THE MINISTRY OF LABOR, WAR INVALIDS AND SOCIAL AFFAIRS
SOCIALIST REPUBLIC OF VIET NAM
Hanoi, June 03, 2003
109/2002/ND-CP OF DECEMBER 27, 2002
In furtherance of the Government’s Decree No. 109/2002/ND-CP of December 27, 2002 amending and supplementing a number of articles of the Government’s Decree No. 195/CP of December 31, 1994 which details and guides the implementation of a number of articles of the Labor Code on working time and rest time; after obtaining opinions of the Ministry of Health, the Ministry of Finance, Vietnam Labor Confederation and concerned agencies, the Ministry of Labor, War Invalids and Social Affairs hereby guides the implementation of the provisions on overtime working as follows:
I. SUBJECTS AND SCOPE OF APPLICATION
Subjects applicable to the provisions on overtime working prescribed in Clause 2, Article 1 of the Government’s Decree No. 109/2002/ND-CP of December 27, 2002 include:
1. Laborers working under the labor contract regime as prescribed in the amended and supplemented Labor Code in the following enterprises, agencies or organizations:
Enterprise Law, including: limited liability companies, joint-stock companies, partnerships and private enterprises;
Vietnam, including: joint-venture enterprises and enterprises with 100 foreign capital;
f/ Administrative and non-business agencies, political organizations, socio-political organizations, socio-political, and professional organizations, other social organizations and the armed forces, including organizations and units of administrative and non-business agencies, the Party, associations and self-financed mass societies, which are allowed to conduct production, business and service activities;
g/ Semi-public, people-founded and private establishments operating in the fields of culture, health, education and training, science, physical training and sports and other non-business branches;
2. Laborers and cooperative members who work and enjoy remuneration under labor contracts as prescribed in the amended and supplemented Labor Code in cooperatives set up and operating under the Cooperative Law.
3. Enterprises, agencies and organizations stated in Clause 1 and cooperatives stated in Clause 2 shall be referred collectively to as enterprises and units.
II. PROVISIONS ON OVERTIME WORKING
Conditions and principles for working overtime for up to 200 hours a year:
Enterprises and units may arrange each laborer to work overtime for up to 200 hours a year if they fully meet the following conditions and principles:
1.1. Conditions for working overtime for up to 200 hours a year:
1.2. Principles for the organization of overtime working for up to 200 hours a year:
a/ Agreement must be reached with laborers one by one on working overtime, made according to set form;
b/ The overtime must not exceed 4 hours a day; particularly for laborers performing extremely heavy, hazardous or dangerous occupations or jobs, the overtime must not exceed 3 hours a day;
c/ The total overtime must not exceed 16 hours a week; particularly for laborers performing extremely heavy, hazardous or dangerous occupations or jobs, the total overtime must not exceed 12 hours a week;
d/ The total overtime in 4 consecutive days must not exceed 14 hours; particularly for laborers performing extremely heavy, hazardous or dangerous occupations or jobs, the total overtime in 4 consecutive days must not exceed 10 hours;
f/ In cases where laborers work overtime for more than 2 hours a day, before the overtime work, employers must arrange for them an additional rest time of least 30 minutes which shall be counted into the overtime;
g/ To arrange for laborers to rest holidays, New Year days, or rest time as compensation therefor, to take annual leave and other paid leave in the year in strict accordance with the current legislation;
h/ To comply with the provisions of Articles 115, 122 and 127 of the amended and supplemented Labor Code on the ban or restriction of overtime for female laborers, juvenile laborers and disabled laborers;
2. Conditions and principles for overtime working for up to 300 hours a year:
2.1 Enterprises and units producing and/or processing export goods, including textile, garment, leather, shoe and processed aquatic products, which are allowed to organize the overtime working for between over 200 and 300 hours a year, must fully meet the following conditions and principles:
a/ Conditions for working overtime for between over 200 and 300 hours a year: When having to perform urgent work which cannot be delayed due to urgent requirements or the seasonal nature of production or due to objective factors which cannot be anticipated, though the overtime working for up to 200 hours a year has been organized, the work volume cannot be completely performed.
– To fully meet principles and conditions prescribed at Point 1.2 of Clause 1 above;
– To reach agreement with the grassroots trade union executive committees or provisional executive committees at the enterprises or units on the plans for overtime
2.2. Other enterprises and units, if having the demand to work overtime for between over 200 and 300 hours a year, shall have to send written requests therefor to the ministries, branches and provincial/municipal People’s Committees, made according to set form.
3. Cases of necessity to overcome consequences of natural disasters, calamities, fires and spreading epidemics
Enterprises and units may mobilize laborers to work overtime for more than 4 hours a day when having to overcome serious consequences of natural disasters, calamities, fire or epidemics which spread within the enterprises and units, but the laborers’ consents are required. This overtime shall not be counted into the total overtime a year, but entitled to wage and other overtime-related regimes as prescribed by the current legislation.
III. IMPLEMENTATION ORGANIZATION
1. Responsibilities of enterprises and units:
– To include the provisions on overtime working into their internal labor rules and collective labor agreements suitable to their production and/or business activities. On that basis, to publicly post them up for laborers to know and implement;
– To elaborate their production and/or business plans close to their annual production and/or business situations as to minimize overtime working. When organizing overtime working, to strictly comply with the provisions of this Circular;
– For laborers who are arranged to work overtime for many hours a year, enterprises and units shall have to care for their health, provide them with regular health checks and arrange rational rest for them so as to protect their health;
– To report to the Labor, War Invalids and Social Affairs Services of the provinces or centrally-run cities where the enterprises and units are headquartered on the overtime working in their enterprises and units during the year.
2. Responsibilities of the ministries, the ministerial-level agencies, the agencies attached to the Government and the provincial/municipal People’s Committees:
– To direct competent functional State agencies of the ministries, ministerial-level agencies, agencies attached to the Government, or the provincial/municipal People’s Committees to disseminate, urge, inspect and supervise the implementation of this Circular;
– To direct responsible agencies to receive the written requests and issue decisions permitting enterprises and units to organize overtime working for between over 200 and 300 hours a year. To reply enterprises and units within 15 days as from the date of receiving their written requests for permission.
3. Responsibilities of the provincial/municipal Labor, War Invalids and Social Affairs Services:
– To coordinate with the provincial/municipal Labor Federations in regularly urging, inspecting and supervising the overtime working; and at the same time, to enhance the inspection thereof; and if detecting serious violations of the provisions on overtime working, to strictly handle them.
– To receive requests for permission and submit them to the provincial/municipal People’s Committees for the latter to issue decisions permitting enterprises and units to organize overtime working for between over 200 and 300 hours a year;
– To sum up and biannually and annually report on the organization of overtime working by enterprises and units in their respective localities to the Ministry of Labor, War Invalids and Social Affairs.
4. This Decision takes effect 15 days after its publication in the Official Gazette.
Any problems arising in the course of implementation should be reported to the Ministry of Labor, War Invalids and Social Affairs for study and settlement.
MINISTER OF LABOR, WAR INVALIDS AND SOCIAL AFFAIRS
Nguyen Thi Hang