Circular No. 33/2011/TT-BLDTBXH guiding the implementation of working hours and rest time for workers engaged in seasonal work and export processing based on orders.

CIRCULAR

Guidelines for implementing working hours and rest periods for workers engaged in seasonal work and export processing according to orders

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Pursuant to Article 80 of the Labor Code dated June 23, 1994; Law Amending and Supplementing Certain Provisions of the Labor Code dated April 2, 2002; Law Amending and Supplementing Certain Provisions of the Labor Code dated June 29, 2006; Law Amending and Supplementing Certain Provisions of the Labor Code dated April 2, 2007;

Pursuant to Decree No. 109/2002/ND-CP dated December 27, 2002 of the Government on amending and supplementing certain provisions of Decree No. 195/CP dated December 31, 1994 of the Government detailing and guiding the implementation of certain provisions of the Labor Code on working hours and rest periods;

Pursuant to Decree No. 186/2007/NĐ-CP dated December 25, 2007 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Labor - War Invalids and Social Affairs;

The Ministry of Labor - Invalids and Social Affairs hereby provides guidelines for implementing working hours and rest periods for workers engaged in seasonal production work and export processing according to orders as follows:

Article 1. Scope of Regulation and Applicability

2. Applicability:

This Circular guides the establishment and organization of implementation of annual working hours and rest periods for workers engaged in seasonal work in agriculture, forestry, and fisheries industries that require immediate harvesting or immediate processing after harvesting without long-term storage, and export processing work according to orders dependent on the time requested by the customer.

第二条 组织和实施奖励工作的支出水平，如政府第152/2025/NĐ-CP号决定关于分级授权和奖励领域的分权规定

This Circular applies to workers employed under fixed-term labor contracts from 12 to 36 months and indefinite-term labor contracts in enterprises and production and business establishments (hereinafter referred to as enterprises) as follows:

a) Companies and enterprises of all economic sectors;

b) Cooperatives and Cooperative Unions operating under the Law on Cooperatives that employ workers under labor contracts.

Article 2. Working Hours

1. Standard annual working hour quota:

TQ = [TN - (Tt + TP + TL] x tn (hours)

Where:

+ TQ: Annual standard working hour quota of the worker;

+ TN: Number of days in a year according to the Gregorian calendar, which is 365 days; or 366 days if it is a leap year;

+ Tt: Total weekly rest days in a year as stipulated in Article 72 of the Labor Code;

+ TP: Number of annual leave days, which is 12, 14, or 16 days and increases according to years of service as stipulated in Articles 74 and 75 of the Labor Code and Clause 2, Section II of Circular No. 07/TT-BLDTBXH dated April 11, 1995;

+ TL: Number of public holidays in a year, which is 9 days;

+ tn: Normal working hours per day, which is 8 hours; specifically for workers engaged in particularly arduous, toxic, and dangerous jobs according to the list issued by the Ministry of Labor - Invalids and Social Affairs, it is 6 hours.

Example 1Worker A has worked for 15 years under normal working conditions for Company X. Worker A's annual standard working hour quota for 2011 is calculated as follows:

- Worker A's annual leave days are: 12 + 15/5 = 15 days

Where:

+ 12 days determined according to Article 74 of the Labor Code;

+ 15/5 is the number of additional leave days determined according to Article 75 of the Labor Code.

- Create the following table:

Therefore, Worker A's annual standard working hour quota for 2011 is 2312 hours.

Example 2: Worker B works in particularly arduous jobs for Company Y for 15 years. Worker B's annual standard working hour quota for 2011 is calculated as follows:

- Worker B's annual leave days are: 16 + 15/5 = 19 days

Among them:

+ 16 days determined according to Article 74 of the Labor Code;

+ 15/5 is the number of additional leave days determined according to Article 75 of the Labor Code.

- Create the following table:

Therefore, Worker B's annual standard working hour quota for 2011 is 1710 hours.

2. Daily standard working hours:

Annually, based on the annual standard working hour quota (TQ) calculated above, enterprises establish plans to determine daily standard working hours for workers as follows:

a) Normal working day is 8 hours; or 6 hours for workers engaged in particularly arduous, toxic, and dangerous jobs;

b) Working day more than 8 hours but not exceeding 12 hours; or more than 6 hours but not exceeding 9 hours for workers engaged in particularly arduous, toxic, and dangerous jobs;

c) Working day over 4 hours but less than 8 hours; or over 3 hours but less than 6 hours for workers engaged in particularly arduous, toxic, and dangerous jobs;

d) Full day off.

Example 3: Worker A in Example 1 has an annual standard working hour quota of 2312 hours in 2011. Company X distributes Worker A's daily standard working hours for 2011 as follows:

3. Principles for using the standard working hour quota:

a) In a year, the total planned standard working hours (including rest periods within the day counted as working hours) shall not exceed the annual standard working hour quota (TQ) determined in Clause 1 of this Article.

b) The number of standard working hours per day is less than 8 hours; or less than 6 hours for workers engaged in particularly arduous, hazardous, or dangerous jobs, if such plans have been established according to the guidance provided in Points c and d of Clause 2 of this Article, then compensation for downtime wages shall not be paid.

Example 4: In February, Company X arranged for Worker A to work 7 hours/day for 9 working days, then gave him a full rest for 11 working days. The company has arranged according to the plan stated in Example 3 above, therefore:

- The number of hours worked is less than the 8-hour normal working day: 8 hours - 7 hours = 1 hour; this 1 hour does not require payment for downtime wages;

- The number of downtime days is 11 days, which also does not require payment for downtime wages.

c) If the number of standard working hours per day has been planned but the worker was not actually arranged to work those hours, then compensation for downtime wages must be paid.

Example 5: In March, due to business conditions, Company X arranged for Worker A to work 5 hours/day for 13 working days, then gave him a full rest for 14 working days. Therefore, compared to the plan set by the company for Worker A in March as stated in Example 3 above, it is as follows:

- The actual number of working hours is less than the standard working hours per day: 7 hours - 5 hours = 2 hours; these 2 hours require payment for downtime wages;

- The number of downtime days compared to the plan is 14 days; these 14 days require payment for downtime wages.

d) If the number of standard working hours per day exceeds 8 hours, or more than 6 hours for workers engaged in particularly arduous, hazardous, or dangerous jobs, as determined in the plan at Point b of Clause 2 of this Article, then the excess hours shall not be counted as overtime hours.

Example 6: In April, Company X arranged for Worker A to work 9 hours/day from Monday to Saturday, following the company's plan stated in Example 3 above. Therefore, the number of working hours exceeding the normal 8-hour working day is: 9 hours - 8 hours = 1 hour. This 1 hour is not counted as an overtime hour.

đ) If the actual number of working hours per day exceeds the planned standard number of hours as guided in Clause 2 of this Article, then those hours are counted as overtime hours to be added to the total annual overtime hours, while paying the wage and implementing other regulations related to overtime work according to current provisions.

Example 7: In March, Company X arranged for Worker A to work 8 hours/day. Therefore, compared to the plan set by the company for Worker A in March as stated in Example 3 above, the number of working hours exceeding the standard working hours is: 8 hours - 7 hours = 1 hour. This 1 hour is counted into the total annual overtime hours, while the wage must be paid and other regulations related to overtime work must be implemented according to current provisions.

e) The total number of standard working hours and overtime hours in one day shall not exceed 12 hours; specifically for workers engaged in particularly arduous, hazardous, or dangerous jobs, it shall not exceed 9 hours.

g) The total number of standard working hours and overtime hours in one week shall not exceed 64 hours; specifically for workers engaged in particularly arduous, hazardous, or dangerous jobs, it shall not exceed 48 hours.

Example 8: Due to urgent requirements, in May and June, Company X needs to arrange for overtime work. The company is permitted to organize as follows:

- In May, only work can be organized according to the plan stated in Example 3, without organizing overtime work because the total number of working hours in a week is: (11 hours/day x 4 days) + (10 hours/day x 2 days) = 64 hours.

- In June, overtime work of 1 hour per day can be arranged from Monday to Friday.

h) The total number of overtime hours in a year for each worker must comply with the current provisions of the amended Labor Code.

Article 3. Rest Time

1. Weekly, workers shall have at least one day off (24 consecutive hours). During peak months or when urgent export orders require overtime production, if weekly rest days cannot be observed, employers must ensure that workers have at least four rest days per month.

2. Rest periods during shifts, breaks between shifts, and transitional rest periods between two shifts for each worker shall be implemented in accordance with the provisions of the amended and supplemented Labor Code. If a worker works for ten hours or more in a day, the employer must arrange for them to have an additional rest period of at least thirty minutes included in working hours, in addition to regular shift rest times.

3. Enterprises must arrange for workers to take sufficient rest days or compensatory rest days for holidays, annual leave, and other paid rest days in accordance with the provisions of the amended and supplemented Labor Code.

Article 4. Responsibilities of Enterprises

1. Annually, based on the business production plan, proactively establish and adjust the annual working time and rest time plan according to the model attached to this Circular. When establishing or adjusting the plan, opinions of the Trade Union Committee or the Temporary Trade Union Committee at the enterprise must be solicited.

In cases where the normal daily working hours are only eight hours, or six hours for workers engaged in particularly arduous, toxic, or dangerous jobs, there is no need to establish a plan as prescribed above.

2. Notify the working time and rest time plan within the enterprise so that workers are aware, and post it on the enterprise's electronic information website at least thirty days before implementation. Agree with workers on overtime work in accordance with current regulations.

3. Agree with employees on the method of paying wages on a seasonal basis or evenly distributed throughout the year.

Article 5. Responsibilities of Provincial Departments of Labor, Invalids, and Social Affairs

1. Coordinate with relevant agencies to disseminate this Circular to enterprises operating within their jurisdiction.

2. Regularly urge, supervise, inspect, and audit the implementation of regulations on working time and rest time at enterprises; handle violations according to the law, especially repeat offenses.

3. Summarize and report annually to the Ministry of Labor, Invalids, and Social Affairs on the implementation of this Circular by enterprises operating within their jurisdiction.

Article 6. Effectiveness

1. This Circular takes effect from January 10, 2012.

2. This Circular replaces Circular No. 16/2003/TT-BLDTBXH dated June 3, 2003, issued by the Ministry of Labor, Invalids, and Social Affairs, guiding the implementation of working time and rest time systems for workers engaged in seasonal work and export processing under orders.

Any difficulties encountered during implementation should be reported to the Ministry of Labor, Invalids, and Social Affairs for research and resolution./.