Circular 18/2021/TT-BLDTBXH working time and rest time for seasonal production jobs or processing goods under orders

CIRCULAR

Prescribing working time and rest time for employees doing seasonal production jobs or processing goods under orders

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Pursuant to Clause 2, Article 68 of the Government's Decree No. 145/2020/ND-CP dated December 14, 2020, detailing and guiding the implementation of a number of articles of the Labor Code regarding working conditions and industrial relations;

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

At the request of the Director of the Department of Work Safety;

The Minister of Labor, Invalids and Social Affairs promulgates the Circular prescribing working time and rest time for employees doing seasonal production jobs or processing goods under orders.

Article 1. Scope of regulation

This Circular prescribes the formulation of plan and implementation of working time and rest time for employees doing seasonal production jobs or processing goods under orders.

Article 2. Subjects of application

1. Employees working under labor contracts with a term of between 12 months and 36 months or indefinite-term labor contracts for the following jobs:

a) Seasonal production jobs in the fields of agriculture-forestry-fishery-salt production that require instant harvest or instant processing after harvest without delay;

b) Processing of goods under orders, depending on the time the goods owner requests.

2. Employers specified in Clause 2 Article 3 of the Labor Code use employees to do jobs mentioned in Clause 1 of this Article.

Article 3. Yearly standard working time

T_Q = [T_N - (T_t + T_p + T_L)] x t_n (hours)

In which:

- T_Q: A employee’s standard working time in a year;

- T_N: Number of days in a year, which is 365 days in a calendar year, or 366 days in a leap year;

- T_t: Total number of weekly days off in a year, determined under Article 111 of the Labor Code;

- T_p: Number of annual leave days, which is 12, 14 or 16 days and may be increased depending on working seniority under Articles 113 and 114 of the Labor Code and Article 66 of the Government's Decree No. 145/2020/ND-CP dated December 14, 2020, detailing and guiding the implementation of a number of articles of the Labor Code regarding working conditions and industrial relations

- T_L: Number of holidays leave days in a year, which is 11 days under Article 112 of the Labor Code;

- t_n: Number of daily normal working hours, which is 8 hours under Article 105 of the Labor Code.

Article 4. Making plan to determine the number of daily standard working hours

Annually, based on the standard working time in a year (T_Q) calculated as prescribed in Article 3 of this Circular, employers shall make a plan to determine the number of daily standard working hours of each employee in the following cases:

1. The number of daily standard working hours is 8 hours.

2. The number of daily standard working hours may be more than 8 hours but must not exceed 12 hours.

3. The number of daily standard working hours may be from 4 hours to less than 8 hours.

4. A whole day-off is allowed.

Article 5. Using principles of the standard working time

1. In a year, the total number of standard working hours planned to determine under Article 4 of this Circular (including daily rest time calculated as working time) must not exceed the standard working time in the year (T_Q) as determined in Article 3 of this Circular.

2. In case the number of daily standard working hours, which is fewer than 8 hours, has been planned to determine under Clauses 3 and 4, Article 4 of this Circular, job stoppage wage shall not be paid.

3. Job stoppage wage must be paid for the number of daily standard working hours already planned during which a company actually did not arrange work for its employees.

4. In case the number of daily standard working hours, which is more than 8 hours, has been determined under the plan mentioned in Clause 2 Article 4 of this Circular, such difference in hours shall not be counted as extra working time.

5. The number of actual daily working hours over the number of standard working hours already planned under Article 4 of this Circular shall be counted as extra working hours; at the same time, employers must pay overtime wages and implement overtime-related regimes for employees in accordance with the provisions of the Labor Code.

Article 6. Maximum daily standard working hours and extra working hours

1. The total number of standard working hours and extra working hours in a day must not exceed 12 hours.

2. Maximum weekly and monthly standard working hours and extra working hours shall be prescribed as follow:

a)  The total number of standard working hours and extra working hours in a week must not exceed 72 hours.

b) The total number of extra working hours in a month must not exceed 40 hours.

c) The employer shall choose to apply the provisions of Point a or b of this Clause and then record it into a plan for annual working time and rest time prescribed in Clause 2 Article 8 of this Circular.

3. The total number of extra working hours in a year of each employee must not exceed 300 hours.

Article 7. Rest time

1. Employees are entitled to at least one day off (24 consecutive hours) a week. In seasonal-work months or when goods must be urgently processed for export under orders, if weekly days off cannot be arranged, the employer must ensure at least 04 days off every month for employees.

2. Rest breaks during working hours and between-shift breaks for employees shall comply with the Labor Code and Decree No. 145/2020/ND-CP.

3. Employers must arrange for employees to take holidays, New Year's Day, annual leave, and other paid holidays; shorten working hours and ensure rest time for female employees, juvenile employees, and elderly employees; decide on unpaid leave in accordance with the provisions of the Labor Code.

Article 8. Employer’s responsibilities

1. Annually, based on their production and business plans, employers shall take the initiative in deciding to apply the regime of normal working time and rest time in accordance with the Labor Code or apply the regime of working time prescribed in this Circular.

2. In case the employer decides to implement the regime of working time and rest time according to this Circular, they must fully comply with the following contents:

a) Formulating and adjusting the plan on working time and rest time according to form in Appendix 1 to this Circular. The employer must consult grassroots trade union executive boards of their enterprises. The employer shall refer to the examples in Appendix 2 to this Circular during the formulation and implementation of the plan for working time and rest time;

b) The employer shall notify the plan, the plan to adjust the working time and rest time within the enterprise, agency, organization, cooperative, household, or individual for the employee to know at least 30 days before implementation; negotiate with employees when working overtime according to the provisions of the Labor Code.

c) The employee shall be paid wage according to the labor contract and the provisions of the labor law on wages.

d) The employer shall include the report on implementing this Circular in the annual report on occupational safety and hygiene to the Department of Labor, Invalids and Social Affairs.

Article 9. Responsibilities of the Department of Labor, Invalids and Social Affairs

1. Coordinate with related agencies in disseminating, guiding this Circular to enterprises, production and business establishments located in the area.

2. Regularly expedite, supervise, examine and inspect the implementation of regulations on working time and rest time at enterprises, production and business establishments; and handle violations against legislation according to the provisions of the law on labor.

3. Annual reports on the implementation of this Circular by enterprises, agencies, organizations, cooperatives, households or individuals in the area and reports on occupational safety and hygiene shall be sent to the Ministry of Labor, Invalids and Social Affairs.

Article 10. Effect

1. This Circular takes effect on February 01, 2022.

2. The Circular No. 54/2015/TT-BLDTBXH dated December 16, 2015 of the Ministry of Labor, Invalids and Social Affairs, guiding the working time and rest time for employees doing seasonal production jobs or processing goods under orders shall cease to be effective from the effective date of this Circular.

3. Any difficulties arising in the course of implementation of this Circular should be reported to the Ministry of Labor, Invalids and Social Affairs for consideration and settlement./.

For the Minister

The Deputy Minister

Le Van Thanh

* All Appendices are not translated herein.