Mrs. Nguyen Thi Hue (in Ha Nam Province) would like to ask: Does the pay for employees  in the annual leave days; increased annual leave days according to their seniority; public holidays,and the paid leave include responsibility allowance and allowance benefits for trade union officials?

Lawyer Tran Van Toan, Khanh Hung Law Office - Hanoi Bar Association responded to Mrs Hue’s question as follows:

Clause 2, Article 26 of Decree No. 05/2015 / ND-CP dated January 12, 2015 of the Government stipulating that the salary used as the basis for calculating the pay for employees in the annual leave days in Article 111; increased annual leave days according to their seniority in Article 112; public holidays in Article 115 and the paid leave in clause 1 of Article 116 of the Labor Code shall be the salary in the employment contract of the preceding month, divided by the number of normal working days in months defined by employers, multiplied by the number of days employees take annual leave, increased annual leave according to seniority, public holidays, paid leave days

Concerning the case of Mrs. Nguyen Thi Hue, pursuant to the above provisions, the salary used as the basis for calculating the pay for employees in the annual leave days; increased annual leave days according to their seniority; public holidays,and the paid leave shall be the salary in the employment contract of the preceding month.Although the salary in the labor contract does not specify the responsibility allowance orallowance benefits for trade union officials, Ms. Hue is offered these 2 allowances together with the salary each month. Does the pay for employees in the annual leave days; increased annual leave days according to their seniority; public holidays,and the paid leave include responsibility allowance and allowance benefits for trade union officials?

Pursuant to Clause 1, Clause 2, Article 21 of Decree No. 05/2015 / ND-CP, and Article 3 of Circular No. 23/2015 / TT-BLĐTBXH dated June 23, 2015 of the Ministry of Labor –invalids and social welfare, salary identified in the employment contract shall be agreed with the employer by the employee to perform certain jobs, including:

Work- or position-based salary shall be the salary rates in salary scale, salary table defined by the employer;

Salary allowance shall be the amounts offset against the working conditions, the complexity of jobs, the living conditions, the employee attraction level which is not included or incompletely included in work- and position-based salary;

Other extra payments shall be the sums in addition to salary rates, salary allowances, and shall be related to job performance or working position in the employment contract, excluding bonuses, meal- between- shift allowances, benefits, contributions of employers which are not related to job performance or position in the employment contract Salary paid to employees is based on the salary stated in the labor contract, labor productivity, quantity and quality of work performed by the employee.

Salary paid to employees shall be based on the contractual salary, productivity, workload and quality of work that the employees have done.

Regarding the case of Ms. Nguyen Thi Hue, although the salary in the labor contract does not specify the responsibility allowance orallowance benefits for trade union officials, Ms. Hue is offered these allowances together with the salary each month.

Pursuant to Regulation on allowance benefits for trade union officials (Issued with Decision No. 1439/QD-TLD dated December 14, 2011 of the Presidium of Vietnam General Confederation of Labor), the allowance for trade union officials under this Regulation includes: part-time allowance for the title of President, Vice President of grassroots trade union, the superior grassroots trade union or higher level working on part-time basis; the responsibility allowance for trade union officials (trade union officials specified by the Vietnam Trade Union Charter).Allowance expenditure on trade union officials must be used within the fund stipulated by the General Confederation.

  The trade union allowance is not added to the basic salary for payment and entitlement to social insurance and health insurance benefits. When leaving the part-time position of trade union official, the entitlement to trade union benefits will stop from the subsequent month.According to the lawyer, this allowance is not related to the performance of the job or title in the labor contract, so it is not contractual salary and not used as used as the basis for calculating the pay for employees in the annual leave days; increased annual leave days according to their seniority; public holidays,and the paid leave.

Regarding the responsibility allowances, according to the above provisions, responsibility allowances are allowances related to the performance of jobs or titles in labor contracts. Responsibility allowance is included in the salary in the employment contract.Regarding the case of Ms. Nguyen Thi Hue, although the salary in the labor contract does not specify the responsibility allowance orallowance benefits for trade union officials, Ms. Hue is offered these allowances together with the salary each month. These 2 allowances are considered as the salary in the employment contract which is the basis for calculating the pay for employees in the annual leave days; increased annual leave days according to their seniority; public holidays,and the paid leave.

Lawyer Tran Van Toan

Khanh Hung Lawyer Office, Hanoi Bar Association