Nghị định 63/2015/NĐ-CP về lao động dôi dư trong công ty TNHH MTV Nhà nước

THE GOVERNMENT

Decree No.63/2015/ND-CP dated July 22, 2015 of the Government providing the policies towards redundant employment in accordance with the restructuring of state-owned one member limited companies

Pursuant to the Law on Government organization dated December 25, 2001;

Pursuant to the Labor Code dated June 18, 2012;

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

The Government promulgates the Decree providing for policies towards redundant employees due to the restructuring of state-owned one member limited companies.

Article 1. Scope of adjustment

This Decree provides for policies towards redundant employees in state-owned one member limited companies affiliated to Ministries, ministerial-level agencies, Governmental agencies, People’s Committees of provinces; parent companies of state-owned economic corporations, parent companies of state-owned general companies, parent companies of groups of companies - parent companies that are restructured according to the plans approved by competent agencies (hereinafter referred to as restructured companies), including:

1. Equitization, sale.

2. Conversion into multi-member limited liability companies.

3. Conversion into public service providers.

4. Merger, amalgamation, split-up, separation.

5. Dissolution, bankruptcy.

Article 2. Subject of application

1. Redundant employees in restructured companies specified in Article 1 of this Decree, including:

a) Employees on the list of regular employees of the restructured companies according to the regulations in Clause 1, 2, 3 and 4 Article 1 of this Decree that were recruited before April 21st, 1998 (when the Directive No. 20/1998/CT-TTg made by the Prime Minister on the promotion of restructuring and renovation of state-owned enterprises is applicable), including:

- Employees who were working for company, by the time of restructuring, the company cannot give them any job after taking every possible measure;

- Employees who are on the enterprises payrolls but have no work to do and, by the time of restructuring, the company still cannot give them any job;

- Employees working for agriculture or forestry companies undergoing restructuring process who, by the time of restructuring, are not given jobs or allocated land.

b) Employees contained in the list of regular employees of the  company restructured according to the regulations in Clause 5 Article 1 of this Decree that were recruited before April 26th, 2002 (when the Decree No. 41/2002/ND-CP dated April 11th, 2002 by the Government on policies towards redundant employees due to the restructuring of state-owned enterprises is applicable);

b) Employees contained in the list of regular employees of the company restructured according to the regulations in Clause 1, 2, 3 and 4 Article 1 of this Decree that were recruited on April 21st, 1998 and afterwards, by the time of restructuring, the company cannot give them any job after taking every possible measures;

d) Employees contained in the list of regular employees of the company restructured according to the regulations in Clause 1, 2, 3 and 4 Article 1 of this Decree that were recruited on April 26th, 2002 and afterwards.

2. People who are authorized by the restructured companies to carry out rights and responsibilities of the company towards the capital of the company invested in another enterprise and assume a specialized work in the management board in such enterprise (hereinafter referred to as representative of the capital of the company), including:

a) Representatives of the capital of the restructured companies specified in Clause 1, 2, 3 and 4 Article 1 of this Decree, by the time of restructuring/the expiration of authority, the company cannot give them any job after taking every possible measures;

b) Representatives of the capital of the restructured companies specified in Clause 5 of this Decree.

3. Any agencies, organizations, and individuals relating the implementation of the policies towards the redundant employees due to the restructuring of state-owned one member limited companies according to the regulations in this Decree.

Article 3. Policies towards redundant employees that are recruited before April 21st, 1998 or before April 26th, 2002

The policies towards the redundant employees specified in Points a and b Clause 1 Article 2 of this Decree by the time the competent agencies grant approval for the plans on labor arrangement or the Court begins the bankrupt procedures are specified as follows:

1. Male redundant employees from 55 years old to 59 years old and female redundant employees from 50 years old to 54 years old who have been paying social insurance for at least 20 years are eligible for retirement pension according to the regulations in Clause 1 Article 50 of the Law on social insurance 2006 (applicable to people who retire before January 01st, 2016) or according to the regulations in Clause 4 Article 54 of the Law on social insurance 2014 (applicable to people who retire from January 01st, 2016 or later) and are eligible for the following benefits:

a) Retirement pension is not reduced due to premature retirement;

b) A pension equivalent to 03-month salary shall be provided for every year of retirement (regardless of odd months) before the regular time specified in Point a Clause 1 Article 50 of the Law on social insurance 2006 (applicable to people who retire before January 01st, 2016) or in Point a Clause 4 Article 54 of the Law on social insurance 2014 (applicable to people who retire from January 01st, 2016 or later);

b) A pension equal to 01 month’s salary regulated by the Government shall be provided for every working year having social insurance

2. Male redundant employees from over 59 years old to under 60 years old and female redundant employees from over 54 years old to under 55 years old who have been paying social insurance for at least 20 years are eligible for retirement pension according to the regulations in Clause 1 Article 50 of the Law on social insurance 2006 (applicable to people who retire before January 01st, 2016) or according to the regulations in Clause 4 Article 54 of the Law on social insurance 2014 (applicable to people who retire from January 01st, 2016 or later) and are eligible for the following benefits:

a) Retirement pension is not reduced due to retirement before regular time;

b) A pension equal to 0.5 month’s salary regulated by the Government shall be provided for every working year having social insurance.

3. If a employee is eligible for retirement according to the regulations in Point a Clause 1 Article 50 of the Law on social insurance 2006 (applicable to people who retire before January 01st, 2016) or according to the regulations in Point a Clause 1 Article 54 of the Law on social insurance 2014 (applicable to people who retire from January 01st, 2016 or later) but still has to pay the social insurance premiums for not more that 06 more months to be eligible for retirement pension, then the remaining amount shall be paid in lump sum by the State to the pension funds and death benefit funds to handle the retirement. The level of payment for the remaining amount shall be equivalent to the social insurance premium of the month before the resignation that is paid by the employee and employer multiplied the number of remaining months.

4. Any redundant employees specified in Point a Clause 1 Article 2 of this Decree who is not eligible for the benefits prescribed in Clause 1, 2 and 3 of this Article shall have the labor contract terminated and are eligible for:

a) Redundancy pay according to the regulations in Article 49 of the Labor Code;

b) A subsidy for each year working at the restructured company as follows:

- 1.5 months’ salary regulated by the Government if the employee’s seniority is below 20 years;

- 0.5 month’s salary regulated by the Government if the employee’s seniority is 20 to below 25 years;

- 0.2 month’s salary regulated by the Government if the employee’s seniority is 25 years or more.

5. Any redundant employees specified in Point b Clause 1 Article 2 of this Decree who is not eligible for the benefits prescribed in Clause 1, 2 and 3 of this Article shall have the labor contract terminated and are eligible for:

a) Severance pay according to the regulations in Article 48 of the Labor Code;

b) A subsidy for each year working at the restructured company as follows:

- 02 months’ salary if the employee’s seniority is below 15 years;

- 0.7 months’ salary if the employee’s seniority is 15 years to below 20 years;

- 0.3 months’ salary if the employee’s seniority is 20 years or more.

Article 3. Policies towards redundant employees that are recruited from April 21st, 1998 afterwards or from April 26th, 2002 afterwards

By the time the competent agency grants approval for plans on labor arrangement or the Court begins the bankrupt procedures, redundant employees specified in Point c and d Clause 1 Article 2 of this Decree shall have the labor contract terminated and are eligible for:

1. Redundancy pay prescribed Article 49 of the Labor Code applicable to redundant employees in restructured companies specified in Clauses 1, 2, 3 and 4 Article 1 of this Decree.

2. Severance pay prescribed in Article 48 of the Labor Code applicable to redundant employees in restructured companies specified in Clauses 5 Article 1 of this Decree.

Article 5. Policies towards representatives of the capital of company

1. Representatives of the capital of the company prescribed in Clause 2 Article 2 of this Decree are eligible for appropriate benefits specified in Article 3 of this Decree (applicable to employees recruited before April 21st, 1998 or before April 26th, 2002) or in Article 4 of this Decree (applicable to employees recruited from April 21st, 1998 afterwards or from April 26th, 2002 afterwards).

2. Representatives of the capital of the company are eligible for severance pay given by enterprise invested by a restructured company for the actual working time of such representatives at such enterprise.

Article 6. Working time as the basis for calculation of benefits

1. Working time for calculation of redundancy pay, severance pay and subsidies specified in clauses 4 and 5 Article 3 and Article 4 of this Decree is the total of actual working time of the employees (the employee who presents at working place and is included in the payroll of the company) at the restructured company after deducting the period of time the employee pay the unemployment insurance premium according to the law provisions on unemployment insurance and the time for which the restructured company has given severance pay, redundancy pay (if any).

2. If the employee worked for the restructured company since before January 01st, 1995, then working time for calculation of redundancy pay, severance pay and subsidies specified in Clauses 4 and 5 Article 3 and Article 4 of this Decree include the working time for calculating redundancy pay, severance pay and subsidies specified in clause 1 of this Article and the actual working time of the employee at the State organizations (State administrative agencies, public service providers of the State, agencies affiliated to the armed forces paying by the State budget, wholly state-owned enterprises, state-owned plantation/afforestation).

3. Working time for calculating the benefits specified in Point c Clause 1, Point b Clause 2, Clause 4, Clause 5 Article 3 and Article 4 of this Decree is calculated by years (12 months); regarding odd months, under 01 month shall be skipped, from 01 month to under 06 months shall be considered a half of a year, from 06 months to 12 months shall be considered 01 year.

Article 7. Salary as the basis for benefits

1. Salary as the basis for benefits specified in Point b Clause 1 Article 3 of this Decree is prescribed as follows:

a) Regarding redundant employees specified in Clause 1 Article 2 of this Decree, salary as the basis for benefits is the average salary agreed in the labor contracts of 05 last years before the resignation;

b) Regarding the representatives of the capital of the company specified in Clause 2 Article 2 of this Decree, salary as the basis for benefits is the monthly salary on which social insurance premiums are paid of the last 05 years before the resignation.

2. Salary as the basis for calculating the redundancy pay and severance pay specified in Point a Clause 4, Point a Clause 5 Article 3 and Article 4 of this Decree and the salary as the basis for calculating the subsidies specified in Point b Clause 5 Article 3 of this Decree is prescribed as follows:

a) Regarding redundant employees specified in Clause 1 Article 2 of this Decree, salary as the basis for calculating the pay is the average salary agreed in the labor contracts of 06 constant months before the resignation;

b) Regarding the representatives of the capital of the company specified in Clause 2 Article 2 of this Decree, salary as the basis for calculating the pay is the average salary agreed in the labor contracts of 06 constant months before being authorized to take on the power and responsibilities of the company towards their investment in another enterprise.

Article 8. Fundings for the implementation of policies towards redundant employees in restructured companies

1. Fundings for the implementation of policies towards redundant employees specified in Article 3 of this Decree and the representatives of the capital of the company are prescribed as follows:

a) Regarding companies restructure according to the regulations in Clause 1 Article 1 of this Decree, fundings for the implementation of policies towards redundant employees shall be given by the money from the initial sale of shares or money from the sale of the enterprise; if the money is insufficient, an subsidy from Enterprise Arrangement and Development Fund shall be provided;

b) Regarding companies restructured according to the regulations in Clauses 2, 3 and 4 Article 1 of this Decree, fundings for the implementation of policies towards redundant employees shall be covered by Enterprise Arrangement and Development Fund shall be provided;

c) Regarding companies restructured according to the regulations in Clause 5 Article 1 of this Decree, fundings for the implementation of policies towards redundant employees shall be given by the income according to the law provisions; if the money is insufficient, a subsidy from Enterprise Arrangement and Development Fund shall be provided.

2. Fundings for the implementation of policies towards redundant employees specified in Article 4 of this Decree and the representatives of the capital of the company are prescribed as follows shall be included in production and business costs of the restructured company.

Article 9. Responsibilities of restructured companies and the companies after restructuring

1. Responsibilities of restructured companies:

a) Recheck the organizational structure of divisions, system of norms, positions in each groups, workshops, divisions;

b) Depending on the development strategy of the company after restructuring, establish a plan on use of employees according to the regulations in Article 46 of the Labor Code ensuring the effective use of employees;

c) Cooperate with the representative organizations of employees at the establishment organizing Labor conference to collect suggestions about plans on use of employees and handling of redundant employees, request competent agencies to approve; publish the plans on use of employees and handling of redundant employees in companies;

d) Propagate, disseminate the policies on redundancy to employees in the company;

dd) Provide benefits for redundant employee according to the regulations in this Decree; provide the fundings according to the law provisions;

e) Report to the owner the solution of redundancy according to the regulations in this Decree.

2. Responsibilities of companies after restructuring:

a) Every year, conduct assessment of the recruitment and use of employees of the company;

b) Give the redundancy pay/severance pay to employees transferring from restructured companies when such employees lose or resign from their job after the restructuring for the actual time working at the companies after restructuring and the actual time working at restructured companies, including the time such employees working at other state-owned companies who transfer to restructured companies before January 01, 1995 and have not received redundancy pay/severance pay.

Article 10. Organization responsibilities

1. Responsibilities of the Ministry of Labor, War Invalids and Social Affairs:

a) The Minister of Labor, War Invalids and Social Affairs is responsible for providing guidance on the implementation of this Decree;

b) Monitor the implementation of policies towards redundant employees according to the regulations in this Decree;

c) Every year, periodically reckon up and report to the Prime Minister the implementation of this Decree.

2. Responsibilities of the Ministry of Finance:

a) Guide the restructured companies to provide the benefits and make statements of funding for policies towards redundant employees according to the regulations in this Decree;

b) Receive the documents, conduct appraisal and give decision on taking money from Enterprise Arrangement and Development Fund to implement the policies towards redundant employees according to the regulations in this Decree;

c) Direct the State Capital and Investment Corporation to draw on its fund, supervise the provision of benefits and making of statements by restructured companies within the coverage of the Enterprise Arrangement and Development Fund, report the management and use of the Enterprise Arrangement and Development Fund for general report;

d) Monitor the payout of Enterprise Arrangement and Development Fund for redundant employees;

dd) Cooperate with the Ministry of Labor, War Invalids and Social Affairs in the inspection and monitoring of the implementation of policies towards redundant employees according to the regulations in this Decree;

e) Every year, periodically collect and report to the Prime Minister the management and use of Enterprise Arrangement and Development Fund, concurrently report to the Ministry of Labor, War Invalids and Social Affairs for collection and general supervision.

3. Responsibilities of social insurance:

a) Guide the collection of social insurance money according to the regulations in this Decree;

b) Carry out the social insurance scheme for employees according to the regulations in this Decree and the guidance of the Ministry of Labor, War Invalids and Social Affairs.

4. Ministries, ministerial-level agencies, Governmental agencies, People’s Committees of provinces shall take responsibilities towards the affiliated restructured companies as follows:

a) Guide the restructured companies to draw up plans on use of employees according to the law provisions and implement the policies towards redundant employees according to the regulations in this Decree;

b) Grant approval for the plans on use of employees and handling of redundant employees for each restructured company specified Article 1 of this Decree;

c) Establish an organization to carry out the policies towards redundant employees in companies that are dissolved or bankrupt;

d) Monitor the implementation of policies towards redundant employees of restructured companies according to the regulations in this Decree;

dd) Every year, periodically report to the Ministry of Labor, War Invalids and Social Affairs the implementation of policies towards redundant employees for collection and report to the Prime Minister.

5. Request Vietnam General Confederation of Labor to:

a) Direct the organization representing the employees at the establishment to cooperate with restructured companies to propagate and disseminate the policies towards redundant employees according to the law provisions; contribute in the plans on use of employees; supervise the provision of benefits for redundant employees of restructured companies;

b) Cooperate with the Ministry of Labor, War Invalids and Social Affairs, the Ministry of Finance and the owners in monitoring the implementation of policies towards redundant employees of restructured companies according to the regulations in this Decree.

Article 11. Effect

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

The Decree No. 91/2010/ND-CP dated August 20th, 2010 by the Government providing for the policies towards redundant employees due to the restructuring of state-owned one member limited companies is annulled by the effect of this Decree.

Any restructured companies having plans on handling of redundant employees approved by a competent agency before the effective date of this Decree shall comply with the regulations in the Decree No. 91/2010/ND-CP dated August 20th, 2010 by the Government.

2. Any one member limited companies owned by a political organization or a socio-political organizations that carries out the restructuring according to the plans approved by a competent agencies may apply the regulations in this Decree to handle the policies towards redundant employees. Funding for handling of policies towards redundant employees taken from the initial sale of shares or sale of enterprises (applicable to companies that are equitized or sold) or from other lawful sources (applicable to companies that are dissolved, bankrupt) or from lawful funding from the owners (applicable to companies that are transformed into multi-member limited liability companies or public service providers, companies that are merged, amalgamated, split up or separated); if such funding are not sufficient, a supplement from other lawful funding shall be provided according to the decision of the owners.

3. Any state-owned companies, agriculture companies, forestry companies having not been transformed into State-owned limited liability companies that is restructured according to the regulations on Article 1 of this Decree shall carry out the policies towards redundant employees according to the regulations in this Decree.

4. Any public service providers carrying out the equitization according to the decision of a competent agency may apply the regulations in this Decree to implement the policies towards redundant employees/officials in joint-stock companies. Fundings for implementing the policies towards redundant employees/officials in joint-stock company are taken from the initial sale of shares when carrying out the equitization of public service providers; if the funding are not sufficient, a supplement taken from Enterprise Arrangement and Development Fund shall be provided.

5. Any limited liability companies owned by the parent company of a state-owned economic corporation, parent company of a state-owned general company, parent company of a group of companies - parent companies specified in Article 1 of this decree that carries out the restructuring according to the plans approved by a competent agency may apply the regulations in this Decree to implement the policies towards redundant employees. Funding for the implementation of policies towards redundant employees, representatives of the capital of the company shall comply with the regulations in Article 8 of this Decree. If the funding is not sufficient, a supplement taken from Enterprise Arrangement Fund at state-owned economic corporations, state-owned general companies, groups of companies-parent companies shall be provided.

6. The salary as the basis for calculating the benefits specified in Point b Clause 1, Clause 3, Clause 4, Clause 5 Article 3 and Article 4 of this Decree shall be the amount for calculating social insurance premium according to the regulations and guidance of competent agencies until the restructured company formulates the pay scale and payroll according to the regulations in the Decree No. 49/2013/ND-CP dated May 14th, 2013 by the Government.

7. Apart from the benefits specified in Articles 3, 4 and 5 of this Decree, state-owned one member limited companies that are restructured according to the regulations in Article 1 of this Decree should provide additional support for redundant employees taken from the lawful fundings of the company after discussing with representative organizations of employees at the company.

8. Ministers, Heads of ministerial-level agencies, Heads of Governmental agencies, the President of the People’s Committees of provinces, Member assemblies of state-owned economic corporations, state-owned general companies shall be responsible for implementing this Decree./.

For the Government

The Prime Minister

Nguyen Tan Dung