Answer:
1. As prescribed by the Labour Code, salary allowances are construed as[1]:
- The monetary amounts to compensate for the elements of working condition, the job with complicated nature, living condition, labour force attraction which have not been counted into the LC salary or have not been considered satisfactory. These include:
- The amount to compensate for working conditions: applicable to the Employee doing any job with heavy, toxic, and dangerous nature or especially heavy, toxic, and dangerous nature;
- The amount to compensate for the job with complicated nature: applicable to any Employee doing the jobs which require him or her to pass a training period, to have professional knowledge or expertise, high responsibilities, or which influence other jobs, require years of experience, working and communication skills, or the skill of coordination;
- The amount to compensate for living conditions: applicable to any Employee doing the jobs in distant, secluded areas with hard conditions and extreme climates, areas with high living costs or housing difficulties, and the jobs which require the Employee to move constantly or change his or her residence regularly, and other elements which make the Employee’s living conditions unfavourable for his or her job; and
- The amount to compensate for the element of labour force attraction: this is used to encourage the Employee to work in new economic zones, new markets; to do the jobs with less interesting nature or the labour market of which is still limited; to encourage the Employee to work with higher performance and quality or to fulfil the progress of the assigned tasks.
- The amounts going with the working process and the task performance results of the Employee.
2. According to the above regulations, the amounts which the Employer pay to the Employee monthly other than salary such as: (i) for the Employee working in factories distant from cities: a life support payment (“Life Support Payment”), a meal payment (the Employer engages a contractor to serve meals in the factory canteen) (“Meal Payment”); (ii) for the Employee working in offices in the cities’ centres: an amount to help the Employee pay for his or her meals (also called “Meal Payment”). These payments will be construed as follows:
- Life Support Payment can be considered a salary allowance to compensate for the living conditions if it is made to the Employee to compensate for the element of living conditions because the the Employee works in distant, secluded factories with many difficulties and extreme climates, or areas with high living costs or housing difficulties, etc. as mentioned above.
- Meal Payments can be construed as follows:
- If the Employee works on shifts and receive a payment for the in-shift meal, then the Meal Payment, in this case, is considered as the In-Shift Meal Payment or a benefit that the Employer pays to the Employee[2]. In this case, a working shift is construed as a period of 06 hours or more per working day[3]. In addition, the Meal Payment, in this case, will not be counted into the monthly salary as the basis to pay SI premiums[4].
- If the Employee does not work on shifts but only work during normal business hours, and receive a meal payment on all working days, the Meal Payment, in this case, will be considered as a Supplementary Amount which is a specific amount and paid regularly by the Employer at the same time of salary payment[5]. In this case, normal business hours prescribed by the Labour Code are non-consecutive 08 hours per day in normal working conditions, and compliance with the working hours as prescribed by labour law means not to work over 08 hours per day and 48 hours per week (if the Employer specifies the number of working hours per day) or not over 10 hours per day and 48 hours per week (if the Employer specifies the number of working hours per week). The Meal Payment in this case will not be counted into the salary as the basis to pay SI premiums[6].
Of note, salary allowances, supplementary amounts and benefits paid to the Employee must be specified in the LC[7].
[1]Article 3.5 (b) of Circular 10/2020/TT-BLDTBXH of the MOLISA dated 12/11/2020 and Article 3.1 (b) Circular 23/2015/TT-BLĐTBXH of the MOLISA dated 23/06/2015.
[2]Article 3.5 (c2) of Circular 10/2020/TT-BLDTBXH of the MOLISA dated 12/11/2020.
[3]Article 64.4 of Decree 145/2020/ND-CP of the Government dated 14/12/2020.
[4]Article 17 of the Decree No. 115/2015/ND-CP dated 11/11/2015 and Article 30.3 of the Circular No. 59/2015/TT-BLDTBXH of the MOLISA dated 29/12/2015.
[5] Article 3.5 (c1) of the Circular 10/2020/TT-BLDTBXH of the MOLISA dated 12/11/2020.
[6] Article 17.2 of the Decree No. 115/2015/ND-CP of the Government dated 11/11/2015 and Article 30.2 of the Circular No. 59/2015/TT-BLDTBXH of the MOLISA dated 29/12/2015
[7] Article 3.5 of the Circular No. 10/2020/TT-BLDTBXH of the MOLISA dated 12/11/2020.
