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-WagesDepartment;

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 bothresponsible forparticipating 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 areresponsible forparticipatingonin 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 afterthe employee and employerterminatedor changedthelabor contractunderbased onwhichtheyarethe employee and employerisparticipating in compulsory social insurance and unemployment insurance.

Article 4.Employees’ noticesuponwhenentering 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, totheeachemployersof other labor contracts he/she has entered into.The form ofSuchsuchnoticesis providedshall be made according toin AppendixformNo. 1toissued togetherwiththis Circular.

2. Within 30 days after entering into a new labor contract or modifying, supplementing or terminating a signed labor contractdue towhichresults in a change ofthe employee’s and employer’s responsibilityiesto participate in compulsory social insurance, unemployment insurance and compulsory health insurancechange, the employee shall send a dossier to request the employer of the labor contractresponsible forsubject toparticipatingonin 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 totheformprovided inAppendixNo. 2toissued together withthis Circular;

b/The sSocial insurance book and other relevant papers (if any), for submission to the employer of the subsequent labor contractasprovided 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 hHealth insurance card and other relevant papers (if any), for submission to the employer of the subsequent labor contractasprovided 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 employeehasmeets witha 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 contractsaccording toas provided inClause 1 and Point d, Clause 2, Article 5 of Decree No. 44/2013/ND-CP.The form of sSuch noticeiss shall be madeprovided inaccording toAppendixformNo. 3toissued togetherwiththis 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 headofficequarterstated in the enterprise registration certificate.

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

The address of residencesand 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 residencesin Vietnam andaforeign country.

2. Other lawful papers, including copies ofthepassport, work permitgranted by a competent state agencyand 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 directormayshallbe 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

TheAnemployer and a foreigner hired to work as director may agree to extend the labor contract once through signing an annextheretothe labor contractbut the extended durationsionmust not exceed 12 months. Past the extended duration, the two partiesshallmustenter 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 byacompetent state agency.

Section 4

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

Article 10.Written rRecords of violationsin the contents of labor contracts

1. Inspection team heads or independent labor inspectors or persons assigned to conduct specialized inspection shall makewrittenrecords of violationsin the contents of labor contracts according totheformprovided in AppendixNo. 4toissued together withthis Circular.

2. If detectingn casethe same violation inmany labor contractsare detected to have the same violation, inspection team heads or independent labor inspectors or persons assigned to conduct specialized inspection shall make awrittenrecord,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 madewrittenrecords of violationsin 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 madewrittenrecords of violationsin labor contracts shall issue decisions to declare labor contracts to be partially invalid according totheformprovided in AppendixNo. 5 or decisions to declare labor contracts to be wholly invalid according totheformprovided in AppendixNo. 6issued together withtothis Circular.

2. If detecting the same violation inn casemany labor contractsare detected to have the same violation, Chief Inspectors of provincial-level Labor, War Invalids and Social Affairs Departments shall issue a decision todecisions todeclarethelabor contracts to be partially or wholly invalid, enclosed with a list ofthesepartially or wholly invalidlabor 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 orthesuperior 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 officeis headquarteredorwherethe enterprise’sproduction 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_HTis the difference between the agreed wage level and the wage level provided in the invalid labor contract to be refunded;

- M_TL1is 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_TL2is the monthly wage (including wage, wage-based allowances and other additional amounts) provided in the labor contract newly agreed between the twoparties;

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

- t is the number of months the employee has actuallyworked for the employer with the wage level stated in the labor contract declared to be invalid, countingup tofromthe time the labor contract is declared to be invalidbackward. 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 periodhascontainssome odd days, if the number of odd days isfewerlessthan 15, it will not be rounded up; if the number of days is 15 days or more, it will be rounded up toone1working month.

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

1.Persons signinglaborcontractsultra viresmentioned in Clause 1, Article 11 of Decree No. 44/2013/ND-CParepersonsother than:

a/For employers:

-At-law representativesas specified intheenterprises’s’charterssor personsauthorized by the at-lawrepresentatives, for enterprises operating under the Law on Enterprises;

-At-law representativesas specified inthechartersof cooperativesor unionsof cooperatives or personsauthorized by the at-law representatives,forcooperatives and unions of cooperativesoperating under the Lawon Cooperatives;

-Headsof agencies, unitsororganizationsorpersonsauthorized bytheheads, for state agencies, non-business units, political organizations and socio-political organizationsemployingemployeesto work under labor contracts;

-Headsoforganizationsor personsauthorized by the heads, for foreign or international agencies, organizations or branches or representative officesof international agencies and organizations in Vietnam;

-Headsor representativesof householdshiring or employing employees;

-Individualsemployiersng employees.

b/ For employees

-Employeesaged full18 years or more;

-Minor employeesaged betweenfull15 and below 18 years,with thewritten consent oftheirat-law representatives;

-At-law representatives ofemployees aged below 15 years,withwritten consent of such employees;

-The employee authorized in writing byagroup of employees to enterintoalabor contracts, enclosed with a listof authorizing employees withindicatingtheirfull names, age, gender,address ofpermanent residencesand occupationsofeachauthorizing employeeandcontaining theirsignatures.

2. Within 15 days after receiving a decision declaringalabor contract to be invalid as such contract is signedultra vires,the district-level People’s Committee of the locality where the enterprise’s head officeis headquarteredorwhere the enterprise’sproduction 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 contractaccording to their competence.

3. The contents of the re-signed laborcontractare thosee contentsagreed between the employee and employer in the contract declared to be invalid,exceptunlessotherwise 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 timewhenthe employee starts working under the labor contract signedultra viresuntillthetwo partiesre-sign thelabor contractaccording to their competencecomply with the agreements in the contract declared to be invalidasbecauseit is signedultra vires.

The period from the timewhenthe employee starts working under the labor contract signedultra viresuntillthe two parties re-sign the labor contract according to their competence iscountedincludedintotheemployee’s period of workingfor the employer, which serves theimplementation 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 invalidasbecause thecontractual 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 wageapplicable to the locality where the employer’s production and business establishment, unit or branchforatwhich the employee is workingforis located,which isannounced by the Government at the time of issuance of the decision declaring the labor contract to be invalid, perfor eachworking year.The employee’s working period is the time of working under the labor contract declared to be invalid. Theprobationaryand job trainingperiodsat the enterprise, agency or organization, periodsof attending training courses as assigned by the employer; leaveperiodsunder the Law on Social Insurance,paidpersonal leavesspecified in Clause 1, Article 116 of the Labor Code, unpaid leaves agreed by the employer, anddays offtakenforparticipationin trade union activities as provided by the law on trade unions,work stoppageorlay-offperiodsnot due to the employee’s faultandtheperiodsoftemporary suspension andtemporary custody or detention, if the employee islatterallowed to resume working ascompetent state agencies conclude that he/she is notguilty,mustshallbecincludedalculatedintointheperiod of working for the employer.

The employee’s actual working period is calculatedbasedon an annual basis.In case the actual working period contains some odd months, if the number of odd months isfewerlessthan 6, it willbenot berounded upto half a year; if the number of odd months is 6 or more, it will be rounded up toone1workingyear.

2. In casethe employee has worked for the employerfor full 12 months or moreunder other previous labor contractsbut 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 allowancessin accordance with law for the period the employeehas workedunder these previous labor contracts.

The wage usedas a basisfor calculating job-loss allowancesis the averagewage of 6 months preceding the time of terminatingthe labor contract signedimmediatelybefore the labor contractdeclared to be wholly invalidbecauseasthecontractual jobsisarebanned by law. Ifsuch averagewageis lower than the region-based minimum wage announced by the Government at the time of issuanceof a decision declaring the labor contract to be wholly invalid, the region-based minimum wage applies.

Article 16.Rights and interests of employeesduringthe period from the time they startedworking under labor contracts declared to be wholly invaliduntillthe time of entering into new labor contracts

1.The rights and interest of an employee during the period from the time he/she startsworking under the labor contract declared to be wholly invaliduntillthe 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), therights 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 levelprovided in the labor contractis lower than thatprovidedprovidedby 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 startsworking under the labor contract declared to be wholly invaliduntillthe time of entering into a new labor contractiscalculatedincludedintohis/her period of working for the employer, which serves as a basis for implementation of the regimesprescribedprovidedby the labor law.

Section 6

IMPLEMENTATION PROVISIONS

Article17.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, andCircular 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 directorsin enterprises with state capital havecontents 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