Circular No. 41/2009/TT-BLDTBXH guiding amendments and supplements to Circular No. 03/2007/TT-BLDTBXH dated January 30, 2007 on guiding the implementation of certain provisions of Decree No. 152/2006/NĐ-CP dated December 22, 2006 of the Government guiding certain Articles of the Social Insurance Law regarding mandatory social insurance.

CIRCULAR

Guidelines for amending and supplementing Circular No. 03/2007/TT-BLDTBXH dated January 30, 2007 on guiding the implementation of certain provisions of Decree No. 152/2006/NĐ-CP dated December 22, 2006 of the Government guiding certain provisions of the Social Insurance Law regarding mandatory social insurance

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Pursuant to Decree No. 152/2006/NĐ-CP dated December 22, 2006 of the Government guiding certain provisions of the Social Insurance Law regarding mandatory social insurance (hereinafter referred to as Decree No. 152/2006/NĐ-CP) and Decree No. 190/2007/NĐ-CP dated December 28, 2007 of the Government guiding certain provisions of the Social Insurance Law regarding voluntary social insurance (hereinafter referred to as Decree No. 190/2007/NĐ-CP), the Ministry of Labor, Invalids and Social Affairs guides the amendment and supplementation of some clauses of Circular No. 03/2007/TT-BLDTBXH dated January 30, 2007 on guiding the implementation of certain provisions of Decree No. 152/2006/NĐ-CP (hereinafter referred to as Circular No. 03/2007/TT-BLDTBXH) which has been amended and supplemented by Circular No. 19/2008/TT-BLDTBXH dated September 23, 2008 as follows:

Article 1. Amend and supplement some clauses of Circular No. 03/2007/TT-BLDTBXH

1. Amend and supplement Clause 2 Section II maternity leave benefits Part B as follows:

"2. The period of absence from work to enjoy maternity leave when giving birth is five months according to point b Clause 1 Article 15 of Decree No. 152/2006/NĐ-CP shall apply to workers engaged in heavy, dangerous, or hazardous jobs including particularly heavy, dangerous, or hazardous jobs; female workers who have worked for at least six months in places with regional allowances coefficient of 0.7 or higher within twelve months before giving birth."

2. Amend Clause 6 Section II maternity leave benefits Part B as follows:

"6. If the worker takes more than fourteen working days off to enjoy maternity leave in a month, neither the worker nor the employer shall pay social insurance contributions for that month but the period will still be counted as a period during which social insurance contributions were paid."

3. Supplement the end of Clause 4 Section III occupational accident and occupational disease benefits Part B as follows:

"In cases where an occupational accident or occupational disease occurs and subsequently the time of completion of treatment and discharge cannot be determined (the discharge certificate still contains instructions for follow-up visits; removal of casts; removal of splints; removal of screws), the time for receiving monthly occupational accident and occupational disease benefits shall be calculated from the month in which the Medical Examination Board issues its conclusion."

4. Supplement Clause 12 into Section IV retirement benefits Part B as follows:

"12. Calculation of retirement benefits for persons who participated in mandatory social insurance after previously participating in voluntary social insurance.
a) Persons who participated in mandatory social insurance after previously participating in voluntary social insurance and retaining the contribution period of voluntary social insurance, the basis for calculating retirement benefits is the total contribution period of mandatory social insurance and voluntary social insurance.

Example 1: Mr. A, with ten years of voluntary social insurance contributions retained, followed by fifteen years of mandatory social insurance contributions. The basis for calculating Mr. A's social insurance contributions for retirement benefits is ten years + fifteen years = twenty-five years."

b) The average monthly salary, wage, and social insurance contribution income for persons who participated in mandatory social insurance after previously participating in voluntary social insurance and retaining the contribution period of voluntary social insurance according to Clause 2 Article 40 of Decree No. 152/2006/NĐ-CP shall be calculated as follows:

Where:

The average monthly salary, wage from mandatory social insurance contributions is calculated according to Article 31 of Decree No. 152/2006/NĐ-CP and Clauses 4, 5, 6 Section IV of Circular No. 03/2007/TT-BLDTBXH (amended and supplemented by Circular No. 19/2008/TT-BLDTBXH dated September 23, 2008 of the Ministry of Labor, Invalids and Social Affairs).

b1) When calculating the average monthly salary, wage, and social insurance contribution income, the salary, wage for subjects implementing the wage system decided by the employer and the monthly social insurance contribution income from voluntary social insurance shall be adjusted based on the consumer price index specified in Article 32 of Decree No. 152/2006/NĐ-CP and Article 18 of Decree No. 190/2007/NĐ-CP.

b2) The average monthly salary, wage, and social insurance contribution income mentioned above shall be used as the basis for calculating the retirement pension, one-time social insurance benefit upon retirement, one-time social insurance benefit, and one-time survivor benefit.

Example 2: Mr. A (in Example 1) has ten years of voluntary social insurance contributions with the total monthly income from voluntary social insurance contributions after adjustment according to the consumer price index being 138,000,000 VND and fifteen years of mandatory social insurance contributions with the average monthly salary, wage from mandatory social insurance contributions being 2,200,000 VND/month. The average monthly salary, wage, and social insurance contribution income of Mr. A is:

Example 3: Mr. B meets the conditions to receive a retirement pension from January 2013, with the following social insurance participation history:

- From January 1993 to December 2007 (15 years) participated in mandatory social insurance, then retained the contribution period of mandatory social insurance;

- From January 2008 to December 2008 (1 year) contributed to voluntary social insurance with the total monthly income from voluntary social insurance contributions after adjustment according to the consumer price index being 8,200,000 VND, then retained the contribution period of voluntary social insurance;

- From January 2009 to December 2009 (1 year) participated in mandatory social insurance and continued to retain the contribution period of mandatory social insurance;

- From January 2010 to December 2011 (2 years), voluntarily contribute to social insurance with the total monthly income adjusted according to the consumer price index being 25,100,000 VND, then continue to retain the voluntary social insurance contribution period;

- From January 2012 to December 2012 (1 year), participate in mandatory social insurance.

Thus, Mr. B has contributed to mandatory social insurance for 17 years, with the average monthly salary and wage for mandatory social insurance contributions being 3,000,000 VND/month. The period of voluntary social insurance contributions is 3 years, and the total monthly income adjusted according to the consumer price index for voluntary social insurance contributions is:

8,200,000 VND + 25,100,000 VND = 33,300,000 VND.

The average monthly salary, wage, and income for social insurance contributions of Mr. B is calculated as follows:

c) The monthly pension amount is calculated as the product of the percentage of the monthly pension and the average monthly salary, wage, and income for social insurance contributions as stipulated in point b of this clause.

d) If the total mandatory social insurance contribution period is 20 years or more, and if the monthly pension amount calculated according to point c of this clause is lower than the national minimum wage, it shall be adjusted to the national minimum wage.

đ) The one-time allowance upon retirement is calculated according to the provisions of Clause 4, Article 28 of Decree No. 152/2006/NĐ-CP, with each year of social insurance contribution being equivalent to 0.5 months of the average monthly salary, wage, and income for social insurance contributions as stipulated in point b of this clause.

e) For those who have previously participated in mandatory social insurance after contributing to voluntary social insurance and retaining the voluntary social insurance contribution period, the conditions for receiving a one-time social insurance benefit are implemented according to the provisions of Clause 1, Article 30 of Decree No. 152/2006/NĐ-CP. The period of social insurance contribution for calculating the one-time social insurance benefit is the total period of mandatory and voluntary social insurance contributions. The one-time social insurance benefit amount is calculated as 1.5 months of the average monthly salary, wage, and income for social insurance contributions as stipulated in point b of this clause for each year of social insurance contribution. In cases where social insurance contributions are made from 3 to 6 months, the benefit amount is 0.75 months of the average monthly salary, wage, and income for social insurance contributions; for contributions from over 6 months to 12 months, the benefit amount is 1.5 months of the average monthly salary, wage, and income for social insurance contributions.

5. Amend Clause 4, Section V, Part B of the bereavement benefits system as follows:

"4. The dependents of the subjects specified in Clause 1, Article 36, if they are disabled, their disability assessment for monthly bereavement allowance according to Clause 2, Article 36 of Decree No. 152/2006/NĐ-CP shall be conducted by the social insurance organization. The deadline for recommending a disability assessment is within 4 months from the date of the worker's death. In cases where the worker dies while the child is still within the age limit for monthly allowances, the deadline for recommending a disability assessment is within 4 months before and 4 months after the cessation of the allowance according to regulations. When there is a conclusion of a disability rate of 81% or higher, they will continue to receive allowances from the month following the cessation of the allowance."

6. Add Clause 6 to Section V, Part B of the bereavement benefits system as follows:

"6. Bereavement allowance for those who have previously participated in mandatory social insurance after contributing to voluntary social insurance.

a) Those who have previously participated in mandatory social insurance after contributing to voluntary social insurance and retaining the voluntary social insurance contribution period, the basis for calculating the bereavement benefits is the total period of mandatory and voluntary social insurance contributions.

b) Those who have contributed to mandatory social insurance for at least 15 years when they die, their dependents will receive monthly bereavement allowance according to Clause 2, Article 36 and Article 37 of Decree No. 152/2006/NĐ-CP.

c) Those who have contributed to mandatory social insurance for less than 15 years or have contributed for at least 15 years but do not have dependents eligible for monthly bereavement allowance when they die, their dependents will receive a one-time bereavement allowance, calculated as follows:

One-time bereavement allowance = N x 1.5 x Mbqtl,tn

Where:

- N: number of years of social insurance contributions (including both voluntary and mandatory social insurance contributions).

- Mbqtl,tn: the average monthly salary, wage, and income for social insurance contributions as stipulated in Clause 6a, Section IV, Part B of this Circular.

The minimum one-time bereavement allowance is three months of the average monthly salary, wage, and income for social insurance contributions.

d) Those who are receiving a pension and have contributed to mandatory social insurance for less than 15 years or have contributed for at least 15 years but do not have dependents eligible for monthly bereavement allowance, their dependents will receive a one-time bereavement allowance, calculated as stipulated in Clause 2, Section V, Part B of Circular No. 03/2007/TT-BLĐTBXH; the minimum amount is three months of the pension received before death.

7. Add to the end of point b, Clause 5, Part D as follows:

"The time of receiving the pension for this subject is calculated from the month immediately following the month when the 20-year contribution period is completed and all required documents are submitted.

Example 4: Mr. C reached the age to receive retirement benefits in April 2009, by April 2009 he had only contributed to social insurance for 19 years and 7 months. In this case, Mr. C continued to contribute for the remaining 5 months. In May 2009, Mr. C paid for the remaining 5 months in one payment and submitted all necessary documents to the social insurance agency. Therefore, the time of receiving the pension for Mr. C is calculated from September 2009.

Example 5: In the case of Mr. C (in Example 4), Mr. C did not pay for the remaining 5 months until November 2009 and submitted all necessary documents to the social insurance agency. Therefore, the time of receiving the pension for Mr. C is calculated from December 2009.

8. Add to the end of point c, Clause 5, Part D as follows:

"The time when these subjects are entitled to monthly pension benefits shall be counted from the month immediately following the month in which the worker died."

9. Supplement Clauses 13, 14, 15, 16, 17, 18, 19, and Clause 20 to Part D as follows:

"13. For individuals receiving monthly work injury allowance or occupational disease allowance before January 1, 2007, the provision of living aids and orthopedic devices shall be carried out according to the guidance provided in documents issued prior to January 1, 2007.

14. Individuals who are receiving disability pension and subsequently have worked and contributed to social insurance shall, in addition to their disability pension, also be entitled to social insurance benefits. The period for calculating social insurance benefits shall be based on the period of social insurance contributions, and the working period calculated for disability pension shall not be counted towards social insurance benefits.

15. A copy of the documentation proving permanent residence abroad for workers receiving one-time social insurance benefit under Article 120 of the Social Insurance Law for the purpose of settling abroad shall be an entry visa for long-term stay or a permanent residency card or a certificate of long-term stay issued by the competent authority of the host country; these documents must be translated and certified.

16. Discharge papers or consultation reports from hospitals for workers suffering from diseases listed in the category requiring long-term treatment as stipulated in Clause 2 of Article 112 of the Social Insurance Law, clearly stating the name of the disease that the worker needs to treat. The sick leave benefit shall be processed according to the file of each period during which the worker takes leave for treatment (inpatient or outpatient).

17. The time served as a village cadre shall be considered as the period of social insurance contributions for the calculation of the average monthly salary or wage for social insurance contributions.

18. The calculation of the working period prior to January 1, 1995, for social insurance benefits shall be implemented according to the guidance provided in previous documents regarding the calculation of the working period prior to January 1, 1995, for social insurance benefits for civil servants, public officials, employees, workers, military personnel, and police officers.

19. Workers who have both voluntary social insurance contribution periods and mandatory social insurance contribution periods shall not have their voluntary social insurance contribution periods counted towards sick leave, maternity, work injury, or occupational disease benefits.

20. Individuals who temporarily suspended receipt of pension or monthly social insurance allowance due to being missing and later declared dead by a court shall not be entitled to pension or monthly social insurance allowance from the time of suspension until the court's declaration of death."

Article 2. Implementation clause

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

2. The provisions set forth in Clauses 1, 2, 4, 6, 7, 8, and Points 13, 14, 15, 17, 18, 19, 20 of Clause 9 of Article 1 of this Circular shall apply from January 1, 2007. The provision set forth in Clause 3 of Article 1 of this Circular shall apply from January 1, 2008.

3. During implementation, any difficulties should be reported to the Ministry of Labor - Invalids and Social Affairs for study and resolution.