Thông tư 38/2016/TT-BLĐTBXH hướng dẫn thực hiện quản lý lao động, tiền lương, thù lao đối với Quỹ Phát triển doanh nghiệp nhỏ và vừa do Bộ trưởng Bộ Lao động - Thương binh và Xã hội

CIRCULAR

ON GUIDELINES FOR MANAGEMENT OF EMPLOYEES, WAGES, REMUNERATION RELATING TO MEDIUM AND SMALL ENTERPRISE DEVELOPMENT FUND

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, War Invalids and Social Affairs;

Pursuant to the Government's Decree No. 51/2016/ND-CP dated June 13, 2016 on management of employees, wages, bonuses of employees in single-member limited liability companies of which charter capital is wholly owned by the State;

Pursuant to the Government's Decree No. 52/2016/ND-CP dated June 13, 2016 on management of employees, wages, bonuses of managers in single-member limited liability companies of which charter capital is wholly owned by the State;

At the request of Director of Labor and Wage Department;

Implementing document No. 1111/VPCP-KTTH dated February 22, 2016 of Office of the Government on initiating operation of Small and Medium Enterprise Development Fund.

Section 1. GENERAL PROVISIONS

Article 1. Scope

This Circular provides guidelines for management of employees, planned wage and remuneration fund, realized and remuneration fund for employees, Chairperson of Management Council, members of Management Council, Director, Deputy Director, Chief Accountant, Head of Control Board, members of Control Board of Small and Medium Enterprise Development Fund (hereinafter referred to as Fund).

Article 2. Regulated entities

1. Employees working under labor contracts as prescribed in the Labor Code.

2. Head of Control Board, members of Control Board.

3. Director, Deputy Director, Chief Accountant, excluding Director, Deputy Director, Chief Accountant working under labor contracts (hereinafter referred to as managers).

4. Chairperson of Management Council, members of Management Council.

5. Other agencies, organizations, and individuals in respect of implementation of this Circular.

Section 2. MANAGEMENT OF EMPLOYEES AND WAGES OF HEAD OF CONTROL BOARD, MEMBERS OF CONTROL BOARD AND EMPLOYEES

Article 3. Management of employees

The Fund shall implement management of employees as prescribed in Article 3 of the Government's Decree No. 51/2016/ND-CP dated June 13, 2016 on management of employees, wages, bonuses of employees in single-member limited liability companies of which charter capital is wholly owned by the State (hereinafter referred to as Decree No. 51/2016/ND-CP), Article 3, Article 4, Article 5, Article 6, Article 7 and Article 8 of Circular No. 26/2016/TT-BLDTBXH on guidelines for management of employees, wages, bonuses of employees in single-member limited liability companies of which charter capital is wholly owned by the State (hereinafter referred to as Circular No. 26/2016/TT-BLDTBXH).

Article 4. Pay scale, payroll, allowances and pay grading

The Fund shall formulate pay scale, payroll and conduct pay grading for employees, Head of Control Board, members of Control Board as prescribed in Article 93 of the Labor Code, the Government's Decree No. 49/2013/ND-CP dated May 14, 2013 on guidelines for the Labor Code in terms of wages and Circular No. 17/2015/TT-BLDTBXH dated April 22, 2015 of the Ministry of Labor, War Invalids and Social Affairs on guidelines for formulating pay scale, payroll, allowances, and pay grading of employees in single-member limited liability companies of which charter capital is wholly owned by the State in accordance with Decree No. 49/2013/ND-CP dated May 14, 2013 on guidelines for the Labor Code in terms of wages.

Article 5. Pay grading and pay amounts for Head of Control Board and members of Control Board

1. Head of Control Board and members of Control Board have their pay graded according to pay scale, payroll formulated and decided by the Fund as prescribed in Article 4 of this Circular.

2. Head of Control Board and members of Control Board shall receive pay amounts from wage fund of employees as prescribed in Article 6 of this Circular.

Article 6. Planned wage fund, wage fund advances, realized fund, wage distribution

1. The Fund shall determine planned average wage amount, planned wage fund, wage advances, wage unit, realized wage fund, wage distribution of employees as prescribed in Article 5, Article 6, Article 7 Decree No. 51/2016/ND-CP, Article 9, Article 10, Article 13, Article 14, and Article 15 of Circular No. 26/2016/TT-BLDTBXH.

2. When determining planned average wage amount or operating average wage amount to identify planned wage fund or realized fund as prescribed in Article 9 and Article 14 of Circular No. 26/2016/TT-BLDTBXH, the indicator of profit (planned profit, operating profit in the year or the preceding year) shall be replaced with the indicator of difference between total revenue and total cost in the year.

The indicator of total revenue and total cost in the year shall be determined as prescribed by law on financial management of the Fund.

Article 7. Exclusion of objective factors when determining average wage amount of employees

1. When determining average wage amount of employees as prescribed in Article 6 of this Circular, the Fund shall exclude the following objective factors affecting labor productivity and difference between total revenue and total cost in the year, including:

a) Objective factors prescribed in Clause 1 Article 11 of Circular No. 26/2016/TT-BLDTBXH;

b) The State’s policies have amended resulting in an increase or a decrease in amount receivable or costs incurred in the year of the Fund;

2. The exclusion of objective factors prescribed in Clause 1 of this Article shall be conducted as follows:

a) Labor productivity, difference between total revenue and total cost in the year affected by objective factors shall be quantified and calculated in specific figures.

b) If the objective factors cause a decrease (or increase) in labor productivity, difference between total revenue and total cost in the year, such decrease (increase) shall be added to the indicator of labor productivity, difference between total revenue and total cost in such year.

c) The Fund shall re-evaluate the objective factors affecting the labor productivity and difference between total revenue and total cost in the realized year compared to the plan for the exclusion purpose when determining annual realized fund of employees.

Section 3. MANAGEMENT OF WAGES FOR MANAGERS, REMUNERATION FOR CHAIRPERSON OF MANAGEMENT COUNCIL, MEMBER OF MANAGEMENT COUNCIL

Article 8. Wage grading for managers

Managers shall have their pay graded, pay ranges increased when the class of their companies change as prescribed in Article 3 of the Government's Decree No. 52/2016/ND-CP dated June 13, 2016 on management of employees, wages, bonuses of managers in single-member limited liability companies of which charter capital is wholly owned by the State and Section 2 of Circular No. 26/2016/TT-BLDTBXH of the Ministry of Labor, War Invalids and Social Affairs on guidelines for policies for wages, bonuses of employees in single-member limited liability companies of which charter capital is wholly owned by the State (hereinafter referred to as Decree No. 52/2016/ND-CP, Circular No. 27/2016/TT-BLDTBXH).

Article 9. Determination of wage fund, wage payment to managers

1. The determination of planned wage fund; realized wage fund; wage payment to managers shall be consistent with Clauses 1, 2, 3, 4, 5 Article 3, Article 9, Clauses 1, 3, 4, 5, 6, Article 10, Clause 1, Clause 2 Article 11, Article 14, Article 15, and Article 18 of Circular No. 27/2016/TT-BLDTBXH.

2. When determining planned wage and remuneration fund, realized wage and remuneration fund prescribed in Clause 1 of this Article, the profit indicator shall be replaced with indicator of difference between total revenues and total cost in the year as guided in Clause 2 Article 6 of this Circular, in which:

If the Fund meets all the following conditions: state capital is preserved and developed; payments to budget are made and loan loss reserve fund is built up as prescribed; average labor productivity remains unchanged and the difference between total revenue and total cost was higher than that of the previous year, the average wage of a manager is determined as follows:

TL_bqkh= TL_cb + TL_cb X H_ln

Where:

- TL_bqkh: Planned average wage of the manager.

- TL_cb: Minimum wage of the manager is determined in accordance with Clause 1 Article 10 of Circular No. 27/2016/TT-BLDTBXH.

- H_ln: Wage coefficient increase associated with the difference between total revenue and total cost in the year as follow: if the difference is less than 50 billions, H_ln shall be up to 0.3; if the difference is at least 50 billion but not exceeding 100 billion, H_ln shall be up to 0.5; if the difference is at least 1000 billion but not exceeding 150 billion, H_ln shall be up to 0.7; if the difference is at least 150 billions, H_ln shall be up to 1.0.

3. When determining planned wage fund and realized wage fund prescribed in Clause 1 and Clause 2 of this Article, the Fund shall exclude objective factors affecting labor productivity, difference between total revenue and total cost in the year as prescribed in Article 7 of this Circular.

Article 10. Remuneration for Chairperson of Management Council, members of Management Council

1. Chairperson of Management Council, members of Management Council shall be paid remuneration based on their work and working time; planned or realized remuneration amount of the Chairperson of Management Council shall not exceed 20% of that of Director; planned or realized remuneration amount of a member of Management Council shall not exceed 20% of that of Deputy Director;

2. Planned remuneration fund (or realized remuneration fund) shall be determined according to planned number of members of Management Council (or actual number of members of Management Council at certain points of time in the year), working time, planned pay rate (or realized pay rate) of Director, Deputy Director and remuneration rate determined by the Fund as prescribed in Clause 1 of this Article.

3. According to the planned remuneration fund, average pay rate of managers to be realized in the year (associated with performance of plan indicators in the year), the Fund shall advance sums from remuneration fund to the Chairperson and members of Management Council. Advance sum from remuneration fund shall be determined by the Fund providing not exceeding 80% of the planned remuneration fund in the year.

4. According to the realizable remuneration fund and advanced remuneration sum provided for the Chairperson and members of Management Council, the Fund shall determine the remaining remuneration sum; if the advance sum exceeds the realizable remuneration fund, the Chairperson and members of Management Council shall refund the amount in excess within such year.

Section 4. IMPLEMENTATION

Article 11. Responsibilities of Director

1. Create or review positions, jobs; pay scale, allowances according to positions and jobs, and grade pay upon change of pay grades as prescribed in Article 4 of this Circular.

2. Annually, review and formulate labor productivity standard, labor plan, evaluate employment; formulate and issue recruitment regulations, use and recruit employees as prescribed.

3. Every quarter I, determine planned wage fund, realized wage fund of the preceding year of employees, Head of Control Board, and members of Control Board, release figures using form No. 2 issued together with Circular No. 26/2016/TT-BLDTBXH, and send reports to Management Council for approval.

4. Formulate, issue, or amend regulations of wage payment to employees.

5. Make wage advances, formulate wage unit, wage reserve amounts, payment to employees in accordance with the regulations of the Fund.

6. Send periodical reports on employees and wages to the Management Council as prescribed in this Circular.

Article 12. Responsibilities of Management Council

1. Every quarter I, consider approving the business plan, labor productivity standard, labor plan, planned wage fund and realized wage fund of employees, Head of Control Board. members of Control Board of the preceding year as prescribed in this Circular, and send a report to the Ministry of Planning and Investment using form No. 2 issued together with Circular No. 26/2016/TT-BLDTBXH within 10 days from the date of approval for inspection.

2. Every quarter I, receive planned wage fund and realized wage fund of employees of managers of the preceding year, planned wage fund and realized wage fund of Chairperson of Management Council, members of Management Council of the preceding year, and send a report to the Ministry of Planning and Investment for approval using form No. 1 issued together with Circular No. 26/2016/TT-BLDTBXH.

3. Decide the pay grading, pay range increase for managers under appointment authority of the Management Council; request the Ministry of Planning and Investment to decide the pay grading, pay range increase for managers under appointment authority of the Ministry of Planning and Investment.

4. Direct the Director to strengthen organizational apparatus, personnel in charge of labor and wages to implement regulations on management of labor and wages as prescribed in this Circular.

5. Formulate and approve regulations on payment of wage and remuneration to managers, Chairperson of Management Council, members of Management Council, and send reports to the Ministry of Planning and Investment before their application; pay wages and remuneration to mangers, Chairperson of Management Council, members of Management Council in accordance with the approved regulations on payment of wage and remuneration.

6. Every quarter II, send a consolidated report on wages, remuneration, and monthly average income of the previous year of managers, Chairperson of Management Council, members of Management Council to the Ministry of Planning and Investment enclosed with figures using form No. 2 issued together with Circular No. 27/2016/TT-BLDTBXH.

Article 13. Responsibilities of the Ministry of Planning and Investment

1. Receive and offer opinions about pay scale, payroll, allowances, plans for pay grading of the Fund.

2. Provide guidelines for regulations on labor and wages for employees and wages and remuneration for managers, Chairperson of Management Council, members of Management Council as prescribed in this Circular.

3. Every quarter I, receive, oversee, inspect the report of Management Council on labor productivity standard, labor plan, planned wage fund and realized wage fund of preceding year and offer opinions about objective factors affecting labor productivity standard, difference between total revenue and total cost in the year (if any); receive and approve planned wage fund and realized wage fund for managers, Chairperson of Management Council, members of Management Council as prescribed in this Circular.

4. Decide the pay grading for mangers under appointment authority.

5. Receive, review and offer opinions about regulation payment of wages and remuneration to employees, mangers, Chairperson of Management Council, members of Management Council.

6. Inspect, oversee the formulation of pay scale, payroll, allowances, and pay grading; implementation of labor and wage policies as prescribed in this Circular.

Article 14. Responsibilities of the Ministry of Finance

Cooperate with the Ministry of Planning and Investment in inspecting and overseeing the implementation of labor using plan, planned wage fund, realized wage fund, regulations on wage payment of the Fund as prescribed in this Circular.

Article 15. Responsibilities of the Ministry of Labor, War Invalids and Social Affairs

Cooperate with the Ministry of Planning and Investment in inspecting and overseeing the implementation of labor using plan, planned wage fund, realized wage fund, regulations on wage payment; inspecting the implementation of labor and wage policies of the Fund.

Article 16. Entry into force

1. This Circular comes into force from January 1, 2017.

2. The Fund shall pay mid-shift meal for an employee, Head of Control Board, member of Control Board, or a manager not exceeding VND 730,000 per month. The mid-shift meal regime shall be implemented in accordance with Circular No. 22/2008/TT-BLDTBXH dated October 15, 2008 of the Ministry of Labor, War Invalids and Social Affairs on guidelines for mid-shift meal regime in state-owned companies.

Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Labor, War Invalids and Social Affairs for consideration./.