Circular No. 05/LDTBXH-TT guiding administrative penalties for failing to enter into labor contracts as stipulated in Decrees No. 87/CP dated December 12, 1995, and No. 88/CP dated December 14, 1995.

CIRCULAR

MINISTRY OF LABOR - INVALIDS AND SOCIAL AFFAIRS

Guidelines for administrative penalties for failing to enter into labor contracts as prescribed in Decree No. 87/CP dated December 12, 1995 and Decree No. 88/CP dated December 14, 1995 of the Government

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Pursuant to Decree No. 87/CP dated December 12, 1995 of the Government on strengthening management of cultural activities and cultural services, and promoting eradication of serious social evils, and Decree No. 88/CP dated December 14, 1995 of the Government on administrative penalties for violations in cultural activities, cultural services, and prevention of certain social evils, the Ministry of Labor, Invalids and Social Affairs provides guidelines for administrative penalties for failing to enter into labor contracts as follows:

I. SUBJECTS OF PENALTY:

The subjects of penalty apply to employers of establishments: dance halls, karaoke venues, massage services, hotels, guesthouses, convalescent homes, rented apartments, dormitories, restaurants, coffee shops, refreshment shops employing dancers, waitresses, staff (hereinafter referred to collectively as workers) without entering into written labor contracts.

II. VIOLATIONS AND AMOUNT OF PENALTY:

Violations and amounts of penalty according to Article 4; Point c Clause 3 Article 15 and Clause 2 Article 22 of Decree No. 88/CP dated December 14, 1995 of the Government are specified as follows:

1. For dance halls:

a) A fine of VND 3,200,000 shall be imposed on employers who do not enter into written labor contracts with workers.

b) If the above violations have mitigating circumstances, the amount of the fine may be reduced but not less than VND 1,500,000; if there are aggravating circumstances, the amount of the fine may be increased but not more than VND 5,000,000.

2. For other establishments:

a) A fine of VND 3,500,000 shall be imposed on employers who do not enter into written labor contracts with workers.

b) If the above violations have mitigating circumstances, the amount of the fine may be reduced but not less than VND 2,000,000; if there are aggravating circumstances, the amount of the fine may be increased but not more than VND 5,000,000.

3. A fine of between VND 400,000 and VND 600,000 shall be imposed on employers at establishments stipulated in this Circular who fail to register and report the use of labor to the District, County, City Town, Provincial City Labor - Invalids and Social Affairs Office (collectively referred to as the district level).

4. The following circumstances are considered mitigating:

a) First-time violation;

b) Sincere admission of fault and immediate correction of the fault.

5. The following circumstances are considered aggravating:

a) Repeated violation from the second time onwards or recidivism;

b) Multiple violations;

c) Exploiting positions or powers to commit violations;

d) Employment of workers under 18 years old;

đ) Violation during the period of enforcement of a decision on handling labor law violations;

e) After the violation, there is an attempt to evade or conceal the violation;

g) Non-compliance with decisions of the State Inspectorate regarding labor.

III. INSPECTION PROCEDURES AND PENALTY PROCEDURES:

1. The inspection of labor at establishments stipulated in Part I of this Circular shall be carried out in accordance with Articles 29, 30, 31, 32, and 33 of the Inspection Law dated April 1, 1990.

The penalty file includes:

- Inspection record established in accordance with the Inspection Law dated April 1, 1990;

- Inspection conclusion of the inspection team;

- Decision on penalty issued by the competent authority.

The file shall be made in three copies sent to the violator; the National Treasury and retained at the penalty issuing agency.

2. Penalty procedures:

The competent authority imposing penalties, upon discovering a violation, issues a Decision on Penalty accompanied by the file. If the person lacks the authority to impose penalties, they shall prepare a record and recommend to the competent authority to issue a Decision on Penalty accompanied by the file.

Collection and use of fines shall be implemented in accordance with general legal provisions.

IV. AUTHORITY TO IMPOSE PENALTIES:

1. The Chief Inspector or the Deputy Head responsible for the labor inspection function within the Ministry of Labor, Invalids and Social Affairs and within the Department of Labor, Invalids and Social Affairs; the Chairman of the People's Committee at the district level has the authority to impose fines as stipulated in Clause 3 Article 15 and Clause 2 Article 22 of Decree No. 88/CP of the Government and this Circular.

2. Labor Inspectors have the authority to prepare records of violations when discovering violations related to the conclusion of labor contracts, and to recommend the imposition of penalties to one of the authorities with the power as stipulated in point 1 above to issue a Decision on Penalty.

3. In cases where a joint inspection team or a joint inspection team discovers violations related to the conclusion of labor contracts, they have the authority to prepare records and recommend the imposition of penalties to one of the authorities with the power as stipulated in point 1 above to issue a Decision on Penalty.

If one of the authorities with the power as stipulated in point 1 above is present in the inspection team, they shall directly issue the Decision on Penalty.

V. IMPLEMENTATION:

1. The Director of the Department of Labor, Invalids and Social Affairs of provinces and centrally-administered cities directs the Department Inspector to conduct inspections, inspections, and strictly enforce penalties for violations in implementing regulations on concluding labor contracts as stipulated in Decree No. 87/CP and Decree No. 88/CP of the Government and this Circular; directs specialized agencies responsible for preventing social evils to cooperate with labor inspectors, relevant departments, and sectors to strengthen inspections of the implementation of the Charter and Regulations promulgated together with Decree No. 87/CP dated December 12, 1995 of the Government.

2. The District Department of Labor, Invalids and Social Affairs shall strengthen inspections of registration and reporting of the number of workers used by employers at establishments stipulated in this Circular; promptly report registration and violations of the subjects to the provincial Department of Labor, Invalids and Social Affairs and the People's Committee at the district level for handling.

This Circular takes effect from the date of signature.

During the implementation process, if there are any difficulties, please reflect them to the Ministry of Labor, Invalids and Social Affairs for study and resolution.