Thông tư 04/2013/TT-BLĐTBXH Sửa hướng dẫn Luật BHXH về bảo hiểm thất nghiệp

Circular No. 04/2013/TT-BLDTBXH of March 1, 2013, amending and supplementing a number of articles of Circular No. 32/2010/TT-BLDTBXH of October 25, 2010, of the Ministry of Labor, War Invalids and Social Affairs, 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 Law on Social Insurance regarding unemployment insurance

Pursuant to the Government’s Decree No. 106/2012/ND-CP of December 20, 2012, 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 Law on Social Insurance regarding unemployment insurance (below referred to as Decree No. 127/2008/ND-CP);

Pursuant to the Government’s Decree No. 100/2012/ND-CP of November 21, 2012, amending and supplementing 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 Law on Social Insurance regarding unemployment insurance;

At the proposal of the Director of the Department of Employment;

The Minister of Labor, War Invalids and Social Affairs promulgates the Circular to amend and supplement a number of articles of Circular No. 32/2010/TT-BLDTBXH of October 25, 2010, of the Ministry of Labor, War Invalids and Social Affairs (below referred to as Circular No. 32/2010/TT-BLDTBXH), 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 Law on Social Insurance regarding unemployment insurance, as follows:

Article 1. To amend and supplement a number of articles of Circular No. 32/2010/TT-BLDTBXH as follows:

1. To amend and supplement Article 1 as follows:

“Article 1. Subjects and scope of application

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

2. To amend and supplement Article 2 as follows:

“Article 2. Conditions for enjoying unemployment insurance benefits

1. Unemployment insurance payer defined in Article 15 of amended and supplemented Decree No. 127/2008/ND-CP is guided for implementation as follows:

A person currently paying unemployment insurance is a person who paid unemployment insurance premiums in the months preceding the time of losing his/her job or terminating his/her labor contract or working contract. Those preceding months also include the following time:

a/ The months preceding the time of losing his/her job or terminating his/her labor contract or working contract, during which the laborer took a maternity leave or sick leave of 14 or more working days and received social insurance allowance without receiving salaries or wages from his/her employer.

b/ The months preceding the time of losing his/her job or terminating his/her labor contract or working contract, during which the laborer suspended the performance of his/her lawfully signed labor contract or working contract without receiving monthly salaries or wages from his/her employer.

2. Unemployed person eligible for unemployment insurance benefits when meeting all conditions prescribed in Article 15 of amended and supplemented Decree No. 127/2008/ND-CP is guided for implementation as follows:

a/ That person has paid unemployment insurance premiums as prescribed by law for at least full 12 months during the 24 months preceding the time of losing his/her job or terminating his/her labor contract or working contract.

A month will be included in the period of unemployment insurance premium payment period of a laborer if the employer and the laborer have paid unemployment insurance premiums and the laborer has performed the labor contract or working contract at least 1 day in this month.

b/ That person has registered his/her unemployment with a job center under a provincial-level Department of Labor, War Invalids and Social Affairs (below referred to as job center) as prescribed by law when losing his/her job or terminating his/her labor contract or working contract.

c/ That person fails to find a job after 15 working days counting from the date of registering his/her unemployment with the job center under Point b of this Clause, with the first day of this 15-day time limit being the working day following the date of registration.

Working days in all cases in this Circular are from Monday to the end of Friday in a week.”

3. To amend and supplement Clauses 6 and 7 of Article 3 as follows:

“6. A laborer who is receiving unemployment allowance but will no longer receive the unemployment allowance as prescribed in Clause 1, Article 23 of Decree No. 127/2008/ND-CP is guided for implementation as follows:

a/ The period of receiving unemployment allowance expires according to the decision on provision of unemployment allowance.

b/ That person finds a new job.

A laborer is considered finding a new job in one of the following cases:

- He/she has signed a labor contract or working contract with a term of at least full 3 months (including the paid probation time). The date on which the laborer is considered finding a new job is the date on which the labor contract or working contract takes effect as prescribed by law;

- He/she receives a recruitment decision, for laborers for whom the labor contract or working contract is not concluded. The date of finding a job in this case is the date on which that person starts to work as written in the recruitment decision;

- He/she is the head of a business household or a businessperson receiving a business registration certificate from a competent agency:

For unconditional business lines: The date of finding a job of the head of a business household or a businessperson is the date written in the business registration certificate;

For conditional business lines: the date of finding a job of the head of a business household a businessperson is the date on which all business conditions are satisfied.

c/ That person performs the military service. The date on which a laborer is determined to start the military service is the date on which he/she is enlisted into the army.

d/ That person starts to receive monthly pension under a decision of a competent agency. The date on which a laborer is determined to retire is the first date on which the laborer starts to receive pension written in the decision on monthly pension.

dd/ That person refuses for the second time to take a job offered by the job center without a plausible reason.

A laborer who is receiving unemployment allowance is considered refusing to take a job without a plausible reason in the following cases:

- The laborer who is receiving unemployment allowance refuses to take a job in which he/she has been trained to do;

- The laborer who is receiving unemployment allowance refuses to take a job that he/she used to do;

- The laborer who is receiving unemployment insurance is a manual laborer and refuses to take a job that only requires manual labor.

e/ While receiving unemployment allowance, that person fails to report his/her job finding every month to the job center for 3 consecutive months.

g/ That person leaves the country for settlement abroad. The date on which a laborer is determined to leave Vietnam is the date on which his/her permanent residence registration is deleted as prescribed by the law on residence.

h/ That person has to implement a decision on administrative handling at a reformatory, an educational institution or a medical treatment facility (including detoxification at a detoxification center) or serve an unsuspended imprisonment sentence. The date on which a laborer is determined to implement the decision on application of an administrative handling measure is the date the laborer starts to implement the measure stated in the decision.

i/ That person dies.

In case a laborer who is receiving unemployment allowance has such allowance terminated in any of the cases above in a month, he/she is still entitled to the unemployment allowance for the whole month.

7. In the cases specified at Points b, c, d, g and h, Clause 6 of this Article, within 3 working days, the laborer shall notify the job center where he receives unemployment allowance according to form No. 21 enclosed with this Circular (if sending by post, this time limit will be counted based on the postmark), together with copies of papers related to the termination of the unemployment allowance, specifically as follows:

a/ A copy of the labor contract or working contract or recruitment decision or business registration certificate in the case specified at Point b, Clause 6 of this Article.

b/ A copy of the call-up paper in the case specified at Point c, Clause 6 of this Article.

c/ A copy of the decision on pension in the case specified at Point d, Clause 6 of this Article.

d/ The written certification by a competent agency of the deletion of permanent residence registration in the case specified at Point g, Clause 6 of this Article.

dd/ A copy of the decision in the case specified at Point h, Clause 6 of this Article.”

4. To amend and supplement Clauses 2 and 3 of Article 4 as follows:

“2. The level of vocational training support prescribed in Clause 2, Article 17 of amended and supplemented Decree No. 127/2008/ND-CP is guided for implementation as follows:

The level of vocational training support given to a laborer who is receiving unemployment allowance depends on training expenses for each occupation and complies with regulations of the Prime Minister.

When a laborer who is receiving unemployment allowance wishes to learn an occupation with training expenses higher than the prescribed support level, he/she shall pay for the excess.

3. The period of vocational training support prescribed in Clause 3, Article 17 of amended and supplemented Decree No. 127/2008/ND-CP is guided for implementation as follows:

The period of vocational training support depends on the training time of each occupation and the training need of each laborer, but must not exceed 6 months. The period of vocational training support is counted from the date the laborer starts to receive monthly unemployment allowance.

If a laborer wishes to learn an occupation while receiving unemployment allowance, he/she shall make a written request for vocational training support. The director of the provincial-level Department of Labor, War Invalids and Social Affairs shall issue a decision on provision of vocational training support within 15 working days after receiving such written request. In case a laborer is still learning an occupation or just prepares to learn an occupation under the decision of the director of the provincial-level Department of Labor, War Invalids and Social Affairs when the period of receiving unemployment allowance expires, he/she is still entitled to the vocational training support until the end of the training period.”

5. To amend and supplement Clauses 1, 2 and 3 of Article 9 as follows:

“1. Unemployment registration prescribed in Article 34 of amended and supplemented Decree No. 127/2008/ND-CP is guided for implementation as follows:

a/ Within 3 months from the date of losing a job or terminating his/her labor contract or working contract, if a laborer cannot find a job and wishes to receive unemployment allowance, he/she shall go in person to the job center of the locality where he/she works before losing a job or terminating his/her labor contract or working contract to register his/her unemployment. If he/she wishes to register his/her unemployment at another job center, a certification of non-registration of unemployment made by the job center of the locality where he/she works before losing a job or terminating his/her labor contract or working contract, is required.

The laborer shall make a written request for certification of non-registration of unemployment according to form No. 1a enclosed with this Circular. The job center of the locality where he/she works before losing a job or terminating his/her labor contract or working contract shall consider and certify the non-registration of unemployment according to form No. 1b enclosed with this Circular. The job center shall issue only 1 certification and the laborer shall carefully keep it.

The above 3-month time limit is counted in calendar months, starting from the date on which the laborer loses his/her job or terminates his/her labor contract or working contract to the same date three months later. If the ending month of this period has no corresponding date, this period will end on the last day of that month.

The laborer that registers his/her unemployment shall fully fill out unemployment registration form No. 1 enclosed with this Circular, and submit it to the job center. If that laborer registers his/her unemployment at a job center other than the local job center of the locality where he/she works before losing a job or terminating his/her labor contract or working contract, he/she shall submit the certification of non-registration of unemployment to that other job center, which has been made according to form No. 1b above.

The job center shall guide and check the information in the unemployment registration form, and give the laborer the unemployment registration information sheet according to form No. 2 enclosed with this Circular when receiving his/her unemployment registration form.

Example 5: Mr. Nguyen Van A terminates his labor contract on January 15, 2013. The deadline for him to register his unemployment is April 15, 2013.

b/ In case a laborer registers his/her unemployment within 7 days after the expiration of the time limit prescribed at Point a of this Clause, the laborer can be eligible for unemployment registration and receipt of unemployment insurance benefits if:

- He/she is sick or pregnant, and that sickness or pregnancy is certified by a hospital of district or higher level;

- He/she has an accident, and that accident is certified by a hospital of district or higher level, or by the traffic police if it is a traffic accident;

- He/she suffers a natural disaster or an epidemic, and it is certified by the chairperson of the People’s Committee of the commune, ward or township (below referred to as commune-level People’s Committee) according to the written request of the laborer.

2. The dossier of request for unemployment allowance prescribed in Article 37 of amended and supplemented Decree No. 127/2008/ND-CP, comprises:

a/ The written request for unemployment allowance, made according to form No. 3 enclosed with this Circular.

b/ A copy of the expired labor contract or working contract, or the agreement on the termination of the labor contract or working contract, or the decision on job discontinuation, or the certification of the unilateral termination of the labor contract or working contract as prescribed by law.

At the same time, the laborer shall present the social insurance book, which contains the certification of the social insurance agency of the payment of unemployment insurance premium or the written certification of the social insurance agency of the payment of unemployment insurance premium.

The laborer shall submit in person the complete dossier of request for unemployment allowance within 15 working days from the date of unemployment registration (the first day of the 15-day period is the working day following the date of unemployment registration by the laborer).

The job center shall receive the dossier only when it comprises all papers as prescribed and, after receiving the dossier, give the laborer a note of appointment according to form No. 4 enclosed with this Circular.

Example 6:

Mr. Hoang Van An registers his unemployment on January 15, 2013. The first day of the time limit for him to submit a dossier of request for unemployment allowance benefits is January 16, 2013. So, the deadline for Mr. An to submit a dossier of request for unemployment insurance benefits is February 5, 2013 (according to the time limit of 15 working days from the date of unemployment registration).

A laborer is exempt from submitting in person a dossier of request for unemployment insurance benefits in the following cases:

- He/she is sick or pregnant, and that sickness or pregnancy is certified by a hospital of district or higher level;

- He/she has an accident, and that accident is certified by a hospital of district or higher level, or by the traffic police if it is a traffic accident;

- He/she suffers from a natural disaster or an epidemic, and it is certified by the chairperson of the commune-level People’s Committee according to the written request of the laborer.

When the laborer is not able to submit in person the dossier to the job center, he/she may appoint another person to submit it, or send it by post (the postmark will be used to determine the deadline).

3. Provision of unemployment insurance benefits prescribed in Clause 2, Article 38 of amended and supplemented Decree No. 127/2008/ND-CP, is guided for implementation as follows:

a/ Time limit:

Twenty working days from the date of receipt of a dossier of request for unemployment insurance benefits as prescribed in Clause 2 of this Article.

b/ For cases eligible for unemployment insurance benefits:

- Unemployment allowance:

+ The director of the job center shall determine the unemployment allowance level and duration, and draft decisions on provision of unemployment allowance for each laborer, and submit them to the director of the provincial-level Department of Labor, War Invalids and Social Affairs for signing.

+ One copy of the decision of the director of the provincial-level Department of Labor, War Invalids and Social Affairs must be sent to the social insurance agency of the province or centrally run city (below referred to as provincial-level social insurance agency) for paying unemployment allowance; 1 copy kept by the provincial-level Department of Labor, War Invalids and Social Affairs; 1 copy sent to the job center for counseling and offering jobs, and monitoring the job finding of the laborer, and determining the status of unemployment in the case of suspending, terminating or continuing with the provision of unemployment allowance; and 1 copy given directly to the laborer at the job center. The decision on provision of unemployment allowance must be made according to form No. 5 enclosed with this Circular.

For cases entitled to one-off allowance as prescribed in Clause 2, Article 23 of Decree No. 127/2008/ND-CP, laborers shall make a written request for one-off allowance according to form No. 06 enclosed with this Circular; the director of the job center shall determine the one-off allowance level, draft decisions on provision of one-off allowance for each laborer, and send them to the director of the provincial-level Department of Labor, War Invalids and Social Affairs for signing. One copy of the decision of the director of the provincial-level Department of Labor, War Invalids and Social Affairs will be sent to the provincial-level social insurance agency for payment; 1 copy kept by the provincial-level Department of Labor, War Invalids and Social Affairs; 1 copy sent to the job center; and 1 copy given to the laborer. The decision on provision of one-off allowance must be made according to form No. 7 enclosed with this Circular.

The order and procedures for paying unemployment allowance comply with the guidance of Vietnam Social Security.

- Job counseling and offering:

When registering unemployment, a laborer shall specify his/her need for job counseling and offering and vocational training in the unemployment registration form. The job center shall provide the laborer with job counseling and offering free of charge when he/she registers his/her unemployment. The funding for job counseling and offering for laborers during the period of receiving unemployment allowance complies with the guidance of the Ministry of Finance.

- Vocational training support:

+ A laborer who is receiving unemployment allowance and wishes to learn an occupation shall make a written request for vocational training support according to form No. 8 enclosed with this Circular, and send it to the job center. A laborer wishing to learn an occupation may submit a written request for vocational training support upon registering his/her unemployment.

+ The director of the job center shall determine the occupation and level of vocational training support, the vocational training period, the vocational training institution, and draft a decision on vocational training support, and send it to the director of the provincial-level Department of Labor, War Invalids and Social Affairs for signing. If a laborer makes a written request for vocational training support upon registering his/her unemployment, the time limit for the director of the provincial-level Department of Labor, War Invalids and Social Affairs to decide on his/her request will begin on the first day he/she receives unemployment allowance.

+ One copy of the decision of the director of the provincial-level Department of Labor, War Invalids and Social Affairs must be sent to the provincial-level social insurance agency for paying training fees to the vocational training institution; 1 copy kept by the provincial-level Department of Labor, War Invalids and Social Affairs; 1 copy sent to the job center for job counseling and offering after the laborer completes the training course; 1 copy sent to the vocational training institution; and 1 copy given directly to the laborer.

The decision on provision of vocational training support must be made according to form No. 9 enclosed with this Circular.

The order and procedures for providing vocational training support comply with the guidance of Vietnam Social Security.

c/ After 2 working days from the date written in the note of appointment for result reply, if the laborer does not come to receive the decision on provision of unemployment allowance or the decision on provision of vocational training support, he/she will be considered having no need for unemployment allowance or vocational training support. The job center shall request the director of the provincial-level Department of Labor, War Invalids and Social Affairs to sign and issue a decision to cancel the decision on provision of unemployment allowance or a decision to cancel the decision on provision of vocational training support.

The decision to cancel the decision on provision of unemployment allowance must be made according to form No. 22; the decision to cancel the decision on provision of vocational training support must be made according to form No. 23 enclosed with this Circular.

One copy of the decision to cancel the decision on provision of unemployment allowance or the decision to cancel the decision on provision of vocational training support must be sent to the provincial-level social insurance agency for terminating the payment of unemployment allowance or vocational training support, 1 copy kept by the provincial-level Department of Labor, War Invalids and Social Affairs, 1 copy sent to the job center, and 1 copy sent to the laborer.

When the decision on provision of unemployment allowance is cancelled, the unemployment insurance premium payment period of the laborer concerned will be accumulated under Article 21 of Decree No. 127/2008/ND-CP.

d/ Where a laborer who has received the decision on provision of unemployment allowance and has not yet received any unemployment allowance does not wish to receive unemployment allowance in order to have his/her unemployment insurance premium payment period accumulated under Article 21 of Decree No. 127/2008/ND-CP, he/she may make a written request for non-receipt of unemployment allowance according to form No. 24 enclosed with this Circular. The job center shall draft a decision to cancel the decision on provision of unemployment allowance according to form No. 22 enclosed with this Circular, and send it to the director of the provincial-level Department of Labor, War Invalids and Social Affairs for signing and issuance.

One copy of the decision to cancel the decision on provision of unemployment allowance must be sent to the provincial-level social insurance agency for terminating the payment of unemployment allowance, 1 copy kept by the provincial-level Department of Labor, War Invalids and Social Affairs, 1 copy sent to the job center and 1 copy sent to the laborer.

dd/ For cases ineligible for unemployment insurance benefits, the job center shall issue a written reply clearly explaining the reason according to form No. 10 enclosed with his Circular.”

6. To amend and supplement Article 10 as follows:

“Article 10. Change of places of receipt of unemployment insurance benefits

While receiving unemployment allowance, if a laborer wishes to move to another province or centrally run city and receive unemployment allowance in the new place, he/she shall make a written request for changing the place of receipt of unemployment allowance according to form No. 11 enclosed with this Circular, and send it to the job center which is paying unemployment allowance. The job center which is paying unemployment allowance shall make a letter of recommendation for change of the place of receipt of unemployment allowance at the request of the laborer, together with a copy of the decision on provision of unemployment allowance and a copy of the decision on provision of vocational training support (if any); copies of the reports on job finding, decision on suspension and resumption of payment of unemployment allowance (if any), and send a written notice to the provincial-level social insurance agency about such laborer’s change of the place of receipt of unemployment allowance.

Within 10 working days after receiving the letter of recommendation for change of the place of receipt of unemployment allowance and the papers mentioned above, the laborer shall submit them to the job center of the locality which he/she moves to for the latter to request the provincial-level social insurance agency to continue paying unemployment allowance (together with a copy of the decision on provision of unemployment allowance) and provide other benefits for the laborer as prescribed. The letter of recommendation for change of the place of receipt of unemployment allowance must be made according to form No. 12 enclosed with this Circular.

Vietnam Social Security shall pay unemployment allowance and issue health insurance cards to persons who change their places of receipt of unemployment allowance.”

7. To amend and supplement Clause 1 of Article 11 as follows:

“1. The monthly report on job finding prescribed in Clause 2, Article 34 of amended and supplemented Decree No. 127/2008/ND-CP, is guided for implementation as follows:

While receiving unemployment allowance, monthly a laborer shall go in person to the job center where he/she receives unemployment allowance to report on his/her job finding, except when:

- He/she is sick or pregnant and that sickness or pregnancy is certified by a hospital of district or higher level;

- He/she has an accident and that accident is certified by a hospital of district or higher level, or by the traffic police if it is a traffic accident;

- He/she is suffering a natural disaster or an epidemic, which is certified by the chairperson of the commune-level People’s Committee at the written request of the laborer.

If the laborer is unable to go in person to the job center in any of the cases mentioned above, within 3 working days from the prescribed date on which he/she is required to report on his/her job finding, he/she shall send papers as prescribed above to the job center where he/she receives unemployment allowance. For papers sent by post, the above time limit will be counted based on the postmark.

The date of reporting and confirmation of the job center must be written in the job finding reporting information sheet made according to form No. 25 enclosed with this Circular. The job finding reporting information sheet must be handed over to the laborer when he/she comes to receive the decision on provision of unemployment allowance.

When reporting on his/her job finding according to regulations, the laborer shall produce the decision on provision of unemployment allowance and the information sheet mentioned above for the job center to confirm his/her report. If the job finding reporting information sheet is lost, the laborer shall request the job center to re-issue it for monitoring.

The report on job finding must be made according to form No. 13 enclosed with this Circular.”

8. To amend and supplement Clauses 1, 2 and 3 of Article 17 as follows:

“1. To annually send notices of unemployment insurance premium payment to all laborers.

2. To close social insurance books and return them or issue written certifications of the unemployment insurance premium payment to laborers within 5 working days from the date of receipt of requests.

3. To pay monthly unemployment allowances and one-off allowances to laborers within 5 working days from the date of receipt of decisions of the directors of provincial-level Departments of Labor, War Invalids and Social Affairs. In case of failing to pay unemployment insurance benefits on time or rejecting improper requests for unemployment insurance benefits, to send written notices thereof, clearly stating the reasons, made according to form No. 26 enclosed with this Circular, to provincial-level Departments of Labor, War Invalids and Social Affairs and laborers concerned.

To issue health insurance cards and settle health insurance interests of persons eligible for unemployment insurance benefits.”

9. To amend and supplement Clauses 4 and 7 of Article 20 as follows:

“4. To preserve dossiers of unemployment insurance participation and provide laborers with information about unemployment insurance premium payment within 2 working days from the date on which laborers make their requests.”

“7. To notify local job centers of the number of laborers working as of May 1, 2013, according to form No. 27 enclosed with this Circular within 30 days from that date. Organizations that are established after April 15, 2013, shall notify the job centers of the number of their laborers within 30 days from the establishment date according to form No. 27 enclosed with this Circular.

Before the 25^th every month, employers shall notify local job centers of the change in the number of their employees (from the 20^th of the previous month to the 20^th of the notifying month) according to form No. 28 enclosed with this Circular.

In case an employer lays off 50 or more laborers, he/she/it shall immediately notify the local job center for prompt counseling and support as prescribed by law.”

10. To change the titles of forms enclosed with Circular No. 32/2010/TT-BLDTBXH as follows:

a/ To cancel form No. 11 and form No. 12;

b/ To change form No. 13 into form No. 11;

c/ To change form No. 14 into form No. 12;

d/ To change form No. 15 into form No. 13;

dd/ To change form No. 16 into form No. 14;

e/ To change form No. 17 into form No. 15;

f/ To change form No. 18 into form No. 16;

g/ To change form No. 19 into form No. 17;

h/ To change form No. 20 into form No. 18;

i/ To change form No. 21 into form No. 19;

k/ To change form No. 22 into form No. 20.

Article 2. Effect

1. This Circular takes effect on April 15, 2013.

2. Laborers who lose jobs or terminate their labor contracts or working contracts before January 15, 2013, and have not registered their unemployment by January 15, 2013, and the 7-day time limit for unemployment registration has not expired, as prescribed in Clause 1, Article 34 of Decree No. 127/2008/ND-CP, may register their unemployment with job centers within 3 months from the date they lose jobs or terminate their labor contracts or working contracts.

3. In case a deadline prescribed in this Circular falls on a holiday or a weekend, it will be extended to the working day following such holiday or weekend.

Any problems arising in the course of implementation should be reported to the Ministry of Labor, War Invalids and Social Affairs for timely additional guidance.-

For the Minister of Labor, War Invalids and Social Affairs
Deputy Minister
NGUYEN THANH HOA