Can workers in the field of bending, metal welding receive hazardous allowances?

Our company is recruiting workers in the field of bending, metal welding. I would like to ask the lawyer whether if bending, welding is a field entitled hazardous allowances as prescribed by law or not? If possible, how much is the monthly allowance appropriate as prescribed by law. In case workers work overtime, Will they receive hazardous allowance for overtime?

Sincerely thank!

FDVN’s opinions:

Thank you for concerning and trusting in FDVN’s legal services. Regarding the client’s request, after studying relevant legal provisions. Please kindly see the answer below:

[1]. Can workers in the field of bending, metal welding receive hazardous allowances?

According to business line of arduous, hazardous and dangerous profession of post-secondary education and college levels (Enclosed to the Circular No. 36/2017/TT-BLĐTBXH dated December 29, 2017 by the Minister of Labour, War Invalids and Social Affairs), bending, welding is one of the arduous, hazardous and dangerous occupations related the field of mechanical engineering and engineering mechanics.

At Point b Clause 1 Article 11 of Circular No. 17/2015/TT-BLDTBXH stipulate: “Companies shall review and classify the working conditions as stipulated in Article 6 of this Circular and compare the hard, harmful and dangerous degree of work or profession with the normal working condition to define the allowance rate and ensure the lowest and highest allowance level for work and profession with hard, harmful and dangerous working conditions is 5% and 10% respectively; the lowest and highest allowance level for work and profession with particularly hard, harmful and dangerous working conditions is 7% and 15% respectively compared with the salary rate of work or profession with equivalent complexity in normal working condition.”

According to the above provisions, bending, welding is one of the  arduous, hazardous and dangerous occupations that need to ensure the allowance of 5%-10%, If working the particularly hard, harmful and dangerous degree of work, need to ensure the allowance of 7% -15% of the salary rate of work or profession with equivalent complexity in normal working condition

[2]. Hazardous allowances during overtime

Article 102 of the Labor Code 2012 stipulate about allowances, subsidies, rank promotion and wage raise: “Allowances, subsidies, rank promotion, wage raise and other incentives for employees must be agreed in the labor contracts and the collective labor agreement or stipulated in the regulations of the employer.”

In Article 6 of Circular No. 23/2015 / TT-BLDTBXH, amended by Point c Clause 4  Article 14 of Circular No. 47/2015 / TT-BLDTBXH on overtime salary as follows:

“With regard to piece workers who receive overtime pay when the employees and the employer reach an agreement on overtime work in addition to normal working hours to increase the number of completed products or works in addition to the agreed workload, overtime pay is calculated as follows:

“ Employees enjoying wages are paid overtime when working outside of the normal working hours as prescribed by the employer in accordance with Article 104 of the Labor Code are calculated as follows:

Where:

Actual hourly wage on a normal working day equals (=) the actual wage for the current job of the month in which the employee works overtime divided by (:) actual number of working hours in the month (not exceeding 208 hours for jobs with normal labor and environment conditions and exclusive of overtime hours). If the employee receives a daily or weekly wage, the overtime pay equals (=) the actual wage of that working day or week (minus overtime pay and extra pay for night work) divided by (:) actual number of working hours in the day or week (not exceeding 8 hours per day and exclusive of overtime hours).

Thus, according to the above provisions, the hazardous allowance is one of the allowances specified in the labor contract, the overtime salary is calculated on the actual hourly wage of the normal working day. The actual salary paid to the employee as prescribed in Clause 1 Article 4 of the Circular No. 23/2015 / TT-BLDTBXH is determined on the basis of the labor contract, including the salary under the job or by title  in the salary scale , payroll plus salary allowances (if any) by the employer as determined in the labor contract. Thereby the overtime salary of the employee includes the salary by job or by title (main salary) plus toxic allowance according to the job they undertake. Hence your company must calculate hazardous allowances for bending, welding workers overtime as prescribed by law.

FDVN Law Firm's legal opinions regarding the request of the client base on studying legal regulations. Hopefully, FDVN's advice will be helpful to you.

Legal advisor: Ngo Thi My Tram

FDVN Law Firm

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