On March 25, 3, the Ministry of Labor, War Invalids and Social Affairs issued Official Letter 2020-LDTBXH-QHLĐTL Guiding the payment of severance pay and settlement of benefits to laborers during the period of job-related stoppage. Covid-1064.
Content of dispatch 1064 / LDTBXH-QHLĐTL
The Ministry of Labor, War Invalids and Social Affairs requests the Department of Labor - Invalids and Social Affairs to guide enterprises in the area to implement the following:
- The payment of severance pay shall be based on the provisions of Article 98 of the Labor Code to consider cases of job stoppage (due to the fault of the employer or the employee or due to objective reasons). planning to pay workers to stop working.
- In case the employee has to stop working due to the direct impact of Covid-19 epidemic such as:
- (i) a foreign worker who has not been allowed to return to the enterprise to work at the request of a competent authority;
- (ii) the employee has to stop working during the quarantine period at the request of the competent authority;
- (iii) the employee has to stop working because the enterprise or the enterprise division is inoperable because the employer or other workers in the same enterprise or business division are in the period of isolation or have not been returned to the business
then the employee's salary during the period of suspension shall comply with Clause 3, Article 98 of the Labor Code (the wage shall be agreed upon by the two parties but not lower than the regional minimum wage set by the Government).
Article 3 of Decree 90/2019 / ND-CP stipulates the minimum wage for each region now as follows: Region I, VND 4.420.000 / month; Region II, VND 3.920.000 / month; Region III, VND 3.430.000 / month; Region IV, the level 3.070.000 VND / month.
3. In case the enterprise meets with difficulties in material sources and the market leads to not having enough jobs, the employer may temporarily transfer the employee to work for other jobs compared to the labor contract. to comply with the provisions of Article 31 of the Labor Code; if the prolonged period of job stoppage affects the solvency of the enterprise, the employer and the employee may agree to postpone the performance of the labor contract in accordance with Article 32 of the Labor Code; If the enterprise has to narrow its production, leading to a reduction in the working place, the labor arrangement shall comply with Article 38 or 44 of the Labor Code.
2012 Labor Code provisions
Article 31. Moving of workers to do jobs other than labor contracts
1. When experiencing unexpected difficulties due to natural disasters, fires or epidemics, to apply measures to prevent and overcome labor accidents, occupational diseases, electricity and water incidents or to meet production and business demands. , the employer is entitled to temporarily transfer the employee to another job in accordance with the employment contract, but must not exceed 60 working days in a year, unless otherwise agreed by the employee. .
2. When temporarily transferring an employee to perform a job other than the labor contract, the employer must notify the employee at least 03 working days in advance, clearly notify the temporary working period and announce job position suitable to the health and gender of workers.
3. The employee doing the job specified in Clause 1 of this Article shall be paid for the new job; If the salary of the new job is lower than the old job salary, the old wage will be kept within 30 working days. The salary for the new job must be at least 85% of the old job salary but not lower than the regional minimum wage set by the Government.
Article 32. Cases of suspension of labor contracts
1. Laborers going to military service.
2. Laborers are held in custody or temporary detention according to the provisions of the criminal procedure law.
3. Laborers must abide by decisions on application of measure sending to reformatories, compulsory detoxification establishments or compulsory education establishments.
4. Pregnant female employees prescribed in Article 156 of this Code.
5. Other cases agreed upon by the two parties.
Article 38. Unilateral termination of a labor contract by the employer
1. An employer has the right to unilaterally terminate a labor contract in the following cases:
a) The regular employee does not finish the job under a labor contract;
b) The employee has been sick or injured for 12 consecutive months for an employee under an indefinite-term labor contract, for 06 consecutive months, for laborers working under a contract. a labor with definite term and more than half of the term of the labor contract with the person working under a seasonal labor contract or under a certain job with a term of less than 12 months and the labor capacity has not yet recovered.
When the health of the employee recovers, the employee is considered to continue concluding the labor contract;
c) Due to natural disasters, fires or other force majeure reasons prescribed by law, the employer has sought all remedies but is still forced to reduce production and reduce the workplace;
d) The employee is not present at the workplace after the time limit prescribed in Article 33 of this Code.
2. When unilaterally terminating the labor contract, the employer must notify the employee in advance:
a) At least 45 days for labor contracts with indefinite terms;
b) At least 30 days for definite-term labor contracts;
c) At least 03 working days for the cases specified at Point b, Clause 1 of this Article and for seasonal labor contracts or for a certain job with a term of less than 12 months.
Article 44. Obligations of employers in case of changes in structure, technology or economic reasons
1. In case of changes in the structure and technology that affect the employment of many employees, the employer shall have to elaborate and implement a labor utilization plan in accordance with Article 46 of This code; in case of new workplace, priority will be given to retraining workers to continue using.
In cases where the employer is unable to settle a new job but has to let the employee quit his / her job, he / she must pay job loss allowance to the employee in accordance with Article 49 of this Code.
2. In cases where due to economic reasons, many employees are at risk of losing their jobs or have to quit their jobs, the employer must formulate and implement a labor utilization plan according to Article 46. of this Code.
In cases where the employer is unable to settle a job but has to resign his / her employer, he / she must pay job loss allowance to the employee in accordance with Article 49 of this Code.
3. The dismissal of many employees under the provisions of this Article shall be conducted only after consulting with the labor collective representative organization at the grassroots level and 30 days notice to the management agency. State of provincial labor.
Article 49. Unemployment benefits
1. Employers who pay job-loss allowances to laborers who have worked for 12 or more months for their regular job and lose their jobs according to the provisions of Articles 44 and 45 of this Code, each year. working for 01 month's salary but at least equal to 02 months' salary.
2. The working time used for calculating job-loss allowances is the total time the employee has actually worked for the employer minus the time the employee has participated in unemployment insurance in accordance with the Law. Social insurance and working time have been paid for by the employer.
3. The salary used to calculate job-loss allowances is the average salary under the employment contract of the 06 consecutive months before the employee loses his job.
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