Circular No. 44/2015/TT-BLDTBXH guides the implementation of certain provisions of Decree No. 63/2015/NĐ-CP dated July 22, 2015, of the Government on policies for redundant workers when restructuring state-owned limited liability companies.

CIRCULAR

Guidelines for Implementing Certain Provisions of N |||Decree number 63/2015/NĐ-CP July 22

 2015 issuedCGovernment regulations on policies for redundant workers when

 reorganizing limited liability companies with one member N ||| state-owned

 ownershipu

___________________________

 

Pursuant to Decree No. 106/2012/NĐ-CP dated December 20, 2012, of the Government, stipulating the functions, tasks, powers, and organizational structure of the Ministry of Labor, Invalids, and Social Affairs;

Pursuant to Decree No. 63/2015/NĐ-CP dated July 22, 2015 of the Government stipulating policies for redundant workers when reorganizing limited liability companies with one state-owned member;

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

The Minister of Labor, Invalids and Social Affairs issues this Circular guiding the implementation of certain provisions of Decree No. 63/2015/NĐ-CP dated July 22, 2015 of the Government stipulating policies for redundant workers when reorganizing limited liability companies with one state-owned member.

Article 1. Scope of Regulation

This Circular guides the implementation of policies for redundant workers when reorganizing limited liability companies with one state-owned member (hereinafter referred to as the company undergoing reorganization) as stipulated in Decree No. 63/2015/NĐ-CP dated July 22, 2015 of the Government stipulating policies for redundant workers when reorganizing limited liability companies with one state-owned member (hereinafter referred to as Decree No. 63/2015/NĐ-CP).

Article 2. Applicability

Redundant workers in the company undergoing reorganization; representatives of the company's capital; other agencies, organizations, and individuals related to the implementation of policies for redundant workers when reorganizing limited liability companies with one state-owned member as stipulated in Article 2 of Decree No. 63/2015/NĐ-CP.

c) List and number of employees and representatives of the enterprise's equity in other enterprises at the valuation date who will retire according to laws on social insurance during the period from the valuation date to the expected approval date of the joint-stock conversion plan as approved in the joint-stock conversion plan;

After being notified by the competent authority or through the reorganization plan, the company undergoing reorganization shall develop a labor utilization plan. The labor utilization plan includes: workers the company continues to employ or trains to continue employing; workers whose employment contracts are terminated and their benefits are settled as follows:

1. Prepare a list of regular workers of the company according to Model No. 1 issued together with this Circular, including:

a) List of workers currently working under labor contracts (including workers working under seasonal or specific task labor contracts with a term of less than 12 months).

b) List of workers currently on leave (paid or unpaid as provided for in Article 98 of the Labor Code).

c) List of workers currently on leave receiving social insurance benefits.

d) List of workers currently on leave without pay as provided for in Clause 3, Article 116 of the Labor Code.

đ) List of workers temporarily suspending the performance of labor contracts as provided for in Article 32 of the Labor Code (including workers appointed by the company as representatives of the company's capital and working at enterprises with the company's shareholding).

2. Prepare a list of workers to be continued to be employed at the company after reorganization according to Model No. 2 issued together with this Circular based on reviewing organizational structure, quota systems, job positions within each team, workshop, department, and the strategic direction for the company's development after reorganization, including:

a) List of workers to be continued to be employed (without needing further training and working full-time).

b) List of workers requiring further training to be continued to be employed (if applicable).

c) List of workers to work part-time (if applicable).

3. Prepare a list of workers who will be laid off and have their employment contracts terminated or will terminate their employment contracts according to Article 36 of the Labor Code according to Model No. 3 issued together with this Circular.

4. Prepare a list of workers unable to be assigned jobs at the company after reorganization and must have their employment contracts terminated (hereinafter referred to as the list of redundant workers), including:

a) List of workers unable to be assigned jobs and must have their employment contracts terminated who were last hired by the company before April 21, 1998 according to Model No. 4 issued together with this Circular (for companies undergoing reorganization as provided for in Clauses 1, 2, 3, and 4 of Article 1 of Decree No. 63/2015/NĐ-CP) or before April 26, 2002 according to Model No. 4a issued together with this Circular (for companies undergoing reorganization as provided for in Clause 5 of Article 1 of Decree No. 63/2015/NĐ-CP), including:

 - List of workers retiring early as provided for in Clause 1, Clause 2 of Article 3 of Decree No. 63/2015/NĐ-CP;

- List of workers reaching retirement age but lacking social insurance contribution time as provided for in Clause 3 of Article 3 of Decree No. 63/2015/NĐ-CP;

- List of workers required to have their employment contracts terminated as provided for in Clause 4 (for companies undergoing reorganization as provided for in Clauses 1, 2, 3, and 4 of Article 1 of Decree No. 63/2015/NĐ-CP) or Clause 5 (for companies undergoing reorganization as provided for in Clause 5 of Article 1 of Decree No. 63/2015/NĐ-CP) of Article 3 of Decree No. 63/2015/NĐ-CP.

b) List of workers unable to be assigned jobs and must have their employment contracts terminated who were last hired by the company from April 21, 1998 onwards (for companies undergoing reorganization as provided for in Clauses 1, 2, 3, and 4 of Article 1 of Decree No. 63/2015/NĐ-CP) according to Model No. 5 issued together with this Circular or from April 26, 2002 onwards (for companies undergoing reorganization as provided for in Clause 5 of Article 1 of Decree No. 63/2015/NĐ-CP) according to Model No. 5a issued together with this Circular.

5. The company finalizes the list of workers at the time of announcing the enterprise value (for the case of converting the company into a joint-stock company) or at the time of sale in the purchase-sale contract (for the case of selling the company) or at the time of conversion as decided by the competent authority (for the case of converting into a limited liability company with two or more members, converting into a public institution) or at the time of merger, consolidation, division, dissolution as decided by the competent authority (for the case of merging, consolidating, dividing, dissolving the company) or at the time of the bankruptcy court's decision to initiate bankruptcy proceedings becoming effective (for the case of the company going bankrupt) to include in the company reorganization plan.

6. Determining the termination date of the labor contract and calculating the benefits for surplus workers, including:

a) Benefits for workers retiring early according to Clause 1 and Clause 2, Article 3 of Decree No. 63/2015/NĐ-CP, following Model No. 6 issued together with this Circular;

b) Benefits for workers reaching retirement age but lacking social insurance contribution time according to Clause 3, Article 3 of Decree No. 63/2015/NĐ-CP, following Model No. 7 issued together with this Circular;

c) Benefits for workers required to terminate their labor contracts according to Clause 4, Article 3 of Decree No. 63/2015/NĐ-CP, following Model No. 8 issued together with this Circular or according to Clause 5, Article 3 of Decree No. 63/2015/NĐ-CP, following Model No. 8a issued together with this Circular;

d) Benefits for workers unable to be assigned work and required to terminate their labor contracts according to Clause 1, Article 4 of Decree No. 63/2015/NĐ-CP, following Model No. 9 issued together with this Circular or according to Clause 2, Article 4 of Decree No. 63/2015/NĐ-CP, following Model No. 9a issued together with this Circular.

7. Summarizing the labor utilization plan according to Model No. 10 issued together with this Circular.

8. Cooperating with the representative organization of the workforce at the workplace to publicly disclose the labor utilization plan (in the restructuring plan) for at least ten days and sending it to each team, workshop, department for study before organizing the Workers' Meeting to seek workers' opinions on the labor utilization plan. The organization of the Workers' Meeting shall be carried out in accordance with the provisions of Government Decree No. 60/2013/NĐ-CP dated June 19, 2013, detailing Clause 3, Article 63 of the Labor Code regarding the implementation of democratic regulations at the workplace.

9. Completing the labor utilization plan within the restructuring plan, submitting it to the competent authority for approval of the restructuring plan.

10. After receiving the decision approving the restructuring plan, the company reviews the list, estimates the termination date of the labor contract, recalculates the benefits for surplus workers, completes the labor utilization plan and resolves surplus labor issues, publicly discloses the labor utilization plan and resolution of surplus labor for five working days for workers to review and verify, and submits it to the competent authority for approval of the labor utilization plan and resolution of surplus labor.

Article 4. Working Time Basis for Calculating Benefits

1. The working time with social insurance contributions serving as the basis for calculating the support amount specified in Point c, Clause 1 and Point b, Clause 2, Article 3 of Decree No. 63/2015/NĐ-CP is the time for mandatory social insurance benefits calculated according to the laws on social insurance.

2. The working time serving as the basis for calculating unemployment assistance, severance pay, the support amount specified in Clauses 4 and 5, Article 3, and unemployment assistance, severance pay specified in Article 4 of Decree No. 63/2015/NĐ-CP is the actual working time at the company implementing the restructuring minus the time the worker has participated in unemployment insurance according to the laws on unemployment insurance and the time the company implementing the restructuring has paid severance pay or unemployment assistance (if applicable).

The actual working time at the company implementing the restructuring and the time the worker has participated in unemployment insurance are determined according to Point a and Point b, Clause 3, Article 14 of Government Decree No. 05/2015/NĐ-CP dated January 12, 2015, detailing and guiding the implementation of certain contents of the Labor Code (hereinafter referred to as Decree No. 05/2015/NĐ-CP).

3. In cases where workers transferred to work at the company implementing the restructuring before January 1, 1995, the time for calculating unemployment assistance, severance pay, and the support amount specified in Clauses 4 and 5, Article 3 and Article 4 of Decree No. 63/2015/NĐ-CP includes the working time for calculating unemployment assistance, severance pay, and the support amount specified in Clause 2 of this Article and the actual working time in the state sector prior to that (including: administrative agencies, state-owned public institutions, units under the armed forces receiving salaries from the state budget, state-owned enterprises with 100% state capital, state-owned agricultural and forestry farms).

Article 5. Wages serving as the basis for benefits

1. The average wage over the last five years before retirement as stipulated in point a, Clause 1, Article 7 of Decree No. 63/2015/NĐ-CP shall be calculated as follows:

Where:

TL_bq5 is the average wage of the last five years before retirement.

TL_i is the first month's wage determined as follows:

a) For the period during which the employee falls under the wage system prescribed by the State, the monthly wage is determined by multiplying the salary coefficient plus any additional allowances (if applicable) based on job or position classification according to the provisions of Government Decree No. 205/2004/NĐ-CP dated December 14, 2004 on the wage scale and allowance system in state-owned enterprises, with the general minimum wage or the salary coefficient plus any additional allowances (if applicable) based on job or position classification according to the provisions of Government Decree No. 204/2004/NĐ-CP dated December 14, 2004 on the wage system for civil servants, public officials, employees, and armed forces personnel, multiplied by the general minimum wage or the basic wage set by the Government corresponding to each period;

b) For the period during which the company reorganizes and has not yet established a wage scale and pay grade according to the provisions of Government Decree No. 49/2013/NĐ-CP dated May 14, 2013 detailing certain articles of the Labor Code on wages until December 31, 2015, the monthly wage is the social insurance wage of the employee;

c) For the period during which the employee implements the wage system decided by the employer, the monthly wage is the wage recorded in the labor contract (including the base wage, additional allowances, and other supplementary amounts) according to Clause 1, Article 21 of Decree No. 05/2015/NĐ-CP.

2. The average monthly social insurance wage over the last five years before retirement as stipulated in point b, Clause 1, Article 7 of Decree No. 63/2015/NĐ-CP shall be calculated based on the monthly social insurance wage recorded in the social insurance book of the representative of the company's capital.

3. The average wage over the six consecutive months immediately preceding the date when the person authorized by the company undergoing reorganization to exercise the rights and responsibilities of the company towards its capital in another enterprise is appointed shall be determined as provided in points a, b, and c of Clause 1 of this Article.

Article 6. Responsibilities of the company undergoing reorganization in implementing the system

The responsibilities of the company undergoing reorganization in implementing the system for surplus workers as stipulated in Clause 1, Article 9 of Decree No. 63/2015/NĐ-CP are as follows:

1. Publicize the labor utilization plan as prescribed in Clause 8 and Clause 10, Article 3 of this Circular through various forms: providing information at key meetings or meetings from production teams to the entire company; publicly posting in convenient locations for workers to see; broadcasting through internal communication systems, the internet, or delivering written notices to workers, departments, production teams.

2. Organize propaganda and dissemination of surplus labor policies to all workers in the company prior to, during the process of formulating the labor utilization plan, and while implementing the system for surplus workers.

3. Within ten working days from the date of receipt of the decision approving the labor utilization plan and handling surplus workers from the competent authority, the company undergoing reorganization is responsible for budgeting the funds required to implement the system for surplus workers according to the approved plan and preparing a request for financial support for surplus workers in accordance with the Management and Use Regulations of the Enterprise Restructuring and Development Fund issued together with Decision No. 21/2012/QĐ-TTg dated May 10, 2012 of the Prime Minister (if applicable).

4. Within seven working days from the date of receipt of funds for implementing the system from sources as stipulated in Article 8 of Decree No. 63/2015/NĐ-CP, the company must terminate the labor contracts of surplus workers.

5. Within thirty days from the date of termination of the labor contract, the company is responsible for paying the benefits to surplus workers as prescribed.

6. Implement payment and settlement of funds for implementing the system for surplus workers in accordance with the law.

Article 7. Responsibilities of the company after restructuring towards employees transferred from the company implementing restructuring to work at the company after restructuring.

The responsibilities of the company after restructuring towards employees transferred from the company implementing restructuring to work at the company after restructuring as stipulated in point b Clause 2 Article 9 Decree No. 63/2015/ND-CP are specified as follows:

1. The company after restructuring shall be responsible for paying unemployment benefits and severance pay to employees transferred from the company implementing restructuring when such employees lose their jobs or terminate their employment at the company after restructuring for the time worked at the company after restructuring and the time worked at the company implementing restructuring, including the time the employee worked at other companies, agencies, units under the state sector if transferred to the company implementing restructuring before January 1, 1995 without having received severance pay or unemployment benefits.

2. The working period for calculating unemployment benefits and severance pay as stipulated in Clause 1 of this Article shall be implemented according to the provisions of Clause 2 Article 48, Clause 2 Article 49 Labor Code and Clause 3 Article 14 Decree No. 05/2015/ND-CP.

3. The working period of employees at other companies, agencies, units under the state sector as stipulated in Clause 1 of this Article shall be implemented according to the provisions of Clause 2 Article 6 Decree No. 63/2015/ND-CP.

Article 8. Responsibilities of the Vietnam Social Security.

1. Guide the collection of social insurance for surplus workers who have reached retirement age but lack the required social insurance contribution period as stipulated in Clause 3 Article 3 Decree No. 63/2015/ND-CP.

2. Direct, guide, and inspect provincial social insurance agencies under the central government to implement social insurance policies for surplus workers as stipulated in Decree No. 63/2015/ND-CP and current laws on social insurance.

Article 9. Reporting on Implementation Status.

1. The company implementing restructuring shall be responsible for reporting to the owner on the resolution of surplus labor policies as stipulated in Model No. 11 issued together with this Circular within thirty days from the date of completing the implementation of policies for surplus workers.

2. Representatives of the owners of the company implementing restructuring shall be responsible for reporting to the Ministry of Labor, Invalids and Social Affairs on the implementation of policies for surplus workers of the previous year according to Model No. 12 issued together with this Circular before January 30 each year.

3. The Vietnam Social Security shall report on the implementation of social insurance collection and policy implementation for surplus workers of the previous year according to the provisions of Decree No. 63/2015/ND-CP and this Circular before January 30 each year.

Article 10. Effective Date

1. This Circular takes effect from December 10, 2015.

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/NĐ-CP dated August 20, 2010 of the Government on policies for surplus workers when restructuring limited liability companies with state ownership ceases to be effective from the date this Circular takes effect.

2. In cases where the labor utilization plan has been approved before this Circular takes effect, the company implementing restructuring shall review again the policies for surplus workers in the approved labor utilization plan, report the results of the review to the owner; in cases where it is necessary to amend and supplement the policies for surplus workers (if any), report to the owner for examination, approval of amendments and supplements, and implement payment of policies for surplus workers in accordance with the provisions of Decree No. 63/2015/ND-CP and this Circular.

3. Limited liability companies with state ownership by political organizations or political-social organizations, when implementing restructuring according to the decision of the competent authority applying the provisions of Decree No. 63/2015/ND-CP to resolve policies for surplus workers, shall apply the provisions of this Circular.

4. State-owned companies, agricultural companies, forestry companies that have not yet converted into limited liability companies with state ownership and are now being restructured according to Article 1 of Decree No. 63/2015/ND-CP or restructured according to Decree No. 118/2014/ND-CP dated December 17, 2014 of the Government on restructuring, reforming and developing, improving the efficiency of agricultural and forestry companies shall apply Decree No. 63/2015/ND-CP to resolve policies for surplus workers and shall implement according to this Circular.

5. Limited liability companies with state ownership by the parent company of state economic groups, the parent company of state corporations, the parent company in a group of parent companies - subsidiaries, when implementing restructuring according to the decision of the competent authority applying the provisions of Decree No. 63/2015/ND-CP to resolve policies for surplus workers, shall implement according to this Circular.

6. In cases where the company implementing restructuring provides additional support to surplus workers from legitimate company funds as stipulated in Clause 7 Article 11 Decree No. 63/2015/ND-CP, the company must establish conditions, criteria, lists of employees receiving support and levels of support, agree with the representative organization of the workforce, and ensure transparency in the company during implementation. If there are difficulties during implementation, relevant agencies, organizations, and individuals should reflect these issues to the Ministry of Labor, Invalids and Social Affairs for supplementation and guidance.

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