PHỤ LỤC I Nghị định 97/2022/NĐ-CP: QUY TRÌNH XÂY DỰNG PHƯƠNG ÁN SỬ DỤNG LAO ĐỘNG

DECREE

POLICIES FOR REDUNDANT EMPLOYEES UPON TRANSFER OF OWNERSHIP OR REARRANGEMENT OF WHOLLY STATE-OWNED SINGLE-MEMBER LIMITED LIABILITY COMPANIES

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

Pursuant to the Labour Code dated November 20, 2019;

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

The Government promulgates a Decree introducing policies for redundant employees upon transfer of ownership or rearrangement of wholly state-owned single-member limited liability companies.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Decree deals with policies for redundant employees of wholly state-owned single-member limited liability companies (parent companies of state-owned economic groups; parent companies of state-owned economic corporations; parent companies in groups of parent company – subsidiary companies; independent companies) when they undergo transfer of ownership or rearrangement under plans approved by competent authorities (hereinafter referred to as “rearranged enterprises”), including:

1. Equitization or selling of entire enterprise.

2. Conversion into a multi-member limited liability company.

3. Conversion into an administrative unit.

4. Merger, consolidation, split-up and split-off.

5. Dissolution and bankruptcy.

Article 2. Regulated entities

1. Redundant employees of rearranged enterprises as prescribed in Article 1 of this Decree, including:

a) Employees who work under employment contracts, have their names included in the list of employees, have been recruited by a rearranged enterprise as prescribed in Clauses 1, 2, 3 and 4 Article 1 of this Decree before April 21, 1998 (the time of implementation of the Directive No. 20/1998/CT-TTg of the Prime Minister), and are not assigned works by the enterprise at the rearrangement date; employees who work at an agricultural or forestry enterprise and are not assigned works and also not contracted for land or forest area management by the enterprise at the rearrangement date;

b) Employees who work under employment contracts, have their names included in the list of employees, and have been recruited by a rearranged enterprise as prescribed in Clause 5 Article 1 of this Decree before April 26, 2002 (i.e. the effective date of the Government’s Decree No. 41/2002/ND-CP dated April 11, 2002);

c) Employees who work under employment contracts, have their names included in the list of employees, have been recruited by a rearranged enterprise as prescribed in Clauses 1, 2, 3 and 4 Article 1 of this Decree from April 21, 1998 onwards, and are not assigned works by the enterprise at the date of rearrangement;

d) Employees who work under employment contracts, have their names included in the list of employees, and have been recruited by a rearranged enterprise prescribed in Clause 5 Article 1 of this Decree from April 26, 2002 onwards;

dd) Employees who work under employment contracts and are authorized in writing by the rearranged enterprise to perform rights and responsibilities concerning its stakes in other enterprises and engage in management and administration of such enterprises (hereinafter referred to as “representatives of enterprise’s stakes”), including: representatives of stakes of the rearranged enterprises prescribed in 1, 2, 3 and 4 Article 1 of this Decree, who are not assigned works upon expiration of authorization period at the date of enterprise rearrangement; representatives of stakes of the rearranged enterprises prescribed in Clause 5 Article 1 of this Decree.

2. Enterprises undergoing rearrangement as prescribed in Article 1 of this Decree.

3. Owner’s representative agencies of rearranged enterprises.

4. Other regulatory authorities, organizations and individuals involved in the implementation of this Decree.

Chapter II

POLICIES FOR REDUNDANT EMPLOYEES

Article 3. Policies for redundant employees who are recruited before April 21, 1998 or April 26, 2002

A redundant employee prescribed in Point a or Point b Clause 1 Article 2 of this Decree is entitled to the following benefits:

1. A redundant employee whose age is younger than the retirement age prescribed in Clause 2 Article 169 of the Labour Code and Article 4 Decree No. 135/2020/ND-CP dated November 18, 2020 prescribing retirement ages (hereinafter referred to as “Decree No. 135/2020/ND-CP”) by 01 – 05 years, and who has paid social insurance for at least 20 years will receive retirement pension and the following benefits:

a) His/her pension will not be reduced due to early requirement;

b) He/she will receive an allowance equal to 03 months’ salary for each full year (i.e. 12 months, excluding incomplete month), of early retirement determined according to the retirement age prescribed in Clause 2 Article 169 of the Labour Code and Article 4 Decree No. 135/2020/ND-CP;

c) He/she will receive an allowance equal to 0,4 of the average statutory minimum monthly wages for each working year with payment of social insurance contributions.

2. A redundant employee whose age is younger than the retirement age prescribed in Clause 2 Article 169 of the Labour Code and Article 4 Decree No. 135/2020/ND-CP by fewer than 01 year, and who has paid social insurance for at least 20 years will receive retirement pension and the following benefits:

a) His/her pension will not be reduced due to early requirement;

b) He/she will receive an allowance equal to 0,2 of the average statutory minimum monthly wages for each working year with payment of social insurance contributions.

3. A redundant employee who reaches the retirement age prescribed in Clause 2 Article 169 of the Labour Code and Article 4 Decree No. 135/2020/ND-CP but has no more than 06 months of social insurance contribution left to be eligible to receive pension shall have the remaining social insurance contributions paid in lump sum by the State to the pension and death benefit fund in order to be eligible for retirement benefits. Total amount of social insurance contributions paid by the State equals the amount of social insurance contributions paid to the pension and death benefit fund by both employer and employee for the month preceding the month in which the employee quits his/her job multiplied by the number of required social insurance contribution months.

4. If a redundant employee prescribed in Point a Clause 1 Article 2 of this Decree is not eligible to receive the benefits prescribed in Clauses 1, 2 and 3 of this Article, he/she will terminate the signed employment contract and receive the following benefits:

a) The redundancy allowance prescribed in Article 47 of the Labour Code and Clause 2 Article 8 of the Government’s Decree No. 145/2020/ND-CP dated December 14, 2020 eLabourating on some Article of the Labour Code concerning working conditions and Labour relations (hereinafter referred to as “Decree No. 145/2020/ND-CP”);

b) He/she will receive an allowance equal to 0,05 of the average statutory minimum monthly wages for each working year at the rearranged enterprise.

5. If a redundant employee prescribed in Point b Clause 1 Article 2 of this Decree is not eligible to receive the benefits prescribed in Clauses 1, 2 and 3 of this Article, he/she will terminate the signed employment contract and receive the following benefits:

a) The severance pay prescribed in Article 46 of the Labour Code and Clause 1 Article 8 of the Government’s Decree No. 145/2020/ND-CP;

b) He/she will receive an allowance equal to 0,2 month’s salary for each working year at the rearranged enterprise.

Article 4. Policies for redundant employees who are recruited from April 21, 1998 or April 26, 2002 onwards

A redundant employee prescribed in Point c or Point d Clause 1 Article 2 of this Decree is entitled to the following benefits:

1. The redundancy allowance prescribed in Article 47 of the Labour Code and Clause 2 Article 8 of the Government’s Decree No. 145/2020/ND-CP shall be paid to an employee of the rearranged enterprise prescribed in Clauses 1, 2, 3 and 4 Article 1 of this Decree.

2. The severance allowance prescribed in Article 46 of the Labour Code and Clause 1 Article 8 of the Government’s Decree No. 145/2020/ND-CP shall be paid to an employee of the rearranged enterprise prescribed in Clause 5 Article 1 of this Decree.

Article 5. Policies for representatives of enterprise’s stakes

1. Representatives of stakes of the rearranged enterprises prescribed in Point dd Clause 1 Article 2 of this Decree who are recruited before April 21, 1998 or April 26, 2002 are entitled to receive the benefits prescribed in Article 3 of this Decree.

2. Representatives of stakes of the rearranged enterprises prescribed in Point dd Clause 1 Article 2 of this Decree who are recruited from April 21, 1998 or April 26, 2002 onwards are entitled to receive the benefits prescribed in Article 4 of this Decree.

Article 6. Working period as the basis for calculation of benefits

1. The working period with social insurance contributions as the basis for calculation of the allowance prescribed in Point c Clause 1 and Point b Clause 2 Article 3 of this Decree is the length of time qualifying as the basis for payment of compulsory social insurance benefits as prescribed in the Law on social insurance.

2. The working period as the basis for calculation of redundancy allowance and severance allowance prescribed in Point a Clause 4, Point a Clause 5 Article 3 and Article 4 of this Decree shall be determined according to Clause 2 Article 47, Clause 2 Article 46 of the Labour Code and Clause 3, Clause 4 Article 8 of the Decree No. 145/2020/ND-CP.

3. The working period as the basis for calculation of the allowance prescribed in Point b Clause 4 and Point b Clause 5 Article 3 of this Decree is total length of time during which the employee has actually worked at the rearranged enterprise. The actual period of working for the rearranged enterprise shall be determined according to Point a Clause 3 and Clause 4 Article 8 of the Decree No. 145/2020/ND-CP.

4. The working period as the basis for calculation of the allowance prescribed in Point c Clause 1, Point b Clause 2, Point b Clause 4 and Point b Clause 5 Article 3 of this Decree is expressed in years (i.e. full 12 months). The working period of from 01 month to 06 months shall be considered a half of year, and the working period of more than 06 months shall be considered as a full year.

Article 7. Salary as the basis for calculation of benefits

1. The salary as the basis for calculation of the allowance prescribed in Point b Clause 1 Article 3 of this Decree is the average monthly wage as the basis for paying social insurance contributions of the 05 last working years before quitting the job.

2. The average statutory minimum monthly wages prescribed in Point c Clause 1, Point b Clause 2 and Point b Clause 4 Article 3 of this Decree shall be the average of the region-based statutory minimum monthly wages announced by the Government at the date on which the employee quits his/her job.

3. The salary as the basis for calculation of redundancy allowance and severance allowance prescribed in Point a Clause 4, Point a Clause 5 Article 3 and Article 4, and the allowance prescribed in Point b Clause 5 Article 3 of this Decree is the sum of base salary, allowances and other additional amounts as the basis for calculation of redundancy allowance and severance allowance specified in the employment contract as prescribed in Article 21 of the Labour Code and relevant guiding documents.

Article 8. Funding for implementation of policies for redundant employees

1. Funding for implementing policies for redundant employees as prescribed in Article 3 and representatives of enterprise’s stakes as prescribed in Clause 1 Article 5 of this Decree is stipulated as follows:

a) With regarding to a rearranged enterprise prescribed in Clause 1 Article 1 of this Decree, funding shall be the proceeds earned from initial offering of shares or selling of enterprise; If such proceeds are not enough for covering costs of implementation of such policies, funding from state budget shall be provided according to the Government’s Decree No. 148/2021/ND-CP dated December 31, 2021 on management and use of proceeds earned from transfer of ownership of enterprises and public service providers, transfer of state capital and difference between the owner's equity and charter capital of enterprises (hereinafter referred to as “Decree No. 148/2021/ND-CP”);

b) With regarding to a rearranged enterprise prescribed in Clause 2, 3 or 4 Article 1 of this Decree, funding shall be derived from state budget in accordance with the provisions of the Decree No. 148/2021/ND-CP;

c) With regarding to a rearranged enterprise prescribed in Clause 5 Article 1 of this Decree, funding shall be the proceeds earned during the dissolution or bankruptcy as prescribed by laws; If such proceeds are not enough for covering costs of implementation of such policies, funding from state budget shall be provided in accordance with the provisions of the Decree No. 148/2021/ND-CP.

2. Funding for implementing policies for redundant employees as prescribed in Article 4 and representatives of enterprise’s stakes as prescribed in Clause 2 Article 5 of this Decree is stipulated as follows:

a) With regarding to a rearranged enterprise prescribed in Clause 1, 2, 3 or 4 Article 1 of this Decree, funding for implementing policies shall be recorded as business expenses of the rearranged enterprise;

b) With regarding to a rearranged enterprise prescribed in Clause 5 Article 1 of this Decree, funding shall be the proceeds earned during the dissolution or bankruptcy as prescribed by laws; If such proceeds are not enough for covering costs of implementation of such policies, funding from state budget shall be provided in accordance with the provisions of the Decree No. 148/2021/ND-CP.

Chapter III

IMPLEMENTATION ORGANIZATION

Article 9. Responsibilities of rearranged enterprises

Each rearranged enteprise shall:

1. Disseminate information on policies for redundant employees to its employees before and during the formulation of labour utilization plan.

2. Formulate the labour utilization plan as prescribed in Article 44 of the Labour Code and the procedures in Appendix I enclosed herewith.

3. Cooperate with the grassroots employees’ representative in collecting opinions about the labour utilization plan; submit the labour utilization plan to the owner’s representative agency for approval; disclose it to employees within 15 days from the date of approval.

4. Terminate employment contracts and give written notices to employees prescribed in Clause 1 Article 2 of this Decree; provide benefits for employees within 30 days from the date of termination of the employment contract; make payment and statement of funding for implementation of policies for redundant employees in accordance with regulations of law.

5. Request the provincial social security office to provide benefits for redundant employees as prescribed in Clauses 1, 2 and 3 Article 3 of this Decree; provide relevant documents for the social security office to serve its provision of benefits for redundant employees.

6. Submit reports to the owner’s representative agency on provision of benefits for redundant employees, using form No. 12 in Appendix II enclosed herewith, within 30 days from the completion of provision of benefits for redundant employees.

Article 10. Responsibilities of enterprises after rearrangement

After completing rearrangement procedures, each enterprise shall:

1. Implement the approved labour utilization plan; assign works to its employees in conformity with its business operations.

2. Pay severance allowance and redundancy allowance to employees who are transferred from the rearranged enterprise according to the labour utilization plan approved by a competent authority in case they lose or wish to quit their jobs according to Articles 46 and 47 of the Labour Code and relevant guiding documents.

Article 11. Responsibilities of relevant authorities and organizations

1. The Ministry of Labour, War Invalids and Social Affairs of Vietnam shall:

a) inspect the implementation of policies for redundant employees laid down in this Decree;

b) prepare and submit consolidated reports on implementation of this Decree at the request of the Government or the Prime Minister.

2. The Ministry of Finance of Vietnam shall play the leading role and cooperate with relevant authorities in balancing and allocating estimated funding for recurrent expenditures to pay benefits to redundant employees prescribed in this Decree in accordance with applicable regulations on hierarchical management of state budget.

3. Provincial People's Committees shall balance and allocate their estimated funding for recurrent expenditures to pay benefits to redundant employees prescribed in this Decree in accordance with applicable regulations on hierarchical management of state budget.

4. Each owner’s representative agency shall fulfill responsibilities towards its affiliated rearranged enterprise as follows:

a) direct the rearranged enterprise to formulate the labour utilization plan in accordance with regulations of law and pay benefits to the redundant employees in accordance with this Decree;

b) consider giving approval for the labour utilization plan in accordance with this Decree before approving the rearrangement plan; consider giving approval for the modified labour utilization plan (if any);

c) pay benefits to redundant employees of the enterprise following dissolution or bankruptcy procedures;

d) cooperate with relevant authorities in making statement of funding for paying benefits to redundant employees;

dd) inspect the implementation of policies for redundant employees of the rearranged enterprise as prescribed in this Decree;

e) submit reports on implementation of policies for redundant employees, using Form No. 13 in Appendix II enclosed herewith at the request of the Ministry of Labour, War Invalids and Social Affairs of Vietnam.

5. Vietnam Social Security Administration shall:

a) direct, instruct and inspect provincial social security offices' collection of social insurance contributions and provision of social insurance benefits for redundant employees as prescribed in Clauses 1, 2, 3 Article 3 and Clause 5 Article 13 of this Decree;

b) submit reports on collection of social insurance contributions and provision of early retirement benefits for redundant employees, using Form No. 14 in Appendix II enclosed herewith, at the request of the Ministry of Labour, War Invalids and Social Affairs of Vietnam.

6. request Vietnam General Confederation of Labour to:

a) direct and instruct grassroots employees’ representative to cooperate with the rearranged enterprise in disseminating policies for redundant employees in accordance with regulations of law; giving opinions about the labour utilization plan; inspect provision of benefits for redundant employees of the rearranged enterprise;

b) cooperate with the Ministry of Labour, War Invalids and Social Affairs of Vietnam and the owner’s representative agency in inspecting the implementation of policies for redundant employees of the rearranged enterprise as prescribed in this Decree.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 12. Transition

If a rearranged enterprise has its labour utilization plan approved by a competent authority in accordance with the Government’s Decree No. 63/2015/ND-CP dated July 22, 2015 before the effective date of this Decree, benefits shall be provided for its redundant employees under the approved labour utilization plan; funding for provision of such benefits derived from the Enterprise Arrangement and Development Fund shall be replaced with funding derived from state budget as prescribed in the Decree No. 148/2021/ND-CP.

Article 13. Application of this Decree to other entities

1. Single-member limited liability companies 100% of charter capital of which is held by political organizations or socio-political organizations and that are undergoing rearrangement under plans approved by competent authorities may provide benefits to their redundant employees according to the provisions of this Decree. Funding for providing benefits to redundant employees shall be the proceeds earned from the initial offering of shares or selling of enterprises, in case of enterprise equitization, or the proceeds earned from the selling of entire enterprise or other lawful funding sources as prescribed by law, in case of dissolution or bankruptcy of enterprise, or the lawful funding sources of the owner’s representative agency, in case of conversion of an enterprise into a multi-member limited liability company or administrative unit, merger, consolidation, split-up or split-off of enterprise; If such funding is not enough for providing benefits to redundant employees, other lawful funding sources may be used according to a decision issued by the owner’s representative agency.

2. If an agricultural or forestry single-member limited liability company 100% of charter capital of which is held by the State undergoes rearrangement in the form of maintenance, strengthening and development with approval given by a competent authority, policies for redundant employees laid down in this Decree shall apply.

3. A public service provider that undergoes equitization according to a decision issued by a competent authority shall apply the provisions of this Decree to provision of benefits for its employees who are working under employment contracts and are not assigned works in the joint-stock company according to the Labour utilization plan. Funding for provision of benefits to such employees shall be the proceeds earned from the initial offering of shares which is conducted upon equitization of the public service provider; if such funding is not enough to provide benefits to such employees, funding shall be provided from state budget as prescribed in the Decree No. 148/2021/ND-CP.

4. When a single-member limited liability company 100% of charter capital of which is held by a parent company of a state-owned economic group or corporation, or parent company in a group of parent company – subsidiary companies as prescribed in Article 1 of this Decree (rank-II enterprise) undergoes rearrangement according to the plan approved by a competent authority, it may apply the provisions of this Decree to provision of benefits for its redundant employees and representatives of its stakes. Funding for providing benefits to redundant employees and representatives of stakes of the enterprise shall be the proceeds earned from the initial offering of shares or selling of enterprises, in case of enterprise equitization, or the proceeds earned from the selling of entire enterprise or other lawful funding sources as prescribed by law, in case of conversion of an enterprise into a multi-member limited liability company or administrative unit, merger, consolidation, split-up, split-off, dissolution or bankruptcy of enterprise. If such funding is not enough, the deficit shall be covered with funding provided by the parent company and recorded as financial expenses of the parent company.

5. If Vietnam Development Bank, when undergoing restructuring according to the Prime Minister’s decision, has employees who have been recruited before July 31, 2019 and become redundant, who wish to take early retirement, and who are not assigned works after Vietnam Development Bank has adopted all necessary measures, these employees shall receive the benefits as prescribed in Clauses 1, 2, 3 and 4 Article 3 of this Decree. Especially, if an employee who has been transferred to Vietnam Development Bank has not yet received severance allowance and redundancy allowance for his/her working period at General Department of Investment and Development or Development Assistance Fund, this working period may be added to his/her working period at Vietnam Development Bank when calculating redundancy allowance and other allowances as prescribed in Clause 4 Article 3 of this Decree. Funding for providing benefits to employees as prescribed in this Clause shall be recorded as operating expenses of apparatus of Vietnam Development Bank.

Article 14. Effect and responsibility for implementation

1. This Decree comes into force from January 15, 2023.

2. The Government’s Decree No. 63/2015/ND-CP dated July 22, 2015 and the Circular No. 44/2015/TT-BLDTBXH dated October 22, 2015 of the Ministry of Labour, War Invalids and Social Affairs of Vietnam shall cease to have effect from the effective date of this Decree.

3. Clause 3 Article 40 of the Government’s Decree No. 46/2021/ND-CP dated March 31, 2021 shall cease to have effect from the effective date of this Decree.

4. If any legislative documents referred to in this Decree are amended or superseded, the new ones shall apply.

5. Notwithstanding the provisions of Article 3 and Article 4 of this Decree, wholly state-owned single-member limited liability companies that undergo rearrangement according to Article 1 of this Decree are encouraged to provide additional allowances to their redundant employees with their lawful funding sources after reaching consent with their grassroots employees’ representatives.

6. Ministers, heads of ministerial agencies, heads of governmental agencies, Chairpersons of provincial People’s Committees, Boards of Members of state-owned economic groups or corporations, or parent companies in groups of parent company – subsidiary companies, and independent companies are responsible for the implementation of this Decree.

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