Circular No. 30/2013/TT-BLDTBXH of October 25, 2013, guiding the implementation of a number of articles of the Government’s Decree No. 44/2013/ND-CP of May 10, 2013, detailing a number of articles of the Labor Code regarding labor contracts

THE MINISTRY OF LABOR, WAR INVALIDS AND SOCIAL AFFAIRS

Circular No. 30/2013/TT-BLDTBXH of October 25, 2013, guiding the implementation of a number of articles of the Government’s Decree No. 44/2013/ND-CP of May 10, 2013, detailing a number of articles of the Labor Code regarding labor contracts

Pursuant to the Government’s Decree No. 106/2012/ND-CP of 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. 44/2013/ND-CP of May 10, 2013, detailing a number of articles of the Labor Code regarding labor contracts;

At the proposal of the director of the Labor-Wages Department;

The Minister of Labor, War Invalids and Social Affairs promulgates the Circular guiding the implementation of a number of articles of the Government’s Decree No. 44/2013/ND-CP of May 10, 2013, detailing a number of articles of the Labor Code regarding labor contracts.

Section 1

GENERAL PROVISIONS

Article 1. Scope of regulation

This Circular guides the participation in compulsory social insurance, unemployment insurance and compulsory health insurance in case an employee enters into labor contracts with more than one employer; contents of labor contracts with employees hired to work as directors of enterprises with state capital; the order and procedures for labor inspectorates to declare labor contracts to be invalid, and handling of invalid labor contracts provided in the Government’s Decree No. 44/2013/ND-CP of May 10, 2013, detailing a number of articles of the Labor Code regarding labor contracts (below referred to as Decree No. 44/2013/ND-CP).

Article 2. Subjects of application

1. Employees defined in Clause 1, Article 3 of the Labor Code.

2. Employers defined in Clause 2, Article 3 of the Labor Code.

3. Agencies, organizations and individuals related to the contents prescribed in Article 1 of this Circular.

Section 2

PARTICIPATION IN COMPULSORY SOCIAL INSURANCE, UNEMPLOYMENT INSURANCE AND COMPULSORY HEALTH INSURANCE IN CASE AN EMPLOYEE ENTERS INTO LABOR CONTRACTS WITH MORE THAN ONE EMPLOYER

Article 3. The first labor contract and subsequent labor contracts

1. The first labor contract under which the employer and employee are both responsible for participating in compulsory social insurance and unemployment insurance specified at Point a, Clause 1, Article 4 of Decree No. 44/2013/ND-CP is the labor contract which was signed first among labor contracts the employee has entered into.

2. The subsequent labor contract under which the employer and employee are responsible for participating in compulsory social insurance and unemployment insurance specified at Point b, Clause 1, Article 4 of Decree No. 44/2013/ND-CP is the labor contract signed immediately after the employee and employer terminate or change the labor contract under which they are participating in compulsory social insurance and unemployment insurance.

Article 4. Employees’ notices when entering into a new labor contract or modifying, supplementing or terminating signed labor contracts

1. Within 5 working days after entering into a new labor contract or modifying, supplementing or terminating a signed labor contract, an employee shall send a written notice, enclosed with a copy of the newly signed contract or modified, supplemented or terminated contract, to the employers of other labor contracts he/she has entered into. The form of such notice is provided in Appendix No. 1 to this Circular.

2. Within 30 days after entering into a new labor contract or modifying, supplementing or terminating a signed labor contract which results in a change of the employee’s and employer’s responsibility to participate in compulsory social insurance, unemployment insurance and compulsory health insurance, the employee shall send a dossier to request the employer of the labor contract responsible for participating in compulsory social insurance, unemployment insurance and compulsory health insurance to do so according to regulations.

A dossier of request for participation in compulsory social insurance, unemployment insurance and compulsory health insurance comprises:

a/ A request for participation in compulsory social insurance, unemployment insurance and compulsory health insurance, made according to the form provided in Appendix No. 2 to this Circular;

b/ The social insurance book and other relevant papers (if any), for submission to the employer of the subsequent labor contract provided at Point b, Clause 1, Article 4 of Decree No. 44/2013/ND-CP in case of changing the responsibility to participate in compulsory social insurance and unemployment insurance;

c/ The health insurance card and other relevant papers (if any), for submission to the employer of the subsequent labor contract provided at Point b, Clause 2, Article 4 of Decree No. 44/2013/ND-CP in case of changing the responsibility to participate in compulsory health insurance.

Article 5. Employers’ notices of employees’ labor accidents or occupational diseases

When an employee has a labor accident or is identified as having suffered an occupational disease, the employer shall notify in writing the employee’s health status to the employers of remaining labor contracts according to Clause 1 and Point d, Clause 2, Article 5 of Decree No. 44/2013/ND-CP. The form of such notice is provided in Appendix No. 3 to this Circular.

Section 3

CONTENTS OF LABOR CONTRACTS SIGNED WITH EMPLOYEES HIRED TO WORK AS DIRECTORS IN ENTERPRISES WITH STATE CAPITAL

Article 6. Addresses of wholly state-owned enterprises

The address of a wholly state-owned enterprise mentioned in Clause 1, Article 6 of Decree No. 44/2013/ND-CP is the address of its head office stated in the enterprise registration certificate.

Article 7. Addresses of residences and other lawful papers of foreigners hired to work as directors

The address of residences and other lawful papers of a foreigner hired to work as director mentioned in Clause 2, Article 6 of Decree No. 44/2013/ND-CP are specified as follows:

1. Addresses of his/her residences in Vietnam and a foreign country.

2. Other lawful papers, including copies of the passport, work permit and other relevant papers (if any).

Article 8. Terms of labor contracts signed with foreigners hired to work as directors

The term of a labor contract signed with a foreigner hired to work as director may be determined by the two parties, which ranges from full 12 months to 36 months but must not exceed the validity duration of the work permit granted by a competent state agency.

Article 9. Extension of labor contracts

The employer and a foreigner hired to work as director may agree to extend the labor contract once through signing an annex thereto but the extended duration must not exceed 12 months. Past the extended duration, the two parties shall enter into a new labor contract. The extended duration of a labor contract signed with a foreigner hired to work as director must not exceed the validity duration of his/her work permit granted by a competent state agency.

Section 4

ORDER AND PROCEDURES FOR LABOR INSPECTORATES TO DECLARE LABOR CONTRACTS TO BE INVALID

Article 10. Written records of violations in the contents of labor contracts

1. Inspection team heads or independent labor inspectors or persons assigned to conduct specialized inspection shall make written records of violations in the contents of labor contracts according to the form provided in Appendix No. 4 to this Circular.

2. If detecting the same violation in many labor contracts, inspection team heads or independent labor inspectors or persons assigned to conduct specialized inspection shall make a written record enclosed with a list of violating labor contracts.

Article 11. Examination of the modification and supplementation of violating labor contracts 

Past the time limit for employers and employees to modify or supplement violating labor contracts specified in Clause 2, Article 9 of Decree No. 43/2013/ND-CP, inspection team heads or independent labor inspectors or persons assigned to conduct specialized inspection that have made written records of violations in labor contracts shall examine the modification and supplementation of such contracts.

Article 12. Decisions declaring labor contracts to be invalid

1. Chief Inspectors of provincial-level Labor, War Invalids and Social Affairs Departments which have made written records of violations in labor contracts shall issue decisions to declare labor contracts to be partially invalid according to the form provided in Appendix No. 5 or decisions to declare labor contracts to be wholly invalid according to the form provided in Appendix No. 6 to this Circular.

2. If detecting the same violation in many labor contracts, Chief Inspectors of provincial-level Labor, War Invalids and Social Affairs Departments shall issue a decision to declare the labor contracts to be partially or wholly invalid, enclosed with a list of these labor contracts.

3. A decision declaring a labor contract to be invalid must be sent to the employer and employee concerned, or each employee, for labor contracts signed with groups of employees, the executive committee of the grassroots trade union or the superior trade union, for enterprises which have not yet established grassroots trade unions, the district-level People’s Committee of the locality where the enterprise’s head office or production and business establishment, unit or branch is located.

Section 5

HANDLING OF INVALID LABOR CONTRACTS

Article 13. To-be-refunded difference between the agreed wage level and the wage level provided in the invalid labor contract

The to-be-refunded difference between the agreed wage level and the wage level provided in the invalid labor contract, which is specified in Clause 2, Article 10 of Decree No. 44/2013/ND-CP, is determined according to the following formula:

M_HT = (M_TL2 - M_TL1) x t

In which:

- M_HT is the difference between the agreed wage level and the wage level provided in the invalid labor contract to be refunded;

- M_TL1 is the monthly wage (including wage, wage-based allowances and other additional amounts) agreed by the two parties in the labor contract declared to be invalid;

- M_TL2 is the monthly wage (including wage, wage-based allowances and other additional amounts) provided in the labor contract newly agreed between the two parties;

In case the labor contract provides another method of wage payment, such wage must be converted into monthly wage.

- t is the number of months the employee has actually worked for the employer with the wage level stated in the labor contract declared to be invalid, counting up to the time the labor contract is declared to be invalid. The maximum number of months used for calculating the to-be-refunded amount is 12 months, even in case the employee has actually worked for more than 12 months. In case the month-based actual working period has some odd days, if the number of odd days is fewer than 15, it will not be rounded up; if the number of days is 15 days or more, it will be rounded up to one working month.

Article 14. Labor contracts declared to be invalid as they are signed ultra vires

1. Persons signing labor contracts ultra vires mentioned in Clause 1, Article 11 of Decree No. 44/2013/ND-CP are persons other than:

a/ For employers:

- At-law representatives as specified in the enterprises’ charters or persons authorized by the at-law representatives, for enterprises operating under the Law on Enterprises;

- At-law representatives as specified in the charters of cooperatives or unions of cooperatives or persons authorized by the at-law representatives, for cooperatives and unions of cooperatives operating under the Law on Cooperatives;

-  Heads of agencies, units or organizations or persons authorized by the heads, for state agencies, non-business units, political organizations and socio-political organizations employing employees to work under labor contracts; 

-  Heads of organizations or persons authorized by the heads, for foreign or international agencies, organizations or branches or representative offices of international agencies and organizations in Vietnam;

- Heads or representatives of households hiring or employing employees;

- Individual employers.

b/ For employees

- Employees aged full 18 years or more;

- Minor employees aged between full 15 and below 18 years, with the written consent of their at-law representatives;

- At-law representatives of employees aged below 15 years, with written consent of such employees;

- The employee authorized in writing by a group of employees to enter into a labor contract, enclosed with a list of authorizing employees with their full names, age, gender, permanent residences and occupations and signatures.

2. Within 15 days after receiving a decision declaring a labor contract to be invalid as such contract is signed ultra vires, the district-level People’s Committee of the locality where the enterprise’s head office  or production and business establishment, unit or branch is located shall direct the district-level Labor, War Invalids and Social Affairs Division to guide the employer and employee to re-sign the labor contract according to their competence.

3. The contents of the re-signed labor contract are those agreed between the employee and employer in the contract declared to be invalid, unless otherwise agreed by the two parties.

4. The re-signed labor contract takes effect on the date of its signing.

5. The rights and interests of each party during the period from the time the employee starts working under the labor contract signed ultra vires until the two parties re-sign the labor contract according to their competence comply with the agreements in the contract declared to be invalid because it is signed ultra vires.

The period from the time the employee starts working under the labor contract signed ultra vires until the two parties re-sign the labor contract according to their competence is included in the employee’s period of working for the employer, which serves the implementation of the regimes prescribed by the labor law.

Article 15. Responsibilities of employers in case of failing to enter into new labor contracts with employees when labor contracts are declared to be wholly invalid because the contractual jobs are banned by law

1. The employer shall pay to the employee an amount of money as agreed by the two parties, which must be at least equal to one monthly minimum wage applicable to the locality where the employer’s production and business establishment, unit or branch at which the employee is working is located, which is announced by the Government at the time of issuance of the decision declaring the labor contract to be invalid, per working year. The employee’s working period is the time of working under the labor contract declared to be invalid. The probationary and job training periods at the enterprise, agency or organization, periods of attending training courses as assigned by the employer; leave periods under the Law on Social Insurance, paid personal leaves specified in Clause 1, Article 116 of the Labor Code, unpaid leaves agreed by the employer, and days off taken for participation in trade union activities as provided by the law on trade unions, work stoppage or lay-off periods not due to the employee’s fault and the periods of temporary suspension and temporary custody or detention, if the employee is later allowed to resume working as competent state agencies conclude that he/she is not guilty, must be included in the period of working for the employer.

The employee’s actual working period is calculated based on an annual basis. In case the actual working period contains some odd months, if the number of odd months is fewer than 6, it will be rounded up to half a year; if the number of odd months is 6 or more, it will be rounded up to one working year.

2. In case the employee has worked for the employer for full 12 months or more under other previous labor contracts but not yet received severance allowances or job-loss allowances from the employer, in addition to the amount payable to the employee specified in Clause 1of this Article, the employer shall pay severance allowances in accordance with law for the period the employee has worked under these previous labor contracts.

The wage used for calculating job-loss allowances is the average wage of 6 months preceding the time of terminating the labor contract signed immediately before the labor contract declared to be wholly invalid because the contractual job is banned by law. If such average wage is lower than the region-based minimum wage announced by the Government at the time of issuance of a decision declaring the labor contract to be wholly invalid, the region-based minimum wage applies.

Article 16. Rights and interests of employees during the period from the time they start working under labor contracts declared to be wholly invalid until the time of entering into new labor contracts

1. The rights and interest of an employee during the period from the time he/she starts working under the labor contract declared to be wholly invalid until the time of entering into a new labor contract are settled as follows:

a/ In case the employee’s rights and interest provided in the labor contract declared to be wholly invalid are not lower than those provided by the labor law or internal rules or collective labor agreements (if any), the rights and interests of each party comply with the agreements in the labor contract declared to be wholly invalid.

b/ In case the employee’s rights and interest provided in the labor contract declared to be wholly invalid are lower than those provided by the labor law or internal rules or collective labor agreements (if any), the rights and interests of each party comply with internal rules or collective labor agreements and the labor law. Particularly, if the wage level provided in the labor contract is lower than that provided by the labor law or internal rules or collective labor agreements, the employer shall refund the employee a sum of money as provided in Article 13 of this Circular.

2. The period from the time the employee starts working under the labor contract declared to be wholly invalid until the time of entering into a new labor contract is included in his/her period of working for the employer, which serves as a basis for implementation of the regimes provided by the labor law.

Section 6

IMPLEMENTATION PROVISIONS

Article 17. Effect

1. This Circular takes effect on December 10, 2013.

The regimes provided in this Circular apply from July 1, 2013.

2. This Circular replaces Circular No. 21/2003/TT-BLDTBXH of September 22, 2003, guiding the implementation of a number of articles of the Government’s Decree No. 44/2003/ND-CP of May 9, 2003, on labor contracts, and Circular No. 17/2009/TT-BLDTBXH of May 26, 2009, amending and supplementing a number of points of Circular No. 21/2003/TT-BLDTBXH.

3. In case labor contracts already signed with employees hired to work as directors in enterprises with state capital have contents contrary to this Circular, employers and employees shall modify or amend such labor contracts in accordance with this Circular.

Article 18. Implementation responsibilities

Ministers, heads of ministerial-level agencies, heads of government-attached agencies and chairpersons of provincial-level People’s Committees shall direct, urge and examine agencies, units, organizations and enterprises to comply with this Circular.

Any problems arising in the course of implementation should be reported to the Ministry of Labor, War Invalids and Social Affairs for additional guidance.-

For the Minister of Labor, War Invalids and Social Affairs
Deputy Minister
PHAM MINH HUAN   

* All appendices to this Circular are not translated