Decree No. 85/2015/ND-CP dated October 01, 2015 of the Government detailing a number of articles the Labor Code in terms of policies for female employees

DECREE

Detailing a number of articles of the Labor Code regarding policies applicable to female employees[1]

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the June 18, 2012 Labor Code;

At the proposal of the Minister of Labor, War Invalids and Social Affairs;

The Government promulgates the Decree detailing a number of articles of the Labor Code regarding policies applicable to female employees.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree details a number of articles of the Labor Code regarding policies applicable to female employees, including representatives of female employees; female employees’ right to employment equality; improvement of working conditions and healthcare for female employees; right of pregnant employees to unilaterally terminate or postpone labor contracts; employers’ assistance and support for building crèches and kindergartens or covering part of childcare expenses at crèches and kindergartens; organization of crèches and kindergartens in areas with large numbers of female employees; and support policies for employers.

Article 2. Subjects of application

1. Female employees.

2. Employers employing female employees.

3. Other related agencies, organizations and individuals.

Article 3. Terms used in the Decree

1. Employer employing a large number of female employees means an employer falling in one of the following cases:

a/ Employing from 10 to under 100 female employees who account for 50% or more of the total workforce;

b/ Employing from over 100 to under 1,000 female employees who account for 30% or more of the total workforce;

c/ Employing 1,000 female employees or more.

2. Area with a large number of female employees means:

a/ An industrial park, industrial complex, export processing zone or economic zone or a hi-tech park (below referred to as industrial park) where 5,000 female employees or more work for enterprises and pay social insurance premium in the area of the industrial park;

b/ A commune, ward or township where 3,000 female employees or more register for permanent residence or temporary residence.

3. Room for breast milk collection and storage means a separate area of at least 6 square meters with clean water, electricity and appropriate hygienic conditions that is equipped with refrigerators, chairs, tables, tissues or towels, breast pumps and sterilized baby bottles (if available).

Article 4. Representatives of female employees

A representative of female employees prescribed in Clause 2, Article 154 of the Labor Code is defined as follows:

1. In case an enterprise has established the grassroots trade union, the representative of female employees shall be this grassroots trade union.

2. In case an enterprise has not established the grassroots trade union yet, the representative of female employees shall be the immediate superior trade union of the enterprise when so requested by the collective of female employees. If no request is made, the employer shall collect opinions of more than 50% of female employees in the enterprise.

3. The grassroots trade union specified in Clause 1 and the immediate superior trade union specified in Clause 2 of this Article shall exercise their rights and perform their responsibilities in summarizing and reporting female employees’ opinions on issues related to their rights and interests which are collected by the employer.

Article 5. Female employees’ right to employment equality

1. Female employees’ right to employment equality specified in Clause 1, Article 153 of the Labor Code is provided as follows:

a/ Employers shall ensure equality between female employees and male employees in recruitment, employment, training, wage, commendation, promotion, remuneration, and regimes on social insurance, health insurance, unemployment insurance, working conditions, occupational safety, working time, rest time and material and spiritual welfare;

b/ The State shall ensure equality in the fields specified at Point a, Clause 1 of this Article in industrial relations, incentive policies and tax reduction consideration.

2. The State shall encourage employers to:

a/ Prioritize the recruitment and employment of females who fully meet the conditions and criteria for the jobs suitable to both males and females;

b/ Implement policies for female employees which are better than those prescribed by law.

Chapter II

SPECIFIC PROVISIONS

Article 6. Improvement of working conditions for female employees

1. Employers shall ensure sufficient bathrooms and hygienic toilets at workplaces under the Ministry of Health’s regulations.

2. Employers are encouraged to coordinate with grassroots trade unions in working out plans and taking measures for female employees to have regular employment and practice flexible working time, part-time work or home-based work so as to meet their legitimate aspirations.

Article 7. Healthcare for female employees

1. During a periodic health checkup, female employees may get obstetric examination according to the list of obstetric examination promulgated by the Ministry of Health.

2. In her menstrual cycle, a female employee is entitled to:

a/ A 30-minute break per day for at least 3 days per month;

b/ Full payment of wage for the time off as stated in the labor contract;

c/ The female employee shall reach agreement with the employer on the specific time off to suit practical working conditions and meet the need of the female employee.

3. During the time of nursing her child of under 12 months, a female employee is entitled to:

a/ A 60-minute break per day during working hours for breastfeeding, milk collection and storage, and rest;

b/ Full payment of wage for the time off as stated in the labor contract.

4. Employers shall build rooms for breast milk collection and storage to suit practical working conditions, the need of female employees and capacity of employers.

5. Employers are encouraged to enable female employees nursing children of 12 months or more to collect and store breast milk at workplaces. The time off shall be agreed by female employees and employers.

Article 8. Right of pregnant employees to unilaterally terminate or postpone labor contracts

1. In case a pregnant employee has a certificate of a competent health establishment which states that her continued work will adversely affect her pregnancy, she may unilaterally terminate, or postpone the performance of, the labor contract, but shall give an advance notice to the employer, enclosed with the competent health establishment’s certificate mentioned above.

2. The time limit for the female employee to give an advance notice of unilateral termination or postponement of the labor contract to the employer is the time off recommended by the competent health establishment.

3. In case of postponement of a labor contract, the postponement duration shall be agreed between the employee and the employer but must not be shorter than the time off recommended by the competent health establishment. If the competent health establishment gives no recommendation about the time off, the two parties shall themselves agree on the postponement duration.

Article 9. Employers’ assistance and support for building crèches and kindergartens or covering part of childcare expenses at crèches and kindergartens

1. Based on specific conditions, the employer shall work out a plan to provide assistance and support in cash or in kind for building crèches and kindergartens, or to cover part of childcare expenses at crèches and kindergartens incurred by female employees who have children of preschool age. The level and duration of assistance and support shall be agreed between the employer and representatives of female employees.

2. Employers are encouraged to organize and build crèches and kindergartens.

Article 10. Organization of crèches and kindergartens in areas with large numbers of female employees

Provincial-level People’s Committees shall direct and effect the organization and building of crèches and kindergartens in areas with large numbers of female employees as follows:

1. To plan the building of crèches and kindergartens when planning or establishing industrial parks in accordance with law. In case an industrial park has been established without a master plan for building crèches and kindergartens, such master plan shall be additionally made;

2. To build crèches and kindergartens to meet demands;

3. To manage the operation of crèches and kindergartens in accordance with law;

4. To adopt policies to encourage individuals and organizations to invest in the building of crèches and kindergartens.

Article 11. Support policies for employers

1. Employers that invest in the building of crèches and kindergartens, health establishments, cultural works or other welfare works fully meeting the conditions on scale and standards prescribed by the Prime Minister may enjoy incentive policies on socialization under the State’s current regulations on incentive policies for the socialization of educational, vocational, healthcare, cultural, sports and environmental activities.

If investing in the building of houses for employees, employers may enjoy incentive policies under the Housing Law.

2. Employers employing large numbers of female employees may enjoy the State’s support as follows:

a/ Being entitled to reduction of enterprise income tax under the law on enterprise income tax;

b/ Having additional expenses for female employees included in deductible expenses upon determination of enterprise income tax-liable income under the Ministry of Finance’s regulations.

Chapter III

ORGANIZATION OF IMPLEMENTATION

Article 12. Organization of implementation

1. The Ministry of Labor, War Invalids and Social Affairs shall:

a/ Assume the prime responsibility for, and coordinate with related agencies in, disseminating policies applicable to female employees;

b/ Examine and inspect the implementation of this Decree.

2. The Ministry of Finance shall coordinate with related ministries and sectors in guiding provincial-level People’s Committees to implement Article 10 of this Decree.

3. The Ministry of Education and Training shall assume the prime responsibility for, and coordinate with related ministries and sectors in, guiding provincial-level People’s Committees to implement Article 10 of this Decree.

4. The Ministry of Health shall:

a/ Guide criteria on bathrooms and toilets prescribed in Clause 1, Article 6 of this Decree;

b/ Promulgate a list of obstetric examination for female employees prescribed in Clause 1, Article 7 of this Decree;

c/ Guide criteria on rooms for breast milk collection and storage prescribed in Clause 4, Article 7 of this Decree.

5. Other related ministries and sectors shall, within the ambit of their responsibilities, coordinate with the Ministry of Education and Training in guiding provincial-level People’s Committees to implement Article 10 of this Decree.

6. Provincial-level People’s Committees shall:

a/ Disseminate, and examine and inspect the implementation of, policies applicable to female employees specified in this Decree;

b/ Review and determine areas with large numbers of female employees and organize the implementation of Article 10 of this Decree.

Article 13. Effect

1. This Decree takes effect on November 15, 2015.

2. The Government’s Decree No. 23/CP of April 18, 1996, detailing and guiding a number of articles of the Labor Code regarding provisions exclusively applicable to female employees, ceases to be effective on the date this Decree takes effect.

Article 14. Implementation responsibility

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

On behalf of the Government
Prime Minister
NGUYEN TAN DUNG