Đẩy Khó Cho Ai?

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Đầu tháng 01/2014, Giám đốc Công ty sản xuất ăcquy X bất ngờ nhận được thông báo từ chị Y yêu cầu Công ty X chuyển chị sang làm công việc khác vì theo Thông tư 26/2013/TT-BLĐTBXH của Bộ Lao động, Thương binh và Xã hội đã có hiệu lực từ ngày 15/12/2013 (“Thông tư 26”), Công ty X không được sử dụng lao động nữ (“LĐN”) đang nuôi con dưới 12 tháng tuổi như chị Y làm công việc vận hành thiết bị nấu lá chì. Giám đốc và bộ phận nhân sự chưa biết giải quyết ra sao với trường hợp của chị Y bởi vì công ty không có việc làm mới để bố trí cho chị nhưng cũng không thể chấm dứt hợp đồng lao động với chị Y vì không có đủ cơ sở pháp lý.

Đây chỉ là một trong những vấn đề của Thông tư 26 hiện đang gây một số khó khăn trong thực tiễn áp dụng cho người sử dụng lao động (“NSDLĐ”).

Thứ nhất: Nghĩa vụ đào tạo lại, sắp xếp công việc mới cho người lao động nữ

Mặc dù Thông tư 26 được ban hành để bãi bỏ Thông tư Liên tịch số 40/2011/TTLT-BLĐTBXH-BYT ngày 28/12/2011 của liên tịch Bộ Lao động – Thương binh và Xã hội – Bộ Y tế về quy định các điều kiện lao động có hại và các công việc không được sử dụng LĐN, LĐN có thai hoặc đang nuôi con dưới 12 tháng tuổi (“Thông tư 40”), nghĩa là Thông tư 26 cũng không đặt ra một vấn đề gì quá mới mẻ trong chính sách bảo vệ sức khỏe LĐN, nhưng Thông tư 26 có bổ sung thêm một số ngành nghề không được sử dụng LĐN nói chung và LĐN đang mang thai và nuôi con dưới 12 tháng tuổi nói riêng. Điều này có nghĩa là từ giữa tháng 12/2013, có thêm nhiều trường hợp NSDLĐ bắt buộc phải đào tạo lại, sắp xếp, bố trí công việc mới cho LĐN để phù hợp với Thông tư 26.

Nghĩa vụ này thoạt nhìn cũng giống với nghĩa vụ của NSDLĐ khi doanh nghiệp thay đổi cơ cấu, công nghệ hoặc vì lý do kinh tế. Tuy nhiên, liệu rằng theo Thông tư 26, NSDLĐ có được cho LĐN thôi việc nếu không giải quyết được việc làm mới cho họ; và chỉ phải đào tạo lại LĐN nếu có chỗ làm việc mới như quy định tại Điều 44 của Bộ luật Lao động hay không? Nói không thì NSDLĐ gặp khó khăn quá nhiều trong vấn đề đào tạo lại và sắp xếp công việc mới cho LĐN. Nhưng nói được, thì không biết cơ sở pháp lý ở đâu.

Đó là chưa kể đến chuyện hiện nay cũng chưa có quy định cụ thể về việc đào tạo lại cho LĐN, chẳng hạn như đơn vị đào tạo là ai, tự bản thân NSDLĐ đào tạo lại có được không; đào tạo như thế nào; đào tạo xong có bắt buộc phải thi cử hay xét tuyển không nếu có nhiều người lao động cần bố trí công việc mới nhưng chỉ có một số lượng nhỏ công việc còn chỗ trống…

Thứ hai: Tình trạng pháp lý của các hợp đồng lao động đã ký

Các hợp đồng lao động trước đây đã được NSDLĐ ký kết với LĐN trong đó giao cho LĐN làm công việc được quy định tại Thông tư 26 thì sau khi Thông tư 26 có hiệu lực, các hợp đồng lao động đó có thể bị vô hiệu toàn bộ do công việc mà hai bên đã giao kết là công việc bị pháp luật cấm. Dù vậy, các hợp đồng lao động như vậy không thể đương nhiên vô hiệu ngay mà theo quy định của pháp luật là phải đợi quyết định tuyên bố vô hiệu bởi thanh tra lao động hoặc tòa án. Cho nên, chừng nào mà thanh tra lao động hoặc tòa án còn chưa tuyên bố hợp đồng lao động vô hiệu thì chừng đó hợp đồng lao động vẫn được cho là có hiệu lực và tiếp tục được thực hiện.

Để tuân thủ Thông tư 26, ở vị trí của mình, NSDLĐ đã đề nghị sửa đổi hợp đồng lao động đã ký để bố trí công việc khác phù hợp hơn cho LĐN, nhưng cái khó là nếu LĐN lại không đồng ý sửa đổi hợp đồng lao động khi thấy mức lương và phúc lợi của mình thấp hơn so với công việc nặng nhọc, nguy hiểm trước đây. NSDLĐ đã bị đẩy vào tình thế tiến thoái lưỡng nan, tiếp tục thực hiện hợp đồng lao động thì vi phạm quy định pháp luật mà sửa đổi hợp đồng lao động thì không được người lao động đồng thuận.

Đối đế lắm thì NSDLĐ vẫn có quyền yêu cầu thanh tra lao động hoặc tòa án tuyên bố hợp đồng lao động đã ký là vô hiệu. Khi đó, nếu LĐN không chịu ký hợp đồng lao động mới, NSDLĐ sẽ có thể chấm dứt quan hệ lao động với họ nhưng việc yêu cầu thanh tra lao động hoặc tòa án can thiệp thường không phải là mong muốn của NSDLĐ vì thủ tục phức tạp và mất thời gian. NSDLĐ cuối cùng vẫn có cách xử trí đối với trường hợp trên, nhưng rõ ràng khi Thông tư 26 không có quy định để giải quyết những trường hợp như vậy, mà buộc NSDLĐ phải nhờ đến các cơ quan công quyền thì tức là đã đẩy tiếp cái khó cho NSDLĐ và cho thấy quan điểm không ủng hộ cách giải quyết vấn đề mang tính thân thiện mà thiên về đối đầu, gián tiếp làm cho quan hệ lao động giữa người lao động và NSDLĐ thêm căng thẳng.

Thứ ba: chấm dứt hợp đồng lao động đối với LĐN đang mang thai và nuôi con dưới 12 tháng tuổi

Khi NSDLĐ không thể giao kết hợp đồng lao động mới với LĐN bình thường hoặc người lao động nói chung sau khi hợp đồng lao động đã ký bị tuyên bố vô hiệu thì NSDLĐ có thể chấm dứt quan hệ lao động với những người lao động này, nhưng đối với trường hợp LĐN đang mang thai và nuôi con dưới 12 tháng tuổi thì sao? Pháp luật hiện nay quy định là NSDLĐ không được sa thải và đơn phương chấm dứt hợp đồng lao động đối với LĐN đang mang thai và nuôi con dưới 12 tháng tuổi nhưng không đề cập đến trường hợp sau khi hợp đồng lao động bị tuyên bố vô hiệu và hợp đồng lao động mới không được ký kết thì NSDLĐ có được chấm dứt quan hệ lao động với LĐN đang mang thai và nuôi con dưới 12 tháng tuổi hay không?

Trường hợp khác, LĐN sẵn sàng đồng ý sửa đổi bổ sung hợp đồng lao động đã ký nhưng NSDLĐ không thể bố trí việc làm mới cho LĐN đang mang thai và nuôi con dưới 12 tháng tuổi. Như vậy, NSDLĐ phải làm thế nào cho đúng? Đối với các trường hợp tái cấu trúc doanh nghiệp, NSDLĐ có thể tạm thời giữ vị trí hiện tại cho LĐN đến khi người này không còn nuôi con dưới 12 tháng tuổi nữa, nhưng nếu LĐN đang mang thai và nuôi con dưới 12 tháng tuổi đang làm các công việc như quy định tại Thông tư 26 mà không sắp xếp được công việc mới thì NSDLĐ cũng không biết tính thế nào cho ổn.

Thứ tư: Thực hiện Thông tư 26

Thông tư 26 không quy định rõ về giai đoạn chuyển tiếp để ấn định một khoảng thời gian cho NSDLĐ hoàn tất các nghĩa vụ đào tạo lại, bố trí công việc mới cho LĐN. Như vậy, ngay khi Thông tư 26 có hiệu lực, không kể đến những công việc đã được quy định tại Thông tư 40 trước đây, NSDLĐ ngay lập tức sẽ bị xem là không tuân thủ quy định pháp luật nếu chưa bố trí công việc mới cho LĐN đang làm các công việc mới được quy định tại Thông tư 26. Điều này không hợp lý và thực tế bởi vì việc đào tạo lại và bố trí công việc mới cho LĐN không thể diễn ra một sớm một chiều. Hơn nữa, khi NSDLĐ chuyển LĐNlàm công việc mới, NSDLĐ phải tuyển dụng những người lao động nam khác để thay thế và quá trình này cũng không thể diễn ra ngày một ngày hai. Như vậy, NSDLĐ bị đặt vào hoàn cảnh tréo ngoe là phải vi phạm quy định pháp luật trong quá trình thực hiện các công việc khác để tuân thủ quy định pháp luật. Rủi ro cho NSDLĐ trong tình huống này là có thể còn bị xử phạt vi phạm hành chính trong lĩnh vực lao động.

LĐN là đối tượng đặc biệt được pháp luật lao động Việt Nam bảo vệ và dành cho nhiều ưu đãi. Thông tư 26 được ban hành dựa trên tinh thần đó nhưng với một quy định giản đơn, chưa được hướng dẫn chi tiết như hiện nay thì việc thực thi sẽ còn gặp khó khăn khi mà NSDLĐ không biết phải làm như thế nào để tuân thủ quy định. Khi thiếu các hướng dẫn cụ thể và một thời gian chuyển tiếp hợp lý, làm kiểu nào cũng có thể gặp rủi ro pháp lý, rất có thể NSDLĐ chọn phương án im lặng, tiếp tục tình trạng hiện tại nếu LĐN không biết và không có ý kiến gì. Nghĩa là LĐN sẽ vẫn tiếp tục làm các công việc nguy hiểm, nặng nhọc hay độc hại, và cùng lắm thì NSDLĐ chỉ bị xử phạt vi phạm hành chính mà thôi. Để đạt được mục tiêu bảo vệ LĐN và để NSDLĐ có cơ sở pháp lý thực hiện theo mục tiêu đó, cơ quan quản lý lao động cần có những hướng dẫn cụ thể, rõ ràng hơn trong quá trình thực hiện Thông tư 26.

Luật sư Nguyễn Hữu Phước

Công ty Phuoc & Associates

3124 Bình luận

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  161. ถ้าพูดลุการเดิมพันออนไลน์ ดำรงอยู่เปล่ามีอยู่ใครมิรู้จักมักคุ้น สโบเบท เกี่ยวกับตั้งแต่เปลือยส่งเสียบริการมานมนานเยอะแยะศก มีขั้นครอบครองทั้งๆ ที่เว็บพนันขันต่อออนไลน์
    อนุกรม 1 ก็มีอยู่ขาตลอดเก่าก่อนพร้อมทั้งสดเข้าไปร่วมมือพนันขันต่อพร้อมด้วยเกมกระยาเลย
    ชุกชุมทั้งที่เยอะตกขอบ พร้อมรวมหมดโปรโมชั่นตำแหน่งน่าจะตรึงใจทำนองสมาชิกนวชาตให้เปล่าเครดิต มิจำเป็นต้องฝาก
    พร้อมด้วยหน่วยกิตพื้นที่ได้รับยอมรับนั้นอีกทั้งทั้งเป็น เครดิตฟรี ขอคืนคว้าสุทธิ
    อีกแล้วจึงเปล่าน่าจะแปลกใจบริเวณหน้าใหม่หลากหลาย ๆ มนุชถึงแม้ว่าออกเสียงมาริลงสมัครสโบเบทแหล่งแค่ ไหว้วานขั้นต่ำ ร้อย ก็เป็นได้ยอมพนันหาได้ทั้งปวงสิ้นสุดอาคารบ้านเรือนบนบานเว็บสโบแล้วไป
    และในล่าสุดอาจบรรเลงเปลี่ยนโทรศัพท์ขาฉวยจัดหามาจบ หรือว่าจะสำแดงในสิ่งของสมองกลตกลง เนื่องมาจากวิธีการอีฉันมีอยู่ฝ่ายกิจพื้นดินคอยพัฒนาลิ้งค์เข้า sbo ข้ามตรอกนานาเนกโอกาสในกระบิล online เพื่อให้ผู้ร่วมทีมทั่วคุณๆหาได้รับสารภาพผลบริบูรณ์ภายในการโจ้พร้อมกับข้า จากนั้นทูเดย์ประสก
    สมัครผู้ร่วมทีม sbo bet ต่อจากนั้นหรือยัง ?
    สมมตอีกต่างหากอย่าลืมสมัครจบมาสู่ดำรงฐานะลูกทีมสโบพร้อมด้วยขัดขวางนะ เล่น สโบเบท เข้ากับดีฉันเสถียรหดหายห่วงเหตุเพราะเราสดเอเยนต์สโบเบ็ตแห่งหนเลิศสุดโต่งในที่ประเทศไทย

  162. Heya! I understand this is sort of off-topic but I had to ask.
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    I’d like to start a blog so I will be able
    to share my experience and feelings online. Please let me know if you have any
    kind of recommendations or tips for brand new aspiring bloggers.
    Appreciate it!

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