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Circular No. 04/2009/TT-BLDTBXH dated January 22, 2009 of the Government guiding a number of Articles of the Government's Decree No. 127/2008/ND-CP dated December 12, 2008, detailing and guiding a num
27/04/2011
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THE MINISTRY OF LABOR, WAR INVALIDS AND SOCIAL AFFAIRS
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No. 04/2009/TT-BLDTBXH

Hanoi, January 22, 2009

 

CIRCULAR

GUIDING A NUMBER OF ARTICLES OF THE GOVERNMENT'S DECREE NO. 127/2008/ND-CP OF DECEMBER 12, 2008, DETAILING AND GUIDING A NUMBER OF ARTICLES OF THE SOCIAL INSURANCE LAW CONCERNING UNEMPLOYMENT INSURANCE

Pursuant to the Government's Decree No. 186/2007/ND-CP of December 25, 2007, defining the functions, tasks, powers and organizational structure of the Ministry of Labor, War Invalids and Social Affairs;

Pursuant to the Government's Decree No. 127/2008/ND-CP of December 12, 2008, detailing and guiding a number of articles of the Social Insurance Law concerning unemployment insurance,

The Ministry of Labor, War Invalids and Social Affairs guides a number of articles of the Government's Decree No. 127/2008/ND-CP of December 12, 2008, detailing and guiding a number of articles of the Social Insurance Law concerning unemployment insurance (below referred to as Decree No. 127/2008/ND-CP), as follows:

I. SUBJECTS AND SCOPE OF APPLICATION

The subjects and scope of application of this Circular are those defined in Articles 1,2 and 3 of Decree No. 127/2008/ND-CP.

II. UNEMPLOYMENT INSURANCE REGIMES

1. Unemployment allowance:

1.1. The unemployment allowance level under Clause 2, Article 16of Decree No. 127/2008/ND-CP is guided as follows:

The monthly unemployment allowance is equal to 60% of a laborer's average monthly salary or remuneration of six consecutive months before he/she loses a job or terminates a labor contract under the labor law or a working contract under the law on cadres and public employees, on which unemployment insurance premiums are based.

When a laborer did not pay unemployment insurance premiums for some time in the last months before he/she becomes unemployed because of his/her ineligibility for unemployment insurance premium payment according to regulations, the average monthly salary or remuneration of six consecutive months as a basis for calculating the unemployment allowance level is the average monthly salary or remuneration of six months during which the laborer has paid unemployment insurance premiums before he/she loses a job or terminates a labor contract under the labor law or a working contract under the law on cadres and public employees.

For example:

Nguyen Van Khang pays unemployment insurance premiums from January 1, 2009, to January 14, 2012, except October and November 2011 under regulations. He terminates his labor contract in January 2012; his salaries of the consecutive months before his unemployment, on which unemployment insurance premiums are based, are as follows:

 

May 2011:

VND 2.450, 000

June 2011:

VND 2,750,000

July 2011:

VND 2,750, 000

August 2011:

VND 2,950, 000

September 2011:

VND 2.800,000

December 2011:

VND 2.650,000

If Khang is eligible for unemployment allowance, his monthly unemployment allowance is calculated as follows:

- The average salary of six consecutive months is:

(VND 2,450,000 + VND 2,750,000 + VND 2,750,000 + VND 2,950,000 + VND 2,800,000 + VND 2,650,000): 6 = VND 2,725,000/month.

- The monthly unemployment allowance he will receive is:

VND 2,725,000/month x 60% = VND 1,635,000/month.

1.2. The period of enjoying unemployment allowance under Clause 3, Article 16 of Decree No. 127/2008/ND-CP is guided as follows:

The period of enjoying monthly unemployment allowance depends on a laborer's working time during which unemployment insurance premiums have been paid, and the maximum period is guided as follows:

a/ Three (03) months, if the laborer has paid unemployment insurance premiums for between full twelve (12) months and less than thirty-six (36) months.

For example: Pham Thi Be has paid unemployment insurance premiums for 13 months within 24 months before she loses her job, she may receive unemployment allowance for three months at most.

b/ Six (06) months, if the laborer has paid unemployment insurance premiums for between full thirty-six (36) months and less than seventy-two (72) months.

For example: Pham Thanh Binh has paid unemployment insurance premiums for a total 71 months, including at least full 12 months within 24 months before he loses his job, he may receive unemployment allowance for 6 months at most.

c/ Nine (09) months, if the laborer has paid unemployment insurance premiums for between full seventy-two (72) months and less than one hundred and forty-four (144) months.

For example: Nguyen Van Hung has paid unemployment insurance premiums for a total 80 months, including at least full 12 months within 24 months before he loses his job, he may receive unemployment allowance for 9 months at most.

d/ Twelve (12) months, if the laborer has paid unemployment insurance premiums for from full one hundred and forty-four (144) months or more.

For example: Tran Thanh Tung has paid unemployment insurance premiums for a total 145 months, including at least full 12 months within 24 months before he loses his job, he may receive unemployment allowance for 12 months at most.

1.3. Suspension from unemployment allowance under Clause 1, Article 22 of Decree No. 127/2008/ND-CP is guided as follows:

A laborer on monthly unemployment allowance is suspended from receiving such allowance in one of the following cases:

a/ Failing to monthly report on his/her job seeking to the Labor, War Invalids and Social Affairs Section of a district, town or provincial city (below referred to as district-level Labor, War Invalids and Social Affairs Section) according to regulations.

b/ Being put in detention.

1.4. Resumption of suspended monthly unemployment allowance under Clause 2. Article 22 of Decree No. 127/2008/ND-CP is guided as follows:

a/ The period of enjoying unemployment allowance under Point 1.2 of this Clause has not yet expired and the laborer resumes his/her monthly reporting on job seeking to a district-level Labor, War Invalids and Social Affairs Section according to regulations.

b/ The period of enjoying unemployment allowance under Point 1.2 of this Clause has not yet expired after the laborer is released from detention.

A laborer subject to employment allowance resumption will not be refunded employment allowance for the suspension period.

1.5. Termination of unemployment allowance under Clause 1, Article 23 of Decree No. 127/2008/ND-CP is guided as follows:

A person on unemployment allowance is no longer entitled to such allowance in one of the following cases:

a/ The unemployment allowance enjoyment period under Point 1.2 of this Clause expires.

b/ He/she gets a job.

c/ He is on military service.

d/ He/she enjoys pension.

dd/ He/she refuses two jobs recommended by job centers without plausible reasons.

e/ He/she fails to monthly report on his/her job seeking to a district-level Labor, War Invalids and Social Affairs Section for three consecutive months.

g/ He/she settles overseas.

h/ He/she serves a decision on application of administrative sanctioning measure at a reformatory, educational institution or healthcare establishment or is imprisoned.

i/ He/she dies.

1.6. A person subject to unemployment allowance termination under Items b and c of Point 1.5 above may receive a lump-sum allowance equal to the value of the total unemployment allowance of the remaining period of unemployment allowance enjoyment.

1.7. Vietnam Social Insurance shall pay unemployment allowances.

2. Vocational training support:

2.1. Vocational training support for laborers under Clause 1, Article 17 of Decree No. 127/2008/ND-CP is guided as follows:

A laborer on unemployment allowance may, at his/her wish, be supported to learn a trade at a vocational training institution, but may not receive money to learn the trade on his/her own.

2.2. The vocational training support level under Clause 2. Article 17of Decree No. 127/2008/ND-
CP is guided as follows:

The vocational training support level for a laborer on unemployment allowance is equal to the cost for short-term vocational training under the law on vocational training.

A laborer on unemployment allowance who wishes to learn a trade at a cost higher than the prescribed cost for short-term vocational training shall cover the amount exceeding the prescribed cost.

2.3. The vocational training support period under Clause 3, Article 17 of Decree No. 127/2008/ND-CP is guided as follows:

The vocational training support period depends on the training period for each laborer, but must not exceed 6 months. The vocational training support time is counted from the date a laborer starts to enjoy monthly unemployment allowance. A laborer whose unemployment allowance enjoyment period terminates under Point 1.2, Clause 1 of this Section when he/she is attending a vocational training course may still receive vocational training support until the course is completed.

For example:

Hoang Van Tuan, who is entitled to unemployment allowance for 6 months and receives support in the 4th month of the unemployment allowance enjoyment period to attend a vocational training course for 5 months, may still be supported to complete this course in the two months after he ceases to receive unemployment allowance.

2.4. Vietnam Social Insurance shall cover vocational training support expenses.

3. Job seeking support:

3.1. Job seeking support under Clause I .Article 18 of Decree No. 127/2008/ND-CP is guided as follows:

A laborer on unemployment allowance may receive free job counseling and recommendation from a job center under the Labor, War Invalids and Social Affairs Service of the province or city where he/she registers to enjoy unemployment insurance. A laborer must be supported to find a job suitable to his/her qualification and work experience.

3.2. The period for laborers to receive job counseling and recommendation under Clause 2, Article 18 of Decree No. 127/2008/ND-CP is guided as follows:

The period for a laborer to receive job counseling and recommendation from a job center under a provincial-level Labor, War Invalids and Social Affairs Service is counted from the date the laborer starts to enjoy monthly unemployment allowance and must not exceed his/her unemployment allowance enjoyment period under Point 1.2, Clause 1 of this Section.

3.3. Vietnam Social Insurance shall cover job counseling and recommendation expenses.

4. Health insurance regime:

Unemployed people's entitlement to health insurance under Clause 2, Article 19 of Decree No. 127/2008/ND-CP is guided as follows:

4.1. A person on monthly unemployment allowance is entitled to the health insurance regime under the health insurance law. When his/her unemployment allowance enjoyment period expires, an unemployed person is no longer entitled to health insurance and shall return the health insurance card to a social insurance body under the guidance of Vietnam Social Insurance.

4.2. Vietnam Social Insurance shall pay health insurance premiums for people on unemployment allowance.

III. ORDER OF AND PROCEDURES FOR UNEMPLOYMENT INSURANCE

1. Participation in unemployment insurance:

1.1. Employers employing ten (10) or more laborers under Article 3 of Decree No. 127/2008/ND-CP are guided as follows:

Ten (10) or more laborers employed by an employer include Vietnamese laborers working under labor contracts or working contracts of an indefinite term; labor contracts or working contracts of a definite term of between full 12 months and 36 months; labor contracts or seasonal or job-based working contracts of a term of full 3 months or more. For a state management agency, ten (10) or more laborers employed by the employer include cadres and public employees currently working at the agency.

The time for counting the annual number of laborers of enterprises, agencies and organizations for participation in unemployment insurance is January 1 of a calendar year.

When at another point of time in a year an employer employs an adequate number of laborers eligible for unemployment insurance participation according to regulations, the time for counting laborers for unemployment insurance participation of such enterprise, agency or organization for that year is the 1st of the following month of a calendar year.

1.2. The unemployment insurance participation period under Article 36 of Decree No. 127/2008/ND-CP is guided as follows:

Within thirty (30) working days from the date of entering a labor or working contract, an employer shall submit unemployment insurance dossiers to a social insurance body.

Vietnam Social Insurance shall guide the procedures for submitting and receiving unemployment insurance dossiers.

1.3 The unemployment insurance dossier under Article 36 of Decree No. 127/2008/ND-CP comprises:

a/ Personal declarations by laborers, covering the following details: full name; sex; birth date; ethnic group; nationality, place of residence; identity card number and date and place of issue; number and date of labor contract, type of labor contract, wage or remuneration and allowances on which unemployment insurance premiums are based according to regulations, effective date of labor contract; social insurance book number; unemployment insurance participation period without enjoying unemployment insurance yet; laborer's commitment; and certification of employer. Vietnam Social Insurance shall issue the social insurance declaration form, which contains the above details.

b/ An unemployment insurance buyer list made by the employer, covering the following contents: full name; identity card number; social insurance book number; type of labor contract; and wage or remuneration and allowances on which unemployment insurance premiums are based according to regulations. Vietnam Social Insurance shall issue the form of unemployment insurance buyer list, which contains the above details.

2. Unemployment insurance premiums payment:

2.1. The mode of unemployment insurance premium payment under Clause 1, Article 26 of Decree No. 127/2008/ND-CP is guided as follows:

Monthly, an employer shall pay unemployment insurance premiums at the level equal to 1% of the fund of unemployment insurance buyers' salaries and remunerations on which unemployment insurance premiums are based, and deduct 1% of every laborer's salary and remuneration for concurrent payment to the unemployment insurance fund.

An employer who has employed 10 or more laborers subject to unemployment insurance premium payment shall pay unemployment insurance premiums for laborers currently participating in unemployment insurance even when it employs less than 10 laborers during the year.

2.2. Monthly salaries and remunerations on which unemployment insurance premiums are based under Clause 3, Article 27 of Decree No. 127/2008/ND-CP are guided as follows:

The level of salary or remuneration on which unemployment insurance premiums are based for a laborer having a salary or remuneration higher than twenty months' common minimum salary is equal to twenty months' common minimum salary (which is currently VND 54().(K)()/month; the salary or remuneration on which unemployment insurance premiums are based will be maximum VND 10.800.000/month). When the common minimum salary is adjusted, the salary or remuneration on which unemployment insurance premiums are based shall be adjusted according to the above principle.

Example 1:

Hoang Van Huy works for a computer component company and in February 2009 earns a monthly salary of VND 13,600,000. His monthly salary on which unemployment insurance premiums are based is VND 10,800,000.

Example 2:

Hoang Van Hoa works for a wholly foreign-owned company and his salary under the labor contract is USD 800/month. In March 2009, the actual salary he receives is VND 13,600,000/month (calculated according to the average inter-bank foreign exchange rate of VND 17,000/USD 1 announced by the State Bank of Vietnam on March 1. 2009). Hoa's monthly salary on which unemployment insurance premiums are based is VND 10,800,000.

2.3. Vietnam Social Insurance shall prescribe the time for employers to pay unemployment insurance premiums under Clause 2, Article 26 of Decree No. 127/2008/ND-CP.

2.4. The order of and procedures for paying unemployment insurance premiums comply with Vietnam Social Insurance's guidance.

3. Enjoyment of unemployment insurance:

3.1. Registration under Clause 1. Article 34 of Decree No. 127/2008/ND-CP is guided as follows:

1. Within 7 working days from the date of losing a job or terminating a labor or working contract, a laborer shall register his/her unemployment at the district-level Labor. War Invalids and Social Affairs Section of the place where he/she is working.

A laborer shall make unemployment registration according to Form No. 1 attached to this Circular (not printed herein).

3.2. Dossiers of request for unemployment insurance indemnities under Article 37 of Decree No. 127/2008/ND-CP are guided as follows:

a/ A written request for unemployment insurance indemnities, made according to Form No. 2 attached to this Circular {not printed herein)

b/ A copy of the expired labor or working contract or the agreement on termination of the labor or working contract or the last employer's certification of the lawful unilateral termination of the labor or working contract, and the social insurance book.

An unemployed person shall submit a full dossier of request for unemployment insurance indemnities within 15 days from the date of unemployment registration.

3.3. Settlement of unemployment insurance indemnification under Clause 2. Article 38 of Decree No. 127/2008/ND-CP is guided as follows:

a/ Time limit for settlement: within 20 working days from the date of receiving a full dossier under Point 3.2, Clause 3. Section III of this Circular.

b/ For cases eligible for enjoying unemployment insurance regimes:

- Unemployment allowance:

+ District-level Labor, War Invalids and Social Affairs Sections shall determine the levels and periods of enjoying unemployment allowance and submit them to provincial-level Labor. War Invalids and Social Affairs Services for consideration and decision.

+ Employment state management sections under provincial-level Labor, War Invalids and Social Affairs Services shall appraise dossiers and submit them to provincial-level Labor, War Invalids and Social Affairs Service directors for consideration and decision.

+ One copy of the decision of a Labor. War Invalids and Social Affairs Service director shall be sent to Social Insurance of a province or centrally run city (below referred to as provincial-level Social Insurance) for unemployment allowance payment; one copy, to the job center under the provincial-level Labor. War Invalids and Social Affairs Service for job counseling and recommendation; and one copy, to the district-level Labor, War Invalids and Social Affairs Section for monitoring the laborer's job seeking and for determining cases of suspension from, or termination or resumption of, unemployment allowance enjoyment, and submitting them to the provincial-level Labor, War Invalids and Social Affairs Service director for consideration and decision; and one copy, to the laborer for compliance. Decisions on enjoyment of unemployment allowance are made according to Form No. 3 attached to this Circular (not printed herein).

If eligible for lump-sum allowance under Clause 2, Article 23 of Decree No. 127/2008/ND-CP, a laborer shall make a request according to Form No. 4 attached to this Circular (not printed herein); the district-level Labor. War Invalids and Social Affairs Section shall determine the lump sum allowance level and submit it to the provincial-level Labor, War Invalids and Social Affairs Service; the employment state management section under the provincial-level Labor, War Invalids and Social Affairs Service shall appraise the dossier and submit it to the Labor. War Invalids and Social Affairs Service director for consideration and decision; one copy of the decision of the Labor, War Invalids and Social Affairs Service director shall be sent to provincial-level Social Insurance for unemployment allowance payment; and one copy, to the district-level Labor. War Invalids and Social Affairs Section. Decisions on enjoyment of lump sum unemployment allowance are made according to Form No. 5 attached to this Circular (not printed herein).

The order of and procedures for unemployment allowance payment comply with Vietnam Social Insurance's specific guidance.

- Job counseling and recommendation:

After receiving a Labor, War Invalids and Social Affairs Service director's decision on a laborer's unemployment allowance enjoyment, a job center shall provide free job counseling and recommendation for the laborer. Expenses for unemployment registration and job counseling and recommendation for laborers on unemployment allowance comply with the Ministry of Finance's guidance.

- Vocational training support:

+ When a laborer fails to find a job after receiving job counseling and recommendation and wishes to attend a vocational training course, he/ she shall make a request according to Form No. 6 attached to this Circular (not printed he

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