Circular No. 29/2005/TT-BLDTBXH guiding the implementation of certain provisions on labor policies under Decree No. 80/2005/NĐ-CP dated June 22, 2005 of the Government on transferring, selling, leasing, and contracting state-owned enterprises for management.

CIRCULAR

Guidelines for Implementing Certain Provisions on Labor Policy

of Decree No. 80/2005/NĐ-CP dated June 22, 2005 of the Government

on Transfer, Sale, Lease, and Contracted Management of State-Owned Enterprises

Implementing Decree No. 80/2005/NĐ-CP dated June 22, 2005 of the Government on Transfer, Sale, Lease, and Contracted Management of State-Owned Enterprises; After receiving opinions from relevant ministries and sectors and the Vietnam General Confederation of Labor, the Ministry of Labor, Invalids, and Social Affairs provides guidelines for implementing labor policies as follows:

I. GENERAL PROVISIONS

1. The scope of application of this Circular includes state-owned enterprises undergoing restructuring through transfer, sale, lease, and contracted management (hereinafter referred to collectively as state-owned enterprises undergoing restructuring) as stipulated in Article 2 of Decree No. 80/2005/NĐ-CP dated June 22, 2005 of the Government on Transfer, Sale, Lease, and Contracted Management of State-Owned Enterprises (hereinafter referred to as Decree No. 80/2005/NĐ-CP).

2. The subjects to whom this Circular applies are employees currently working at the time of restructuring state-owned enterprises as prescribed in Decree No. 80/2005/NĐ-CP, including those under various types of employment contracts, including those recruited to work in the public sector before August 30, 1990, who have not yet signed employment contracts by the time of restructuring state-owned enterprises (including employees on leave under social insurance schemes such as sickness, maternity, occupational accidents, and occupational diseases; temporarily suspended from performing employment contracts, temporarily absent from work according to the decision of the enterprise's director).

3. The time point for restructuring state-owned enterprises is the time when the competent authority issues a decision as stipulated in Article 54 of Decree No. 80/2005/NĐ-CP.

II. POLICIES FOR EMPLOYEES AT THE TIME OF RESTRUCTURING STATE-OWNED ENTERPRISES

1. Establishing employee utilization plans at the time of restructuring state-owned enterprises in accordance with Clause 1 and Clause 4 of Article 12, Clause 5 of Article 16, Clause 4 of Article 18, Clause 5 of Article 19, Clause 5 of Article 32, Clause 5 of Article 37, Clause 4 of Article 38, and Clause 1 of Article 41 of Decree No. 80/2005/NĐ-CP:

a) Prepare a list of current employees according to Model No. 1 attached to this Circular;

b) Prepare a list of employees eligible for retirement according to the Social Insurance Regulations (if applicable);

c) Prepare a list of employees whose employment contracts will be terminated according to the Labor Code (if applicable);

d) Prepare a list of employees on leave under social insurance schemes due to illness, maternity, occupational accidents, and occupational diseases (if applicable);

đ) Prepare a list of employees temporarily suspended from performing employment contracts (if applicable);

e) Prepare a list of employees not required for continued use;

g) Prepare a list of employees required for continued use;

h) Prepare a consolidated table of the utilization plan for current employees according to Model No. 2 attached to this Circular.

State-owned enterprises are responsible for preparing the lists of employees as specified in Points a, b, c, d, and đ and providing the results to the party registering to participate in receiving transfers, purchases (except in cases of purchase through auction), contracted management, and leasing of state-owned enterprises as prescribed. Based on necessary information provided by the state-owned enterprise and anticipated needs for utilizing employees, the party registering to participate in receiving transfers, purchases (except in cases of purchase through auction), contracted management, and leasing of state-owned enterprises will prepare the lists of employees as specified in Points e and g, and prepare a consolidated table of the utilization plan as specified in Point h of Clause 1 of Part II of this Circular to include in the registration dossier for receiving transfers, purchases, contracted management, and leasing of state-owned enterprises.

2. Resolving policies for employees at the time of restructuring state-owned enterprises:

Based on the approved employee utilization plan by the competent state authority, the Director of the state-owned enterprise is responsible for completing all necessary procedures to resolve social insurance benefits for employees according to the following regulations:

a) Employees listed in the regular roster of the state-owned enterprise at the time of restructuring through transfer, sale, or lease as stipulated in Decree No. 80/2005/NĐ-CP will be entitled to share the remaining balance of the reward fund and welfare fund (if any) based on their actual working time at the state-owned enterprise up to the restructuring time point as stipulated in Point đ of Clause 2 of Article 11, Clause 5 of Article 20, Point d of Clause 2 of Article 40, and Point e of Clause 1 of Article 49 of Decree No. 80/2005/NĐ-CP prior to signing the transfer, sale, or lease contract of the state-owned enterprise. Actual working time is determined according to Clause 3 of Article 14 of Decree No. 44/2003/NĐ-CP dated May 9, 2003 of the Government detailing and guiding the implementation of certain provisions of the Labor Code on employment contracts up to the time of restructuring the state-owned enterprise.

b) Employees eligible for retirement according to the Social Insurance Regulations listed in Point b of Clause 1 of Part II of this Circular will have the Director of the state-owned enterprise and the local social insurance agency complete necessary procedures to resolve social insurance benefits according to the Social Insurance Regulations.

c) Employees listed in Point c of Clause 1 of Part II of this Circular will terminate their employment contracts according to the Labor Code at the time of restructuring the state-owned enterprise, and the Director of the state-owned enterprise will resolve severance pay and complete necessary procedures for the social insurance agency to resolve social insurance benefits according to the regulations.

d) Workers falling under the category of not requiring continued employment as stipulated in point e, Clause 1, Part II of this Circular shall be handled by the General Director of State-owned enterprises to resolve the benefits for workers in accordance with the current provisions of Government Decree No. 41/2002/NĐ-CP dated April 11, 2002 on policies for surplus labor due to restructuring of state-owned enterprises, Government Decree No. 155/2004/NĐ-CP dated August 10, 2004 on amending and supplementing certain articles of Government Decree No. 41/2002/NĐ-CP on policies for surplus labor due to restructuring of state-owned enterprises, and guiding circulars. When Government Decree No. 41/2002/NĐ-CP ceases to be effective, the benefits for workers shall be implemented in accordance with the provisions of the Labor Code and related policies.

đ) Workers falling under the category of requiring continued employment as stipulated in point g, Clause 1, Part II of this Circular shall be reviewed and unified by the General Director of State-owned enterprises in the list and individual files of workers requiring continued employment to be included in the handover record. The receiving party shall be responsible for accepting all such workers and continuing to implement the labor contracts signed between the State-owned enterprise and the workers until the contracts are amended, supplemented, or new contracts are signed in accordance with the provisions of Government Decree No. 44/2003/NĐ-CP dated May 9, 2003 detailing and guiding the implementation of certain articles of the Labor Code regarding labor contracts.

III. POLICIES FOR WORKERS CONTINUING TO WORK AT THE ENTERPRISE AFTER THE STATE-OWNED ENTERPRISE HAS COMPLETED RESTRUCTURING

1. For workers belonging to the group receiving the transfer of the State-owned enterprise:

a) Workers participating in the receipt of the transferred enterprise whose names appear on the payroll and who have contributed to social insurance at the enterprise up to the time of the transfer shall enjoy ownership rights over the enterprise in accordance with Article 13 of Government Decree No. 80/2005/NĐ-CP. The number of years worked for the state sector (excluding fractional months) up to the time of restructuring of the State-owned enterprise includes:

- Actual working time at state-owned enterprises, including state-owned joint-stock companies with one member; administrative state agencies, state-run units, and units under armed forces receiving salaries from the state budget;

- Time during which salaries were received from state-owned enterprises, the state budget, or social insurance benefits (illness, maternity, work-related accidents, occupational diseases);

- Working time under product or workload contracting arrangements during which the enterprise paid salaries and contributed to social insurance for workers in accordance with the law.

b) Workers shall be considered for training or retraining to continue working at the enterprise from the Enterprise Restructuring Support Fund at the Ministry of Finance in accordance with Clause 4, Article 14 of Government Decree No. 80/2005/NĐ-CP. The provision of training and retraining funding for workers from the Enterprise Restructuring Support Fund shall be carried out in accordance with the guidance of the Ministry of Finance;

c) Workers shall be guaranteed employment for a minimum of three years, except those voluntarily terminating their labor contracts, in accordance with Clause 5, Article 14 of Government Decree No. 80/2005/NĐ-CP. After the commitment period in the approved labor utilization plan, the termination allowance or unemployment benefit for workers shall be implemented in accordance with the Labor Code and related policies.

2. For workers continuing to work at the enterprise after restructuring through the sale of the State-owned enterprise or part of it, business contracting, or leasing of the State-owned enterprise:

The party receiving the purchase, business contracting, or lease of the State-owned enterprise shall be responsible for continuing to implement the labor contracts signed between the State-owned enterprise and workers requiring continued employment according to the approved labor utilization plan until the contracts are amended, supplemented, or new contracts are signed in accordance with the provisions of Government Decree No. 44/2003/NĐ-CP dated May 9, 2003 detailing and guiding the implementation of certain articles of the Labor Code regarding labor contracts. Upon termination of employment or loss of employment, workers shall be resolved for termination allowances or unemployment benefits in accordance with the Labor Code, current related policies, and relevant commitments in the sale, business contracting, or lease agreements of the State-owned enterprise.

Specifically, for newly formed enterprises resulting from the sale of the State-owned enterprise or part of it, when resolving termination allowances or unemployment benefits for workers within the first five years from the date of issuance of the business registration certificate, the enterprise shall be responsible for paying 50% of the total allowance amount as stipulated by the Labor Code, with the remaining amount to be paid from the proceeds of the sale of the State-owned enterprise or part of it in accordance with Clause 5, Article 22 of Government Decree No. 80/2005/NĐ-CP. The payment of allowances shall be carried out in accordance with the guidance of the Ministry of Finance. Beyond this period, the enterprise shall be responsible for paying the full allowance amount to the workers.

After the expiration of the lease contract, if the leasing company continues to operate, it must accept the return of the old workforce (as listed in point g, Clause 1, Section II of this Circular) in accordance with Clause 3, Article 48 of Government Decree No. 80/2005/NĐ-CP. New workers hired by the leasing company in accordance with the Labor Code during the execution of the lease contract may continue to be used by the leasing company if needed or be resolved according to current regulations. In the event that the leasing company ceases operations due to division, separation, merger, dissolution, or bankruptcy, the resolution of benefits for workers shall be carried out in accordance with the Labor Code and related policies.

IV. IMPLEMENTATION

1. The General Director of the State-owned enterprise together with the Enterprise Reform Board at the enterprise shall be responsible:

a) Review, classify, and create lists of labor subjects according to the provisions at points a, b, c, d, and đ, Clause 1, Part II of this Circular. In the specific case of organizing the sale of state-owned enterprises or parts of state-owned enterprises through auction as stipulated in Article 17 of Decree No. 80/2005/NĐ-CP, all labor lists and comprehensive tables of labor utilization plans as provided for in Clause 1, Part II of this Circular shall be prepared by the state-owned enterprise and submitted to the competent state authority for approval before announcing the registration for auction sale;

b) Provide necessary information about the labor force of state-owned enterprises to parties registering to participate in receiving, purchasing, operating on a lease basis, or leasing state-owned enterprises as prescribed in Decree No. 80/2005/NĐ-CP;

c) Implement procedures and documents to settle final benefits for employees according to the labor utilization plan approved at the time of restructuring the state-owned enterprise and current laws before transferring assets, books, and related documents to the receiving party as agreed upon in the contract for transferring, selling, operating on a lease basis, or leasing state-owned enterprises;

d) Report on the plan and results of implementing the labor utilization plan to the Department of Labor, Invalids, and Social Affairs, the local social insurance agency, and send copies to the Provincial Trade Union Committee and the Central Trade Union of the industry where the headquarters of the state-owned enterprise is located;

2. Parties registering to participate in receiving transfers, purchases (except in cases of purchase through auction), operating on a lease basis, or leasing state-owned enterprises under Decree No. 80/2005/NĐ-CP shall be responsible for:

a) Collecting and analyzing the labor situation of state-owned enterprises;

b) Developing a labor utilization plan in the registration dossier for participating in the restructuring of state-owned enterprises according to the guidelines set out in Clause 1, Part II of this Circular. In cases of direct negotiation registration, the labor utilization plan will also be directly negotiated and agreed upon among the relevant parties;

c) If the registration dossier for participating in the restructuring of state-owned enterprises is approved by the competent state authority, the party receiving the transfer, purchase, operating on a lease basis, or leasing the state-owned enterprise shall be responsible for fulfilling commitments to accept and arrange employment for the transferred labor force according to the labor utilization plan approved by the competent state authority;

3. The Enterprise Reform and Development Board under the Ministry, Provincial People's Committees, and State-Owned Corporations shall be responsible for guiding and directing state-owned enterprises and the Enterprise Reform Boards within these enterprises to properly, fully, and promptly implement policies for employees during the organization of transferring, selling, operating on a lease basis, or leasing state-owned enterprises as stipulated in Articles 55, 56, and 57 of Decree No. 80/2005/NĐ-CP;

4. Departments of Labor, Invalids, and Social Affairs of provinces and centrally-administered cities shall be responsible for coordinating with Departments of Planning and Investment, Finance, Enterprise Reform and Development Boards, relevant agencies, and Provincial Trade Union Committees to guide, monitor, and inspect the implementation of regulations of Decree No. 80/2005/NĐ-CP and related legal documents concerning employees, compile situations, and report to the Ministry of Labor, Invalids, and Social Affairs;

5. This Circular takes effect fifteen days from the date of publication in the Official Gazette;

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