Thông tư 30/2013/TT-BLDTBXH

CIRCULAR

GUIDELINES FOR SOME ARTICLES OF THE GOVERNMENT'S DECREE NO. 44/2013/ND-CP DATED MAY 10, 2013 ON GUIDELINES FOR SOME ARTICLES ON EMPLOYMENT CONTRACTS OF THE LABOR CODE

Pursuant to the Government's Decree No. 106/2012/ND-CP dated December 20, 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. 44/2013/ND-CP dated May 10, 2013 on guidelines for some Articles on employment contracts of the Labor Code;

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

The Ministry of Labor, War Invalids and Social Affairs promulgates a Circular to provide guidelines for some Articles of the Government's Decree No. 44/2013/ND-CP dated May 10, 2013 on guidelines for some Articles on employment contracts of the Labor Code,

SECTION 1. GENERAL PROVISIONS

Article 1. Scope

This Circular provides guidelines for participation in compulsory social insurance, compulsory health insurance, and unemployment insurance by employees who conclude employment contracts with multiple employers; contents of employment contracts with employees hired as Directors of State-invested enterprises; procedures for invalidating employment contracts of employment inspectors and invalidation of employment contracts under the Government's Decree No. 44/2013/ND-CP dated May 10, 2013 on guidelines for some Articles on employment contracts of the Labor Code (hereinafter referred to as Decree No. 44/2013/ND-CP) .

Article 2. Regulated entities

1. Employees defined in Clause 1 Article 3 of the Labor Code.

2. Employers defined in Clause 2 Article 3 of the Labor Code.

3. Organizations and individuals relevant to the issues mentioned in Article 1 of this Circular.

SECTION 2. PARTICIPATION IN COMPULSORY SOCIAL INSURANCE, COMPULSORY HEALTH INSURANCE, AND UNEMPLOYMENT INSURANCE BY EMPLOYEES WHO CONCLUDE EMPLOYMENT CONTRACTS WITH MULTIPLE EMPLOYERS;

Article 3. First employment contract and next employment contract

1. The first employment contract under which the employer and employee have the responsibility to participate in compulsory social insurance and unemployment insurance prescribed in Point a Clause 1 Article 4 of Decree No. 44/2013/ND-CP is the employment contract that was the first to be concluded among the employment contracts concluded by the employee.

2. The next employment contract under which the employer and employee have the responsibility to participate in compulsory social insurance and unemployment insurance prescribed in Point b Clause 1 Article 4 of Decree No. 44/2013/ND-CP is the employment contract that was concluded right after the expiration or change of the employment contract under which the employer and employee are participating in compulsory social insurance and unemployment insurance.

Article 4. Notification of employee upon conclusion of a new employment contract, revision, or termination of an existing employment contract.

1. Within 05 working days from the conclusion of the new employment contract, revision, or termination of an existing employment contract, the employee has the responsibility to send a written notification together with a copy of the new employment contract, the revised employment contract, or the terminated employment contract to the employers with whom the employee concluded other contracts. The notification form is provided in Appendix 01 enclosed herewith.

2. Within 30 days from the date of conclusion of the new employment contract, expiration or change of the existing employment contract that changes the responsibility to participate in compulsory social insurance, unemployment insurance, compulsory health insurance of the employer and employee, the employee must send documents to request the employer of such employment contract to participate in compulsory social insurance, unemployment insurance, and compulsory health insurance as prescribed.

The documents include:

a) A written request for participation in compulsory social insurance, unemployment insurance, compulsory health insurance (the form is provided in Appendix 02 enclosed with this Circular);

b) Social insurance book and relevant documents (if any) sent to the employer under the next employment contract as prescribed in Point b Clause 1 Article 4 of Decree No. 44/2013/ND-CP if the responsibility to participate in compulsory social insurance and unemployment insurance is changed;

c) The health insurance card and relevant documents (if any) sent to the employer under the employment contract that has the highest wage among the other contracts as prescribed in Point b Clause 2 Article 4 of Decree No. 44/2013/ND-CP if the responsibility to participate in compulsory health insurance is changed.

Article 5. Notification of the employer when the employee has an occupational accident or occupational disease

When the employee has an occupational accident or occupational disease, the employer has to send a notification of the employee’s health condition to the employers under other employment contracts as prescribed in Clause 1 and Point d Clause 2 Article 5 of Decree No. 44/2013/ND-CP The notification form is provided in Appendix 03 enclosed herewith.

Section 3. CONTENTS OF EMPLOYMENT CONTRACTS WITH EMPLOYEES HIRED AS DIRECTORS OF STATE-INVESTED ENTERPRISES

Article 6. Addresses of wholly state-owned enterprises

The address of a wholly state-owned enterprise prescribed in Clause 1 Article 6 of Decree No. 44/2013/ND-CP is the address of its headquarter according to its Certificate of Business registration.

Article 7. Addresses of residences and other legal documents of foreigners hired as directors

The addresses of residences and other legal documents of a foreigner hired as a director as prescribed in Clause 2 Article 6 of Decree No. 44/2013/ND-CP are:

1. Addresses of the residence in Vietnam and the overseas residence.

2. Other legal documents include: copy of the passport, work permit issued by a competent authority, and relevant documents (if any).

Article 8. Duration of employment contracts with foreigners hired as a directors

The duration of an employment contract with a foreigner hired as a director is from 12 to 36 months as determined by both parties. Nevertheless, the duration must not exceed the duration of the work permit issued by a competent authority.

Article 9. Extension of employment contract

The employer and the hired director may reach a consensus on extension of the employment contract by making an appendix to the employment contract. This extension must not exceed 12 months. After this period, both parties must conclude a new employment contract.  The extension of employment contract with a foreigner hired as a director must not exceed the duration of the duration of the work permit issued by a competent authority.

Section 4. PROCEDURES FOR INVALIDATION OF EMPLOYMENT CONTRACTS BY EMPLOYMENT INSPECTORS

Article 10. Record on illegitimate employment contract

1. The chief of the inspectorate, inspectors, or persons appointed as inspectors shall make records on illegitimate employment contract (the form is provided in Appendix 04 of this Circular).

2. If multiple employment contracts have the same violation(s), the chief of the inspectorate, inspectors, or persons appointed as inspectors shall make enclose a list of such employment contract with the record.

Article 11. Inspecting revision of illegitimate employment contract

Upon expiration of the time limit for revision of employment contract prescribed in Clause 2 Article 9 of Decree No. 44/2013/ND-CP the chief of the inspectorate, inspector, or person appointed as an inspector who made the record of illegitimate contract shall inspect the its revision.

Article 12. Decision on invalidation of employment contract

1. Chief Inspector of Department of Labor, War Invalids and Social Affairs of the province where the record on illegitimate employment contract shall issue a decision on partial invalidation of the employment contract (the form provided in Appendix 05) or a decision on complete invalidation of the employment contract (the form provided in Appendix 06).

2. If multiple employment contract has the same violation(s), Chief Inspector of Department of Labor, War Invalids and Social Affairs shall issue a decision on partial or complete invalidation of the employment contract and enclose a list of the employment contracts that are partially or completely invalidated.

3. The decision on invalidation of employment contract must be sent to the employer, the employee (or every employee if the employment contract is signed with a group of employees), the internal union committee (or superior union committee if an internal union is not established), the People’s Committee of the district where the enterprise’s headquarter, business location, or branch is located.

Section 5. INVALIDATION OF EMPLOYMENT CONTRACT

Article 13. Refund of difference between agreed wage and wage under invalidated employment contract

The refund of difference between agreed wage and wage under invalidated employment contract prescribed in Clause 2 Article 10 of Decree No. 44/2013/ND-CP is determined as follows:

M_HT = (M_TL2 - M_TL1) x t

Where:

- M_HT: Refund of difference between agreed wage and wage under invalidated employment contract

- M_TL1: Monthly wage (including wage, allowances and other benefits) agreed by both parties in the invalidated employment contract;

- M_TL2: Monthly wage (including wage, allowances and other benefits) in the contract after both parties reaches a new agreement;

If the wage in the employment contract is paid under another method, it must be converted into monthly wage.

- t: Number of months over which the employee works for the employer for the wage written on the invalidated employment contract from the time of invalidation backwards. If the number of working months is over 12, the maximum refund is 12 months’ wage. A partial month that has fewer than 15 days shall be rounded down to 0; a partial month that has 15 days or more shall be rounded up to 01 month.

Article 14. Complete invalidation of employment contract because it is signed ultra vires

1. The persons that sign employment contracts ultra vires prescribed in Clause 1 Article 11 of Decree No. 44/2013/ND-CP are any person other than:

a) Employer’s side:

- The enterprise’s legal representative according to the enterprise’s charter or authorized representative of the enterprise operating under the Law on Enterprises;

- The legal representative according to the charter of the cooperative, group of cooperatives, or person authorized by the legal representative as representative of the cooperative, group of cooperatives operating under the Law on Cooperatives;

- The head of a regulatory agency, public service agency, political organization, socio-political organization that hire employees under employment contracts or a person authorized by the head;

- The head of an agency, organization, branch, or representative office of a foreign or international organization in Vietnam or a person authorized by the head;

- The owner or representative of the household that hires the employee;

- The person who directly hires the employee.

b) Employee’s side:

- The employee who is 18 years of age or older;

- The employee aged 15 – 18 who has a written agreement of his/her legal representative;

- The representative of the employee aged below 15 who has the agreement of employee;

- The employee authorized by a group of employees to conclude the employment contract which is enclosed with the list of authorizing employees, including their names, ages, genders, permanent residences, occupations, and signatures.

2. Within 15 days from the receipt of the decision on complete invalidation of the employment contract because it is concluded ultra vires, the People’s Committee of the district where the enterprise’s headquarter, business location, or branch shall request the Division of Labor, War Invalids and Social Affairs of the district to instruct the employer and the employee to sign another employment contract within their competence.

3. Contents of the re-concluded employment contract is the terms and conditions agreed by the employer and employee in the invalidated employment contract, unless otherwise agreed by both parties.

4. The re-concluded employment contract that is signed lawfully shall come into force from the day on which it is signed.

5. Benefits of each party over the period from the time the employee starts to work under the invalidated employment contract to the time of re-conclusion of the employment contract shall comply with terms and conditions of the invalidated employment contract.

Benefits of each party over the period from the date the employee starts to work under the invalidated employment contract to the date of re-conclusion of the employment contract is considered working period which is the basis for providing benefits under regulations of law on employment.

Article 15. Responsibility of employer to employee in case the employment contract is not re-concluded after it is completely invalidated because the works are prohibited by law

1. The employer has the responsibility to pay the employee an amount agreed by both parties. The minimum amount is the minimum region-based monthly wage for each working year depending on the location where the employer’s business premises, unit, or branch where the employee works is situated. Minimum region-based monthly wage is the level announced by the government at the time of issuance of the decision on complete invalidation of the employment contract. Working period of the employee is the period of working under the invalidated employment contract. The period of probation, apprenticeship, internment at a enterprise or organization, learning period; paid leave period under the Law on Social insurance, other paid leave according to Clause 1 Article 116 of the Labor Code, unpaid leave permitted by the employer, leave serving union operation according to regulations of law on trade union, work suspension period that is not on account of the employee, work suspension period and detention period after which the employee continues working because of exoneration are consider period of working for the employer.

Actual working period of the employee is expressed as years. A partial year that has fewer than 06 months shall be rounded up to ½ year; a partial year that has 06 months or more shall be rounded up to 01 year.

2. In case the employee used to work for the employer for 12 months or longer under previous employment contracts and has not received severance pay or redundancy pay from the employer, in addition to the amounts paid to the employee mentioned in Clause 1 of this Article, the employer must provide severance pay on period the employee works for the employer under previous employment contracts.

The wage that is the basis for calculation of severance pay is the average wage of 06 months before termination of the employment contract that precedes the invalidated employment contract. In case the average wage of 06 months before termination of the employment contract that precedes the invalidated employment contract is lower than the region-based minimum wage announced by the government at the time of complete invalidation of the employment contract, the region-based minimum wage shall apply.

Article 16. Rights and benefits of employee over the period of working under the invalidated employment contract before a new employment contract is concluded

1. Rights and benefits of employee over the period from the beginning of work under the invalidated employment contract to the date of conclusion of a new employment contract:

a) If the employee’s rights and benefits under the completely invalidated employment contract are not lower than those prescribed by regulations of law on employment, labor regulations, or collective bargaining agreement (if any), rights and benefits of each party in the invalidated employment contract shall apply.

b) If the employee’s rights and benefits under the completely invalidated employment contract are lower than those prescribed by regulations of law on employment, labor regulations, or collective bargaining agreement (if any), rights and benefits of each party shall comply with labor regulations, collective bargaining agreement, and regulations of law on employment. If the wage under the invalidated contract is lower than that prescribed by regulations of law on employment, labor regulations, or collective bargaining agreement, the employer has the responsibility to pay the difference to the employee as prescribed in Article 13 of this Circular.

2. The period from the date the employee starts to work under the invalidated employment contract to the date of conclusion of the new employment contract is considered working period which is the basis for providing benefits under regulations of law on employment.

SECTION 6. IMPLEMENTATION

Article 17. Effect

1. This Circular comes into force from December 10, 2013.

Regulations of this Circular are applicable from June 01, 2013.

2. This Circular replaces Circular No. 21/2003/TT-BLDTBXH dated September 22, 2003 on guidelines for some Articles on employment contract of Decree No. 44/2013/ND-CP; Circular No. 17/2009/TT-BLDTBXH dated May 26, 2009 on amendments to Circular No. 21/2003/TT-BLDTBXH.

3. Employment contracts with hired directors of state-invested enterprises that are concluded against this Circular shall be revised by the employers and employees in accordance with this Circular.

Article 18. Responsibility for implementation

Ministers, Heads of ministerial agencies, Heads of Governmental agencies, President of the People’s Committees of provinces are responsible for providing guidance and supervising other agencies, organizations, and enterprises implementing this Circular.

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