Nghị định 148/2018/NĐ-CP sửa đổi Nghị định 05/2015/ NĐ-CP hướng dẫn Bộ luật lao động

DECREE

AMENDMENTS TO THE GOVERNMENT'S DECREE NO. 05/2015/ND-CP DATED JANUARY 12, 2015 ON ELABORATION OF SOME CONTENTS OF THE LABOR CODE

Pursuant to the Law on Government organization dated June 19, 2015;

Pursuant to the Labor Code dated June 18, 2012;

At the request of the Minister of Labor, War Invalids and Social Affairs;

The Government promulgates this Decree to amend the Government's Decree No. 05/2015/ND-CP dated January 12, 2015 on elaboration of some contents of the Labor Code.

Article 1. Amendments to the Government's Decree No. 05/2015/ND-CP

1. Clause 1 of Article 3 is amended as follows:

“1. The person concluding labor contracts on the employer side (hereinafter referred to as “the employer’s authorized signatory”) is either:

a) The legal representative specified in the charter of the enterprise or cooperative;

b) The head of the organization that has a legal status as prescribed by law;

c) The person authorized to act as the representative by the household, artel or organization without a legal status;

d) The individual directly using the employee;

e) A person authorized in writing by the legal representative mentioned in Point a or the head of the organization mentioned in Point b of this Clause to conclude employment contracts."

2. Clauses 6, 7, 8 and 9 of Article 4 are amended as follows:

“6. Promotion and pay rise: requirements, time, and the salary after promotion or pay rise under the employer’s rules or the collective bargaining agreement.

7. Working time and rest time agreed by both parties or under the employer’s rules or the collective bargaining agreement and regulations of law.

8. Personal protective equipment under the working regulations, the employer’s rules, collective bargaining agreement and regulations of law on occupational hygiene and safety.

9. Social insurance, unemployment insurance and health insurance under regulations of law on employment, social insurance, unemployment insurance and health insurance.”

3. Clause 2 of Article 6 is amended as follows:

“2. When the employer no longer needs an employee or an elderly employee’s health is no longer suitable for the job, both parties shall negotiate termination of the employment contract.”

4. Clause 4 below is added to Article 13:

“4. The notification sent to the provincial employment authority as mentioned in Clause 3 Article 44 of the Labor Code shall contain the following information:

a) The employer’s name, address and legal representative;

b) Total quantity of employees and laid-off employees;

c) Reasons for layoff;

d) Time of layoff;

dd) Total redundancy pay.”

5. Clause 3 of Article 14 is amended as follows:

“3. Working duration as the basis for calculation of severance pay or redundancy pay is the total period of time the employee has worked for the employer minus (-) the unemployment insurance period and the period over which severance pay or redundancy pay is paid by the employer (if any). Where:

a) The period of time an employee has worked for an employer includes: the period the employee has worked for the employer in reality; period of training provided by the employer; sick leave and maternity leave defined by social insurance; paid leave for recovery period after an occupational accident or occupational disease defined by regulations of law on occupational hygiene and safety; weekly days off specified in Article 110, paid leaves specified in Article 111, Article 112 and Article 115 of Clause 1 Article 116 of the Labor Code; leave period for trade union activities prescribed by regulations of law on trade unions; paid leave for fulfillment of citizen’s duties; work suspension period that is not at the employee’s fault; work suspension period specified in Article 129 of the Labor Code.

b) Unemployment insurance period includes: the period over which unemployment insurance premiums are paid by the employee, the period considered unemployment insurance payment period defined by unemployment insurance laws, the period over which an amount equivalent to unemployment insurance premiums are paid together with the employee’s salary prescribed by regulations of law on employment and unemployment insurance;

c) The working period shall be rounded up to the next half year to calculate severance pay or redundancy pay (a period of from 1 month to under six month will be rounded up to 1/2  year; a period of 6 months or longer will be rounded up to 1 year).”

6. Clause 5 of Article 14 is annulled.

7. Clause 6 of Article 14 is amended as follows:

“5. The amount of severance pay and redundancy pay shall be aggregated with the employer’s operating cost.”

8. Article 14a below is added after Article 14:

 “Article 14a. Time limit for settlement of the employer’s and employee’s benefits after employment contract termination

Within 07 working days from the date of employment contract termination, the employer and employee shall settle each other benefits. This time limit may be extended to up to 30 days in the following cases:

1. The business operation is terminated by the employer that is not a natural person;

2. The employer or employee suffers from a natural disaster, conflagration, enemy-inflicted destruction or infectious disease;

3. The termination is caused by the employer’s changes in organizational structure or technology; economic causes specified in Article 44 of the Labor Code; division, merger or consolidation of the enterprise or cooperative; transfer of the right to ownership or right to enjoyment of assets specified in Article 45 of the Labor Code.”

9. Clause 2 of Article 26 is amended as follows:

“2. The salary used as the basis for calculation of pay for during annual leave days mentioned in Article 111; for extra annual leave days in Article 112; for public holidays in Article 115 and paid leave in Clause 1 Article 116 of the Labor Code is the monthly salary specified in the employment contract divided by (:) the number of working days n the month defined by the employer, multiplied by (x) the number of annual leave days and extra leave days, public holidays and paid leave days.”

10. Article 26a below is added after Article 26:

 “Article 26a. Salary used as the basis for compensation in case of illegal unilateral termination of the employment contract

The salary used as the basis for compensation in case of illegal unilateral termination of the employment contract mentioned in Clause 5 Article 42 or Clause 2 Article 43 of the Labor Code is the monthly salary specified in the employment contract applicable at the time of illegal unilateral termination of the contract.”

11. Clause 2 and Clause 3 of Article 28 are amended as follows:

“2. After the satisfactory application is received, the receiving authority shall issue a confirmation of the date of receipt of the application.

3. Within 07 working days from the receipt of the application, the receiving authority shall inform the employer if their labor regulations are not conformable with law and instruct the employee to revise them.”

12. Article 30 is amended as follows:

“Article 30. Disciplinary procedures

Disciplinary procedures mentioned in Article 123 of the Labor Code:

1. In the cases where an employee found committing a violation, the employer shall issue an offence notice, inform the employee representative organization (or the employee’s parent or legal representative if the employee is under 18) in order to hold a disciplinary meeting.

2. In the cases where an employee’s violation is discovered after it has been committed and before expiration of the time limit for penalty imposition and there is ample evidence of the violation:

a) The employer shall notify the persons mentioned in Point b and Point c Clause 1 Article 123 of the Labor Code of the content, time and location of the disciplinary meeting before holding the meeting and only hold the meeting if it is attended by these persons.

b) Within 03 working days from the day on which the employer’s notification is received the recipients shall confirm their participation or refuses to participate and provide explanation. In the cases where any of the recipients refuses to participate in the meeting or the explanation for not participating is not acceptable or fails to participate in the meeting as confirmed, the violator still has to face disciplinary actions.

3. It is mandatory to have the minutes of the disciplinary meeting, which have to be approved by the participants before the end of the meeting. The minutes shall bear the participants’ signatures. Any participant that refuses to sign the minutes must provide explanation.

4. The person that concludes the employment contract on the employer’s side also has the power to issue the disciplinary decision.

5. The disciplinary decision shall be issued before expiration of the original or extended time limit for penalty imposition specified in Article 124 of the Labor Code. The disciplinary decision shall be sent to the employee (or his/her parent or legal representative if the employee is under 18) and the employee representative organization.”

13. Clause 1 of Article 31 is amended as follows:

“1. In the following cases, the employer may dismiss an employee that leaves job without acceptable explanation as specified in Clause 3 Article 126 of the Labor Code:

a) The total leave period is 05 working days in up to 01 month (30 days) from the first leave day;

b) The total leave period is 20 working days over up to 01 year (365 days) from the first leave day.”

Article 2. Effect

1. This Decree comes into force from December 15, 2018.

2. Article 7, Clause 1 and Clause 3 Article 10 of Circular No. 47/2015/TT-BLDTXH on elaboration of some Articles of the Government's Decree No. 05/2015/ND-CP are annulled.

3. In the cases where an employment contract is terminated before the effective date of fishery products ns and the employer has not paid severance pay or redundancy pay to the employee, the work period as the basis for calculation of severance pay or redundancy pay shall be determined according to legislative documents that are applicable when the employment contract is terminated.

4. Regarding employment contracts that came into force before the effective date of the 2012’s Labor Code and contain specific probation period, the work period as the basis for calculation of severance pay or redundancy pay shall include the probation period specified in the employment contract.

Article 3. Responsibility for implementation

Ministers, Heads of ministerial agencies, Heads of Governmental agencies, Presidents of the People’s Committees of provinces, relevant organizations, enterprises, cooperatives and individuals are responsible for implementation of this Decree./.

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