Circular No. 39/2009/TT-BLDTBXH guiding the implementation of Article 12 of Decree No. 39/2003/NĐ-CP dated April 18, 2003 of the Government detailing and guiding the implementation of certain provisions of the Labor Code on employment.

CIRCULAR

Guidelines for implementing Article 12 of Decree No. 39/2003/NĐ-CP

dated April 18, 2003, of the Government detailing and guiding the implementation of certain provisions of the Labor Code on employment

concerning employment

________________

Pursuant to Decree No. 39/2003/NĐ-CP dated April 18, 2003, of the Government detailing and guiding the implementation of certain provisions of the Labor Code on employment;

Pursuant to Decree No. 127/2008/NĐ-CP dated December 12, 2008, of the Government detailing and guiding the implementation of certain provisions of the Social Insurance Law on unemployment insurance;

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;

The Ministry of Labor - Invalids and Social Affairs hereby issues guidelines for implementing Article 12 of Decree No. 39/2003/NĐ-CP dated April 18, 2003, of the Government detailing and guiding the implementation of certain provisions of the Labor Code on employment (hereinafter referred to as Decree No. 39/2003/NĐ-CP) as follows:

Article 1. The amount of unemployment assistance provided for in Article 12 of Decree No. 39/2003/NĐ-CP shall be guided as follows:

1. Formula for calculating unemployment assistance:

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- The number of years eligible for unemployment assistance (calculated in years) is determined as the total time the worker has continuously worked for the employer from the start of employment until the worker loses their job, minus the period of unemployment insurance contributions as stipulated in Article 41 of Decree No. 127/2008/NĐ-CP dated December 12, 2008, of the Government detailing and guiding the implementation of certain provisions of the Social Insurance Law on unemployment insurance. In cases where the actual working time for the employer includes months less than a full year (including cases where the worker has worked for the employer for at least 12 months but the total working time for unemployment assistance calculation is less than 12 months), it will be rounded off as follows:

+ Less than one month is not counted towards eligibility for unemployment assistance;

+ From one month up to less than six months is rounded off to six months of work for unemployment assistance equal to half a month's salary;

+ Six months or more is rounded off to one year of work for unemployment assistance equal to one month's salary.

- The base salary for calculating unemployment assistance is the salary or wage according to the labor contract, calculated as the average of the six consecutive months immediately preceding the loss of employment, including: wage or grade/salary, regional allowance, position allowance (if applicable).

- One month's salary is for each year of work.

- The minimum level of unemployment assistance is two months' salary, except in cases where the period for calculating unemployment assistance is less than one month.

2. Unemployment assistance when implementing unemployment insurance policy:

The period during which workers contribute to unemployment insurance as stipulated in Clause 1, Article 41 of Decree No. 127/2008/NĐ-CP dated December 12, 2008, of the Government shall not be counted towards eligibility for unemployment assistance. The salary or wage used as the basis for calculating unemployment assistance is the salary or wage according to the labor contract, calculated as the average of the six consecutive months immediately preceding the loss of employment, including wage or grade/salary, regional allowance, position allowance (if applicable).

Article 2. Implementation clause

1. This Circular takes effect 45 days from the date of signature.

2. The method of calculating unemployment assistance shall be applied from January 1, 2009 (the date on which Decree No. 127/2008/NĐ-CP dated December 12, 2008, of the Government comes into effect).

3. The method of calculating unemployment assistance prescribed in this Circular shall not be used to recalculate unemployment assistance for cases where the labor contract was terminated before January 1, 2009.

Any difficulties encountered during implementation should be reported to the Ministry of Labor - Invalids and Social Affairs for timely research and supplementary guidance.