Chương IX Nghị định 145/2020/NĐ-CP: Lao động nữ và bảo đảm bình đẳng giới

Chapter IX

FEMALE EMPLOYEES AND GENDER EQUALITY

Section 1. GENERAL PROVISIONS

Article 74. Employers having large numbers of female employees

It is considered that an employer has a large number of female employees if such employer has:

1. 10 - 99 female employees that account for at least 50% of the total number of employees.

2. 100 - 999 female employees that account for at least 30% of the total number of employees.

3. 1000 female employees or more.

Article 75. Worker-populated areas

Worker-populated areas include:

1. Any industrial zone, industrial complex, processing and exporting zone, economic zone or hi-tech zone (hereinafter referred to as “industrial zone”) that has at least 5000 workers with social insurance in the enterprises within in the industrial zone.

2. Any commune and commune-level town with at least 3000 workers having registered permanent or temporary residences therein.

Article 76. Room for breast milk pumping and storage

The room for breast milk pumping and storage is a private area that is not a bathroom or toilet booth; has electricity and water supply, furniture, a fridge, electric fan or air conditioner. The room must be conveniently located and covered from public areas and other employees’ sight so female employees can breastfeed or pump and store their breast milk.

Article 77. Kindergarten centers and classes

Kindergarten centers and classes preschool education institutions defined in Article 26 of the Law on Education, including:

1. Junior kindergarten centers and classes for children aged 03 – 36 months.

2. Senior kindergartens and independent senior kindergarten classes for children aged 03 – 06 years.

3. Combined kindergartens and independent preschool classes for children aged 03 months – 06 years.

Section 2. ASSURANCE OF GENDER EQUALITY AND REGULATIONS EXCLUSIVELY APPLIED TO FEMALE EMPLOYEES

Article 78. Employees’ right to equality; implementation of measures for assurance of gender equality

1. Employees’ right to equality:

a) Employers have the responsibility to ensure equality of male and female employees; implement measures for assurance of gender equality in terms of recruitment, employment, training, salary, rewarding, promotion, remuneration payment, social insurance, health insurance, unemployment insurance, working conditions, labor safety, working hours, rest periods, sick leave, maternal leave, other material and spiritual benefits;

b) The State shall ensure the equality of male and female employees; implement measures for assurance of gender equality in labor relation as prescribed in Point a Clause 1 of this Article.

2. Employers shall consult with female employees or their representatives when making decisions relevant to their rights, obligations and interests in accordance with Clause 1 Article 41 of this Decree.

3. The State encourages employers to:

a) Give priority to hiring females if they are qualified for works that are suitable for both genders; renew employment contracts with female employees when their employment contracts expire;

b) Provide benefits for female employees that are better than those prescribed by law.

Article 79. Improvement of benefits and working conditions

1. Employers ensure there are adequate restrooms at the workplace in accordance with regulations of the Ministry of Health.

2. Employers are encouraged to cooperate with internal employee representative organizations in:

a) Preparing plans and implementing solutions for ensuring constant availability of works for both male and female employees; applying flexible time table, part-time work schedules, work-from-home; provision of advanced training; provision of training for female employees in extra vocations that are suitable for females’ physiology and motherhood;

b) Building art, sports, health facilities, housing and other amenities serving employees in worker-populated areas.

Article 80. Healthcare for female employees

1. During periodic health check-ups, female employees will be provided with gynecological examinations under the list promulgated by the Ministry of Health.

2. Employers are encouraged to enable female employees who are pregnant to take more leave for antenatal care according to Article 32 of the Law on Social Insurance.

3. Menstrual leave and rest breaks during menstruation:

a) During menstruation period, female employees are entitled to a daily break of 30 minutes which will be included in their working time and fully paid under their employment contracts. The number of days of menstrual leave shall be negotiated by both parties according to the working conditions and the needs of the female employees but must be at least 03 working days per month. Specific days of leave of each month shall be informed by the employee to the employer;

b) In case a female employee wishes to have more flexible rest periods, both parties shall negotiate rest periods that are appropriate for both the working conditions and the needs of the female employee;

c) In case a female employee does not have the need to take menstrual leave and the employer allows her to work, she will be entitled to, in addition to the salary mentioned in Point a of this Clause, an extra salary that corresponds to the amount of works done by her during the period of menstrual leave to which she is entitled. The untaken menstrual leave shall not be included in the her overtime work.

4. Rest periods while nursing a child under 12 months of age:

a) A female employee who is nursing a child under 12 months is entitled to a daily break of 60 minutes to for breastfeeding, milking and rest. This daily break time will be fully paid under the employment contract.

b) In case a female employee wishes to have more flexible rest periods, she shall negotiate with the employer about rest periods that are appropriate for both the working conditions and her needs;

c) In case a female employee does not have the need for rest the employer allows her to work, she will be entitled to, in addition to the salary mentioned in Point a of this Clause, an extra salary that corresponds to the amount of works done by her during the rest period to which she is entitled.

5. Employers are encouraged to provide dedicated rooms for milking and breast milk storage in the workplace if possible. A room for milking and breast milk storage is mandatory if the employer has at 1000 female employees or more.

6. Employers are encouraged to enable female employees who are nursing children aged 12 months or older to milk and store their milk in the workplace. The break time for milking and breast milk storage will be negotiated by the employer and these employees.

Article 81. Organization of kindergarten centers and classes in worker-populated areas

1. The People’s Committees of provinces shall:

a) Provide land areas for construction of kindergarten centers and classes in worker-populated areas in their land-use plans;

b) Build kindergarten centers and classes to meet local workers’ demand;

c) Invest in infrastructure; lease out new or existing buildings and infrastructure for opening kindergarten centers and classes to meet local workers’ demand;

d) Oversee implementation of policies on private investment in education; facilitate investment in construction of kindergarten centers and classes in terms of land, loans and administrative procedures;

dd) Fulfill responsibility of the State for education management as prescribed by law.

2. Kindergarten centers and classes in worker-populated areas are entitled to the same benefits as those of independent and private preschool education institutions in areas with industrial zones prescribed in Article 5 of the Government’s Decree No. 105/2020/ND-CP.

3. Preschool students that are children of workers in worker-populated areas are entitled to the same benefits as those that are children of workers in the industrial zones prescribed in Article 5 of the Government’s Decree No. 105/2020/ND-CP.

4. Preschool teachers working in independent and private kindergarten centers and classes in worker-populated areas are entitled to the same benefits as those of preschool teachers working in independent and private preschool education institutions in areas with industrial zones prescribed in Article 10 of the Government’s Decree No. 105/2020/ND-CP.

5. Employers are encouraged to organize or build kindergarten centers and classes or provide financial assistance therein.

Article 82. Employers’ financial assistance in day care costs

Employers shall have plan for provision of financial assistance in day care costs incurred by employees. Employers shall decide the level and time of assistance after discussing with the employees through dialogue in the workplace as prescribed in Article 63 and Article 64 of the Labor Code and Chapter V of this Decree.

Article 83. Assistance for employers

1. Employers that invest in construction of kindergarten centers and classes, culture and other welfare works satisfying standards specified in policies on encouragement of private investment will receive incentives in the fields of education, vocational training, healthcare, culture, sports and environment.

Employers that invest in construction of housing for workers will receive incentives prescribed by the Law on Housing.

Employers that invest in or organize kindergarten centers and classes will be eligible for infrastructure rent reduction or exemption.

2. The State will provide assistance for employers as follows:

a) Employers having large numbers of female employees will be eligible for tax reduction as prescribed by tax laws;

b) Additional expenditures on female employees’ welfare, assurance of gender equality, preventing and combating sexual harassment in the workplace prescribed in this Decree will be deductible when calculating income subject to corporate income tax as prescribed by the Ministry of Finance.

Section 3. PREVENTING AND COMBATING SEXUAL HARASSMENT IN THE WORKPLACE

Article 84. Sexual harassment in the workplace

1. Sexual harassment defined by Clause 9 Article 3 of the Labor Code may occur in the form of a request, demand, suggestion, threat, use of force to have sex in exchange for any work-related interests; or any sexual acts that thus creates an insecure and uncomfortable work environment and affects the mental, physical health, performance and life of the harassed person.

2. Sexual harassment in the workplace includes:

a) Actions, gestures, physical contact with the body of a sexual or suggestive nature;

b) Verbal sexual harassment: sexual or suggestive comments or conversations in person, by phone or through electronic media

c) Non-verbal sexual harassment: body language; display, description of sex or sexual activities whether directly or through electronic media.

3. The workplace mentioned in Clause 9 Article 3 of the Labor Code means any location where the employee works in reality as agreed or assigned by the employer, including the work-related locations or spaces such as social activities, conferences, training sessions, business trips, meals, phone conversations, communications through electronic media, on shuttles provided by the employer and other locations specified by the employer.

Article 85. Employer’s regulations on preventing and combating sexual harassment in the workplace

1. The employer’s regulations on preventing and combating sexual harassment shall be included in the labor regulations or issued as an appendix to the labor regulations and have the following primary contents:

a) Sexual harassment in the workplace is prohibited;

b) Detailed and specific descriptions of that are considered sexual harassment in the workplace according to the characteristics of the works and the workplace;

c) Responsibility, deadline and procedures for responding to sexual harassment in the workplace, including those for filing and settling complaints and accusations, and relevant regulations;

d) Disciplinary actions against perpetrators of sexual harassment and false accusations, which depend on the nature and seriousness of the offence;

dd) Compensation for victims and remedial measures.

2. The employer’s regulations on sexual harassment-related complaints and accusations and responses to sexual harassment shall adhere to the following principles:

a) Responses are quick and timely;

b) Privacy, dignity, honor and safety of the victims, plaintiffs and defendants are protected.

Article 86. Responsibility for preventing and responding to sexual harassment in the workplace

1. The employer shall:

a) Implement and supervise the implementation of regulations of law on preventing and combating sexual harassment in the workplace;

b) Organize dissemination of regulations of law on preventing and combating sexual harassment in the workplace among employees;

c) Prevent and/or respond to sexual harassment in the workplace whenever a complaint or accusation is made; take measures to protect the privacy, dignity, honor and safety of the victims, plaintiffs and defendants.

2. Employees shall:

a) Strictly implement regulations on preventing and combating sexual harassment in the workplace;

b) Participate in development of a work environment without sexual harassment;

c) Prevent and report sexual harassment in the workplace.

3. The internal employee representative organization shall:

a) Participate in the formulation, implementation and supervision of the implementation of regulations on preventing and combating sexual harassment in the workplace;

b) Provide information and consultancy and represent sexually harassed employees and employees accused of sexual harassment.

c) Disseminate and provide training in regulations on preventing and combating sexual harassment in the workplace.

4. Employers and internal employee representative organization are recommended to select topic of preventing and combating sexual harassment in the workplace to carry out collective bargaining.

Section 4. RESPONSIBILITY FOR IMPLEMENTATION OF POLICIES ON FEMALE EMPLOYEES AND GENDER EQUALITY

Article 87. Organizing implementation of policies on female employees and gender equality

1. The Ministry of Labor, War Invalid and Social Affairs shall take charge and cooperate with relevant authorities in disseminate policies on female employees, gender equality and preventing and combating sexual harassment in the workplace.

2. The Ministry of Finance shall take charge and cooperate with relevant authorities in providing guidance on implementation of Clause 2 Article 83 of this Decree.

3. The Ministry of Education and Training shall take charge and cooperate with relevant authorities in providing guidance on implementation of Article 81 of this Decree.

4. The Ministry of Health shall:

a) Establish standards for restrooms and toilet booths mentioned in Clause 1 Article 79 of this Decree;

b) Promulgate a list of gynecology tests and procedures mentioned in Clause 1 Article 80 of this Decree;

c) Provide guidance on establishment of rooms for breast milk pumping and storage mentioned in Clause 5 Article 80 of this Decree.

5. The People’s Committees of provinces shall:

a) Disseminate and inspect the implementation of policies on female employees, gender equality and preventing and combating sexual harassment in the workplace prescribed in this Chapter;

b) Identify worker-populated areas and organize the implementation of Article 81 of this Decree.

6. Vietnamese Fatherland Front and its member organizations shall, within the scope of their duties and entitlements, supervise the implementation of this Chapter.

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