Nghị định 54/2005/ND-CP

DECREE

OF THE GOVERNMENT NO.54/2005/ND-CP DATED APRIL 19, 2005 ON THE REGIME OF SEVERANCE, REGIME OF COMPENSATION FOR TRAINING COSTS TOWARD OFFICIALS, PUBLIC EMPLOYEES

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the Ordinance on Officials, Public Employees dated February 26, 1998; the Ordinance amending, supplementing a number of Articles of the Ordinance on Officials, Public Employees dated April 28, 2000 and Ordinance amending, supplementing a number of Articles of the Ordinance on Officials, Public Employees dated April 29, 2003;

At the proposal of Minister of Home Affairs,

DECREES

Chapter 1:

GENERAL PROVISIONS

Article 1. Scope of governing

Decree stipulates regime of the employment termination, the compensation for training costs for officials and public employees in the state agencies (hereinafter referred to as agencies), administrative units of the state (hereinafter referred to as units).

Article 2. Subjects of governing

Subjects of governing in this Decree include:

1. Those who are prescribed at points b, c, đ, e and h (hereinafter collectively referred to as public employees) and those who are specified in point d (hereinafter referred to as civil servants) of clause 1 Article 1 of the Ordinance amending and supplementing a number of Articles of the Ordinance on officials and public employees dated April 29, 2003;

2. Those that are prescribed at clause 1 of Article 2 of this Decree are seconded to work in the economic organizations, social organizations, social - professional organizations.

Article 3. Principles for implementing regime of severance, compensation for training costs

When agencies and units implement the regime of severance, compensation for training costs for public servants, public employees, they must ensure the following principles:

1. Settling aspirations of employment termination of public servants and public employees as prescribed by law and using effectively cost of annual routine activities of agencies and units that are approved by the competent agency or from administrative revenues as prescribed by law;

2. Public servants, public employees who are sent (in the country and foreign countries) for training by the agencies and units that during the time of study or as returning to the agencies, units, such persons arbitrarily quit their jobs or unilaterally terminate the contracts must pay compensation for training costs;

3. Agencies, units must establish Council of considering compensation for training costs; Council of considering compensation for training costs based on seniority, dedication of public servants, public employees to determine compensation level for a part or all of the training costs calculated according to the provisions in point b, clause 2 of Article 13 of this Decree;

4. Public servants, public employees who are solved severance regime or must pay compensation for training costs may complain to the competent agencies or units under the provisions of law on complaints and denunciations or request the Court to resolve in accordance with law regulations;

When agencies and units receive complaints of public servants, public employees, it shall be responsible for replying concerned persons according to the decentralization of management and in accordance with the law regulations on complaints and denunciations;

5. Agencies, units who are competent to manage public servants and public employees shall keep records of public servants, public employees who terminated employment, those who must pay the compensation for training costs;

Agencies, units and individuals who are competent to manage records of civil servants and public employees must take responsibility as prescribed by law when make records of public servants, public employees who terminated employment, those who must pay the compensation for training costs be loosen, damaged or falsified.

Article 4. Public servants, public employees who are terminated employment due to reorganization arrangement, reduction of staffs

Public servants, public employees who are terminated employment due to reorganization arrangement, reduction of staffs according to the decisions of the competent agencies, units who are not subject to the regime of severance under the provisions of this Decree.

Chapter 2:

REGIME OF SEVERANCE

Article 5. The cases of enjoyed regime of severance of public servants, public employees

1. The officials who have application for voluntary resignation and approved in writing by the competent agencies or units.

2. Public employees who are enjoyed the regime of severance in the following cases:

a) Public employees who are recruited from July 01, 2003 apply for voluntary resignation and approved in writing by the competent agencies or units;

b) Public employees who are recruited from July 01, 2003 apply for voluntary resignation and approved in writing for termination of the employment contracts by heads of the units;

c) Public employees who are recruited from July 01, 2003 and their employment contracts expired but the heads of units do not agree to sign new contracts.

Article 6. The cases of not enjoyed regime of severance of public servants, public employees

1. Public servants, public employees who are disciplined under form of dismissal.

2. Public servants and public employees who arbitrarily quit their jobs without the consent of the competent agencies, units.

3. Public employees who are unilaterally terminate the labor contracts.

Article 7. The cases of unresolved regime of severance of public servants, public employees

1. Public servants, public employees who are being in the time of being considered for discipline or prosecuted for criminal liability.

2. Public servants, public employees who are required to pay compensation for material damages as prescribed by law.

3. The public employees who are being in one of the following cases that have not been laid off under the provisions of point c, clause 2 of Article 5 of this Decree:

a) Annual leave, leave for own business and the other cases of leave permitted by the heads of units;

b) Being sick or accident, occupational disease being treated and certified by the competent health authorities from district-level or more;

c) Being pregnancy, maternity leave, raising child under 12 (twelve) months old.

Article 8. Severance allowance

Public servants, public employees terminating employment under the provisions of this Decree, then each year of employment shall be calculated equal to 1/2 (second) of enjoyed-being salary month (the salary according to rank, scale) and the enjoyed-being allowances (if including the allowances to be paid social insurance) defined by the State; the lowest case is also enjoyed equal to 01 (one) enjoyed-being salary month and the enjoyed-being allowance (if any) defined by State.

Article 9. Working time calculated severance allowance

1. Working time calculated severance allowances for public employees specified in this Decree is the total working time (cumulated) since the decision of recruitment until the public employees have decided employment termination of the competent agencies.

Total working time includes:

a) The time actually worked at the agencies, administrative units of state;

b) The time in state-owned enterprises, the armed forces without enjoying the severance allowance or are not enjoyed the demobilization regimes;

c) The time signed labor contracts by the agencies, units;

d) The time sent for training, improving by the agencies, units;

đ) Time off under the provisions of Articles 73, 74, 75 and Article 78 of the Labor Code;

e) Time off to treat with certificates of competent health agencies from district level upwards and this time is enjoyed social insurance allowance;

g) Time for maternity leave as prescribed in clause 1 of Article 144 and clause 1 of Article 117 of the Labor Code;

h) Time being disciplined or prosecuted for criminal liability which was concluded as victim of an injustice by competent agencies, organizations as prescribed in Article 45 of the Ordinance on Officials and public employees;

i) Time suspended work under the provisions of Article 41 of the Ordinance on Officials and public employees;

k) Time to execute the penalty according to the sentence or decision of the Court (in case of enjoyed suspended sentence, non-custodial re-education) and during this time they are arranged to work by agencies, units.

2. Working time calculated severance allowances for public employees specified in this Decree:

a) The public employees who are recruited before July 01, 2003: means the total working time (cumulated) since the decision to recruit until the public employees receive the decision of employment termination of the competent agencies, organizations;

Total working time includes the time specified in points a, b, c, d, đ, e, g, h, i and k, clause 1 of Article 9 of this Decree;

b) The public employees who are recruited from July 01, 2003: The total working time under the working contracts (cumulated) in that units until they receive the decision of employment termination of the competent agencies or units.

Total working time includes:

- Time of actual working of public employees under the working contract in the units where the public employees dismissed by the competent agencies and units;

- Time to participate in the armed forces of the time that public employees working under the working contracts in the units where the public employees dismissed by the competent agencies and units but this time has not been yet paid severance or has not been yet enjoyed the demobilization regime;

- Time specified in points d, đ, e, g, h, i and j, clause 1 of Article 9 of this Decree of the working time under the working contract in the places where public employees are dismissed by the competent agencies or units.

3. Working time to calculate the severance allowance specified in Article 9 of this Decree is the time with paying social insurance in the agencies, units of the State.

4. Method to calculate working time for the odd months are stipulated as follows:

a) From 01 (one) month to less than 07 (seven) months shall be calculated in half (second) of working year;

b) From full 07 (seven) months to 12 (twelve) months shall be calculated equal to 01 (a) working year.

Article 10. Expenditures for paying the severance allowance

Expenditures for paying the severance allowance is defined as follows:

1. In the state agencies, funding sources to pay severance allowances for public servants taken from regularly operating costs which have been assigned by competent agencies annually by the ministries, ministerial-level agencies, Governmental agencies, the People's Committees of provinces and centrally-run cities;

2. In the administrative units of the state:

a) Administrative units are granted expenditures for all regular activities by the state budget; administrative units with income self-covering a part of cost of regular activities, the funding source to pay severance allowances shall be taken in regularly operating expenditures of the units, including operating expenditures assigned by the competent agencies and income from administrative activities in accordance with law regulations;

b) Administrative units with income self-covering cost of regular activities, the funding source to pay severance allowances shall be taken in regularly operating expenditures of the units.

Article 11. Other regimes

1. Public servants, public employees who terminate employment are enjoyed severance allowance as prescribed in Article 8 of this Decree, are enjoyed social allowance, social insurance and other benefits as prescribed by law.

2. Public servants and public employees who terminate employment as prescribed in Article 5 of this Decree shall be assisted, registered population, and created conditions for living by the local government.

Chapter 3:

COMPENSATION REGIME FOR TRAINING COSTS

Article 12. The cases required public servants, public employees to pay compensation for training costs

1. After public servants, public employees were sent for training that their time of service as required prescribed in clause 2 of Article 13 of this Decree is not up but they arbitrarily quit their jobs or unilaterally terminate the working contracts.

2. Public servants, public employees who are in the time being sent out for training arbitrarily quit their jobs or unilaterally terminate the working contracts.

Article 13. The training costs calculated for compensation and method to calculate compensation costs

1. The training costs calculated for compensation include: expenses for training courses (including travel costs) calculated by each person to be trained with time from 03 (three) months or more from State budget, from official financial aid from foreign countries to Vietnam, from funding of the agencies and units.

2. The method to calculate compensation costs:

a) For public servants, public employees who are being in the time being sent out for training but they arbitrarily quit their jobs or unilaterally terminate the working contracts or returned to the agencies or units but they arbitrarily quit their jobs or unilaterally terminate the working contracts right away, they must pay compensation for the full training costs of such training course.

b) For other cases, compensation expenses are calculated as follows:

Based on the time required to serve and the time that public servants, public employees work continuously at the agencies, units after completion of training course and the total costs of training course to calculate the level of compensation as follows:

In which: Time required to serve is stipulated threefold compared to the time of the training course.

Article 14. Council of considering compensation for training costs and procedures for considering compensation

1. Council of considering compensation for training costs shall be decided to establish by the heads of agencies and units. The Council has 05 members including:

a) The heads of agencies, units or deputy heads of agencies, units are the Chairmen of the Council;

b) Representatives of leaders of the trade union organization at the same level or trade union’s representatives of agencies, units as the members;

c) The persons who are in charge of training and improving work of public servants and public employees of the departments of organization and personnel of agencies, units as the members;

d) Persons who are in charge of the finance - accounting departments of the agencies, units as the members;

đ) Persons who are direct in charge of the agencies or units of the person required to pay compensation as the members;

The Council works on the principle of collective voting by majority. The Council conducts the meetings to consider only when having all the council’s members.

2. Process of considering compensation for training costs is done in the following order:
Chairman of the Council announces the participants, appoints secretary;

The person who is in charge of training and improving work of the personnel and organization department reports the contents related to the compensation and the provisions on compensation regime;

Person who is in charge of the finance - accounting department reports the level of compensation under clause 2 Article 13 of this Decree;

Person who is direct in charge of the agency or unit of the person required to pay compensation reports the process of working of the person required to pay compensation;

The Council discusses and ballot on the level of compensation after based on the provisions in clause 3 of Article 3 of this Decree. Recommendation of the Council’s compensation level is made in writing to request the competent agency, unit, or head of administrative unit of the State to decide;

The Council shall dissolve by its own after its completion of task.

Article 15. Recovery of compensation costs

1. The person who must pay compensation for training costs is responsible for paying the amount required to pay compensation to the finance - accounting department of agency, unit within 03 (three) months from the decision of the competent agency, unit.

2. Cost of training compensation is settled as follows:

a) For state agencies, administrative units granted by the state budget the full cost of regular activities, the cost of training compensation shall be paid into the state budget;

b) For administrative units with collection covering regularly-operating costs;

Administrative units with collection covering a part of the regularly-operating costs, the cost of training compensation shall be decided by the administrative units in balancing revenues and expenditures to implement the training activities of the units as prescribed by law.

3. Where person who must pay compensation for training costs does not pay the amount as prescribed in clause 1 of this Article, the agency, unit shall not conduct procedures to return insurance book and shall not confirm the other necessary documents, and may request the Court to settle.

Chapter 4:

IMPLEMENTATION PROVISIONS

Article 16. Effect

1. This Decree takes effect 15 days from the date of its publication in the Official Gazette.

2. This Decree replaces Decree No.96/1998/ND-CP dated November 17, 1998 of the Government on employment termination regime for officials, public employees.

Article 17. Responsibility for guiding implementation

1. Minister of Home Affairs is responsible for guiding the implementation of this Decree.

2. Minister of Finance is responsible for guiding the management, use, and settlement of funds to pay for severance and funds from recovery of compensation of training costs.

3. Competent agencies of political organizations, political - social organizations based on the provisions of this Decree to guide application for agencies and units of political organizations, political - social organizations.

Article 18. Responsibility for implementation

The ministers, heads of ministerial-level agencies, heads of governmental agencies, Presidents of People’s Committees of provinces and centrally-run cities are responsible for the implementation of this Decree.