Thông tư 10/2020/TT-BLĐTBXH nội dung HĐLĐ, công việc ảnh hưởng xấu tới sinh sản, nuôi con

CIRCULAR

Detailing and guiding the implementation of a number of articles of the Labor Code regarding contents of a labor contract, collective bargaining councils and occupations and jobs that are harmful to reproduction and parenting functions

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Pursuant to the Labor Code dated November 20, 2019;

Pursuant to the Government’s Decree No. 14/2017/ND-CP dated February 17, 2017, defining the functions, rights, responsibilities and organizational structure of the Ministry of Labor, War Invalids and Social Affairs;

At the proposal of Directors of the Department of Industrial Relations and Wage and the Bureau for Safe Work;

The Minister of Labor, War Invalids and Social Affairs hereby promulgates the Circular on detailing and guiding the implementation of a number of articles of the Labor Code regarding contents of a labor contract, collective bargaining councils and occupations and jobs that are harmful to reproduction and parenting functions.

Chapter I
GENERAL PROVISIONS

Article 1. Scope of regulation

This Circular details and guides the implementation of a number of articles and clauses of the Labor Code as follows:

1. Contents of a labor contract under Clauses 1, 2 and 3, Article 21.

2. Functions, tasks and operation of collective bargaining councils under Clause 4, Article 73.

3. The List of occupations and jobs that are harmful to reproduction and parenting functions under Clause 1, Article 142.

Article 2. Subjects of application

1. Employees and employers as prescribed in Clauses 1, 2 and 3, Article 2 of the Labor Code.

2. Other agencies, organizations and individuals involved in the implementation of this Decree.

Chapter II

CONTENTS OF A LABOR CONTRACT

Article 3. Major contents of a labor contract

The major contents of a labor contract prescribed in Clause 1, Article 21 of the Labor Code are provided as follows:

1. Information about name and address of the employer and full name and title of the person entering into the labor contract on the employer’s side, which is provided as follows:

a) Name of the employer: For an enterprise, agency, organization, cooperative or union of cooperatives, it shall be the name of the enterprise, agency, organization, cooperative or

or union of cooperatives that is shown in the enterprise, cooperative or cooperative union registration certificate or the investment registration certificate or written approval of investment policy or decision on establishment of organization or agency; for a cooperative group, it shall be the name of the cooperative group shown in the cooperative contract; for a household or individual, it shall be the name of the household’s representative or the individual name as shown in his/her granted identity card or citizen identification card or passport;

b) Address of the employer: For an enterprise, agency, organization, cooperative or union of cooperatives, it shall be the address shown in the enterprise, cooperative or cooperative union registration certificate or the investment registration certificate or written approval of investment policy or decision on establishment of organization or agency; for a cooperative group, it shall be the address shown in the cooperative contract; for a household or individual, it shall be the residence address of that household or individual; telephone number and e-mail address (if any);

c) Full name and title of the person entering into the labor contract on the employer’s side: shall be the full name and title of the person competent to enter into the labor contract under Clause 3, Article 18 of the Labor Code.

2. Information about the full name, date of birth, gender, place of residence, serial number of the citizen identity card or citizen identification card or passport of the person entering into the labor contract on the employee’s side and other information, including:

a) Full name, date of birth, gender, place of residence, telephone number, e-mail address (if any), serial number of the citizen identity card or citizen identification card or passport of the person entering into the labor contract on the employee’s side, which is issued by the competent agency, under Clause 4, Article 18 of the Labor Code;

b) Number of a work permit or written confirmation of exemption from work permit granted by a competent agency to a foreign employee;

c) Full name, residence address, serial number of the identity card or citizen identification card or passport, telephone number and e-mail address (if any) of the at-law representative, for an employee who is under 15 years old.

3. Job and workplace, which are provided as follows:

a) Job means a job that the employee must perform;

b) Workplace of the employee means scope of agreed job and place where the employee performs the job. If the employee regularly works in different places, these workplaces shall be fully indicated.

4. Term of the labor contract includes the time of labor contract performance (the number of months or days), the starting or terminating time of labor contract performance (for a definite-term labor contract); and the starting time of labor contract performance (for an indefinite-term labor contract).

5. Job- or title-based wage, form of wage payment, time of wage payment, wage-based allowances and other additional payments, which are provided as follows:

a) Job- or title-based wage means the wage calculated according to the time of that job or title under wage scales and wage tables formulated by the employer in accordance with Article 93 of the Labor Code. For an employee enjoying a product- or piecework-based wage, it is the time-based wage level used to determine product unit cost or piecework-based wage.

a) Wage-based allowances as agreed by the two parties:

b1) Wage allowances used to compensate for poor working conditions, complexity of jobs, low living standards or labor attraction which are neither included nor fully included in the wage level agreed upon in the labor contract;

b2) Wage allowances related to the employee’s process of job performance and results of job performance.

c) Other additional payments as agreed by the two parties:

c1) Additional amounts, which can be determined as specific amounts in addition to the wage level agreed upon in the labor contract, and are regularly paid in each period of wage payment;

c2) Additional amounts, which cannot be determined as specific amounts in addition to the wage level agreed upon in the labor contract, and are regularly or irregularly paid in each period of wage payment relating to the employee’s process of job performance and results of job performance.

Other regimes and welfares such as bonus as prescribed in Article 104 of the Labor Code, bonus for initiatives; mid-shift meal payment; allowances for gasoline, telephone, travel, accommodation, and childcare; allowances for employees whose relatives die or get married, for employees’ birthdays, or for employees facing difficulties caused by labor accidents or occupational diseases; and other supports and allowances, shall be written in a separate item in the labor contract.

d) Forms of wage payment as agreed by the two parties under Article 96 of the Labor Code;

dd) Wage payment period as agreed by the two parties under Article 97 of the Labor Code.

 6. Regimes on wage-grade promotion and wage raise: Requirements, duration and wage level following the rank promotion and wage raise as agreed by the two parties or according to the collective labor agreement or the employer’s regulations.

7. Working time and rest time: as agreed by the two parties or according to the internal working rules, employer’s regulations, collective labor agreement and law regulations.

8. Personal protective equipment for the employee: Type of personal protective equipment as agreed by the two parties or according to the collective labor agreement or the employer’s regulations and the law on occupational safety and hygiene.

9. Social insurance, unemployment insurance and health insurance: in accordance with law provisions on labor, social insurance, health insurance and unemployment insurance.

10. Training, further training, and improvement of occupational qualifications and skills: rights, obligations and interests of the employer and the employee to ensure time and fund for training, retraining and occupational skill improvement.

Article 4. Protection of business secrets or technological secrets

1. When the employee performs a job directly related to business secrets or technological secrets as prescribed by law, the employer may reach an agreement with the employee on the content of protection of business secrets or technological secrets in the labor contract or a separate document in accordance with law provisions.

2. An agreement on protection of business secrets or technological secrets may contain principal contents as follows:

a) The List of business secrets or technological secrets;

b) The scope of using business secrets or technological secrets;

c) Duration of protection of business secrets or technological secrets;

d) Method of protection of business secrets or technological secrets;

dd) Rights, obligations and responsibilities of the employer and employee during the period of protection of business secrets or technological secrets;

e) Handling of violations against the agreement on protection of business secrets or technological secrets.

3. When detecting the employee violating the agreement on protection of business secrets or technological secrets, the employer shall have rights to ask the employee for compensation as agreed by the two parties. The order and procedures for compensation are as follows:

a) In case where the employee is detected to commit acts of violations during the performance of his/her labor contract, he/she shall be handled according to the order and procedures for compensation for damage specified in Clause 2, Article 130 of the Labor Code;

b) In case where the employee is detected to commit acts of violations after terminating his/her labor contract, he/she shall be handled according to the civil law and relevant laws.

4. With regard to business secrets and technological secrets in the list of state secrets, the law on protection of state secrets shall be complied with.

Article 5. Major contents of a labor contract in agriculture, forestry, fishery or salt production sectors

1. For an employee working in agriculture, forestry, fishery or salt production sector, his/her labor contract shall contain major contents of a labor contract as prescribed in Clause 1, Article 21 of the Labor Code and Article 3 of this Circular. For simple jobs performed in a short time or according to season, the two parties may omit some agreed contents on wage-grade promotion as prescribed at Point e, Clause 1, Article 21 and training, further training, and improvement of occupational qualifications and skills as prescribed at Point k, Clause 1, Article 21 of the Labor Code.

2. For jobs and workplaces directly affected by a natural disaster, fire or bad weather conditions, the two parties may agree to add contents on contract performance settlement measures to the labor contract, ensuring the compliance with the actual conditions and law regulations.

Chapter III

COLLECTIVE BARGAINING COUNCILS

Article 6. Establishment of the collective bargaining council

1. When there is a demand on collective bargaining involving more than one enterprise through a collective bargaining council, on the basis of consensus, the employer and grassroots-level employees’ representative organizations of enterprises participating in the collective bargaining (hereinafter referred to as parties) shall assign one representative to send a written request for establishing a collective bargaining council to the People’s Committee or province or centrally-run city (hereinafter referred to as the provincial-level People’s Committee) of the locality where the enterprises are headquartered or of the locality chosen by the parties in accordance with Clause 1, Article 73 of the Labor Code.

2. A written request for establishing a collective bargaining council must contain the principal information as follows:

a) The List of enterprises expected to participate the collective bargaining involving more than one enterprise, which clearly state the enterprises’ names; their head offices; full names of the at-law representatives of enterprises; full name of the representative of the grassroots-level employees’ representative organization;

b) Full name and title or position of person who is voted to act as the Chairperson of the collective bargaining council by both parties, enclosed with the written consent of that person. In case where the written request does not mentioned the Chairperson of the collective bargaining council, such position shall be decided by the Chairperson of the provincial-level People’s Committee;

c) The List of representatives of each party participating the bargaining in the collective bargaining council;

d) The expected content agreed by both parties, in term of bargaining contents, operation time of the collective bargaining council, collective bargaining plans and supports provided by the collective bargaining council (if any).

3. Within 20 working days, from the date on which the written request from representatives of parties in the collective bargaining involving more than one enterprise, the provincial-level People’s Committee shall be responsible for issue a decision on establishing a collective bargaining council. In case of failing to decide on establishing a collective bargaining council, it shall have a written reply, clearly stating reasons.

4. The provincial-level Department of Labor, War Invalids and Social Affairs shall assume the prime responsibility for, and coordinate with the provincial Confederation of Labor, employers' representative organizations at provincial level and enterprises in, proposing to establish a collective bargaining council and related organizations and enterprises to advise and propose the provincial-level People’s Committee a plan on establishing a collective bargaining council. Such a plan shall contain the following principal contents:

a) The composition of the collective bargaining council includes:

a1) Chairperson of the collective bargaining council;

a2) Representatives of the provincial-level People's Committee;

a3) Representatives participating in collective bargaining of parties;

a4) Other departments (if any).

b) Functions and tasks of a collective bargaining council, chairperson of a collective bargaining council and other departments (if any).

c) Operation time of the collective bargaining council.

d) Operation plan of the collective bargaining council.

dd) Expenses for the collective bargaining council’s operation.

e) The draft decision on establishment of the collective bargaining council.

In case where the provincial-level Department of Labor, War Invalids and Social Affairs requests not to set up a collective bargaining council, the reason must be clearly stated.

5. During the operation, when it is necessary to change the chairperson of the collective bargaining council, the representative of the provincial-level People's Committee, the functions, tasks, plans and operation time of the collective bargaining council suitable for the actual situation, the chairperson of the incumbent collective bargaining council shall request the provincial-level People's Committee to consider and decide.

Within 07 working days, from the date on which the written request from the incumbent collective bargaining council is received, the provincial-level People’s Committee shall be responsible for reviewing, amending and supplementing the decision on establishing a collective bargaining council. In case there is no amendment or supplement is made, a written reply, which clearly states the reason is required.

Article 7. Functions of a collective bargaining council

The collective bargaining council has the function of organizing the representatives of the parties to conduct collective bargaining in accordance with the Labor Code.

Article 8. Tasks of a collective bargaining council

1. Making a plan to conduct collective bargaining on the basis of the proposal from the parties and the decision on establishment of the collective bargaining council.

2. Organizing and coordinating meetings to negotiate by representatives of the parties.

3. Supporting and providing related information so that representatives of the parties can negotiate.

4. Supporting the parties to collect comments on the draft of the collective labor agreement involving many enterprises in accordance with Clauses 2 and 3, Article 76 of the Labor Code.

5. Organizing the signing of the collective labor agreement involving many enterprises in accordance with Clause 4, Article 76 of the Labor Code.

6. Monitoring the implementation of the collective labor agreement involving many enterprises according to the decision on establishment of the collective bargaining council, ensuring it is consistent with the time of operation of the council.

7.  Reporting on the operation results of the collective bargaining council to the provincial-level People’s Committee and the provincial-level Department of Labor, War Invalids and Social Affairs at the same time.

8. Performing other tasks at the request of the parties and tasks in the decision on establishment of the collective bargaining council.

Article 9. Operation of a collective bargaining council

1. Collective bargaining council works through its meetings.

2.  Representatives participating in the bargaining of the employer and the grassroots-level employees’ representative organization shall negotiate according to Clauses 1 and 2, Article 72 of the Labor Code and decide on the result of the negotiation through a meeting of the Council.

3. Chairperson of the collective bargaining council shall be responsible for:

a) Organizing and coordinating meetings of the council to negotiate by representatives of the parties as prescribed;

b) Considering, adding or replacing the representative participating in the bargaining of each party; accepting proposal to participate in the collective bargaining council of other enterprises after receiving consents from parties’ representatives in the collective bargaining council;

c) Deciding on establishment of an assisting body for the council and the chairperson of the council to support the collective bargaining activities of the parties.

4. The representative of the provincial-level People’s Committee shall be responsible for supporting and providing necessary information for the parties to negotiate.

5. The collective bargaining council dissolves by itself when the time of operation is over according to the decision on the establishment of the collective bargaining council. If the parties agree otherwise, the chairperson of the collective bargaining council shall request the provincial-level People's Committee to consider and decide.

6. Expenses for operation of a collective bargaining council shall be contributed as agreed by the employer and grassroots-level employees’ representative organization at enterprises participating the bargaining, and mobilized from other lawful sources in accordance with law provisions.

Chapter IV

THE LIST OF OCCUPATIONS AND JOBS THAT ARE HARMFUL TO REPRODUCTION AND PARENTING FUNCTIONS

Article 10. The list of occupations and jobs that are harmful to reproduction and parenting functions

The list of occupations and jobs that are harmful to reproduction and parenting functions is promulgated in the Appendix attached to this Circular, including:

1. Occupations and jobs that are harmful to reproduction and parenting functions of female employees;

2. The list of occupations and jobs that are harmful to reproduction functions of male employees.

Article 11. Responsibilities of employers and employees in implementing the list of occupations and jobs that are harmful to reproduction and parenting functions

1. The employer shall be responsible for:

a) Making a public announcement so that employees know about occupations and jobs that are harmful to reproduction and parenting functions at the workplace (hereinafter referred to as occupations and jobs that are harmful to reproduction and parenting functions);

b) Providing adequate information on harms as well as measures to prevent and control dangerous and harmful factors of occupations and jobs that are harmful to reproduction and parenting functions for employees to choose, decide to work; conduct pre-employment health check-ups, periodic health check-ups, occupational diseases and ensure occupational safety and health conditions in accordance with the law, when employing employees working as occupations jobs that are harmful to reproduction and parenting functions.

2. The employees shall:

a) Thoroughly learn about occupations and jobs that are harmful to reproduction and parenting functions to consider and decide on the conclusion, amendment, supplementation, and performance of labor contracts according to regulations;

b) Comply with regulations on occupational safety and hygiene when performing occupations and jobs that are harmful to reproduction and parenting functions in accordance with labor contracts.

Chapter V
IMPLEMENTATION PROVISIONS

Article 12. Effect

1. This Circular takes effect on January 01, 2021.

2. From the effective date of this Circular, the following Circulars cease to be effective:

a) Circular No. 47/2015/TT-BLDTBXH dated November 16, 2015 of the Minister of Labor, War Invalids and Social Affairs, guiding the implementation of a number of articles on labor contract, labor discipline and material responsibility provided in the Government’s Decree No. 05/2015/ND-CP of January 12, 2015, detailing and guiding a number of provisions of the Labor Code;

b) Circular No. 26/2013/TT-BLDTBXH dated October 18, 2013 of the Minister of Labor, War Invalids and Social Affairs, promulgating the list of jobs in which the employment of female workers is prohibited.

3. Wage used as a basis for calculating severance pay or job loss allowance is the average wage paid under the labor contract, including wage, wage allowances and other additional payments as provided at Point a, item b1, Point b and item c1, Point c, Clause 5, Article 3 of this Circular, for 06 consecutive months before the employee quits or loses the job.

Any problems arising in the course of implementation should be reported to the Ministry of Labor, War Invalids and Social Affairs for prompt guidance and supplementation./.