Thông tư 09/2020/TT-BLĐTBXH hướng dẫn Bộ luật Lao động về lao động chưa thành niên

CIRCULAR

ELABORATING SOME ARTICLES OF THE LABOR CODE ON MINOR WORKERS

Pursuant to the Labor Code dated November 20, 2019;

Pursuant to the Government’s Decree No. 14/2017/ND-CP dated February 17, 2017 on functions, duties, powers and organizational structure of the Ministry of Labor - War Invalids and Social Affairs;

At the request of Director Generals of Department of Work Safety and Department of Child Affairs;

The Minister of Labor - War Invalids and Social Affairs hereby promulgates a Circular elaborating some Articles of the Labor Code on minor workers.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Circular elaborates the following Articles and Clauses of the Labor Code on minor workers:

1. Employment of persons under 15 years of age according to Clause 4 Article 145.

2. List of light works where persons from 13 to under 15 years of age may be employed according to Clause 3 Article 143.

3. List of jobs and works where persons from 15 to under 18 years of age may be employed for overtime or night work according to Clause 2 Article 146.

4. Lists of works and workplaces causing harm to physical, intelligence and personality development of minors according to Clause 3 Article 147.

Article 2. Regulated entities

1. Employers.

2. Minor workers.

3. Other regulatory bodies, organizations and individuals involved in implementation of regulations of this Circular.

Chapter II

EMPLOYMENT OF PERSONS UNDER 15 YEARS OF AGE

Article 3. Conditions for employment of persons under 15 years of age

Employers must employ persons under 15 years of age in accordance with Article 145 of the Labor Code and the following specific regulations:

1. Conclude a written contract with the employee and their legal representative according to regulations in Article 4 herein.

2. Arrange the working hours according to regulations in Clause 1 Article 146 of the Labor Code and so as not to affect the employee’s study hours.

3. Arrange breaks according to regulations in Clause 2 Article 109 of the Labor Code.

4. Comply with regulations on health checkups and occupational health checkups and ensure working and occupational safety and hygiene conditions according to Points c and d Clause 1 Article 145 and Law on Occupational Safety and Hygiene.

5. Persons from 13 to under 15 years of age may be employed only for light works meeting the following conditions:

a) The work is included in the list mentioned in Article 8 of this Circular;

b) The workplace is not any of the cases mentioned in Points a, b, c and d Clause 2 Article 147 of the Labor Code and Clause 2 Article 9 of this Circular.

6. Do not recruit and employ persons under 13 years of age, excluding arts and sports, which must not affect their physical, intelligence and personality development and require approval from Departments of Labor - War Invalids and Social Affairs according to regulations in Article 5 of this Circular.

Article 4. Conclusion of labor contracts with persons under 15 years of age

1. The person who concludes the labor contract on the employer’s side shall abide by regulations in Clause 3 Article 18 of the Labor Code and meet the following requirements:

a) They have a police record issued no sooner than 06 months before the date on which the labor contract is concluded, which includes no conviction for child exploitation and abuse;

b) They have a statement of no criminal prosecution and administrative penalty for child exploitation and abuse, which is made using Form No. 02 in Appendix I enclosed therewith.

2. Labor contracts with persons under 15 years of age must contain the contents mentioned in Article 21 of the Labor Code and the following contents:

a) Full name; date of birth; sex; place of residence; phone number (if any); and identity card or passport number of the legal representative of the employee;

b) Lodging (for employees working away from their family);

c) How the employee's study is facilitated.

3. Labor contracts with persons under 13 years of age shall come into force with the written approval from Departments of Labor - War Invalids and Social Affairs according to regulations in Article 5 of this Circular.

Article 5. Competence in approving employment of persons under 13 years of age

Recruitment and employment of persons under 13 years of age in compliance with regulations in Clause 3 Article 145 of the Labor Code require approval from the following regulatory bodies:

1. Department of Labor - War Invalids and Social Affairs of the province where the head office or the address written in the enterprise/ cooperative/ cooperative union registration certificate or investment registration certificate or written approval for investment guidelines or decision on regulatory body or organization establishment or cooperation agreement of cooperative group is located if the employer is an enterprise, regulatory body, organization or cooperative.

2. Department of Labor - War Invalids and Social Affairs of the province where the permanent or temporary residence of the household or individual is registered if the employer is a household or individual.

Article 6. Applications for employment of persons under 13 years of age

An application for employment of a person under 13 years of age includes:

1. An application for employment of person under 13 years of age, which is made using Form No. 01 in Appendix I enclosed therewith.

2. Copy of the enterprise/ cooperative/ cooperative union registration certificate or investment registration certificate or written approval for investment guidelines or decision on regulatory body or organization establishment or cooperation agreement of cooperative group (if the employer is an enterprise, regulatory body, organization or cooperative) or copy of family registry or record of temporary residence (if the employer is a household or individual).

3. Copy of police record of the person who concludes the labor contract on the employer’s side according to regulations in Point a Clause 1 Article 4 of this Circular.

4. Statement of no criminal prosecution and administrative penalty for child exploitation and abuse according to regulations in Point b Clause 1 Article 4 of this Circular.

5. Labor contract or draft labor contract between the employer and the person under 13 years of age and their legal representative. The draft labor contract shall come with a written agreement from the legal representative of the person under 13 years of age, which is made using Form No. 03 in Appendix I enclosed therewith.

6. Copy of birth certificate and health certificate of the person under 13 years of age. Study timetable or curriculum of the educational institution where the person under 13 years of age is studying if they are a student.

Article 7. Procedure for application for employment of persons under 13 years of age

1. The employer shall submit one application for employment for each person under 13 years of age whom they wish to employ, which is prepared according to regulations in Article 6 of this Circular, to the Department of Labor - War Invalids and Social Affairs mentioned in Article 5 of this Circular directly or by post or online.

2. The Department of Labor - War Invalids and Social Affairs will receive the application when it contains all components required according to regulations in Article 6 of this Circular.

3. Within 10 working days starting from the date of receipt of an adequate application according to regulations in Clause 2 herein, the Department of Labor - War Invalids and Social Affairs shall cooperate with relevant regulatory bodies and organizations in verifying information (if needed), appraising the application and notifying the employer of the approval for the employment using Form No. 04 in Appendix I enclosed therewith.

If the application is rejected, the Department of Labor - War Invalids and Social Affairs shall explain the reason to the employer in writing.

Chapter III

LISTS OF JOBS, WORKS AND WORKPLACES APPLICABLE TO MINOR WORKERS

Article 8. List of light works where persons from 13 to under 15 years of age may be employed

Promulgated together with this Circular is Appendix II - List of light works where persons from 13 to under 15 years of age may be employed.

Article 9. Lists of works and workplaces causing harm to physical, intelligence and personality development of minors

1. Promulgated together with this Circular is Appendix III - List of works causing harm to physical, intelligence and personality development of minors according to regulations in Point h Clause 1 Article 147 of the Labor Code.

2. Promulgated together with this Circular is Appendix IV - List of workplaces causing harm to physical, intelligence and personality development of minors according to regulations in Point dd Clause 2 Article 147 of the Labor Code.

Article 10. List of jobs and works where persons from 15 to under 18 years of age may be employed for overtime or night work

Promulgated together with this Circular is Appendix V - List of jobs and works where persons from 15 to under 18 years of age may be employed for overtime or night work.

Chapter IV

IMPLEMENTATION

Article 11. Responsibilities of Departments of Labor - War Invalids and Social Affairs

1. Take charge and cooperate with health, culture, sports, tourism and education authorities affiliated to People’s Committees of provinces and central-affiliated cities and relevant regulatory bodies and organizations in regularly expediting and supervising the implementation of this Circular.

2. Provide guidelines for and inspect employment of minor workers in their provinces.

3. Provide training in and improve capacity for management and inspection of employment of minor workers.

4. Apply information technology to management of employment of minor workers.

5. Before December 25 of every year, submit a report on approval for employment of persons under 13 years of age in their provinces to the Ministry of Labor - War Invalids and Social Affairs using Form No. 05 in Appendix I enclosed therewith.

Article 12. Responsibilities of employers

1. Prepare a minor worker employment record book using Form No. 06 in Appendix I enclosed therewith and regularly update this book.

2. Respect and obtain opinions of minors on matters concerning their rights and interests.

3. Regularly inspect and supervise to ensure safety of minors in workplaces.

4. In case a minor's health condition is no longer suitable for work, notify the minor. If they are under 15 years old, their legal representative shall also be notified.

5. Fully comply with existing regulations of laws on child protection.

Chapter V

IMPLEMENTATION CLAUSE

Article 13. Effect

1. This Circular comes into force from March 15, 2021.

2. The following Circulars are annulled from the entry into force of this Circular:

a) Circular No. 10/2013/TT-BLDTBXH dated June 10, 2013 by the Minister of Labor - War Invalids and Social Affairs promulgating the lists of jobs and workplaces in which the employment of minor persons is prohibited;

b) Circular No. 11/2013/TT-BLDTBXH dated June 11, 2013 by the Minister of Labor - War Invalids and Social Affairs promulgating list of light works allowed using persons under 15 years old to work./.

APPENDIX II

LIST OF LIGHT WORK ALLOWED FOR PERSONS FROM 13 TO UNDER 15 YEARS OF AGE
(Enclosed with Circular No. 09/2020/TT-BLDTBXH dated November 12, 2020 by Minister of Labor - War Invalids and Social Affairs)

1. Art performers.

2. Athletes.

3. Software programming.

4. Traditional crafts: pottery dot painting; mussel shell sawing; bamboo paper making; leaf hat making; hat dot painting; sleeping mat weaving; drum making; brocade weaving; brocade embroidering; rice noodle making; vermicelli making; bean sprout making; rice paper making; silk weaving; lotus silk winding; lacquer painting, incense making, votive paper making (excluding stages where toxic chemicals such as paint made from wax tree, bleach, colorants, fragrance additives, etc. are used).

5. Handicrafts: lace weaving; decorative woodworking; horn comb making; folk painting (Dong Ho painting, Hang Trong painting, etc.); making toy figurines from rice powder; woodcut painting, attaching additional layers to silk painting; collecting mollusk shells for paintings; painting polishing; bead bracelet making, handcrafted jewelry polishing; puppet making; greeting card making, making paper decorations for greeting cards; making painting frames, paper models, paper boxes and paper bags.

6. Weaving and making household articles and handmade articles using natural ingredients such as plants of the Calameae tribe, bamboo, coconut tree, banana plant, common water hyacinth, jute, sedge, forked ferns, etc.

7. Cured pork wrapping, candy wrapping and cake wrapping (excluding use of wrapping equipment).

8. Silkworm raising.

9. Removing weeds from vegetable gardens; collecting seasonal vegetables and fruit.

10. Herding livestock in farms.

11. Assisting with untangling fishnets, weaving fishnets and drying aquatic products.

12. Cutting threads, sewing buttons, sewing button holes and packing hand-woven products into boxes.

APPENDIX III

LIST OF WORK CAUSING HARM TO PHYSICAL, INTELLIGENT AND PERSONALITY DEVELOPMENT OF MINORS ACCORDING TO REGULATIONS IN POINT H CLAUSE 1 ARTICLE 147 OF THE LABOR CODE
(Enclosed with Circular No. 09/2020/TT-BLDTBXH dated November 12, 2020 by Minister of Labor - War Invalids and Social Affairs)

1. Directly producing non-ferrous metals (copper, lead, tin, mercury, zinc, silver) from ores.

2. Coking.

3. Burning coal for steam engines.

4. Operating steam boilers heated by combustion of fuels (fossil coal, bagasse, wood, sawdust, rice husk) and liquid fuels with working pressure of 4,0 bar or higher and power of more than 0,5 T/h).

5. Operating systems for production and filling of acetylene, oxygen, hydrogen, chlorine and liquid gases, and compressed air stations with pressure of 8,0 bar.

6. Operating cold systems (ice making, freezing).

7. Assembling molds of smithing machines, metal pressing machines and metal cutting machines (including steam, compressed air, electrically and mechanically powered machines).

8. Collecting waste from industrial alcohol production.

9. Operating textile sizing machines.

10. Textile dyeing and steaming.

11. Taking charge of, keeping and assisting in dyeing chemical warehouses.

12. Manually breaking rocks, collecting rocks and breaking rocks at risk of falling on mountains.

13. Directly adding ingredients into rockbreakers and working with rockbreakers.

14. Lead ore dressing.

15. Using portable compressed air machines at 4 atm or higher (such as drilling machines, hammering machines and similar machines that cause irregular impact to the human body).

16. Sifting and processing gold, ores and ruby.

17. Directly and manually digging up tree roots with a diameter of more than 40cm.

18. Using manual two-person wood saws.

19. Cutting trees with a diameter of 35cm or more, cutting branches and cutting high branches manually.

20. Transporting large pieces of wood and moving pieces of wood with a diameter of 35 cm or more manually or using wooden levers or wooden ramps.

21. Collecting sunken wood, and dragging wood from navigational locks and slipways to land.

22. Navigating rafts on rivers with multiple falls.

23. Driving agricultural tractors.

24. Collecting bat droppings; collecting natural edible bird's nests on islands.

25. Cutting wood using electric circular saws and electric band saws.

26. Operating wood planing machines (excluding portable machines).

27. Directly raising and training dangerous animals or venomous animals.

28. Participating in primary processing of bamboo, plants of the Calameae tribe and sedge using toxic chemicals.

29. Manually preparing limewater and burning firebrick furnaces and lime kilns.

30. Taking on single-person work on railways or at locations where the worker cannot see further than 400m.

31. Moving, connecting or separating train carriages in factories and on railways.

32. Operating motorized transport vehicles with cylinder volume of 50 cm³ or more.

33. Hanging pendants of bridge cranes, cranes and gantry cranes or electric pendants.

34. Surveying rivers.

35. Working on seafaring watercrafts, unless the worker is 16 years of age or older.

36. Building oil platforms.

37. Working on oil platforms.

38. Looking after watercrafts in navigational locks or by slipways.

39. Drilling for oil and gas exploration.

40. Drilling for exploration, drilling - blasting, blasting.

41. Pressing large and hard leather pieces.

42. Coating paraffin inside alcohol containers.

43. Vulcanizing, producing and collecting large rubber products such as containers and tires.

44. Working with gasoline or oil in caves and pits: delivering, storing and operating gasoline or oil pumps and meters.

45. Burning glass furnaces and blowing glass by mouth.

46. Lighting oil burners that consume 400 l/h or more.

47. Building and repairing watercrafts that require carrying or holding objects weighing 20kg or more in place.

48. Operating waste incinerators and wastewater treatment equipment.

49. Cooking and bleaching paper pulp using chlorine.

50. Installing and repairing power lines in underground sewers or on outdoor poles or high voltage power lines, and installing high voltage power poles.

51. Installing and repairing underground cables and overhead cables of information transmission lines.

52. Operating and manning low voltage, medium voltage and high voltage electrical substations.

53. Checking, repairing and processing direct current circuits with voltage of 700 V and alternating current circuits with voltage of more than 220V and components thereof.

54. Work in radio frequency broadcasting stations such as radio stations, television stations, radar stations, satellite ground stations, etc. affected by electromagnetic field beyond permitted levels.

55. Repairing enclosed towers, containers, burners and pipes in chemical production.

56. Work having contact with organic solvents such as soaking sleepers, applying emulsion onto photograph papers, printing patterns on thin films, printing labels on thin smooth papers, pressing phenolic plastics and operating phenolic resin condensation vessels.

57. Having direct contact with chemicals causing genetic modification:

57.1. Chemical: 5-fluorouracil;

57.2. Chemical: benzene.

58. Having direct contact with chemicals and compounds having long-term effects on reproduction (such as testicular dysfunction and ovarian dysfunction):

58.1. Estrogen;

58.2. Alitretinoin;

58.3. Cacbaryl;

58.4. Dibromochloropropane (DBCP);

58.5. Toluenediamine and dinitrotoluene;

58.6. Polychlorinated biphenyls (PCBs);

58.7. Polybrominated biphenyl (PBBs).

59. Having direct contact (including producing, packaging, preparing and spraying chemicals and disinfecting warehouses) with pesticides, weed control chemicals, termite control chemicals, rodenticides and mosquito control chemicals containing organochlorine and the following carcinogens:

59.1. Chemicals: 1,4 butanediol and dimetansulfonat;

59.2. Chemical: 4-aminobiphenyl;

59.3. Amosite, chrysotile and crocidolite;

59.4. Arsenic and calcium arsenate;

59.5. Dioxins;

59.6. Dichloromethyl-ether;

59.7. Insoluble chromate salts;

59.8. Coal tar and coal tar fumes;

59.9. Cyclophosphamide;

59.10. Diethylstilbestrol;

59.11. Chemical: 2-naphthylamine;

59.12.  Chemicals: N, N - di (chloroethyl). 2. Naphthylamine;

59.13. Thorium dioxide;

59.14. Thiosulfate;

59.15. Vinyl chloride;

59.16. Chemical: 4-amino-10-methyl folic acid;

59.17. Mercury, methylmercury and methylmercury chloride;

59.18. Nitrogen pentoxide;

59.19. Chemical: 2,3,7,8-Tetrachlorodibenzofuran;

59.20. Chemical: 2- alphaphenyl-beta axetyletyl;

59.21. Acetylsalicylic acid;

59.22. Asparagine;

59.23. Benomyl;

59.24. Boric acid;

59.25. Caffeine;

59.26. Dimethyl sulfoxide;

59.27. Direct blue-1;

59.28. Formamide;

59.29. Hydrocortisone and hydrocortisone acetate;

59.30. Iodine (metal);

59.31. Lead, lead acetate and lead nitrate (having contact with butyl acetate solvent or printing ink containing lead, producing rechargeable batteries, lead welding);

59.32. Mercapto and purine;

59.33. Potassium bromide and potassium iodide;

59.34. Propylthiouracil;

59.35. Ribavirin;

59.36. Sodium arsenate, sodium arsenide, sodium iodide and sodium salicylate;

59.37. Tetramethylthiuram disulfide;

59.38. Triamcinolone acetonide;

59.39. Triton WR-1339;

59.40. Trypan blue;

59.41. Valproic acid;

59.42. Vincristine sulfate;

59.43. Vinazol aerosol.

60. Having regular contact with the following chemicals:

60.1. Carbon monoxide (CO) in operation of coal gas generators and slag discharge systems;

60.2. Aniline, xylazine, toluidine and auramine dyes;

60.3. Cyanide compounds;

60.4. Phosphorus and P₂O₅, P₂S₅, PCl₃ and H₃P compounds;

60.5. Trinitrotoluene (TNT);

60.6. Manganese dioxide (MnO₂);

60.7. Phosgene (COCl₂);

60.8. Carbon disulfide (CS₂);

60.9. Nitric oxide and nitric acid;

60.10. Sulfuric anhydride and sulfuric acid;

60.11. CaC₂ in operation of open carbide lamps and slag discharge systems.

61. Working in caissons.

62. Dredging underground sewers and work requiring the worker to stay in dirty water regularly.

63. Yellow phosphorus production.

64. Dissecting corpses, preparing the deceased for burial, burying the deceased, relocating graves and working in mortuaries.

65. Collecting or sorting wastes or scraps.

66. Work where the worker has daily contact with anesthetic gases, working in intensive care units and infection control departments of healthcare facilities, blood transfusion centers, vaccine manufacturing facilities, containing outbreaks and working in ultrasound and short-wave therapy units.

67. Assembling, dismantling or adjusting scaffolding.

68. Carrying objects beyond carrying capacity of the minor worker. To be specific:

69. Sorting and recycling products containing graphite.

APPENDIX IV

LIST OF WORKPLACES CAUSING HARM TO PHYSICAL, INTELLIGENT AND PERSONALITY DEVELOPMENT OF MINORS ACCORDING TO REGULATIONS IN POINT DD CLAUSE 2 ARTICLE 147 OF THE LABOR CODE
(Enclosed with Circular No. 09/2020/TT-BLDTBXH dated November 12, 2020 by Minister of Labor - War Invalids and Social Affairs)

1. Having contact with dangerous factors and harmful factors in work environments beyond permitted limits according to national technical regulations and standards for occupational safety and hygiene, including electromagnetic field, vibration, noise, temperature, silica dust, dust without silica, cotton dust, asbestos dust, coal dust, talc dust; radioactive substances and rays; X-ray, toxic substances and other harmful rays.

2. Having contact with pathogens.

3. Working for more than 04 hours/day in confined or narrow spaces or in kneeling, lying or bending position.

4. Working on a scaffold or rope more than 2 m above the working surface; working on mountainous, hilly or sloped land with a slope of more than 30⁰.

5. Working in holes deeper than 5 m.

6. Working in prisons or psychiatric hospitals.

APPENDIX V

LIST OF OVERTIME WORK AND NIGHT WORK ALLOWED FOR PERSONS FROM 15 TO UNDER 18 YEARS OF AGE
(Enclosed with Circular No. 09/2020/TT-BLĐTBXH dated November 12, 2020 by Minister of Labor - War Invalids and Social Affairs)

I. List of overtime work allowed for persons from 15 to under 18 years of age

1. Art performers.

2. Athletes.

3. Writing literature and writing newspaper articles.

4. Software programming.

5. Traditional crafts: pottery dot painting; bamboo paper making; leaf hat making; incense making; hat dot painting; sleeping mat weaving; drum making; brocade weaving; brocade embroidering; rice noodle making; vermicelli making; bean sprout making; rice paper making; silk weaving; lotus silk winding.

6. Handicrafts: lace weaving; decorative woodworking; horn comb making; folk painting (Dong Ho painting, Hang Trong painting, etc.); making toy figurines from rice powder; woodcut painting, attaching additional layers to silk painting; collecting mollusk shells for paintings; bead bracelet making; puppet making; greeting card making, making paper decorations for greeting cards; making painting frames, paper models, paper boxes and paper bags.

7. Weaving and making household articles and handmade articles using natural ingredients such as plants of the Calameae tribe, bamboo, coconut tree, banana plant, common water hyacinth, jute, sedge, forked ferns, etc.

8. Cured pork wrapping, candy wrapping and cake wrapping (excluding use of wrapping equipment).

9. Cutting threads, sewing buttons, sewing button holes and packing hand-woven products into boxes.

10. Delivering news, mails and packages; wrapping packages.

11. Door to door sales; telesales; online sales.

12. Polishing shoes; preparing and selling street food.

13. Tutoring; working as helpers in families; helping with house cleaning.

14. Working as security guards for offices, enterprises and restaurants.

15. Collecting money from vending machines, recording data from meters; working as cashiers and sellers in supermarkets.

16. Working in restaurants and coffee shops; working as receptionists, preparing beverages, waiting tables, helping in kitchens, working as chefs and housekeeping staff.

17. Office work such as photocopying, typewriting and telephone operating.

18. Selling clothes, shoes, books, newspapers and groceries.

19. Processing agricultural products by sorting, peeling, deshelling and packaging.

20. Removing weeds from vegetable gardens; collecting seasonal vegetables and fruit.

21. Raising harmless insects, crickets, worms, poultry and livestock.

II. List of night work allowed for persons from 15 to under 18 years of age

1. Art performers.

2. Athletes./.

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