Decree No. 148/2018/ND-CP Amending and supplementing some articles of Decree No. 05/2015/ND-CP dated January 12, 2015 of the Government detailing and guiding the implementation of certain contents of the Labor Code

DECREE
Amending and supplementing certain provisions of Decree No. 05/2015/NĐ-CP
dated January 12, 2015 of the Government detailing and guiding the implementation of certain provisions of the Labor Code
Pursuant to the Law on

organization of the Government, promulgates this Decree amending and supplementing certain provisions of Decree No.36/2016/NĐ-CP dated May 15, 2016 of the Government on medical equipment management.

Pursuant to the Labor Code dated June 18, 2012;

At the request of the Minister of Labor, War Invalids and Social Affairs,Pursuant to the request of the Director General of the Department of Vocational Education;

the Government detailing certain provisions05/2015/NĐ-CP dated January 12, 2015 of the Government detailing and guiding the implementation of certain provisions of the Labor Code. Article 1. Amending and supplementing certain provisions of Decree No. 05/2015/NĐ-CP dated January 12, 2015 of the Government detailing and guiding the implementation of certain provisions of the Labor Code1. Amending Clause 1 of Article 3 as follows:"1. The party entering into a labor contract on behalf of the employer shall be one of the following:

e) A person authorized in writing by the legal representative specified in Point a or the head of the agency, unit, or organization specified in Point b of this Clause to conclude a labor contract."

2. Amending Clauses 6, 7, 8, and 9 of Article 4 as follows:

"6. Promotion and salary increase system: according to the agreement between both parties regarding conditions, time, and post-promotion salary level or according to the regulations of the employer or collective labor agreement.

a) A person authorized under the charter of the enterprise or cooperative;

b) The head of an agency, unit, or organization with legal personality as prescribed by law;

c) A person authorized by members of a household, a group cooperation, or another organization without legal personality to act as a representative as prescribed by law;

d) An individual directly using labor;

7. Working hours and rest periods: according to the agreement between both parties or according to the internal labor regulations, employer's regulations, or collective labor agreement and as prescribed by law.

8. Provision of personal protective equipment for workers: according to the internal labor regulations, employer's regulations, or collective labor agreement and as prescribed by law on occupational safety and health.

9. Social insurance, unemployment insurance, and health insurance: as prescribed by law on labor, social insurance, unemployment insurance, and health insurance."

3. Amending Clause 2 of Article 6 as follows:

"2. When the employer has no need or the worker is elderly and lacks sufficient health, both parties may agree to terminate the labor contract."

4. Supplementing Clause 4 of Article 13 as follows:

"4. Notification to the provincial state management agency on labor affairs under Clause 3 of Article 44 of the Labor Code must be in writing and include the following main contents:

đ) The amount of money required to pay severance benefits."

5. Amending Clause 3 of Article 14 as follows:

"3. The working period for calculating severance pay and unemployment benefits is the total actual working period of the worker for the employer minus the period during which the worker participated in unemployment insurance as prescribed by law and the working period for which the employer had previously paid severance pay or unemployment benefits (if any). Specifically:

a) Name and address of the employer and the legal representative of the employer;

b) Total number of workers; number of workers to be terminated;

c) Reason for worker termination;

d) Date of worker termination;

a) The actual working period of the worker for the employer includes: the actual working period under the labor contract; the period of study assigned by the employer; the period of sick leave or maternity leave as prescribed by law on social insurance; the period of work suspension for treatment or rehabilitation due to workplace accidents or occupational diseases as prescribed by law on occupational safety and health; weekly rest days as prescribed in Article 110, unpaid leave as prescribed in Articles 111, 112, 115, and Clause 1 of Article 116 of the Labor Code; leave for trade union activities as prescribed by law; leave for civic duties as prescribed by law and paid by the employer; stoppage of work not due to the fault of the worker; suspension of work as prescribed in Article 129 of the Labor Code.

b) The period of participation in unemployment insurance includes: the period during which the employer contributed to unemployment insurance; the period counted as participation in unemployment insurance as prescribed by law on unemployment insurance; the period during which the employer concurrently paid a sum equivalent to the unemployment insurance contribution as prescribed by law on labor and unemployment insurance.

c) The working period for calculating severance pay and unemployment benefits is calculated annually (12 months); if there is a partial month, from one to less than six months is counted as half a year; six months or more is counted as one full year of work."

6. Abolishing Clause 5 of Article 14.

7. Amending Clause 6 of Article 14 as follows:

"5. The cost of paying severance pay and unemployment benefits shall be recorded as production costs or operating expenses of the employer."

8. Supplementing Article 14a after Article 14 as follows:

"Article 14a. Time limit for settling rights and obligations upon termination of the labor contract

Within seven working days from the date of termination of the labor contract, the employer and the worker shall settle all related payments fully. In special cases, the settlement period may be extended but shall not exceed thirty days from the date of termination of the labor contract, including the following circumstances:

3. The employer changes its organizational structure, technology, or economic reasons as prescribed in Article 44 of the Labor Code or merges, consolidates, splits, or transfers ownership or use rights of assets as prescribed in Article 45 of the Labor Code."

9. Amending Clause 2 of Article 26 as follows:

"2. The wage basis for payment to workers during annual leave as prescribed in Article 111; additional annual leave based on seniority as prescribed in Article 112; public holidays as prescribed in Article 115; and personal leave with pay as prescribed in Clause 1 of Article 116 of the Labor Code is the monthly wage stipulated in the labor contract divided by the number of normal working days in the month as prescribed by the employer, multiplied by the number of annual leave days, additional annual leave days based on seniority, public holidays, and personal leave with pay."

1. The employer is not an individual ceasing operations;

2. The employer or employee encounters natural disasters, fires, enemy attacks, or dangerous infectious diseases;

3. The employer changes the organizational structure, technology, or economic reasons pursuant to Article 44 of the Labor Code, or merges, consolidates, splits, or separates enterprises or cooperatives, transfers ownership or right to use assets pursuant to Article 45 of the Labor Code.

9. Amend Clause 2 of Article 26 as follows:

"2. The wage used as the basis for payment to workers on annual leave under Article 111; additional annual leave based on years of service under Article 112; public holidays and Tet holidays under Article 115; and personal leave with pay under Clause 1 of Article 116 of the Labor Code shall be the monthly wage stipulated in the labor contract divided by the number of normal working days in the month as prescribed by the employer, multiplied by the number of days the worker takes annual leave, additional annual leave based on years of service, public holidays, Tet holidays, and personal leave with pay."

10. Add Article 26a after Article 26 as follows:

"Article 26a. Wages as the basis for compensation when unilaterally terminating a labor contract in violation of the law

The wages serving as the basis for compensation when unilaterally terminating a labor contract in violation of the law, as stipulated in Clause 5, Article 42 or Clause 2, Article 43 of the Labor Code, shall be the wages under the labor contract at the time when the employer or employee unilaterally terminates the labor contract in violation of the law."

11. Amend Clause 2 and Clause 3 of Article 28 as follows:

"2. Upon receiving all the necessary documents for registering internal regulations on labor, the provincial state management agency on labor shall confirm the date, month, and year of receipt of the registration documents for internal regulations on labor from the employer.

3. Within seven working days from the date of receiving the registration documents for internal regulations on labor, if the internal regulations contain provisions that contravene the law, the provincial state management agency on labor shall notify the employer and guide the employer to amend and resubmit the internal regulations on labor."

12. Amend Article 30 as follows:

"Article 30. Procedure for Disciplinary Actions in Labor 

The procedure for imposing disciplinary measures as stipulated in Article 123 of the Labor Code is as follows:

1. When discovering employees' violations of labor discipline at the time of occurrence, the employer shall prepare a violation report, notify the representative organization of employees at the workplace; and the parents or legal guardian in case the employee is under 18 years old, to convene a meeting to handle disciplinary actions in labor.

2. In cases where the employer discovers violations of labor discipline after the occurrence of the violation, with sufficient evidence proving the employee's fault and within the statute of limitations for disciplinary action, the following procedures shall be implemented:

a) The employer shall notify the content, time, and place of the meeting to handle disciplinary actions in labor to the participants specified in point b and c, Clause 1, Article 123 of the Labor Code, ensuring these participants receive the notification before the meeting and convening the meeting to handle disciplinary actions in labor with their participation.

b) Upon receiving the notification from the employer, within a maximum of three working days from the date of receipt, the participants specified in point b and c, Clause 1, Article 123 of the Labor Code must confirm their attendance at the meeting. If they do not attend, they must notify the employer and provide a clear reason. If one of the participants specified in point b and c, Clause 1, Article 123 of the Labor Code does not confirm attendance, provides an unjustifiable reason, or confirms attendance but does not show up for the meeting, the employer will still proceed with handling disciplinary actions in labor.

3. The meeting to handle disciplinary actions in labor must be recorded in a minutes document and approved by the participants before the end of the meeting. The minutes must have signatures from all participants in the meeting. If one of the participants who attended the meeting does not sign the minutes, the reason must be clearly stated.

4. The party entering into the labor contract on behalf of the employer is authorized to issue a decision on disciplinary measures against the employee.

5. The decision on disciplinary actions in labor must be issued within the statute of limitations for disciplinary actions in labor or the extended statute of limitations for disciplinary actions in labor according to Article 124 of the Labor Code. The decision on disciplinary actions in labor must be sent to the employee, the parents or legal guardian of those under 18 years old, and the representative organization of employees at the workplace."

13. Amend Clause 1 of Article 31 as follows:

"1. The employer applies the dismissal disciplinary measure in cases where the employee voluntarily leaves work without a legitimate reason as stipulated in Clause 3, Article 126 of the Labor Code as follows:

a) Five consecutive working days within a maximum period of one month (30 days), starting from the first day of unauthorized absence;

b) A cumulative total of twenty working days within a maximum period of one year (365 days), starting from the first day of voluntary absence from work."

Article 2. Effective Date

1. This Decree takes effect from December 15, 2018.

2. Repeal Article 7 and Clause 1, Clause 3 of Article 10 of Circular No. 47/2015/TT-BLDTXH dated November 16, 2015, issued by the Minister of Labor, Invalids, and Social Affairs guiding the implementation of certain articles on labor contracts, labor discipline, and material responsibility under Decree No. 05/2015/NĐ-CP dated January 12, 2015, of the Government detailing and guiding the implementation of certain contents of the Labor Code.

3. In cases where a labor contract terminates before this Decree takes effect and the employer has not yet calculated and paid severance pay or unemployment assistance to the employee, the actual working time for calculating severance pay or unemployment assistance shall be determined based on the current valid legal documents at the time the labor contract terminates.

4. In cases where a labor contract was effective before the Labor Code 2012 took effect and the labor contract includes an agreement on probationary period, the actual working time for calculating severance pay or unemployment assistance shall include the probationary period in the labor contract.

Article 3. Responsibility for Implementation

The Minister, Heads of Ministries equivalent to ministries, Heads of agencies under the Government, Chairpersons of People's Committees of provinces and centrally-run cities, and relevant agencies, organizations, enterprises, cooperatives, and individuals are responsible for implementing this Decree./.