Circular No. 01/1997/TT-LDTBXH guiding procedures and steps for imposing administrative penalties on violations of labor laws, the collection and use of fines, and the handling of complaints regarding administrative penalties for labor law violations.

CIRCULAR

Guidelines for procedures and sequences of administrative penalties, collection and use of fines for violations of labor laws; handling complaints regarding administrative penalties for violations of labor laws

ADJUSTMENT handling complaints regarding administrative penalties for violations of labor laws

handling administrative penalties for violations of labor laws

___________________

Based on Decree No. 96/CP dated December 17, 1993 of the Government stipulating functions, tasks, authorities, and organizational structure of the Ministry of Labor, Invalids and Social Affairs;

Based on Decree No. 38/CP dated June 25, 1996 of the Government stipulating administrative penalties for violations of labor laws;

The Ministry of Labor, Invalids and Social Affairs provides guidelines for procedures and sequences of administrative penalties, collection and use of fines for violations of labor laws; handling complaints regarding administrative penalties for violations of labor laws as follows:

I. GENERAL PROVISIONS

The authority having the power to impose penalties when handling administrative violations concerning labor laws must base their decisions on specific penalty levels set out in Decree No. 38/CP dated June 25, 1996 of the Government to determine the correct level of penalty, while guiding organizations and individuals subject to penalties to implement the penalty decision in accordance with regulations.

II. PROCEDURES AND SEQUENCES OF ADMINISTRATIVE PENALTIES

1. Preparing the Administrative Violation Record concerning labor laws

Labor inspectors at all levels, when conducting regular or surprise inspections, if they discover violations of labor laws (except cases handled through simplified procedures), must promptly prepare an Administrative Violation Record concerning labor laws according to a unified model of the Ministry of Labor, Invalids and Social Affairs (attached record form in this Circular).

Once completed, the record must be handed over to the individual or organization that violated the law one copy, and if the person preparing the record does not have the authority to impose penalties, they must send the record to the person with such authority.

In case the representative of the organization or individual who violated the law intentionally refuses to sign the Administrative Violation Record concerning labor laws, the person preparing the record must clearly note the reason, and the record still has legal validity if there is sufficient evidence proving that the individual (or organization) committed a violation of labor laws.

2. Issuing the Penalty Decision

Within fifteen days from the date of preparing the Administrative Violation Record concerning labor laws, the authority must issue the penalty decision. If there are many complex circumstances or the record needs to be transferred to the competent authority to impose penalties, the above period may be extended but shall not exceed thirty days.

When handling violations of labor laws, the authority imposing penalties (as stipulated in Article 22 of Decree No. 38/CP dated June 25, 1996 of the Government) must base their decision on the degree of violation recorded in the Administrative Violation Record concerning labor laws to issue a penalty decision in writing. The penalty decision is made in three copies:

- One copy is given to the organization or individual subject to the penalty;

- One copy is given to the State Treasury to collect the fine;

- One copy is kept at the office of the authority issuing the penalty decision.

For penalty decisions involving fines of 2,000,000 dong or more, an additional copy must be sent to the People's Procuracy at the same level.

In cases where the provincial labor inspection agency is authorized to monitor the implementation of the penalty decision, the authority issuing the penalty decision must clearly state this in the penalty decision and make an additional copy of the penalty decision to send to the authorized provincial labor inspection agency.

The administrative penalty decision for violations of labor laws uses a unified national model (attached decision form in this Circular).

Labor inspectors within their authority must base their decision on the degree of violation recorded in the Administrative Violation Record concerning labor laws to issue a penalty decision.

In cases where the penalty exceeds their authority, the labor inspector must immediately transfer the penalty file including: the Administrative Violation Record concerning labor laws; the document requesting application of the fine amount to the competent authority to impose penalties corresponding to the level of the fine and proceed as follows:

- Labor inspectors of the Department of Labor, Invalids and Social Affairs transfer the penalty file to the Chief Inspector of the Department of Labor, Invalids and Social Affairs or the Chairman of the People's Committee at the district level or the Chairman of the People's Committee at the provincial level for consideration and issuance of the penalty decision.

- Labor inspectors of the Ministry of Labor, Invalids and Social Affairs transfer the penalty file to the Chief Inspector of the Department of Labor, Invalids and Social Affairs or the Chairman of the People's Committee at the district level or the Chairman of the People's Committee at the provincial level for consideration and issuance of the penalty decision.

3. Collection, Use of Fines and Handling Cases of Non-payment of Fines or Lack of Bank Account Opening

The collection, use of fines and handling cases of non-payment of fines or lack of bank account opening for violations of labor laws are carried out according to Circular No. 52/CSTC dated September 12, 1996 of the Ministry of Finance.

III. HANDLING COMPLAINTS AND REPORTS

1. Handling Complaints

a) Complaints of organizations or individuals subject to penalties (collectively referred to as the penalized party) against the penalty decision of labor inspectors at the departmental or ministerial level, the Chief Inspector of Labor at the departmental level, the head responsible for labor inspection at the departmental level, or the Chairman of the People's Committee at the district level (collectively referred to as the penalizing party) are handled as follows:

- Within ten days from the date of receiving the penalty decision, the penalized party has the right to complain to the person who issued the penalty decision but must still comply with the penalty decision.

- Within fifteen days from the date of receiving the complaint, the penalizing party has the responsibility to resolve the complaint and respond in writing to the complainant. If the complainant disagrees with the resolution of the complaint, they have the right:

+ Or within three days from the date of receipt of the decision on the complaint resolution, the complainant may appeal to the immediate superior of the person who resolved the complaint. The immediate superior of a labor inspector at the provincial level is the Chief Inspector of Labor, the head responsible for Labor Inspection of the Department of Labor, Invalids and Social Affairs; of a labor inspector at the ministerial level is the Chief Inspector of Labor, the head responsible for Labor Inspection of the Ministry of Labor, Invalids and Social Affairs; of the Chief Inspector of Labor at the provincial level, the head responsible for Labor Inspection of the provincial department is the Director of the Department of Labor, Invalids and Social Affairs; of the Chairman of the People's Committee at the district level is the Chairman of the People's Committee at the provincial level. Within twenty days from the date of receipt of the complaint, the immediate superior of the person who resolved the complaint shall be responsible for resolving it and replying in writing to the complainant. The above-mentioned decision on the resolution of complaints is the final decision.

+ Or within thirty days from the date of receipt of the decision on the resolution of complaints, the complainant may file a lawsuit with the Administrative Court of the People's Court to resolve according to the Ordinance on the Procedure for Resolving Administrative Cases.

b) Complaints against decisions on penalties issued by the Chief Inspector of Labor at the ministerial level, the head responsible for Labor Inspection of the Ministry, and the Chairman of the People's Committee at the provincial level shall be resolved as follows:

- Within ten days from the date of receipt of the penalty decision, the person penalized has the right to lodge a complaint with the person who issued the penalty decision, but must still comply with the penalty decision.

- Within fifteen days from the date of receipt of the complaint, the person imposing the penalty shall be responsible for resolving it and replying in writing to the complainant. If the complainant disagrees with the decision on the resolution of the complaint, they have the right:

+ Or within three days from the date of receipt of the decision on the resolution of complaints, to appeal to the Minister of Labor, Invalids and Social Affairs. The Minister of Labor, Invalids and Social Affairs, within thirty days from the date of receipt of the complaint, shall be responsible for reviewing, concluding, and replying in writing to the complainant. If the conclusion of the Minister of Labor, Invalids and Social Affairs differs from the decision on the resolution of the complaint of the Chief Inspector of Labor, the head responsible for Labor Inspection of the Ministry of Labor, Invalids and Social Affairs, then the Chief Inspector of Labor, the head responsible for labor inspection, within seven days from the date of receipt of the conclusion, must change their decision according to the conclusion of the Minister. This decision is the final decision. In case the conclusion of the Minister of Labor, Invalids and Social Affairs differs from the decision on the resolution of the complaint of the Chairman of the People's Committee at the provincial level, if the Chairman of the People's Committee at the provincial level agrees, within seven days from the date of receipt of the conclusion, must change their decision according to the conclusion of the Minister of Labor, Invalids and Social Affairs, if not agreeing, then they have the right to appeal to the State Inspector General. The decision of the State Inspector General is the final decision.

+ Or file a lawsuit with the Administrative Court of the People's Court to resolve according to the Ordinance on the Procedure for Resolving Administrative Cases.

2. Handling appeals

Appeals regarding illegal acts of persons authorized to handle administrative violations concerning labor laws shall be examined and resolved by the immediate superior of the person authorized to handle such violations.

Within fifteen days, in complex cases not exceeding thirty days from the date of receipt of the appeal, the immediate superior must examine and resolve it and reply in writing.

Example 1:

Citizen A filed an appeal against Mr. Chairman of the People's Committee of District X with the following content: When he received the record of Enterprise X violating labor laws and the proposal for applying fines from the labor inspector, he delayed and did not issue a fine decision for Enterprise C within the prescribed time.

Citizen A's appeal falls under the responsibility of the Chairman of the People's Committee at the provincial level.

Example 2:

Citizen B reported Labor Inspector of Province Z for failing to establish an administrative violation record when discovering that Enterprise D had falsely reported a workplace accident (as stipulated in Article 108 of the Labor Code).

This report falls under the jurisdiction of the Chief Inspector of Labor of Province Z.

This Circular takes effect from the date of signature.

SOCIALIST REPUBLIC OF VIETNAM

Independence - Freedom - Happiness

..., day month year 199...

RECORD

ADMINISTRATIVE VIOLATIONS OF LABOR LAWS

Today, at... hours on... day... month... year 199...

At:...

We include:

- Representative of the party drafting the record:

Full name:…

Position:…

Mr./Mrs.…(4)…Ethnicity (Nationality)…

- Representative of the violator:

Full name:…

Position:…

Mr./Mrs.…(4)…Ethnicity (Nationality)…

Draft the following record of events:

.................................................................

.................................................................

.................................................................

.................................................................

.................................................................

.................................................................

Mr./Ms. (or organization)...has violated the provisions at:

- Article... Clause... Point... of the Labor Code (or Circular number... guiding the implementation of the Labor Code)

- Article... Clause... Point... of the Labor Code (or Circular number... guiding the implementation of the Labor Code)

- Article... Clause... Point... of the Labor Code (or Circular number... guiding the implementation of the Labor Code)

Under the circumstances:

.................................................................

.................................................................

.................................................................

.................................................................

The record is drafted into... copies with identical content and value, the violator keeps one copy.

Mr./Ms. (or representative of the organization) Representative of the party drafting the record

violator (Sign name, write full name)

(Signature, full name)

SOCIALIST REPUBLIC OF VIETNAM

Independence - Freedom - Happiness

Number: /QĐ ..., day month year 199...

Pursuant to …;
ADMINISTRATIVE PENALTY FOR VIOLATION OF LABOR LAWS
VIOLATION OF LABOR LAWS

- Based on the Labor Code dated June 23, 1994;

- Based on the Ordinance on the Handling of Administrative Violations dated July 6, 1995 of the Standing Committee of the National Assembly;

- Based on Decree No. 38/CP dated June 25, 1996 of the Government on the handling of administrative penalties for violations of labor laws;

- Based on the administrative violation record concerning labor laws, dated / /199...;

Considering the nature and circumstances of the administrative violation,

I:...

Position:…

Mr./Mrs.…(4)…Ethnicity (Nationality)…

Pursuant to …;

Article 1: Imposing administrative penalties on Mr./Ms. (or organization):

+ Address:...

+ Occupation:...

For having committed the following violations:

1-...as stipulated in Article... Clause... Point... of Decree No. 38/CP of the Government dated June 25, 1996.

2-...as stipulated in Article... Clause... Point... of Decree No. 38/CP of the Government dated June 25, 1996.

3-...as stipulated in Article... Clause... Point... of Decree No. 38/CP of the Government dated June 25, 1996.

These violations have mitigating or aggravating circumstances:

+

+

+

+

The total amount of the administrative penalty is:...Written in words:...Additional penalties:...Measures to remedy consequences (if any):...

Article 2:...shall be responsible for paying the fine to the State Treasury Office at...and strictly comply with the forms of punishment and other measures stipulated in Article 1 of this Decision. Within five days from the date of receiving the penalty decision, if...does not voluntarily comply with this penalty decision, enforcement will be carried out compulsorily.

...has the right to lodge a complaint with:...within ten days from the date of receipt of the penalty decision.

Article 3: This Decision takes effect from the...day of...month of 199....

Issuer of the decision

(Sign and write full name)