Decree No. 148/2018/ND-CP dated October 24, 2018 of the Government on amending and supplementing a number of articles of the Government’s Decree No. 05/2015/ND-CP of January 12, 2015 detailing and guiding a number of provisions of the Labor Code

THE GOVERNMENT

Decree No. 148/2018/ND-CP dated October 24, 2018 of the Government on amending and supplementing a number of articles of the Government’s Decree No. 05/2015/ND-CP of January 12, 2015, detailing and guiding the implementation of a number of provisions of the Labor Code^[1]

Pursuant to the June 19, 2015 Law on Organization of the Government;

Pursuant to the June 18, 2012 Labor Code;

At the proposal of the Minister ofLabor, War Invalids and Social Affairs,

The Government promulgates the Decree amending and supplementing a number of articles of the Government’s Decree No. 05/2015/ND-CP of January 12, 2015, detailing and guiding the implementation of a number of provisions of the Labor Code.

Article 1.To amend and supplement a number of articles of the Government’s Decree No. 05/2015/ND-CP of January 12, 2015 detailing and guiding the implementation of a number of provisions of the Labor Code

1. To amend Clause 1 of Article 3 as follows:

“1. A person entering into a labor contract on the employer’s behalf may be:

a/ The at-law representative mentioned in the charter of an enterprise or a cooperative;

b/ The head of an agency, unit or organization having the legal person status in accordance with law;

c/ A person authorized by members of a household, a cooperative group or another organization having no legal person status to be a representative in accordance with law;

d/ An individual directly employing employees; or,

e/ A person authorized in writing by the at-law representative mentioned at Point a, or by the head of an agency, unit or organization specified at Point b, of this Clause to enter into a labor contract.”

2. To amend Clauses 6, 7, 8 and 9 of Article 4 as follows:

“6. Regimes for rank promotion and wage raise must comply with the agreement reached by the two parties on the conditions, duration and wage level following the rank promotion and wage raise or the agreement concluded under the employer’s regulations and the collective labor agreement.

7.  Working time and rest time must comply with the agreement reached by the two parties or the agreement concluded under internal working regulations, the employer’s regulations, collective labor agreement, and law.

8. Personal protective equipment for employees must comply with internal working regulations, the employer’s regulations, collective labor agreement and the law on occupational safety and health.

9. Social insurance, unemployment insurance and health insurance must comply with the laws on labor, social insurance, unemployment insurance, and health insurance.”

3. To amend Clause 2 of Article 6 as follows:

“2. Where an employer no longer needs to employ an elderly employee or an elderly employee no longer satisfies health requirements, the two parties shall agree on the termination of their labor contract.”

4. To add the following Clause 4 to Article 13:

“4. A notice sent to the provincial-level state management agency in charge of labor specified in Clause 3, Article 44 of the Labor Code shall be made in writing with the following principal contents:

a/ Name, address and the at-law representative of the employer;

b/ Total number of employees; number of laid-off employees;

c/ Reasons why employees quit their jobs;

d/ Time when employees quit their jobs;

dd/ Payable job-loss allowance amount.”

5. To amend Clause 3 of Article 14 as follows:

“3. The working period used for the calculation of severance allowance or job-loss allowance is the total period during which the employee has actually worked for the employer minus the period during which the employee has paid unemployment insurance premiums in accordance with law, and the previous working period for which the employee has received severance allowance or job-loss allowance (if any) from the employer, in which:

a/ The period during which the employee has actually worked for the employer includes the period during which the employee has actually worked for the employer under the labor contract; period during which the employee is sent to refresher courses by the employer; and period of paid leaves for sickness and maternity in accordance with the law on social insurance; period of paid leave during which the employee receives medical treatment or workability rehabilitation after having a labor accident or suffering an occupational disease under the law on occupational safety and health; weekly leave period under Article 110, paid leave periods under Articles 111, 112 and 115, and Clause 1, Article 116, of the Labor Code; leave period for trade union activities in accordance with the law on trade union; paid leave period for performing citizens’ obligations as prescribed by law; period during which the employee has to cease work not due to his/her fault; and period of suspension from work under Article 129 of the Labor Code;

b/ The period during which the employee has paid unemployment insurance premiums includes the period during which the employer has paid unemployment insurance premiums, period regarded as the period of unemployment insurance premium payment in accordance with the law on unemployment insurance, and period during which the employer has simultaneously paid to the employee his/her wage and an amount equal to the unemployment insurance premium prescribed by the laws on labor and unemployment insurance;

c/ The working period used for the calculation of severance allowance or job-loss allowance is calculated in years (full 12 months); if having odd months, a period of between full 1 month and under 6 months shall be counted as half year; and a period of full 6 months or more shall be counted as one year.”

6. To annul Clause 5 of Article 14.

7. To amend Clause 6 of Article 14 as follows:

“5. Expenses for payment of severance allowance or job-loss allowance are accounted as production and business expenses or operation expenses of employers.”

8. To add the following Article 14a to below Article 14:

“Article 14a. Time limit for payment for interests of the employer and employee upon the termination of a labor contract

Within 7 working days after terminating a labor contract, the employer and employee shall make all payments related to the interests of each party. In special cases, this time limit may be extended but must not exceed 30 days from the date of termination of the labor contract in one of the following cases:

1. The employer that is not an individual terminates its operation;

2. The employer or employee encounters a natural disaster, fire, enemy sabotage or dangerous contagious epidemic;

3. The employer undergoes restructuring or technological change, or faces economic difficulties specified in Article 44 of the Labor Code or undergoes merger, consolidation, splitting or separation or asset ownership or use rights transfer under Article 45 of the Labor Code.”

9. To amend Clause 2 of Article 26 as follows:

“2. Wage used as a basis for payment to employees on annual leave under Article 111; seniority-based additional days of annual leave under Article 112; public and New Year holidays under Article 115, and paid personal leave under Clause 1, Article 116, of the Labor Code is that stated in the labor contract divided by the number of normal working days in the month as prescribed by the employer, then multiplied by the number of days of annual leave and seniority-based additional days of annual leave, public and New Year holidays and paid personal leave.”

10.To add the following Article 26a to below Article 26:

“Article 26a.Wage used as a basis for compensation when unilaterally terminating a labor contract illegally

Wage used as a basis for compensation when unilaterally terminating a labor contract illegally under Clause 5, Article 42, or Clause 2, Article 43, of the Labor Code is that stated in the labor contract at the time the employer or employee unilaterally terminates a labor contract illegally.”

11. To amend Clauses 2 and 3 of Article 28 as follows:

“2. Upon receiving a complete dossier for registration of internal working regulations from the employer, the provincial-level state management agency in charge of labor shall confirm the date of receipt of the dossier.

3. Within 7 working days after receiving a dossier for registration of internal working regulations, if finding them contrary to law, the provincial-level state management agency in charge of labor shall notify the employer thereof and guide him/her/it in modifying and re-registering the internal working regulations.”

12. To amend Article 30 as follows:

“Article 30. Order of imposing labor discipline

The order of imposing labor discipline prescribed in Article 123 of the Labor Code is specified as follows:

1. When detecting an employee’s violation of labor discipline at the time the violation is committed, the employer shall make a written record of the violation, notify such to the organization representing the grassroots-level employees’ collective; and his/her parent or at-law representative in case the employee is under 18 in order to hold the meeting for imposing labor discipline.

2. In case the employer detects the violation of labor discipline after it is committed and has sufficient grounds to prove the employee’s fault and the limitation period for imposing labor discipline has not expired yet, the order of imposing labor discipline is as follows:

a/ The employer shall notify the contents, time and venue of the meeting for imposing labor discipline to all eligible meeting participants specified at Points b and c, Clause 1, Article 123 of the Labor Code, ensuring that they receive the notice before the meeting, and shall hold the meeting with the participation of such participants.

b/ Within 3 working days after receiving the employer’s notice, the meeting participants specified at Points b and c, Clause 1, Article 123 of the Labor Code shall confirm their participation. Anyone who fails to participate in the meeting shall notify such to the employer, clearly stating the reason.

In case one of the meeting participants specified at Points b and c, Clause 1, Article 123 of the Labor Code fails to confirm his/her participation or gives an implausible reason, or has confirmed his/her participation but fails to appear at the meeting, the employer may still hold the meeting.

3. The meeting for imposing labor discipline shall be recorded in minutes which shall be approved by all participants before it ends. Such minutes shall be signed by all participants. In case one of the participants refuses to sign the minutes, the reason shall be clearly stated.

4. The person entering into a labor contract on the employer’s behalf is competent to issue a decision imposing labor discipline on the employee.

5. A decision imposing labor discipline shall be issued within the limitation period for imposing labor discipline or the extended one under Article 124 of the Labor Code. Such decision shall be sent to the employee concerned, his/her parent or at-law representative in case he/she is under 18 and the organization representing the grassroots-level employees’ collective.”

13. To amend Clause 1 of Article 31 as follows:

“1. The employer shall apply dismissal as a form of discipline to employees absent from work without a plausible reason specified in Clause 3, Article 126 of the Labor Code for:

a/ Five working days accumulated within 1 month (30 days) at most, from the first day of being absent from work without a plausible reason; or,

b/ Twenty working days accumulated within 1 year (365 days) at most, from the first day of being absent from work without a plausible reason.”

Article 2.Effect

1. This Decree takes effect on December 15, 2018.

2. To annul Article 7, and Clauses 1 and 3, Article 10, of the Minister of Labor, War Invalids and Social Affairs’ Circular No. 47/2015/TT-BLDTBXH of November 16, 2015, guiding the implementation of a number of articles on labor contracts, labor discipline and material responsibility of the Government’s Decree No. 05/2015/ND-CP of January 12, 2015, detailing and guiding the implementation of a number of provisions of the Labor Code.

3. In case a labor contract is terminated before the effective date of this Decree and the employer has not paid severance allowance or job-loss allowance to the employee, the employee’s actual working period used as a basis for the calculation of severance allowance or job-loss allowance shall be determined under current legal documents effective at the time the labor contract is terminated.

4. In case a labor contract that takes effect before the effective date of the 2012 Labor Code has a term on the agreed probation period, the employee’s actual working period used as a basis for the calculation of severance allowance or job-loss allowance is inclusive of the probation period stated in the labor contract.

Article 3.Implementation responsibility

Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level People’s Committees and related agencies, organizations, enterprises, cooperatives and individuals shall implement this Decree.-

On behalf of The Government
Prime Minister
Nguyen Xuan Phuc