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Nghị định hướng dẫn về hợp đồng lao động 2023

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THE
GOVERNMENT
——-

SOCIALIST
REPUBLIC OF VIET NAM
Independence – Freedom – Happiness
————

No:
44/2013/ND-CP

Hanoi, May 10,
2013

 

DECREE

DETAILING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LABOR CODE
REGARDING LABOR CONTRACTS

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

Pursuant to the June 18, 2012
Labor Code;

Pursuant to the November 29, 2005
Law on Enterprise;

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

The Goverment promulagtes the
Decree detailing the implementation of a number of articles of the labor code
regarding labor contracts,

Chapter 1.

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Article 1. Scope
of regulation

This Decree details the
implementation of the Labor Code regarding participation in compulsory social
insurance, unemployment insurance and medical insurance of employees when enter
into labor contracts with many employers; content of labor contracts applied to
employees who are hired to do as directors in enterprises with capital
contributed  by the State; the orders of and procedures for
announcement of invalid labor contracts of labor inspectorate and handling of
invalid labor contracts.   

Article 2.
Subjects of application

1. Employees as prescribed in clause 1
Article 3 of the Labor Code.

2. Employers as prescribed in clause
2 Article 3 of the Labor Code.

3. The agencies, organizations and
individuals relating to contents specified in Article 1 of this Decree.

Article 3.
Interpretation of terms

In this Decree, the following terms
are construed as follows:

1. Enterprises with capital
contributed by the State
mean enterprises operating in
accordance with the Law on enterprises of which the State holds under 100% of
the charter capital.

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3. Heads of inspectorate teams mean the heads of the inspectorate teams implementing the task of labor
inspectorate, including: Heads of inspectorate teams of the provincial
Departments of Labor, Invalids and Social Affairs, the Ministry of Labor,
Invalids and Social Affairs and Heads of specialized inspectorate teams of
Departments, General Departments attached the Ministry of Labor, Invalids and
Social Affairs. 

Chapter 2.

PARTICIPATION IN
COMPULSORY SOCIAL INSURANCE, UNEMPLOYMENT INSURANCE AND MEDICAL INSURANCE OF
EMPLOYEES WHEN ENTER INTO LABOR CONTRACTS WITH MANY EMPLOYERS
 

Article 4.
Responsibility for participation in compulsory social insurance, unemployment
insurance and medical insurance of employers and employees
 

1. Responsibility for participation
in compulsory social insurance, unemployment insurance and medical insurance of
employers and employees:

a. Employees when enter into labor
contracts with many employers and employees and employers subject to
participation in compulsory social insurance and unemployment insurance, the
employees and employers of the first labor contracts shall be responsible for
participation in compulsory social insurance and unemployment insurance as
prescribed by law.   

The employers of remaining labor
contracts shall be responsible for paying the amounts equal to the payable
levels of compulsory social insurance and unemployment insurance belonging to
their responsibility as prescribed by law at the same time with the salary term
of employees.

b. When a labor contract which
employee and employer participating in the compulsory social insurance and
unemployment insurance terminates or changes and the employee and employer not subject to participation in the
compulsory social insurance and unemployment insurance, the employee and employer
subject to participation in the compulsory social insurance and unemployment
insurance of the following labor contract shall participate in the compulsory
social insurance and unemployment insurance as prescribed by law.  

2. Responsibility for participation
in compulsory medical insurance of employers and employees:

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The employers of remaining labor
contracts shall be responsible for paying the amounts equal to the payable
levels of medical insurance belonging to their responsibility as prescribed by
law on medical insurance at the same time with the salary term of employees.

b. When a labor contract which employee
and employer participating in the compulsory medical insurance terminates or
changes and the employee and employer not subject to participation in the
compulsory medical insurance, the employee and employer subject to
participation in the compulsory medical insurance of the labor contract with
the highest salary level in the remaining labor contracts shall be responsible
for participation in the compulsory medical insurance as prescribed by law.

3. The change of responsibility for
participation in compulsory social insurance, unemployment insurance and
medical insurance as prescribed in point b, clause 1, point b clause 2 of this
Article is provided as follows: 

a. Employees and employers shall be
responsible for amending and supplementing contents on the compulsory social
insurance, unemployment insurance and medical insurance in labor contracts as
prescribed by law;

b. Employees shall be responsible for
notification and sending of the social insurance books, medical insurance cards
and other relevant papers to employers of the following labor contract for
implementation.

4. Employees shall be responsible for
notification and enclosing copies of labor contracts which have been signed or
amended and supplemented or terminated to the remaining employers for
information.

Article 5.
Responsibilities of employers with respect to employees suffering occupational
accidents or occupational illnesses

1. If employees suffer occupational
accidents or occupational illnesses during the course of implementation of
work, task under labor contract with employers where participating in the
compulsory social insurance, employers and social insurance organizations shall
solve regimes for employees as prescribed by law.  Within 02 working days,
after employees suffer occupational accidents or are defined to suffer
occupational illness, employers shall notify in writing the employers of the
remaining labor contract about health status of employees.

2. If employees suffer occupational
accidents or occupational illnesses during the course of implementation of
work, task under labor contract with employers which do not participate in the
compulsory social insurance and medical insurance for employees, employers
shall:

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b. Pay full salary under labor
contract for employees who suffer occupational accidents or occupational
illness and have to stop work in treatment duration;

c. Pay compensation or allowance for
employees as prescribed in clause 3 or clause 4 Article 145 of the Labor Code;

d. Notify in writing the employers of
remaining labor contracts about the health status of employees.

3. Employers of labor contracts are
not entitled to unilaterally terminate the labor contracts with employees
suffering occupational accidents, occupational illness in the treatment
duration, except case specified in point b clause 1 Article 38 of the Labor
Code.

When employees have recovered health,
the employers and employees may agree on further implementation of labor
contracts or amending and supplementing content of labor contract or
termination of the signed labor contracts as prescribed by law.

Chapter 3.

CONTENT OF LABOR
CONTRACTS APPLIED TO EMPLOYEES WHO ARE HIRED TO DO AS DIRECTORS IN ENTERPRISES
WITH CAPITAL CONTRIBUTED  BY THE STATE

Article 6.
Content of labor contracts applied to employees who are hired to do as
directors in enterprises with entire capital owned by the State

1. Name, address of enterprises with
entire capital owned by the State; full name; date of birth; ID number of the
Chairperson of Members’ Council or the President of Company.

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3. Two parties shall define the
duration of labor contract that is between full 12 months and 36 months.

Time limit for the employer and the
hired director to agree for termination of labor contract or extension of labor
contract or concluding a new labor contract shall be agreed by two parties but
not exceed 45 days before the expiry day of labor contract.  In case of
prolonging duration of labor contract, duration of labor contract shall be
agreed by parties but not exceed 12 months.

4. Works entitled to do, works
not entitled to do and responsibilities for implementation of
work of the hired directors shall comply with regulations of law.

5. Working loacation of the hired directors.

6. Content, time limit,
responsibilities for protection of business secret, technological secret of the
hired directors and handling of offences.

7. Rights and obligations of the
employer, including:

a. To assure capital, assets and
other force sources for the hired director to implement his/her work.

b. To provide information for the
hired director to implement his/her work;

c. To inspect, supervise, assess the
efficiency of work implementation of the hired director;

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dd. Other rights and obligations as
prescribed by law;

e. Other rights and obligations
agreed by two parties.

8. Rights and obligations of the
hired director, including:

a. To implement the works already
concluded;

b. To report difficulties during the
course of implementation of work already concluded and
propose remedial solutions;

c. To report situation of management
and use of capital, assets, laborers and other force sources;

d. Other rights and obligations as
prescribed by law;

e. Other rights and obligations
agreed by two parties.

9. Benefits of the hired director,
including:

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b. Bonus, advance amounts and payment
of bonus;

c. The time for work and the time for
rest;

d. Social insurance, medical
insurance, unemployment insurance as prescribed by law;

dd. Training and improving the
qualifications and skills to implement the works already concluded;

e. Equipment for working,means for
travelling, information, contact, and other supplementations;

g. Other benefits agreed by two
parties.

10. Conditions, process, procedures
for amending and supplementing labor contract, unilaterally terminating labor
contract.

11. Powers and duties of the employer
and the hired director when labor contract is terminated.

12. Labor discipline, material
duties, settlement of labor disputes and complaints.

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Article 7.
Content of labor contracts applied to employees who are hired to do as
directors in enterprises with capital contributed by the State

Content of labor contract applied to
employees who are hired to do as directors in enterprises with capital
contributed by the State shall be agreed by Members’ Council or Board of Directors
and the hired director for application of provisions in Artice 6 of this
Decree.

Chapter 4.

THE ORDERS OF
AND PROCEDURES FOR ANNOUNCEMENT OF INVALID LABOR CONTRACTS OF LABOR
INSPECTORATE AND HANDLING OF INVALID LABOR CONTRACTS

SECTION 1. THE
ORDERS OF AND PROCEDURES FOR ANNOUNCEMENT OF INVALID LABOR CONTRACTS OF LABOR
INSPECTORATE

Article 8. The
competence of announcement of invalid labor contracts of labor inspectorate

The Chief Inspectors of the
provincial Departments of  Labor, Invalids and Social Affairs have the
competence to announce invalid labor contracts.

Article 9. The
orders of and procedures for announcement of invalid labor contracts of labor
inspectorate

1. During inspection or settlement of
complaints, denunciations on labor, if detect content of labor contract to be
violated and belong to one of cases specified in Article 50 of the Labor Code,
the head of inspectorate team or independent labor inspectors or persons
assigned the specialized inspectorate task shall make record on violated cases
and suggest employers, employees to amend and supplement the violated labor
contracts.

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3. Within 03 working days, after the
expiry date of amending and supplementing the violated labor contracts, if two
parties fail to amend and supplement, the head of inspectorate team or
independent labor inspectors or persons assigned the specialized inspectorate
task shall send the record together with copies of violated labor contracts to
the Chief Inspectors of the provincial Department of Labor, Invalids and Social
Affairs where enterprise locates its head office.

4. Within 03 working days, after
receiving the record on violated case, the Chief Inspectors of the provincial
Department of Labor, Invalids and Social Affairs shall consider and issue
decision on announcement of the invalid labor contracts.

5. Decision on announcement of the
invalid labor contracts must be sent to the employer and each employee related
to the invalid labor contracts, organization representing labor collective and
the labor state management agency where the enterprise located its head office.

SECTION 2.
HANDLING OF THE INVALID LABOR CONTRACTS

Article 10.
Handling of the partial invalid labor contracts

1. Within 03 working days, after
receiving the decision on announcement of the partial invalid labor contracts,
the employer and employee must amend and supplement the labor contract by
signing Annex of labor contract or concluding new labor contract as prescribed
by law.

2. In time since labor contract is
announced to be partially invalid untill two parties amend and supplement the
part already announced to be invalid, rights and interests or employee shall be
solved according to labor regulations, collective labor agreement (if any) and
law provisions on labor.

If the invalid labor contract has
salary lower than law provisions on labor, labor regulations, collective labor
agreement that are applying, two parties may re-agree as prescribed in clause 1
of this Article.  The employer shall return the difference between the
agreed salary and the salary in the invalid labor contract according to the
actual working time of employee but not exceed 12 months.

Article 11.
Handling of the completely invalid labor contracts

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2. Labor contract of which whole
content contrary to law shall be canceled when there is decision on
announcement of the completely invalid labor contract.

3. Within 03 working days, after
receiving the decision on announcement of the completely invalid labor contract
because whole its content provided rights and interests of employee at the levels
lower than law provisions on labor, labor regulations, collective labor
agreement that are applying, the employer and employee are responsible for
concluding new labor contract as prescribed by law on labor.

In time as from labor contract is
announced to be completely invalid,untill two parties conclude new labor
contract, rights and interests of employees shall be solved as prescribed in
clause 2 Article 10 of this Decree.

4. Within 03 working days, after
receiving the decision on announcement of the completely invalid labor contract
because the work already concluded in labor contract by two parties is work
prohibited by law, the employer and employee are responsible for concluding new
labor contract as prescribed by law on labor.

If failing to conclude new labor
contract, the employer will be responsible for paying an amount to employee,
this amount is agreed by two parties but at least for each working year it will
be one month regional minimum salary which is announced by the Government at
time of decision on announcement of the completely invalid labor contract.

5. Within 03 working days, after
receiving the decision on announcement of the completely invalid labor contract
because its content restrained or prevented the rights to establish, accede and
operate in Trade Union of employees, the employer and employee are responsible
for signing new labor contract as prescribed by law on labor.

Article 12.
Initiating lawsuits or complaining related to decision on
announcement of invalid labor contracts

If the employer or employee does not
agree with decision on announcement of the invalid labor contract, the employer
or employee may initiate lawsuits at the Court or complain with the competent
state agencies as prescribed by law.

Chapter 5.

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Article 13.
Effect

1. This Decree takes effect on July
01, 2013.

2. The Government’s Decree No.
44/2003/ND-CP, of May 09, 2003, detailing and guiding the implementation of a
number of articles of the Labor Code regarding labor contracts and all previous
documents which are contrary to this Decree hereby cease to be effective on the
effective date of this Decree.

Article 14.
Responsibility for implementation

1. The Minister of Labor, Invalids and
Social Affairs shall guide implementation of this Decree.

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

 

 

ON BEHALF OF
THE GOVERNMENT
PRIME MINISTER

Nguyen Tan Dung

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