Nghị định 33/2003/NĐ-CP của Chính phủ sửa đổi, bổ sung một số điều của Nghị định số 41/CP ngày 6/7/1995 của Chính phủ quy định chi tiết và hướng dẫn thi hành một số điều của Bộ Luật Lao động về kỷ luật lao động và trách nhiệm vật chất

DECREE

AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF THE GOVERNMENT’S DECREE NO. 41/CP OF JULY 6, 1995 WHICH DETAILS AND GUIDES THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LABOR CODE REGARDING LABOR DISCIPLINES AND MATERIAL RESPONSIBILITIES

THE GOVERNMENT

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

Pursuant to the June 23, 1994 Labor Code and the April 2, 2002 Law Amending and Supplementing a Number of Articles of the Labor Code;

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

DECREES:

Article 1.- To amend and supplement a number of articles of the Government’s Decree No. 41/CP of July 6, 1995 detailing and guiding the implementation of a number of articles of the Labor Code regarding labor disciplines and material responsibilities, which was amended and supplemented by the Law Amending and Supplementing a Number of Articles of the Labor Code (hereinafter referred to as the Labor Code) as follows:

1. Article 5 is amended and supplemented as follows:

"Article 5.- The registration of internal regulations on labor under Article 82 of the Labor Code is prescribed as follows:

1. The internal regulations on labor shall be registered at the Labor, War Invalids and Social Affairs Services of the provinces and centrally-run cities (hereinafter called the provincial/municipal Labor, War Invalids and Social Affairs Services). When registering their internal regulations on labor, the units must enclose them with their prescribed documents related to labor disciplines and material responsibilities (if any).

2. For enterprises in export-processing zones, industrial parks and hi-tech parks (hereinafter referred collectively to as industrial parks), the internal regulations on labor shall be registered at the Industrial Parks-Managing Boards under the authorization of the provincial/municipal Labor, War Invalids and Social Affairs Services of the localities where such Managing Boards are headquartered. Once every six months, the Industrial Parks-Managing Boards shall have to synthesize and report to the provincial/municipal Labor, War Invalids and Social Affairs Services on the situation of registration of the internal regulations on labor by the enterprises under their respective managing competence.

3. Within 10 days (working days) after receiving the enterprises’ internal regulations on labor, the provincial/municipal Labor, War Invalids and Social Affairs Services or the Industrial Parks-Managing Boards must notify in writing the registration of the internal regulations on labor; if, past the above-said time limit, no notification is made, the internal regulations on labor shall automatically take effect. In cases where internal regulations on labor and the prescribed documents enclosed herewith contain provisions contrary to law, they shall guide the employers to amend and/or supplement them and make the re-registration thereof."

2. Article 6 is amended and supplemented as follows:

"Article 6.- The application of forms of handling labor discipline violations under Article 84 and Article 85 of the Labor Code is prescribed as follows:

1. Oral or written reprimand shall apply to those laborers who commit minor mistakes for the first time.

2. Prolongation of salary grade promotion duration for no more than six months, or transfer of offenders to other lower-paid jobs for a maximum period of six months, or demotion shall apply to those laborers who have been reprimanded in writing but repeated their violations within three months thereafter, or who have committed violations already prescribed in the internal regulations on labor. The employers shall base themselves on the seriousness of discipline violations committed by laborers, their enterprises’ practical situation and the laborers’ circumstances to opt for one of the three forms prescribed in this Clause.

3. Dismissal, applicable to those laborers committing one of the violations prescribed in Clause 1, Article 85 of the Labor Code, which are specified in the internal regulations on labor, is prescribed as follows:

a/ For laborers who commit one of the violations prescribed at Point a, Clause 1, Article 85 of the Labor Code, if such violation act lacks adequate evidences or it is difficult to determine its evidences, the competent agencies shall be requested to make investigation, verification and conclusion thereon, which shall serve as basis for deciding on forms of discipline.

b/ Those laborers who arbitrarily abandon their work without plausible reasons for an aggregate of 5 days in a month or 20 days in a year calculated in a solar month or a solar year.

Cases considered to have plausible reasons include: those who are hit by natural calamities or fires; those who themselves or whose relatives are sick with certification by lawfully set-up medical establishments, and other cases prescribed in the internal regulations on labor."

3. Article 8 is amended and supplemented as follows:

"Article 8.- The statute of limitations for handling labor discipline violations under Article 86 of the Labor Code is prescribed as follows:

1. The statute of limitations for handling labor discipline violations shall be three months at most after the violations are committed or detected, in cases where the violating acts are related to finance, assets or disclosure of enterprises’ technological or business secrets, the statute of limitations for handling labor discipline violations shall be 6 months at most.

2. Labor disciplines shall not be imposed on laborers in the duration:

a/ They are on sickness leave or convalescence; or who are on leave with the consent of the employers;

b/ They are being held in custody or detention;

c/ They are waiting for results of investigation, verification and conclusion by competent agencies on the violation acts prescribed at Point a, Clause 1, Article 85 of the Labor Code;

d/ The female laborers are pregnant; on maternity leave; nursing their under-12 month children; and male laborers who have to nurse their under-12 month children.

At the end of the durations prescribed at Points a, b and c, Clause 2 of this Article, if the statute of limitations for imposing labor disciplines is still valid, the employers shall impose the labor disciplines immediately, if such statute of limitations has expired, it shall be restored for imposing labor disciplines, which, however, must not exceed 30 days after the expiry of the above-said duration.

If, upon the expiry of the duration prescribed at Point d, Clause 2 of this Article, the statute of limitations for imposing labor disciplines expires, it shall be prolonged for considering the imposition of labor disciplines, which, however, must not exceed 60 days after the expiry of the above-said duration."

4. Article 10 is amended and supplemented as follows:

"Article 10.- The employers shall be the persons competent to handle labor discipline violations, including the temporary suspension of work prescribed in Article 87 and Article 92 of the Labor Code; those persons who are authorized by the employers shall impose labor disciplines only in form of reprimand. Other disciplining forms shall be authorized only in writing when the employers are absent."

5. Point a, Clause 3 of Article 11 is amended and supplemented as follows:

"a/ The persons competent to handle labor discipline violations must issue written decisions thereon (except for form of oral reprimand), in cases where disciplines are imposed in form of dismissal, the employers must consult and reach agreement with Executive Boards of grassroots Trade Union organizations. In case of disagreement, the Executive Boards of grassroots Trade Union organizations shall report thereon to the immediate superior Trade Union organizations, and the employers shall report thereon to the provincial/municipal Labor, War Invalids and Social Affairs Services. Only after 20 days as from the date of reporting thereon to the provincial/municipal Labor, War Invalids and Social Affairs Services, can the employers issue disciplining decisions and be answerable for their own decisions."

6. Clause 1 of Article 12 is amended and supplemented as follows:

"1. When deciding to shorten the disciplining duration or cancel disciplines for those laborers who are disciplined in form of prolongation of salary grade promotion duration or transfer to lower-paid jobs, the employers shall issue written decisions and settle as follows:

For laborers who are disciplined with the prolongation of salary grade promotion duration, the salary grade promotion for laborers shall be made right after the decisions to shorten the discipline duration or cancel the disciplines are issued, if the laborers fully meet the conditions for salary grade promotion.

Those laborers who are disciplined with the transfer to lower-paid jobs shall be arranged to return to their former jobs under the signed labor contracts."

7. Article 18 is amended and supplemented as follows:

"1. Within three months at most after this Decree takes implementation effect, those units, which have not yet or have already had internal regulations on labor, must elaborate new regulations or make appropriate amendments and/or supplements and must register them at competent agencies.

2. For newly set up units, 6 months after they commence the operation, the employers must register the internal regulations on labor at the provincial/municipal Labor, War Invalids and Social Affairs Services."

8. To annul Article 2.

Article 2.- This Decree takes effect 15 days after its publication on the Official Gazette.

The Ministry of Labor, War Invalids and Social Affairs shall have to guide this Decree.

Article 3.- The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government, and the presidents of the People’s Committees of the provinces and centrally-run cities shall have to implement this Decree.