Thông tư 08/2013/TT-BLĐTBXH hướng dẫn Nghị định 46/2013/NĐ-CP hướng dẫn Bộ luật lao động về tranh chấp lao động do Bộ trưởng Bộ Lao động - Thương binh và Xã hội ban hành

CIRCULAR

GUIDING THE GOVERNMENT’S DECREE NO. 46/2013/ND-CP DATED MAY 10, 2013 DETAILING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LABOR CODE ON LABOR DISPUTES

Pursuant to the Government’s Decree No. 46/2013/ND-CP dated May 10, 2013 detailing the implementation of a number of articles of the Labor Code on labor disputes;

Pursuant to the Government’s Decree No. 106/2012/ND-CP dated December 20, 2012 defining the functions, tasks, powers and organizational structure of the Ministry of Labor, Invalids and Social Affairs;

At the proposal of Director of Labor and Salary Department;

The Minister of Labor, Invalids and Social Affairs promulgates the Circular guiding the Government’s Decree No. 46/2013/ND-CP dated May 10, 2013 detailing the implementation of a number of articles of the Labor Code on labor disputes.

Article 1. Scope of regulation

This Circular guides the recruitment, appointment, re-appointment and assignment of labor conciliators for participating in solving labor disputes and dismissal of labor conciliators as prescribed in the Government’s Decree No. 46/2013/ND-CP dated May 10, 2013 detailing the implementation of a number of articles of the Labor Code on labor disputes (hereinafter abbreviated to the Decree No. 46/2013/ND-CP).

Article 2. Subjects of application

1. Labor conciliators.

2. Employees as prescribed in clause 1 Article 3 of the Labor Code.

3. Employers as prescribed in clause 2 Article 3 of the Labor Code.

4. Organizations representing for labor collectives at facility as prescribed in clause 4 Article 3 of the Labor Code.

5. Agencies, organizations and individuals related to the recruitment, appointment, re-appointment and assignment of labor conciliators for participating in solving labor disputes and dismissal of labor conciliators.

Article 3. Application file for labor conciliator candidature

1. Application for labor conciliator candidature made according to the form No. 01/HGV promulgated together with this Circular. Application for labor conciliator candidature of persons working in state agencies, non-business units, political organizations, socio-political organizations, professional organizations not under introduction of agencies or organizations specified in point a clause 2 Article 5 of the Decree No. 46/2013/ND-CP must have consent of agencies or units where such persons are working.

2. Curriculum vitae certificated by the agencies directly managing or the communal People’s Committee where they reside.

3. Health certificate issued by the competent health agencies.

4. Copy of diplomas, certificate authenticated by competent agencies or organizations.

5. Written introduction for candidature in labor conciliator position of heads of agencies or organizations specified in point a clause 2 Article 5 of the Decree No. 46/2013/ND-CP for persons who are introduced for candidature in labor conciliator position.

Article 4. Defining quantity and selecting labor conciliators

1. Each district, town, city under province must have labor conciliator. Based on quantity of enterprises, level of labor disputes in localities, the district Division of Labor, Invalids and Social Affairs shall define quantity of labor conciliators and submit it to the President of the district-level People’s Committee for decision.

In quarter 4 every year, based on the extent of solving labor disputes, quantity of enterprises and quantity of existing labor conciliators, the district Division of Labor, Invalids and Social Affairs shall report the President of the district-level People’s Committee for supplementing quantity of labor conciliators to do as basis for selection as prescribed.

2. Based on standard of labor conciliators specified in Article 4 of Decree No. 46/2013/ND-CP and quantity of labor conciliators need to be recruited, the district Divisions of Labor, Invalids and Social Affairs shall notify the selection of labor conciliators on means of mass media in localities.

3. The district Divisions of Labor, Invalids and Social Affairs shall introduce an officer under their management to appoint labor conciliators.

4. List of persons meeting standards to report it to the President of the district-level People’s Committee for appointment of labor conciliators specified in point c clause 2 Article 5 of the Decree No. 46/2013/ND-CP is made according to the form No. 02/HGV promulgated together with this Circular.

Article 5. Decision on appointment of labor conciliators

Decision on appointment of labor conciliators of the President of the provincial People’s Committee is made according to the form No. 03/HGV promulgated together with this Circular.

Article 6. To publicize list of labor conciliators

Publicizing list of labor conciliators as prescribed at point g clause 2 Article 5 of the Decree No. 46/2013/ND-CP is provided as follows:

1. Listing publicly at the district Divisions of Labor, Invalids and Social Affairs and the provincial Departments of Labor, Invalids and Social Affairs.

2. Publishing on electronic information pages of the district People’s Committees and of the provincial Departments of Labor, Invalids and Social Affairs.

3. Notifying on means of mass media at localities.

Article 7. To receive requirements on solving labor disputes and to assign labor conciliators for participating in solving labor disputes

1. The district Division of Labor, Invalids and Social Affairs shall receive requests for reconciling labor disputes, disputes on vocational training contract.

2. The party requesting for reconciliation is entitled to select labor conciliators in order to propose the district Division of Labor, Invalids and Social Affairs for nominating the labor conciliators to participate in solving labor disputes.

3. Within 01 working day after receiving request for solving labor disputes, the district Division of Labor, Invalids and Social Affairs shall report to the President of the district-level People’s Committee to decide on nominating the labor conciliators participating in solving labor disputes.

4. Within 01 working day after receiving report of the district Division of Labor, Invalids and Social Affairs, the President of the district-level People’s Committee shall decide on nominating the labor conciliators participating in solving labor disputes.

Decision on nominating labor conciliators participating in solving labor disputes is made according to the form No. 04/HGV promulgated together with this Circular.

5. Within 01 working day, after receiving decision on nominating to participate in solving labor disputes, labor conciliators must notify the disputing parties about programs, time, and location for organizing the reconciliation session at least one working day before implementing.

6. In necessary case, the district Division of Labor, Invalids and Social Affairs shall report to the President of the district-level People’s Committee to request the President of other district-level People’s Committee in province for nominating the labor conciliators supporting for solving labor disputes.

The district-level People’s Committee where requested for supporting labor conciliators shall ensure operational conditions of labor conciliators as prescribed in Article 7 of the Decree No. 46/2013/ND-CP.

Article 8. Assessing the result of implementation, the extent of finishing task of labor conciliators

1. Annually, the district Divisions of Labor, Invalids and Social Affairs shall assess the extent of finishing task of labor conciliators with the following contents: Number of cases in which the labor conciliator is nominated for participating in reconciliation, number of cases in which the labor conciliator has participated in reconciliation, number of the successfull reconciled cases, the compliance of decision of the President of the district-level People’s Committee regarding nominating to participate in solving labor disputes.

2. Labor conciliators are considered as finishing task when meeting the following provisions:

- To comply with provisions of law on solving labor disputes;

- To comply with decision of the President of the district-level People’s Committee on nominating to participate in solving labor disputes;

- Number of successful reconciled cases is over 50% in comparison with number of cases in which labor conciliator participated in reconciliation.

Article 9. Dismissal of labor conciliators

1. Labor conciliators are dismissed when fall in one of the following cases:

a. Having application for stopping participation in labor conciliator made according to the form No. 05/HGV promulgated together with this Circular.

b. Having 2 continuous years of being assessed as failing to finish tasks as prescribed in Article 8 of this Circular.

c. Conducting acts violating law, misusing their prestige, competence and duty to cause damages to benefits of parties or benefits of State in the course of reconciliation under one of the following cases:

- One of provisions in Article 3 of the anti-corruption Law;

- Labor conciliators are not impartial or objective while implementing reconciliation.

The President of the district-level People’s Committee shall preside over meeting to consider the extent of law violation of labor conciliators with the presence of such labor conciliators, representative of the district-level Division of Labor, Invalids and Social Affairs and parties related to violations of the labor conciliators. The record of meeting must have signature of labor conciliators and representatives of participants.

d. Failing to implement reconciliation tasks under decision on nominating labor conciliators of the President of the district-level People’s Committee in the set time limit for twice or more without legitimate reason.

2. Written request of the President of the district-level People’s Committee for dismissal of labor conciliators shall be sent to the President of the provincial People’s Committee enclosed with application for stopping participation in labor conciliators (for case specified in point a clause 1 of this Article) or report on failing to finish the reconciliation tasks of the district-level Division of Labor, Invalids and Social Affairs (for case specified in point b clause 1 of this Article) or the record of meeting on considering the extent of law violation of labor conciliators (for case specified in point c clause 1 of this Article).

3. Decision on dismissal of labor conciliators of the President of the provincial People’s Committee is made according to the form No. 06/HGV promulgated together with this Circular.

Article 10. Assurance for operational conditions of labor conciliators

Annually, the district-level Division of Labor, Invalids and Social Affairs shall:

1. Make budget estimates, implement payment and make finalization of operational funding of labor conciliators as prescribed in Article 7 of the Decree No. 46/2013/ND-CP and law on the State budget.

2. Ensure the necessary conditions such as meeting room, documents, stationery for labor conciliators to implement the dispute reconciliations.

Article 11. The reporting regime

1. Labor conciliators shall report the reconciliation result of each case enclosed with the record of reconciliation cases to the district-level Division of Labor, Invalids and Social Affairs.

2. The district-level Division of Labor, Invalids and Social Affairs shall manage, store dossiers, record of solving labor disputes of conciliators, biannually and irregularly at the request on reconciliation activities in localities, it shall report to the President of the district-level People’s Committee and the Department of Labor, Invalids and Social Affairs.

3. Biannually and irregularly at the request on reconciliation activities in localities, the Department of Labor, Invalids and Social Affairs shall report result of the appointment, dismissal, activities of reconciling labor dispute to the President of the provincial People’s Committee and the Ministry of Labor, Invalids and Social Affairs.

Article 12. Effect

1. This Circular takes effect on August 01, 2013.

2. The Circular No. 22/2007/TT-BLDTBXH dated October 23, 2007 of the Ministry of Labor, Invalids and Social Affairs providing guidelines on organization and operation of labor conciliation councils of enterprises, and on labour conciliators and previous regulations which are contrary to this Circular shall cease to be effective on the effective date of this Circular.

3. In the course of implementation, any arising problems should be reported to the Ministry of Labor, Invalids and Social Affairs for timely guideline and supplementation.

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