THE
MINISTRY OF LABOR
-------
|
SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
---------
|
No.
24/2005/TT-BLDTBXH
|
Hanoi,
September 26, 2005
|
CIRCULAR
AMENDING
AND SUPPLEMENTING A NUMBER OF POINTS OF CIRCULAR NO. 04/2004/TT-BLDTBXH OF
MARCH 10, 2004, OF THE MINISTRY OF LABOR, WAR INVALIDS AND SOCIAL AFFAIRS,
WHICH GUIDES THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE GOVERNMENT’S
DECREE NO. 105/2003/ND-CP OF SEPTEMBER 17, 2003, DETAILING AND GUIDING THE
IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LABOR CODE REGARDING THE
RECRUITMENT AND MANAGEMENT OF FOREIGN LABORERS WORKING IN VIETNAM
In furtherance of the
Government’s Decree No. 93/2005/ND-CP of July 13, 2005, amending and supplementing
a number of articles of the Government’s Decree No. 105/2003/ND-CP of September
17, 2003, which details and guides the implementation of a number of articles
of the Labor Code regarding the recruitment and management of foreign laborers
working in Vietnam, the Ministry of Labor, War Invalids and Social Affairs
hereby amends and supplements a number of points of its Circular No.
04/2004/TT-BLDTBXH of March 10, 2004, guiding the implementation of a number of
articles of the Government’s Decree No. 105/2003/ND-CP of September 17, 2003,
on the recruitment and management of foreign laborers working in Vietnam, as
follows:
1. Point 1 of Section I is
amended and supplemented as follows:
“1. Enterprises, agencies and
organizations defined in Article 1 of amended and supplemented Decree No.
105/2003/ND-CP (hereinafter referred collectively to as labor users),
including:
a/ Enterprises operating under
the State Enterprise Law, the Enterprise Law or the Law on Foreign Investment
in Vietnam;
b/ Foreign contractors (principal
contractors, sub-contractors) performing contracts in Vietnam;
c/ Representative offices and
branches of economic, trade, financial, banking, insurance,
scientific-technical, cultural, sport, education, training, and medical
organizations;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
e/ Non-business units of the
State;
f/ Medical, cultural,
educational, training, and sports establishments (including those set up under
the Enterprise Law, the State Enterprise Law or the Law on Foreign Investment
in Vietnam), including:
- Sport establishments set up
and operating under the provisions of law on physical training and sports;
- Educational, training and
job-training schools, centers and establishments, set up and operating under
the provisions of law on education and training or labor;
- Hospitals, institutes with
patient beds, medical centers, health stations, centers for prevention and
control of social diseases, preventive medicine centers, medical treatment
camps, and medical establishments, set up and operating under the provisions of
Vietnamese law;
- Cultural establishments set up
and operating under the provisions of Vietnamese law.
g/ Vietnam-based offices of
foreign or international projects;
h/ Vietnam-based management
offices of foreign parties to business cooperation contracts;
i/ Vietnam-based organizations
practicing law under the provisions of Vietnamese law;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. Points 1 and 2 of Section
II is amended and supplemented as follows:
“1. Labor users may recruit
foreign laborers under the provisions of Article 3 of amended and supplemented
Decree No. 105/2003/ND-CP, specifically:
a/ Labor users mentioned at Item
a, Point 1, Section I of this Circular may recruit foreign laborers according
to the following provisions:
- The number of foreign laborers
permitted to be recruited is calculated according to the following formula:
LNN
= LDN x 0.03
Of which:
+ LNN is the number of foreign
laborers an enterprise may recruit according to regulations, including
foreigners who are recruited by labor users under labor contracts and
foreigners who are sent by foreign parties to work for the enterprise in
Vietnam. LNN shall be at least 01.
Foreigners being members of
managing boards or members’ councils (for limited liability companies set up
under the Enterprise Law), and foreigners entering Vietnam and working at
enterprises to perform contracts of various types (other than labor contracts)
under the provisions of Clause 5, Article 6 of amended and supplemented Decree
No. 105/2003/ND-CP, shall not be included in the above-said number of foreign
laborers employed by enterprises.
+ LDN is the current number of
laborers of an enterprise (including both Vietnamese laborers and foreign
laborers) at the time of recruitment of foreign laborers, including the number
of laborers currently working at the enterprise; the number of laborers sent by
the enterprise to work or be trained abroad; the number of laborers who are on
leave, enjoying social insurance regime (due to sickness, maternity, labor
accidents or occupational diseases); the number of laborers being currently
trained by the enterprise; and the number of laborers who are on leave because
of the postponement of their labor contracts.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Example 1: If enterprise A has
76 laborers at the time of recruitment of foreign laborers, then it may
recruit, as prescribed, the following number of foreign laborers:
LNN
= 76 x 0.03 = 2.28
So, the number of foreign laborers
enterprise A may recruit as prescribed is 03.
Example 2: If enterprise B has
1,767 laborers at the time of recruitment of foreign laborers, then it may
recruit, as prescribed, the following number of foreign laborers:
LNN
= 1,767 x 0.03 = 53.01
So, the number of foreign
laborers enterprise B may recruit is 54.
- For enterprises engaged in
particular domains that employ a small number of laborers or have just begun
investment, not yet stabilized production, but wish to recruit foreign laborers
for the jobs Vietnamese laborers cannot yet perform, in excess of 3%, they must
submit their requests to the presidents of the People’s Committees of provinces
or centrally-run cities where they are headquartered for consideration and
written approval based on the actual requirements of each enterprise. Labor
users’ written requests for recruitment of additional foreign laborers shall be
made according to a set form.
- Where labor users have
projects approved under decisions of, or granted operation licenses by, Vietnamese
competent state agencies, which have stated the number of foreign laborers
permitted to be employed, such approval of presidents of provincial/municipal
People’s Committees is not required.
- For enterprises which
recruited foreign laborers before the effective date of Decree No.
105/2003/ND-CP, labor users may continue employing the recruited foreign
laborers till the expiration of the signed labor contracts or the granted work
permits. Where the duration of employing the recruited laborers has expired but
the enterprises wish to recruit foreign laborers in excess of the set
percentage, they shall abide by the provisions of this Circular.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. Foreigners who have high
professional and technical qualifications, many years’ working experience in
their professions, in production/business administration or in managerial jobs
which Vietnamese laborers cannot perform yet as provided for in Clause 3,
Article 4 of amended and supplemented Decree No. 105/2003/ND-CP, are specified
as follows:
a/ Foreigners with high
professional and technical qualifications are engineers or persons with
qualifications equivalent to an engineer’s, having university, master’s or
doctoral diplomas suitable to the specialties or jobs as required by
recruiters;
b/ Foreigners are craftsmen of
traditional crafts, who must have written certifications by competent agencies
or organizations of the countries where they are nationals;
c/ Foreigners with many years’
working experience in their professions or in production/business
administration or managerial jobs which Vietnamese laborers cannot perform yet
are those who have at least 5 (five) years’ experience in such jobs, are
capable of performing the jobs as required by labor users, and must have
written certifications by foreign competent agencies or organizations.”
3. Point 5 of Section III is
amended and supplemented as follows:
“5. For those who are not
required to have work permits as provided for in Clause 1, Article 6 of amended
and supplemented Decree No. 105/2003/ND-CP, labor users shall have to send
reports, made according to a set form, on their personal details to the
Services of Labor, War Invalids and Social Affairs of the provinces or
centrally-run cities where the enterprises are headquartered.
For foreigners who enter Vietnam
to perform contracts of various types (other than labor contracts) signed
between Vietnam-based enterprises, agencies or organizations and foreign-based
enterprises, agencies or organizations, they are not required to apply for work
permits but must fully satisfy the conditions set in Clauses 1, 2, 3 and 4,
Article 4 of amended and supplemented Decree No. 105/2003/ND-CP, and the
Vietnam-based enterprises, agencies or organizations shall make reports, made
according to a set form, enclosed with papers of these foreigners as provided
for at Items b, c, d and e, Clause 1, Article 5 of amended and supplemented
Decree No. 105/2003/ND-CP.”
4. To add the following Item
d to Point 2 of Section IV:
“d/ When receiving dossiers of
application for work permits, dossiers of application for extension of work
permits or papers of application for re-grant of work permits,
provincial/municipal Services of Labor, War Invalids and Social Affairs must
make entries thereof into monitoring books and hand over receipts to labor
users. Such receipts must clearly state the date of receipt of dossiers,
documents included in dossiers, and the time for reply.”
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
The phrase “general directors,
directors” at the second line from the bottom is replaced with the phrase
“labor users.”
This Circular takes effect 15
days after its publication in “CONG BAO.”
Any problems arising in the
course of implementation should be promptly reported to the Ministry of Labor,
War Invalids and Social Affairs for study and settlement.
MINISTER
OF LABOR, WAR INVALIDS AND SOCIAL AFFAIRS
Nguyen Thi Hang