Decree No. 33/2003/ND-CP Amending and Supplementing Certain Provisions of Government Decree No. 41/CP dated July 6, 1995 on Detailed Regulations and Guidance for Implementation of Certain Provisions of the Labor Code concerning Disciplinary Measures and Financial Liability

DECREE

Amending and supplementing some articles of Decree No. 41/CP dated July 6, 1995 of the Government detailing and guiding the implementation of certain provisions of the Labor Code on labor discipline and material responsibility
Pursuant to the Labor Code dated June 23, 1994, and the Law amending and supplementing certain provisions of the Labor Code dated April 2, 2002;
At the proposal of the Minister of Labor, Invalids and Social Affairs.
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THE GOVERNMENT

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

Amending and supplementing some articles of Decree No. 41/CP dated July 6, 1995 of the Government detailing and guiding the implementation of certain provisions of the Labor Code on labor discipline and material responsibility which have been amended and supplemented according to the Law amending and supplementing certain provisions of the Labor Code (hereinafter referred to as the Labor Code) as follows:

Article 5. The registration of internal regulations on labor pursuant to Article 82 of the Labor Code shall be regulated as follows:

DECREE:

Article 1. 1. Internal regulations on labor shall be registered at the Department of Labor, Invalids and Social Affairs of the province or centrally governed city (hereinafter referred to as the Department of Labor, Invalids and Social Affairs). When registering internal regulations on labor, relevant documents of the unit concerning labor discipline and material responsibility (if any) must be attached.

1. Article 5 shall be amended and supplemented as follows:

2. Enterprises located in export processing zones, industrial zones, high-tech parks (hereinafter collectively referred to as industrial zones), internal regulations on labor shall be registered at the Management Board of the industrial zone authorized by the Department of Labor, Invalids and Social Affairs where the Management Board has its main office. Every six months, the Management Board of the industrial zone shall be responsible for compiling and reporting to the Department of Labor, Invalids and Social Affairs on the situation of registering internal regulations on labor of enterprises under its management authority.

3. Within ten working days from the date of receipt of the internal regulations on labor of the enterprise, the Department of Labor, Invalids and Social Affairs or the Management Board of the industrial zone must notify in writing about the registration of the internal regulations on labor. If there is no notification within the above period, the internal regulations on labor shall automatically take effect. In case the internal regulations on labor and accompanying documents contain provisions contrary to the law, guidance shall be provided to the employer to amend and supplement and re-register.

Article 6. The application of forms of handling violations of labor discipline pursuant to Articles 84 and 85 of the Labor Code shall be regulated as follows:

1. Verbal or written reprimand shall be applied to employees who commit an offense for the first time but at a minor level.

2. Article 6 is amended and supplemented as follows:

2. Extending the term for promotion of salary grade not exceeding six months or transferring to work with a lower salary grade for a maximum period of six months or demotion shall be applied to employees who have been given a written reprimand and repeat the offense within three months from the date of reprimand or other acts of violation specified in the internal regulations on labor. The employer shall base on the degree of violation of labor discipline by the employee, the actual situation of the enterprise, and the circumstances of the employee to choose one of the three forms prescribed in this clause.

3. Dismissal shall be applied to employees who violate one of the cases stipulated in Clause 1, Article 85 of the Labor Code and specifically defined in the internal regulations on labor as follows:

a) An employee who violates one of the cases stipulated in Point a, Clause 1, Article 85 of the Labor Code, if the act of violation does not have sufficient evidence or is difficult to determine, then request the competent authority to investigate, verify, and conclude to serve as the basis for disciplinary action.

b) An employee who voluntarily leaves work for five consecutive days in a month or twenty consecutive days in a year without a legitimate reason counted in the calendar month, calendar year.

Cases considered to have legitimate reasons include: being affected by natural disasters; fire; illness of themselves or their relatives confirmed by a legally established medical facility, other cases specified in the internal regulations on labor.

Article 8. The statute of limitations for handling violations of labor discipline pursuant to Article 86 of the Labor Code shall be regulated as follows:

1. The maximum statute of limitations for handling violations of labor discipline is three months, calculated from the date of occurrence or discovery of the violation. In cases involving financial, property, disclosure of technological or business secrets of the enterprise, the maximum statute of limitations for handling labor discipline is six months.

3. Article 8 shall be amended and supplemented as follows:

2. It is not allowed to handle labor discipline against employees during the following periods:

a) Sick leave, convalescence leave; leave with the consent of the employer.

b) Being detained or arrested.

c) Awaiting the results of investigation, verification, and conclusion by the competent authority regarding the violation specified in Point a, Clause 1, Article 85 of the Labor Code.

d) Female employees who are pregnant; maternity leave; caring for children under twelve months old. Male employees who must care for children under twelve months old.

When the period specified in Points a, b, c, Clause 2 of this Article expires, if the statute of limitations for handling labor discipline still exists, the employer shall immediately proceed with handling labor discipline. If the statute of limitations has expired, it can be restored, but not more than thirty days from the date of expiration of the aforementioned period.

When the period specified in Point d, Clause 2 of this Article expires, if the statute of limitations for handling labor discipline has expired, it may be extended to consider handling labor discipline, but not more than sixty days from the date of expiration of the aforementioned period.

Article 10. The person authorized to handle violations of labor discipline, including temporary suspension of work, as stipulated in Articles 87 and 92 of the Labor Code is the employer; persons authorized by the employer can only handle labor discipline in the form of reprimand. Other forms of discipline can only be delegated when the employer is absent and must be in writing.

5. Point a, Clause 3, Article 11 is amended and supplemented as follows:

4. Article 10 shall be amended and supplemented as follows:

Article 10. The person authorized to handle labor discipline violations, including temporary suspension of work as stipulated in Articles 87 and 92 of the Labor Code, is the employer; persons authorized by the employer may only impose disciplinary measures in the form of reprimand. Other forms of disciplinary measures may only be delegated when the employer is absent and must be in writing.

5. Point a, Clause 3, Article 11 shall be amended and supplemented as follows:

''a) The person authorized to handle labor discipline violations must issue a written decision (except for oral reprimand), in cases where the disciplinary action involves termination, the employer must consult and reach agreement with the Trade Union Committee. In case of disagreement, the Trade Union Committee reports to the higher-level Trade Union, and the employer reports to the Department of Labor, Invalids, and Social Affairs. After twenty days from the date of reporting to the Department of Labor, Invalids, and Social Affairs, the employer has the right to issue a disciplinary decision and bear responsibility for their decision.''

6. Clause 1 of Article 12 shall be amended and supplemented as follows:

''1. When deciding to reduce the duration or cancel the disciplinary measures against employees who have been subject to extended timeframes for salary grade increases or transferred to work with lower salaries due to violation of labor discipline, the employer must issue a written decision and proceed as follows:

For employees who have been subject to extended timeframes for salary grade increases due to disciplinary measures, the salary grade increase for such employees shall be implemented immediately upon issuance of the decision to reduce the duration or cancel the disciplinary measures, provided that the employee meets the conditions for salary grade increase.

For employees who have been transferred to work with lower salaries due to disciplinary measures, the employee shall be reassigned to their original position according to the terms of the employment contract.''

7. Article 18 shall be amended and supplemented as follows:

''1. Within three months from the date this Decree takes effect, units that do not yet have or already have labor regulations must develop new ones or amend and supplement them appropriately and register with the competent authority.

2. For newly established units, within six months from the date of commencement of operations, the employer must register the labor regulations with the Department of Labor, Invalids, and Social Affairs.''

8. Article 2 is repealed.

Article 2. This Decree shall take effect fifteen days from the date of publication in the Official Gazette.

The Ministry of Labor, Invalids, and Social Affairs shall be responsible for guiding this Decree.

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.