Circular No. 47/2015/TT-BLDTBXH guiding the implementation of certain provisions on labor contracts, labor discipline, and material responsibility under Decree No. 05/2015/NĐ-CP dated January 12, 2015 of the Government detailing and guiding the implementation of certain contents of the Labor Code.

Chapter II

LABOR CONTRACTS

ARTICLE 3. DELEGATION OF AUTHORITY TO ENTER INTO LABOR CONTRACTS

1. THE DELEGATION DOCUMENT FOR ENTERING INTO LABOR CONTRACTS IN CASES WHERE THE PARTY ENTERING INTO THE LABOR CONTRACT ON BEHALF OF THE EMPLOYER, AS PROVIDED IN POINTS A, B, AND C OF CLAUSE 1 OF ARTICLE 3 OF GOVERNMENT DECREE NO. 05/2015/NĐ-CP, DOES NOT DIRECTLY ENTER INTO LABOR CONTRACTS USING MODEL NUMBER 01 ATTACHED HERETO.

2. THE DELEGATION OF AUTHORITY TO ENTER INTO LABOR CONTRACTS FOR A WORKER IN THE GROUP AS PROVIDED IN POINT D OF CLAUSE 2 OF ARTICLE 3 OF GOVERNMENT DECREE NO. 05/2015/NĐ-CP MUST BE DOCUMENTED IN WRITING. THE DELEGATION DOCUMENT FOR ENTERING INTO LABOR CONTRACTS MUST INCLUDE THE FOLLOWING MAIN CONTENTS:

a) FULL NAME, DATE OF BIRTH, GENDER, PERMANENT ADDRESS, OCCUPATION, SIGNATURE OF THE WORKER RECEIVING THE DELEGATION;

b) FULL NAME, DATE OF BIRTH, GENDER, PERMANENT ADDRESS, OCCUPATION, SIGNATURE OF EACH WORKER IN THE DELEGATED GROUP;

c) CONTENT OF DELEGATION, DURATION OF DELEGATION.

ARTICLE 4. WAGES AND OTHER BENEFITS STATED IN LABOR CONTRACTS

THE LEVEL OF WAGE, ALLOWANCE, AND OTHER ADDITIONAL AMOUNTS AGREED UPON AND STATED IN LABOR CONTRACTS AS PROVIDED IN POINT A OF CLAUSE 5 OF ARTICLE 4 OF GOVERNMENT DECREE NO. 05/2015/NĐ-CP INCLUDES:

1. WAGE LEVEL, STATED AS THE WAGE CALCULATED BY TIME FOR THE JOB OR POSITION ACCORDING TO THE PAY SCALE ESTABLISHED BY THE EMPLOYER IN ACCORDANCE WITH LABOR LAWS AND AGREED UPON BY BOTH PARTIES. FOR WORKERS WHO RECEIVE WAGES BASED ON OUTPUT OR CONTRACTUAL WAGES, THE WAGE LEVEL IS STATED AS THE WAGE CALCULATED BY TIME TO DETERMINE THE UNIT PRICE OF PRODUCTS OR CONTRACTUAL WAGES.

2. WAGE ALLOWANCES, STATED AS THE WAGE ALLOWANCES THAT BOTH PARTIES HAVE AGREED UPON, SPECIFICALLY:

a) WAGE ALLOWANCES TO COMPENSATE FOR FACTORS SUCH AS LABOR CONDITIONS, COMPLEXITY OF THE TASK, LIVING CONDITIONS, AND THE ATTRACTIVENESS OF LABOR NOT TAKEN INTO ACCOUNT OR NOT FULLY CONSIDERED IN THE AGREED WAGE IN THE LABOR CONTRACT.

b) WAGE ALLOWANCES LINKED TO THE WORKING PROCESS AND THE RESULTS OF THE TASK COMPLETED BY THE WORKER.

3. OTHER ADDITIONAL AMOUNTS, STATED AS THE ADDITIONAL AMOUNTS THAT BOTH PARTIES HAVE AGREED UPON, SPECIFICALLY:

a) ADDITIONAL AMOUNTS WITH A SPECIFIED AMOUNT OF MONEY ALONGSIDE THE AGREED WAGE IN THE LABOR CONTRACT AND PAID REGULARLY IN EACH PAY PERIOD.

b) ADDITIONAL AMOUNTS WITHOUT A SPECIFIED AMOUNT OF MONEY ALONGSIDE THE AGREED WAGE IN THE LABOR CONTRACT, PAID REGULARLY OR IRREGULARLY IN EACH PAY PERIOD, LINKED TO THE WORKING PROCESS AND THE RESULTS OF THE TASK COMPLETED BY THE WORKER.

FOR OTHER BENEFITS AND PRIVILEGES, SUCH AS AWARDS AS PROVIDED IN ARTICLE 103 OF THE LABOR CODE, AWARDS FOR INNOVATIONS; MID-MEAL ALLOWANCES; SUPPORT FOR GAS, TELEPHONE, TRAVEL, HOUSING, CHILD CARE, AND SMALL CHILDREN; SUPPORT WHEN WORKERS HAVE FAMILY MEMBERS WHO HAVE PASSED AWAY, WHEN WORKERS HAVE FAMILY MEMBERS GETTING MARRIED, ON THE BIRTHDAY OF THE WORKER, AND ASSISTANCE FOR WORKERS IN DIFFICULT SITUATIONS DUE TO WORK-RELATED ACCIDENTS, OCCUPATIONAL DISEASES, AND OTHER SUPPORT AND ASSISTANCE, SHALL BE STATED SEPARATELY IN THE LABOR CONTRACT AS PROVIDED IN CLAUSE 11 OF ARTICLE 4 OF GOVERNMENT DECREE NO. 05/2015/NĐ-CP.

Article 5. Employment Contracts with Older Workers

1. An older worker is an individual who continues to work beyond the age specified in Article 187 of the Labor Code.

2. When continuing to work beyond the age specified in Article 187 of the Labor Code, the older worker and the employer shall agree to amend and supplement the employment contract to comply with the legal provisions regarding labor for older workers.

3. The employment contract with an older worker must ensure the contents prescribed in Clause 2, Clause 3 of Article 166 and Clause 2, Clause 3, Clause 4 of Article 167 of the Labor Code.

Article 6. Agreement on Temporary Suspension of Employment Contract when Appointed or Designated as State Capital Representative

The temporary suspension of the execution of the employment contract when the worker is appointed or designated as state capital representative according to Article 9 of Decree No. 05/2015/NĐ-CP is regulated as follows:

1. The temporary suspension of the execution of the employment contract must be documented in writing. The document suspending the execution of the employment contract must include the following main contents:

a) Name and address of the employer and the legal representative of the employer;

b) Full name, date of birth, gender, residential address, citizen identification number or passport number of the worker;

c) Information about the suspended employment contract: contract number; date of signing the employment contract;

d) Duration of the temporary suspension of the execution of the employment contract: start date, end date of the suspension period;

đ) Reason for temporarily suspending the execution of the employment contract;

e) Rights and obligations of both parties during the suspension period and after the expiration of the suspension period of the employment contract.

2. In cases where the appointment or designation as state capital representative continues beyond the suspension period, the worker has the responsibility to notify the employer to agree on continuing the temporary suspension of the execution of the employment contract. The document continuing the temporary suspension of the execution of the employment contract shall have main contents similar to the document suspending the execution of the employment contract.

Article 7. Notification to Provincial State Labor Management Authority when Changing Organizational Structure, Technology, and Economic Reasons

1. Employers are responsible for notifying in writing at least thirty days before sending the notification to the provincial state labor management authority prior to implementing termination of employment for two or more workers as stipulated in Clause 3 of Article 13 of Decree No. 05/2015/NĐ-CP.

2. The notification document prescribed in Clause 1 of this Article must include the following main contents:

a) Name and address of the employer and the legal representative of the employer;

b) Total number of workers; number of workers being terminated;

c) Reason for terminating the workers; date of termination of the workers;

d) Anticipated funding for severance pay.

3. The provincial labor authority is responsible for receiving, monitoring, and inspecting the termination of employment for multiple workers by employers.

Article 8. Severance Pay and Unemployment Compensation

1. The wage basis for calculating severance pay or unemployment compensation is the average wage under the employment contract as prescribed in Clause 1, Point a of Clause 2 and Point a of Clause 3 of Article 4 of this Circular of six consecutive months immediately preceding the date of termination of employment or loss of job.

2. In cases where a worker works for an employer under several consecutive employment contracts as stipulated in Clause 2 of Article 22 of the Labor Code, upon termination of the final employment contract, the working time for calculating severance pay or unemployment compensation is the total working time the worker has worked for the employer under all employment contracts. If the final employment contract is unilaterally terminated by the worker in violation of the law or dismissed due to disciplinary action, the actual working time under the final employment contract will not be counted towards severance pay. The wage basis for calculating severance pay or unemployment compensation is the average wage as prescribed in Clause 1 of this Article before the termination of the final employment contract.

Example 1: Ms. Nguyen Thi A continuously worked under three employment contracts at Company B; the first contract had a term of 12 months, from January 1, 2004 to December 31, 2004 (one year); the second contract had a term of 36 months, from January 1, 2005 to December 31, 2008 (four years); the third contract was indefinite-term, from January 1, 2009 to December 31, 2015 (seven years), and Ms. A unilaterally terminated the third contract in violation of the law. Ms. A's employer paid unemployment insurance continuously from January 1, 2009 to December 31, 2015 (seven years). The average wage of Ms. A as prescribed in Clause 1 of this Article before she terminated the third contract was 4,500,000 VND/month.

Since Ms. A unilaterally terminated the third contract (indefinite-term contract) in violation of the law, the actual working time under the third contract (seven years) will not be counted towards severance pay. The severance pay for Ms. A is calculated as follows:

- The working time for calculating severance pay for Ms. A for the two previous contracts is: one year + four years = five years (from January 1, 2004 to December 31, 2008);

- The amount of severance pay that Company B pays to Ms. A is: five years x 4,500,000 VND/month x 1/2 = 11,250,000 VND.

3. For state-owned enterprises with 100% state capital or joint-stock enterprises transformed from state-owned enterprises when terminating labor contracts, if workers have worked at state agencies, organizations, units, or enterprises in the state sector before January 1, 1995, and have not yet received severance pay or unemployment assistance or one-time assistance prior to demobilization, or discharge benefits for workers who have worked at military units, then the employer shall be responsible for paying severance pay or unemployment assistance for the time the worker has worked for them, and for paying severance pay for the time the worker has worked at state agencies, organizations, units, or enterprises in the state sector previously according to Clause 2, Article 38 of Decree No. 05/2015/NĐ-CP.

The period of work at state agencies, organizations, units, or enterprises in the state sector before January 1, 1995 includes: the actual working time of workers at administrative state agencies, state-run public institutions, political organizations, political-social organizations, military units receiving salaries from the state budget, and working time at other state-owned enterprises.

4. In cases where workers have actually worked for employers for at least 12 months and lose their jobs but the working time for calculating unemployment assistance is less than 18 months, the unemployment assistance for workers must be at least two months' salary.

Example 2: Mr. Nguyen Van C worked at Company D from September 1, 2007, until December 31, 2015. Due to changes in production technology, Company D could not arrange work for Mr. C and had to terminate his labor contract. Mr. C was covered by unemployment insurance from January 1, 2009, to December 31, 2015 (seven years). The average monthly salary of Mr. C before losing his job, according to Clause 1 of this Article, was 4,500,000 VND/month. The calculation of unemployment assistance for Mr. C is as follows:

- The working time for calculating unemployment assistance is: eight years four months minus seven years equals one year four months (16 months).

- The amount that Company D pays for unemployment assistance to Mr. C must be at least two months' salary (4,500,000 VND/month x 2 = 9,000,000 VND).

5. In cases where, after mergers, consolidations, divisions, or splits of enterprises or cooperatives, workers terminate their labor contracts, the employer shall be responsible for paying severance pay or unemployment assistance for the time the worker has worked for them and for the time the worker has worked for the employer before the mergers, consolidations, divisions, or splits of enterprises or cooperatives.

Example 3: Mr. Nguyen Thanh H worked for Company P from June 1, 2002. In 2006, Company P merged with Company Q to form Company PQ and officially operated from October 1, 2006; Mr. H continued to work at Company PQ until December 31, 2015, when he had to stop working due to organizational restructuring at Company PQ. Mr. H was covered by unemployment insurance from January 1, 2009, to December 31, 2015 (seven years). The average monthly salary of Mr. H, according to Clause 1 of this Article, before losing his job at Company PQ was 5,400,000 VND/month. The calculation of unemployment assistance for Mr. H is as follows:

- Mr. H's actual working time at Company P was four years four months; at Company PQ was nine years three months. The total actual working time is: thirteen years seven months;

- The working time for calculating unemployment assistance is: thirteen years seven months minus seven years equals six years seven months, rounded up to seven years;

- The amount that Company PQ pays for unemployment assistance to Mr. H is seven years x 5,400,000 VND/month = 37,800,000 VND.

Article 9. Responsibilities of the subsequent employer after transferring ownership or right to use assets of the enterprise

1. Amend, supplement labor contracts or conclude new labor contracts with workers who continue to be employed, workers sent for retraining to continue being employed, or workers transferred to work part-time at the enterprise.

2. Pay severance pay according to Article 48 or unemployment assistance according to Article 49 of the Labor Code for the actual working time for themselves and severance pay for the actual working time at the enterprise before transferring ownership or right to use assets (including working time in the state sector recruited lastly into the enterprise transferring ownership or right to use assets before January 1, 1995) when the worker terminates the labor contract.

Example 4: Mr. Dao Xuan K worked at the People's Committee of District T (state administrative agency) from September 1, 1990 to November 1, 1993. On November 1, 1993, Mr. K was transferred to work at Company S (state-owned enterprise). On September 1, 2007, Company S successfully carried out shareholding reform to become Joint Stock Company S’. Mr. K continued to work at Joint Stock Company S’ until December 1, 2015 when he terminated his labor contract in accordance with the law. Mr. K has been continuously insured under the unemployment insurance scheme from January 1, 2009 to December 1, 2015. The average monthly salary of Mr. K before leaving Joint Stock Company S’ is VND 5,500,000. His severance pay is calculated as follows:

- Actual working time in the state sector before January 1, 1995: 03 years 02 months;

- Actual working time at Company S (before shareholding reform): 13 years 10 months;

- Actual working time at Joint Stock Company S’: 08 years 03 months;

- Time participating in unemployment insurance: 06 years 11 months;

- Working time for calculating severance pay: 03 years 02 months + 13 years 10 months + 08 years 03 months – 06 years 11 months = 18 years 04 months, rounded to 18.5 years;

The amount of severance pay that Joint Stock Company S’ must pay to Mr. K is: 18.5 years x VND 5,500,000/month x 1/2 = VND 50,875,000.

Chapter III

PART III: DISCIPLINARY MEASURES AND MATERIAL LIABILITY

Article 10. Registration of Labor Regulations and Effectiveness of Labor Regulations

1. The confirmation letter issued by the provincial-level state management agency on labor affairs regarding receipt of the application for registration of labor regulations as stipulated in Clause 2, Article 28 of Decree No. 05/2015/NĐ-CP shall contain the following main contents:

a) Name of the provincial-level state management agency on labor affairs;

b) Full name and position of the person receiving the application for registration of labor regulations;

c) Name and address of the enterprise, agency, organization, cooperative, household, individual applying for registration of labor regulations; if it is a household or individual applying for registration of labor regulations, then clearly record the full name and ID number of the head of the household or individual;

d) Time of fully receiving the application for registration of labor regulations;

đ) Signature of the person receiving the application for registration of labor regulations.

2. The provincial-level state management agency on labor affairs is responsible for establishing a register of labor regulations according to Model No. 02 attached to this Circular.

3. The notification document issued by the provincial-level state management agency on labor affairs regarding cases where labor regulations violate laws as stipulated in Clause 3, Article 28 of Decree No. 05/2015/NĐ-CP shall contain the following main contents:

a) Name of the provincial-level state management agency on labor affairs;

b) Name and address of the enterprise, agency, organization, cooperative, household, individual applying for registration of labor regulations; if it is a household or individual applying for registration of labor regulations, then clearly record the full name and ID number of the head of the household or individual;

c) Content of labor regulations violating laws proposed for amendment and supplementation (specifically stating the content violating provisions in points, clauses, articles, normative legal documents and the proposed amendments and supplements);

d) Signature, full name, and position of the authorized person of the provincial-level state management agency on labor affairs.

4. Employers using less than ten workers are not required to register labor regulations; in cases where labor regulations are promulgated in writing, the effectiveness of the labor regulations is determined by the employer within the labor regulations; in cases where labor regulations are not promulgated in writing, the employer and employee agree on disciplinary measures, material responsibilities, and record them in the labor contract for implementation.

Article 11. Disciplinary measures for employees caring for children under 12 months old

Employers shall not impose disciplinary measures on employees who are caring for children under 12 months old as stipulated in Article 29 of Decree No. 05/2015/NĐ-CP in any of the following cases:

1. Caring for their own child under 12 months old;

2. Caring for a legally adopted child under 12 months old according to laws on marriage and family;

3. Caring for a child carried through surrogacy under 12 months old for employees who are surrogate mothers according to laws on marriage and family.

Article 12. Conducting a disciplinary meeting

1. A disciplinary meeting shall be conducted in accordance with Clause 2 of Article 30 of Decree No. 05/2015/NĐ-CP when all participants required to attend are present as stipulated in Clause 1 of Article 30 of Decree No. 05/2015/NĐ-CP.

2. In case the employer has notified in writing about attending the disciplinary meeting but one of the participants is absent, the employer shall continue to notify the next time.

3. After three written notifications about attending the disciplinary meeting (excluding postponed, canceled, or changed location meetings), if one of the participants is still absent, the employer may proceed with the disciplinary meeting, except in cases where the employee is within the period during which they cannot be disciplined as stipulated in Clause 4 of Article 123 of the Labor Code.

4. If the employer authorizes another person in writing to conclude labor contracts according to Clause 1 of Article 3 of Decree No. 05/2015/NĐ-CP, then when conducting the disciplinary meeting, the authorized person to conclude labor contracts shall convene and chair the disciplinary meeting.

The authorized person to conclude labor contracts has the right to issue a decision on disciplinary measures in the form of reprimand. For other forms of disciplinary measures, after concluding the disciplinary meeting, the authorized person to conclude labor contracts shall be responsible for completing the file, proposing the employer to consider and issue a decision, and organizing its implementation according to the issued disciplinary decision.

Article 13. Employees taking leave for legitimate reasons

Employees taking leave for legitimate reasons as stipulated in Clause 2 of Article 31 of Decree No. 05/2015/NĐ-CP shall fall into one of the following cases:

1. Due to natural disasters or fires where the employee has taken all possible measures to remedy the situation but cannot be present at work;

2. The employee, father, mother, adoptive father, adoptive mother, father-in-law, mother-in-law, husband, wife, biological child, legally adopted child, or child carried through surrogacy that the employee is caring for according to laws on marriage and family is ill and has a confirmation from a medical establishment operating according to law.

Chapter IV

IMPLEMENTING PROVISIONS

Article 14. Effective Date

This Circular takes effect from January 1, 2016.

Circular No. 19/2003/TT-BLDTBXH dated September 22, 2003 guiding the implementation of certain provisions of Decree No. 41/CP dated July 6, 1995 of the Government detailing and guiding some provisions of the Labor Code on labor discipline and material responsibility, which was amended and supplemented by Decree No. 33/2003/NĐ-CP dated April 2, 2003 of the Government, shall cease to be effective from the date this Circular takes effect.

3. The basis salary for paying wages to employees during stoppages, annual leave, holidays, personal leave with pay, advance payment of wages according to Article 26 of Decree No. 05/2015/NĐ-CP is the monthly wage stipulated in Clause 1, Point a of Clause 2 and Point a of Clause 3 of Article 4 of this Circular.

4. Amend and abolish certain articles and clauses of Circular No. 23/2015/TT-BLDTBXH dated June 23, 2015 of the Minister of Labor, Invalids and Social Affairs guiding the implementation of certain provisions on wages in Decree No. 05/2015/NĐ-CP dated January 12, 2015 of the Government detailing and guiding the implementation of certain contents of the Labor Code as follows:

a) Amend Point c of Clause 1 of Article 4 as follows:

"c) Daily wage is paid based on the monthly wage divided by the number of regular working days in a month as prescribed by law and chosen by the enterprise, but not exceeding 26 days."

b) Amend Clause 1 of Article 5 as follows:

"1. Employees receiving monthly wages shall be paid once a month or every half-month and shall be paid at the time of wage payment."

c) Amend Point a of Clause 1 of Article 6 as follows:

"a) The actual hourly wage for normal working days is determined based on the actual wage paid for the work being done in the month divided by the actual hours worked in the month (not exceeding 208 hours for jobs with normal working conditions and environment, excluding overtime hours). In cases where wages are paid daily or weekly, the actual hourly wage is determined based on the actual wage paid for the day or week of work (excluding overtime pay and night shift pay) divided by the actual hours worked in the day or week (not exceeding 8 hours/day and excluding overtime hours)."

The actual hourly wage mentioned above does not include overtime pay, night shift differential pay, holiday wages, Tet holiday wages, paid leave wages as prescribed by the Labor Code; bonuses as stipulated in Article 103 of the Labor Code, innovation awards; meal allowances during work shifts; fuel, transportation, telephone, travel, housing, childcare support; support for employees when their relatives die, when they have family members getting married, on their birthdays, and compensation for employees facing difficulties due to workplace accidents, occupational diseases, and other supports and compensations unrelated to job performance or position under the labor contract.

d) Repeal Clause 2 of Article 9.

Article 15. Transitional Provisions

Employment contracts, collective labor agreements, labor regulations, rules, and other lawful agreements that have been concluded and promulgated and are more favorable to workers than the provisions of this Circular shall continue to be implemented; where provisions and agreements are inconsistent with the provisions of this Circular, the relevant parties shall review, amend, supplement, and implement issuance procedures in accordance with the provisions of this Circular.

During implementation, if there are any issues, it is recommended that agencies, units, and enterprises report them to the Ministry of Labor - Invalids and Social Affairs for timely supplementary guidance./.