Circular No. 50/2012/TT-BQP guiding the implementation of policies for redundant workers when restructuring limited liability companies with one member owned by the State in the military

CIRCULAR

Directive on implementing policies for surplus labor when restructuring state-owned limited liability companies

 in the military

The State is the owner in the military

  

Pursuant to the Law on Legislative Documents of 2008;

Pursuant to Decree No. 104/2008/NĐ-CP dated September 16, 2008 of the Government on the Functions, Tasks, Authorities, and Organizational Structure of the Ministry of National Defense;

Pursuant to Decree No. 91/2010/NĐ-CP dated August 20, 2010 of the Government stipulating policies for surplus labor when restructuring state-owned limited liability companies (hereinafter referred to as Decree No. 91/2010/NĐ-CP);

Considering the proposal of the Director of the Political General Department;

The Minister of National Defense issues this circular guiding the implementation of policies for surplus labor when restructuring state-owned limited liability companies in the military.

Article 1. Scope of Regulation

This Circular guides the implementation of policies for surplus labor in state-owned limited liability companies represented by the Ministry of National Defense that have been converted from state-owned enterprises but have not yet resolved labor surplus policies according to Decree No. 41/2002/NĐ-CP dated April 11, 2002, Decree No. 155/2004/NĐ-CP dated August 10, 2004, and Decree No. 110/2007/NĐ-CP dated June 26, 2007 of the Government, now continuing to be restructured according to the plan approved by the Prime Minister, including: The Prime Minister approves, including:

1. Shareholding, transfer, sale.

2. Conversion into a limited liability company with two or more members.

3. Conversion into a public service unit.

4. Dissolution, bankruptcy.

Article 2. Applicability

1. Surplus workers currently performing indefinite-term or fixed-term employment contracts with a duration of at least 12 months up to 36 months in the company specified in Article 1 of this Circular (hereinafter collectively referred to as workers), including:

a) Workers who were last recruited into the company specified in Clause 1, 2, 3 of Article 1 of this Circular before April 21, 1998 and are still working, when restructuring, the company and its superior management have taken all measures to create jobs but could not arrange work, and the worker has their name on the regular list of the company but does not have a job (waiting for work), at the time of restructuring, the company still cannot arrange work.

b) Workers who were last recruited into the company specified in Clause 4 of Article 1 of this Circular before April 26, 2002.

2. Organizations and individuals related to the implementation of policies for surplus labor due to the restructuring of state-owned limited liability companies represented by the Ministry of National Defense.

Article 3. Basis for calculating subsidies for surplus workers

1. Salary and salary allowances (if any) serve as the basis for calculating the subsidy regimes stipulated in Clause 2 of Article 3; Point a, b of Clause 4 of Article 3; Clause 1 of Article 4; Point c of Clause 4 of Article 3 and Clause 2 of Article 4 of Decree No. 91/2010/NĐ-CP shall be implemented in accordance with Article 6 of Decree No. 91/2010/NĐ-CP.

2. Time period for enjoying subsidy benefits

a) Time period of social insurance (BHXH) contributions to calculate the subsidies stipulated in Point b of Clause 2 of Article 3 of Decree No. 91/2010/NĐ-CP, guided in Point b of Clause 2 of Article 4 of this Circular shall be determined based on the time period of BHXH contributions, including time periods of work in the public sector considered as having made BHXH contributions under the law, calculated up to the date of cessation of work recorded in the decision. In cases where the number of years of work includes months, more than six months is counted as one year, six months or less is not counted.

b) Actual time worked in the public sector to calculate the subsidies stipulated in Clause 4 of Article 3, Clause 1 of Article 4 of Decree No. 91/2010/NĐ-CP, guided in Point a, b of Clause 4 of Article 4; Clause 1 of Article 5 of this Circular is the total actual time the worker has worked (with attendance recorded in the payroll) in the public sector minus the time the worker received unemployment assistance, termination benefits, time enjoying demobilization, retirement benefits, and time contributing to unemployment insurance (if applicable).

The total actual time worked in the public sector is calculated from the date of recruitment to the date of cessation of work as recorded in the decision (including time spent studying, on business trips, enjoying social insurance benefits while still receiving salary, and making social insurance contributions as prescribed). In cases where the worker transferred to the company before January 1, 1995 (the effective date of the Labor Code), the time worked at 100% state-owned enterprises, administrative agencies, public institutions, and armed forces receiving salaries from the state budget is also counted.

The time for calculating subsidies is determined according to the number of years (at least 12 months) during each phase of adjustment of salary coefficients and the general minimum wage level. Any remaining months in each phase are accumulated, and the remaining months in the final phase are calculated according to the principle: less than one month is not counted; from one month to less than seven months is counted as half a year; from seven months to less than twelve months is counted as one full year.

Article 4. Policy for surplus workers currently performing indefinite-term labor contracts

The policy for surplus workers currently performing indefinite-term labor contracts as stipulated in Article 3 of Decree No. 91/2010/NĐ-CP shall be implemented as follows:

1. At the time when the competent authority approves the workforce restructuring plan or the court decides to initiate bankruptcy proceedings, male workers aged 55 years or older and female workers aged 50 years or older with at least 20 years of social insurance contributions shall receive retirement pension according to Clause 1 of Article 50 of the Social Insurance Law (without deducting the percentage of early retirement pension).

2. Surplus workers who meet the conditions for retirement under Clause 1 of this Article, aged between 55 and under 60 years old for males, and between 50 and under 55 years old for females, shall also receive additional allowances as follows:

a) Three months' salary and wage supplements (if any) for each year (full 12 months, not counting partial months) of early retirement compared to the provisions at point a of Clause 1 of Article 50 of the Social Insurance Law.

b) Five months' salary and wage supplements (if any) for the first 20 years of work with social insurance contributions; from the 21st year onwards, for each year of work with social insurance contributions, an additional half month's salary and wage supplements (if any) shall be provided.

The period of work, salary, and wage supplements (if any) for calculating the allowance regime shall be carried out in accordance with the guidance provided in Article 3 of this Circular.

Refer to Example 1 attached in Appendix I of this Circular.

3. Workers who are surplus and aged 60 years old for males and 55 years old for females but still lack up to six months of social insurance contributions to meet the conditions for receiving a retirement pension shall have the state make a one-time payment for the remaining months instead of the worker and the employer contributing to the retirement and death benefit fund at the rate of social insurance contribution of the month before retirement as prescribed. The specific rates are as follows: from January 1, 2007 to December 31, 2009, the rate is 16%; from January 1, 2010 to December 31, 2011, the rate is 18%; from January 1, 2012 to December 31, 2013, the rate is 20%; from January 1, 2014 onwards, the rate is 22%.

4. For surplus workers not falling within the scope specified in Clauses 1, 2, and 3 of this Article, upon termination of their labor contracts, in addition to the social insurance benefits they are entitled to according to regulations, they shall also receive the following additional benefits:

a) One month's salary and wage supplements (if any) for each year (full 12 months) of actual work in the public sector, but at least two months' salary and wage supplements (if any).

b) Additional support of one month's salary and wage supplements (if any) for each year (full 12 months) of actual work in the public sector.

c) Six months' salary and wage supplements (if any) currently received at the time of leaving work to seek new employment. If there is a need for vocational training, free training for up to six months will be provided. The vocational training institution will be announced by the Department of Labor, Invalids, and Social Affairs.

Salary, wage supplements (if any), and the actual period of work in the public sector for calculating the allowance as stipulated in points a and b of this clause shall be carried out in accordance with the guidance provided in Article 3 of this Circular.

Refer to Example 2 attached in Appendix I of this Circular.

Article 5. Policy for surplus workers currently performing fixed-term labor contracts ranging from 12 to 36 months

The policy for surplus workers currently performing fixed-term labor contracts ranging from 12 to 36 months as stipulated in Article 4 of Decree No. 91/2010/NĐ-CP shall be implemented as follows:

1. Provide an allowance of one month's salary and wage supplements (if any) for each year (full 12 months) of actual work in the public sector.

Salary and wage supplements (if any), and the actual period of work in the public sector for calculating the allowance shall be carried out in accordance with the guidance provided in Article 3 of this Circular.

2. Provide an allowance of seventy percent of the salary and wage supplements (if any) recorded in the labor contract for the remaining months that have not been completed in the fixed-term labor contract, but not exceeding twelve months in total.

Refer to Example 3 attached in Appendix I of this Circular.

Article 6. Returning Subsidies When Re-employed

Workers who have received unemployment allowance according to Clause 4, Article 3 of Decree No. 91/2010/NĐ-CP, if re-employed at the company or unit that previously terminated their employment or at other state-owned companies or agencies shall proceed as follows:

1. Redundant workers re-employed at the company or unit that previously terminated their employment (the company or unit has been restructured and operates under a new form) shall return the original decision on leave with benefits for redundant workers during restructuring to the company or unit and all the subsidy money they have received according to the guidance provided in Clause 4, Article 4 of this Circular.

If workers return the above-mentioned subsidy, the actual working time already settled according to the redundancy policy will be added to the actual working time at the company or unit operating under the new form resulting from restructuring when calculating the severance pay and unemployment allowance in the future.

2. Redundant workers re-employed at other state-owned companies, units, or agencies, including state-owned companies, joint-stock companies with 100% state capital, joint-stock companies with two or more members having 100% state capital, and agencies funded from the state budget, shall submit a copy of the decision on leave with benefits for redundant workers during restructuring and additional support funds according to the guidance provided in Point b, Clause 4, Article 4 of this Circular to the company, unit, or agency.

The actual working time already settled according to the redundancy policy will not be added to the actual working time at other state-owned companies, units, or agencies when calculating the severance pay and unemployment allowance in the future.

3. State-owned companies, units, or agencies re-hiring redundant workers are responsible for collecting the subsidy money that workers must return due to re-employment and depositing it into the Enterprise Restructuring Support Fund at the State Capital Investment Corporation in accordance with the Government's regulations and the Ministry of Finance's guidelines.

Article 7. Source of funds

The source of funding for implementing the policy for redundant workers, paying to the Social Insurance Agency, providing to vocational training institutions, and paying severance pay and unemployment allowance according to the Labor Code shall be implemented according to Article 7 and Article 8 of Decree No. 91/2010/NĐ-CP, the Government's regulations, and the Ministry of Finance's guidelines.

Article 8. Responsibilities of Companies, Workers, and Vocational Training Institutions

Companies implementing labor restructuring and resolving policies for redundant workers shall follow the procedures as follows:

1. Organize propaganda on the Party and State's policies on continuing to restructure, reform, develop, and improve the efficiency of state-owned enterprises and the policy for redundant workers due to restructuring state-owned companies so that workers understand the Party and State's policies.

2. Develop a plan to resolve redundant labor for review by the immediate superior authority and submit it to the Head of the Ministry of National Defense for approval. After the Head of the Ministry of National Defense approves the restructuring and conversion plan, the company shall proceed to develop a plan to resolve redundant labor in the following steps:

a) Step 1: Within 15 working days, compile a list of all employees of the company at the time of the decision to restructure and convert the company (Model 1 of Appendix II issued together with this Circular), including:

- Employees currently working and receiving salaries and social insurance contributions or not contributing to social insurance (including seasonal or specific job employees with a term less than one year);

- Employees who have stopped working but are still listed in the company's records and receiving salaries or not receiving salaries, contributing to social insurance or not contributing to social insurance; - Employees needed (Model 2 of Appendix II issued together with this Circular), and employees not needed (Model 3 of Appendix II issued together with this Circular) as follows:

+ For companies undergoing shareholding transformation, the number of employees needed is based on the approved shareholding plan by the Ministry of National Defense; the remaining employees are those not needed.

+ For companies undergoing sale, the number of employees needed is determined by the agreement between both parties (seller and buyer) recorded in the sale contract; the remaining employees are those not needed.

+ For companies converting into limited liability companies with two or more shareholders or becoming public service units, the number of employees needed is determined based on production and business plans, production technology, machinery, equipment, and labor standards aimed at effective development, approved by the Ministry of National Defense; the remaining employees are those not needed.

Redundant employees in companies undergoing shareholding transformation, transfer, or conversion into limited liability companies with two or more shareholders or becoming public service units are divided into two categories: employees hired before April 21, 1998, who are redundant workers subject to the provisions of Decree No. 91/2010/NĐ-CP; employees hired from April 21, 1998, who are subject to the provisions of the Labor Code. + For companies undergoing dissolution or bankruptcy, all employees listed in the company's records hired before April 26, 2002, are subject to the provisions of Decree No. 91/2010/NĐ-CP; employees hired from April 26, 2002, are subject to the provisions of the Labor Code.

b) Step 2: Within five working days from completing the list of all employees of the company at the time of the decision to restructure and convert, the company shall cooperate with the Trade Union Executive Committee to organize a Workers' Congress or a Workers' Representative Congress to provide opinions on the employee list (from Model 1 to Model 3 of Appendix II issued together with this Circular).

c) Step 3: Within five working days, based on the opinions of the Workers' and Staffs' Congress or the Workers' and Staffs' Congress, the company finalizes the list of redundant workers for resolution. The time to finalize the list at companies under the military is carried out as follows:

- For companies implementing shareholding reform, it is the time when the Ministry of National Defense announces the enterprise value;

- For companies implementing transfer to a group of workers, it is the time when the Ministry of National Defense issues the decision to transfer the company to a group of workers;

- For companies implementing sale where the buyer assumes obligations towards workers, it is the time recorded in the purchase and sale agreement;

- For companies implementing sale where the buyer does not assume obligations towards workers, it is the time when the Ministry of National Defense issues the decision approving the sale plan;

- For companies implementing conversion into a limited liability company, it is the time when the Ministry of National Defense issues the decision to convert the company into a limited liability company;

- For companies implementing dissolution or merger, it is the time when the Ministry of National Defense issues the decision to dissolve or merge the company;

- For companies implementing bankruptcy, it is the time when the Court issues the effective bankruptcy proceedings decision.

d) Step 4: Within five working days, the company completes the plan to resolve redundant labor and the budget estimate for payments to be reported to the superior authority (the direct subordinate unit under the Ministry of National Defense) for review and submission to the Ministry of National Defense (Department of Economy-the permanent body) for approval. The files for review and approval are made in six copies, each copy including:

- A request for approval of the plan to resolve redundant labor (model number 4 Appendix II issued together with this Circular);

- The plan to resolve redundant labor due to company restructuring (model number 5 Appendix II issued together with this Circular);

- List of classified workers (from model number 1 to model number 3 Appendix II issued together with this Circular). For companies undergoing dissolution or bankruptcy, there is no need to approve the restructuring and conversion plan but only the plan to resolve redundant labor (model number 1, model number 3 Appendix II issued together with this Circular).

- Budget estimate for payment of benefits to redundant workers according to policy groups (model number 7, 8, 9, 10 Appendix II issued together with this Circular).

3. Resolving termination benefits for redundant workers Within fifteen working days from the date the Minister of National Defense approves the plan to resolve redundant labor, the company shall implement as follows:

a) Issue a decision terminating employment for each redundant worker according to the policy groups prescribed in Decree No. 91/2010/ND-CP and unify the time according to model number 6 Appendix II issued together with this Circular; The decision must be prepared in at least three copies: one copy sent to the worker, one copy retained by the company, one copy sent to the Social Insurance Department of the Ministry of National Defense.

b) Prepare a file requesting approval of the plan to use funds to support redundant workers as prescribed by the Ministry of Finance.

c) For workers who do not wish to continue working and are not covered by the termination benefits under Decree No. 91/2010/ND-CP (model number 11 Appendix II issued together with this Circular), the company prepares a separate list to resolve their benefits according to Article 17, Article 31, and Article 42 of the Labor Code.

4. Resolving benefits for workers

a) Responsibilities of the company

- Based on the Termination Decision, fully and timely provide all stipulated allowances to redundant workers;

- Provide free vocational training certificates to workers who wish to learn a trade (model number 12 Appendix II issued together with this Circular);

- Fully complete the social insurance benefit settlement procedures according to the law on social insurance, along with the list of workers retiring according to model number 7, model number 8 Appendix II issued together with this Circular, and transfer them to the Social Insurance Department of the Ministry of National Defense;

- Clearly record the reasons for termination and the benefits provided in the labor book, social insurance book, and return all documents to the worker according to the law;

- Within seven working days from the date of receiving the support funds for redundant workers from sources as prescribed in Article 7 of Decree No. 91/2010/ND-CP, the company has the responsibility to directly pay the allowances approved in the plan to the workers at the company.

b) Responsibilities of workers when enjoying policies

- Sign to receive all allowance amounts; sign to receive all termination files; settle any outstanding debts owed to the company (if any);

- In cases where workers cannot personally come to receive the allowances, they may authorize another person to receive the allowance according to the Civil Code;

- In cases where workers die after signing the termination decision but have not signed to receive the benefits, the company transfers the amount to the administrator of the deceased's estate according to the Civil Code.

5. At the latest within thirty working days from the completion of resolving benefits for redundant workers, the company is responsible for reporting the implementation results to the superior company and the Ministry of National Defense. The report includes: assessment of strengths and weaknesses, results of payments (as prescribed by the Ministry of Finance), to be sent to: the head of the direct subordinate unit under the Ministry of National Defense, the Ministry of National Defense (through the Department of Economy), the Social Insurance Department of the Ministry of National Defense, the Ministry of Labor, Invalids and Social Affairs, the Ministry of Finance, and kept at the company.

6. Responsibilities of workers when learning a trade and training institutions

a) Redundant workers wishing to learn a trade are provided with free vocational training certificates and submit their training application at the training institution notified by the provincial Department of Labor, Invalids and Social Affairs. The deadline for submitting the training application is within twelve months from the date of the termination decision.

b) Training institutions are responsible for accepting the registration forms of redundant workers wishing to learn a trade, which include: Free vocational training certificate (original); Termination decision for redundant workers when restructuring state-owned enterprises (copy).

Article 9. Responsibilities of subordinate units under the Ministry of National Defense (Military Regions, Military Services, Arms, General Departments, State-owned Corporations...)

1. Organize the dissemination, implementation, guidance, and direction in accordance with the provisions of Decree No. 91/2010/NĐ-CP and this Circular.

2. Urge and guide companies to develop plans for resolving surplus labor when restructuring the company according to the decision of the Ministry of National Defense.

3. Receive and review the files of plans for resolving surplus labor from companies.

Within ten working days from the date of receiving the complete file requesting approval of the plan for resolving surplus labor, they must provide a review opinion and submit it to the Head of the Ministry of National Defense (through the Economic Department - the permanent office) for approval of the plan.

4. Inspect and urge companies to properly implement regulations concerning the treatment of surplus workers in accordance with the law.

Article 10. Responsibilities of functional agencies under the Ministry of National Defense

1. Department of Economy/Ministry of National Defense

a) Direct, guide, and inspect military companies to build plans for labor restructuring and plans for resolving surplus labor in accordance with the provisions of Decree No. 91/2010/NĐ-CP and the guidance provided in this Circular;

b) Receive plans for labor restructuring and plans for resolving surplus labor reported by units for review and submission to the Ministry of National Defense for approval;

c) Announce the results of approval and implementation to units and companies to fully implement policies and benefits for surplus workers due to company restructuring within the military;

Within fifteen working days from the date of receiving the plan for resolving surplus labor from the company, the Economic Department will review and submit it to the Head of the Ministry of National Defense for approval. In cases where the plan and file need to be revised and supplemented, the Economic Department will guide the revision and supplementation of the plan and file. Within ten working days from the date of guidance, the company must complete and resubmit to the Economic Department for approval by the Head of the Ministry of National Defense.

d) Receive settlement files, inspect, and approve so that the company can settle accounts with the Enterprise Restructuring Support Fund.

đ) Guide and organize mid-term and final evaluations to assess the results of implementing the resolution of surplus labor.

2. The Policy Department/General Political Department

Take the lead in coordinating with functional agencies under the Ministry of National Defense (Economic Department, Financial Department, Military Affairs Department, Social Insurance Department of the Ministry of National Defense) to urge and inspect the implementation of policies for surplus workers during company restructuring in accordance with the provisions of Decree No. 91/2010/NĐ-CP and the guidance provided in this Circular.

3. The Finance Department/Military Ministry

Based on the policies and benefits stipulated in Decree No. 91/2010/NĐ-CP, the guidance of the Ministry of Finance, and this Circular, inspect the payment, settlement, and finalization of funds in accordance with the regulations.

4. Department of Forces/General Staff

Direct companies to implement plans for resolving surplus labor according to the decisions of competent authorities. Coordinate with functional agencies under the Ministry of National Defense to inspect the implementation of policies for surplus workers during company restructuring in accordance with the provisions of Decree No. 91/2010/NĐ-CP and the guidance provided in this Circular.

5. Social Insurance Department/Ministry of National Defense

Guide the collection of social insurance contributions for individuals who are still lacking up to a maximum of six months according to the guidance in Clause 3, Article 4 of this Circular, and resolve social insurance policies for workers who are surplus due to company restructuring within the military in accordance with the provisions of Decree No. 91/2010/NĐ-CP and laws on social insurance.

Article 11. Effective Date

1. This Circular takes effect from August 1, 2012, and replaces Circular No. 49/2008/TT-BQP dated March 27, 2008, issued by the Ministry of National Defense guiding policies for surplus workers due to state-owned enterprise restructuring within the military.

2. Policies for surplus workers when restructuring limited liability companies with one member represented by the Ministry of National Defense shall be implemented from the date Decree No. 91/2010/NĐ-CP takes effect.

3. Companies approved by the Ministry of National Defense for plans to resolve surplus labor before June 30, 2010, and state-owned enterprises converted into limited liability companies with one member according to Article 7 or carried out shareholding reform according to Clause 1, Article 34 of Decree No. 25/2010/NĐ-CP dated March 19, 2010, of the Government, which have not received approval decisions for labor restructuring plans until October 10, 2010, shall implement policies and benefits according to Decree No. 110/2007/NĐ-CP and Circular No. 49/2008/TT-BQP dated March 27, 2008, of the Ministry of National Defense on policies for surplus workers due to state-owned enterprise restructuring within the military.

4. Positions of members of the Board of Directors, Chairman, General Director, Director, Deputy General Director, Deputy Director, Chief Accountant, members of the Supervisory Board who are not military personnel in restructured enterprises shall implement reduction in force policies according to Decree No. 132/2007/NĐ-CP dated August 8, 2007, of the Government and the guidance provided in Circular No. 04/2008/TT-BQP dated January 11, 2008, of the Ministry of National Defense on reduction in force policies.

Article 12. Responsibility for Implementation

1. The Chief of General Staff, Heads of agencies and units are responsible for implementing this Circular.

2. During the implementation process, if there are any difficulties, please report them to the Ministry of National Defense for consideration and resolution.