THE AUTHORITY AND PROCEDURES FOR IDENTIFYING THE NUMBER OF EMPLOYEES TEMPORARILY RESIGNING SO THAT T

FDVN’s Opinions:

          - According to Official Dispatch No. 9739/SLĐTBXH-LĐ dated April 1, 2020 by the Department of Labor, Invalids and Social affairs in Ho Chi Minh City guiding the dossiers on identifying the number of employees who participate in the social insurance temporarily resign because the enterprises are affected by the Covid-19 epidemic, the enterprises which cannot arrange the work for the employees, in which a number of employees who participate in social insurance and temporarily resign before the enterprises temporarily stop producing and doing business reach over 50% of the total available employees, are entitled to postpone the social insurance payment.

          - According to Article 28 of Circular No. 59/2015/TT-BLDTBXH dated December 29, 2015 by the Ministry of Labor, Invalids and Social affairs and Decision No. 840/LDTBXH-BHXH dated June 28, 2016 by the Ministry of Labor, Invalids and Social on the procedures recommended to identifying the number of employees who participate in the social insurance and temporarily resigns:

          “Article 28. Suspension of payment to the pension and death fund

          2. The authority and procedures for identifying the number of employees who participate in the social insurance and temporarily resigns and the value of damaged properties specified in Clause 2, Article 16 of Decree No. 115/2015/ND-CP as follows:

          a) The authority to identify the number of employees who participate in social insurance and temporarily resign for the Agencies, units, organizations and enterprises under the management of local People’s Committee is done by the local agencies of Labor – Invalids and Social; Affairs by the Ministries and sectors for the bodies, units, organizations and enterprises under the management of Ministries, sectors of central Government. The number of employees who participate in social insurance and temporarily resign is calculated in comparison with the total employees present before the suspended business and production.

          The authority to identify the value of damaged properties for the agencies, units, organizations and enterprises under the management of local People’s Committee is done by the local financial agencies; for the agencies, units, organizations and enterprises under the management of Ministries, central branches is done by the finance agencies of the ministries, branches or the Ministry of Finance. The value of damaged properties is calculated in comparison with the value of properties based on the last property statistics report before the time of damage.

          b) The employers specified under Point a, Clause 2, Article 16 of Decree No. 115/2015/NĐ-CP should submit a written request enclosed with the list of employees at the time before the suspended business and production and at the time of request and the list of employees who participate in the social insurance and temporarily resign.

          The employers specified under Point b, Clause 2, Article 16 of Decree No. 115/2015/ND-CP should submit a written request enclosed with the last property statistics report before the time of damage; the record of damaged property statistics by natural disaster, fire, epidemics and crop failure.

          c) Within 15 working days after receiving the request from the employers, the Agency specified under Point a of this Clause shall review, determine and give a written reply to the employers.

          3. The employers must ensure the conditions specified in Clauses 1, 2 and 3, Article 16 of Decree No. 115/2015/ND-CP and request in writing the temporary stop of payment to the retirement and death fund enclosed with document identifying the number of employees who participate in the social insurance and temporarily resign or the document identifying the value of damaged properties to be submitted to the social insurance agency.

          4. Within 10 working days after receiving the employer’s dossier, the social insurance body shall deal with the temporary stop of payment to the retirement and death fund or reply in writing stating the reasons in case of disapproval.

          The time of temporary stop of payment to the retirement and death fund is calculated from the month the employers request in writing.”

* The dossiers consist of:

          - Written proposal of enterprises;

          - List of employees at the time before the temporary production and business termination and at the time of proposal;

          - List of employees who participate in the social insurance and temporarily resign.

          In addition to the record (original), the enterprises are responsible for providing the documentation for comparing (copies), including: enterprise registration certificate; papers relating to that the enterprises have halted their production and business for the Covid-19; timesheets and payrolls before suspending their production and business and at the time being requested under an official dispatch; papers related to employees who temporarily resign (agreement on temporarily postpone the labor contract, agreement on resigning without paying, severance...); monthly notification on the result of social insurance, medical insurance, unemployment insurance, occupational accidents and diseases insurance payment granted by the social insurance agencies (the latest result).

*Place of submission:

          “a) Send to agencies, Ministries and Central agencies: for businesses under the Ministries and Central management agencies to confirm.

          b) Send to the Department of Labor, Invalids and Social Affairs of Ho Chi Minh City to confirm for: State –owned one member limited company, joint stock company of which the capital  of the charter capital belonging to the people's Committee of Ho Chi Minh city management; foreign investors under the provisions of the investment Law.

          c) Send to the Department of Labor, Invalids and Social district (where the enterprise is headquartered) to confirm with respect to the remaining businesses (except enterprises of point a and b).”

*Time for settlement: (According to Section 5, Part II, Official Letter No. 9739 / SLĐTBXH-LD)

          Maximum of 15 working days

Legal expert: Hoang Tran Ngoc Anh

FDVN Law Firm