Nghị định 21/2024/NĐ-CP sửa đổi Nghị định 51/2016/NĐ-CP và Nghị định 52/2016/NĐ-CP

DECREE

AMENDMENT TO DECREE NO. 51/2016/ND-CP DATED JUNE 13, 2016 OF THE GOVERNMENT ON MANAGEMENT OF EMPLOYMENT, SALARIES, AND BONUSES FOR EMPLOYEES IN SINGLE-MEMBER LIMITED LIABILITY COMPANIES OF WHICH 100% CHARTER CAPITAL IS HELD BY THE STATE AND DECREE NO. 52/2016/ND-CP DATED JUNE 13, 2016 OF THE GOVERNMENT ON SALARIES, REMUNERATION, AND BONUSES FOR MANAGERS OF SINGLE-MEMBER LIMITED LIABILITY COMPANIES OF WHICH 100% CHARTER CAPITAL IS HELD BY THE STATE

Pursuant to the Law on Government Organization dated June 19, 2015; the Law on amendment to the Law on Government Organization and the Law on Local Government Organization dated November 22, 2019;

Pursuant to the Labor Code dated November 20, 2019;

Pursuant to the Law on Enterprises dated June 17, 2020;

Pursuant to the Law on Management and Use of State Capital Invested in Manufacturing and Business in Enterprises dated November 26, 2014;

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

The Government promulgates Decree on amendment to Decree No. 51/2016/ND-CP dated June 13, 2016 of the Government on management of employment, salaries, and bonuses for employees in single-member limited liability companies of which 100% charter capital is held by the State and Decree no. 52/2016/ND-CP dated June 13, 2016 of the Government on salaries, remunerations, and bonuses for managers of single-member limited liability companies of which 100% charter capital is held by the State.

Article 1. Amendment to Decree No. 51/2016/ND-CP dated June 13, 2016 of the Government on management of employment, salaries, and bonuses for employees of single-member limited liability companies of which 100% charter capital is held by the State (hereinafter referred to as “Decree No. 51/2016/ND-CP”)

1. Amend Article 4:

 “Article 4.Pay scale, payroll and allowances

1. Depending on production and employment arrangement, a company shall develop and issue pay scale, payroll, and allowances which serve as the basis for salary offerings, payment, and provision of benefits for employees in accordance with employment laws.

2. Salaries in pay scale, payroll, and allowances are decided by the company as long as salary funds corresponding to salary tier in pay scale, payroll, and allowances do not exceed payroll budget under this Decree.

3. Where pay scale, payroll, or allowances are developed or amended, companies must consult employee representative bodies, organize negotiation at workplace, request owner’s representative entities to remark, and publicly post at their establishments prior to implementation.”

2. Amend Point a and Point b Clause 3 Article 5:

“a) The Government shall amend production and business prices and quotas (where business, production prices and quotas of products and services are stipulated by the Government), impose preferential corporate income tax, increase or decrease state capital, request companies to relocate and/or scale down business and production location, amend policies and regulations that directly affect productivity and profit of the companies.

Companies participate in implementation of political, national security, social welfare, supply-demand balancing tasks according to decision of the Prime Minister; invest, receive, or transfer the right to represent owner of state capital according to direction of the Government or Prime Minister; receive, purchase, sell, write off as uncollectable, extend payment deadline, and dispose debts, assets, purchase, sell products and services as per the law or at request of competent authority; implement retrospective clauses according to regulations of the Government; increase depreciation to expedite capital recovery in accordance with tax laws; amend operating policies at request of competent authority, Conventions, Treaties, or regulations of international regulations to which Vietnam is a signatory; implement schemes for restructuring, additional investment or divestment in other enterprises; invest, expand production and business; amend or implement new financial, credit provisions as per the law; provide products and services whose prices and pricing regulations are stipulated by the Government where prices have not been adjusted to adequately cover actual, reasonable production and business costs where price constituents change according to the Law on Prices; distribute costs for unsuccessful petroleum exploration and production according to regulations of the Government, determine corporate income tax according to petroleum contracts in respect of petroleum exploration, discovery, and production in accordance with tax laws; revenues of debt purchase and handling have not been recorded in revenues and profits of debt financing companies as per the law; changes to revenues caused by operation of securities trading organizations and professional operations pertaining to securities depository; differences in payout compared to the previous year in respect of lottery companies; changes to mineral extraction environment and conditions in respect of mining companies”.

Article 2. Amendment to Decree No. 52/2016/ND-CP dated June 13, 2016 of the Government on management of employment, salaries, and bonuses for managers of single-member limited liability companies of which 100% charter capital is held by the State (hereinafter referred to as “Decree No. 52/2016/ND-CP”)

1. The phrase “manager” under titles sand phrases “managers” or “company managers” under Articles, Clauses, and Appendices hereof is replaced with the phrase “managers, Comptrollers”.

2. Amend Article 3:

“Article 3. Salary offerings for full-time managers and Comptrollers

1. Depending on organizational structure, Board of Members or company President shall develop, issue payroll and salary offerings for full-time managers and Comptrollers so as to implement social insurance, health insurance, unemployment insurance, and other benefits according to employment laws.

2. Salary tiers in payroll shall be decided by Board of Members or company President as long as salary fund corresponding to the salary tiers in payroll does not exceed salary budget of full-time managers and Comptrollers under this Decree.

3. Where payroll of managers or Comptrollers is developed or amended, Board of Members or company President must consult employee representative bodies, organize negotiation at workplace, request owner’s representative entities to approve, and publicly post at their establishments prior to implementation.”.

3. Insert Clause 8 to Article 4 as follows:

“8. Where Control Board only consists of 1 Comptroller according to Article 103 of the Law on Enterprise, the Comptroller also benefits from salaries, remuneration, and bonuses of Heads of the Control Board.”.

4. Amend Clause 2 Article 5:

“2. The average salary budget is determined on the basis of minimum wage dependent on company ranks under Appendix I and Appendix II attached hereto and salary increase factor associated with the increment of planned profit compared with the profit realized in the previous year as follow:

a) Where companies have managed to prevent reduction in labor productivity and have planned profits greater than that in the previous year, the maximum salary increase factor that they are eligible for shall be:

Salary increase factor schedule

Where a company has planned profits significantly higher than the lowest profits corresponding to a factor of 2,5 under the aforementioned Schedule, plays an important role in national economy, operates in a sector where other enterprises are currently paying their managerial personnel a higher salary than what the company is current paying their personnel of equivalent positions, and wishes to apply a higher increase factor to incentivize managerial personnel, they shall, after consulting the Ministry of Labor - War Invalids and Social Affairs to maintain general balance, request owner’s representative entities to review and decide on salary budget of managers and Comptrollers to stay in line with common salaries of personnel holding equivalent positions in the same sector.

b) Where companies have planned profits not higher than profits realized in the previous year, increase factor not exceeding 70% of the increase factor corresponding to the profits under the aforementioned Schedule multiplied by the ratio of planned profits to realized profits of the previous year shall apply to the companies. .

c) Where companies do not generate profits, the planned average salaries must be lower than minimum wages to a minimum of 50% of the minimum wages. Where companies suffer losses, the planned average salaries shall equal 50% of the minimum wages.

d) Where companies suffer from less losses than they did in the previous year or companies are recently established or recently enter into operation, rely on the reduction of losses or production, business plan to determine salaries, ensure adequate proportion, and request owner's representative entities to decide.

d) Where planned profits equal or exceed realized profits of the previous year and where the planned average salaries, after determined in accordance with Point a and Point b of this Clause, are lower than the realized average salaries of the previous year, the planned average salaries shall equal the realized average salaries of the previous year”.

5. Annul the phrase “hoặc công ty hoạt động không vì mục tiêu lợi nhuận” (operating to meet non-profit objectives) under Clause 4 Article 5.

6. Add Clause 4a following Clause 4 Article 5: “4a. If designating company operates to meet non-profit objectives, for the purpose of determining salaries in accordance with Clause 2 and Clause 3 of this Article, the total profit criterion is replaced by total revenues less total costs”.

7. Amend Clause 6 Article 5:

“6. For the purpose of determining average salary, payroll budget, remuneration budget of managers and Comptrollers, the company shall disregard objective elements that may cause impacts on labor productivity or planned profit compared with that realized in the previous year. Objective elements are specified under Points a, b, and c Clause 3 Article 5 of Decree No. 51/2016/ND-CP dated June 13, 2016 of the Government”.

8. Annul the sentence “Đối với Kiểm soát viên tài chính tại tập đoàn kinh tế nhà nước thì nộp cho Bộ Tài chính để đánh giá, chi trả” (As for financial comptrollers working at state-owned economic corporations, that difference shall be subject to transfer to the Ministry of Finance that will consider and decide to pay these comptrollers) under Clause 7 Article 4 and the phrase “tiếp nhận, quản lý và chi trả tiền lương, thù lao, tiền thưởng đối với Kiểm soát viên tài chính do tập đoàn kinh tế nhà nước trích nộp” (accept, manage and pay salaries, remunerations and bonuses to financial comptrollers remitted by state-owned economic corporations) under Point a Clause 5 Article 9.

9. Annul Clause 3 Article 10.

10. Amend Appendix I according to the Appendix attached hereto.

Article 3. Entry into force

1. This Decree comes into force from April 10, 2024.

2. Regulations pertaining to salary budget, payment of salaries, remunerations, and bonuses under Clause 2 Article 1, Clauses 3, 4, 6, 7, and 10 Article 2 hereof enter into force from January 1, 2024.

Article 4. Responsibilities for implementation

1. The Ministry of Labor - War Invalids and Social Affairs shall take charge and cooperate with relevant ministries in guiding implementation of this Decree.

2. Where non-budget state funds are applying salary regulations under Clause 6 Article 10 of Decree No. 52/2016/ND-CP, salary increase factor not higher than 1,0 time the minimum wages shall remain effective for the purpose of determining salaries of managers and Comptrollers of the funds.

3. Where objective elements mentioned under Point b Clause 2 Article 1 of this Decree, Point b and Point c Clause 2 Article 6 of Decree No. 59/2021/ND-CP dated June 18, 2021 of the Government in Securities Exchange or Vietnam Securities Depository and Clearing Corporation cause revenues to increase by more than 7% or decrease by more than 3%, the increase in revenue in excess of 7% increase or the decrease in revenue below 3%, where applicable, shall be excluded from revenue criterion serving determination of labor productivity and profits standards associated with salaries of employees, managers, and Comptrollers.

4. In respect of organizations mentioned under Clause 6 Article 10 of Decree No. 51/2016/ND-CP, Clause 6 Article 10 of Decree No. 52/2016/ND-CP and Vietnam Bank for Social Policies, the Ministry of Labor - War Invalids and Social Affairs shall provide guidelines on managing employment, salaries, remunerations in accordance with salary regulations of the Government under Decree No. 51/2016/ND-CP, Decree No. 52/2016/ND-CP, and this Decree associated with labor productivity, operation effectiveness and conforming to characteristics of these organizations in which the Ministry of Labor - War Invalids and Social Affairs shall, on an annual basis, receive, review, examine, and supervise reports on employment plans and salary budget of employees; receive, review, and approve salary budget, remuneration budget, and bonus budget for managers and Comptrollers of Vietnam Bank for Social Policies after consulting Ministry of Industry and Trade and State Bank of Vietnam.

5. Assign the Ministry of Labor - War Invalids and Social Affairs to, pursuant to Clause 9 Article 2 of Decree No. 60/2022/ND-CP dated September 8, 2022 of the Government and relevant law provisions, provide guidelines on salary management in respect of Vietnam Television in a manner compliant with Decree No. 51/2016/ND-CP and this Decree, associated with labor productivity and operation effectiveness, and appropriate with characteristics of the Station.

6. Ministers, heads of ministerial agencies, heads of Governmental agencies, Chairpersons of People's Committees of provinces and central-affiliated cities, and relevant organizations, individuals are responsible for the implementation of this Decree.

APPENDIX

AMENDMENT TO APPENDIX I ATTACHED TO DECREE NO. 52/2016/ND-CP DATED JUNE 13, 2016 OF THE GOVERNMENT
(Attached to Decree No. 21/2024/ND-CP dated February 23, 2024 of the Government)

1. Change title of Appendix I into:

“COMPANY RANK”

2. Change title of Point 1 into:

“1. Use of company rank: Company rank serves to determine minimum wage of full-time managers and Comptrollers”.

3. Amend the phrase “lợi nhuận từ 200 tỷ đồng trở lên, nộp ngân sách nhà nước từ 200 tỷ đồng trở lên (các chỉ tiêu về vốn, lợi nhuận và nộp ngân sách tính bình quân 03 năm) và có từ 10 đơn vị thành viên hoặc có tổng số lao động của công ty mẹ và của đơn vị thành viên từ 10.000 người trở lên” [gaining the profit of at least VND 200 billion, remitting an amount of at least VND 200 billion to the state budget (capital, profit and state budget contribution standards which are measured on average within 3 years) and having at least 10 affiliated units, or hiring at least 10,000 employees in total working for parent companies and their affiliates] under Point b Clause 2 to: “lợi nhuận (hoặc chỉ tiêu tổng doanh thu trừ tổng chi phí đối với công ty hoạt động không vì mục tiêu lợi nhuận) từ 200 tỷ đồng trở lên, có từ 10 đơn vị thành viên (hạch toán độc lập và phụ thuộc) trở lên hoặc có tổ chức sản xuất, kinh doanh trên phạm vi cả nước, thực hiện đầy đủ nghĩa vụ nộp ngân sách nhà nước theo quy định. Các chỉ tiêu về vốn, lợi nhuận hoặc chỉ tiêu tổng doanh thu trừ tổng chi phí đối với công ty hoạt động không vì mục tiêu lợi nhuận, được tính bình quân 03 năm” [gaining profits (or total revenues less total costs in respect of companies operating for non-profit objectives) of at least 200 billion VND, having at least 10 affiliates (independent and dependent accounting) or operating on a nationwide level and fulfilling state budget payment obligation as per the law. Capital, profits or total revenues less total costs in respect of companies operating for non-profit objectives are measured on average within 3 years]”.

4. Amend the phrase “lợi nhuận từ 100 tỷ đồng trở lên, nộp ngân sách nhà nước từ 100 tỷ đồng trở lên và có từ 5 đơn vị thành viên hoặc có tổng số lao động của công ty mẹ và của đơn vị thành viên từ 7.000 người trở lên” [gaining the profit of at least VND 100 billion, remitting an amount of at least VND 100 billion to the state budget or having at least 10 affiliated units, or hiring at least 7,000 employees in total working for parent companies and their affiliates] under Point c Clause 2 to: “lợi nhuận (hoặc chỉ tiêu tổng doanh thu trừ tổng chi phí đối với công ty hoạt động không vì mục tiêu lợi nhuận) từ 100 tỷ đồng trở lên, có từ 5 đơn vị thành viên (hạch toán độc lập và phụ thuộc) trở lên hoặc có tổ chức sản xuất, kinh doanh trên phạm vi cả nước, thực hiện đầy đủ nghĩa vụ nộp ngân sách nhà nước theo quy định. Các chỉ tiêu về vốn, lợi nhuận hoặc chỉ tiêu tổng doanh thu trừ tổng chi phí đối với công ty hoạt động không vì mục tiêu lợi nhuận, được tính bình quân 03 năm” [gaining profits (or total revenues less total costs in respect of companies operating for non-profit objectives) of at least 100 billion VND, having at least 5 affiliates (independent and dependent accounting) or operating on a nationwide level and fulfilling state budget payment obligation as per the law. Capital, profits or total revenues less total costs in respect of companies operating for non-profit objectives are measured on average within 3 years]”.