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Decree No. 47/2010/ND-CP dated May 6, 2010 of the Government on administrative sanctioning of violations of the Labor Law
25/04/2011
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THE GOVERNMENT
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness

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No. 47/2010/ND-CP

Hanoi, May 06, 2010

 

 

DECREE

ON ADMINISTRATIVE SANCTIONING OF VIOLATIONS OF THE LABOR LAW

THE GOVERNMENT

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

Pursuant to the June 23, 1994 Labor Code; the April 2, 2002 Law Amending and Supplementing a Number of Articles of the Labor Code; the November 29, 2006 Law Amending and Supplementing a Number of Articles of the Labor Code; and the April 2, 2007 Law Amending and Supplementing Article 73 of the Labor Code;

Pursuant to the July 2, 2002 Ordinance on Handling of Administrative Violations; and the April 2, 2008 Ordinance Amending and Supplementing a Number of Articles of the Ordinance on Handling of Administrative Violations (below collectively referred to as the Ordinance on Handling of Administrative Violations);

At the proposal of the Minister of Labor, War Invalids and Social Affairs,

 

DECREES:

Chapter 1 GENERAL PROVISIONS

Article 1. Scope of regulation

1. This Decree provides administrative violations, sanctioning forms and levels, remedies, and competence and procedures for administratively sanctioning violations of the labor law.

2. The labor law referred to in this Decree includes provisions of the Labor Code and documents guiding and detailing the Labor Code.

3. This Decree does not apply to violations of the labor law in the domains of vocational training; sending employees to work overseas under contracts; and social insurance.

Article 2. Subjects of application

1. Violators of the labor law under this Decree.

Foreign individuals and organizations that commit administrative violations of the labor law within the territory, exclusive economic zone and continental shelf of the Socialist Republic of Vietnam shall also be administratively sanctioned under this Decree, unless otherwise provided by treaties to which the Socialist Republic of Vietnam is a contracting party.

2. This Decree does not apply to cadres, civil servants and public employees of non-business agencies and units, political organizations and socio-political organizations.

Article 3. Principles of sanctioning violations of the labor law

1. Principles of administrative sanctioning of violations of the labor law comply with Article 3 of the Ordinance on Handling of Administrative Violations.

2. Administrative sanctioning of violations of the labor law shall be effected by competent persons defined in Articles 22, 23 and 24 of this Decree.

3. Extenuating and aggravating circumstances involved ip violations of the labor law shall be considered under Articles 8 and 9 of the Ordinance on Handling of Administrative Violations.

4. Administrative sanctioning of minor violators of the labor law complies with Clause 1, Article 7 of the Ordinance on Handling of Administrative Violations.

5. Administrative handling of persons competent to administratively handle violations of the labor law complies with Article 121 of the Ordinance on Handling of Administrative Violations.

Article 4. Forms of sanctioning

1. For each administrative violation of the labor law, the violator is subject to one of the following principal sanctions:

a/ Caution;

b/ Fine.

When fine applies, the specific fine level applicable to a violation is the average level of the corresponding fine bracket applicable to that violation set in this Decree. If the violation involves an extenuating circumstance, the fine level may be lower, but not below the lowest level of the prescribed bracket. If the violation involves an aggravating circumstance, the fine level may be higher, but not higher than the highest level of the prescribed bracket.

2. Depending on the nature and severity of their violations, violators of the labor law may also be subject to the following additional sanctions:

a/ Deprivation of the right to use professional practice licenses;

b/ Confiscation of material evidences and means used in administrative violations.

3. In addition to the principal and additional sanctions specified in Clauses 1 and 2 of this Article, violators of the labor law may also be subject to one or more of the following remedies:

a/ Forced compliance with the provisions of law on formation of job-loss allowance funds; implementation of employment plans; conclusion of labor contracts; registration of collective labor accords; minimum wages; principles of formulation of wage scales, wage tables, labor norms and bonus regulations; labor rules; regimes for performers of particular jobs, foreign employees, assurance of conditions for trade unions' operation, labor management measures; assurance of labor safety regimes for employees; and assurance of labor safety and hygiene;

b/ Return of deposits and savings interests to employees;

c/ Forced remedy and repair of machines and equipment not up to labor safety and hygiene standards;

d/ Forced examination and registration of machines, equipment, supplies and substances subject to strict requirements on labor safety and hygiene:

e/ Other measures provided in Chapter II of this Decree.

4. Foreigners who commit administrative violations of the labor law may be expelled. Expulsion may be applied as principal or additional sanction on a case-by-case basis.

Article 5. Statute of limitations for handling administrative violations

1. The statute of limitations for sanctioning administrative violations of the labor law under this Decree is one year counting from the date of committing an administrative violation. Past this time limit, sanctions shall not be imposed but remedies specified in Clause 3, Article 4 of this Decree shall still be applied.

2. The above statute of limitations is not applicable when an individual or organization commits a new administrative violation in the same labor domain he/she/it has previously committed violations, or deliberately shirks or delays the sanctioning within the time limit set in Clause 1 of this Article. In this case, the statute of limitations for sanctioning administrative violations shall be recounted from the time the new administrative violation is committed or the time the act of shirking or delaying the sanctioning terminates.

3. Individuals subject to initiation of criminal cases, prosecution or trial according to criminal procedures under decisions whose investigation or criminal cases are later terminated under decisions shall be administratively sanctioned if their acts show signs of administrative violation. Within 3 days after a decision to terminate an investigation or a criminal case is issued, the decision issuer shall send such decision to the person competent to impose sanctions. In this case, the statute of limitations for sanctioning is three (3) months from the date the person competent to impose sanctions receives a decision on termination of investigation or a criminal case and the case file.

Article 6. Time limit for being considered not yet being handled for administrative violations

Violators of the labor law that have been administratively sanctioned shall be regarded as not yet being sanctioned for administrative violations of the labor law if they do not relapse into a violation one year after they completely serve sanctioning decisions or one year after the statute of limitations for implementing such decisions expires.

Chapter II

ADMINISTRATIVE VIOLATIONS OF THE LABOR LAW, SANCTIONING FORMS AND LEVELS

 

Section 1. VIOLATIONS OF REGULATIONS ON EMPLOYMENT AND LABOR RELATIONS

Article 7. Violation of regulations on employment

1. A fine of between VND 300,000 and VND 3,000,000 shall be imposed on an employer that commits any of the following acts:

a/ Failing to publicize a list of employees to be laid off under the labor law;

b/ Failing to consult the Executive or Provisional Committee of the grassroots Trade Union when laying employees off;

c/ Failing to notify a provincial-level labor agency before laying employees off;


d/ Failing to publicize in the mass media and post up at the head office a notice of recruitment at least 7 days before receiving employment application dossiers of applicants.

2. Organizations or individuals that commit any of the following acts: failing to pay or fully pay severance allowances to employees: charging employees on job recommendation higher than
prescribed levels; and charging job recommendation without issuing receipts shall be fined as follows:

a/ Between VND 200,000 and VND 1.000,000 when committing violations against 1 to 10 employees;

b/ Between VND 1,000,000 and VND 5,000,000 when committing violations against 11 to 50 employees;

c/ Between VND 5,000,000 and VND 10,000,000 when committing violations against 51 to 100 employees;

d/ Between VND 10,000,000 and VND 20,000,000 when committing violations against 101 to less than 500 employees;

e/ Between VND 20,000,000 and VND 30,000,000 when committing violations against 500 employees or more.

3. A fine of between VND 5,000,000 and VND 10,000,000 shall be imposed for any of the following acts:

a/ Failing to set aside funds for job-loss allowance;

b/ Making enticement, promises or false advertisements to deceive employees or taking advantage of employment services to commit illegal acts.

4. Additional sanctions:

Deprivation of the right to use job recommendation licenses for one year, for job recommendation organizations committing administrative violations specified at Point b, Clause 3 of this Article.

5. Remedies:

a/ Forced refund of job recommendation charges which have been collected higher than prescribed levels to employees, for violations specified in Clause 2 of this Article;

b/ Forced formation of reserve funds for job loss allowance, for violations specified at Point a, Clause 3 of this Article.

Article 8. Violation of regulations on labor contracts

1. Caution or a fine of between VND 500,000 and VND 3,000,000 shall be imposed on employers that commit any of the following acts:

a/ Failing to hand signed labor contracts to employees;

b/ Failing to enter into contracts with those hired to work as maids in families;

c/ Failing to conclude written contracts with those hired to keep assets.

2. Employers that commit any of the following violations: failing to conclude labor contracts with employees subject to such conclusion, entering into labor contracts of improper types; labor contracts without signature of either of the two parties shall be fined as follows:

a/ Between VND 200,000 and VND 1,000,000 when committing violations against 1 to 10 employees;

b/ Between VND 1,000,000 and VND 3,000.000 when committing violations against 11 to 50 employees:

c/ Between VND 3,000,000 and VND 5,000,000 when committing violations against 51 to 100 employees:

d/ Between VND 5.000.000 and VND 7.000.000 when committing violations against 101 to less than 500 employees;

e/ Between VND 7.000,000 and VND 10.000.000 when committing violations against 500 employees or more.

3. Fines shall be imposed on employers that commit any of the following violations: applying apprenticeship period of more than 60 days to holders of job titles required of professional and technical qualifications of collegial or higher level; applying apprenticeship period of more than 30 days to holders of job titles required of intermediate-level qualifications or technical workers or professional staff; applying apprenticeship period of more than 6 days to performers of jobs without titles required of professional and technical qualifications of collegial or higher level or to holders of job titles required of intermediate-level qualifications or technical workers or professional staff; violating regulations on duration of temporary transfer of employees to other jobs; paying employees that are temporarily transferred to other jobs not at the level payable to the new jobs or at the level payable to the new jobs but lower than 70% of their previous salaries or lower than the minimum wage level prescribed by the State; paying within 30 working days employees that are temporarily transferred to other jobs at a level lower than the salary payable to their former jobs; assigning employees to jobs other than those agreed under labor contracts without their consent; and failing to pay or fully pay severance allowances plus salary allowances to regular employees that work for full 12 months or more when terminating labor contracts, at the following levels:

a/ Between VND 300.000 and VND 2,000.000 when committing violations against 1 to 10 employees;

b/ Between VND 2,000.000 and VND 5.000.000 when committing violations against 11 to 50 employees:

c/ Between VND 5.000,000 and VND 10.000.000 when committing violations against 51 to 100 employees;

d/ Between VND 10.000.000 and VND 20,000,000 when committing violations against 101 to less than 500 employees;

e/ Between VND 20.000.000 and VND 30,000.000 when committing violations against 500 employees or more.

4. A fine of between VND 15,000,000 and VND 30.000.000 shall be imposed on employers that commit any of the following acts:

a/ Compelling employees to pay deposits in contravention of law;

b/Succeeding employers' failing to continue labor contracts with employees when existing employees of merged, consolidated, divided or separated enterprises can be fully employed;

c/ Succeeding employers' failing to adopt employment plans according to regulations when existing employees of merged, consolidated, divided or separated enterprises cannot be fully employed.

5. In addition to the sanctions provided in this Article, violators are subject to one of the following remedies:

a/ Handing labor contracts to employees under law, for violations specified in Clause 1 of this Article;

b/ Entering into labor contracts of proper types under law; in case of absence of the signature of either party, such signature shall be added accordingly, for violations specified in Clause 2 of this Article;


c/ Refunding to employees their deposits and paying interests for those deposits at the rates announced by the State Bank of Vietnam at the time of receiving deposits, for violations specified at Point a, Clause 4 of this Article;

d/ Continuing labor contracts with employees, for violations specified at Point b, Clause 4 of this Article;

e/ Working out and implementing employment plans, for violations specified at Point c, Clause 4 of this Article.

Article 9. Violation of regulations on collective labor accords

A fine of between VND 500,000 and VND 5,000,000 shall be imposed on employers that fail to send collective labor accords to provincial-level labor state management agencies of the localities where the employers are based or send them more than 10 days after such accords are signed.

A fine of between VND 2,000,000 and VND 5,000,000 shall be imposed on employers or chairpersons of grassroots trade unions that commit any of the following acts:

a/ Refusing to negotiate for conclusion or amendment and supplementation of collective labor accords when receiving a request for such negotiation;

b/ Implementing collective labor accords which were declared invalid.

3. Remedies:

a/ Registering collective labor accords with provincial-level labor state management agencies under law, for violations specified in Clause 1 of this Article;

b/ Entering into negotiations for conclusion or amendment or supplementation of collective labor accords when so requested, for violations specified at Point a. Clause 2 of this Article.

Article 10. Violation of regulations on wages and bonuses

1. Caution or a fine of between VND 300,000 and VND 3.000.000 shall be imposed on employers that commit any of the following acts:

a/ Failing to observe principles of formulation of wage scales, wage tables and labor norms under law;

b/ Deducting salaries of employees without discussing such with the Executive or Provisional (if any) Committee of the grassroots trade union.

2. A fine of between VND 2,000,000 and VND 10.000,000 shall be imposed on employers that commit any of the following acts:

a/ Failing to pay salaries fully and on time to employees; paying salaries late without making compensations;

b/ Failing to pay salaries to employees during the time the employees are off to receive treatment due to labor accidents or occupational diseases;

c/ Failing to register wage scales and wage tables with provincial-level labor state management agencies; failing to publicize wage scales, wage tables, labor norms and bonus regulations in enterprises.

3. Employers that commit any of the following acts: deducting salaries of employees without notifying them of the reason or deducting over 30% of monthly salaries of employees or failing to discuss with the executive committee of the grassroots trade union prior to salary deduction; failing to fully pay salaries to employees who have to stop working due to employers' faults; paying employees lower than the minimum wage level in case of work interruption not due to employees' faults and/or due to power- or water- supply incidents or force majeure circumstances; and failing to pay or fully pay salaries and salary allowances to employees during the time of work suspension shall be fined as follows:

a/ Between VND 300,000 and VND 2,000,000 when committing violations against 1 to 10 employees;

b/ Between VND 2,000,000 and VND 5,000.000 when committing violations against 11 to 50 employees:

c/ Between VND 5.000,000 and VND 15,000,000 when committing violations against 51 to 100 employees;

d/ Between VND 15.000.000 and VND 20,000,000 when committing violations against 101 to less than 500 employees;

e/ Between VND 20,000,000 and VND 30,000,000 when committing violations against 500 employees or more.

4. Employers that commit any of the following violations: paying employees lower than the minimum wage level; paying salaries equal to the minimum wage level to professionally- or technically-trained employees or failing to pay salaries based on the productivity, quality and effectiveness of employees' work; and punishing employees by cutting their salaries shall be fined as follows:

a/ Between VND 300,000 and VND 3.000.000 when committing violations against 1 to 10 employees;

b/ Between VND 3.000,000 and VND 10,000,000 when committing violations against 11 to 50 employees:

c/ Between VND 10.000.000 and VND 15,000,000 when committing violations against 51 to 100 employees;

d/ Between VND 15.000.000 and VND 20,000,000 when committing violations against 101 to less than 500 employees;

e/ Between VND 20,000.000 and VND 30,000,000 when committing violations against 500 employees or more.

5.  A fine of between VND 2,000,000 and VND 10,000.000 shall be imposed on employers
that fail to formulate wage scales, wage tables, labor norms, and wage and bonus payment
regulations in their enterprises.

6. Remedies:

a/ Registering wage scales and wage tables with labor state management agencies within 20 days after receiving a sanctioning decision; publicizing wage scales, wage tables, labor norms and bonus regulations in enterprises, for violations specified at Point c. Clause 2 of this Article;

b/ Formulating wage scales, wage tables, labor norms and bonus regulations in enterprises under law, for violations specified in Clause 5 of this Article.

c/ Paying salaries and other benefits to employees under law. for violations specified in Clauses 2, 3 and 4 of this Article.

Article 11. Violation of regulations on work time and break time

1. Fines shall be imposed on employers that commit any of the following violations: forcing employees to work over 8 hours a day or 48 hours a week or forcing minor or disabled employees to work over 7 hours a day or 42 hours a week; failing to reduce work time for employees doing particularly heavy, hazardous or dangerous jobs; employing female employees who are 7 or more months pregnant are nursing their under-12-month-old children for overtime or night-time work or work trips; failing to transfer performers of heavy jobs who are seven or more months pregnant to lighter jobs or failing to reduce one working hour a day for them; failing to shorten daily work time or apply the regime of incomplete daily and weekly work time to to-be-retired employees in their last year of work; failing to give employees a half-an-hour break which is regarded as work time for employees working 8 hours constantly; failing to give employees on night shift a break of at least 45 minutes in the middle of a working shift, which is regarded as work time; failing to give employees working on shift a rest of at least 12 hours before a new working shift; failing to give employees a rest of at least one day (24 consecutive hours) for each week of work or on average at least 4 days a month for special cases in which work cycles do not allow weekly rest; failing to give employees public holidays under regulations; and failing to give annual leaves or days off for personal affairs to employees having worked for 12 months at an enterprise, at the following levels:

 

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