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MINISTRY
OF LABOUR WAR INVALIDS AND SOCIAL AFFAIRS
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
04/2004/TT-BLDTBXH
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Hanoi,
March 10, 2004
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CIRCULAR
PROVIDING GUIDELINES FOR IMPLEMENTATION OF A NUMBER OF
ARTICLES OF DECREE 105/2003/ND-CP OF THE GOVERNMENT DATED 17 SEPTEMBER 2003
WITH RESPECT TO EMPLOYMENT AND ADMINISTRATION OF FOREIGN EMPLOYEES WORKING IN
VIETNAM
To implement Decree 105/2003/ND-CP
of the Government dated 17 September 2003 on employment and administration of
foreign employees working in Vietnam and Resolution 01/2004/NQ-CP of the
Government dated 12 January 2004 on a number of basic solutions for directing
and administering implementation of State planning and the State budget for
year 2004, the Ministry of Labour, War Invalids and Social Affairs provides the
following guidelines:
I. APPLICABLE
ENTITIES AND GOVERNING SCOPE:
1. The enterprises, bodies and
organizations stipulated in article 1 of Decree 105/2003/ND-CP (hereinafter
collectively referred to as employers) shall comprise:
(a) Enterprises belonging to all
economic sectors, including enterprises operating pursuant to the Law on State
Owned Enterprises, the Law on Enterprises, and the Law on Foreign Investment in
Vietnam;
(b) Contractors (head
contractors and sub-contractors) being economic organizations with Vietnamese
or foreign legal entity status awarded with a contract;
(c) Business and service
organizations belonging to State administrative bodies, the armed forces,
people's bodies, political organizations, socio-political organizations, and
social organizations;
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(dd) State professional
entities;
(e) Medical health, cultural,
educational, training, and sporting establishments, comprising:
- Sporting establishments
established and operating pursuant to Ordinance 28/2000/PL-UBTVQH10 of the
Standing Committee of the National Assembly dated 25 September 2000;
- Educational and training
establishments and vocational training schools and establishments established
and operating pursuant to the Law on Education 11/1998/QH10 dated 2 December
1998 and the Labour Code (Amended);
- Hospitals, institutes with
hospital beds, health centers, centers for the prevention of social ills, reserve
health centers, treatment camps and medical health establishments established
and operating pursuant to the Law on Enterprises, the Law on State Owned
Enterprises and the Law on Foreign Investment in Vietnam;
- Cultural establishments
established and operating pursuant to the law of Vietnam, including cultural
establishments established and operating pursuant to the Law on Enterprises,
the Law on State Owned Enterprises and the Law on Foreign Investment in
Vietnam;
(g) Offices of foreign or
international projects in Vietnam;
(h) Branches of foreign lawyer
organizations permitted to operate in Vietnam;
(i) Co-operatives established
and operating pursuant to the Law on Co- operatives.
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II.
RECRUITMENT AND ADMINISTRATION OF FOREIGN EMPLOYEES WORKING IN VIETNAM:
1. Employers shall be permitted
to employ foreign employees pursuant to article 3 of Decree 105/2003/ND-CP and
clause 11 of section I of Resolution 01/2004/NQ-CP, specifically:
(a) Employers prescribed in
clause 1(a) of section I of this Circular shall be permitted to employ foreign
employees in accordance with the following provisions:
* The number of foreign
employees permitted to be employed shall be calculated in accordance with this
formula:
LNN
= LDN x 0.03
In which:
- LNN is the number
of foreign workers an enterprise is permitted to employ in accordance with
regulations, including those whom the employer employs in the form of a labour
contract and those whom the foreign party has appointed to come to Vietnam to
work at the enterprise. The result LNN shall not exceed fifty (50)
persons and it may be a minimum of one person.
Foreign individuals being
members of a board of management, general director, deputy general director,
director and deputy director of an enterprise established pursuant to the law
of Vietnam; heads of representative offices and heads of branches in Vietnam;
and foreign individuals who come to Vietnam to work at enterprises in order to
perform various types of contracts (except labour contracts) in accordance with
article 6.5 of Decree 105/2003/ND-CP shall not be included in the above number
of foreign workers in an enterprise.
- LDN is the current
number of employees in an enterprise (including Vietnamese and foreign
individuals) at the time of recruitment of foreign employees, comprising: the
number of employees currently working at the enterprise; the number of
employees currently appointed by the enterprise to work or be trained overseas;
the number of employees on social insurance leave (sick leave, maternity leave,
workplace accidents or occupational illness); the number of employees currently
being trained by the enterprise; and the number of employees currently on leave
due to postponement of their labour contracts.
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Example 1: 76 is the current
number of employees in Enterprise A at the time of recruitment of foreign
employees. The number of foreign employees that Enterprise A is permitted to
employ shall be: LNN = 76 x 0.03 = 2.28. So Enterprise A is
permitted by the regulations to employ 3 foreign employees.
Example 2: 1767 is the current
number of employees in Enterprise B at the time of recruitment of foreign
employees. The number of foreign employees that Enterprise B is permitted to
employ shall be: LNN = 1767 x 0.03 = 53.01. So Enterprise B is
permitted by the regulations to employ 50 foreign employees.
- If an enterprise requires to
recruit foreign employees to work in positions for which Vietnamese workers do
not yet satisfy the requirements and in excess of the number permitted by the
regulations, it shall be permitted to recruit in addition not in excess of
fifty (50) per cent of the permitted number provided that it has written
approval from the chairman of the people's committee of the province or city
under central authority in the locality of the head office of the enterprise.
Enterprises shall prepare any request for recruitment of additional foreign
employees on Form 1 issued with this Circular.
- With respect to foreign
investment projects which the competent State body approved prior to the date
of effectiveness of Decree 105/2003/ND-CP, employment of foreign employees
shall be implemented in accordance with the approved personnel plan of the
project.
- With respect to enterprises
which employed foreign employees prior to the date of effectiveness of Decree
105/2003/ND-CP, employers shall be permitted to continue to employ the number
of foreign employees they have employed until expiry of signed labour contracts
or until expiry of issued work permits. If, upon expiry of the above employment
terms, an enterprise needs to recruit foreign employees in excess of the ratio
permitted by the regulations, employment shall be implemented in accordance
with the provisions of this Circular.
(b) Employers prescribed in
sub-clauses (b), (c), (d), (dd), (e), (g), (h) and (i) of clause 1 of Section I
of this Circular must, prior to employing foreign employees, forward a request
to the people's committee of the province or city under central authority in
the locality of the head office of the enterprise, on Form 2 issued with this
Circular; and they may only employ foreign employees after they have written
approval from the chairman of the people's committee of the province or city
under central authority.
If a competent State body fixed
the number of foreign employees to be employed annually when such body granted
the decision or licence for establishment and operation in Vietnam, the above
provision is not required to be implemented.
2. Foreign individuals with highly
technical skills, very experienced professionally in production operation and
management as stipulated in article 4.3 of Decree 105/2003/ND-CP shall be
provided for as follows:
(a) Foreign individuals with
highly technical skills shall comprise engineers; people with qualifications
equivalent to engineer or higher with a university graduate degree, master's
degree or doctorate appropriate for the expertise or work required by the
employer;
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(c) Foreign individuals with
many years of professional experience in production operation or management
means at least five years experience, with the ability to undertake the work
required by the employer, and they must have written certification from the
competent body or organization overseas.
3. The work application file
stipulated in article 5.1 of Decree 105/2003/ND-CP shall be provided for as
follows:
A foreign employee wishing to
come to Vietnam to work shall submit two sets of his or her work application
file to the employer, and each file set shall contain:
(a) Application for work on Form
3 issued with this Circular;
(b) Legal record issued by the
authorized body of the country of residence of the foreign individual. If the
foreign individual has resided in Vietnam for six months or more, in addition
to the legal record issued by the authorized body of the foreign country, there
must also be a legal record issued by the Department of Justice of the locality
where the foreign individual is residing;
(c) Curriculum vitae of the
foreign individual as stipulated in article 5.1(c) of Decree 105/2003/ND-CP on
Form 4 issued with this Circular, with a photo adhered;
(d) Health certificate issued
overseas. If the foreign individual currently resides in Vietnam, the health
certificate must be issued in accordance with the regulations of the Ministry
of Health;
(dd) Copies of certificates of
professional expertise and skills of the foreign individual, comprising
university graduate degree, master's degree, doctorate or certificate of level
of skills of the foreign individual issued by the authorized body pursuant to
the laws of such country;
Where a foreign employee is a
traditional trade artisan or is a person who has professional experience in
production operation or management but does not possess certificates, he or she
must have a document containing his or her own observations on his or her
professional expertise, skills and management skills as confirmed by an
authorized overseas body;
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Any documents prescribed for the
above work application file which are issued, certified or notarized by a
foreign body or organization must be consularized in accordance with the law of
Vietnam and translated into Vietnamese; the translations and any copies of the
documents must be notarized in accordance with the law of Vietnam.
III. ISSUANCE
OF WORK PERMITS TO FOREIGN INDIVIDUALS WORKING IN VIETNAM:
1. Issuance of work permits as
stipulated in article 6 of Decree 105/2003/ND-CP shall be provided for as follows:
(a) Form of work permits:
Work permits shall be 13cm x
17cm in size, with 4 pages: Pages 1 and 4 shall be light blue plastic; pages 2
and 3 shall be white background with light blue pattern, with the form of a
star in the middle.
(b) Contents of work permits:
Page 1: The official name of
Vietnam shall appear at the top of the page, and below it the national emblem
of Vietnam; thereafter shall appear the words "Work permit" and below
that the number of the work permit in both Vietnamese and English.
Page 2: On the top left-hand
corner shall appear a space for the photo; below in the centre the words
"Work permit", and below that the information about the foreign
employee to whom the work permit is issued, comprising full name, sex, date of
birth, current nationality, passport number, professional (trade)
qualifications, to work where, working position, duration of work, namely date
of commencement and date of termination of work, in both Vietnamese and
English. Following that information shall appear the name, signature and seal
of the director of the Department of Labour, War Invalids and Social Affairs
and the date of signing.
Page 3: From the top downwards
shall appear the words "Extension of work permit on the ...th
occasion", on the next line "Extended from which date until which
date" specifying the date of expiry, in both Vietnamese and English.
Following that information shall appear the name, signature and seal of the
director of the Department of Labour, War Invalids and Social Affairs and the
date of signing.
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The specific layout and contents
of work permits shall be in accordance with Form 5 issued with this Circular.
(c) Work permits shall be
uniformly printed, published and issued by the Labour, War Invalids and Social
Affairs Publishing House.
2. The file, order and
procedures for an application for issuance of a work permit as stipulated in
article 6.3 of Decree 105/2003/ND-CP shall be provided for as follows:
(a) The employer shall be
responsible to prepare the application file for issuance of a work permit for
the employee, comprising:
- Letter from the employer
requesting issuance of a work permit on Form 6 issued with this Circular;
- The work application file of
the foreign employee as prescribed in clause 3 of Section II of this Circular.
Where the foreign party has appointed the employee to come to Vietnam to work,
the file is not required to contain an application for work but must contain
the appointment by the foreign party for the employee to work in Vietnam.
(b) The employer shall be
responsible to forward one set of the application file for issuance of a work
permit to the Department of Labour, War Invalids and Social Affairs in the
locality of the head office of the enterprise.
(c) The employer shall be
responsible to receive the work permit issued by a Department of Labour, War
Invalids and Social Affairs and to deliver it to the foreign employee.
(d) After a foreign employee is
issued with a work permit, the employer and employee shall be responsible to
sign a labour contract on Form 6 issued with Circular 21/2003/TT-BLDTBXH of the
Ministry of Labour, War Invalids and Social Affairs dated 22 September
implementing Decree 44/2003/ND-CP of the Government dated 9 May 2003 on labour
contracts. Within five days from the date of signing a labour contract, the
employer shall be responsible to forward a copy of the labour contract to the
body which issued the work permit for the employee.
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(a) If an employer needs to
extend a work permit for a foreign employee, the employer shall be responsible
to prepare an application file for extension of a work permit, and the file
shall contain:
- Request by the employer for
extension of a work permit on Form 7 issued with this Circular;
- Copy labour contract or
appointment by the foreign party directly appointing the foreign employee to
work in Vietnam (certified by the employer);
- Work permit already issued by
the competent body for the foreign employee.
(b) The employer shall be
responsible to forward one set of the application file for extension of a work
permit to the Department of Labour, War Invalids and Social Affairs in the
locality of the head office of the enterprise.
(c) The employer shall be
responsible to receive the extended work permit issued by the Department of
Labour, War Invalids and Social Affairs and to deliver it to the foreign
employee.
(d) If an employer needs a
second extension for a foreign employee, the employer shall forward a request
for approval for extension of the work permit to the chairman of the people's
committee of the province or city under central authority in the locality of
the head office of the enterprise, on Form 8 issued with this Circular.
4. Re-issuance of work permits:
Where a work permit issued for a
foreign employee is lost or damaged as stipulated in article 8 of Decree
105/2003/ND-CP, an application for re- issuance of the work permit must be made
on Form 9 issued with this Circular and forwarded together with the damaged
work permit to the Department of Labour, War Invalids and Social Affairs which
issued the work permit. The employer shall be responsible to certify the reason
why the work permit was lost or damaged, and there must be a request from the
employer to the competent body for re-issuance of a work permit for the foreign
employee within the application for re-issuance of the work permit made by the
foreign employee.
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IV.
IMPLEMENTING PROVISIONS:
1. The responsibilities of
employers shall be:
(a) To implement fully the law
of Vietnam on employment and administration of foreign employees working in
Vietnam;
(b) Prior to 5 January and 5
July each year, to report to the Department of Labour, War Invalids and Social
Affairs in the locality of the head office of the enterprise on the annual and
six-monthly status of employment of foreign employees, on Form 11 issued with
this Circular. Employers shall also be responsible to provide one-off reports
on employees and status of employment of employees at the request by the
competent State administrative body;
(c) To pay the fees for issuance
of work permits, extension of work permits and re-issuance of work permits in
accordance with the regulations of the Ministry of Finance.
2. The responsibilities of
Departments of Labour, War Invalids and Social Affairs shall be:
(a) To issue work permits, to
extend work permits, and to re-issue work permits in accordance with law;
(b) To guide and organize
implementation; and prior to 5 January and 5 July each year, to report to the
Ministry of Labour, War Invalids and Social Affairs on the status of issuance
of work permits for and the employment of foreign employees by local
enterprises, bodies and organizations under the management of the Department,
on Form 12 issued with this Circular;
(c) To guide, check and inspect
implementation of the law on employment and administration of foreign employees
working in Vietnam.
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(a) Within a time-limit of
fifteen (15) days from the date of receipt of a request from an employer for
written approval of the employment of foreign employees as stipulated in clause
1(a) of Section II of this Circular, the chairman of a people's committee of a
province or city under central authority shall be responsible to consider and
approve the employment of foreign employees. In a case of refusal, the chairman
must provide a written explanation specifying the reasons.
(b) Within a time-limit of
fifteen (15) days from the date of receipt of a request from an employer for
written approval of the employment of foreign employees exceeding the
prescribed number as stipulated in clause 1(b) (sic) of Section II of this
Circular, the chairman of a people's committee of a province or city under
central authority shall be responsible to consider and approve the employment
of foreign employees exceeding the prescribed number. In a case of refusal, the
chairman must provide a written explanation specifying the reasons.
(c) Within a time-limit of
fifteen (15) days from the date of receipt of a request for written approval of
the extension of a work permit as stipulated in clause 3(a) of Section III of
this Circular, the chairman of a people's committee of a province or city under
central authority shall be responsible to consider and approve a request from
an employer for a second or further extension of a work permit. In a case of
refusal, the chairman must provide a written explanation specifying the
reasons.
4. This Circular shall be of
full force and effect after fifteen (15) days from the date of publication in
the Official Gazette. The following are hereby repealed: Circular
08/2000/TT-BLDTBXH of the Ministry of Labour, War Invalids and Social Affairs
dated 29 March 2000 on issuance of work permits; and Decision
311/2000/QD-BLDTBXH of the Minister of Labour, War Invalids and Social Affairs
dated 29 March 2000 issuing forms for work permits and on printing,
distribution and management of work permits for foreign individuals working in
enterprises and organizations in Vietnam.
5. With respect to management
boards of industrial zones, export processing zones and high-tech zones which
were previously authorized by the Ministry of Labour, War Invalids and Social
Affairs to issue work permits for foreign employees, jurisdiction to delegate
authority for issuance of work permits shall now belong to Departments of
Labour, War Invalids and Social Affairs.
If any problems arise during the
course of implementation of this Circular, they should be promptly reported to
the Ministry of Labour, War Invalids and Social Affairs for its investigation
and resolution.
MINISTER
OF LABOUR, WAR INVALIDS AND SOCIAL AFFAIRS
Nguyen Thi Hang
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