Thông tư 07/2000/TT-BLĐTBXH hướng dẫn một số điều về lao động theo Nghị định 103/1999/NĐ-CP 1999 về giao, bán, khoán kinh doanh, cho thuê doanh nghiệp nhà nước do Bộ lao động, Thương binh và Xã hội ban hành

CIRCULAR

GUIDING A NUMBER OF ARTICLES ON LABOR ACCORDING TO THE GOVERNMENTS DECREE NO. 103/1999/ND-CP OF SEPTEMBER 10, 1999 ON ASSIGNING, SELLING, BUSINESS CONTRACTING OR LEASING STATE ENTERPRISES

In furtherance of the Governments Decree No. 103/1999/ND-CP of September 10, 1999 on assigning, selling, business contracting or leasing State enterprises; after consulting the concerned ministries and branches; the Ministry of Labor, War Invalids and Social Affairs hereby guides a number of Articles on policies towards laborers working at State enterprises which are assigned, sold, business contracted or leased as follows:

I. OBJECTS OF APPLICATION

Laborers working at enterprises by the time of assigning, selling, business contracting or leasing State enterprises include:

a/ Laborers working under labor contracts without definite term;

b/ Laborers working under labor contracts with definite term;

c/ Laborers working seasonally or by work pieces with a term of between 3 months and less than one year;

d/ Workers and employees not yet transferred to sign the labor contracts; including laborers mentioned at points a, b and c above, who are subject to the temporary postponement of the labor contract performance and waiting for job under decision of the enterprises manager.

II. WORKING DURATION CALCULATED FOR PAYMENT OF JOB SEVERANCE OR JOB-LOSS ALLOWANCES AND ENJOYMENT OF PREFERENCES SHALL BE CALCULATED AS FOLLOWS

1. The working duration shall comply with Clause 3 and Clause 5, Article 10 of the Governments Decree No. 198/CP of December 31, 1994 detailing and guiding a number of Articles of the Labor Code on labor contracts.

2. The number of years a laborer has worked for the State, as prescribed in Clause 2, Article 13 of Decree No. 103/1999/ND-CP of the Government, is the duration such laborer has already worked for State enterprise(s), the State agencies or units, armed forces units, excluding the duration for which he/she has already received job severance or job-loss allowances, or already enjoyed demobilization regime.

The calculation of the working duration shall comply with Clause 3, Article 10 of the Governments Decree No. 198/CP of December 31, 1994 detailing and guiding a number of Articles of the Labor Code on labor contracts.

3. Duration calculated for laborers to enjoy the divided credit balance of the reward fund and welfare fund, prescribed in Clause 3 of Article 19; Point e, Clause 1 of Article 49; Clause 1 of Article 53 of Decree No. 103/1999/ND-CP of the Government, is the duration a laborer starts working at such enterprise till the time when the decision on assigning, selling, business contracting or leasing State enterprises is made. The calculation of the working duration shall comply with Point e, Clause 3, Article 10 of Decree No. 198/CP of December 31, 1994 of the Government detailing and guiding a number of Articles of the Labor Code on labor contracts.

III. LABOR CLASSIFICATION AND PLANS ON THE EMPLOYMENT OF LABORERS

1. Labor classification and plans on the employment of laborers at the time of assigning, selling, business contracting or leasing enterprises according to the provisions in Clause 3 of Article 12; Clause 5 of Article 18; Clause 4 of Article 38 and Clause 1, Article 40, of Decree No. 103/1999/ND-CP of September 10, 1999, shall be as follows:

a/ The number of laborers in the enterprise at the time of assigning, selling, business contracting or leasing enterprises shall be classified and inscribed into the general table according to set form.

b/ Each class of laborers according to the above-mentioned Point a shall be listed in details to serve as basis for settlement according to regimes.

2. Plans on the employment of laborers, prescribed at Point b of Clause 5 and Point a, Clause 7 of Article 16; Clause 1 of Article 21; Point c of Clause 5, Point a of Clause 7 and Point a, Clause 8 of Article 36; Clause 1 of Article 12; Point e, Article 42, of Decree No. 103/1999/ND-CP of September 10, 1999 of the Government, shall be elaborated by the assignee, buyer, contractor or lessee on the basis of the enterprises development orientation, which, however, must ensure the interests and obligations of both parties (the employer and the employee) as prescribed by the labor legislation.

IV. ENTITLEMENT REGIMES

1. In cases where an enterprise reorganizes its production and/or business activities or renew its technology, thus making laborers lose their jobs as prescribed in Clause 5, Article 14 of Decree No. 103/1999/ND-CP of the Government, the enterprise shall pay job-loss allowance to such laborers according to Clause 1, Article 17 of the Labor Code. Particularly for laborers, who had already worked before the enterprise is assigned, they shall enjoy job-severance allowance for such duration according to Clause 1, Article 42 of the Labor Code; payment sources and procedures shall comply with the provisions of Decision No. 177/1999/QD-TTg of August 30, 1999 of the Prime Minister and the Finance Ministrys guidance.

2. Regimes applicable to laborers, prescribed in Clauses 1, 2 and 5 of Article 21; Clauses 1, 2, 3 and 4 of Article 40 of Decree No. 103/1999/ND-CP of September 10, 1999 of the Government, shall be settled as follows:

a/ For laborers qualified to retire according to pension regime, the enterprises manager and the social insurance agency where the enterprise pays its social insurance premium (hereafter referred collectively to as the social insurance agency) shall carry out all procedures and settle regimes according to current regulations.

b/ For laborers having their labor contracts terminated (including those who voluntarily terminate their labor contracts), the policies towards them shall be settled as follows:

- The enterprises managers shall have to pay job-severance allowance to the laborers for the duration they have already worked at the enterprises according Clause 1, Article 42 of the Labor Code and Decree No. 198/CP of December 31, 1994 of the Government.

- For the duration a laborer had previously worked for the State sector but not yet received any job severance or job-loss allowance, such duration shall be calculated for job-severance allowance reception. Payment source and procedures shall comply with the provisions of the Prime Ministers Decision No. 177/1999/QD-TTg of August 30, 1999 and the Finance Ministrys guidance.

- The enterprises managers and the social insurance agencies shall, together with the concerned agencies, have to carry out all procedures for the granting of social insurance books, payment of social insurance allowance, labor books and other relevant documents according to current regulations.

c/ For laborers moved to worked at new enterprises, the enterprises managers and the concerned agencies shall carry out all procedures and hand-over them to the new enterprise.

V. ORGANIZATION OF IMPLEMENTATION

1. The enterprises managers and the renewal boards at the enterprises shall have to organize the implementation of policies towards laborers according to the provisions of Decree No. 103/1999/ND-CP of September 10, 1999 of the Government and this Circular; report the implementation results to the provincial/municipal Services of Labor, War Invalids and Social Affairs and the Boards for Renewal of Enterprise Management under the ministries, branches, provinces and centrally-run cities and Corporations 91.

2. The provincial/municipal Services of Labor, War Invalids and Social Affairs; the Boards for Renewal of Enterprise Management under the ministries, branches, provinces and centrally-run cities and Corporations 91 shall have to guide, monitor and inspect the observance of the law provisions towards laborers and send sum-up reports to the Ministry of Labor, War Invalids and Social Affairs and the Ministry of Finance.

3. This Circular takes effect after its signing.

Any problems arising in the course of the implementation shall be reported to the Ministry of Labor, War Invalids and Social Affairs for study and settlement.

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