Circular No. 12/2005/TT-BLDTBXH guiding certain provisions of Government Decree No. 113/2004/NĐ-CP dated April 16, 2004 on administrative penalties for violations of labor laws.

CIRCULAR

Guidelines for certain provisions of Decree No. 113/2004/NĐ-CP dated April 16, 2004

of the Government on administrative penalties for violations of labor laws

Implementing Article 37 of Decree No. 113/2004/NĐ-CP dated April 16, 2004 of the Government on administrative penalties for violations of labor laws;

The Ministry of Labor, Invalids and Social Affairs provides guidance as follows:

Chapter I. GENERAL PROVISIONS

1. Object and scope of application

This Circular guides the implementation of certain provisions of Decree No. 113/2004/NĐ-CP dated April 16, 2004 of the Government on administrative penalties for violations of labor laws (hereinafter referred to as "Decree No. 113/2004/NĐ-CP").

2. Cases not subject to administrative penalty

a) Individuals and organizations from foreign countries who enjoy the right to be exempted from administrative penalties according to the regulations of the Ordinance on privileges and immunities granted to diplomatic missions, consular offices, and international organization representative offices in Vietnam;

b) Cases where the time limit for imposing administrative penalties has expired as provided for in Article 6 of Decree No. 113/2004/NĐ-CP;

c) Administrative offenses with signs of criminal offenses, files being transferred to competent criminal proceedings authorities for examination and resolution in accordance with criminal law.

3. Authorities responsible for imposing penalties when handling violations of labor laws must base their decisions on specific forms and levels of administrative penalties for labor law violations stipulated in Decree No. 113/2004/NĐ-CP to decide the correct level of penalty; at the same time, guide organizations and individuals subject to penalties to implement the penalty decision in accordance with regulations.

Chapter II. ADMINISTRATIVE VIOLATIONS OF LABOR LAWS

1. Violations of provisions on employment at point d, clause l; clause 2; point a, clause 3 of Article 8 of Decree No. 113/2004/NĐ-CP apply to:

a) Violation of one of the provisions on procedures for recruiting workers as stipulated in Decree No. 39/2003/NĐ-CP dated April 18, 2003 of the Government detailing and guiding the implementation of certain articles of the Labor Code on employment and Circular No. 20/2003/TT-BLDTBX dated September 22, 2003 of the Ministry of Labor, Invalids and Social Affairs;

b) Regarding severance pay for workers: employers provide severance pay lower than the amount prescribed in Article 17 of the Labor Code;

c) Establishing a reserve fund for severance pay not in accordance with the provisions of clause 3 of Article 17 of the Labor Code, Decree No. 39/2003/NĐ-CP dated April 18, 2003 of the Government, Circular No. 82/2003/TT-BTC dated August 14, 2003, and Circular No. 07/2004/TT-BTC dated February 9, 2004 of the Ministry of Finance.

2. Violations of provisions on vocational training at clauses 1, 2 of Article 9 of Decree No. 113/2004/NĐ-CP apply to:

a) Violation of one of the provisions on establishing, registering, operating, splitting, merging, suspending operations, and dissolving vocational training institutions as stipulated in Articles 4, 5, 6, 7, 8, 9, 15, 16, 17, 19, 24, and 27 of Decree No. 02/2001/NĐ-CP dated January 9, 2001 of the Government detailing the implementation of the Labor Code and the Education Law on vocational training;

b) Collecting tuition fees for vocational training from individuals who are not required to pay as stipulated in Articles 65 and 66 of Decree No. 28/CP dated April 29, 1995 of the Government detailing and guiding the implementation of certain articles of the Ordinance on preferential treatment for revolutionary activists, martyrs, and families of martyrs, disabled veterans, wounded veterans, revolutionary activists, and those who have contributed to the revolution;

c) Collecting higher tuition fees than the prescribed range for vocational students as stipulated in point 2.1, clause 2, Article 3 of Decision No. 70/1998/QĐ-TTg dated March 31, 1998 of

3. Violations of provisions on labor contracts at clause 2 of Article 10 of Decree No. 113/2004/NĐ-CP apply in cases where:

Workers have actually worked for a period of at least 12 months but have not been entered into a labor contract by the employer, or in cases where workers have completed two consecutive fixed-term labor contracts and continue working without the employer entering into a labor contract or entering into a contract with a fixed term also considered as entering into an incorrect type of contract.

4. Violations of provisions on social insurance at Articles 18 and 21 of Decree No. 113/2004/NĐ-CP are guided as follows:

a) The act of failing to fully contribute to social insurance for workers participating in social insurance according to the Social Insurance Regulations issued together with Decree No. 12/CP dated January 26, 1995 of the Government (hereinafter referred to as the Social Insurance Regulations) includes:

- Not contributing at the prescribed rate;

- Not contributing for the required duration.

b) The act of not contributing or not paying social insurance money to workers according to the above Social Insurance Regulations includes:

- Employers not contributing to social insurance;

- Employers collecting 5% of workers' wages for social insurance contributions and not deducting 15% of the total wage fund of those participating in social insurance in the unit to contribute to the social insurance agency;

- Not contributing for enough people in the unit who are required to participate in mandatory social insurance;

- Not paying the social insurance money due to workers who are not required to participate in mandatory social insurance.

c) The act of issuing false certificates to workers involves confirming and listing inaccurately to allow workers to receive sick leave benefits, treatment for work-related injuries, and occupational diseases.

d) The act of intentionally causing difficulties or hindering workers from enjoying social insurance benefits includes:

- Delaying the completion of files and processing procedures or issuing decisions for workers to receive social insurance benefits more than 30 days after they have submitted complete valid documents;

- Delaying payment to beneficiaries of social insurance benefits more than 30 days after receiving the payment decision from the relevant authority or social insurance agency (sick leave, maternity, work-related injury, occupational disease benefits).

- The Social Insurance Agency extends the time for reviewing and processing social insurance settlement files for workers beyond thirty days from the date of receiving complete and valid files.

d) The act of delaying social insurance contributions by thirty days or more from the due date specified in Article 37 of the Social Insurance Regulations or exceeding the deadline permitted by the Government.

e) The act of not establishing a social insurance record or failing to return the social insurance record to workers includes:

- Employers fail to establish and submit the necessary documents to the Social Insurance Agency for issuing social insurance records to workers within ninety days from the date of employment and registration for social insurance at the enterprise, agency, or organization;

- Failing to return the social insurance record to workers when the labor contract terminates and the worker leaves the unit.

g) The act of workers engaging in fraud or falsifying documents to claim social insurance benefits includes:

- Falsely declaring or altering contents related to social insurance benefits in the file;

- Creating false documents from authorized agencies to include in the social insurance benefit file.

h) The act of incorrectly certifying or rating work-related injuries or occupational diseases by medical examination facilities or health assessment centers, which certify or rate work-related injuries or occupational diseases for social insurance participants contrary to the regulations of the Ministry of Health.

Chapter III. PROCEDURES FOR IMPOSING ADMINISTRATIVE PENALTIES ON LABOR LAW VIOLATIONS

The authority responsible for imposing administrative penalties under labor laws must strictly follow the procedures for imposing penalties and enforcing administrative penalty decisions as stipulated in Article 31 of Decree No. 113/2004/ND-CP and shall comply with the following provisions:

1. Upon discovering administrative violations within their jurisdiction, the authority responsible for imposing penalties while performing official duties must immediately issue a decision to stop the violation according to Article 18 of Decree No. 134/2003/ND-CP dated November 14, 2003, issued by the Government detailing the implementation of certain provisions of the Administrative Violation Handling Ordinance 2002 (hereinafter referred to as Decree No. 134/2003/ND-CP), and promptly prepare an administrative violation report regarding labor law violations. The administrative violation report concerning labor law violations shall be based on Model Form 01 issued together with Decree No. 134/2003/ND-CP attached to this Circular.

2. In cases where penalties are imposed according to the simplified procedure prescribed in Article 19 of Decree No. 134/2003/ND-CP, the authority responsible does not prepare an administrative violation report but imposes the penalty on-site. On-the-spot penalty decisions shall be made using Model Form 05 applicable for warning penalties and Model Decision 06 applicable for fines, both issued together with Decree No. 134/2003/ND-CP attached to this Circular.

3. Within ten days from the date of preparing the administrative violation report, if the administrative violation case involves complex circumstances, the decision to impose penalties must be made within thirty days. The authority responsible for imposing penalties shall issue an Administrative Violation Penalty Decision based on Model Decision 07 issued together with Decree No. 134/2003/ND-CP attached to this Circular.

4. If the violation exceeds the authority's power to impose penalties, the person who prepared the report must forward the report and all relevant documents to the authority with the appropriate power to impose penalties within five days. After completing the enforcement of the administrative penalty decision against the penalized party, the person issuing the penalty decision shall send one copy of the penalty decision to the person who submitted the request for penalty enforcement. If the authority responsible for imposing penalties receives a request for administrative penalty enforcement but fails to implement it, they must notify in writing, clearly stating the reasons to the person who submitted the request.

5. The authority responsible for handling administrative violations as stipulated in Articles 26, 27, and 28 of Decree No. 113/2004/ND-CP may delegate their powers to their deputy in their absence.

The delegation must be in writing and signed by the delegator. The scope and duration of the delegation must be clearly stated in the letter of delegation.

6. Individuals or organizations subject to administrative penalties who do not voluntarily comply with the penalty decision will be subject to compulsory enforcement according to Article 66 of the Administrative Violation Handling Ordinance 2002. The decision on compulsory enforcement of violations shall be based on Model Form 08 issued together with Decree No. 134/2003/ND-CP attached to this Circular.

7. In cases where the statute of limitations for imposing administrative penalties has expired as provided in Clause 1 of Article 6 of Decree No. 113/2004/ND-CP, no penalties will be imposed, but the authority responsible for imposing penalties may decide to apply measures to rectify the consequences. The decision to apply measures to rectify the consequences caused by administrative violations in cases where administrative penalties for labor law violations are not applied shall be based on Model Decision 09 issued together with Decree No. 134/2003/ND-CP attached to this Circular.

Chapter IV. IMPLEMENTATION PROVISIONS

This Circular shall take effect fifteen days after its publication in the Official Gazette.

During the implementation process, if there are any issues requiring clarification or additional guidance, they should be reported to the Ministry of Labor - Invalids and Social Affairs for timely explanation or supplementary guidance within their scope of functions, tasks, and authorities.

                                                                                    Nguyen Thi Hang

                                                                                        (Signed)