|Cơ quan ban hành:||Hội đồng Bộ trưởng||Số công báo:||Đang cập nhật|
|Số hiệu:||165-HĐBT||Ngày đăng công báo:||Đang cập nhật|
|Loại văn bản:||Nghị định||Người ký:||Phan Văn Khải|
|Ngày ban hành:||12/05/1992||Ngày hết hiệu lực:||Đã biết|
|Áp dụng:||Đã biết||Tình trạng hiệu lực:||Đã biết|
|Lĩnh vực:||Lao động-Tiền lương|
Nghị định 165-HĐBT của Hội đồng Bộ trưởng về việc quy định chi tiết thi hành Pháp lệnh Hợp đồng lao động
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Nghị định 165-HĐBT của Hội đồng Bộ trưởng về việc quy định chi tiết thi hành Pháp lệnh Hợp đồng lao động
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COUNCIL OF MINISTERS
SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
Hanoi, May 12, 1992
ON LABOUR CONTRACTS MAKING DETAILED PROVISIONS FORTHE IMPLEMENTATION OF THE ORDINANCE ON LABOUR CONTRACTS
THE COUNCIL OF MINISTERS
Pursuant to the Law on the Organization of theCouncil of Ministers dated 4 July 1981;
Pursuant to the Ordinance on Labour Contractsdated 30 August 1990;
On the recommendation of the Minister of LabourWar Invalids and Social Affairs.
1. In accordance with the provisions contained inarticle 2 of the Ordinance, a labour contract shall apply to the followingentities and individuals :
(a) Employees working in State run economic units,State defense enterprises, and economic units of the people's armed forces,excluding persons who have been appointed to positions in the State publicservice;
(b) Employees in non-State economic units, privatebusinesses, or family owned businesses;
(c) Employees working in Government offices at thecentral level, at the level of the provinces or district, and at equivalentlevels, excluding persons who have been appointed to positions in the Statepublic service;
(d) Vietnamese employees working for foreignindividuals, organizations, and establishments located in Vietnam, excludingenterprises with foreign capital to which the provisions of Decree 233-HDBT ofthe Council of Ministers dated 22 June 1990 apply.
2. A labour contract shall not apply to thefollowing:
(a) Persons who have been appointed to the Statepublic service pursuant to the provisions of Decree 169-HDBT of the Council ofMinisters dated 25 May 1991;
(b) Persons who have been appointed as directors,chief accountants, and other persons employed in State run economic units, andwho receive salaries from State funds (for example, public health workers andteachers);
(c) Persons belonging to the people's armed forces:standing army, police, security forces; persons working in occupations orspecial locations under the control of the Ministry of National Defense, theMinistry of Interior, with the approval of the Ministry of Labour War Invalidsand Social Affairs;
(d) Persons working in Party organizations, publiccommunities, and social organizations pursuant to separate regulations.
The labour contract shall include the followingessential matters in accordance with the provisions contained in article 5 ofthe Ordinance:
1. All terms required by the laws on working hoursand breaks; occupational safety and hygiene; social insurance.
2. All terms mutually agreed upon including:
- Specification of the job, the level of expertiseand the level of technology required for the job;
- Wages or salaries adequate for the specific type ofjob;
- Date of commencement, duration of any trial period,and duration of the labour contract (if any);
- Specific location of the job.
3. All other terms mutually agreed upon which areadvantageous to the employee.
The basic formalities for entering into a labourcontract in accordance with the provisions contained in article 6 of theOrdinance are stipulated as follow:
1. All labour contracts for indefinite terms, forterms exceeding one year, in respect of workers who are under fifteen (15)years of age, and in respect of workers who perform heavy work, or who work intoxic or dangerous environments, shall be in writing.
2. Labour contracts for specific or seasonal jobs,for a term of less than one year, shall be oral or written.
A labour contract shall be deemed to be void and ofno effect in accordance with the provisions contained in article 8 of theOrdinance in the following circumstances and shall be dealt with as follows:
1. Where one party to the labour contract does nothave the requisite legal capacity such as the mentally ill, persons evading thelaw, persons sentenced to jail, or prevented by the Court from carrying on thesame business, persons under the age of fifteen (15) years without the consentof his or her father, mother, or legal guardians, and in the othercircumstances referred to in clause 1 of article 8 of the Ordinance.
2. Where labour inspectors have concluded that alabour contract is totally void and that a labour contract shall have to beterminated.
3. Where labour inspectors have concluded a labourcontract is partly invalid, both parties are required to agree on the amendmentof those parts of the labour contract which are invalid.
4. A labour contract shall be deemed to be void asfrom the date of signing.
AGREEMENT TO A LABOUR CONTRACT
The responsibilities of each party when entering intoa labour contract shall be as follows:
1. An employee shall express his desire to workeither orally or by way of written application supported by a labour book (ifany).
2. An employer shall notify an employee of therequirements of the job in relation to health, skills, wages, occupationalsafety and hygiene conditions, internal labour regulations, and any otherrights which the employee is entitled to.
The procedure for entering into a labour contract inaccordance with the provisions of article 9 of the Ordinance is stipulated asfollow:
1. A labour contract shall be signed directly betweenthe employer or person with authority and the employee or representative of agroup of employees who must be accompanied by documents stating the name, age,home address, occupation, and signature of each employee. In the case of alabour contract which is agreed to orally, the employer must reach an agreementdirectly with each employee.
2. An employee may be party to more than one labourcontract with more than one employer provided that he is able to perform fullyall labour contracts to which he is a party.
The types of labour contract referred to in theprovisions of article 11 of the Ordinance are defined as follows:
1. An indefinite term labour contract is a contractwhich does not have terms previously agreed upon and can be terminated at anytime in accordance with the provisions of the law.
2. A definite term labour contract is a contract fora term which is in excess of one year and stated in the contract.
3. A labour contract for a specific or seasonal jobis a contract for a term which is less than one year.
The contracting parties to a labour contract inaccordance with the provisions of article 12 of the Ordinance are stipulated asfollows:
1. The employer must be the head or the legalrepresentative of a corporation or the owner of a business in an economicsector.
If the employer is a family or an individual, theemployer must have legal residency and be capable of ensuring the salaries andother working conditions of employees.
2. An employee shall be a Vietnamese person overfifteen (15) years of age who is capable of working. If the employee is underfifteen (15) years of age, consent must be obtained from his or her father,mother or legal guardian.
The trial period in accordance with the provisions ofarticle 13 of the Ordinance is stipulated as follows:
1. In respect to the duration of a trial period :
(a) For simple jobs, the duration shall not exceedfive days.
(b) For complicated jobs which involve management,technology, and business, the duration shall not exceed thirty (30) days.
2. At the end of the trial period the employer mustmake a report on the results of the trial period. Where the employer fails tomake a report, the labour contract shall be deemed to remain effective; if thetrial period is agreed upon in a separate contract, that contract shall convertto a labour contract.
3. The salary which shall apply during a trial periodshall be at least seventy (70) per cent of the normal level for the job.
A labour contract shall, in accordance with theprovisions of article 14 of the Ordinance, be of full force and effect in thefollowing circumstances:
A labour contract shall take effect as from the dateof its signing or the date on which both parties agree.
As from the date a labour contract takes effect, anemployer has the right to terminate the labour contract if an employee isabsent from work, except in special cases. Conversely, if no work is assignedto an employee, wages must still be paid for those days when the employee isnot working in accordance with the provisions of article 18 of this Decree.
In accordance with the provisions of article 15, alabour book is stipulated as follows:
1. A labour book records changes in the work of anemployee, is the basic certificate used by the employee for the purpose ofobtaining work, and shall be the basis upon which the policies of the labourlaw regime are determined.
2. A labour book shall be issued to the personsreferred to in clause 1 of article 1 of this Decree; it shall not be issued topersons who enter into labour contracts for a specific or seasonal job, or forjobs having a term of less than one year, or oral contracts.
3. Labour books shall be issued and administerednationally by the Ministry of Labour War Invalids and Social Affairs.
PERFORMANCE OF, TRANSFER OF, SUSPENSION OF, ANDTERMINATION OF A LABOUR CONTRACT
In accordance with the provisions of article 18 ofthe Ordinance, the reasons for the temporary transfer of an employee to anotherplace of work or another job are stipulated as follows:
1. If, due to the requirements of production orbusiness, an employer has to transfer an employee to another place of work oranother type of job for more than thirty (30) days in one year (in total), theemployer must obtain the consent of the employee. If an employee does not givehis consent, the employer must not transfer the employee. If, due to the faultof the employer, an employee has to stop work, the employee is entitled to anallowance in accordance with the stop work provisions referred to in clause 1of article 18 of this Decree.
2. If, due to a disaster, fire, sudden stoppage ofbusiness operations, the implementation of preventive measures and occupationalsafety controls, or industrial accidents, an employer has to temporarilytransfer an employee for a period in excess of ninety (90) days in one year (intotal) and an employee has not given his consent but must stop work, theemployee shall be entitled to compensation under the stop work provisionsreferred to in clause 2 of article 18 of this Decree.
If an employer does not comply with the stop workprovisions referred to clauses 1 and 2 of article 12 above, an employee shallhave the right to unilaterally terminate the labour contract.
3. If an employer temporarily transfers an employeein accordance with the provisions of clauses 1 and 2 of article 18 of theOrdinance, and the employee does not comply, the employee shall not be entitledto the wages or salary payable during the period of not working, and theemployer shall have the right to unilaterally terminate the labour contract.
In accordance with the provisions of clauses 2 and 4of article 19 of the Ordinance, the performance of a labour contract shall besuspended in the following cases:
1. The employee has to carry out obligationsregulated by the law such as : representative duties in the National Assemblyand people's committees, jury duties, participation in the organization ofelections; giving evidence to a Court; military service; duties as a Partymember; duties in emergency situations such as natural disasters and fires.
2. In other circumstances agreed by both parties: theemployee requests to undertake studies locally or studies overseas; is requiredto work for a specified period overseas; requests to take holidays without pay.
In accordance with article 19 of the Ordinance andarticle 13 of this Decree, in the case of the suspension of the performance ofa labour contract, an employee shall have the right to return to his place ofwork to perform the labour contract agreed upon after the expiry of or duringthe term of the period of suspension. An employer has the responsibility toarrange for the employee to return to his former job, and, if a different jobis assigned to the employee, both parties must enter into a new labourcontract; if the employee has to stop work temporarily, he shall be entitled toan allowance in accordance with the stop work provisions referred to in article18 of this Decree, or to terminate the labour contract in accordance with theprovisions of article 22 of the Ordinance.
Where a labour contract is terminated in accordancewith the provisions of articles 21, 22 and 24 of the Ordinance on LabourContracts, the parties must give notice of the termination either in writing ororally within the following time periods:
1. In the case of indefinite term labour contracts,at least forty-five (45) days.
2. In the case of definite term labour contractswhich are for a term exceeding one year, at least thirty (30) days.
3. In the case of labour contracts for a termexceeding three months but less than one year, at least five days.
4. In the case of labour contracts for a term notexceeding three months, at least one day.
The above notice periods for termination commencefrom the date of receipt of written notice in relation to labour contracts inwriting and from the date of oral notice in relation to oral labour contracts.
In accordance with points (c) and (d) of clause 2 ofarticle 21 of the Ordinance, an employee shall have the right to unilaterallyterminate a labour contract before the expiry of the notice period in thefollowing circumstances:
1. The employer mistreats the employee or theemployer's conduct offends the dignity and honor of the employee.
2. The employee is unable to continue performing thecontract for the following reasons:
(a) The employee, or his or her family has changedthe location of his or her place of residence;
(b) Permission for emigration has been granted;
(c) The employee has to nurse a wife, husband,father, mother, or child, as the case may be, who has been ill for threeconsecutive months.
In accordance with point (a) of clause 1 of article22 of the Ordinance, an employer shall have the right to unilaterally terminatea labour contract in the following circumstances:
1. Depending on the form of the labour contract, anemployee, due to his own fault, has repeatedly, over a period of one to threemonths, failed to carry out his or her duties in accordance with the terms ofthe labour contract agreed upon.
2. The employee stops work without proper reasons onthree days in one month or on ten (10) days in one year (in total).
In accordance with articles 23 and 25 of theOrdinance, the compensation and benefits to which an employee is entitled uponthe termination of the labour contract are stipulated as follows:
1. In cases where both parties agree to thetermination of a labour contract in accordance with the provisions of article23 of the Ordinance, an employee is entitled to the benefits stipulated in theprovisions of article 19 of this Decree.
2. In cases where an employer terminates the labourcontract in breach of the provisions of articles 21, 22, and 23 of theOrdinance, and of article 10 of this Decree, the employer must pay compensationfor damages suffered by the employee in the following cases:
(a) In the event that the employee loses his place ofemployment as a result, the employer has to pay compensation in a sum equal tothe wages (salary) and wage allowances which would otherwise have been paidover a period of three months; if the employee suffers illness or injury asreferred to in point (c) of article 22 of the Ordinance, the compensationpayment shall be doubled. The employer must also pay a retrenchment allowanceor other benefits to the employee in accordance with the provisions of article19 of this Decree;
(b) The level of compensation referred to above andin clause 1 of article 25 of the Ordinance shall be calculated according to thelevel of wages (salary) and wage allowances (if any) in force at the time ofthe termination of the labour contract or prior to the employee becoming ill orinjured.
In accordance with clause 2 of article 25 of theOrdinance, the stop work allowance is stipulated as follows:
1. Where the work stoppage is due to the fault of anemployer, the employer must pay a stop work allowance in a sum equal to thewages (salary) and wage allowances received by the employee just prior to thework stoppage.
2. Where the work stoppage is due to a naturaldisaster, fire, sudden stoppage of business operations, the implementation ofpreventive measures and occupational safety controls, or industrial accident,the employee shall be entitled to a stop work allowance in a sum equal to atleast seventy (70) per cent of the wages (salary) and wage allowances receivedby the employee just prior to the work stoppage.
3. Where the work stoppage is due to the fault of anemployee, the employee shall not be entitled to a stop work allowance and mustpay for any damage caused to the employer in accordance with a regime formaterial responsibility stipulated by the State.
In accordance with clause 2 of article 25 of theOrdinance, an employee shall be entitled to a retrenchment allowance or otherbenefits as follows:
1. In cases where a labour contract is terminated inaccordance with the provisions of clause 5 of article 20, points (a), (b), and(c) of clause 2 of article 21, and point (d) and (e) of clause 1 of article 22of the Ordinance, or of clauses 1 and 2 of article 12, and clause 2 of article17 of this Decree: the employee shall be entitled to a retrenchment allowancein a sum equal to fifty (50) per cent of the monthly wages (salary) and wageallowances (if any) for every year that he was employed by the employer.
In cases where a labour contract is terminated inaccordance with the provisions of point (c) of clause 1 of article 22 of theOrdinance, or clause 1 of article 17 of this Decree, the employee shall beentitled to one hundred and fifty (150) per cent of the above level.
If the employee is, in the case of a male, forty-five(45) or, in the case of a female, forty (40) years of age or more, and has beenworking with the employer for five consecutive years or more, the employeeshall be entitled to an additional allowance in a sum equal to wages (salary)and wage allowances (if any) for at least two months.
2. In cases where a labour contract for a specific orseasonal job for a term exceeding three months but less than one year isterminated in accordance with the provisions of clause 1 of this article, theemployee shall be entitled to an allowance in a sum equal to wages (salary) andwage allowances (if any) for one month.
3. The retrenchment allowance shall be calculated onthe basis of the wages (salary) and wage allowances referred to in clause 2 ofarticle 17 of this Decree, and shall be paid in a lump sum directly to theemployee. In addition to the calculated allowance, an employee who has beenemployed for more than one year shall be entitled to an allowance (in respectof boat, coach, luggage, eating expenses) for the return of the employee to hisor her place of residence, in accordance with the regime in force.
4. The allowances referred to above shall be paid bythe employer from an allowance fund of the entity. The fund shall beestablished from deductions from the entity's profits. The Ministry of Financeshall co-ordinate with the Ministry of Labour War Invalids and Social Affairsto provide guidance for the establishment and use of the fund.
5. In every case where a labour contract isterminated, the employee shall also be entitled to social insurance benefits inaccordance with State regulations.
In accordance with the provisions of article 26 ofthe Ordinance, the responsibilities of each party upon terminating a labourcontract are stipulated as follows:
1. The employer shall return all files and documents,and provide the necessary certificates to the employee at his request; theemployer shall settle all entitlements to wages, retrenchment allowance,compensation, or other benefits with the employee (if any).
2. The employee shall return all files, documents,equipment, and facilities used for carrying out the job, and settle alloutstanding debts (if any).
3. Within seven days after the date of termination ofthe labour contract each party must fulfill all the responsibilities referredto above, except in respect of the settlement of compensations and debts whichmust be settled within thirty (30) days.
RESOLUTION OF LABOUR DISPUTES AND DEALING WITHBREACHES
The entities responsible for the resolution of labourdisputes shall include:
1. A labour reconciliation board of the establishmentshall have the responsibility of reconciling disputes between the employer andthe employee. The members of the board shall consist of equal numbers ofrepresentatives of the employer and the executive committee of the trade union(if any) or of the elected labour collective. The number of members on theboard shall be in proportion to the number of employees at the establishment.Each party shall appoint representatives to the positions of chairman andsecretary of the board at each alternate meeting. The term of office of thereconciliation board shall follow the term of office of the executive committeeof the trade union of the establishment.
2. A labour arbitration board shall include:
(a) Labour arbitration boards in provinces and citiesunder central authority; and labour arbitration boards in districts where it isconsidered necessary;
(b) Labour arbitration boards at central level.
The labour office at each level shall form and act aschairman of the labour arbitration board at the same level. The members of thearbitration board shall consist of equal numbers of representatives of thelabour office, the trade union, and the employer. The roster of members of thearbitration board shall be approved by the people's committee on therecommendation of the labour office at the equivalent level; the board shallnominate a member to be secretary.
Labour arbitration boards at all levels may onlyresolve labour disputes which have been considered by the labour reconciliationboard of an establishment, or where there is no labour reconciliation board.
The responsibilities of labour arbitration boards atall levels shall be determined by the Ministry of Labour War Invalids andSocial Affairs.
Labour reconciliation boards at all establishmentsshall be responsible to receive petitions, and to resolve all labour disputesin accordance with the stipulated procedures within fifteen (15) days afterreceipt of a petition.
Boards shall invite both parties concerned to ameeting to listen to their submissions; and if either one of the parties is notpresent, in the absence of no proper reasons, the meeting of the board shallstill proceed, and if there are proper reasons, the meeting shall be adjourned.In the event that the parties concerned do not consent to the decision reachedby the board, each party concerned shall have the right to apply for an appealwithin ten (10) days after the date the board issues its decision; thereconciliation board shall have the responsibility of transferring all thefiles relating to the dispute to an arbitration board at an immediately higherlevel within five days after receipt of the appeal application.
Labour arbitration boards shall be responsible toconduct the arbitration in accordance with the stipulated procedures, and resolveall labour disputes within thirty (30) days after receipt of the files of adispute from a labour reconciliation board. In the case of a complicateddispute, the period for resolution can be extended by ten (10) days providedthat the decision of the chairman of the labour arbitration board is obtainedand sent to the parties concerned.
After inspecting and examining the matter, the labourarbitration board shall reconcile the differences and resolve the disputedirectly with both parties concerned. In the event that the parties do notagree with the decision of the arbitration board, they shall have the right toappeal to a labour arbitration body at a higher level.
The decisions of labour arbitration boards and thereconciliation statements of labour reconciliation board of every establishmentshall be implemented within ten (10) days after receipt of the decision orstatement by the parties. If the decisions are not carried out voluntarily bythe parties, the labour dispute shall be referred to a court for judgment(unless the parties concerned have applied for an appeal against the decisionof the labour arbitration body at the time).
PROVISIONS ON IMPLEMENTATION
1. Any labour contract entered into before the cominginto force of the Ordinance on Labour Contracts shall be terminated if it isnot in accordance with the provisions of the Ordinance in whole or in part,provided that within three months after this Decree becomes effective, thecontract is re-entered into, amended, or added to.
2. All employees working for organizations orindividuals in economic sectors must enter into a labour contract.
This Decree shall be effective as of the date of itssigning. This Decree shall repeal Decree 24-CP dated 13 March 1963, Circular184-TTg dated 16 July 1974, Decision 217-HDBT dated 14 November 1987, andDecrees 27 and 28-HDBT dated 9 March 1988. Any other official statements of theCouncil of Ministers which are inconsistent with this Decree are hereby repealed.
The Minister of Labour War Invalids and SocialAffairs shall be responsible to guide the implementation of this Decree.
Ministers, chairmen of State Committees, heads ofDepartments belonging to the Council of Ministers, chairmen of people'scommittees in provinces and cities under central authority shall be responsibleto implement this Decree.
FOR THE COUNCIL OF MINISTERS
Phan Van Khai
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