THE GOVERNMENT

Decree No. 45/2013/ND-CP dated May 05, 2013 of the Government detailing some Articles of the Labor Code on working hours, rest hours and labor security and labor hygiene

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

Pursuant to the Labor Code dated June 18, 2012;

At the request of the Minister of Labor, War Invalids and Social Affairs;

The Government issues the Decree detailing some Articles of the Labor Code on working hours, rest hours and labor security and labor hygiene,

Chapter 1.

APPLICATION’ SCOPE AND SUBJECT

Article 1. Scope of regulation

This Decree details some Articles of the Labor Code on working hours, rest hours and labor security and labor hygiene

Article 2. Subjects of application

1. The regulations on working hours and rest hours are applicable to the subjects in Article 2 of the Labor Code.

2. The regulations on labor security and labor hygiene in this Decree are applicable to the following subjects:

a) Vietnamese employees, foreign employees working in Vietnam, and apprentices;

b) Enterprises, agencies, organizations, cooperatives, households, and relevant individuals.

Chapter 2.

WORKING AND REST HOURS

SECTION 1. WORKING HOURS

Article 3. Periods included in paid working hours

1. Rest periods during working hours as prescribed in Article 5 of this Decree.

2. Breaks at work in accordance with to the characteristics of the job.

3. Rest periods necessary for physiological needs of humans

4. A rest period of 60 minutes every day for female employees having children less than 12 months of age.

5. A rest period of 30 minutes every day for menstruating female employees.

6. Periods during which work are paused that are not on account of employees.

7. Periods of training in labor security and labor hygiene.

8. Periods of meeting or training requested or agreed by the employee.

9. Periods of meeting or training requested by superior Trade Union as prescribed by the laws on Trade Union.

10. The working hours of elderly employees shall be shortened to at least 01 hour in the last year before their retirement.

Article 4. Working overtime

1. Overtime hours in a day shall:

a) Not exceed 50% of the normal working hours in 01 day; the total normal working hours and overtime hours shall not exceed 12 hours in a day when applying weekly working hours;

b) Not exceed 12 hours in a day when working overtime on public holidays and weekends.

2. 200-300 overtime hours in a year:

a) Overtime hours are permitted in the following cases:

- Production and processing of textiles, garments, leather, shoes, agricultural, silvi-cultural, and aquaculture products;

- Electricity supply, telecommunication services, oil refinery, water supply and drainage,

- Other urgent cases in which works must not be postponed.

b) When organizing overtime, employees shall notify local specialized agencies that assist People’s Committees of central-affiliated cities and provinces (hereinafter called provincial People’s Committees) in charge of labor management.

3. Compensatory rest periods prescribed Point c Clause 2 Article 106 of the Labor Code:

a) After each overtime up to 07 consecutive days in a month, the employer shall provide their employees with compensatory rest periods;

b) Where compensatory rest periods are not available, overtime pay shall be given as prescribed in Article 97 of the Labor Code.

SECTION 2. REST HOURS

Article 5. Rest periods during working hours

1. The short breaks prescribed in Clause 1 and Clause 2 Article 108 of the Labor Code is considered working hours in a 08-hour shift in normal conditions or 06 hours if shortened. Specific rest periods are decided by the employer.

2. Apart from short breaks during a normal shift prescribed in Clause 1 of this Article, employees working 10 hours a day or more, including overtime hours, shall be given at least 30 minutes of rest during working hours

Article 6. Periods as employee’s working hours in calculating annual leaves

1. The apprenticeship specified in the apprentice contract.

2. The probation period in the labor contract.

3. Separate paid leaves in accordance with Clause 1 Article 116 of the Labor Code.

4. Unpaid leaves agreed by the employee, but the total length must not exceed 01 month.

5. Rest periods due to labor accidents or labor illness, but the total length must not exceed 06 months.

6. Rest periods due to sickness, but the total length must not exceed 02 months.

7. Maternity leaves as prescribed by the laws on social insurance.

8. Rest periods to do Trade Union activities as prescribed by the laws on Trade Union.

9. Periods during which works are suspended that are not on account of employees.

10. Suspension periods

11. Detention period after which the employee is released and goes back to work after being declared innocent by competent state authorities.

Article 7. Calculation for annual leaves in the case of having not worked for a full year

The number of days of annual leave as prescribed in Clause 2 Article 114 of the Labor Code equals the number of days of annual leave plus additional days off in accordance with to seniority (if any) divided by 12 months, then multiplied by the actual number of working months in the year; the result shall be rounded up if the decimal is 0.5 or bigger.

Article 8. Lunar New Year Holiday

1. The period of Lunar New Year Holiday in accordance with to Clause 1 Article 115 of the Labor Code is selected by the employee, either 01 last day and 04 first days of the lunar year, or 02 last days and 03 first days of the lunar year.

2. Employers shall notify employees of the Lunar New Year Holiday plan at least 30 days before the holiday.

Chapter 3.

LABOR SECURITY AND LABOR HYGIENE

SECTION 1. GENERAL PROVISION ON LABOR SECURITY AND LABOR HYGIENE

Article 9. The formulation of the National Program on labor security and labor hygiene

1. The Ministry of Labor, War Invalids and Social Affairs shall formulate 05-year National Programs on labor security and labor hygiene and submit them to the Prime Minister for approval.

2. Annually, in accordance with to the approved National Programs on labor security and labor hygiene and estimates made by the Ministries, agencies and local governments, the Ministry of Labor, War Invalids and Social Affairs shall send the estimate of budget for the construction together with the State budget estimates to the Ministry of Finance and the Ministry of Planning and Investment.

Article 10. Making plans for ensuring labor security and labor hygiene.

1. When building, expanding, or upgrading a construction serving the production or storage of machinery, equipment, supplies, and substances that having strict requirements for labor security and labor hygiene, the investor and the employer shall make a plan for ensuring labor security and labor hygiene for the workplace and the environment, then submit it to the agency competent to permit such construction, expansion, or upgrade.

2. The plan for ensuring labor security and labor hygiene shall contain:

a) The location and scale of the construction, specifying the distance from the construction to residential areas and other constructions;

b) A list and details of items in that construction;

c) The hazards and accidents that may occur during the operation;

d) Specific measures from eliminating and minimizing the hazards; plans for dealing with accidents and emergency response.

Article 11. Employing elderly employees for doing hard, hazardous and dangerous works

1. Elderly employees shall be employed to do hard, hazardous and dangerous works when satisfying conditions as follows:

a) Employees are experienced, skillful with at least 15 years of seniority, and issued with vocational qualifications or recognized as artists as prescribed by law;

b) Elderly employees meet the health standards for their occupations established by the Minister of Health;

c) Each employment does not exceed 05 years;

d) Health-checks are given at least twice a year;

dd) At least 01 co-worker is not an elderly employee.

2. Pursuant to the Clause 1 of this Article, Ministries and ministerial agencies shall specify the hard works, hazardous works, dangerous works, and specific conditions for each employment of elderly employees.

SECTION 2. LABOR ACCIDENTS AND LABOR ILLNESS

Article 12. Serious accidents

1. Labor accidents are accidents that cause harm to any organ and function of the body, or lead to death; happen during the fulfillment of employees’ tasks, even during short breaks, meal breaks, preparation for work, and finalization of work at workplaces.

2. An accident is considered an labor accident when it happens at a suitable location and time when the employee is going to work from home and vice versa.

3. Labor accidents are classified as:

a) Fatal labor accidents;

b) Serious labor accidents;

c) Minor labor accidents;

4. Serious emergencies are accidents that happen during the work process (not including labor accidents) that cause damage to property of employees and employers.

Article 13. Statement, investigation, statistics, report, compensation, pays for labor accidents, labor illness, and serious emergencies

1. The statement, investigation, statistics, report, compensation, pays for labor accidents, labor illness, and serious emergencies are specified as follows:

a) Employers shall report fatal labor accidents and serious labor accidents that hurt at least 02 employees and serious accidents to Inspectors of local Services of Labor, War Invalids and Social Affairs

b) Employers shall investigate minor labor accidents and serious labor accidents that injure 01 employees, and serious accidents;

c) Labor inspectors shall investigate fatal labor accidents and serious labor accidents that injure 02 employees or more; investigate labor accidents and severe accidents that have been investigated by employers if complaints or denunciations are filed or where necessary;

d) During the investigation into labor accidents and severe accidents, if commitment of crimes are suspected, the labor inspector and the employee shall send reports to competent state authority and send documentations to a criminal proceedings agency;

d) Employers shall open logbooks and send biannual and annual reports to state agencies in charge of labor.

2. Statistics and reports on labor illness:

a) Employers shall make health profiles of employees suffering from labor illness, and send biannual and annual reports to state agencies in charge of health and labor;

b) The Minister of Health shall provide guidance on the procedure for making statistics and reports on labor illness.

3. Employers shall provide compensations and benefits for employees suffering from labor accidents and labor illness under the guidance of the Minister of Labor, War Invalids and Social Affairs.

Article 14. Controlling hazard factors

At workplaces facing hazards that may causes labor accidents or labor illness, employers shall:

1. Check and assess the hazards; provide solutions for eliminating and minimizing hazards, improve working conditions, and take care of employees' health;

2. Measure the hazards at least once a year; make and retain records as prescribed by law;

3. Provide technical and health equipment to ensure responsive aid when labor accidents happen;

4. Draw up plans for dealing with accidents, emergency response, and organize an on-site medic team as prescribed by law; the medic team must be regularly trained.

SECTION 3. TECHNICAL ASSESSMENT OF LABOR SECURITY

Article 15. Holding labor security’s technical assessment

1. Assessment of labor security is a technical activity following a certain procedure (hereinafter called assessment procedure) in order to assess and certify the safety of the assessed subjects in accordance with to technical standards.

2. Labor security assessment organizations are public service providers or enterprises established within law and issued with the eligibility certificate to assess labor security by competent state authority.

Article 16. Conditions for the Eligibility certificate to assess labor security

1. Holding a Certificate of Business Registration or an Establishment Decision issued by a competent authority.

2. The facilities and technical equipment satisfy the requirements for assessment each subject.

3. The quantity of assessors that satisfy the requirements of assessment is sufficient.

4. The organization is suitable for carrying out assessment.

Article 17. Documentation and procedure for issuing, reissuing, and adjusting the Eligibility certificate to assess labor security

1. The application for the Eligibility certificate to assess labor security includes:

a) The written request for the Certificate

b) Documents proving the fulfillment of the conditions in Article 16 of this Decree.

2. The application for the reissuance of the Eligibility certificate to assess labor security:

a) At least 03 months before the expiration date of the Certificate, if the organization wishes to continue the assessment of labor security, it shall submit an application for the reissuance of the Certificate. The application includes:

- The written request for the reissuance of the Certificate;

- The issued Certificate;

- The report on the operation of the organization while holding the Certificate;

- Documents proving the fulfillment of the conditions in Article 16 of this Decree.

b) Where the Certificate is lost or damaged and the organization wishes to continue the assessment of labor security, it shall submit an application for the reissuance of the Certificate. The application includes:

- The written request for the reissuance of the Certificate;

- The copy or original Certificate issued (if any).

3. The application for the adjustment of the Eligibility certificate to assess labor security:

a) The written request for the adjustment of the Certificate;

b)The issued Certificate;

c) Supporting documents.

4. Procedure for issuing, reissuing, and adjusting of the Eligibility certificate to assess labor security:

a) When an organization requests the issuance, reissuance, or adjustment of the Certificate, it send a competent authority prescribed in Article 18 of this Decree an application for the issuance, reissuance, or adjustment of the Certificate, and pay the fee for the adjustment of the conditions for such issuance, reissuance, or adjustment;

b) Within 30 working days from the day on which the complete and valid application is received, the competent authority prescribed in Article 18 of this Decree shall issue, reissue, or adjust the Certificate; if the application is rejected, the competent authority shall notify the applicant in writing and provide explanation.

Article 18. The power to issue the Eligibility certificate to assess labor security

1. The power to issue the Eligibility certificate to assess labor security:

a) The Ministry of Industry and Trade: industrial explosives, hydraulic system for raising the sluice gate; machinery and equipment having strict requirements for labor security used in mining;

b) The Ministry of Transport: machinery, equipment, and supplies having strict requirements for labor security to operate vehicles on roads, inland waterway, sea, rail, and air (not including the machinery, equipment and supplies having strict requirements for labor security carried on such vehicles to work at constructions, warehouses, factories, and business places; equipment having strict requirements for labor security that serve the petroleum exploration and extraction at sea, oil and gas pipeline system at sea;

c) The Ministry of Science and Technology: nuclear reactors, electromagnetic compatibility test; machinery and equipment having strict requirements for labor security that operate on high-voltage grids; machinery and equipment that contain and radiation sources;

d) The Ministry of Construction: scaffolding system, sliding formwork system;

dd) The Ministry of Information and Communications: high-frequency antennae; high-frequency amplifiers in radio and television;

e) The Ministry of National Defense: machinery, equipment, and supplies having strict requirements for labor security used for national defense and military activities;

g) The Ministry of Labor, War Invalids and Social Affairs: machinery, equipment, and supplies having strict requirements for labor security, except for the machinery, equipment and supplies in Points a, b, c, d, dd, and e of this Clause.

2. The authorities competent to issue the Certificate in Clause 1 of this Article are the authorities competent to issue, reissue, adjust, revoke, and suspend Certificates of eligibility to assess labor security.

Article 19. Validity period of the Eligibility certificate to assess labor security

1. The validity period of a Eligibility certificate to assess labor security that is issued for the first time or when the old one is expired is 03 years.

2. The validity period of a Eligibility certificate to assess labor security that is issued when the old one is lost or damaged is the remaining validity period of the old one.

Article 20. Suspending labor security assessment organizations

Labor security assessment organizations shall be suspended when:

1. The conditions in Article 16 of this Article are not satisfied;

2. No report on the assessment is sent to competent authorities for 18 consecutive months.

Article 21. Revoking the Eligibility certificate to assess labor security

1. The suspension period is over but the causes of suspension are not eliminated.

2. Carry 03 administrative penalties for the same violations or in a year.

3. Carry out assessment during the suspension.

4. Forge or falsify documents in the application.

5. Falsify the Certificate.

Article 22. Rights and responsibilities of labor security assessment organizations

1. Labor security assessment organizations are entitled to:

a) Carry out assessments in accordance with assessment service contracts;

b) Collect fees and services charges as prescribed by law;

c) File complaints and denunciation against acts of obstructing the assessment;

d) Request their clients to provide documents and information serving the assessment;

dd) Other rights as prescribed by law.

2. Labor security assessment organizations shall:

a) Provide assessment services in accordance with the Eligibility certificate to assess labor security;

b) Not refuse to provide assessment services without rational explanation;

c) Comply with the assessment procedure;

d) Take responsibility for the assessment result, pay compensation for the damage caused by the assessment; withdraw the assessment result when misconduct is discovered;

dd) Send reports on the assessment to competent authorities as prescribed by law;

e) Retain the assessment files;

g) Other rights as prescribed by law.

Article 23. Responsibilities when using machinery, equipment, and supplies having strict requirements for labor security

Enterprises, organizations, cooperatives, households, and individuals using machinery, equipment, and supplies having strict requirements for labor security shall:

1. Sigh contracts with labor security assessment organizations for assessment before use or periodic assessment throughout their operation.

2. Send declaration and reports on the assessment of machinery, equipment, and supplies having strict requirements for labor security to competent authorities before use.

Article 24. State management authorities’ responsibilities for labor security assessment

Ministries, ministerial agencies, and Governmental agencies shall:

1. Suggest machinery, equipment, and supplies under their management to the list of machinery, equipment, and supplies having strict requirements for labor security;

2. Establish procedures for assessment the subjects within their competence as prescribed in Article 18 of this Decree, after obtaining written opinions from the Ministry of Labor, War Invalids and Social Affairs;

3. Elaborate Article 16, Article 17, and Article 20 of this Decree; the conditions, order, and procedure for issuing and revoking Certificates of labor security assessors within their competence;

4. Inspect the assessment of labor security within their competence;

5. Send annual or unscheduled reports to the Ministry of Labor, War Invalids and Social Affairs on the assessment of labor security.

Chapter 4.

STATE MANAGEMENT ON WORKING HOURS, REST HOURS, LABOR SECURITY  AND LABOR HYGIENE

Article 25. State management on working hours, rest hours, labor security, and labor hygiene

1. The Ministry of Labor, War Invalids and Social Affairs is responsible to the Government for unifying the state management of working hours, rest hours, labor safety and labor hygiene, and:

a) Formulate and promulgate or request the promulgation of legislative documents on working hours, rest hours, labor safety and labor hygiene

b) Cooperate with relevant Ministries and agencies in formulating the National Regulation on labor security and labor hygiene in conformity with international practice;

c) Disseminate the laws on working hours, rest hours, labor security, and labor hygiene;

d) Provide guidance and training in labor security and labor hygiene;

dd) Provide guidance on labor security and labor hygiene at enterprises, organizations, and cooperatives engaged in production and business;

e) Integrate labor security and labor hygiene in the curriculums of vocational training institutions;

g) Investigate labor accidents; cooperate with the Ministry of Public Security and the Supreme People’s Procuracy in investigating and dealing with labor accidents suspected of crimes.

h) Inspect the adherence to the laws on working hours, rest hours, labor security and labor hygiene;

i) Seek international cooperation in working hours, rest hours, labor security, and labor hygiene.

2. The Ministry of Health shall:

a) Formulate and promulgate or request the promulgation of legislative documents on labor health care and health standards applicable to each occupation;

b) Cooperate with the Ministry of Labor, War Invalids and Social Affairs in making and promulgating the list of labor illness;

cc) Cooperate with the Ministry of Labor, War Invalids and Social Affairs in building, expanding, or upgrading a construction serving the production and storage of substance with high demand for labor hygiene within their competence;

d) Provide guidance on the organization of on-site medic teams, training in first-aid at workplaces;

dd) Provide guidance and organize periodic health-checks, pre-employment health-checks, diagnosis of labor illness, and medical examinations to rate injuries, provide treatment and rehabilitation for people suffering from labor accidents and labor illness.

3. The Ministry of Science and Technology shall:

a) Unify the management of research and application of labor hygiene and labor security technologies;

b) Organize and direct the radiation safety and nuclear safety works.

4. The Ministry of Education and Training shall integrate labor security and labor hygiene into the curriculums of higher education institutions.

5. The Ministry of Culture, Sports and Tourism and the Ministry of Labor, War Invalids and Social Affairs shall provide guidance on working hours, rest hours, labor security and labor hygiene to suit the working conditions of employees that work in arts and sports.

6. The Ministry of Finance and the Ministry of Labor, War Invalids and Social Affairs shall specify the level, collection, management, and use of fees and charges relating to the assessment of labor security and training in labor security and labor hygiene.

7. Ministries and ministerial agencies, within their competence, are responsible for the state management of working hours, rest hours, labor security and labor hygiene.

8. Provincial People’s Committees are in charge of state management of working hours, rest hours, labor security and labor hygiene locally; set labor security, labor hygiene targets, and improve working conditions.

Chapter 5.

IMPLEMENTATION

Article 26. Effect

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

2. The Decree No. 195/CP dated December 31, 1994 of the Government elaborating and providing guidance on the implementation of a number of articles of the Labor Code on working hours and rest hours; the Decree No. 06/CP dated January 20, 1995 of the Government on the amendments to the Decree No. 195/CP dated December 31, 1994 of the Government; the Decree No. 110/2002/ND-CP dated December 27, 2002 of the Government on the amendments to the Decree No. 06/CP dated January 20, 1995 of the Government; Article 2 of the Decree No. 81/2012/ND-CP dated October 08, 2012 of the Government on the amendments to the Decree No. 68/2008/ND-CP dated May 30, 2008 of the Government on the conditions, establishment procedure, organization, operation, and dissolution of social protection institutes, and the Decree No. 109/2002/ND-CP dated December 27, 2002 of the Government on the amendment to the Decree No. 195/CP dated December 31, 1994 of the Government are annulled from the effective date of this Decree.

3. The regulations on working hours, rest hours, labor security and labor hygiene in this Decree are applicable to officials, public employees, personnel of the army and the police, unless otherwise prescribed by legislative documents on those subjects.

Article 27. Elaboration and guidance on implementation

1. The Minister of Labor, War Invalids and Social Affairs shall provide guidance on the implementation of this Decree;

2. Ministers, Heads of ministerial agencies, Heads of Governmental agencies, Presidents of the provincial People’s Committees are responsible for the implementation of this Decree./.

For the Government

The Prime Minister

Nguyen Tien Dung

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