Chương 3 Nghị định 29/2012/nđ-cp tuyển dụng, sử dụng và quản lý viên chức: Sử dụng viên chức

Chapter III

EMPLOYMENT OF PUBLIC EMPLOYEES

Section 1: ASSIGNMENT OF TASKS, SECONDMENT APPOINTMENT AND RELIEF FROM DUTY OF PUBLIC EMPLOYEES

Article 25. Assignment of tasks

1. Heads of public non-business units or heads of units employing public employees shall assign tasks to and supervise the task performance by public employees, and ensure necessary conditions for them to perform their tasks, and implement regimes and policies toward public employees.

2. Tasks assigned to public employees must suit their professional titles or appointed managerial posts and the requirements of their working positions.

Article 26. Secondment of public employees

1. Secondment of public employees is implemented in the following cases:

a/ To perform unexpected or urgent tasks;

b/ To perform work which must be completed within a certain period of time;

2. The secondment period must not exceed 3 years. For a number of special sectors or fields requiring a longer secondment period, the secondment period complies with specialized laws.

3. Public non-business agencies or units that second public employees shall continue managing and supervising these public employees during their secondment period.

4. Agencies and units receiving secondees shall assign and arrange tasks to these secondees and evaluate and examine their task performance.

5. Secondees are entitled to the interests specified in Clauses 4, 5 and 6, Article 36 of the Law on Public Employees.

Article 27. Appointment of managerial public employees

1. Appointment of managerial public employees must be based on the needs of public non-business units and the following criteria and conditions:

a/ Satisfying the criteria of the managerial post prescribed by a competent agency or unit;

b/ Having complete personal records which have been clearly verified by a competent agency or unit; having a property declaration according to regulations;

c/ Being within the age group eligible for appointment;

d/ Being physically fit to accomplish assigned tasks and responsibilities;

e/ Not falling into cases banned by law from holding the post.

2. The appointment period is 5 years, unless otherwise provided by a specialized law or decided by a competent agency. At the end of the appointment period, competent agencies or units shall decide whether or not to re-appoint managerial public employees.

3. The interests of public employees appointed to managerial posts comply with the provisions of Clauses 2, 3 and 4, Article 37 and Clause 3, Article 38 of the Law on Public Employees.

Article 28. Competence to appoint public employees to managerial posts, settle discontinuation of holding of managerial posts and relieve from duty managerial public employees

1. Heads of autonomous public non-business units may appoint public employees to managerial posts, settle the discontinuation of holding of managerial posts or relieve from duty managerial public employees according to decentralization.

2. For non-autonomous public non-business units, agencies competent to appoint and relieve from duty heads of these units shall decide on or decentralize the appointment of public employees to managerial posts, settlement of discontinuation of holding of managerial posts or relief from duty of public employees.

Section 2: CHANGE OF PROFESSIONAL TITLES

Article 29. Change of professional titles of public employees

1. Change of professional titles of public employees is effected as follows:

a/ Change from a professional title to another of the same rank must be effected through professional title change consideration;

b/ Promotion from a lower rank to an immediately higher rank in the same sector or field must be effected through professional title rank promotion examination or consideration.

2. Ministries managing professional titles of specialized public employees shall assume the prime responsibility for, and coordinate with the Ministry of Home Affairs in, prescribing specific criteria, conditions, contents and forms of professional title rank promotion examination or consideration for public employees.

Article 30. Assignment and decentralization of organization of professional title rank promotion examination or consideration

1. Examination or consideration for promotion of public employees' professional titles from rank II to I is effected as follows:

a/ Ministries managing professional titles of specialized public employee shall organize examination or consideration according to approved plan;

b/ The Ministry of Home Affairs shall approve plans on organization of professional title rank promotion examination or consideration; appraise and decide on the list of public employees eligible for such examination or consideration; issue a decision to set up a council; and decide to recognize results and appoint professional titles of rank I.

2. Examination or consideration for promotion of public employees' professional titles from rank III to rank II is effected as follows:

a/ Ministries, ministerial-level agencies, government-attached agencies or provincial-level People's Committees shall assume the prime responsibility for, and coordinate with the Ministry of Home Affairs in, organizing professional title rank promotion examination or consideration under law and the guidance of the ministry managing professional titles of specialized public employees;

b/ The Ministry of Home Affairs shall approve plans on organization of professional title rank promotion examination or consideration, and appraise and decide on the list of public employees eligible for such examination or consideration and appraise promotion results;

3. Examination or consideration for promotion of public employee professional titles from rank IV to rank III shall be organized by ministries, ministerial-level agencies, government-attached agencies or provincial- level People's Committees or decentralized to agencies or units under law and the guidance of the ministry managing professional titles of specialized public employees.

4. Competent Party agencies shall prescribe the assignment and decentralization of the organization of examination or consideration for promotion of professional title ranks for public employees in non-public units of political organizations and socio-political organizations under law.

Article 31. Process and procedures for organizing public employee professional title rank promotion examination or consideration

1. Annually, agencies assigned or decentralized to organize public employee
professional title rank promotion examination or consideration specified in Clauses 1 and 2, Article 30 of this Decree shall draw up examination or consideration plans and send them to the Ministry of Home Affairs for agreement.

2. Annually, agencies and units assigned or decentralized to organize public employee professional title rank promotion examination or consideration specified in Clause 3, Article 30 of this Decree shall draw up plans and send them to agencies with decentralizing competence (ministries, ministerial-level agencies, government-attached agencies or provincial-level People's Committees) for approval before implementation.

3. Assigned or decentralized agencies, organizations or units specified in Clauses 2 and 3, Article 30 of this Decree shall set up councils for public employee professional title rank promotion examination or consideration.

4. Tasks and powers of a council for public employee professional title rank promotion examination or consideration:

a/ To notify the plan, rules, form, content, time and place of examination or consideration;

b/ To notify the conditions and criteria for examination or consideration;

c/ To set up assisting divisions including the exam question division, the invigilation division, the examination paper heading division, the examination paper marking division and the review division;

d/ To collect examination or consideration fees and use them according to regulations;

e/ To mark examination papers or organize consideration and review according to rules;

f/ To summarize and report to the head of the agency or unit assigned or decentralized to organize professional title rank promotion examination or consideration for result recognition;

g/ To settle complaints and denunciations arising in the course of examination or consideration under law.

5. Agencies or units assigned or decentralized to organize professional title rank promotion examination or consideration shall notify in writing examination or consideration results to competent agencies or units for issuance of decisions to appoint to professional titles and arrange salaries as decentralized for public employees who pass examination or consideration.

Section 3: TRAINING AND RETRAINING

Article 32. Objectives and principles of training and retraining public employees

1. Objectives of training and retraining

a/ To update knowledge and retrain and improve skills and methods of performing assigned tasks;

b/ To train to contribute to building a contingent of public employees with professional ethics, adequate professional qualifications and capabilities to ensure quality of their professional activities.

2. Principles of training and retraining:

a/ Training and retraining must be based on working positions, criteria of professional titles and human resource development requirements of public non-business units;

b/ The autonomy of public non-business units in training and retraining activities must be assured;

c/ Public employees are encouraged to learn and study for higher professional qualifications to meet task requirements;

d/ Publicity, transparency and effectiveness must be assured.

Article 33. Regime of training and retraining

1. The regime of training and retraining of public employees complies with Clauses 1, 2 and 3, Article 33 of the Law on Public Employees.

2. Ministries managing professional titles of specialized public employees shall compile retraining programs and materials based on professional title criteria and promulgate them after obtaining appraisal opinions of the Ministry of Home Affairs.

3. Ministries managing professional titles of specialized public employees shall promulgate, and guide the implementation of, annual compulsory retraining programs on specialized professional knowledge and skills.

4. Training and retraining certificates:

a/ Retraining certificates based on professional title criteria constitute a condition and criterion for appointment to or change of public employee professional titles;

b/ Ministries managing professional titles of specialized public employees shall provide the management and grant of certificates of retraining programs based on criteria of specialized professional titles;

c/ Attendance in and completion of annual compulsory retraining programs on specialized professional knowledge and skills constitute a basis for evaluating the task perfonnance of public employees.

Article 34. Interests and responsibilities of public employees sent to training and retraining

1. The interests of public employees sent to training or retraining comply with Clause 2, Article 35 of the Law on Public Employees.

2. The responsibilities of public employees sent to training or retraining comply with Clauses 1 and 3, Article 35 of the Law on Public Employees.

Article 35. Training and retraining funds

Public employee training and retraining funds shall be paid from financial sources of public non-business units or financial aid of domestic and foreign organizations and individuals under law.

Article 36. Training and compensation for training expenses

1. Public employees may be sent to training in the following cases:

a/ Their public non-business unit is reorganized or rearranged;

b/ To meet the human resource building, planning and development requirements of their agency, organization or unit.

2. Conditions for a public employee to be sent to training:

a/ The training major is relevant to his/her working position and professional title;

b/ The public employee is committed to performing his/her tasks and duties at the public non-business unit after completing the training program for a period at least doubling the training period.

3. A public employee sent to training under a cooperation program with a foreign country which is concluded or acceded to on behalf of the State of the Socialist Republic of Vietnam shall, in addition to satisfying the conditions specified in Clauses 1 and 2 of this Article, comply with the provisions of the Law on Conclusion, Accession to and Implementation of Treaties and meet other requirements of the cooperation program.

4. A public employee sent to domestic or overseas training shall compensate for training expenses in the following cases:

a/ During the training period, he/she drops out without permission or unilaterally terminates his/her working contract;

b/ He/she has completed the training course but is not granted a graduation diploma or training certificate by the training institution;

c/ He/she has completed the training course and obtained a graduation certificate at intermediate or higher level but has not worked for a committed period stated at Point b, Clause 2 of this Article.

5. The Ministry of Home Affairs shall guide in detail the calculation of compensated expenses and the process and procedures for compensating for training expenses mentioned in this Article.

Section 4: EVALUATION OF PUBLIC EMPLOYEES

Article 37. Order and procedures for annual evaluation of public employees

1. For managerial public employees:

a/ A public employee shall self-evaluate his/ her work performance based on his/ her assigned tasks and comment on his/her strengths and weaknesses in work;

b/ The collective in which he/she works shall hold a meeting to contribute opinions. Contributed opinions shall be recorded in a minutes to be adopted at the meeting;

c/ The person with competence to evaluate public employees shall make evaluation and decision on the category of the public employee and, after referring to the minutes of contributed opinions of the collective in which the managerial public employee works, notify such decision to the managerial public employee.

2. For public employees not holding managerial posts:

a/ A public employee shall self-evaluate his/ her work performance based on his/her assigned tasks;

b/ The collective in which he/she works shall hold a meeting to contribute opinions. Contributed opinions shall be recorded in a minutes to be adopted at the meeting;

c/ The person with appointing competence shall comment on the self-evaluation of the public employee, evaluate his/her strengths and weaknesses in his/her work and decide on his/ her category.

3. Notification of evaluation and categorization results of public employees complies with Article 44 of the Law on Public Employees.

4. Cases of evaluation of public employees are specified in Clause 3, Article 41 of the Law on Public Employees. Evaluation of public employees prior to appointment, re­appointment, planning, training, retraining or completion of the secondment period shall be conducted by heads of public non-business units according to the order and procedures of appointment, re-appointment, planning, training, retraining or secondment work.

5. Ministries managing professional titles of specialized public employees shall assume the prime responsibility for, and coordinate with the Ministry of Home Affairs in, issuing a regulation on evaluation and providing detailed guidance on the procedures and content of evaluation of specialized public employees.

Section 5: PROVISIONS ON JOB DISCONTINUATION AND RETIREMENT PROCEDURES

Article 38. Settlement of job discontinuation

1. A public employee may be allowed for job discontinuation in the following cases:

a/ He/she makes a voluntary written request for job discontinuation which is approved in writing by a competent agency or unit;

b/ He/she unilaterally terminates his/her working contract under Clause 4 or 5, Article 29 of the Law on Public Employees;

c/ His/her public non-business unit unilaterally terminates the working contract signed with him/her in a case specified at Point c, d or e, Clause 1, Article 29 of the Law on Public Employees.

2. A public employee is not allowed for job discontinuation in any of the following cases:

a/ He/she is being examined for disciplining or penal liability;

b/ He/she has not worked for the full period he/she committed to the public non-business unit when being sent to training or selected for recruitment;

c/ He/she has not yet fulfilled money and property responsibilities toward the public non­business unit;

d/ It is due to work requirement and a substitute has not been arranged yet.

3. Procedures for settlement of job discontinuation

a/ A public employee who aspires to discontinue his/her jobs shall file a written request with the head of his/her public non­business unit;

b/ Within 20 working days after receiving a written request, if allowing the public employee to discontinue his/her jobs, the head of the public non-business unit shall issue a decision to terminate his/her working contract; if disagreeing, the head of the public non-business unit shall issue a written reply clearly stating the reason under Clause 2 of this Article to the public employee concerned;

c/ In case a public non-business unit unilaterally terminates the working contract with its public employee under Point c, Clause 1 of this Article, it shall concurrently settle the job discontinuation regime for the public employee under this Decree.

Article 39. Job discontinuation allowance

1. Job discontinuation allowance applicable to working periods of public employees from December 31, 2008, back shall be calculated as follows:

a/ For every working year, a public employee is entitled to a half of his/her current salary, including the salary level based on professional title, leadership allowance, extra-seniority allowance, professional seniority allowance and salary reservation difference coefficient (if any);

b/ The minimum level of this allowance is equal to the monthly salary currently paid to the public employee;

c/ For public employees recruited before July 1, 2003, the working period used for calculating job discontinuation allowance is the total working time (accumulated) from the time the public employee receives his/her recruitment decision through December 31, 2008;

d/ For public employees recruited from July 1, 2003, on, the working period used for calculating job discontinuation allowance is the total working time under the working contract (accumulated) from the time the public employee receives his/her recruitment decision through December 31, 2008.

2. Job discontinuation allowances for working periods of public employees from January 1,2009, to the present time comply with the law on unemployment allowance.

Funds for payment of job discontinuation allowances come from financial sources of public non-business units.

When discontinuing his/her jobs, a public employee is entitled to job discontinuation allowance under Clause 1 or 2 of this Article and has his/she period of paying social insurance premiums certified under law.

Article 40. Retirement procedures

1. The time of retirement is the first day of the month following the month when the public employee reaches the prescribed retirement age.

2. The time of retirement can be delayed in any of the following cases:

a/ Not more than one month in any of the following cases: The time of retirement coincides with the traditional new year holidays; the public employee's spouse, parent (of his/ her own or of his wife or her husband) or child dies or is declared to be missing by a court; he/ she and his/her family suffer damage caused by natural disaster, enemy sabotage or fire;

b/ Not more than 3 months in case the public employee suffers a serious disease or has an accident certified by a hospital;

c/ Not more than 6 months in case the public employee is receiving medical treatment for a disease on the Ministry of Health-issued list of diseases requiring a long treatment period, which is certified by a hospital.

3. A public employee whose time of retirement can be delayed in many cases specified in Clause 2 of this Article is only entitled to the longest delay duration in these cases.

4. The head of the agency or unit managing the public employee shall decide on the delay of the time of his/her retirement specified in Clause 2 of this Article.

5. In case a public employee does not aspire to delay his/her time of retirement under Clause 2 of this Article, the head of the agency or unit managing the public employee shall allow him/ her to retire under this Article.

6. Six months before the time of retirement specified in Clause 1, 2, 3 or 4 of this Article, the head of the agency or unit managing the public employee shall notify in writing the time of retirement to the public employee concerned and prepare a replacement person.

7. Provisions relating to retirement decision:

a/ Three months before the time of retirement specified in Clause 1, 2, 3 or 4 of this Article, the head of the agency or unit managing the public employee shall issue a retirement decision;

b/ On the basis of the retirement decision stated at Point a of this Clause, the agency or unit managing the public employee shall coordinate with the social insurance organization in carrying out procedures according to regulations for the public employee to enjoy social insurance benefits when he/she retires;

c/. Inspecting and examining the implementation of the law on public employees.

d/. Settling complaints and denunciations related to public employees.

Article 41. Policies and managing mechanism for retired public employees entering into seasonal employment contracts with public service providers.

1. Retired public employees who enter into seasonal employment contracts with public service providers shall receive the payments as specified in the contracts in addition to their pension payments.

2. Public service providers are responsible for satisfying working conditions for professional operations specified in seasonal employment contracts, including rights of public employees in occupational activities specified in Clauses 1, 3, 4, 5, 6 and 7 Article 11 of Law on Public Employees.

3. Policies and working period of retired public employees shall be specified in the seasonal contracts signed with public service employees.

SECTION 6. CONVERSION AND TRANSITION FOR PUBLIC EMPLOYEES

Article 42. Conversion between public employees and officials

1. Public employees who have worked at public service employees for at least 60 months (internship excluded) are qualified, experienced and satisfactory to requirements of working positions shall be employed as soon as employers wish to employ without any entrance examinations.

2. Public employees upon employed and assigned to positions deemed as officials by the law in agencies and organizations of the Communist Party, the Government, socio-economic organizations shall follow procedures in order to be converted to officials without taking examinations according to regulations and law on officials; decisions on assignment shall be decisions on employment.

3. A public employee assigned to hold managerial positions of public service providers which is prescribed as officials by regulations and law shall fulfill quotas of the assigned positions upon assignment; retain assigned title, benefit from salaries and other policies similar to a public employee in a public service provider.

4. Officials mobilized to work as public employees in public service providers if they satisfy standards and requirements according to regulations and law on public employees.

Article 43. Transition for public employees

1. Signing employment contracts with public employees shall be implemented according to Article 59 of Law on public employees as follows:

a) With respect to public employees employed before July 1, 2003, heads of public service providers are responsible for following procedures for signing permanent employment contracts with public employees specified in Clause 2 Articles 25, 26, 28, 29 and 30 of Law on public employees and Clause 2 Article 18 of this Decree, guarantee benefits and policies on employment stability, salaries and other benefits currently applied to public employees;

b) With respect to public employees employed from July 1, 2003 to January 1, 2012, based on working period and employment contracts signed with public service providers, heads of public service providers shall sign fixed-term or permanent employment contracts with public employees according to Law on public employees;

c) With respect to public employees employed after January 1, 2012, heads of public service providers shall sign employment contracts as specified in Law on public employees.

2. Ministry of Home Affairs shall guide, examine and expedite implementation of public employee transition specified in Article 59 of Law on public employees and Clause 1 of this Article.