Circular No. 33/2012/TT-BLDTBXH guides the implementation of policies for employees under Decree No. 59/2011/NĐ-CP dated July 18, 2011, of the Government on converting state-owned enterprises with 100% state capital into joint-stock companies.

CIRCULAR

Guidelines for implementing policies towards employees under Decreenumber 59/2011/NĐ-CP

dated July 18, 2011 of the Government on converting state-owned enterprises with 100% state capital into joint-stock companiesstate-owned enterprise with 100% state capital becomes a joint stock company

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Pursuant to Decree No. 89/2013/NĐ-CP dated August 6, 2013 of the Government detailing implementation of certain provisions of the Price Law on appraisal;

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, Invalids and Social Affairs;

Considering the proposal of the Director of the Department of Labor and Wages;

The Minister of Labor, Invalids and Social Affairs hereby issues guidelines for implementing policies towards employees under Decree No. 59/2011/NĐ-CP dated July 18, 2011 of the Government on converting state-owned enterprises with 100% state capital into joint-stock companies (hereinafter referred to as Decree No. 59/2011/NĐ-CP),

Article 1. Scope of Regulation

These guidelines provide for the implementation of policies towards employees in enterprises undergoing shareholding reform as prescribed in Decree No. 59/2011/NĐ-CP dated July 18, 2011 of the Government on converting state-owned enterprises with 100% state capital into joint-stock companies.

Article 2. Applicability

1. Employees working under labor contracts as prescribed by labor laws.

2. Members of the Board of Directors, members of the Board of Members or Chairman of the company, Supervisors, General Directors, Directors, Deputy General Directors, Deputy Directors, Chief Accountants are not within the scope of entering into labor contracts in shareholding enterprises.

3. Individuals and organizations related to the implementation of policies towards employees when converting state-owned enterprises with 100% state capital into joint-stock companies as prescribed.

Article 3. Establishing a plan for labor utilization during shareholding reform

After receiving the decision on announcing the enterprise value from the competent authority, the Steering Committee for Shareholding Reform shall direct the Working Group to establish a labor utilization plan (within the shareholding reform plan), to be submitted to the competent authority for approval in accordance with Clause 49 of Decree No. 59/2011/NĐ-CP.

The labor utilization plan shall be established through the following steps:

1. Step 1. Prepare a list of all employees of the shareholding enterprise at the time of announcing the enterprise value according to Model No. 1 attached to this Circular, including:

a) Employees not subject to signing labor contracts, including Members of the Board of Directors, Members of the Board of Members or Chairman of the company, Supervisors, General Directors, Directors, Deputy General Directors, Deputy Directors, Chief Accountants of the enterprise.

b) The number of employees currently working under labor contracts with salary and compulsory social insurance contributions or without compulsory social insurance contributions (including seasonal workers or workers for a specific job with a term of less than one year).

c) The number of employees on leave but still listed in the company's employee roster, receiving salary or not, with compulsory social insurance contributions or without compulsory social insurance contributions.

2. Step 2. Prepare a list of employees who will cease work at the time of announcing the enterprise value, including:

a) A list of employees meeting the conditions for retirement as prescribed in Decree No. 152/2006/NĐ-CP dated December 22, 2006 of the Government guiding certain provisions of the Law on Social Insurance regarding compulsory social insurance at the time of announcing the enterprise value according to Model No. 2 attached to this Circular.

b) A list of employees terminating labor contracts at the time of announcing the enterprise value (including cases: expiration of labor contracts; voluntary termination of labor contracts or termination of labor contracts for other reasons as prescribed by labor laws) according to Model No. 3 attached to this Circular.

c) A list of employees unable to be assigned work at the joint-stock company at the time of announcing the enterprise value according to Model No. 4 attached to this Circular, including:

- A list of surplus employees as prescribed in Clause 1, Article 2 of Decree No. 91/2010/NĐ-CP dated August 20, 2010 of the Government stipulating policies for surplus employees in limited liability companies with a single state-owned shareholder.

- A list of employees required to terminate labor contracts and receive unemployment benefits as prescribed by labor laws.

3. Step 3. Prepare a list of employees who will continue working at the joint-stock company according to Model No. 5 attached to this Circular, including:

a) Employees currently performing labor contracts with remaining terms.

b) Employees currently enjoying social insurance benefits (illness; maternity; occupational accidents, occupational diseases) while their labor contracts have remaining terms.

c) Employees temporarily suspended from performing labor contracts as prescribed by the Labor Code.

4. Step 4. Compile the labor utilization plan according to Model No. 6 attached to this Circular.

Article 4. Policy towards employees in joint-stock enterprises

Based on the labor utilization plan that has been approved by the competent authority, the General Director or the Director of the joint-stock enterprise shall implement the following policies and benefits for employees:

1. Preferential share purchase policy

Employees specified in Clause 1 (including those hired before August 30, 1990 who have not yet signed a labor contract; those temporarily suspended from performing their labor contracts according to the law, waiting for work according to the decision of the enterprise director) and Clause 2 of this Circular, whose names appear on the list of regular employees (receiving salary, contributing to social insurance, including those temporarily suspended from performing their labor contracts, on short-term leave if applicable) of the joint-stock enterprise at the time when the enterprise's value is announced for purchasing shares with preferential prices as stipulated in Clause 1 of Article 48 of Decree No. 59/2011/ND-CP.

The period eligible for purchasing shares with preferential prices is the total actual working time calculated in years (full 12 months, excluding fractional months) that the employee has worked (with attendance recorded in payroll) in the state sector up to the time of announcing the enterprise's value, minus the actual working time already counted for purchasing shares with preferential prices at previous joint-stock enterprises, and the actual working time already counted for retirement benefits or one-time social insurance payments (if applicable).

Actual working time in the state sector includes: actual working time at the joint-stock enterprise, working time at administrative agencies, public service units, political-social organizations, military units receiving salaries from the state budget before joining the joint-stock enterprise (including training time with salary, time assigned for work by agencies or units, time on sick leave, maternity leave, work-related injury leave, occupational disease leave, and working under piece-rate or volume-based payment systems provided by the joint-stock enterprise and contributing to social insurance for employees according to the law).

2. Policy for additional share purchases with preferential prices: implemented according to Clause 2 of Article 48 of Decree No. 59/2011/ND-CP and guidelines issued by the Ministry of Finance.

3. Distribution of surplus cash in the Reward Fund and Welfare Fund

Employees specified in Clause 1 and Clause 2 of this Circular, whose names appear on the list of regular employees of the joint-stock enterprise at the time of determining the enterprise's value (the accounting closure date, financial report preparation date to determine the enterprise's value), will be entitled to distribute the surplus cash in the Reward Fund and Welfare Fund (including the value of assets used in production and business invested from the Reward Fund and Welfare Fund) according to Clause 5 of Article 14 and Article 19 of Decree No. 59/2011/ND-CP based on the total number of full years (full 12 months) of actual working time from the date of employment to the date of determining the enterprise's value for joint-stock conversion. For the fractional part of the total number of years of actual working time of employees to calculate the distribution of the Reward Fund and Welfare Fund surplus, the enterprise will decide.

4. Retirement Benefits

Those meeting the conditions for retirement benefits as specified in point a, Clause 2 of Article 3 of this Circular, the General Director or the Director of the joint-stock enterprise and the Social Insurance Office where the enterprise contributes to social insurance will process retirement benefits according to the law.

5. Termination Allowance

Employees specified in point b, Clause 2 of this Circular who terminate their labor contracts will be entitled to termination allowance (if applicable) according to Article 42 of the Labor Code, Decree No. 44/2003/ND-CP dated May 9, 2003 of the Government, Circular No. 21/2003/TT-BLDTBXH dated September 22, 2003, and Circular No. 17/2009/TT-BLDTBXH dated May 26, 2009 of the Ministry of Labor, Invalids, and Social Affairs. The source of funds for paying termination allowances to employees will follow the guidance of the Ministry of Finance.

6. Policy for Surplus Labor

Employees specified in point c, Clause 2 of this Circular, who fall under the scope of Decree No. 91/2010/ND-CP dated August 20, 2010 of the Government regarding policies for surplus labor when restructuring limited liability companies wholly owned by the State, will be processed according to Decree No. 91/2010/ND-CP and Circular No. 38/2010/TT-BLDTBXH dated December 24, 2010 of the Ministry of Labor, Invalids, and Social Affairs guiding the implementation of some articles of Decree No. 91/2010/ND-CP dated August 20, 2010 of the Government regarding policies for surplus labor when restructuring limited liability companies wholly owned by the State.

7. Unemployment Assistance

Employees specified in point c, Clause 2 of this Circular, who do not fall under the scope of Decree No. 91/2010/ND-CP, will be entitled to unemployment assistance (if applicable) according to the Labor Code. The source of funds for paying unemployment assistance to employees will follow the guidance of the Ministry of Finance.

Termination allowance, policy for surplus labor, and unemployment assistance stipulated in Clause 5, Clause 6, and Clause 7 of this Article, from May 1, 2013, will be calculated according to the Labor Code dated June 18, 2012, and related implementing regulations.

8. Employees transferring to work at a joint-stock company as specified in Clause 3 of this Circular will continue to participate and enjoy social insurance, health insurance, unemployment insurance, and other benefits as prescribed.

The enterprise undergoing shareholding reform shall be responsible for compiling a list and completing procedures for the Social Insurance Agency to continue implementing social insurance, health insurance, and unemployment insurance benefits as prescribed; paying off all debts related to social insurance to the Social Insurance Agency and any debts owed to employees (if any) before transferring to a joint-stock company; handing over the list and files of employees to the Board of Directors or General Director of the joint-stock company to continue participating in and resolving social insurance, health insurance, and other benefits as prescribed.

State-owned enterprises that have been assigned by the Ministry of Agriculture and Rural Development to conduct offshore wind power project surveys before the effective date of this Circular shall continue to implement according to the assigned documents; any new matters arising after the effective date of this Circular shall be implemented in accordance with the provisions of this Circular.

1. The Shareholding Reform Steering Committee shall be responsible for:

a) Directing the General Director, Director of the shareholding enterprise to coordinate with the Trade Union Executive Committee of the enterprise to distribute the Reward Fund and Welfare Fund to employees according to regulations.

b) Directing the Working Group to develop labor utilization plans, determine the number of necessary workers based on production and business requirements, identify the number of workers who cannot be assigned work, the number of workers whose employment contracts will be terminated at the time of the enterprise's valuation announcement, submit these proposals to the Workers' Congress or the Workers' Representative Congress of the enterprise for comments, finalize them, and submit them to the competent authority for approval; and implement policies for workers as prescribed by law.

c) Within thirty days from the date when all policies for workers have been resolved, the Shareholding Reform Steering Committee shall be responsible for reporting the results of the transfer of the state-owned enterprise to a joint-stock company to the competent authorities according to Model No. 7 attached to this Circular. Eight copies of the report shall be sent: One copy to the approving authority for the shareholding plan; one copy to the Ministry of Labor, Invalids, and Social Affairs; one copy to the Ministry of Finance; one copy to the Department of Labor, Invalids, and Social Affairs where the shareholding enterprise has its main office; one copy to the Provincial Federation of Trade Unions where the shareholding enterprise has its main office; one copy to the Central Trade Union of the relevant industry (if applicable); one copy to the Social Insurance Office where the enterprise pays social insurance; and one copy retained at the joint-stock company.

2. The Social Insurance Office where the enterprise pays social insurance shall be responsible for implementing social insurance, unemployment insurance systems, and health insurance policies as prescribed by laws on social insurance and health insurance, respectively, and the provisions of this Circular.

3. The Board of Directors, representatives of employers as prescribed by the joint-stock company shall be responsible for:

a) Accepting the number of workers specified in Clause 3, Article 3 of this Circular and all related files of employees handed over by the shareholding enterprise.

b) Continuing to fulfill commitments made in employment contracts and collective labor agreements previously signed with employees as prescribed by law.

c) Resolving severance pay and unemployment benefits for employees transferred from the shareholding enterprise when they lose their jobs or terminate their employment at the joint-stock company, including compensation for actual working time at the shareholding enterprise prior to the transfer and time worked at other state-owned entities but transferred to the 100% state-owned company before January 1, 1995 without having received severance pay or unemployment benefits.

4. Departments of Labor, Invalids, and Social Affairs, Enterprise Reform and Development Boards of Ministries, agencies equivalent to ministries, government agencies, provincial People's Committees, Enterprise Reform and Development Boards of Economic Groups, State-Owned Corporations established by the Prime Minister's decision shall be responsible for coordinating with Provincial Federations of Trade Unions, Central Trade Unions of relevant industries to guide, monitor, and inspect the implementation of regulations concerning workers under Decree No. 59/2011/ND-CP and related legal documents; annually compiling the situation and reporting it to the Enterprise Reform and Development Steering Committee (Government Office), the Ministry of Labor, Invalids, and Social Affairs, and the Ministry of Finance.

Article 6. Effectiveness

1. This Circular takes effect from February 5, 2013.

2. This Circular replaces Circular No. 20/2007/TT-BLDTBXH dated October 4, 2007, issued by the Ministry of Labor, Invalids, and Social Affairs guiding the implementation of policies for workers under Decree No. 109/2007/NĐ-CP dated June 26, 2007, of the Government on converting state-owned enterprises with 100% state capital into joint-stock companies.

3. The policies for workers stipulated in this Circular shall apply from the date Decree No. 59/2011/NĐ-CP dated July 18, 2011, of the Government on converting state-owned enterprises with 100% state capital into joint-stock companies comes into effect.

4. Workers in enterprises undergoing restructuring as prescribed in Clause 2, Article 3 and Point e, Clause 2, Article 49 of Decree No. 59/2011/NĐ-CP of the Government, when meeting the prescribed conditions, shall enjoy the benefits stipulated in Clause 4, Clause 5, Clause 6, Clause 7, and Clause 8; and simultaneously apply the policies stipulated in Clause 1, Clause 2, and Clause 3 of Article 4 of this Circular according to the specific conditions of the enterprise and the approved restructuring plan.

5. Joint Stock Companies with a single member owned by the Parent Company of Economic Groups, State-Owned Corporations, parent companies in a holding company structure holding 100% of the charter capital, and Joint Stock Companies with a single member held by political organizations or political-social organizations holding 100% of the charter capital, when undergoing shareholding reform, shall resolve policies and benefits for workers as prescribed in this Circular.

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