Circular No. 40/2009/TT-BLDTBXH provides guidance on calculating the number of regular employees as stipulated in Decree No. 108/2006/NĐ-CP dated September 22, 2006, of the Government detailing and guiding the implementation of certain provisions of the Investment Law.

CIRCULAR

Guidelines on calculating the number of regular employees as prescribed in Decree No. 108/2006/NĐ-CP dated September 22, 2006 of the Government on detailing and guiding the implementation of certain provisions of the Investment Law

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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;

Pursuant to Decree No. 108/2006/NĐ-CP dated September 22, 2006 of the Government detailing and guiding the implementation of certain provisions of the Investment Law,

The Ministry of Labor - Invalids and Social Affairs provides guidelines on calculating the number of regular employees as follows:

Article 1. Scope of Application and Coverage

The scope of application of this Circular is the same as that of Decree No. 108/2006/NĐ-CP dated September 22, 2006 of the Government detailing and guiding the implementation of certain provisions of the Investment Law.

Article 2. Method for Calculating the Number of Regular Employees

1. Regular employees of a business entity are determined as those employees working according to the attendance records of the business entity, including the number of employees who have signed labor contracts for at least three months, including those employees currently on leave receiving social insurance benefits as prescribed by law; enterprise management staff and full-time staff of Party organizations and political-social organizations.

2. The number of regular employees in a business entity is calculated as the average number of regular employees per year and per month.

3. The average number of regular employees per month is calculated using the following formula:

 li = ΣXj / n

Where:

li: is the average number of regular employees in month i of the year.

i: is the month of the year;

Xj: is the number of employees working on day j of month i, including the number of employees who have signed labor contracts for at least three months and those employees currently on leave receiving social insurance benefits as prescribed by law; management staff and staff of mass organizations.

 j: is the day in the month;

For days off when the business entity does not arrange work, the number of employees working according to the attendance records of the business entity immediately preceding the day off shall be taken, if the preceding day is also a day off, then take the next non-day-off day.

ΣXj: is the total number of regular employees on all days of month i in the year. n: is the number of calendar days in month i (regardless of whether the business entity operates for the full number of days in the month).

The average number of regular employees in month i of the year = Total number of regular employees on all days in month i / Number of calendar days in month i.

Example 2: Enterprise A began operations on March 20, 2002 and had the following daily number of employees in March 2002:

4. The average number of regular employees per year is calculated using the following formula:

         Σli (i=1,t)

Lk. =  -----------------

         t

Where:

 Lk: is the average number of regular employees in year k;

k: is the year;

li: is the average number of regular employees in month i of year k;

Σli (i=1,t): is the total average number of regular employees in all months of year k;

t: is the actual number of months of operation of the business entity in year k.

Example 1: Enterprise A began operations in March 2002 and had the following average monthly number of employees in 2002:

 The average number of regular employees in year k = (total of the average number of regular employees in all months of year k) / Number of months in year k

5. For businesses with an average annual number of regular employees that is a decimal, rounding is applied according to mathematical principles, if the decimal part is above 0.5 it rounds up to 1, below 0.5 it is not counted. Example: 508.75 rounds up to 509; 507.91 rounds up to 508; 507.31 rounds to 507. For the average monthly number of regular employees that is a decimal, it retains two digits after the decimal point without rounding.

Article 3. Implementation Provisions

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

2. Provincial Departments of Labor - Invalids and Social Affairs have the responsibility to guide, urge, and inspect the implementation.

During the implementation process, if there are any difficulties, please report to the Ministry of Labor - Invalids and Social Affairs for research and timely supplementary guidance.

During the implementation process, if there are any difficulties, please report to the Ministry of Labor - Invalids and Social Affairs for research and timely supplementary guidance./.