(Chinhphu.vn) – In a limited liability company owned by the State with 100% of charter capital, the plan salary fund of employees is determined based on the number of employees and the average wage level associated with labor productivity and plan profits.

Mr. Phan Van Chau has been working at the wage labor division of Phong Dien Forestry State Company Limited, Thua Thien - Hue Province. His company is specialized in planting forest materials; exploitation and processing of pine resin and plantation timber; production of planting seedlings, management area to use more than 2,300 ha of forest, in which pine forest for resin accounts for more than 50%, the rest is material plantation forest.

In addition to the production and business tasks, the company must perform the task of managing and protecting forests, preventing and fighting forest fires on the entire area under management. Therefore, in addition to working hours of 8 hours a day, the company must organize and mobilize overtime forces (no more than 200 hours / labor / year) to direct forest fire guards to detect fires early remote, patrol and control people entering and leaving the forest, ready to participate in fire fighting when there are situations.

Overtime does not increase revenue simply like other industrial enterprises, but the goal is to ensure security and safety for forests to serve production and sustain the environment in the region as well as in the area district.

Every April, the Company builds overtime plans and is approved by the President of the company. This overtime cost is calculated and paid to employees equivalent to VND 330 million / year.

In 2017, the Company built a salary plan fund to serve as a basis for salary advance for employees in the company. Due to some objective conditions, the financial targets of production and business such as total revenue, total cost (no salary), labor productivity and profitability decreased compared to 2016.

Based on the planned targets, after calculating according to the guidance in the Circular 26/2016 / TT-BLĐTBXH, the planned average wage level is lower than the average wage in the labor contract.

Pursuant to Clause 5, Article 9 of the Circular 26/2016 / TT-BLDTBXH when the planned average wage level is lower than the average salary in the labor contract, the average planned salary level is calculated in the amount average salary in the labor contract.

When the competent authorities (Inter-Department of Finance and Department of Labor, Invalids and Social Affairs) perform the inspection and supervision, they only accept the average salary in the labor contract, not accept the paymentof nearly 330 million VND for overtime work and not included in the salary fund of workers, although on the company side cited the following bases:

- The labor contract is in the form prescribed by the Circular No. 21/2003 / TT-BLĐTBXH dated September 22, 2003 of the Ministry of Labor, Invalids and Social Affairs. In addition to other contents, in the labor contract, write: Salary and allowances; For labor issuesthat  not recorded in this labor contract, the provisions of the collective labor agreement shall apply.

The content of the valid Collective Labor Agreement states that: employees who are mobilized to work overtime shall be paid according to current law provisions.

- Point c, Clause 1, Article 21 of the Decree 05/2015 / ND-CP dated January 12, 2015 of the Government stipulating other supplementary amounts is an additional amount outside the salary, salary allowance ...; Points a and b; Clause 3, Article 4 of the Circular No. 47/2015 / TT-BLDTBXH regulates additional amounts determined and cannot determine the specific amount of money together with the salary agreed in the regular or irregular payment contract. in each pay period.

Through the receiving and responding system of businesses' recommendation, Mr. Phan Van Chau would like to request foran answer, can the overtime salary be added to the salary and considered as a salary in the labor contract?

Regarding this issue, Department of Labor Relations and Wages, Ministry of Labor, Invalids and Social Affairs responds as follows:

According to Clause 4, Clause 5, Article 9 and Clause 1, Article 14 of the Circular 26/2016 / TT-BLĐTBXH dated September 1, 2016 of the Ministry of Labor, Invalids and Social Affairs guiding the implementation of employees management, salary, and bonus for employees working in limited liability companies with 100% charter capital owned by the State, the plan salary fund of employees is determined based on the number of employees and the amount of money. The average salary associated with labor productivity and planned profit, in which a profitable company whose average wage is lower than the salary in the labor contract, the average planned salary level is calculated equal to the average salary in the labor contract.

The actual salary fund is determined on the basis of the actual average number of employees used and the average wage level associated with the increase or decrease of labor productivity and realized profit compared with the plan, in which iff the company loses or has no profit but the average wage level is lower than the salary under the labor contract, the actual wage fund is calculated on the average salary in the labor contract, plus the wage of holidays, Tet festival, paid leaves (if not taken into account) and additional pay when working at night, when working overtime in accordance with the Labor Code.

In case the company has a profit but the average wage level is lower than the wage under the labor contract, the company will base on the above principles to determine the salary fund for employees.

If the company has a profit but the average wage level is lower than the wage under the labor contract, the company will base on the above principles to determine the salary fund for employees.