Answer:
- The criterion determines a job with heavy, toxic, and dangerous nature or especially heavy, toxic, and dangerous nature
1.1 Criteria on the business line of enterprises
Jobs with heavy, toxic, and dangerous nature or especially heavy, toxic, and dangerous nature in the fields/business lines prescribed by law must fit the business line that the enterprise has registered.
For example:
- An active enterprise with the business line of shoe manufacturing cannot classify a job into the job of “Classify and treat discarded products” in the business line of auto and motorbike manufacture as prescribed in Circular 11/2020/TT-BLĐTBXH of MOLISA dated 12 November 2012; and
- An active enterprise with the business line of shoe manufacturing can classify a job into the job of “apply glue to shoe soles and vamps” in the business line of enamelled steel, plastic, sundries, leather, shoes, paper, wood, matches as prescribed in Section IX.29 of List attached to Circular 11/2020/TT-BLDTBXH of MOLISA dated 12 November 2020.
1.2 Criteria on the job title
The job title of an Employee who does the job with heavy, toxic, and dangerous nature must fit the one in the List of jobs with heavy, toxic, and dangerous or especially heavy, toxic, and dangerous nature. At the same time, upon registering the List of Employees who participate in SI and HI, an Employer must fully declare the job titles according to the List of jobs with heavy, toxic, and dangerous/especially heavy, toxic, and dangerous nature and following the guidelines of the competent insurance agencies, because if the job title of any Employee who does the job with heavy, toxic, and dangerous/especially heavy, toxic, and dangerous nature does not fit the names prescribed by law and not follow the guidelines of the competent insurance agencies, the SI agency may not agree to allow such an Employee to enjoy the regimes applicable to the Employees who do the jobs with heavy, toxic, and dangerous/especially heavy, toxic, and dangerous nature. In this case, the Employer must conduct the procedure for amending the job title at the SI agency to protect the rights and interests of the said Employee.
1.3 The actual working conditions of the job with heavy, toxic, and dangerous/especially heavy, toxic, and dangerous nature at the enterprise must be the same as the working conditions of the List of jobs with heavy, toxic, and dangerous/especially heavy, toxic, and dangerous nature as prescribed by law.
For example: The job “Rolling rubber in shoe manufacturing” must have the characteristics of the working condition “Heavy job with frequent contact with high temperatures, noise, dust, toxic gases SO2 and H2S” as prescribed in Section IX.32 of List attached to Circular 11/2020/TT-BLDTBXH of MOLISA dated 12 November 2020.
The criterion on climatic, dust and other environmental factors are determined based on the following legal documents:
- Criterion on dust concentration in the air: Decision 3733/2002/QĐ-BYT dated 10 October 2012;
- Criterion on indexes of toxic substances in the air: QCVN 06: 2009/BTNMT;
- Criterion on permitted vibrations: Circular 27/2016/TT-BYT dated 30 June 2016;
- Criterion on permitted noise: Circular 24/2016/TT-BYT dated 30 June 2016; and
- Standards on permitted climatic conditions: Circular 26/2016/TT-BYT dated 30 June 2016.
Note: these The said Circulars may be changed from time to time, so it is necessary to check their validity before application.
For said dangerous and hazardous elements to which the Ministry of Health has prescribed limited access to protect the Employees against hazards, the Employer must conduct a labour environment survey to assess hazardous elements at least once a year by hiring an organisation that provides the service of labour environment survey and which has sufficient infrastructure, materials, equipment, and human power to carry out the survey.
In case after looking up all the List of jobs with heavy, toxic, and dangerous/especially heavy, toxic, and dangerous nature which is stated in legal instruments issued by the MOLISA, the Employer cannot find a job to be matched with the enterprise’s business line or business activities, but these non-listed jobs are actually carried out, and the Employer thinks the Employer should be added to the List to protect the legitimate rights and interests for the Employees, the Employer will then send an Official Letter to the competent SI agency and the MOLISA for considerations.
2. The regime of in-kind allowances for any Employee who works in a toxic or dangerous environment
2.1 Conditions for Employees to enjoy the regime of in-kind allowances
Any Employee will be entitled to the regime of in-kind allowances if he or she fully satisfies the following conditions:
- Doing the job in the List of jobs with heavy, toxic, and dangerous/especially heavy, toxic, and dangerous nature issued by the MOLISA. A job will be determined as having heavy, toxic, and dangerous/especially heavy, toxic, and dangerous nature based on the above criteria; and
- Working in a labour environment with at least one of the dangerous or toxic elements which do not satisfy the sanitary standards prescribed by the Ministry of Health, or indirectly contact with the sources of infectious diseases. Whether an Employee works in an environment with dangerous or toxic elements will depend on the results of the labour environment survey conducted by an organisation that is qualified to provide this service.
The in-kind allowance is to partly compensate the Employee who does any job with heavy, toxic, and dangerous/especially heavy, toxic, and dangerous nature against the hardship and damage that he or she has to endure in performing the jobs and to encourage him or her to keep doing his or her job well and maintain the working capacity. Therefore, to ensure the rights and interests that the Employee is entitled to, the Employer must regularly conduct the labour environment survey if the enterprise hires the Employee to do the job with heavy, toxic, and dangerous/especially heavy, toxic, and dangerous nature. Technically, the Employer must apply technical measures and use the equipment of labour safety and hygiene to improve working conditions; when the dangerous or toxic elements are not completely removed, the Employer must provide in-kind allowance for the Employee to prevent diseases and protect his or her health. When the Employer has applied technical measures and used the equipment of labour safety and hygiene to improve working conditions, and ensures the dangerous or toxic elements no longer exist, the regime of in-kind allowances can be stopped[1].
2.2 In-kind allowance rate for the Employee will be determined based on the kinds of jobs with heavy, toxic, and dangerous/especially heavy, toxic, and dangerous nature. In every legal document that prescribes the List of jobs with heavy, toxic, and dangerous/especially heavy, toxic, and dangerous nature, there is a distinction between the jobs with heavy, toxic, and dangerous nature and the jobs with especially heavy, toxic, and dangerous nature, especially type IV, V, VI. In the same business line, there may be the jobs with heavy, toxic, and dangerous (Type IV) and the jobs with especially heavy, toxic, and dangerous nature (Types V and VI), depending on the working conditions and the degrees of heaviness and danger of each job.
[1] Article 4.1 of Circular 25/2013/TT-BLDTBXH of the MOLISA dated 18 October 2013
