Phải Trả Thế Nào Đây?

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Trợ cấp thôi việc và trợ cấp mất việc là gì?

Tính từ khi Bộ luật Lao động được thông qua ngày 23/06/1994 và có hiệu lực từ ngày 01/01/1995 sau khi đã trải qua nhiều lần sửa đổi, bổ sung kèm theo hàng loạt các văn bản hướng dẫn thi hành từ cơ quan quản lý lao động các cấp (“BLLĐ 1994”) cho đến thời điểm có hiệu lực của Bộ luật lao động năm 2012 vào ngày 01/05/2013 (“BLLĐ 2012”), hiện vẫn chưa có một định nghĩa hay khái niệm pháp luật cụ thể nào về khái niệm trợ cấp thôi việc và trợ cấp mất việc làm. Thay vào đó, BLLĐ 1994 và BLLĐ 2012 chỉ quy định các trường hợp mà người sử dụng lao động phải có nghĩa vụ thanh toán trợ cấp thôi việc hoặc trợ cấp mất việc làm cho người lao động. Do vậy, người lao động và người sử dụng lao động đều có những hiểu biết khá cơ bản về quyền và nghĩa vụ của mình liên quan đến hai loại trợ cấp trên. Thực tế giải quyết vấn đề về quyền và nghĩa vụ của người lao động khi chấm dứt hợp đồng lao động với

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doanh nghiệp trước ngày 01/05/2013 cho thấy người sử dụng lao động hầu như không gặp khó khăn gì trong việc áp dụng cách tính cũng như chi trả trợ cấp thôi việc hay trợ cấp mất việc làm cho người lao động. Tuy nhiên, khi tiếp cận với các quy định mới của BLLĐ 2012, liên quan đến trường hợp người lao động bị chấm dứt hợp đồng lao động do thay đổi cơ cấu, công nghệ hoặc vì lý do kinh tế theo Điều 44 của BLLĐ 2012 hoặc khi sáp nhập, hợp nhất, chia tách doanh nghiệp theo Điều 45 của BLLĐ 2012, hầu hết người sử dụng lao động đều cảm thấy lúng túng khi tính trợ cấp thôi việc hay trợ cấp mất việc làm cho người lao động. Tại sao lại có tình trạng này?

Theo BLLĐ 1994

Trước hết, theo quy định của BLLĐ 1994, người lao động được trả trợ cấp thôi việc trong 03 trường hợp sau đây:[1] (i) người lao động chấm dứt hợp đồng lao động theo các trường hợp của Điều 36 (hết hạn hợp đồng; đã hoàn thành công việc theo hợp đồng, hai bên thỏa thuận chấp dứt hợp đồng, v…v); Điều 37 (người lao động đơn phương chấm dứt hợp đồng vì có lý do chính đáng); các điểm a, c, và d Điều 38 (người lao động thường xuyên không hoàn thành công việc; người lao động bị ốm đau dài ngày; do thiên tai hay trường hợp bất khả kháng làm cho người sử dụng lao động phải thu hẹp sản xuất, giảm chỗ làm việc); điểm c khoản 1 Điều 85 (người lao động tự ý bỏ việc 5 ngày cộng dồn trong 1 tháng hay 20 ngày cộng dồn trong 1 năm); (ii) người lao động làm việc trong doanh nghiệp Nhà nước được tuyển dụng trước khi có chế độ hợp đồng lao động, thì khi nghỉ việc được tính trợ cấp thôi việc như người đã ký hợp đồng lao động; và (iii) người lao động bị chấm dứt hợp đồng lao động do doanh nghiệp, cơ quan, tổ chức chấm dứt hoạt động trong các trường hợp: giải thể bởi quyết định của cấp có thẩm quyền, tòa án tuyên bố phá sản, giấy phép hoạt động đã hết hạn, doanh nghiệp vi phạm pháp luật bị cơ quan nhà nước có thẩm quyền rút giấy phép hoạt động hoặc thu hồi giấy phép đăng ký kinh doanh.

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Còn trợ cấp mất việc làm được trả cho người lao động trong trường hợp[2] (i) doanh nghiệp chia, tách sáp nhập, hợp nhất, chuyển quyền quản lý hoặc quyền sử dụng tài sản mà người sử dụng lao động kế tiếp không sử dụng hết số lao động hiện có; và (ii) chấm dứt hợp đồng lao động với người lao động theo Điều 17 của BLLĐ 1994 tức là trường hợp người lao động đã làm việc thường xuyên trong doanh nghiệp từ đủ 12 tháng trở lên bị cho thôi việc do doanh nghiệp thay cơ cấu hoặc công nghệ và không giải quyết được việc làm mới cho người lao động.

Như vậy, quy định của BLLĐ 1994 là rất rõ ràng trong vấn đề giải quyết trợ cấp thôi việc hay trợ cấp mất việc làm cho người lao động, tức là người lao động chỉ được chi trả một trong hai loại trợ cấp mà thôi, tùy trường hợp.

Theo BLLĐ 2012

Trong khi đó, về trợ cấp thôi việc, ngoài những trường hợp khác thì Điều 48.1 và 36.10 của BLLĐ 2012 lại yêu cầu người sử dụng lao động phải trả trợ cấp thôi việc cho người lao động đã làm việc từ đủ 12 tháng trở lên mà bị thôi việc do thay đổi cơ cấu, công nghệ hoặc vì lý do kinh tế hoặc khi hợp nhất, sáp nhập, chia, tách doanh nghiệp, hợp tác xã.

Không dừng lại ở đó, Điều 49.1 của BLLĐ 2012 lại  yêu cầu người sử dụng lao động cũng phải trả trợ cấp mất việc làm cho người lao động đã làm việc thường xuyên từ 12 tháng trở lên mà bị mất việc do thay đổi cơ cấu, công nghệ hoặc vì lý do kinh tế theo quy định tại Điều 44 của BLLĐ 2012, hoặc khi hợp nhất, sáp nhập, chia, tách doanh nghiệp, hợp tác xã theo quy định tại Điều 45 của BLLĐ 2012.

Nếu chỉ căn cứ vào các quy định trên đây, có thể hiểu rằng BLLĐ 2012 đã mở rộng thêm quyền cho người lao động đồng thời cũng tăng thêm nghĩa vụ tài chính cho người sử dụng lao động bởi vì với cùng một trường hợp thay đổi cơ cấu, công nghệ hoặc vì lý do kinh tế hoặc hợp nhất, sáp nhập, chia, tách doanh nghiệp, hợp tác xã mà không giải quyết được việc làm cho người lao động đã làm việc thường xuyên từ đủ 12 tháng trở lên trong doanh nghiệp, thì người sử dụng lao động phải trả cho người lao động đồng thời hai khoản là trợ cấp thôi việc và trợ cấp mất việc làm chứ không chỉ một khoản là trợ cấp mất việc làm như quy định tại BLLĐ 1994.

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Mặc dù người sử dụng lao động sẽ cảm thấy không thoải mái với quy định mới này nhưng dù sao đây cũng là những quy định rõ ràng dưới hình thức luật để triển khai trên thực tế buộc tất cả các doanh nghiệp phải tuân theo. Nhưng vấn đề không nằm ở chỗ đó. Sự khó khăn của người sử dụng lao động khi hiểu và áp dụng quy định của BLLĐ 2012 về trợ cấp thôi việc và trợ cấp mất việc làm nằm ở Điều 49.2 của BLLĐ 2012, theo đó, thời gian làm việc để tính trợ cấp mất việc làm là tổng thời gian người lao động đã làm việc thực tế cho người người sử dụng lao động trừ đi thời gian người lao động đã tham gia bảo hiểm thất nghiệp theo quy định của Luật bảo hiểm xã hội và thời gian làm việc đã được người sử dụng lao động chi trả trợ cấp thôi việc. Không tính đến thời gian người lao động và người sử dụng lao động tham gia bảo hiểm thất nghiệp thì thời gian làm việc để tính trợ cấp thôi việc và trợ cấp mất việc làm là trùng nhau vì đều là tổng thời gian mà người lao động thực tế làm việc cho người sử dụng lao động. Như vậy, với quy định tại Điều 49.2 của BLLĐ 2012, nhiều người sử dụng lao động sẽ cho rằng nếu người sử dụng lao động đã chi trả cho người lao động khoản tiền trợ cấp thôi việc theo các trường hợp luật định thì sẽ không phải chi trả trợ cấp mất việc làm cho người lao động nữa. Nếu hiểu theo cách này thì người sử dụng lao động sẽ được lợi hơn vì trợ cấp thôi việc chỉ được tính là nửa tháng lương tương ứng với mỗi năm làm việc[3] trong khi trợ cấp mất việc làm lại là một tháng lương cho mỗi nằm làm việc nhưng ít nhất phải bằng hai tháng tiền lương.[4]

Rõ ràng là với cùng một trường hợp chấm dứt hợp đồng lao động do đổi cơ cấu, công nghệ hoặc vì lý do kinh tế hoặc hợp nhất, sáp nhập, chia, tách doanh nghiệp, hợp tác xã và với cùng một đối tượng người lao động đã làm việc thường xuyên từ đủ 12 tháng trở lên trong doanh nghiệp nhưng không được bố trí việc làm mới thì người sử dụng lao động sẽ rất băn khoăn khi không biết phải thực hiện nghĩa vụ của mình như thế nào cho đúng luật.

  • Cách 1: người sử dụng lao động phải trả đồng thời cho người lao động hai khoản là trợ cấp thôi việc 0,5 tháng lương và trợ cấp mất việc 01 tháng lương tổng cộng là 1,5 tháng lương cho mỗi năm làm việc.
  • Cách 2: người sử dụng lao động chỉ trả trợ cấp thôi việc cho người lao động theo nguyên tắc 0,5 tháng lương cho mỗi năm làm việc, và không trả trợ cấp mất việc.
  • Cách 3: thời gian đáng lẽ phải chi trả trợ cấp thôi việc sẽ không được tính, cho nên người sử dụng lao động chỉ trả trợ cấp mất việc làmcho người lao động theo nguyên tắc 01 tháng lương cho mỗi năm làm việc.

Đem vấn đề gây tranh cãi này tham vấn một chuyên viên của Sở Lao động, Thương binh và Xã hội địa phương, chúng tôi nhận được ý kiến rằng hiện nay chưa có hướng dẫn đối các quy định về trợ cấp thôi việc và trợ cấp mất việc làm của Chính phủ hoặc Bộ Lao động, Thương binh và Xã hội nhưng không loại trừ khả năng có sự nhầm lẫn trong khâu soạn thảo BLLĐ 2012. Tuy nhiên, với nguyên tắc có lợi cho người lao động theo hướng dẫn chung và không chính thức của Bộ Lao động, Thương binh và Xã hội là người sử dụng lao động cần chi trả đồng thời trợ cấp thôi việc và trợ cấp mất việc làm cho người lao động trong những trường hợp liên quan.

Giả sử rằng có sự nhầm lẫn trong khâu soạn thảo BLLĐ 2012 thì xem ra phải mất một thời gian dài nữa sự nhầm lẫn này mới được khắc phục bởi vì BLLĐ 2012 chỉ có thể được sửa đổi, bổ sung, thay thế bằng văn bản quy phạm pháp luật của chính cơ quan ban hành BLLĐ 2012,[5] ở đây là Quốc hội mà quy trình này thì không thể diễn ra một sớm một chiều được.

Trong bối cảnh này, với tình hình khủng hoảng kinh tế buộc doanh nghiệp phải thay đổi cơ cấu tổ chức để thu hẹp hoạt động sản xuất kinh doanh hoặc phải sáp nhập, hợp nhất để cắt giảm lao động, xem ra người sử dụng lao động còn phải tiếp tục đối mặt với gánh nặng chi phí khi phải chi trả đồng thời trợ cấp thôi việc và trợ cấp mất việc làm trong thời gian dài sắp tới bởi vì chẳng thà chi trả quyền lợi cho người lao động cao hơn còn hơn rơi vào trường hợp vi phạm pháp luật do không thực hiện đầy đủ nghĩa vụ thanh toán cho người lao động. Thiết nghĩ các cơ quan Nhà nước cần phải nhanh chóng ban hành các quy định pháp luật hướng dẫn cụ thể về việc áp dụng trợ cấp thôi việc và trợ cấp mất việc làm đối với trường hợp “người sử dụng lao động cho người lao động thôi việc do thay đổi cơ cấu, công nghệ hoặc vì lý do kinh tế hoặc do sáp nhập, hợp nhất, chia tách doanh nghiệp, hợp tác xã” để không gây khó cho doanh nghiệp nhưng cũng phải đảm bảo đồng thời quyền và lợi ích hợp pháp của cả hai phía, người lao độngvà người sử dụng lao động.

 —–

[1] Mục III.1 Thông tư số 21/2003/TT-BLĐTBXH ngày 22 tháng 09 năm 2003

[2] Điều 31 của BLLĐ 1994

[3] Điều 48.1 của BLLĐ 2012

[4] Điều 49.1 của BLLĐ 2012

[5] Điều 9.1 của Luật ban hành văn bản quy phạm pháp luật 2008

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