Decree No. 155/2004/ND-CP Amending and Supplementing Certain Provisions of Decree No. 41/2002/ND-CP dated April 11, 2002 of the Government on Policies for Redundant Labor Due to Restructuring State-Owned Enterprises

DECREE

Amending and supplementing certain Articles of Decree No. 41/2002/NĐ-CP dated April 11, 2002 of the Government on policies for surplus labor due to restructuring state-owned enterprises

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THE GOVERNMENT

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

Pursuant to the Labor Code dated June 23, 1994, and the Law amending and supplementing certain Articles of the Labor Code dated April 2, 2002;

Pursuant to the State Enterprise Law dated November 26, 2003;

At the proposal of the Minister of Labor, Invalids and Social Affairs,

DECREE:

Article 1. Amending and supplementing certain Articles of Decree No. 41/2002/NĐ-CP dated April 11, 2002 of the Government on policies for surplus labor due to restructuring state-owned enterprises as follows:

1. Economic organizations conducting foreign exchange trading agency activities; economic organizations conducting foreign currency receipt and payment service provision activities; economic organizations conducting border country currency exchange agency activities.

Article 1. The scope of application of this Decree includes state-owned companies implementing restructuring measures approved by competent state authorities, including:

1. State-owned companies, independent accounting subsidiaries, and affiliated units under State-owned corporations (hereinafter referred to as State-owned corporations) that implement restructuring in accordance with Article 17 of the Labor Code.

2. State-owned companies, independent accounting subsidiaries under State-owned corporations that are converted into limited liability companies wholly owned by the State or limited liability companies with two or more shareholders.

3. State-owned companies, affiliated units of State-owned companies, independent accounting subsidiaries, and affiliated units of independent accounting subsidiaries under State-owned corporations that are converted into joint-stock companies; joint-stock companies formed from the aforementioned companies and their affiliated units with restructuring plans approved by the Board of Directors of the company within twelve months from the date of issuance of the business registration certificate in accordance with the Enterprise Law.

4. State-owned companies, independent accounting subsidiaries under State-owned corporations that implement mergers, consolidations, divisions, or spin-offs.

5. State-owned companies, independent accounting subsidiaries under State-owned corporations that implement leasing, contracting, or selling operations.

6. State-owned companies, independent accounting subsidiaries under State-owned corporations that implement bankruptcy or dissolution.

7. State-owned companies, independent accounting subsidiaries under State-owned corporations that are converted into public service units.

8. State-owned agricultural and forestry enterprises that are restructured in accordance with Resolution No. 28-NQ/TW dated June 16, 2003 of the Politburo on continuing to restructure, reform, and develop state-owned agricultural and forestry enterprises.

9. State-owned companies that implement other forms decided by the Prime Minister.

10. State-owned companies under political organizations or political-social organizations established by the Chairman of the People's Committee of provinces or centrally-administered cities, or by the Minister managing the economic and technical sector of the industry or profession, which are converted into limited liability companies wholly owned by the State or limited liability companies with two or more shareholders, or converted into joint-stock companies operating in accordance with the Enterprise Law.

4. State Bank Branch in Border Province is the State Bank Branch in provinces sharing borders with China, Laos, and Cambodia.

Article 2. The subjects of application of this Decree are employees who are currently performing indefinite-term or fixed-term contracts of at least twelve months but not exceeding thirty-six months, including:

1. Surplus employees in companies (hereinafter referred to as companies) implementing restructuring in accordance with Article 1 (excluding paragraph 6) of this Decree, who were recruited into the state sector before April 21, 1998 (the date when Directive No. 20/1998/CT-TTg of the Prime Minister on accelerating the restructuring and reform of state-owned enterprises was implemented), including:

a) Employees who are working, during the restructuring process, the company has taken all measures to create jobs but cannot arrange employment;

b) Employees listed in the regular roster of the company but without work (awaiting assignment), at the time of restructuring, the company still cannot arrange employment.

2. Employees in companies undergoing liquidation or bankruptcy.

3. Employees listed in the regular roster of state-owned agricultural and forestry enterprises, recruited into the state sector before April 21, 1998, at the time of restructuring, the agricultural and forestry enterprises have taken all measures to create jobs but cannot arrange employment or do not implement the land allocation or forest allocation system of the agricultural and forestry enterprises. In the case where employees are allocated land or forests by agricultural and forestry enterprises and the employment relationship between the employer and employee is terminated, they will not be subject to the provisions of this Decree but will be entitled to severance pay according to Article 42 of the Labor Code.

3. Article 5 is amended and supplemented as follows:

Article 5. Employees who have received assistance payments as stipulated in Clause 3, Article 3 of this Decree, if re-employed by the company or agricultural and forestry enterprise that previously terminated their employment, or by other state-owned companies or agencies, or if agricultural and forestry enterprises allocate land or forests to them, must return the amount of assistance payment as stipulated in Point b, Clause 3, Article 3 of this Decree.

Companies, state-owned agricultural and forestry enterprises, and other state-owned agencies that recruit employees or allocate land or forests to employees shall be responsible for recovering the aforementioned amount from the employees and depositing it entirely into the Fund for Supporting Surplus Labor Due to Restructuring State-Owned Enterprises established in accordance with Article 7 of this Decree.

4. Clause 2 of Article 7 shall be amended and supplemented as follows:

"2. The Fund for Supporting Surplus Labor shall be responsible for providing funding to companies (including funds for paying benefits to positions specified in Point 4, Section II of Decision No. 09/2003/NQ-CP dated July 28, 2003 of the Government amending and supplementing Decision No. 16/2000/NQ-CP dated October 18, 2000 of the Government on streamlining staff in administrative agencies and public service units); social insurance agencies; vocational training centers for surplus labor; organizations established to resolve surplus labor in dissolved or bankrupt companies; public service units under State-owned corporations; state-owned agricultural and forestry enterprises, including the portion of funds for paying severance benefits as stipulated in Article 42 of the Labor Code as provided in Clause 3, Article 2 of this Decree."

5. The term "state-owned enterprise" as set forth in Decree No. 41/2002/NĐ-CP dated April 11, 2002, of the Government shall now be replaced by the term "state company".

Article 2. This Decree takes effect fifteen days after its publication in the Official Gazette. Previous regulations that conflict with this Decree are hereby abolished.

Article 3. Ministers, Heads of ministerial-level agencies, Heads of government agencies, and Chairpersons of provincial People's Committees directly under the central government are responsible for implementing this Decree.