MINISTRY
OF FINANCE –MINISTRY OF WAR INVALIDS AND SOCIAL AFFAIRS
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THE
SOCIALIST REPUBLIC OF VIETNAM
Independence– Freedom – Happiness
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No.
16/2007/TTLT-BLDTBXH-BTC
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Hanoi, September 04, 2007
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JOINT CIRCULAR
SPECIFIC
REGULATION ON BROKERAGE AND SERVICE FEE IN THE OPERATION OF SENDING VIETNAMESE
LABOURERS TO WORK ABROAD UNDER CONTRACTS
Pursuant to Article 20 and
Article 21 of the Vietnamese Alien Labor Law under contract dated November 29,
2006, the Ministry of Labour – War Invalids and Social Affairs - Ministry of
Finance stipulate and make guidance on the brokerage and service fee in the
operation of sending Vietnamese laborors to work abroad under contracts as
follows:
I. GENERAL REGULATION
1. Scope of adjustment
This Circular stipulates and
makes guidance on the ceiling brokerage, the management and use of brokerage;
the ceiling service fee and the mode of collection and payment of the service
fee in the operation of sending laborers to work abroad.
2. Subject of application
a) The enterprises operating the
services of sending the laborers to work abroad as prescribed in the Vietnamese
Alien Labor Law under contract (hereafter referred to as enterprises);
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3. The enterprises are only
permitted to collect the brokerage and service fee after signing contract on
sending laborers to work abroad with the laborers and the laborers are admitted
to work or granted visa by the foreign party.
II. THE BROKERAGE
1. The brokerage is the cost
that the enterprise must pay the broker to sign and implement the contract of
labor supply. The laborers shall refund the enterprise one part or the entire
brokerage as prescribed of the Ministry of Labour, War Invalids and Social
Affairs.
The brokerage does not apply to
the case the laborers have completed the contract with the enterprises and are
extended or renewed the contract by the employers.
The enterprises are not
permitted to collect the brokerage of the laborers for the markets and
contracts in which the foreign partners have no requirements on the brokerage.
2. The brokerage rate.
a) The ceiling brokerage rate
for the markets does not exceed one month’s salary/laborer for one year
contract. In case of the market demand for the higher brokerage rate than the
prescribed ceiling rate, the enterprises shall make report to the Ministry of
Labour, War Invalids and Social Affairs in order to decide the appropriate
specific brokerage rate after agreement with the Ministry of Finance;
b) The enterprises shall
negotiate and decide on the brokerage rate appropriate with each contract but
not exceeding the rate as prescribed at point (a) of this Clause;
c) The Ministry of Labour, War
Invalids and Social Affairs stipulates the brokerage rate that the laborers
refund to the enterprises suitable for each market;
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3. Type of money collected and
paid and applicable exchange rate
The enterprises collect the
brokerage refunded by the laborers in Vietnam dong.
The applicable exchange rate: If
the brokerage is calculated on the basis of the U.S. dollar, the average
exchange rate of the U.S. dollar against the Vietnam dong on the inter-bank
foreign currency market shall apply as announced by the State Bank of Vietnam at the time of collection and payment. If the brokerage is calculated on the basis
of other foreign currencies, the cross rate between the U.S. dollar against
those foreign currencies shall apply as announced by the State Bank of Vietnam
at the time of collection and payment.
4. Management and use of the
brokerage
a) The brokerage must be
indicated in the contract of labor supply or the private contract on the
brokerage signed between the enterprises and the brokers;
b) The brokerage must be used
for the proper purpose and with the right subject. If taking advantage of
provisions on brokerage for wrong collection and expenditure for improper
purposes, not with the right subjects and for profit making, the person making
a decision on collection and expenditure shall take responsibility as
prescribed by law;
c) The portion of brokerage that
the laborers refund (if any) must be specified in the contracts on sending
laborers to work abroad; the enterprises shall collect the laborers’ brokerage
one time before they go abroad to work. Upon collection of the laborers’ brokerage,
the enterprises must issue receipt to the laborers. The brokerage that the
laborers refund is not included in the profit of the enterprises and they do
not pay tax on it;
d) The brokerage that the
enterprises pay out (if any) will be recorded into the rational cost upon
calculating taxable income as prescribed by the Law on enterprise income tax.
5. Refunding the brokerage
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Where the laborers can not
recover the brokerage from the broker, the enterprises are responsible for
making payment to the workers on the above principle and permitted to record
into the rational cost upon calculating taxable income as prescribed by the Law
on enterprise income tax.
III SERVICE FEE
1. The service fee is the
expenditure that the laborers must pay the enterprises for the implementation
of the contract on sending laborers to work abroad.
The service fee does not apply
to the case the laborers have completed the contract signed with the
enterprises (including the time of the contract extension) and are extended or
renewed the contract by the employers.
2. Rate of service fee
a) The ceiling rate of service
fee: The laborers make the payment of service fee to the enterprises with an
amount not exceeding one month's salary (or refreshing allowance) under
contract for one working year, and not exceeding one month and a half month's
salary under a contract for one working year for officers and crewmen working
on sea carrier; The total maximal rate of service fee shall not exceed three month’s
salary under the contract / person / contract;
b) The rate of service fee must
be indicated in the contract on sending laborers to work abroad signed between
the enterprises and the laborers;
c) The salary which, under
contract (calculated by month) serves as a basis to determine the rate of
service fee is the basic salary excluding: Overtime working, bonuses and other
benefits. For the officers and crewmen of the sea carrier, the salary which,
under the contract (calculated by month) serves as a basis to determine the
rate of service fee, is the salary including the basic salary and leave salary.
3. The mode of collection,
payment and refund of the service fee
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b) In case the laborers must
return home ahead of schedule due to force majeure or not due to the laborers’
fault, the enterprises are permitted to collect the service fee by the actual
time (number of months) the laborers work abroad.
c) In case the laborers violate
the contract or the law of the country where they are working and must return
home ahead of schedule or cancel the contract and illegally stay, the
enterprises are permitted to collect the laborers’ service fee under the time
limit signed in the contract.
4. Type of money collected and
paid and applicable exchange rate
a) In case the enterprises agree
with the laborers to collect the service fee one time before they go abroad to
work, the collection shall be made in Vietnam dong.
The applicable exchange rate: If
the service fee is calculated on the basis of the U.S. dollar, the average
exchange rate of the U.S. dollar against the Vietnam dong shall apply on the
inter-bank foreign currency market announced by the State Bank of Vietnam at the time of collection and payment. If the service fee is calculated on the
basis of other foreign currencies, the cross rate between the U.S. dollar
against those foreign currencies shall apply as announced by the State Bank of
Vietnam at the time of collection and payment.
b) In case the enterprise agree
with the laborers to collect the service fee many times during the course of
contract execution, the enterprises shall collect the service fee in the
currency the laborers are paid. If the collection of a partial service fee is
made before the laborers go abroad to work, the service fee shall be collected
by Vietnam dong at the exchange rate above mentioned
IV. IMPLEMENTATION ORGANIZATION
1. This Circular shall take
effect after 15 days from the date of its publication on the official Gazette.
Annulling the Joint Circulars of the Ministry of Finance - the Ministry of
Labour, War Invalids and Social Affairs No. 107/2003/TTLT-BTC-BLDTBXH dated
November 07, 2003 guiding the implementation of the financial regulations for
the laborers and the enterprises sending laborers to work abroad with term and
the No. 59/2006/TTLT-BTC-BLDTBXH dated June 26, 2006 guiding the brokerage in
labor export.
As for the contracts of labor
supply registered at the Department of Overseas Labour (Ministry of Labour –
War Invalids and Social Affairs) before the effective date of this Circular,
the service fee shall comply with the provisions specified in the Joint Circular
No. 107/TTLT-BTC-BLDTBXH dated November 07, 2003 and the brokerage shall comply
with the provisions specified in joint Circular No. 59/2006/TTLT-BTC-BLDTBXH
dated June 26, 2006.
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3. Any problem arising in the
course of implementation should be promptly reported to the Ministry of Labour,
War Invalids and Social Affairs, Ministry of Finance for study and
settlement
PP.
MINISTER OF FINANCE
DEPUTY MINISTER
Tran Xuan Ha
MINISTER
OF LABOUR, WAR INVALIDS AND SOCIAL AFFAIRS
DEPUTY MINISTER
Nguyen Thanh Hoa