Salary and Policies of Public Employees Seconded

In February 2015, Mrs. Hue was cut off from her long-term allowance, and in April 2015, she was cut 70% of her preferential allowance. Mrs. Hue asks whether the cutting of her allowance is conformable or not?

Lawyer Tran Van Toan, Khanh Hung Law Office - Hanoi Bar Association replies to Mrs. Hue as follows:

According to the provisions of Article 36 of the Public Employee Law 2010, the secondment of a public employee is when a public employee of this public service provider is sent to work at another agency, organization, or unit at the request of the mission within a certain period. The head of the public service provider or the competent authority managing the public service provider decides on the secondment of public employees.

During the secondment period, the public service provider sending the public employee has the responsibility to ensure the salary and other benefits of the public employee.

After the secondment period ends, the public employee returns to their old unit for work. The head of the public service provider that sent the public employee on secondment is responsible for receiving and arranging work for the public employee according to their expertise and professional skills.

Based on the information provided by Mrs. Ha Thi Hue, before receiving the secondment decision to work at the District Department of Education and Training (for 6 months), at the unit that sent her on secondment, Mrs. Hue was receiving a 70% preferential allowance according to the provisions of Article 7 of Decree No. 61/2006/ND-CP dated June 20, 2006, of the Government of Vietnam on policies for educators and educational managers working in specialized schools, in areas with especially difficult socio-economic conditions; she was also receiving a long-term allowance of 0.5 for working in areas with especially difficult socio-economic conditions as specified in Decree No. 116/2010/ND-CP dated December 24, 2010, of the Government of Vietnam on policies for officials and public employees and salaried individuals in the armed forces working in areas with especially difficult socio-economic conditions.

At point a, Section 2, Part II of the Inter-ministerial Circular No. 06/2007/TTLT-BGDDT-BNV-BTC guiding the implementation of Decree No. 61/2006/ND-CP, it is stipulated that the time taken for work or study domestically without continuous teaching for more than 3 months does not entitle the individual to receive the preferential allowance during that period.

Point a, Clause 1, Article 8 of the Inter-ministerial Circular No. 08/2011/TTLT-BNV-BTC stipulates that the time taken for work or study outside areas with especially difficult socio-economic conditions for 1 month or more does not entitle the individual to receive any allowances, including the long-term allowance, specified in Decree No. 116/2010/ND-CP during that period.

In the case of Mrs. Hue complying with the secondment decision for a certain period, she will return to her old unit for work after the secondment period. According to the provisions of Article 36 of the Public Employee Law, during the secondment period, the public service provider sending the public employee has the responsibility to ensure salary (including the preferential allowances and other allowances) and other benefits of the public employee.

In Mrs. Hue's case, if the provisions at point a, Section 2, Part II of the Inter-ministerial Circular No. 06/2007/TTLT-BGDDT-BNV-BTC are applied to stop paying preferential allowances; and the provisions at point a, Clause 1, Article 8 of the Inter-ministerial Circular No. 08/2011/TTLT-BNV-BTC are applied to stop paying the long-term allowance, as she has reflected, it conflicts with the provisions of Article 36 of the Public Employee Law.

Based on Clause 2, Article 83 of the Law on Promulgation of Legal Normative Documents, in cases where legal normative documents have different provisions on the same issue, the document with the higher legal effect shall apply. In this case, the provisions of the Public Employee Law shall apply.

The school must apply Article 36 of the Public Employee Law 2010, ensuring salary (including preferential allowances and long-term allowances) and other benefits for Mrs. Hue during her secondment at the District Department of Education and Training.

According to the Government of Vietnam Electronic Newspaper

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