THE
MINISTRY OF FINANCE -
THE MINISTRY OF LABOR, WAR INVALIDS AND SOCIAL AFFAIRS
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
59/2006/TTLT-BTC-BLDTBXH
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Hanoi,
June 26, 2006
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JOINT CIRCULAR
GUIDING BROKERAGE
FEES FOR LABOR EXPORT
Pursuant to the Government's Decree No.
81/2003/ND-CP of July 17, 2003, detailing and guiding the implementation of the
Labor Code concerning Vietnamese working overseas;
The Ministry of Finance and the Ministry of Labor, War Invalids and Social
Affairs hereby jointly guide brokerage fees for labor export as follows:
I. GENERAL PROVISIONS
1. Brokerage fees (consultancy fees for contract
performance) are the sum which laborers, or labor export enterprises and
laborers have to pay to brokerage parties to secure contracts to send laborers
to work overseas.
2. Brokerage fees must be specified in labor
supply contracts, or separate brokerage fee contracts signed between labor
export enterprises and brokerage parties. Brokerage fees shall only be paid
when brokerage parties have completed brokerage activities to send laborers to
work overseas under contracts.
3. Brokerage parties mentioned in Clause 1 of
this Section are Vietnamese or foreign organizations and individuals providing
brokerage services.
4. Brokerage fees shall not apply to cases in
which employers renew labor contracts after laborers have completed contracts
signed with labor export enterprises.
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1. Brokerage fee level
a/ The brokerage fee level for all markets shall
not exceed one month's salary specified in the labor contract per laborer per
one working year.
b/ The contracted salary (on a monthly basis)
used as the basis for calculating brokerage fees is the basic salary which does
not include overtime payment, bonus and other allowances. For officers and crew
members of seagoing ships, the contracted salary (on a monthly basis) used as
the basis for calculating brokerage fees shall include basic and leave
salaries.
2. Specific brokerage fees
a/ On the basis of the brokerage fee level
prescribed at Point a, Clause 1, Section II of this Circular, the Ministry of
Labor, War Invalids and Social Affairs shall specify the maximum brokerage fee
relevant to each market.
b/ In special cases where market conditions
require brokerage fees higher than the stipulated level, labor export
enterprises shall report to the Ministry of Labor, War Invalids and Social
Affairs for decision on specific brokerage fees after it consults the Ministry
of Finance.
3. Currencies for brokerage fee collection
Labor export enterprises shall collect brokerage
fees which laborers have to pay in Vietnam dong. In case brokerage fees are
calculated in US dollar, the average inter-bank foreign exchange rate of US
dollar against Vietnam dong announced by the State Bank of Vietnam shall be
applied; if the fees are calculated in other foreign currencies, the cross
rates of Vietnam dong against other foreign currencies announced by the State
Bank of Vietnam at the time of brokerage fee collection shall be applied.
For foreign currencies for which the State Bank
of Vietnam does not announce the cross rates against Vietnam dong, labor export
enterprises shall consult Reuters' coverage on the exchange rates of the above
foreign currencies against US dollar. The conversion of US dollar into Vietnam
dong shall apply the average inter-bank exchange rate of US dollar against
Vietnam dong announced by the State Bank of Vietnam at the time of fee
collection.
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a/ Labor export enterprises shall negotiate with
brokerage parties on brokerage fees relevant to market requirements within the
prescribed brokerage fee level.
b/ On the basis of the brokerage fee contracts
signed with brokerage parties, labor export enterprises shall negotiate with
laborers on brokerage fees which laborers have to pay to brokerage parties via
labor export enterprises. The brokerage fees laborers have to pay shall be
specified in the contracts between laborers and labor export enterprises.
Collected brokerage fees shall be neither included in labor export enterprises'
turnover nor taxed.
c/ In case laborers have to return home ahead of
contract term for force majeure reasons (natural disasters, wars, employers'
bankruptcy'), or where laborers are not at fault, labor export enterprises
shall have to request brokerage parties to refund laborers part of the
brokerage fees laborers have paid under the principle: laborers having worked
for less than 50% of the contract term shall get back 50% of the paid brokerage
fees; laborers having worked for over 50% of the contract term shall not get
back the paid brokerage fees.
In case labor export enterprises fail to get
back the fees from brokerage parties, they shall have to deduct their incomes
from labor export services or other business lines to refund brokerage fees to
laborers under the above principle.
d/ Labor export enterprises shall be allowed to
pay brokerage fees (if any) from their collected labor export service fees and
account them as reasonable expenses when calculating the enterprise income tax.
e/ Deciders on collection and payment of
brokerage fees for brokerage parties shall be responsible for their decision.
If they take advantage of brokerage fee regulations to collect or pay the fees
for improper or self-seeking purposes, or from/to improper subjects, they shall
take responsibility therefor according to legal provisions.
Brokerage fees shall be paid in Vietnam dong if
brokerage parties are Vietnamese. Brokerage fees shall be paid in foreign
currencies specified in labor supply contracts or brokerage contracts if
brokerage parties are foreign organizations or individuals. Labor export
enterprises shall account arising exchange rate differences (if any) as
reasonable expenses when calculating the enterprise income tax.
f/ Labor export enterprises shall account and
open accounting books to monitor the collection and payment of brokerage fees
under current accounting regulations.
5. Vouchers
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b/ Vouchers for collection and payment of
brokerage fees shall have to include signatures of the director, chief
accountant, cashier, and payer or recipient according to accounting
regulations.
III. ORGANIZATION OF IMPLEMENTATION
1. This Circular takes effect 15 days after its
publication in "CONG BAO."
2. To annul Section VI, Part B of the Finance
Ministry's and the Labor, War Invalids and Social Affairs Ministry's Joint
Circular No. 107/2003/TTLT-BTC-BLDTBXH of November 7, 2003, guiding the
application of the financial regime to laborers and enterprises sending
Vietnamese laborers to work overseas for definite terms under the provisions of
the Government's Decree No. 81/2003/ND-CP of July 17, 2003, detailing and
guiding the Labor Code concerning Vietnamese laborers working overseas.
3. Labor export enterprises and laborers working
overseas shall have to implement the provisions of this Circular.
4. In the course of implementation, enterprises
and individuals should report arising problems to the Ministry of Finance and
the Ministry of Labor, War Invalids and Social Affairs for consideration and
settlement.