Decree No. 45/2013/ND-CP detailing certain provisions of the Labor Code on working hours, rest periods, occupational safety, and labor hygiene.

DECREE

Detailed provisions on certain articles of the Labor Code regarding working hours, rest time, occupational safety, and labor hygiene

Detailed provisions on certain articles of the Labor Code regarding working hours, rest time, occupational safety, and labor hygiene

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Based on the Labor Code dated June 18, 2012;

Decree No. 07/2021/NĐ-CP

The Government provides detailed provisions on certain articles of the Labor Code regarding working hours, rest time, occupational safety, and labor hygiene.

PART I
SCOPE AND APPLICABLE OBJECTS

Article 1. Scope of Regulation

This Decree provides detailed provisions on certain articles of the Labor Code regarding working hours, rest time, occupational safety, and labor hygiene.

Article 2. Applicability

1. Provisions on working hours and rest time under this Decree shall apply to subjects specified in Article 2 of the Labor Code.

2. Provisions on occupational safety and labor hygiene under this Decree shall apply to the following subjects:

a) Vietnamese workers; foreign workers working in Vietnam; apprentices and trainees working for employers;

b) Enterprises, agencies, organizations, cooperatives, households; individuals related thereto.

Chapter II
WORKING HOURS AND REST PERIODS

Section 1
WORKING HOURS

Article 3. Time counted as working time with remuneration

1. Rest during working hours as prescribed in Article 5 of this Decree.

2. Breaks necessary due to the nature of work.

3. Necessary breaks during the working process included in the labor quota for natural human needs.

4. One hour of rest each day for female workers nursing children under 12 months old.

5. Thirty minutes of rest each day for female workers during menstruation.

6. Time when work must be stopped due to circumstances beyond the worker's control.

7. Time spent on training and education on occupational safety and labor hygiene.

8. Time spent on meetings, training, and instruction required by the employer or agreed upon by the employer.

9. Time spent on meetings, training, and instruction convened by higher-level trade unions for non-professional trade union officers as stipulated by laws on trade unions.

10. Shortened working time by at least one hour each day for senior workers in their last year before retirement.

Article 4. Overtime Work

1. The number of overtime hours in a day is regulated as follows:

a) Not exceeding 50% of normal working hours in one day; when applying the weekly working schedule, the total of normal working hours and overtime hours shall not exceed 12 hours in one day;

b) Not exceeding 12 hours in one day when working overtime on public holidays, Tet holidays, and regular rest days.

2. Organization of overtime work from 200 to 300 hours in a year is regulated as follows:

a) The following cases are allowed to organize overtime work:

- Production and processing of export products such as textiles, garments, leather, footwear, agricultural, forestry, and aquatic products;

- Production and supply of electricity, telecommunications, oil refining; water supply and drainage;

- Other cases where urgent work cannot be postponed.

b) When organizing overtime work, the employer must notify in writing the competent agency assisting the People's Committee of the province or centrally-administered city (hereinafter referred to as the provincial People's Committee) responsible for labor management in the locality.

3. Compensatory leave according to Point c Clause 2 Article 106 of the Labor Code is regulated as follows:

a) After each continuous period of up to seven days of maximum overtime in a month, the employer must arrange compensatory leave for the worker for the time not taken off;

b) In case compensatory leave is not arranged for the full time, the employer must pay overtime wages as prescribed in Article 97 of the Labor Code.

Section 2
WORKING REST PERIODS

Article 5. Rest during working hours

1. The break time between working hours prescribed in Clause 1 and Clause 2, Article 108 of the Labor Code shall be considered as working hours applied in continuous shifts of 08 hours under normal conditions or 06 hours in cases where it is shortened. The specific rest time is determined by the employer.

2. In addition to the rest time within the normal working shift as prescribed in Clause 1 of this Article, workers who work for 10 hours or more in a day including overtime hours shall be entitled to an additional rest period of at least 30 minutes included in the working hours.

Article 6. Time considered as working time of workers for calculating annual leave days

1. Training time for vocational skills to work for the employer according to the agreement in the vocational training contract.

2. Probationary period according to the labor contract thereafter working for the employer.

3. Time off with pay as prescribed in Clause 1, Article 116 of the Labor Code.

4. Time off without pay if agreed by the employer but not exceeding 01 month cumulatively.

5. Time off due to occupational accidents or occupational diseases but not exceeding 6 months cumulatively.

6. Time off due to illness but not exceeding 02 months cumulatively.

7. Time off to enjoy maternity benefits as prescribed by laws on social insurance.

8. Time off for trade union activities as prescribed by laws on trade unions.

9. Time when work must be stopped or work ceased without fault of the worker.

10. Time off due to temporary suspension of work.

11. Time detained or arrested but returned to work upon conclusion by competent state agencies that no crime was committed.

Article 7. Calculation of annual leave days for cases where less than a full year has been worked

The number of annual leave days according to Clause 2, Article 114 of the Labor Code shall be calculated as follows: add the number of annual leave days to the additional leave days based on seniority (if any), divide by 12 months, multiply by the actual number of working months in the year to calculate the number of annual leave days; the result of the calculation shall round to the nearest whole number, if the decimal part is greater than or equal to 0.5, then round up by one unit.

Article 8. Lunar New Year holiday

1. The Lunar New Year holiday time as prescribed in Clause 1, Article 115 of the Labor Code shall be chosen by the employer as either 01 day at the end of the lunar year and 04 days at the beginning of the lunar new year or 02 days at the end of the lunar year and 03 days at the beginning of the lunar new year.

2. Employers have the responsibility to notify the Lunar New Year holiday plan to workers at least 30 days before implementation.

Chapter III
WORK SAFETY AND OCCUPATIONAL HEALTH

Section 1
GENERAL PROVISIONS ON WORK SAFETY AND OCCUPATIONAL HEALTH

1. The Ministry of Labor, Invalids and Social Affairs is responsible for establishing the National Program on Work Safety and Occupational Health for each five-year stage, to be submitted to the Prime Minister for approval.

2. Annually, based on the approved National Program on Work Safety and Occupational Health, the budget estimates of ministries, agencies, and localities, the Ministry of Labor, Invalids and Social Affairs will compile the budget estimate for implementing the Program together with the state budget estimate to send to the Ministry of Finance and the Ministry of Planning and Investment for decision by the competent authority.

1. When constructing new, expanding, or renovating facilities for production, use, storage, or retention of machinery, equipment, materials, substances with strict requirements for labor safety and hygiene, the project investor and employer must establish a plan for labor safety and hygiene measures for workers' workplaces and the environment, and submit it to the competent authority for permission to construct, expand, or renovate the facility.

2. The plan for labor safety and hygiene measures must include the following main contents:

a) The location and scale of the facility must clearly state the distance from the facility to residential areas and other structures;

b) List and describe in detail the components within the facility;

c) Clearly identify hazardous and harmful factors and potential accidents that may occur during operation;

d) Specific measures to eliminate or reduce hazardous and harmful factors; accident handling and emergency response plans.

1. Employing elderly workers in heavy, toxic, and dangerous jobs can only be carried out when the following conditions are met:

a) The elderly worker has high experience and skills with at least 15 years of professional tenure; holds a certification or certificate of profession or is recognized as a master craftsman according to the law;

b) The elderly worker meets the health standards set by the Minister of Health for the profession or job;

c) Employment is time-limited; not exceeding five years for each worker;

d) Regular health check-ups must be conducted at least twice a year;

đ) There must be at least one worker who is not an elderly worker working alongside them.

2. Based on the provisions of Clause 1 of this Article, Ministries and agencies equivalent to Ministries shall specify job titles, professions, and specific conditions for employing elderly workers in special cases within their respective fields, industries, and professions under their management authority.

Section 2
WORKPLACE ACCIDENTS AND OCCUPATIONAL DISEASES

1. A workplace accident is an incident causing injury to any part or function of the body or resulting in death of a worker occurring during work, closely related to performing tasks or duties, including during rest breaks, meal times, supplementary food provision, menstrual hygiene, washing, breastfeeding, using the restroom, preparing and finishing work at the workplace.

2. An accident is considered a workplace accident if it occurs at a reasonable location and time when the worker travels from their residence to the workplace or vice versa.

3. Workplace accidents are classified as follows:

a) Fatal workplace accident;

b) Severe workplace accident;

c) Minor workplace accident.

4. A serious incident is an accident occurring during work (excluding workplace accidents) causing significant property damage to workers or employers.

1. The procedures for reporting, investigating, and statistically reporting workplace accidents and serious incidents are as follows:

a) Employers have the responsibility to immediately report fatal workplace accidents, severe workplace accidents involving two or more injured workers, and serious incidents to the Labor Inspectorate of the Department of Labor, Invalids, and Social Affairs where the accident occurred;

b) Employers have the responsibility to investigate minor workplace accidents, severe workplace accidents involving one injured worker, and serious incidents;

c) Labor inspectors have the responsibility to investigate fatal workplace accidents, severe workplace accidents involving two or more injured workers; re-investigate workplace accidents and serious incidents investigated by employers if there are complaints or reports, or if deemed necessary;

d) During the investigation of workplace accidents and serious incidents, if criminal signs are discovered, labor inspectors and employers must report to the competent state authorities and request the transfer of files to the criminal proceedings agency;

đ) Employers must maintain statistical records and report periodically every six months and annually to the competent state authorities regarding labor matters.

2. The procedures for statistically reporting occupational diseases are as follows:

a) Employers must establish health records for workers suffering from occupational diseases and report periodically every six months and annually to the competent state authorities regarding health and labor matters;

b) The Minister of Health shall provide detailed guidance on the procedures and processes for statistically reporting occupational diseases.

3. Employers have the responsibility to compensate and assist those affected by workplace accidents and occupational diseases according to the guidelines of the Minister of Labor, Invalids, and Social Affairs.

For workplaces with hazardous factors that pose risks of occupational accidents and occupational diseases, employers shall have the following responsibilities:

1. Inspect and evaluate hazardous factors; propose measures to eliminate or reduce hazards, improve working conditions, and care for workers' health;

2. Organize measurements of harmful factors at least once a year; establish and retain records according to legal regulations;

3. Equip technical and medical means to ensure timely rescue and first aid when incidents or occupational accidents occur;

4. Develop emergency response plans and organize on-site rescue teams according to legal regulations; rescue teams must be trained in skills and regularly practice.

Article 15. Organization of Technical Safety Inspection Activities for Occupational Health

1. Technical safety inspection for occupational health is a technical activity carried out according to a specified procedure (hereinafter referred to as the inspection procedure) aimed at evaluating and confirming the technical safety status of the inspected object in accordance with technical standards or technical specifications.

2. Organizations conducting technical safety inspection activities for occupational health are public service units or enterprises established in accordance with the provisions of the law and granted a Certificate of Eligibility for Technical Safety Inspection Activities by the competent state management agency.

Article 16. Conditions for Issuing a Certificate of Eligibility for Technical Safety Inspection Activities

1. Having a business registration certificate or a decision on establishment by the competent authority.

2. Having material and technical facilities meeting the requirements of each inspection object.

3. Having sufficient inspectors meeting the requirements of each inspection object.

4. Having an appropriate organizational structure to carry out inspection activities.

Article 17. Documents and Procedures for Issuing, Reissuing, Supplementing, and Amending the Certificate of Eligibility for Technical Safety Inspection Activities

1. The documents for issuing a Certificate of Eligibility for Technical Safety Inspection Activities include:

Point a) Application form for the Certificate;

b) Documentation proving the capacity in compliance with the conditions stipulated in Article 16 of this Decree.

2. The documents for reissuing a Certificate of Eligibility for Technical Safety Inspection Activities are as follows:

a) At least three months before the expiration date stated in the Certificate, organizations wishing to continue providing technical safety inspection services must submit reissue application documents. The documents include:

- Application for reissuance of the Certificate;

- The previously issued Certificate;

- Report on the operation of the organization during the period the Certificate was issued;

- Documentation proving the capacity in compliance with the conditions stipulated in Article 16 of this Decree;

b) In cases where the Certificate is lost or damaged, organizations wishing to continue providing technical safety inspection services must submit reissue application documents. The documents include:

- Application for reissuance of the Certificate;

- A copy or original of the previously issued Certificate (if available).

3. The documents for requesting supplementation or amendment of the Certificate of Eligibility for Technical Safety Inspection Activities include:

a) Application for supplementation or amendment of the Certificate;

b) The previously issued Certificate;

c) Documentation proving the need for supplementation or amendment.

4. The procedures for issuing, reissuing, supplementing, and amending the Certificate of Eligibility for Technical Safety Inspection Activities are as follows:

a) Organizations wishing to apply for issuance, reissuance, supplementation, or amendment of the Certificate must submit registration documents to the competent authority specified in Article 18 of this Decree; simultaneously paying fees related to the assessment of eligibility conditions, issuance, reissuance, supplementation, or amendment of the Certificate;

b) Within thirty working days from the date of receipt of complete and valid documents, the competent authority specified in Article 18 of this Decree shall issue, reissue, supplement, or amend the Certificate; if not issuing, reissuing, supplementing, or amending the Certificate, it must provide a written response stating the reasons.

Article 18. Competence to Issue Certificates of Qualification for Technical Safety Inspection Activities

1. The competence to issue Certificates of Qualification for Technical Safety Inspection Activities shall be as follows:

a) Ministry of Industry and Trade: industrial explosives; hydraulic systems for turbine blade grinding in hydroelectric power plants; machines and equipment with strict safety requirements for underground mining operations only;

b) Ministry of Transport: types of machines, equipment, and materials with strict safety requirements for operating the engines of land, inland waterway, maritime, railway, and air transport vehicles (excluding machines, equipment, and materials with strict safety requirements that are transported or installed on transport vehicles for work at construction sites, warehouses, production, and business premises); equipment with strict safety requirements for offshore oil and gas exploration and extraction; marine oil and natural gas pipeline systems;

c) Ministry of Science and Technology: nuclear reactors; electromagnetic compatibility test chambers; types of machines and equipment with strict safety requirements for high-voltage power grids; machines and equipment containing radioactive sources and radiation;

d) Ministry of Construction: scaffolding systems; sliding formwork systems; combined beams and columns;

đ) Ministry of Information and Communications: high-frequency radiating antennas; high-frequency power amplifiers in broadcasting and television;

e) Ministry of National Defense: types of machines, equipment, and materials with strict safety requirements exclusively for national defense purposes and special military needs;

g) Ministry of Labor, Invalids, and Social Affairs: types of machines, equipment, and materials with strict safety requirements, except those specified in Points a, b, c, d, đ, and e of this Clause;

2. The issuing authority specified in Clause 1 of this Article shall also have the authority to reissue, supplement, amend, revoke, and suspend Certificates of Qualification for Technical Safety Inspection Activities.

Article 19. Validity Period of Certificate of Qualification for Technical Safety Inspection Activities

1. The validity period of the Certificate of Qualification for Technical Safety Inspection Activities is three years for newly issued or reissued certificates when the existing certificate has expired.

2. The validity period of a reissued Certificate of Qualification for Technical Safety Inspection Activities due to loss or damage is the remaining time of the previously issued certificate.

Article 20. Suspension of Technical Safety Inspection Organization Activities

Organizations conducting technical safety and health inspection activities shall be suspended from conducting inspections in the following cases:

1. Failure to meet the conditions stipulated in Article 16 of this Decree;

2. Continuous failure to report to the competent authority on inspection activities as required by law for eighteen months.

Article 21. Revocation of Certificate of Qualification for Technical Safety Inspection Activities

1. Expiration of the suspension period without rectifying the causes for suspension.

2. Being administratively penalized three times for the same violation or three times within one year.

3. Conducting inspection activities during the suspension period.

4. Falsifying or misrepresenting documents in the application, reissuance, supplementation, or amendment of the certificate.

5. Altering the contents of the certificate.

Article 22. Rights and responsibilities of organizations conducting technical safety and health inspection activities

1. Organizations conducting technical safety and health inspection activities have the following rights:

a) To carry out inspection activities according to service inspection contracts;

b) To collect fees and service charges in accordance with the provisions of the law;

c) To make recommendations, complaints, and reports on acts hindering inspection activities;

d) To request organizations and individuals whose objects are proposed for inspection to provide relevant documents and information for inspection activities;

đ) Other rights as prescribed by law.

2. Organizations conducting technical safety and health inspection activities have the following responsibilities:

a) To provide inspection services within the scope and subjects specified in the Certificate of Eligibility for Technical Safety and Health Inspection Activities;

b) Not to refuse to provide inspection services without legitimate reasons;

c) To conduct inspections according to the inspection procedures;

d) To be responsible for the results of inspections, to compensate for damages caused by inspection activities in accordance with the provisions of the law; to recall issued inspection results when violations are discovered;

đ) To report to competent authorities on the situation of inspection activities in accordance with the provisions of the law;

e) To retain inspection records;

g) Other responsibilities as prescribed by law.

Article 23. Responsibilities for using machinery, equipment, and materials with strict requirements for safety and health

Enterprises, agencies, organizations, cooperatives, households, and individuals using machinery, equipment, and materials with strict requirements for safety and health have the responsibility:

1. To enter into a contract with an organization conducting technical safety and health inspection activities to conduct initial inspections before putting into use or periodic inspections during the use of machinery, equipment, and materials with strict requirements for safety and health;

2. To declare before putting into use, and to report the inspection results of machinery, equipment, and materials with strict requirements for safety and health to competent authorities.

Article 24. Responsibilities of state management agencies regarding technical safety and health inspection activities

Ministries, agencies at the level of ministries, and government agencies shall have the responsibility to:

1. To propose types of machinery, equipment, and materials under their jurisdiction to be included in the list of machinery, equipment, and materials with strict requirements for safety and health for issuance by the Ministry of Labor, Invalids and Social Affairs;

2. To issue inspection procedures for objects within their jurisdiction as stipulated in Article 18 of this Decree, after obtaining written comments from the Ministry of Labor, Invalids and Social Affairs;

3. To detail Articles 16, 17, and 20 of this Decree; conditions, procedures, and formalities for issuing and revoking Technical Safety and Health Inspector Certificates within their jurisdiction;

4. To organize inspections and supervision of technical safety and health inspection activities within their jurisdiction;

5. To compile and submit annual or ad hoc reports to the Ministry of Labor, Invalids and Social Affairs on the situation of technical safety and health inspection activities.

Chapter IV
STATE MANAGEMENT OF WORKING HOURS, REST PERIODS, AND SAFETY AND HEALTH AT WORK, OCCUPATIONAL HYGIENE

1. The Ministry of Labor - Invalids and Social Affairs shall be responsible before the Government for unified state management of working hours, rest time, and labor safety and hygiene, and shall have the responsibility to:

a) Develop and submit to competent authorities for issuance, or issue within its authority, legal documents on working hours, rest time, and labor safety and hygiene;

b) Take the lead and coordinate with relevant Ministries and agencies to establish the National File on Labor Safety and Hygiene according to international practices;

c) Organize the dissemination and popularization of laws on working hours, rest time, and labor safety and hygiene;

d) Guide and manage the organization of training on labor safety and hygiene;

đ) Guide the implementation of labor safety and hygiene work at enterprises, agencies, organizations, and cooperatives engaged in production and business activities;

e) Incorporate labor safety and hygiene content into teaching programs in schools and vocational training institutions;

g) Conduct investigations into workplace accidents; coordinate with the Ministry of Public Security and the Supreme People's Procuracy to investigate and handle workplace accidents that indicate criminal offenses;

h) Organize inspections and checks on compliance with laws on working hours, rest time, and labor safety and hygiene;

i) Cooperate internationally in the field of working hours, rest time, and labor safety and hygiene.

2. The Ministry of Health has the responsibility:

a) Develop and submit to competent authorities for issuance, or issue within its authority, legal documents on health care for workers; health standards specified for each type of occupation and job;

b) Take the lead and coordinate with the Ministry of Labor - Invalids and Social Affairs to develop and promulgate lists of occupational diseases;

c) Coordinate with the Ministry of Labor - Invalids and Social Affairs to guide measures to ensure labor hygiene when constructing, expanding, or renovating facilities and premises for the production, use, storage, and retention of substances requiring strict labor hygiene control within their jurisdiction;

d) Guide the organization of on-site emergency response teams; content of first aid and emergency training at workplaces;

đ) Guide and manage the organization of regular health examinations, pre-employment health examinations, occupational disease examinations; medical examination to classify disability levels, treatment, and functional recovery for persons injured in workplace accidents or suffering from occupational diseases;

3. The Ministry of Science and Technology shall be responsible for:

a) Uniformly manage research and application of science and technology related to labor safety and hygiene;

b) Be responsible for organizing and directing activities related to radiation safety and nuclear safety.

4. The Ministry of Education and Training shall be responsible for incorporating labor safety and hygiene content into teaching programs in higher education institutions.

5. The Ministry of Culture, Sports and Tourism and the Ministry of Labor - Invalids and Social Affairs shall provide guidance on working hours, rest time, and labor safety and hygiene suitable for the working conditions of workers in the arts and sports sectors.

6. The Ministry of Finance and the Ministry of Labor - Invalids and Social Affairs shall stipulate rates, collection procedures, management, and use of fees and charges related to technical safety inspection activities and labor safety and hygiene training.

7. Ministries and agencies equivalent to ministries within the scope of their duties and powers shall be responsible for state management of working hours, rest time, and labor safety and hygiene.

8. Provincial People's Committees shall implement state management of working hours, rest time, and labor safety and hygiene within their localities; establish targets for ensuring labor safety and hygiene and improving working conditions.

Chapter V
IMPLEMENTING PROVISIONS

Article 26. Effective date

1. This Decree shall take effect from July 1, 2013.

2. Decree No. 195/CP dated December 31, 1994 of the Government detailing and guiding the implementation of certain provisions of the Labor Code on working hours and rest time; Decree No. 06/CP dated January 20, 1995 of the Government detailing certain provisions of the Labor Code on labor safety and hygiene; Decree No. 109/2002/NĐ-CP dated December 27, 2002 of the Government amending and supplementing certain provisions of Decree No. 195/CP dated December 31, 1994 of the Government detailing and guiding the implementation of certain provisions of the Labor Code on working hours and rest time; Decree No. 110/2002/NĐ-CP dated December 27, 2002 of the Government amending and supplementing certain provisions of Decree No. 06/CP dated January 20, 1995 of the Government guiding certain provisions of the Labor Code on labor safety and hygiene; Article 2 of Decree No. 81/2012/NĐ-CP dated October 8, 2012 of the Government amending and supplementing certain provisions of Decree No. 68/2008/NĐ-CP dated May 30, 2008 of the Government on conditions, procedures for establishment, organization, operation, and dissolution of social welfare facilities and Decree No. 109/2002/NĐ-CP dated December 27, 2002 of the Government amending and supplementing certain provisions of Decree No. 195/CP dated December 31, 1994 of the Government detailing and guiding certain provisions of the Labor Code on working hours and rest time shall cease to be effective from the date this Decree takes effect.

3. The provisions on working hours, rest time, and labor safety and hygiene stipulated in this Decree shall apply to officials, civil servants, public employees, and members of the People's Army and People's Police forces, except where specific legal regulations applicable to these groups provide otherwise.

Article 27. Detailed regulations and guidance on implementation

1. The Minister of Labor - Invalids and Social Affairs shall be responsible for guiding the implementation of this Decree.

2. The Minister, Heads of ministerial-level agencies, Heads of government agencies, Chairpersons of provincial People's Committees under central cities shall be responsible for implementing this Decree./.