Cần Sửa Đổi Nội Quy Lao Động Khi Bộ Luật Lao Động Mới Có Hiệu Lực

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Bộ luật lao động mới được Quốc hội thông qua tháng 06/2012 và sẽ có hiệu lực thi hành chính thức kể từ ngày 01/05/2013 (Sau đây gọi là “BLLĐ 2012”). Với sự ra đời của BLLĐ 2012, hàng loạt quy định liên quan đến xử lý kỷ luật lao động đã được điều chỉnh theo hướng cụ thể hóa, theo sát thực tế sử dụng lao động hơn so với BLLĐ hiện hành. Những điều chỉnh ấy có tác động thế nào đến doanh nghiệp và có cần thiết phải sửa đổi lại nội dung của nội quy lao động (“NQLĐ”) đã đăng ký hay không là vấn đề mà nhiều nhà quản trị nhân sự đang quan tâm.

NQLĐ cần sửa đổi, bổ sung

Theo quy định hiện hành, NQLĐ thường yêu cầu phải có các nội dung chính như: (i) thời giờ làm việc và thời giờ nghỉ ngơi; (ii) trật tự trong doanh nghiệp; (iii) an toàn lao động, vệ sinh lao động; (iv) bảo vệ tài sản, bí mật công nghệ, kinh doanh của người sử dụng lao động (“NSDLĐ”); các hành vi vi phạm kỷ luật lao động, hình thức xử lý và trách nhiệm vật chất. Các nội dung này đã được sửa đổi, bổ sung khá nhiều trong BLLĐ 2012 và nếu doanh nghiệp không sửa đổi, bổ sung NQLĐ lại cho phù hợp thì một số nội dung đó sẽ có thể gây bất lợi cho NSDLĐ trong quản lý nhân sự hoặc xử lý vi phạm kỷ luật lao động trong doanh nghiệp.

Những điều chỉnh quan trọng liên quan đến NQLĐ

Điều chỉnh đầu tiên:  thời giờ làm việc và thời giờ nghỉ ngơi của NLĐ :

Đây là vấn đề hết sức quan trọng trong mỗi doanh nghiệp vì thời giờ làm việc, nghỉ ngơi của mỗi doanh nghiệp sẽ khác nhau tùy theo đặc tính mùa vụ và kinh doanh của mỗi lĩnh vực, ngành nghề. BLLĐ 2012 sẽ cho phép NSDLĐ có những thay đổi linh hoạt hơn trong việc bố trí thời giờ lao động và nghỉ ngơi của người lao động (“NLĐ”).

Cụ thể, thời giờ làm việc bình thường phải bảo đảm không quá 8 giờ/ngày và 48 giờ/tuần.[1] Một tín hiệu mừng cho NSDLĐ là NSDLĐ có quyền quy định làm việc theo giờ hoặc ngày hoặc tuần, nếu quy định thời giờ làm việc theo tuần thì thời giờ làm việc bình thường của NLĐ có thể lên đến 10 giờ/ngày.[2] Quy đinh này sẽ giúp doanh nghiệp có sự linh hoạt trong việc quy định thời gian làm việc phù hợp với hoạt động sản xuất, kinh doanh của mình. Gắn liền với thời gian làm việc, doanh nghiệp cần chú ý đến thời gian làm thêm giờ của NLĐ sẽ được quy định tương ứng với thời giờ làm việc theo ngày và theo tuần. Cụ thể, trong điều kiện làm việc bình thường thì thời gian làm thêm giờ của NLĐ sẽ không vượt quá 50% số giờ làm việc bình thường trong ngày. Nếu doanh nghiệp áp dụng thời gian làm việc theo tuần thì số giờ làm việc bình thường và số giờ làm thêm không được quá 12 giờ/ngày. Tổng số giờ làm thêm của NLĐ không được quá 30 giờ/tháng và không quá 200 giờ/năm, trừ trường hợp đặc biệt không quá 300 giờ/năm do Thủ tướng Chính phủ quy định.[3] Ngoài ra, để đảm bảo cho việc tái tạo sức lao động cho NLĐ, NSDLĐ phải bố trí để NLĐ được nghỉ bù. Mặc dù vậy, NSDLĐ có thể bố trí việc nghỉ bù sau mỗi đợt NLĐ “làm thêm giờ nhiều ngày liên tục trong tháng” chứ không nhất thiết là phải bố trí nghỉ bù ngay sau mỗi lần NLĐ phải làm thêm giờ.

Cũng liên quan đến thời giờ làm việc, giờ làm việc vào ban đêm của NLĐ cũng được BLLĐ 2012 quy định thống nhất là từ 22 giờ đêm hôm trước đến 6 giờ sáng hôm sau mà không phân tách thành hai khung giờ theo khu vực địa lý như hiện nay nữa. Việc điều chỉnh kịp thời nội dung này trong NQLĐ không những giúp doanh nghiệp cập nhật kịp thời quy định của BLLĐ mà còn giúp doanh nghiệp chuẩn bị kế hoạch sản xuất, kinh doanh và thanh toán các khoản tiền lương, tiền làm thêm giờ cho NLĐ phù hợp với quy định của pháp luật.

thoi-gio-lam-viec

Liên quan đến thời giờ nghỉ ngơi của NLĐ, một trong những sửa đổi cũng đáng chú ý là thời gian nghỉ tết âm lịch của NLĐ sẽ được kéo dài thêm một ngày (Điều 106.2.(c) BLLĐ 2012) so với quy định của pháp luật hiện hành.. Ngoài ra, mặc dù thời gian nghỉ giữa giờ làm việc (30 phút tính vào giờ làm việc đối với NLĐ làm việc liên tục 8 giờ hoặc 6 giờ hoặc 45 phút tính vào giờ làm việc đối với NLĐ làm việc ban đêm) vẫn được giữ nguyên như BLLĐ hiện hành nhưng BLLĐ 2012 yêu cầu NSDLĐ phải quy định rõ ràng thời điểm của các đợt nghỉ này trong NQLĐ[4] để áp dụng thống nhất trong doanh nghiệp. Điều đó cho thấy, việc điều chỉnh những quy định trong NQLĐ về thời giờ làm việc, thời giờ nghỉ ngơi theo quy định mới trong BLLĐ 2012 là hết sức cần thiết để kịp thời cập nhật và áp dụng những thay đổi đó trong doanh nghiệp ngay khi BLLĐ 2012 có hiệu lực.

Điều chỉnh thứ hai: các hình thức xử lý kỷ luật đối với NLĐ:

BLLĐ 2012 đã bãi bỏ hình thức kỷ luật “chuyển làm công việc khác có mức lương thấp hơn trong thời hạn tối đa là sáu tháng” đối với NLĐ vì cho rằng NSDLĐ có thể vận dụng để trù dập NLĐ và dẫn đến việc là cũng sẽ không còn áp dụng hình thức xử lý sa thải NLĐ do tái phạm hình thức kỷ luật này. Như vậy, mặc dù vẫn còn tồn tại ba mức độ xử lý kỷ luật lao động khác nhau gồm (i) khiển trách, (ii) kéo dài thời hạn nâng lương không quá sáu tháng hoặc cách chức và (iii) sa thải (Điều 125) nhưng ở mức độ thứ (ii) NSDLĐ chỉ được lựa chọn hình thức kỷ luật “kéo dài thời hạn nâng lương không quá 6 tháng” trong các trường hợp: (i) NLĐ đã bị khiển trách mà còn tái phạm; và (ii) không thể cách chức NLĐ vì họ không làm công việc mang tính chức vụ (thí dụ: bảo vệ, nhân viên các phòng ban…).

Điều chỉnh thứ ba: hình thức kỷ luật sa thải:

Ngoài các hành vi mà có thể bị kỷ luật sa thải đã được quy định trong BLLĐ hiện hành, BLLĐ 2012 có quy định thêm một số hành vi khác gồm “đánh bạc, cố ý gây thương tích, sử dụng ma túy trong phạm vi nơi làm việc, xâm phạm quyền sở hữu trí tuệ hoặc có hành vi đe dọa gây thiệt hại đăc biệt nghiêm trọng về tài sản, lợi ích của người sử dụng lao động”.[5] Như vậy, việc quy định thêm những hành vi này giúp cho NSDLĐ có cơ sở pháp lý rõ ràng để đưa vào NQLĐ của doanh nghiệp để áp dụng hình thức sa thải đối với NLĐ thực hiện những hành vi nói trên. Hiện nay, các hành vi trên không được đưa vào các vi phạm mà NSDLĐ có thể áp dụng hình thức kỷ luật sa thải.

sa-thai

Tuy nhiên, trong nhóm các hành vi vi phạm này, NSDLĐ cần hết sức lưu ý khi quy định về các hành vi vi phạm quyền sở hữu trí tuệ của doanh nghiệp. Không giống như những hành vi vi phạm dễ dàng nhận biết như đánh bạc, cố ý gây thương tích hay sử dụng ma túy, phát hiện và làm rõ hành vi vi phạm quyền sở hữu trí tuệ không hề đơn giản trong khi tài sản về sở hữu trí tuệ là một trong những tài sản vô cùng quý giá của doanh nghiệp. Từ đó, việc đưa những hành vi vi phạm nói trên vào NQLĐ là hết sức cần thiết nhưng việc lượng hóa những vi phạm đó để có thể áp dụng ngay khi vi phạm đó xảy ra mới là yếu tố quyết định trong xử lý vi phạm kỷ luật. Do vậy, để có căn cứ xử lý sa thải NLĐ khi thực hiện những hành vi vi phạm như được bổ sung trong BLLĐ 2012, NSDLĐ phải bổ sung và chi tiết hóa tối đa các vi phạm nêu trên trong NQLĐ của doanh nghiệp. Nếu không, khi NLĐ thực hiện những hành vi này thì không thể xử lý hình thức thức kỷ luật sa thải với họ được.

Điều chỉnh thứ tư: trách nhiệm vật chất:

Trách nhiệm vật chất của NLĐ trong trường hợp vi phạm kỷ luật mà hành vi vi phạm của họ dẫn đến hư hỏng dụng cụ, thiết bị hoặc gây thiệt hại tài sản cho NSDLĐ. Theo đó, cách xác định thiệt hại không nghiêm trọng và nghiêm trọng đã được điều chỉnh trong quy định của BLLĐ 2012. Nếu theo BLLĐ hiện hành, NLĐ do sơ suất gây thiệt hại dưới 05 triệu đồng thì sẽ được coi là thiệt hại không nghiêm trọng thì theo BLLĐ 2012, mức thiệt hại không nghiêm trọng sẽ được nâng lên đến 10 tháng lương tối thiểu vùng do Chính phủ công bố được áp dụng tại nơi NLĐ làm việc.[6] Quy định mới sẽ giúp cho việc xác định thiệt hại hợp lý hơn trong trường hợp tình hình kinh tế xã hội có những thay đổi thay vì xác định theo một con số cố định như quy định của BLLĐ hiện hành. Theo quy định này thì các thiệt hại do NLĐ gây ra đến mức nghiêm trọng mà theo đó là căn cứ để NSDLĐ áp dụng hình thức kỷ luật sa thải phải nhiều hơn 10 tháng lương tối thiểu vùng tại nơi NLĐ làm việc.

Khuyến nghị đối với doanh nghiệp

Trên đây là những thay đổi quan trọng về những nội dung cơ bản trong BLLĐ 2012 nên được đưa vào trong NQLĐ để áp dụng trong doanh nghiệp. Mặc dù BLLĐ 2012 chưa thấy yêu cầu NSDLĐ phải đăng ký lại NQLĐ (có thể sẽ được quy định trong nghị định hướng dẫn BLLĐ 2012 của Chính phủ trong thời gian tới), nhưng thiết nghĩ sự chủ động tiến hành nghiên cứu, soạn thảo các điều chỉnh cần thiết cho NQLĐ đã đăng ký từ bây giờ có thể là một động thái “khôn ngoan” của doanh nghiệp và đến khi BLLĐ 2012 có hiệu lực (01/05/2013) thì sẽ đăng ký lại NQLĐ ngay. Việc sửa đổi và đăng ký lại NQLĐ không chỉ giúp doanh nghiệp kịp thời cập nhật các quy định của NQLĐ nói chung để có cơ sở áp dụng khi có vi phạm kỷ luật lao động của NLĐ mà còn giúp cho NSDLĐ tuyên truyền đến NLĐ các quy định mới của pháp luật về lao động, để từ đó sẽ giúp cho việc tuân thủ pháp luật lao động đối với cả NSDLĐ và NLĐ và tạo nên một môi trường làm việc chuyên nghiệp có sự hài hòa lợi ích của cả hai chủ thể này trong mối quan hệ lao động

Theo quy định của BLLĐ 2012, doanh nghiệp sử dụng từ 10 NLĐ trở lên phải có NQLĐ bằng văn bản.[7] Trước những thay đổi có liên quan đến NQLĐ và thời gian có hiệu lực của BLLĐ 2012 không còn xa, việc chuẩn bị từ bây giờ dự thảo những sửa đổi, bổ sung đối với NQLĐ sẽ cho NSDLĐ có những chuẩn bị về vấn đề quản trị trước những thay đổi của pháp luật.[8]

Nếu bạn muốn biết thêm thông tin về cách chúng tôi có thể hỗ trợ bạn về các vấn đề về lao động và việc làm, xin vui lòng liên hệ với chúng tôi theo số điện thoại: +84 (28) 3622 3522 hoặc email cho chúng tôi tại info@phuoc-associates.com


[1] Điều 104.1 của BLLĐ 2012

[2] Điều 104.2 BLLĐ 2012

[3] Điều 106.2.(b) BLLĐ 2012

[4] Điều 108.3 BLLĐ 2012

[5] Điều 126.1 BLLĐ 2012

[6] Điều 130.1 BLLĐ 2012

[7] Điều 119.1 BLLĐ 2012

[8] Điều 122 BLLĐ 2012

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