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THE
MINISTRY OF LABOR, WAR INVALIDS AND SOCIAL AFFAIRS - THE MINISTRY OF FOREIGN
AFFAIR
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No.
03/2006/TTLT/BLDTBXH-BNG
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Hanoi,
March 31, 2006
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JOINT CIRCULAR
GUIDING THE IMPLEMENTATION OF A NUMBER OF PROVISIONS OF THE GOVERNMENT'S
DECREE No. 141/2005/ND-CP OF NOVEMBER 11, 2005, ON MANAGEMENT OF VIETNAMESE
LABORERS WORKING ABROAD
Pursuant to the Government's Decree No.
141/ 2005/ND-CP of November 11, 2005, on management of Vietnamese laborers
working abroad;
Pursuant to the Government's Decree No. 29/2003/ ND-CP of March 31, 2003,
defining the functions, tasks, powers and organizational structure of the
Ministry of Labor, War Invalids and Social Affairs;
Pursuant to the Government's Decree No. 21/2003/ ND-CP of March 10, 2003,
defining the functions, tasks, powers and organizational structure of the
Ministry of Foreign Affairs,
The Ministry of Labor, War Invalids and Social Affairs and the Ministry of
Foreign Affairs hereby jointly guide the management and administrative
sanctioning of laborers working abroad (hereinafter referred to as laborers for
short) by diplomatic representative offices, consular offices and other
agencies authorized to perform the consular functions of the Socialist Republic
of Vietnam (hereinafter collectively referred to as Vietnamese representative
agencies) in foreign countries, and enterprises sending laborers to work abroad
(hereinafter referred to as enterprises for short) as follows:
I.
MANAGEMENT OF VIETNAMESE LABORERS WORKING ABROAD
1.
Responsibilities of enterprises
1.1. Towards
laborers:
a/ To fully
include the provisions of the Government's Decree No. 141/2005/ND-CP of
November 11, 2005, on management of Vietnamese laborers working abroad
(hereinafter referred to as Decree No. 141) in oriented education programs and
disseminate them to laborers before they go to work abroad;
b/ To keep foreign partners (intermediary
companies or labor users) informed and coordinate with them in receiving
laborers at border gates of host countries. In case of necessity, enterprises
must send their officials to accompany the laborers and coordinate with foreign
parties in taking them to their workplaces;
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d/ Within three months after laborers' entry,
enterprises must send their officials to laborers' workplaces in order to get
information on laborers' jobs, incomes and living conditions, and settle
initial difficulties or problems faced by the laborers;
e/ To settle in time arising problems
related to laborers' interests and obligations under contracts signed between
parties (between enterprises and laborers or between labor users and laborers);
to take initiative in coordinating with Vietnamese representative agencies in
host countries in settling the arising cases related to laborers which fall
beyond enterprises' powers.
For complicated cases where laborers die or
have serious accidents threatening their lives, or arising cases where many
laborers are involved, within three days after the occurrence of the cases,
enterprises must send their officials to directly coordinate with Vietnamese
representative agencies in host countries in settling the cases.
1.2. Quarterly, to report to foreign-based
Vietnamese representative agencies or labor management boards (in areas where
exist labor management boards) on the following:
a/ The situation on laborers sent by enterprises
to work in host countries (made according to a set form); the number of arising
cases, including unsettled ones and the reasons therefor;
b/ The performance of enterprises'
responsibilities defined in Decree No. 141 and other relevant provisions of
law.
1.3. To promptly report to the Department for
Management of Laborers Working Abroad and coordinate with Vietnamese
representative agencies in host countries in handling laborers' violations of
the provisions of Clauses 5,6,7 and 9, Article 4 of Decree No. 141 upon
detection thereof.
1.4. To supply pre-exit dossiers of laborers
that commit acts of violating the provisions of Decree No. 141 to the
Department for Management of Laborers Working Abroad at the latter's request.
2. Responsibilities of foreign-based
Vietnamese representative agencies:
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2.2. To guide
Vietnamese enterprises in approaching the markets and signing contracts in
accordance with Vietnamese law and laws of host countries;
2.3. To
evaluate, or assist enterprises and domestic functional agencies in evaluating
the legal bases and the feasibility of contracts on receiving Vietnamese
laborers;
2.4. To guide and inspect activities of
enterprises or foreign-based representatives of Vietnamese enterprises
regarding the responsibilities to manage and handle arising problems related to
interests and obligations of laborers working abroad;
2.5. To oversee and sum up the number of, and
situation on, laborers working in host countries;
2.6. To verify reasons for which laborers
have to return home ahead of schedule, when necessary;
2.7. To assist
enterprises in reconciling in disputes between laborers and labor users in
cases of necessity;
2.8. To protect
the legitimate rights and interests of laborers working abroad in accordance
with the provisions of Vietnamese law, laws of host countries, and
international law and practice;
2.9. To disseminate and explain Vietnamese
law and laws of host countries to laborers working abroad so that they
understand and strictly abide by such laws;
2.10. To take initiative in coordinating with
concerned agencies, organizations and/or individuals in host countries in
handling and settling the arising problems related to laborers working abroad;
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2.12. Biannually, to report to the Ministry
of Foreign Affairs and the Ministry of Labor, War Invalids and Social Affairs
on the situation of laborers working in host countries;
2.13. To
perform other tasks provided for by law.
3. Responsibilities of labor management
boards (in areas where exist labor management boards):
3.1. To directly perform the
responsibilities defined at Points 2.1, 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9
and 2.10 of Section 2, assume the prime responsibility for, and coordinate with
concerned sections in, advising heads of foreign-based Vietnamese
representative agencies on performing the responsibilities defined at Points
2.11, 2.12 and 2.13, Section 2, Part I of this Circular;
3.2. To perform other tasks assigned by
the director of the Department for Management of Laborers Working Abroad and
heads of Vietnamese representative agencies in host countries;
3.3. To send periodical and extraordinary
reports to heads of foreign-based Vietnamese representative agencies and the
director of the Department for Management of Laborers Working Abroad according
to regulations.
4. Coordination among sections of
foreign-based Vietnamese representative offices in managing laborers in areas
where exist labor management boards
4.1. For
complicated arising cases related to laborers which fall beyond their
responsibilities, labor management boards shall sum up the situation and take
initiative in reporting thereon to heads of Vietnamese representative offices
in host countries for the latter to direct concerned sections to coordinate with
one another in settling the cases.
4.2. Basing themselves on the nature of the
cases, the characteristics of the localities and personnel of foreign-based
Vietnamese representative offices, the heads thereof shall direct and assign
their sections to handle the cases.
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II. ADMINISTRATIVE
SANCTIONING OF VIETNAMESE LABORERS WORKING ABROAD
1. Procedures for making administrative
violation records
Right after receiving written notices of
competent agencies or organizations in host countries or of labor users on
laborers' violations as defined in Clauses 5, 6, 7 and 9, Article 4 of Decree
No. 141, heads of foreign-based Vietnamese representative offices must send
their diplomatic or consular officials to verify, in case of necessity, the
laborers' violations stated in the notices of competent agencies or
organizations in the host countries, and make administrative violation records,
specifically as follows:
1.1. Within
five days after receiving notices of competent agencies or organizations in the
host countries or of labor users, the diplomatic or consular officials who are
assigned to handle the cases must make administrative violation records
(according to a set form). Such records shall be made at Vietnamese
representative offices in host countries or at places where laborers reside or
work;
1.2. Where laborers are not present at the
places where administrative violation records are made, the records shall be
made in the absence of the violators, clearly stating the reasons for such
absence;
1.3. Records, after being made, must be transferred
immediately to persons competent to impose sanctions.
2. Procedures
for issuing sanctioning decisions
2.1. Within the time limit for issuing
sanctioning decisions as specified at Point a, Clause 2, Article 31 of Decree
No. 141, the diplomatic or consular officials who are assigned to handle the
cases shall have to complete the dossiers strictly according to set procedures
so that competent persons issue sanctioning decisions.
Contents of administrative sanctioning
decisions shall comply with a set form.
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3. Abidance by
sanctioning decisions
3.1. The abidance by administrative
sanctioning decisions shall comply with the provisions of Points a and b,
Clause 3, Article 31 of Decree No. 141.
3.2. Written notices on laborers'
non-abidance by sanctioning decisions must be made according to a set form.
3.3. Administrative
sanctioning decisions and written notices on laborers' non-abidance by
sanctioning decisions must be sent to sanctioned persons and the Department for
Management of Laborers Working Abroad for notification to concerned agencies,
organizations and individuals.
Where sanctioned persons' residence places
are unidentifiable, the sanctioning decisions and notices on non-abidance by
administrative sanctioning decisions must be publicly posted up at headquarters
of Vietnamese representative offices in host countries.
3.4. Within thirty days after the issuance of
written notices on sanctioned persons' non-abidance by administrative
sanctioning decisions, if the sanctioned persons still fail to abide by such
decisions, foreign-based Vietnamese representative agencies shall send all
dossiers of the violations to the Department for Management of Laborers Working
Abroad in order to propose and transfer the dossiers to domestic competent
agencies for consideration of penal liability examination against the
violators.
4. Dossiers of
violation cases
4.1. The
dossier of a violation case comprises:
a/ A written notice of host country's
competent agency or organization, on the laborer's violation of law;
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c/ An
administrative sanctioning decision;
d/A notice on non-abidance by the
administrative sanctioning decision;
e/ Enclosed
documents and evidence (if any).
Vietnamese
representative offices in host countries shall translate the above-said
documents, if they are in foreign language(s), into Vietnamese and make legal
authentication; if such documents are copies, the authentication by Vietnamese
representative agencies in host countries is required.
4.2. The dossier of a violation case shall be
made in two sets, one to be kept the concerned foreign-based Vietnamese
representative office and the other to be sent to the Department for Management
of Laborers Working Abroad.
III.
ORGANIZATION OF IMPLEMENTATION
1.This Circular takes effect fifteen (15)
days after its publication in "CONG BAO."
1.2. Within 30 days after the effective date
of this Circular, Vietnamese representative offices in areas where exist
Vietnamese laborers must consult and reach agreement with host countries'
competent agencies on agencies, organizations or labor users that are
responsible for issuing written notices on laborers' violations of law, and on
contents of such notices.
Any problems arising in the course of
implementation should be promptly reported to the Ministry of Labor, War
Invalids and Social Affairs and the Ministry of Foreign Affairs for
consideration, guidance and settlement.
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FOR THE MINISTER OF LABOR, WAR
INVALIDS AND SOCIAL AFFAIRS
VICE MINISTER
Nguyen Luong Trao
FOR THE MINISTER OF FOREIGN AFFAIRS
VICE MINISTER
Nguyen Phu Binh