Nghị định 61/2020/NĐ-CP về sửa đổi Nghị định 28/2015/NĐ-CP hướng dẫn Luật Việc làm về bảo hiểm thất nghiệp

DECREE

AMENDMENTS AND SUPPLEMENTS TO GOVERNMENT’S DECREE NO. 28/2015/ND-CP DATED MARCH 12, 2015, ELABORATING ON CERTAIN ARTICLES REGARDING UNEMPLOYMENT INSURANCE IN THE EMPLOYMENT LAW

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

Pursuant to the Law on Employment dated November 16, 2013;

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

The Government hereby promulgates this Decree amending and supplementing the Government’s Decree No. 28/2015/ND-CP dated March 12, 2015, elaborating on certain articles regarding unemployment insurance in the Employment Law.

Article 1. Amending and supplementing the Government’s Decree No. 28/2015/ND-CP dated March 12, 2015, elaborating on certain articles regarding unemployment insurance in the Employment Law (hereinafter referred to as Decree No. 28/2015/ND-CP) as follows:

1. Amending and supplementing clause 2 of Article 3 as follows:

“2. Encountering difficulties arising from the cases specified in point b of clause 1 of Article 47 in the Law on Employment to the extent that they face the risk of reduction of at least 30% or 30 employees in the existing number of employees with regard to employers hiring fewer than 200 employees; at least 50 employees with regard to employers hiring from 200 to 1,000 employees; at least 100 employees with regard to employers hiring more than 1,000 employees, irrespective of employees entering into seasonal or piecework employment contracts with the contractual period of less than 1 month.

Cases deemed as force majeure events as prescribed in point b of Article 47 in the Employment Law shall include:

- Conflagration, flood, earthquake, tsunami, enemy sabotage, epidemic causing damage to a part or the whole of facility, equipment, machinery, and workshop, certified by the President of the People's Committee of the district, town and provincially-controlled city where the employer’s loss or damage occurs;

- Compliance with the competent regulatory authority’s order to relocate or downsize production and business facilities.”

2. Amending and supplementing clause 3 of Article 8 as follows:

“3. Approach to transfer of expenditures on management of unemployment insurance:

Based on the estimate of unemployment insurance management expenditures under the Prime Minister mandate, the Vietnam Social Security shall fully and promptly transfer unemployment insurance management expenditures to the Ministry of Labor, War Invalids and Social Affairs, Social Security agency of Ministry of National Defense, Social Security agency of Ministry of Public Security. The approach to transferring such expenditures shall comply with the Prime Minister's regulations regarding financial management mechanisms for social insurance, health insurance, unemployment insurance and management costs of social insurance, health insurance and unemployment insurance. Particularly, information technology application expenditures shall comply with the Government's Decree No. 64/2007/ND-CP dated April 10, 2007, providing for information technology application for operations of state regulatory authorities and other documents providing amendments or supplements (if any)”.

3. Amending and supplementing clause 2 of Article 10 as follows:

“2. Estimating, allocating and delegating budgetary expenditures, managing, using and settling costs of management of unemployment insurance shall comply with the Prime Minister's regulations regarding financial management mechanisms for social insurance, health insurance, unemployment insurance and management costs of social insurance, health insurance and unemployment insurance”.

4. Amending and supplementing clause 2 and clause 3 of Article 12 as follows:

“2. An employee is certified to be currently paying unemployment insurance contribution under the provisions of Article 49 of the Employment Law if he/she falls into one of the following cases:

a) That employee has paid unemployment insurance contribution for the month of termination of employment or labor contract, which is certified by the social insurance agency in his/her social insurance book;

b) That employee has paid unemployment insurance contribution for the month preceding the month of termination of employment or labor contract, which is certified by the social insurance agency in his/her social insurance book;

c) That employee takes sickness or maternity leave for 14 working days or more at the employer’s office without being paid any monthly salary or wage in the month preceding the month of termination of labor or employment contract, or in the month of termination of labor or employment contract, which is certified by the social insurance agency in his/her social insurance book;

d) That employee takes unpaid leave for 14 working days or more in the month preceding the month of termination of labor or employment contract, or in the month of termination of labor or employment contract, which is certified by the social insurance agency in his/her social insurance book;

dd) That employee temporarily suspend the execution of his/her labor or employment contract for 14 working days or more in the month preceding the month of termination of labor or employment contract, or in the month of termination of labor or employment contract, which is certified by the social insurance agency in his/her social insurance book.

3. The month of payment of unemployment insurance contribution for an employee will be counted if the employer and the employee have performed the labor or employment contract, and have paid unemployment insurance constructions.

If the employee already entitled to unemployment benefits obtains certification of the additional time of payment of unemployment insurance after having their entitlement terminated, the additional time shall be determined as the period of time during which UI contribution has been made, but UI benefits have not been received, under clause 1 of Article 45 in the Law on Employment.”

5. Amending and supplementing clause 3 of Article 14 as follows:

“3. The Minister of Labor, War Invalids and Social Affairs shall regulate the price applied to job consultancy and placement services sponsored by the Unemployment Insurance Fund for employees in accordance with Article 54 of the Employment Law.”

6. Amending and supplementing clause 2 of Article 16 as follows:

“2. The primary or certified true copy, or the duplicate copy submitted along the primary copy for checking purposes, of one of the following documents certifying the termination of the labor or employment contract:

a) The labor or employment contract which have expired or under which all contractual obligations have been discharged;

b) Resignation acceptance decision;

c) Dismissal decision;

d) Decision on imposition of disciplinary sanction in the form of dismissal;

dd) Notice of or agreement on termination of the labor or employment contract;

e) Confirmation of the employer which clearly provides the employee's information; type of labor contract signed; reasons and time of termination of labor contract with the employee.

g) Certifying by the competent state authority that the enterprise or cooperative closes, goes bankrupt or decides to dismiss him/her, relieve him/her from duty or discharge him/her from the designated post in case the employee holds the post as a manager of that enterprise or cooperative;

h) In case the employee does not have the documents certifying the termination of the labor contract because the employer’s unit has no legal representative and the person authorized by the legal representative, the following steps must be taken:

Department of Labor - Invalids and Social Affairs or provincial-level Social Insurance agency sends a written request to the Department of Planning and Investment to certify that the employer does not have a legal representative or no person authorized by the legal representative.

Department of Planning and Investment is responsible for cooperating with the tax authority, police, and local government at the place where the employer’s head office is located to verify the fact that the employer has no legal representative or no person authorized by the legal representative.

Department of Planning and Investment sends a written response to the Department of Labor - Invalids and Social Affairs or provincial-level Social Insurance agency with regard to the fact that the employer does not have the legal representative or the person authorized by the legal representative within 10 working days of receipt of the written request for certification from the Department of Labor - Invalids and Social Affairs or provincial-level Social Insurance agency.

i) In case where the employee participates in the unemployment insurance plan under the provisions of Point c, Clause 1, Article 43 of the Law on Employment, the document certifying the termination of the seasonal or piecework labor contract with the term ranging from 03 months to less than 12 months must be the primary copy or the certified true copy or the duplicate copy enclosing the primary copy for checking of such contract.”

7. Adding clause 4 to Article 17 as follows:

“4. Within 15 working days from the date of submission of application for unemployment benefit, if the employee does not wish to receive his/her unemployment benefit, the employee must directly, or authorize another person to, submit the written request for refusal to receive unemployment benefit to the employment service center at the place where the employee has submitted the application for unemployment benefit.”

8. Amending and supplementing clause 3 of Article 18 as follows:

“3. Within 03 working days inscribed in the appointment note to inform application processing results according to Form No. 01 issued together with this Decree, if the employee does not come to pick up the decision on entitlement to unemployment benefit or does not authorize any other to do so without notifying the employment service center of the acceptable reasons for not turning up for the decision, he/she shall be deemed as no need for unemployment benefit. Within 02 working days from the deadline for the employee’s picking up the decision stated in the appointment note, the employment service center shall request the Director of the Department of Labor - Invalids and Social Affairs to issue the decision on revocation of the decision on the employee’s entitlement to unemployment benefit using Form No. 02 issued together with this Decree.

Decision on revocation of the decision on the employee’s entitlement to the unemployment benefit which is sent by the employment service center shall include 01 copy sent to the provincial social insurance agency so as to prevent them from paying the unemployment benefit to the employee; 01 copy sent to the employee.”

9. Amending and supplementing point b, d, dd, e and h, clause 1; clause 2; clause 5, Article 21 as follows:

“b) The receiving employee manages to find a job

An employee will be deemed as employed of he/she falls into one of the following cases:

- He/she has concluded an employment contract, a seasonal labor contract or a piecework contract with a term of full 1 month or more. The date on which the employee is determined as having a job is the effective date of the employment or labor contract in accordance with law;

- There is a recruitment or appointment decision for cases in which an employee is not classified as eligible for entry into a labor or employment contract. The date on which the employee is determined to be employed in this case is the date on which the employee is placed with a job or is appointed as stated in the recruitment or appointment decision;

- He/she has business household registration certificate in case the employee is the homeowner of the business household, or has an enterprise registration certificate in case the employee is the business owner. The date on which an employee is determined to have a job is the date on which the employee notifies the employment service center of their business commencement.

- The employee notifies the employment service center that he/she has got a job. The date on which the employee is determined as having a job is the date specified in the employee’s notice of being employed.

d) He/she receives monthly retirement pension

The date on which the employee is determined to receive retirement pension is the first day of entitlement to the retirement pension stated in the social insurance agency's written document regarding the employee's entitlement to the monthly pension.

dd) After 02 job recommendation efforts made by the employment service center at the place where he/she is receiving the unemployment benefit, the employee keep refusing to the center’s recommended placements on none of sound grounds.

If the employee receiving unemployment benefit refuses to take up a job in the following cases, he/she shall be determined not to give any sound reason:

- The employee is recommended by the employment service center to the job matching his/her training discipline or qualification, or the job the employee took in the past, as specified in the job consultancy and placement slip, but does not turn up for the candidate interview;

- The employee who already participates in the candidate interview upon the recommendation of the employment service center at the place where he/she is receiving unemployment benefit and is offered a job by the employer refuses to take the job after successfully passing the candidate interview, except in case the offered job is not the same as the one shown in the employer's job vacancy advertisement.

e) During the period of enjoying unemployment benefit, he/she fails to send monthly notices to provide the employment service center with his/her updated job search status for 03 consecutive months in accordance with law.

The date on which an employee is determined as subject to the termination of entitlement to unemployment benefit is the deadline for issuance of the job search notice in the 3^rd month of the consecutive 3-month period during which the employee does not make monthly notices of his/her updated job search.

h) He/she is sent to take a training course for the period of 12 months or longer.

The date on which the employee is determined to be sent for a training course with the term of full 12 months or more is the date of admission stated in the admission notice.

2. Within duration of 03 working days from the date on which the employee classified as subject to the termination of entitlement to unemployment benefit under the provisions of Points b, c, d and h of clause 1 of this Article, the employee must notify the employment service center at the place where he/she is enjoying unemployment benefit and send duplicated copies of papers pertaining to the termination of unemployment benefit. If these copies are sent by post, the postmark date shall prevail.

5. If the employee is subject to the termination of entitlement to unemployment benefit in the cases specified in Points b, c, h, l, m and n of Clause 1 of this Article, the period of payment of unemployment insurance contribution equivalent to the remaining period during which the employee has not yet claimed his/her unemployment benefit shall be reserved as a basis for calculation of the time of enjoyment of unemployment benefit for the next time of enjoyment of unemployment benefit when he/she is eligible for receiving unemployment benefit as prescribed, except for cases where the employee is subject to the termination of unemployment benefit under the provisions of Points b, c and h of clause 1 of this Article, but fails to make any notice as prescribed in clause 2 of this Article.

The reserved period shall be calculated as total time length of payment of unemployment insurance contribution minus the time of payment of unemployment insurance contribution during which he/she already receives unemployment benefit according to the principle under which, each month, the sum of unemployment benefit is equivalent to the sum paid for 12 months of payment of unemployment insurance contribution, and leftover months of non-payment of the unemployment benefit which are reserved in the decision on entitlement to the unemployment benefit (if any) is subtracted.”

10. Clause 7a and 7b shall be inserted after clause 7 of Article 22 as follows:

 “7a. In case the employee has received documents on referral to another unemployment benefit payer, but has not yet submitted them to the receiving employment service center, and no longer needs to be referred to another unemployment benefit payer, the employee must submit the form of recommendation about referral to the unemployment benefit payer to the referring employment service center. Within 03 working days from the date of receipt of the form of relocation of unemployment allowance, the employment service center shall send the form of recommendation about referral to the unemployment benefit payer, the employment service center must send the written request to the provincial social insurance agency to keep on paying unemployment benefit and issuing health insurance card to the employee.

7b. The notice of job search issued by the employee during the period of referral to another unemployment benefit payer shall follow the instructions given by the Ministry of Labor, War Invalids and Social Affairs.”

11. Amending and supplementing Article 23 as follows:

“Article 23. Enjoyment of health insurance covers

1. Based on the decision on entitlement to the unemployment benefit, the social insurance agency shall issue the social insurance card to the employee.

2. The employee shall be subject to the termination of entitlement to health insurance benefit when his/her unemployment benefit is terminated.

12. Amending and supplementing Article 24 as follows:

“Article 24. Application for support for vocational education

1. Application for vocational education support for the employee who are awaiting the results of processing of application for unemployment benefit, or are receiving unemployment benefit but wishing to take vocational training course in the locality where they are expecting such processing results or are receiving unemployment benefit is a request for support for vocational training and education made using Form No. 03 enclosed herewith.

2. Application for vocational education support for the employee who are receiving unemployment benefit but wishing to take vocational training course in the locality other than the place where they are enjoying unemployment benefit, shall include the request form for support for vocational training and education made according to clause 1 of this Article and the decision on entitlement to unemployment benefit. The decision on entitlement to unemployment benefit to be submitted is the primary copy or the certified true copy or the duplicated copy enclosed with the primary copy for verification purpose.

3. An application for vocational training and education support for the employee who does not fall into the cases prescribed in clause 1 and clause 2 of this Article shall include:

a) Application form for unemployment benefit;

b) Application form for support for vocational education and training under the provisions of clause 1 of this Article;

c) The primary copy or the certified true copy or the copy annexed to the primary copy for verification purpose of one of the documents prescribed in clause 2 of Article 16 in the Decree No. 28/2015/ND-CP, which is amended and supplemented in Clause 6 of Article 1 in this Decree;

d) Social insurance book.

If the employee has submitted an application for unemployment benefit but does not meet the eligibility conditions, the application for vocational training support shall play its role as the request for vocational training support as prescribed in clause 1 of this Article and the Notice of the employee's failure to meet the conditions for unemployment benefit issued by the employment service center.”

13. Amending and supplementing Article 25 as follows:

“Article 25. Decision on provision of support for vocational education

1. Any employee who meets the conditions specified in Article 55 of the Employment Law and wishes to receive vocational training shall be entitled to a one-time support to take a vocational training course in a job at a vocational education institution or a higher education institution registered to provide vocational education programs at the collegial level or enterprises permitted to conduct vocational education activities that takes part in the provision of vocational training for employees participating in the unemployment insurance plan (hereinafter referred collectively to as vocational training institutions). Financial support shall be given through vocational training institutions.

2. Employees having demands for vocational training must submit 01 set of application for vocational training support to the employment service center.

a) The application for vocational training support prescribed in clause 1 of Article 24 which has been amended and supplemented in clause 12 of Article 1 in this Decree, and is submitted to the employment service center that is deciding to pay unemployment benefit or the place where the employee is receiving unemployment benefit.

b) The application for vocational training support prescribed in clause 2 and 3 of Article 24 which has been amended and supplemented in clause 12 of Article 1 in this Decree, and is submitted to the employment service center where the employee has the vocational training demands.

3. Employment service center shall have to consider the set of application documents for vocational training support and give the employee the note of appointment for notification of results according to Form No. 01 annexed hereto.

4. Within 20 working days from the date of receipt of a complete application for vocational training support, the employment service center shall provide details about the job, the vocational training support duration and time, time to start taking vocational training, the level of vocational training support and vocational training institution to seek the decision on vocational training support for employees from the Director of the Department of Labor - Invalids and Social Affairs.

The time for starting the vocational training of an employee is the time after issue of the decision on vocational training support, but not more than 03 months from the date of issue of the decision on vocational training support for those who are not currently receiving unemployment benefit, and not more than 03 months from the expiry of the validity period of enjoyment of unemployment benefit under the decision on entitlement to unemployment benefit with respect to those currently receiving unemployment benefit. If the employee needs to participate in a vocational training course currently conducted by a vocational training institution, the employee will be still supported to participate in this vocational training course provided that the time of starting vocational training up to the time of issuing the decision on vocational training support is no more than 01 month, and vocational training institution ensures the complementary training in knowledge in the period before the employee’s participation in the vocational training.

The decision on vocational training support made according to Form No. 04 issued with this Decree shall be sent by the employment service center, including 01 copy to the provincial social insurance agency for payment to the vocational training establishment; 01 copy to the vocational training institution to provide vocational training for employees; 01 copy to the employee.

In case where the employee does not have access to the vocational training, the employment service center must send a written response clearly stating reasons.

If the employee has obtained a decision to grant the vocational training support, but has not attended a vocational training course, or is attending a vocational training course but his/her unemployment benefit is terminated, he/she may still receive support for vocational training under the decision regarding vocational training support of the Director of Department of Labor - Invalids and Social Affairs.

5. Within 03 working days inscribed in the appointment note to inform application processing results according to Form No. 01 issued together with this Decree, if the employee does not come to pick up the decision on vocational training support or does not authorize any other to do so without notifying the employment service center of the acceptable reasons for not turning up for the decision, he/she shall be deemed as no need for vocational training support. Within 02 working days from the deadline for the employee’s picking up the decision stated in the appointment note, the employment service center shall request the Director of the Department of Labor - Invalids and Social Affairs to issue the decision on revocation of the decision on the employee’s vocational training support using Form No. 05 issued together with this Decree. The decision on revocation of the decision on vocational training support sent by the employment service center shall include 01 copy to the provincial social insurance agency for payment of vocational training support to the training institution; 01 copy to the vocational training institution not to provide vocational training for employees; 01 copy to the employee.

6. The vocational training institution shall organizes vocational training for employees under the vocational training support decisions of the Director of the Department of Labor, War Invalids and Social Affairs and shall be responsible for making a list of employees with their signatures who are taking vocational training courses for submission to the social insurance agency to settle and pay vocational training support costs."

14. Inserting clause 31 after clause 3 of Article 34 as follows:

 “3a. Making timely communication with the social insurance agency in case the employee does not come to pick up the decision on unemployment benefit, the employee does not come to inform his/her job seeking and the employee belongs to the case of termination of entitlement to unemployment benefit as prescribed before the Director of the Department of Labor - Invalids and Social Affairs issues a decision on revocation of the decision on entitlement to unemployment benefit or temporary suspension of unemployment benefit and termination of enjoyment of unemployment benefit.”

15. Amending and supplementing clause 6 and inserting 6a after clause 6 of Article 36 as follows:

“6. Cease to pay unemployment benefit; vocational training support; career development training support to maintain jobs for employees upon receipt of the decision from the competent authority.

6a. Recall unemployment insurance benefits due to improper payment under the decision on unemployment insurance benefits or payment of unemployment insurance benefits made upon expiration of the prescribed due date or collection of incorrect unemployment insurance contributions leading to illegal payment of unemployment benefit.”

16. Inserting Clause 2a after Clause 2 of Article 38 as follows:

“2a. Recall unemployment insurance benefits due to illegal payment of unemployment benefit or issuance and transfer of decision on revocation of entitlement to unemployment benefit, termination of entitlement to unemployment benefit, temporary suspension of entitlement to unemployment benefit beyond the prescribed time limit.

Preside over, and cooperate with relevant competent agencies in, organizing the recall of unemployment insurance benefits in contravention of regulations if such recall is through no fault of the unemployment insurance agency.”

Article 2. Abolishment of several regulations of the Decree No. 28/2015/ND-CP

Annulling clauses 3 and 4 of Article 10; annulling clause 4 of Article 18; Clause 3, Clause 5 and Clause 6 of Article 22 and Clause 11 of Article 30.

Article 3. Entry into force

1. This Decree shall take effect from July 15, 2020.

2. For employers who have submitted documents to request or apply for support for occupational skill improvement training to maintain employees’ jobs before the effective date of this Decree, but not yet obtaining decisions regarding the provision of funding for such training, the provisions of this Decree shall apply.

3. For employers who have submitted documents to request or apply for support for vocational training before the effective date of this Decree, but not yet obtaining decisions vocational training support, the provisions of this Decree shall apply.

Article 4. Implementation responsibilities

1. The Minister of Labor, War Invalids and Social Affairs shall be responsible for implementation of this Decree.

2. The Ministry of Labor, War Invalids and Social Affairs, and Vietnam Social Security, shall apply and modernize information technology to ensure data sharing and conduct electronic transactions in their revenue and expenditure activities and payment of unemployment insurance benefits.

3. Ministers, Heads of Ministry-level agencies, Heads of Governmental bodies, Presidents of People’s Committees of provinces and centrally-affiliated cities, and other entities, persons and enterprises involved, shall be responsible for enforcing this Decree./.