Chương III: Tuyển dụng, sử dụng viên chức

Chapter III

RECRUITMENT AND EMPLOYMENT OF PUBLIC EMPLOYEES

Section 1 RECRUITMENT

Article 20. Recruitment bases

Recruitment of public employees must be based on work demand, working positions, criteria of professional titles and salary funds of public non-business units.

Article 21. Recruitment principles

1. Ensuring publicity, transparency, equality, objectivity and legality.

2. Ensuring competitiveness.

3. Selecting right persons who meet requirements of working positions.

4. Enhancing the responsibility of heads of public non-business units.

5. Giving priority to talented people, people with meritorious services to the revolution and ethnic minority people.

Article 22. Recruitment registration conditions

1 A person who meets all the following conditions, regardless of nationality, gender, social status, belief and religion, may register for public employee recruitment:

a/ Bearing Vietnamese citizenship and residing in Vietnam:

b/ Reaching full 18 years of age. For a number of areas of cultural activity, arts. physical training and spoils, the age eligible for recruitment may be lower as provided by law with written consent of at-law representatives:

c/ Filing an application for recruitment:

d/ Having a clear personal background;

e/ Possessing diplomas, training certificates or practice certificates or aptitude and skills relevant to the working position for which he/she applies:

f/ Being physically fit for work or tasks;

g/ Meeting other conditions required by the working position for which he/she applies and determined by the public non-business unit, which must not be contrary to law.

2. The following persons may not register for public employee recruitment:

a/ Having lost civil act capacity or having such capacity restricted;

b/ Being examined for penal liability; currently serving a criminal sentence or ruling of the court or serving the administrative measure of confinement to a medical treatment establishment, an educational institution or a reformatory.

Article 23. Recruitment methods

Recruitment of public employees shall be conducted through examination or selection.

Article 24. Organization of recruitment

1. For autonomous public non-business units, their heads may recruit public employees and take responsibility for their decisions.

For non-autonomous public non-business units, their managing agencies shall recruit public employees or authorize heads of such units to recruit public employees.

2. Based on recruitment results, heads of public non-business units shall sign working contracts with recruited public employees.

3. The Government shall detail contents of recruitment of public employees provided in this Law.

Section 2 WORKING CONTRACTS

Article 25. Types of working contracts

1. Working contract with a definite term is a contract whereby the two parties determine the term or lime of expiration of the contract to be between full 12 months and 36 months. Working contract with a definite term applies to recruited public employees, except the cases specified at Points d and e. Clause 1. Article 58 of this Law.

2. Working contract with an indefinite term is a contract w hereby the two parties do not determine the term or time of expiration of the contract. Working contract with an indefinite term applies to public employees who have completed working contracts with a definite term and to cadres and civil servants convened into public employees under Points d and e. Clause 1. Article 58 of this Law.

Article 26. Contents and forms of working contracts

1. A working contract has the following principal contents:

a/ Names and addresses of the public non-business unit and its head;

b/ Full name, address and date of birth of the recruited person, and full name, address and date of birth of the at-law representative of the recruited person, in case the recruited person is under 18 years old:

c/ Work or tasks, working position and workplace;

d/ Rights and obligations of the parties;

e/ Type of the working contract, its term and conditions for its termination:

f/ Salary, bonus and other entitlements (if any);

g/ Working lime and rest time:

h/ Probation regime (if any);

i/ Working conditions and matters related to labor protection:

j/ Social insurance and health insurance:

k/ Effect of the working contract:

1/ Other commitments associated with the nature and characteristics of the sector or field and special conditions of the public non-business unit, which must not be contrary to this Law and other relevant laws.

2. A working contract shall be signed in writing between the head of a public non-business unit and the recruited public employee and made in 3 copies, one of which shall be handed to the public employee.

3. For professional titles required by law to be appointed by the superiors of public non-business units, the signing of working contracts must be consented to by such superiors.

Article 27. Probation regime

1. A recruited public employee must undergo the probation regime, except those who have at least full 12 months of performing professional work relevant to the working positions for which they are recruited.

2. The probation period may last from 3 months to 12 months and must be stated in the working contract.

3. The Government shall detail the probation regime.

Article 28. Change of contents, renewal, suspension and termination of working contracts

1. In the course of performing a working contract, if either party requests to change the contents of the contract, it shall inform the other party at least 3 working days in advance. When so agreed, the panics shall modify and/ or supplement the relevant contents of the working contract. While conducting negotiations, the parties shall still comply with the signed working contract. If negotiations fail, the parties shall continue performing the signed working party or agree to terminate it.

2. For a working contract with a definite term, 60 days before its expiration, the head of the public non-business unit shall base himself/herself on the demand of his/her unit and his/her evaluation of the performance of the public employee concerned, to decide to renew or terminate the working contract with the public employee.

3. The suspension or termination of a working contract complies with the labor law.

4. When a public employee moves to work for another agency, organization or unit, his/ her working contract will terminate and he/ she wilt have regimes and policies settled under law;

5. When a public employee is appointed by a competent authority to hold a post in the public non-business units in which, as provided for by law. he/she will work as a civil servant, or receives a retirement decision, his/her working contract will automatically terminate.

Article 29. Unilateral termination of working contracts

1. Public non-business units may unilaterally terminate working contracts with public employees in the following cases:

a/ Public employees who have been evaluated as not accomplishing tasks for two consecutive years;

b/ Public employees who are sacked under Point d. Clause 1. Article 52 or Clause 1, Article 57 of this Law;

c/ Public employees working under working contracts with an indefinite term who fall sick and have received medical treatment for 12 consecutive months; public employees working under working contracts with a definite term who fall sick and have received medical treatment for 6 consecutive months but still cannot rehabilitate their working capacity. When their health recovers, these public employees may be considered for renewing their working contracts;

d/ Due to natural disasters, fires or other force majeure events as stipulated by the Government, public non-business units cannot but narrow their scope of activity, which makes redundant working positions held by public employees;

e/ Public non-business units terminate operations under decisions of competent agencies.

2. When unilaterally terminating a working contract, except the case specified at Point b. Clause 1 of this Article, the head of the public non-business unit shall notify such to the public employee concerned at least 45 days in advance, for working contracts with an indefinite term, or at least 30 days in advance, for working contracts with a definite term. For a public employee recruited by the managing agency of a public non-business unit, the unilateral termination of his/her working contract shall be decided by the head of the public non-business unit after obtaining written consent of the managing agency.

3. The head of a public non-business unit may not unilaterally terminate the working contract with public employees in the following cases;

a/ Public employees who fall sick or have accidents or are receiving medical treatment for occupational diseases under decisions of medical treatment establishments, except the case specified at Point c. Clause 1 of this Article;

b/ Public employees who are on annual leave, leave for personal reasons and other reasons permitted by heads of public non-business units;

c/ Female public employees who are pregnant, on maternity leave or nursing under 36-months babies, except when their public non-business units terminate operation.

4. Public employees working under working contracts with an indefinite term may unilaterally terminate their contracts provided that they shall notify such in writing to the heads of their public non-business units at least 45 days in advance; for public employees who fall sick or have accidents and have received medical treatment for 6 consecutive months, such notice must be given at least 3 days in advance.

5. Public employees working under working contracts with a definite term may unilaterally terminate their contracts in the following cases:

a/ They arc employed in working positions or workplaces or provided with working conditions not as agreed in their working contracts:

b/ They are paid with salaries lower than the level or later than the time agreed in their working contracts;

c/ They are maltreated or forced to work;

d/ They or their families meet so great difficulties that they cannot continue performing their contracts;

e/ Female public employees get pregnant and have to lake leave as prescribed by a medical treatment establishment;

f/ They fall sick or have accidents and have received medical treatment for 3 or more consecutive months but cannot rehabilitate their working capacity.

6. Public employees shall notify in writing their unilateral termination of their working contracts to the heads of their public non-business units at least 3 days in advance for the cases specified at Points a. b. c, e and f, Clause 5 of this Article; or at least 30 days in advance for the cases specified at Point d. Clause 5 of this Article.

Article 30. Settlement of disputes over working contracts

Disputes related to the signing, performance or termination of working contracts shall be settled under the labor law.

Section 3: APPOINTMENT. CHANGE OF PROFESSIONAL TITLES. CHANGE OF WORKING POSITIONS OF PUBLIC EMPLOYEES

Article 31. Appointment and change of professional titles

1. Appointment of public employees to hold professional titles must adhere to the following principles:

a/ Professional title matches working position:

b/ The public employee satisfies all criteria of the professional title which he/she is appointed to hold.

2. Change of professional tiles of public employees shall be effected through examination or selection on the principles of equality, publicity, transparency, objectivity and legality.

3. Public employees may register for examination or selection to change their professional titles if their public non-business units so need and they meet all conditions and criteria as provided by law.

4. The Government shall specify the process and procedures for examination or selection and appointment of public employees to hold professional titles; and assign and delegate the examination, selection or appointment of public employees to professional titles.

Ministries and ministerial-level agencies assigned to perform the state management of fields of operation of public employees shall assume the prime responsibility for, and coordinate with the Ministry of Home Affairs in, specifying criteria of professional titles and conditions for examination or selection to change professional titles of public employees.

Article 32. Change of working positions

1. When their public non-business units need, public employees may change to new working positions if they meet all professional criteria of such working positions.

2. The selection of public employees for vacant working positions shall be performed by heads of public non-business units or agencies competent to manage public non-business units on the principles of equality, publicity, transparency, objectivity and legality.

3. When a public employee changes to a new working position, his/her working contract shall be modified and/or supplemented or his/her professional title changed under Clause 1, Article 28. and Article 31 of this Law.

Section 4 TRAINING AND RETRAINING

Article 33. Regime of training and retraining of public employees

1. Training and retraining shall be provided for public employees before appointment to managerial posts or change of professional titles or in order to supplement and update knowledge and skills necessary for professional activities.

2. The contents, program, forms and durations of training and retraining public employees must be based on criteria of managerial posts, professional titles and requirements of supplementing and updating knowledge and skills necessary for professional activities.

3. Forms of training and retraining:

a/ Training and retraining based on criteria of managerial posts:

b/ Retraining based on criteria of professional titles;

c/ Retraining to supplement and update knowledge and skills necessary for professional activities.

4. Ministries and ministerial-level agencies assigned to perform the stale management of fields of operation of public employees shall detail the contents, program, forms and durations of training and retraining for public employees working in sectors and fields under their respective management.

Article 34. Responsibilities for training and retraining public employees

1 Public non-business units shall make and implement public employee training and retraining plans.

2. Public non-business units shall create conditions for public employees to attend training and retraining.

3. Public employee training and retraining funds shall be assured by public employees, financial sources of public non-business units and other sources.

Article 35. Responsibilities and benefits of public employees in training and retraining

1. Public employees attending training and retraining shall strictly observe training and retraining regulations and submit to the management of training and retraining institutions.

2. Public employees attending training and retraining are entitled to salaries and allowances in accordance with law and regulations of public non-business units; the training and retraining durations may be included in the continuous working period considered for salary raise.

3. If. after training, public employees, who are sent by public non-business units to attend such training, unilaterally terminate their working contracts or arbitrarily give up their work, they shall compensate training and retraining expenses according to the Government's regulations.

Section 5: SECONDMENT APPOINTMENT AND RELIEF OF DUTY

Article 36. Secondment of public employees

1. Secondment of public employee is the transfer of a public employee of a public non-business unit to work at another agency, organization or unit according to task requirements for a specified period. Heads of public non-business units or competent agencies managing public non-business units shall decide on the secondment of public employees.

2. The period of secondment is 3 years at most, except for a number of sectors and fields as stipulated by the Government.

3. Secondees shall comply with work assignment and management by agencies, organizations or units they are seconded to.

4. During the period of secondment, seconding public non-business units shall assure salaries and other benefits for secondees.

5. Secondees working in mountainous, border, island, deep-lying, remote, ethnic minority areas or areas with extremely difficult socio-economic conditions are entitled to support policies as stipulated by the Government.

6. At the end of the period of secondment, secondees may return to their former units. Heads of seconding public non-business units shall receive them back and arrange jobs suitable to their qualifications and skills.

7. Secondment is not applicable to female public employees who are pregnant or nursing under 36-months-old babies.

Article 37. Appointment of managerial public employees

1. Appointment of managerial public employees must be based on needs of public non-business units, criteria and conditions of managerial posts and ensure the competence, order and procedures prescribed for appointment.

2. Based on specific conditions of public non-business units, appointed public employees may hold managerial posts for 5 years at most. While holding managerial posts, public employees are entitled to managerial-post allowance, and may participate in professional activities according to their appointed professional lilies.

3. At the end of the period of holding managerial posts, public employees may be considered for reappointment. In case public employees are not reappointed, authorities with appointing competence shall arrange them in working positions according to their work demand and suitable to their professional qualifications and skills.

4. Public employees who are transferred to other working positions or appointed to new managerial posts will automatically stop holding the current managerial posts, except for cases of holding both concurrently.

5. Heads of public non-business units shall decide or propose competent authorities to decide according to management decentralization to appoint public employees to managerial posts.

6. The Government shall detail this Article.

Article 38. Resignation from managerial posts or relief of duty for public employees

1. Managerial public employees may ask for permission to resign from their managerial posts or be relieved of duty in the following cases:

a/ Being physically unfit;

b/ Having insufficient capability and prestige:

c/ Due to task requirements'.

d/ For other reasons.

2. Pending approval of heads of their public non-business units or competent authorities, managerial public employees who ask for permission for resignation shall continue discharging their tasks and powers.

3. Heads of public non-business units or competent authorities shall arrange public employees who have been permitted for resignation or relief of duty in working positions according to their work demand and suitable to their professional qualifications and skills.

4. The competence, order and procedures for considering and deciding on resignation or relief of duty of managerial public employees comply with the provisions of law.

Section 6: EVALUATION OF PUBLIC EMPLOYEES

Article 39. Purpose of public employee evaluation

Public employee evaluation aims to provide a basis for further arranging, employing, appointing, relieving of duty, training, retraining, commending, rewarding, disciplining and implementing regimes and policies towards public employees.

Article 40. Public employee evaluation bases

Public employee evaluation shall be conducted on the following bases:

1. Commitments in signed working contracts;

2. Regulations on professional ethics and code of conduct of public employees.

Article 41. Contents of public employee evaluation

1. Public employees shall be evaluated based on the following:

a/ Performance of work or tasks under signed working contracts;

b/ Observance of rules on professional ethics:

c/ Sense of responsibility, attitude in serving the people and sense of collaboration with colleagues, and observance of the code of conduct of public employees:

d/ Performance of other obligations of public employees.

2. In addition to the contents provided in Clause I of this Article, managerial public employees shall be evaluated based on:

a/ Capabilities of leadership, management, administration and organization of task performance:

b/ Results of operation of units they are assigned to lead and manage.

3. Public employees shall be evaluated annually; upon the end of the probation period; before renewal of working contracts, change of working positions, consideration for commendation, disciplining, appointment, reappointment, planning, training and retraining.

Article 42. Evaluation-based categorization of public employees

Annually, based on evaluation contents, public employees shall be put into the following categories:

1. Excellent accomplishment of tasks;

2. Good accomplishment of tasks:

3. Accomplishment of tasks:

4. Non-accomplishment of tasks.

Article 43. Public employee evaluation responsibility

1. Heads of public non-business units shall evaluate public employees under their management.

2. Depending on specific conditions, heads of public non-business unit may personally evaluate public employees under their management or assign or delegate such evaluation. Persons assigned to evaluate public employees shall take responsibility for evaluation results before heads of public non-business units.

3. Persons with appointing competence shall evaluate managerial public employees in public non-business units.

4. The Government shall detail the order and procedure for evaluating public employees under this Article.

Article 44. Notification of results of evaluation and categorization of public employees

1. Contents of evaluation of public employees shall be notified to public employees concerned.

2. Results of categorization of public employees shall be made public in public non-business units.

3. If disagreeing with evaluation and categorization results, public employees may lodge complaints with competent authorities.

Section 7: JOB DISCONTINUATION AND RETIREMENT REGIMES

Article 45. Job discontinuation regime

1. When terminating working contracts, public employees are entitled to job discontinuation allowance, job loss allowance or social insurance benefits under the labor law and social insurance law, except the cases specified in Clause 2 of this Article.

2. Public employees are not entitled to job discontinuation allowance if falling into any of the following cases

a/ Being sacked:

b/ Unilaterally terminating working contracts in violation of Clauses 4. 5 and 6, Article 29 of this Law;

c/ Terminating working contracts under Clause 5, Article 28 of this Law.

Article 46. Retirement regime

1. Public employees are entitled to the retirement regime under the labor law and social insurance law.

2. Six months before the date a public employee is due to retire, his/her managing agency, organization or unit shall notify in writing the public employee of the time of his/her retirement: three months before a public employee is due to retire, his/her managing agency, organization or unit shall issue a decision on his/her retirement.

3. Public non-business units may sign piecework contracts with retired persons if they need and such person aspire: when performing such contracts, in addition to contractual remuneration, such persons are entitled to a number of regimes and policies on management mechanism and assurance of conditions for professional activities as stipulated by the Government.