Thông tư 7-LĐTBXH/TT năm 1995 hướng dẫn Bộ luật lao động năm 1994 và Nghị định 195-CP-1994 về thời giờ làm việc, thời giờ nghỉ ngơi do Bộ Lao động, Thương binh và Xã hội ban hành

CIRCULAR

GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LABOR CODE ON THE 23RD OF JUNE 1994 AND DECREE No.195-CP ON THE 31ST OF DECEMBER 1994 OF THE GOVERNMENT ON THE WORKING TIME AND REST TIME

Pursuant to the Labor Code on the 23rd of June 1994 and Decree No.195-CP on the 31st of December 1994 of the Government "Providing Details for and Guiding the Implementation of a Number of Articles of the Labor Code on Working Time and Rest Time", the Ministry of Labor, Was Invalids and Social Affairs gives the following concrete guidance for the implementation of a number of Article :

I. ON WORKING TIME.

The working time stipulated in Item 1, Article 3 of Decree No.195-CP is the normal working time applied to all types of working people.

The working time in conditions of specially heavy, noxious or dangerous work shall be shortened by one or two hours as stipulated in Item 2, Article 3 of Decree No.195-CP issued by, or agreed upon between, the Ministry of Labor, War Invalids and Social Affairs and the Ministry of Health.

II. REST TIME.

1. Rest in between a workshift.

The rest time in between a workshift stipulated in Article 7 of Decree No.195-CP is considered the working time in a continuous eight-hour shift in normal conditions, or a continuous seven- or six-hour shift in conditions of shortened work time. The rest time shall be based on the working organization of the unit or enterprise, and not every working people must necessarily take their rest time at the same time in between a workshift.

2. Annual leave.

a/ The duration of working time on which to decide the annual leave is based on the solar calendar.

- If the laborer has worked for a period of twelve months including the time considered to be working time as stipulated in Item 1, Article 9 of Decree No.195-CP, then he/she is entitled to a full annual leave as stipulated in Article 74 of the Labor Code.

- If the laborer has worked for less than 12 months, the number of days in his/her annual leave shall correspond with the number of his/her working months in the year.

- If in a working year, the laborer has an add-up total of non-working days due either to labor accident or occupational disease exceeding six months (or 144 working days), or if he/she spends more than three months (72 working days) on sick leave, this period of absence shall be left out when calculating the number of days of his/her annual leave in that year.

b/ The different lengths of an annual leave.

The annual leave may be 12, 14 or 16 days for which the laborer shall receive his/her full pay as normal workdays. The length of the annual leave is defined as follows :

- 12 workdays for the laborers working in normal working conditions.

- 14 workdays for :

+ Those doing heavy, noxious or dangerous jobs.

+ The under-18-year-olds.

+ The laborers working in normal working conditions in areas with a coefficient of area allowance of 0.70 and more, as stipulated in Circular No.15-LDTBXH/TT on the 2nd of June 1993 of the Ministry of Labor, War Invalids and Social Affairs, and the supplementary documents.

Example : Worker A worked in normal working conditions and enjoyed a normal annual leave of 12 days. In 1995 the company assigned A to work in an area with an area allowance coefficient of 0.70. He/she shall enjoy an annual leave of 14 days in 1995.

- 16 workdays for :

+ The persons assigned to particularly heavy, noxious or dangerous jobs.

+ The persons assigned to heavy, noxious or dangerous jobs in an area with an area allowance coefficient of 0.70 and more.

Example : Engineer A and Engineer B work at the office of the Nuclear Research Institute where they enjoy a normal annual leave of 12 days. In 1995 A was assigned to work for five months and B for seven months at an establishment where the regulatory annual leave is 16 days. In this case, A shall enjoy an annual leave of 12 days, while B will enjoy an annual leave of 16 days in 1995.

In a working year, if the laborer has worked for 12 months of which six months or more are spent on heavy, noxious or dangerous, or particularly heavy, noxious or dangerous jobs, or in areas with the abovementioned area allowance coefficient, he/she shall enjoy an annual leave of 14 or 16 days.

c/ Time spent on traveling.

The time spent on traveling which is added up to the annual leave stipulated in Item 3, Article 9 of Decree No.195-CP shall be accounted for only one time per working year of the laborer. In other words, if in a year the laborer divides his/her annual leave into several leaves, he/she will have his/her traveling time added up to his/her annual leave only once.

If during his/her travel or at the place of his/her annual leave, the laborer falls sick, or has to wait due to natural calamities (storms, floods), or accidents like fires, or if he/she has to carry out an emergency job for public security or national defense and if this is certified by the local authorities where the accident happens, this time shall be regarded as lawful leave. The payment for these non-working days shall be agreed upon by the laborer and the employer, and shall be recorded in the labor contract or the collective labor accord. With regard to the case of sickness, the non-working time shall be covered by the current social insurance scheme.

d/ Payment of traveling expenses and for the workdays spent on traveling.

For the persons working in remote areas (highlands, deep forests, distant offshore islands as stipulated by the Ethnic and Mountainous Affairs Committee in Decision No.21-UB/QD on the 26th of January 1993, and the supplementary decisions), the employer shall have to pay for the traveling expenses and wages of the laborer during his/her traveling days in the country in his annual leave to visit his spouse, children and parents (on both the maternal and paternal sides).

3. Augmentation of days in annual leave according to service seniority.

a/ Service seniority.

The service seniority which is to be accounted for in the calculation of the additional days in the annual leave is the total of the years for which the laborer has worked for an employer or for an enterprise as stipulated in Article 75 of the Labor Code, including the time of apprenticeship at this enterprise. In case of non-continuity, the seniority shall be the total number of years of all the periods of his work for an employer or an enterprise. This seniority shall be calculated as follows :

- For the persons who are working in State agencies or enterprises, seniority shall be the total number of years of work in these agencies or enterprises, or units of the armed forces (for those who have been demobilized and assigned to a civilian job), minus the time which has been added to the seniority of the laborer when he/she benefits from the severance system under Decision No.176-HDBT on the 9th of October 1989 or under Decision No.111-HDBT on the 12nd of April 1991 of the Council of Ministers (now the Government) and Circular No.88-TTg on the 1st of October 1964 of the Prime Minister, the demobilization allowance, the pension system and the invalidation system, and the time of absence for other reasons for which he/she is not entitled to receive wages or social insurance indemnities.

Example : Mr. A began to work at State enterprise in January 1975 but in January 1990 he was transferred to a private enterprise. In January 1994 he was again transferred to a State office. He has the following seniority to be accounted for in his annual leave in 1995:

From January 1975 to January 1990: 15 years.

From January 1994 to December 1995: 2 years.

Total number of years to be accounted for in the calculation of Mr. A annual leave: 17 years.

- For the workers and public employees in the State agencies or enterprises who are transferred to work in the units or enterprises belonging to other economic sectors, for the labor-hiring organizations or individuals, for the enterprises with foreign investments and the offices of the international organizations, the number of their years of actual work in the State agencies or enterprises may be accounted for in their seniority in order to add to the number of days in their annual leave, provided that this has the consent of the employer and has been recorded in the collective labor accord or the labor contract.

- If the laborer works for units or enterprises belonging to non-State sectors, or for a labor-hiring organization or individual, their seniority is the total of years of work for that unit, enterprise or individual.

- The laborer working in a foreign-invested enterprise or in an enterprise in the Export Processing Zone, in foreign offices or organizations, or international organizations in Vietnam, their seniority is the total number of years of work for that enterprise, office or organization.

Example : Mr. B worked at a State agency from 1975 to 1994, then was transferred to work at a joint enterprise. His seniority is counted from 1994, but it may also be counted from 1975 if the employer of that enterprise so agrees.

b/ Number of days added to the annual leave proportionally to the seniority of the laborer:

A laborer, who has worked for five years for an employer or an enterprise, shall enjoy one extra fully paid holiday, and the number of extra days for his/her annual leave shall depend on the actual number of working years. More concretely:

- If he/she has worked for less than five years he shall enjoy an annual leave under the regulations of Article 74 of the Labor Code;

- If he/she has worked for from 5 to under 10 years he/she is entitled to one extra holiday.

- If he/she has worked from 10 to under 15 years he/she is entitled to two extra holidays.

- If he/she worked for 15 to under 20 years he/she is entitled to three extra holidays.

- If he/she has worked for 20 years to under 25 years he/she is entitled to four extra holidays.

- If he/she has worked for 25 years to under 30 years he/she is entitled to five extra holidays.

- If he/she has worked for 30 years to under 35 years he/she is entitled to six extra holidays.

...

4. The pay for the days in the annual leave shall be based on Article 11 of the Decree. Concretely, it shall be calculated as follows:

The result shall be rounded up to the unit (if the odd number is bigger than 0.5, it shall be rounded up into one unit, if it is smaller, it shall be left out).

Example : Worker A is entitled to an annual leave defined in Article 74 of the Labor Code (14 days). A began working at the enterprise in January 1972. In July 1995 he was put on pension. The number of holidays in his annual leave in 1995 shall be calculated as follows:

The number of his paid holidays proportionally to his service seniority from 1995 to 1972 correspond with 4 extra holidays.

Number of extra holidays [(14+4) : 12] x 7 months = 10.5 which is rounded up to 11 paid holidays.

This Circular takes effect from the 1st of January 1995. The earlier regulations which are contrary to this Circular are now annulled.

In the process of implementation, if any problem arises, the ministries, branches and localities should inform the Ministry of Labor, War Invalids and Social Affairs for consideration and settlement.

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