DECREE No.41-CP DATED 06 JULY, 1995
OF THE GOVERN MENT
Providing detailed regulations and guidance for the
implementation of some Articles of the Labour Code
regarding task and material responsibilities
GOVERNMENT
Pursuant to the Law on Government Organizations, dated 30 September 1992 ;
Pursuant to the Labour Code dated 23 June 1994 ;
On the proposal of the Minister of Labour, War Invalids and Social Affairs ;
DECREES
CHAPTER I I
THOSE SUBJECT TO, AND THE SCOPE OF
APPLICATION
Article 1. Those subject to and the scope of, application of task and material responsibilities according to Articles 2 and 3 of the Labour Code, are the ones who work for enterprises, offices and organizations (hereinafter called units) as follows :
1. State enterprises ;
2. Enterprises belonging to other economic sectors ; organizations and individuals hiring employees according to labour contracts ;
3. Units operating under a cost accounting mechanism
4. Trade and service operating organizations belonging to State administrative bodies, army, police, people's unions, and other political and social organizations registered for operation ;
5. Foreign investment enterprises, enterprises in export processing zones, industrial zones ;
6. Foreign bodies and organizations and international organizations, based in Vietnam, that hire and use Vietnamese employees.
Article 2. Employees, organizations outside the jurisdiction of task and material responsibility, according to Article 4 of the Labour Code, are as follows :
1. Officials, employees working in State administrative bodies ;
2. Those who hold elected, or appointed positions in State bodies ;
3. Those who are appoined to hold positions as directors, vice directors, accountants-in-chief and members of Management Boards in State enterprises.
4. Those who belong to people's unions and other political and social organizations according to the regulations of those unions, organizations ; members of cooperatives ;
5. Officers, non-commissioned officers, servants of the army, police.
CHAPTER II
EMPLOYEE RESPONSIBILITIES
Article 3. Employee responsibilities, according to Item 1, Article 82 of the Labour Code, includes Regulations on :
1. Implementation of working hours, rest time ;
2. Execution of instructions on the production and operation management of labour employers ;
3. Implementation of technological rules, regulations on labour safety and hygiene ;
4. Protection of assets and technology and business secrets within the area of responsibility.
Article 4. Labour Regulations, according to Item I, Article 83 of the Labour Code, includes the following main contents :
1. Working hours and rest time : Lists of daily and weekly working hours, rest time during work-shifts, the number of work-shifts, a day-off-work weekly, national holidays, annual holidays; days-off-work for personal reasons, the number of extra working hours daily, weekly, monthly and annually ;
2. Instructions of enterprises : working and travelling areas ; communication and other regulations on common order preservation ;
3. Labour safety and hygiene in the work place : the implementation of measures to ensure labour safety and hygiene, to prevent accidents and illness ; the observance of regulations on and standards of labour safety and hygiene ; the use and preservation of personal protective equipment ; industrial hygiene in the work place ;
4. Protection of assets and technology and business secrets of units. All types of assets, documents, materials, statistics of units within the area of responsibility ;
5. Acts violating employee responsibilities, treatments and material responsibilities ; Employers must prove each type of violation, and the scale of violation ; and appropriate action thereafter ; to define types of material responsibilities, damage scales, modes of compensation suitable to the characteristics of each unit, with collective labour agreements (if any) and not contrary to the law.
Regulations on labour is to be read to each employee and the main paint of the regulations must be placed in working areas, employment offices and other places (if necessary) in the units.
Article 5. Registration of labour regulations, according to Article 82 of the Labour Code, is stipulated as follows :
1. Labour regulations are registered at the Department of Labour, War Invalids and Social Affairs. The registration of labour Regulations must be in connection with detailed stipulations relating to employee and material responsibilities (if any) ;
2. Enterprises belonging to export processing zones and industrial zones have to submit their labour regulations to the Management Boards of the export processing zones and industrial zones, to register at the Department of Labour, War Invalids and Social Affairs; at the place where the head offices of the Management Boards am located.
3. Departments of Labour, War Invalids and Social Affairs must inform, in written form; of the registration of labour regulations of units within 10 days of receiving the regulations. If the labour regulations and related stipulations include items contrary to the law, the Departments have to make it clear and provide guidance for labour users to amend registration.
4. If labour regulations and related stipulations carry amendments and additions re-registration is required.
Article 6. The application of treatment of Labour Code violations according to Article 84 of Labour Code, is stipulated as follows :
1. Reproof is made orally or in written form to those who violate a first time, and when the violation is not very serious.
2. Transferance to another job with a lower salary within at most 6 months 18 applied to those who have earlier been reproved in written form, but violate again within 3 months of the reproof, or who violate stipulations stated in Labour Regulations ;
3. Dismissal is applied to those who violate one of the stipulations stated in Item I, Article 85 of the Labour Code, and in the Labour regulation.
Article 7. Principles on labour code violation treatment :
1. Every act violating the labour code is given only one form of punishment. If an employee has made more than one violation of the labour code at the same time, they will receive only one form of punishment corresponding to the most serious violation.
2. Punishment for labour code violation is not applied to those who violate labour regulations while being mentaly ill or carrying another disease that kills the ability to know or control their actions ;
3. To forbid all the actions that encroach upon the human dignity of employees while punishing for labour cede violations ;
4. To forbid all forms financial punishment, salary stoppage.
5. To forbid punishment for attendance in strikes.
Article 8. The maximum limited time of 6 months, according to Article 86 of the Labour Code, is applied to punish labour code violations in the following cases :
1. The Labour Code violation contains complicated details that require time for investigation to verify false and personal identification of the concerned.
2. The accused violators are temporarily kept in custody.
Article 9. Be-violations, according to Item I Article 88 of the Labour Code, are those acts repeating previous violations, which have already been punished, and which haven't already been annuled.
Article 10. Those who have the right to deal with Labour Code punishment, including temporary suspension, according to Article 87 and Item 1 Article 92 of the Labour Code are employers ; those who are entrusted by employers have the right to reprove violations.
Article 11.
1. The consideration and punishment of Labour Code violations according to Article 87 of the Labour Code are stipulated as follows :
a) Employers must prove violations with the corroboration of a witness (if any).
b) There must be the attendance of representatives of the local Trade Unions; exclusively in the case of the oral punishment of labour code violations.
c) The concerned bodies/individuals must be present, and have the right to plea themselves, ask for lawyer's help, or someone else to plea on their behalf. If the concerned are under 15 years old, their parents or legal sponsors must be present. If employers have Trade announcement 3 times in written form but the concerned are not present, the employers have the right to deal with violations and announce their decision to all concerned ;
2. Minutes of Labour Code punishment include the folowing contents :
- Date, place of labour rude punishment.
- Full names, authorities of those who are present.
- Acts of labour code violation, the scale of damage and violation caused to the enterprise (if any) .
- Opinions of the concerned, the accused party or observers (if any);
- Opinions of representatives of the local Trade Union Committees.
- Conclusion on the form of Labour Code punishment, damage scale, compensation and modes of compensation -(if any).
- The concerned, representatives of local Trade Union Committees and those who deal with labour code punishment have to sign in the minutes. The concerned, representatives of Labour Trade Unions Committees have the right to offer their opinions ; if they do not sign; they must state clearly their reasons ;
3. Decision on labour code punishment.
a) Those who have the right to deal with labour code violations by dismissal or transferring violators to another job with a lower salary, have to put the decision in writing stating clearly the conditions of the punishment. While dealing with labour code violation by dismissal, employers have to exchange views and come to agreement with the local Trade Union Committees. If in disagreement the local Trade Union Com-
mittee must report it to a higher level of the Trade Union, employers report it to the Department of Labour, War Invalids and Social Affairs. After 30 days, the Department of Labour, War Invalids and Social Affairs, and employers have the right to make a decision on punlishment and bear responsibility for their decision ;
b) Decision on punishment in written form must state Clearly the units where the concerned are working ; date of decision ; full names, occupation of the concerned ; content of labour code violation ; form of punishment, damage scale, compensation and modes of compensation (if any) ; the date of decision implementation ; signature, full names and positions of the decision makers ;
c) Employers must send their decision to the concerned and local Trade Union Committees. If dismissal is taken, within 10 days of signing the decision, they must advise of their punishment decision to the Department of Labour; War Invalids and Social Affairs, in connection with the minute of labour code violation punishment.
Article 12. Reduction and elimination of punishment according to Article 88 of Labour Code is regulated as follows :
1. If deciding to reduce or eliminate the punishment for the labourers who are punished by being transferred to another job with a lower salary, the employers must make their decision in written form and arrange for the employee to return on his/her previous job, according to the signed labour contracts.
2. Punishment decision becomes invalid when the deadline of punishment comes to an end.
CHAPTER III
MATERIAL RESPONSIBILITY
Article 13. Consideration and decision on damage compensation according to the material responsibility, due to labourers broke or lost instruments, equipment and other assets of their units, must be based on the false and real damage scale. Compensation is not made for unavoidable damages.
Article 14. Damage not considered Serious according to Article 89 of Labour Code is the one that is estimated at less than VND 5 million.
Article 15. Compensation is made according to market prices, and Article 90 of Labour Code and Article 14 of this Decree, must be regulated according to the Labour regulation. When deciding compensation, it is necessary to consider real circumstances of the concerned families, personal identification and assets.
Article 16. The procedure on the compensation for damage caused by breaking or losing instruments, equipment and other assets of the unit, according to Article 91 of Labour Code is carried out under regulations stated in Items 2, 3, 4, Article 7 and Articles 8, 10, 11 of this Decree.
CHAPTER IV
IMPLEMENTATION PROVISIONS
Article 17. People's Committees of authoritative levels deal with the complaints of those who are punished for labour code violations, who are suspended from work temporarily, or who have to compensate for material loss. Local labour bodies should assist the People's Committees in their considerations and in dealing with these complaints. Those who are punished for labour code violations, who are suspended from work or who have to make compensation according material loss, have the right to make complaints, but while awaiting the decision from higher level authoritative bodies, they still must carry out the decision on punishment, job suspension and compensation according to material responsibility.
Article 18.
1. Within at most 3 months of this Decree coming into effect, units that have or have not worked out labour regulation, have to make, amend or add to the content rationally and register amendments at the Department of Labour, War Invalids and Social Affairs.
2. For newly founded units, within 6 months of beginning operations, employers have to register their labour regulations at the Department of Labour, War Invalids and Social Affairs.
Article 19. This Decree comes into effect from the signing date. Previous regulations contrary to this Decree are abrogated.
Article 20. Ministers, Heads of Ministerial-ranking bodies, Heads of Government bodies, Chairpeople of People's Committees of provinces and cities under central management are responsible for the implementation of this Decree.
FOR THE GOVERNMENT
ON BEHALF OF THE PRIME MINISTER
VICE PRIME MINISTER
NGUYEN KHANH