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MINISTRY OF
LABOUR - INVALIDS AND SOCIAL AFFAIRS
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.:
03/2014/TT-BLDTBXH
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Hanoi, January
20, 2014
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CIRCULAR
PROVIDING GUIDANCE ON IMPLEMENTATION OF
SOME ARTICLES OF DECREE NO. 102/2013/ND-CP DATED SEPTEMBER
05, 2013 OF THE GOVERNMENT DETAILING THE IMPLEMENTATION OF SOME ARTICLES OF
LABOUR CODE ON FOREIGN EMPLOYEES IN VIETNAM
Pursuant to
Decree No. 106/2012 / ND-CP dated December 20, 2012 of the Government defining
the functions, tasks, powers and organizational structure of the Ministry of
Labour - Invalids and Social Affairs;
Pursuant to
Decree No. 102/2013 / ND-CP dated September 5, 2013 of the Government detailing
the implementation of some articles of the Labor Code on foreign employees in
Vietnam;
At the
request of Director of Employment Department;
The Minister
of Labour - Invalids and Social Affairs issues this Circular providing the
guidance on the implementation of some articles of Decree No. 102/2013 / ND-CP
dated September 5, 2013 of the Government detailing the implementation of some
articles of the Labor Code on employment of foreigners working in Vietnam
(Decree No. 102/2013 / ND-CP of September 5, 2013 of the Government detailing
the implementation of a number of articles of the Labour Code on foreign
employees in Vietnam (hereafter referred to as Decree No. 102/2013 / ND-CP).
Chapter I
GENERAL REGULATION
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The
scope and subjects of application in this Circular are the scope and subjects
of application specified in Article 1 and 2 of Decree No. 102/2013/ND-CP.
Article 2. Explanation of terms
1.
Service
providers under contract specified at Point Article, Clause 1, Article 2 of
Decree No. 102/2013/ND-CP are foreign
employees who work at least for 02 months (24 months) in a foreign enterprise
which does not have its commercial presence in Vietnam and must meet the
conditions for “expert” under the provisions in Clause 3, Article 3 of Decree
No. 102/2013/ND-CP.
2.
Foreign
employees working in the form of service offering specified at Point dd, Clause
1, Article 2 of Decree No. 102/2013/ND-CP are the foreign
employees who do not live in Vietnam and do not receive remuneration from any
source in Vietnam, participate in activities related to the representation of a
service provider to negotiate the service consumption of such provider on the
condition that they must not sell such services directly to the public as well
as not be involved in service supply.
3.
Administrator
and chief operating officer specified at Point i, Clause 1, Article 2 of Decree
No. 102/2013/ND-CP
are the foreign employees directly involved in management in organizations and
enterprises including the direction of organizations and enterprises or units
directly attached to such organizations and enterprises; monitoring and control
of work of professional employees, management staff or other monitoring
employees
Chapter II
DETERMINATION OF POSITION
FOR EMPLOYMENT OF FOREIGN EMPLOYEES
Article 3. Need for employment of foreign
employees
1.
Before at least 30 days from the day the employer (except for contractor) plans
for the recruitment of foreign employees, the employer will make a report as
specified in Clause 1, Article 4 of Decree No. 102/2013/ND-CP
on the need for employment of foreign employees, including: job position,
number, qualification, experience, salary and working time under the Form No.1
issued with this Circular and submit it directly to the Department of Labor -
Invalids and Social Affairs of provinces and centrally-run cities (hereafter
referred to as Department of Labor - Invalids and Social Affairs) where the
employer’s head office is located.
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3.
The Department of Labor - Invalids and Social Affairs shall inform its approval
for employment of foreign employees to each employer under the Form No.3 issued
with this Circular within 15 days after receipt of explanation report or
adjustment, supplementation report on the need for employment of foreign
employees of the employer.
Article 4. Need for employment of foreign
employees of contractor
In
case of recruitment of Vietnamese employees to the job positions estimated for
foreign employees as stipulated in Clause 3, Article 5 of Decree No. 102/2013/ND-CP,
at least 2 months prior to the proposal for recruitment from 500 Vietnamese
employees or more and at least 01 month prior to the proposal for recruitment
of less than 500 Vietnamese employees, the contractor shall submit his/her
proposal directly or by post to the Chairman of provincial People’s Committee
where the contractor carries out the bid package after having the investor’s
certification on acceptance of employment of foreign employees under the
Form No.04 issued with this Circular. In case the contractor has a need for
adjustment or addition of number of foreign employees determined in the bidding
documents or proposal documents, the investor must certify the approved
adjustment or addition plan for the need of foreign employees to be employed
from the contractor under the Form No. 05 issued with this Circular and before
recruiting foreign employees under the adjustment or addition plan, the
contractor shall make a proposal for recruitment of foreign employees to
the job positions estimated for foreign employees as stipulated in this
Article.
Chapter III
ISSUE OF WORK PERMIT
Article 5. Dossier for issue of work
permit
The
documents specified in Clause 1, 3, 4, 5 and 8, Article 10 of Decree No. 102/2013/ND-CP
are as follows:
1.
Written request for issue of work permit of the employer specified in Clause 1,
Article 10 of Decree No. 102/2013/ND-CP
under the Form No.06 issued with this Circular.
2.
Written certification of not being the criminal or under criminal prosecution
specified in Clause 3, Article 10 of Decree No. 102/2013/ND-CP
is done as follows:
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b)
In case the foreign employees have not resided in Vietnam, they must have the
written certification
of not being the criminal or under criminal prosecution as stipulated by
foreign law issued by the foreign competent authority;
3.
Written certification of being manager, chief operating officer, specialist or
technical employee specified in Clause 4, Article 10 of Decree No. 102/2013/ND-CP
is done as follows:
a)
For foreign employees who are manager or chief operating officer, they must
have one of the documents as follows:
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Documents for demonstration of being manager or chief operating officer are:
work permit or labour contract or appointment decision specifying that such
foreign employees have worked as manager or chief operating officer;
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Written certification of being manager or chief operating officer which is certified
by the organ, organization or enterprise where such foreign employees used to
work.
b)
For foreign employees as specialists, they must have one of the following
documents:
-
Documents for demonstration of being foreign employees with qualification of
engineer or bachelor or equivalent or higher or having at least 5 years of
working in the speciality trained consistently with the job position in which
the foreign employees plan to work in Vietnam;
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Written certification of being specialist recognized by foreign organ,
organization or enterprise.
c)
For foreign employees as technical employees, they must have one of the
following documents:
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Written evidence of having at least 3 years of working in the speciality
trained consistently with the job position in which the foreign employees plan
to work in Vietnam;
4.
Written approval for employment of foreign employees specified in Clause 5,
Article 10 of Decree No. 102/2013/ND-CP
as the notice of the Department of Labour - Invalids and Social Affairs of the
job position approved by the Chairman of provincial People’s Committee or the
written decision of the Chairman of provincial People’s Committee on the employment
of foreign employees from the contractor to the job position which cannot
recruit Vietnamese employees.
5.
Written evidence specified at Point a, d and g, Clause 8, Article 10 of Decree
No. 102/2013/ND-CP
as one of the following documents:
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Labor contract;
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Written certification of the employer;
-
Recruitment decision of foreign employees;
-
Tax or insurance payment certificate of foreign employees.
Article 6. Work permit
1.
The form of work permit specified in Clause 2, Article 12 of Decree No. 102/2013/ND-CP
is as follows:
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The
work permit has A4 size (21 cm x 29,7 cm), including 2 pages: page 1 is blue,
plastic-coated; page 2 has white background with blue pattern and a star in the
middle.
b)
Contents of work permit comply with the Form No.7 issued with this Circular.
2.
The work permit is uniformly printed and issued by the Employment Department of
the Ministry of Labour - Invalids and Social Affairs.
Article 7. Cases of re-issue of work permit
1.
Work permit is lost or damaged.
2.
Change of contents stated in the issued work permit: full name, date of birth,
nationality, Passport number or working place.
The
working place stated in the work permit is the address where the foreign employees
work. The change of working address stated in the work permit is that the
foreign employees are appointed, transfer or assignment to work full time at
branch or representative office or other establishments of the employer in the
same centrally-run provinces.
Article 8. Dossier to request the re-issue of
work permit
The
documents specified in Clause 1 and 3, Article 14 of Decree No. 102/2013/ND-CP
are as follows:
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2.
Documents in the dossier to request the re-issue of work permit to the foreign employees
working in the form of labor contract specified at Point b, Clause 3, Article
14 of Decree No. 102/2013/ND-CP
including the issued work permit (except case of loss) which is still valid at
least 5 days but not exceeding 15 days, before the expiry date of the issued
work permit; the health certificate stipulated in Clause 2, Article 10 of
Decree No. 102/2013/ND-CP; the written notification of the Department of Labour
- Invalids and Social Affairs of the job position approved for employment of
foreign employees by the Chairman of provincial People’s Committee or the
written decision on recruitment of foreign employees of the contractor from the
Chairman of provincial People’s Committee to the positions which cannot recruit
Vietnamese employees.
3.
In case the work permit is lost as specified in Clause 3, Article 14 of Decree
No. 102/2013/ND-CP,
the foreign employees must have a written explanation which shall be certified
by the employer.
Article 9. Duration of the work permit issued
or re-issued
The
duration of work permit issued is in accordance with Article 11 of Decree No. 102/2013/ND-CP
and re-issued in accordance with Article 16 of Decree No. 102/2013/ND-CP
but not exceeding the duration in the written approval of the Chairman of
provincial People’s Committee for the employment of foreign employees or not
exceeding the duration in the written decision of the Chairman of provincial
People’s Committee or the written decision on recruitment of foreign employees
of the contractor from the Chairman of provincial People’s Committee to each
position which cannot recruit Vietnamese employees.
Article 10. Written response of failure to
issue or re-issue of work permit
In
case of failure to issue the work permit specified in Clause 2, Article 12 of
Decree No. 102/2013/ND-CP
or specified in Clause 3, Article 15 of Decree No. 102/2013/ND-CP,
the Department of Labour - Invalids and Social Affairs shall give the employer
the reply under the Form No.09 issued together with this Circular.
Article 11. Certification of foreign
employees not subject to the issue of work permit
The
certification of foreign employees not subject to the issue of work permit
specified in Clause 2, Article 8 of Decree No. 102/2013/ND-CP
is done as follows:
1.
The employer shall send the written certification directly to the Department of
Labour - Invalids and Social Affairs for certification that the foreign
employees are not subjec to the issue of work permit under the Form No.10
issued with this Circular.
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Chapter IV
IMPLEMENTATION ORGANIZATION
Article 12. Responsibility of Chairman of provincial
People’s Committee
1.
Directing the local competent authorities in propagation and publicity of law;
examination, inspection and handling of violation under regulation of law on
recruitment and management of foreign employees in the areas.
2.
Directing
the local organs and organization to introduce and provide Vietnamese employers
for the contractor.
3.
Approving
the job positions for which the employer may recruit the foreign employees;
appointing the Department
of Labour - Invalids and Social Affairs to receive, aggregate and assess the
reality for report to the Chairman of provincial People’s Committee on the need
for employment of foreign employees and notifying the approval of the Chairman
of provincial People’s Committee to each employer.
4.
Making a decision on permitting the contractor to recruit foreign employees to
each position which cannot recruit Vietnamese employees.
Article 13. Responsibility of the Department
of Labour - Invalids and Social Affairs
1.
Propagate and disseminating regulations of law on Vietnam labor and providing
instructions on the order, procedures and dossier for issue or re-issue of work
permit to the enterprises, organizations, investors, contractor and foreign
employees in the area.
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3.
Receiving, aggregating and assessing the need for employment of foreign
employees to each job position at localities for submission to the Chairman of
provincial People’s Committee and notifying in writing the each job position
entitled to the employment of foreign employees to each employer as approved by
the Chairman of provincial People’s Committee
4.
Issuing or re-issuing work permit or certifying the case not subject to the
issue of work permit. When receiving dossier for the issue or re-issue of work
permit or certification of case not subject to the issue of work permit, using
the follow-up book under the Form No.12 issued with this Circular and handing
in the receipt to the employer. The receipt must be stated with the date of
receipt of dossier, name of documents and time limit for response. Keeping the
dossier for issue or reissue of work permit as presecribed by law.
5.
Examining or inspecting the compliance with regulations of law on recruitment
and management of foreign employees working in Vietnam of the employer in the
area.
6.
Revoking the work permit as stipulated in Clause 2, Article 17 of Decree No.
102/2013/ND-CP.
7.
Periodical report
a)
Before the fifth date of every month, notifying the Police of provinces and
centrally-cities of the reality of issue of work permit under the Form No.13
issued with this Circular.
b)
Making quarterly report to the Ministry of Labour - Invalids and Social Affairs
on foreign employees working in provinces or cities under the Form No.14 issued
with this Circular before the 10th date of first month of the following
quarter.
c)
Every 06 months, before July 15 and annually before January 15 of the following
year, making report to the Ministry of Labour - Invalids and Social Affairs of
the reality of foreigners working at enterprises, organs or organizations in
the management areas under the Form No.15 issued with this Circular.
8.
Applying information technology to the management and issue or re-issue of work
permit to the foreign employees working in Vietnam.
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1.
Complying with the regulations of Vietnam law on foreign employees working in
Vietnam.
2.
Instructing and providing the foreign employees with regulations of Vietnam law
on foreign employees working in Vietnam.
3.
Performing procedures to request the issue or re-issue of work permit and
certification of cases not subject to the issue of work permit to the foreign
employees working in Vietnam.
In
case the foreign employees have been issued with the work permit but appointed,
transferred or assigned to work full time in a province or city different
from the province or city where they are working or held a different job
position for the employer, the issue of work permit complies with the
provisions in Section 3 of Decree No. 102/2013/ND-CP.
4.
Making payment of fees for issue or re-issue of work permit as prescribed by
law.
5.
Fully
complying with the labor contract signed with the foreign employees working at
enterprises and organizations as prescribed by law; sending notification of the
signing of labor contract with the copy of signed labor contract to the
Department of Labour - Invalids and Social Affairs which has issued the work
permit to the foreign employees.
6.
Managing dossiers and regularly updating and adding documents related to the
foreign employees working at enterprises and organizations.
7.
Managing foreign employees working at enterprises and organizations.
8.
Within 03 days after recovery of work permit for cases specified in Clause 1,
Article 17 of Decree No. 102/2013/ND-CP
of the foreign employees, the employer shall submit these work permits directly
to the
Department of Labour - Invalids and Social Affairs which has issues such work
permits. In case of failure to recover the work permits, the employer must make
a written report specifying the reasons.
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a)
The employer shall make periodical report for every 06 months before the 5th of
July annually and before the 5th of January of the following year to the
Department of Labour - Invalids and Social Affairs where the employer’s head
office is located or the employer is carrying out projects or bidding package
on the reality of employment of foreign employees under the Form No.16 issued
withi this Circular.
b)
The foreign employees have been issued with work permit but appointed,
transferred or assigned to work at the other branches or representative offices
or other establishments of such employer inside and outside the province, city
during at least 10 days in a month or at least 30 days accumulated in a year.
In this case, the employer must notify in writing of the working time, job
position of the foreign employees coming to working in province or city
together with the work permit to the Department of Labour - Invalids and
Social Affairs where the foreign employees come to work.
Article 15. Responsibility of the investor
1.
Monitoring and requiring the contractor to comply with the contents committed
in the bidding documents and the proposal documents of the employment of
Vietnamese and foreign employees upon execution of contract.
2.
Instructing, urging and inspecting the contractor in compliance with
regulaitons on recruitment and employment of foreign employees working for the
contractor as prescribed by law; monitoring and managing the foreign employees
in compliance with regulations of Vietnam law; making the quarterly report to
the Department
of Labour - Invalids and Social Affairs on the reality of employment of foreign
employees of the contractor under the Form No. 16 issued with this Circular
prior to the first month of the following quarter.
Article 16. Responsibility of foreign
employees.
1.
Studying regulations of Vietnam law on foreign employees working in Vietnam;
preparing documents in the dossier for the issue or re-issue of work permit;
2.
Observing regulations of law on recruitment and management of foreign employees
working in Vietnam and other relevant regulations;
3.
Within 02 days after the foreign employees are revoked their work permit as stipulated
in Clause 1, Article 17 of Decree No. 102/2013/ND-CP,
the foreign employees must return their work permits to their employers.
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1.
This Circular takes effect on March 10, 2014.
2.
This Circular replaces Circular No. 31/2011/TT-BLDTBXH
dated November 03, 2011 of the Ministry of Labour - Invalids
and Social Affairs guiding the implementation of some articles of Decree No. 34/2008/ND-CP
dated March 25, 2008 of the Government and Decree No. 46/2011/ND-CP
dated June 17, 2011 of the Government amending and adding some articles of
Decree No. 34/2008/ND-CP
dated March 25, 2008 of the Government regulating the recruitment and
management of foreign employees working in Vietnam.
3.
In case the employer has registered the need for recruitment and employment of
foreign employees in 2014 under the provisions in Clause 7, Article 19 of
Decree No. 34/2008/ND-CP
dated March 25, 2008 of the Government which has been amended and added and
Clause 10, Article 14 of Circular No. 31/2011/TT-BLDTBXH
dated November 03, 2011 of the Ministry of Labour - Invalids
and Social Affairs prior to November 01, 2013, the Department of Labour
- Invalids and Social Affairs shall make aggregation, assessment and report to
the provincial People’s Committee for consideration and decision.
Any
problem arising during the implementation of this Circular should be reported
to the Ministry of Labour - Invalids and Social Affairs for timely
guidance and addition./.
PP. MINISTER
DEPUTY MINISTER
Nguyen Thanh Hoa