of Labor, War Invalids and Social Affairs for decision; 01 copy of the Decision made by the Director of the Service of Labor, War Invalids and Social Affairs shall be sent to a provincial social insurance agency for payment; 01 copy shall be kept by the Service of Labor, War Invalids and Social Affairs; 01 copy shall be sent to the Job Center; and 01 copy shall be given to the worker. The Decision to pay benefit in a lump sum is made according to the form No. 7 enclosed with this Circular.

The order and procedure for providing unemployment benefit are guided by Vietnam Social Insurance Agency.

- Job offering and consultancy:

The registering the unemployment, the worker shall specify his needs of jobs consultancy, job offering, and vocational training in the Unemployment registration form. The Job Center shall provide the worker with consultancy and job offering free of charge when he registers his unemployment. The funding for consultancy and job offering during the unemployment benefit period is specified by the Ministry of Finance.

- Vocational training support:

+ A worker who is receiving unemployment benefit and wishes to learn a vocation shall apply for the vocational training support according to the form No. 08 enclosed with this Circular, and send it to the Job Center. A worker wishing to learn a vocation may apply for the vocational training support when he registers his unemployment.

+ The Director of the Job center shall determine the level of vocational training support, the vocational training period, the vocational training institution, draft a decision on the vocational training support, and send it to the Director of the Service of Labor, War Invalids and Social Affairs for decision. Where a worker applies for the vocational training support when he registers his unemployment, the time limit begins on the first day he receives unemployment benefit.

+ One copy of the decision made by the Director of the Service of Labor, War Invalids and Social Affairs shall be sent to a provincial social insurance agency for paying the tuition fee; 01 copy shall be kept by the Service of Labor, War Invalids and Social Affairs; 01 copy shall be sent to the Job Center for consulting and job offering jobs after the course is completed; 01 copy shall be sent to the vocational training institution; and 01 copy shall be given directly to the applicant.

The Decision to provide vocational training support is made according to the form No. 9 enclosed with this Circular.

The order and procedure for providing vocational training support are guided by Vietnam Social Insurance Agency.

c) After 02 working days from the date written in result sheet, if the worker does not come to receive the decision to provide unemployment benefit or the decision to provide vocational training support, he is considered to refuse the unemployment benefit or vocational training support. + The Job center shall request the Director of the Service of Labor, War Invalids and Social Affairs to sign and issue the decision to annul the decision to provide unemployment benefit or the decision to annul decision to provide vocational training support.

The decision to annul the decision to provide unemployment benefit is made according to the form No. 22; The decision to annul the decision to provide vocational training support is made according to the form No. 23 enclosed with this Circular.

+ 01 copy of the decision to annul the decision to provide unemployment benefit or the decision to annul the decision to provide vocational training support shall be sent to the provincial social insurance agency for suspending the payment of unemployment benefit or vocational training support, 01 copy shall be kept by Services of Labor, War Invalids and Social Affairs, 01 copy shall be sent to the Job Center, and 01 copy shall be sent to the worker.

When the decision to provide unemployment benefit is annulled, the unemployment insurance payment period of the employee shall be accumulate as prescribed in Article 21 of the Decree No. 127/2008/ND-CP.

d) Where the worker has received the decision to provide unemployment benefit but has not received unemployment benefit payment, and does not wishes to receive unemployment benefit in order to accumulate the unemployment insurance period as prescribed in Article 21 of the Decree No. 127/2008/ND-CP that worker may make an application for the withdrawal of the unemployment benefit according to the form No. 24 enclosed with this Circular. + The Job center shall draft the Decision to annul the decision to provide unemployment benefit according to the form No. 22 enclosed with this Circular, and send it to the Director of the Service of Labor, War Invalids and Social Affairs for issuance.

+ 01 copy of the decision to annul the decision to provide unemployment benefit shall be sent to the provincial social insurance agency for suspending the payment of unemployment benefit, 01 copy shall be kept by Services of Labor, War Invalids and Social Affairs, and 01 copy shall be sent to the worker.

dd) Where the unemployment insurance policies are not provided, the Job Center must reply and explain in writing according to the form No. 10 enclosed with this Circular.”

6. Article 10 is amended as follows:

“Article 10. Transferring unemployment insurance

While receiving unemployment benefit, if a worker wishes to move to another province or central-affiliated city (hereinafter referred to as province) and keep receiving unemployment benefit, he must make an application for transferring the unemployment benefit according to the form No. 11 enclosed with this Circular, and send it to the Job Center which is paying unemployment benefit. The Job Center which is paying unemployment benefit shall transfer the unemployment benefit at the request of the worker, together with the copy of the decision to provide unemployment benefit and the decision to provide vocational training support (if any); the copies of the reports on job finding, the decision to suspend and resume paying unemployment benefit (if any), and send a written notice to the provincial social insurance agency about the transfer of unemployment benefit.

Within 10 working days from the day on which the worker receives the decision on the transfer and the papers above to the new Job Center for it to request the provincial social insurance agency to keep paying unemployment benefit (together with the decision to provide unemployment benefit) and provide supports for the employee as prescribed. The Decision on transferring unemployment benefit is made according to the form No. 12 enclosed with this Circular.

The Vietnam Social Insurance Agency shall pay unemployment benefit and issue health insurance card.”

7. Clause 1 of Article 11 is amended as follows:

“1. The monthly report on job finding is specified in Clause 2 Article 34 of the Decree No. 127/2008/ND-CP, in particular:

While receiving unemployment benefit, the worker must go to the Job Center where he is drawing unemployment benefit to report his job finding, except for the following cases:

- The worker is sick or pregnant, and that sickness or pregnancy is certified by a district-level hospital or above;

- The worker has an accident, and that accident is certified by a district-level hospital or above, or by the traffic police if the accident is a road accident;

- + The worker is suffering from natural disasters or calamities, certified by the Presidents of People’s Committees of communes at the written request of the worker on benefit.

Where the worker is not able to go to the Job Center, he must send papers to the Job Center within 03 working days from the day on which the report on job finding is supposed to be sent.

The date of notice and certification of the Job Center is written in the job finding information sheet according to the form No. 25 enclosed with this Circular. The job finding information sheet shall be given to the worker when he comes to receive the decision to provide unemployment benefit.

When reporting the job finding, the worker must bring the decision to provide unemployment benefit and the information sheet above for the Job Center to verify the report. If the job finding information sheet is lost, the worker must request the Job Center to reissue it.

The report on job finding is made according to the form No. 13 enclosed with this Circular.

8. Clause 1, Clause 2 and Clause 3 of Article 17 are amended as follows:

“1. Send notices about the unemployment insurance payment to all workers every year.

2. Make social insurance books and certify the unemployment insurance payments made by workers within 05 working days from the day on which the request is received.

3. Pay monthly unemployment benefit and pay benefit in a lump sum to employees within 05 working days from the day on which the Decision made by the Director of the provincial Service of Labor, War Invalids and Social Affairs is received. Make and send notifications of the payments that are not made on time and the unemployment insurance supports that are not provided as prescribed by law to the Service of Labor, War Invalids and Social Affairs and workers, and provide explanation according to the form No. 26 enclosed with this Circular.

Issue health insurance cards and settle health insurance interests of the persons enjoying unemployment benefit.”

9. Clause 4 and Clause 7 of Article 20 are amended as follows:

“4. Protect the files of unemployment insurance participants, and provide workers with information about unemployment insurance payment after 02 working days from the day on which the workers make their requests.”

“7. Notify the local Job Center of the number of their employees on May 01st 2013 according the form No. 27 enclosed with this Circular within 30 days from that time. The organizations that are established after April 15th 2013 must notify the Job Center of the number of their employees within 30 days from the establishment date according to the form No. 27 enclosed with this Circular.

Before 25th every month, the employer must notify the local Job Center of the fluctuation in the number of their employees (from the 20th of the previous month to the 20th of the notifying month) according to the form No. 28 enclosed with this Circular.

Where an employer dismisses 50 employees or more, he must immediately notify the local Job Center for prompt consultancy and support in order to comply with law.”

10. Changing the numbers of forms enclosed with the Circular No. 32/2010/TT-BLDTBXH:

a) The form No. 11 and the form No. 12 are annulled;

b) The form No. 13 is changed into the form No. 11;

c) The form No. 14 is changed into the form No. 12;

d) The form No. 15 is changed into the form No. 13;

dd) The form No. 16 is changed into the form No. 14;

e) The form No. 17 is changed into the form No. 15;

f) The form No. 18 is changed into the form No. 16;

g) The form No. 19 is changed into the form No. 17;

h) The form No. 20 is changed into the form No. 18;

i) The form No. 21 is changed into the form No. 19;

k) The form No. 22 is changed into the form No. 20.

Article 2. Effect

1. This Circular takes effect on April 15th 2013.

2. The workers who are dismissed or have their labor contracts terminated before January 15th 2013 and have not register their unemployment by January 15th 2013, and the 7-day deadline fore unemployment registration is not expired, may register their unemployment with Job Centers within 03 months from the day on which they are dismissed or have their labor contracts terminated.

3. Where a deadline in this Circular is a holiday or a weekend, it shall be extended to the day succeeding such holiday or weekend.

Organizations and individuals are recommended to report the difficulties arising during the course of implementation to the Ministry of Labor, War Invalids and Social Affairs for guidance and settlement.

 

 

PP THE MINISTER
DEPUTY MINISTER




Nguyen Thanh Hoa

 


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