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THE GOVERNMENT
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No: 105/2003/ND-CP
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Hanoi, September 17, 2003
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DECREE
DETAILING AND GUIDING THE IMPLEMENTATION
OF A NUMBER OF ARTICLES OF THE LABOR CODE REGARDING THE EMPLOYMENT AND
MANAGEMENT OF FOREIGN LABORERS WORKING IN VIETNAM
THE GOVERNMENT
Pursuant to the
December 25, 2001 Law on Organization of the Government;
Pursuant to the June 23, 1994 Labor Code and the April 2, 2002 Law Amending and
Supplementing a Number of Articles of the Labor Code;
At the proposal of the Minister of Labor, War Invalids and Social Affairs,
DECREES:
Chapter
I
GENERAL
PROVISIONS
Article
1.- The following enterprises, agencies
and organizations in Vietnam, which are prescribed in Article 132 of the Labor
Code, established and operate under the Vietnamese law provisions, may employ
foreign laborers:
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2. Contractors
(principal contractors, subcontractors), being Vietnamese or foreign economic
organizations with legal person status.
3. Business and
service organizations of State administrative agencies, people’s armed forces,
mass organizations, political organizations, socio-political organizations or
social organizations.
4. Representative
offices and branches of foreign companies; representative offices of economic,
trading, financial, banking, insurance, scientific and technical, cultural,
sport, education, medical' organizations.
5. The State's
non-business units.
6. Medical, cultural,
education, training and sport establishments.
7. Vietnam-based
offices of foreign or international projects.
8. Branches of foreign
lawyers' organizations, licensed to operate in Vietnam.
9. Cooperatives.
The above-said
enterprises, agencies and organizations are collectively referred to as
employers.
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Chapter
II
EMPLOYMENT
AND MANAGEMENT OF FOREIGN LABORERS WORKING IN VIETNAM
Article
3.-
1.
The employers prescribed in Clause 1, Article 1 of this Decree may employ a
number of foreign laborers accounting for no more than 3% of the existing
number of laborers of their enterprises but not exceeding 50 and at least 1.
2. For the employers
prescribed in Clauses 2, 3, 4, 5, 6, 7, 8 and 9, Article 1 of this Decree, the
percentage of foreign laborers employed is not stipulated, but if wishing to employ
foreign laborers, they must obtain the approval of the presidents of the
provincial/municipal People's Committees.
Article
4.- Employers may employ foreign laborers
who fully meet the following conditions:
1. Being aged 18 years
or more.
2. Being physically
fit to the working requirements.
3. Possessing high
professional or technical qualifications (including engineers or people with
equivalent degrees; craftsmen of traditional crafts), many experiences in the
profession, production administration, management or managerial jobs which
Vietnamese laborers have not yet been able to perform.
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5. Possessing work
permits, for foreign laborers working in Vietnam for full 3 (three) months or
longer, granted by competent Vietnamese State bodies, except for the cases
requiring no work permits as prescribed in Clause 1, Article 6 of this Decree.
Article
5.- Dossiers and order for recruitment of
foreign laborers
1. Job application dossiers:
A foreign laborer shall submit 2 (two) dossier sets to the employer, one of
which shall be managed by the employer and the other used by the employer for
carrying out the procedures of application for a work permit. A dossier set
comprises:
a/ The job application;
b/ The judicial
history card, granted by a competent body in the country where the laborer
resides. Where the laborer has resided in Vietnam for 6 (six) months or longer,
apart from the judicial history card granted by a foreign competent body, there
must be also a judicial history card granted by the Vietnamese
provincial/municipal Justice Service of the locality where the foreign laborer
is residing;
c/ The foreign
laborer's resume, made according to a form set by the Ministry of Labor, War
Invalids and Social Affairs, stuck with a photo;
d/ The health
certificate granted in the foreign country. Where the foreign laborer is
residing in Vietnam, the health certificate must be granted under the
regulations of the Vietnamese Health Ministry;
e/ Copies of the
foreign laborer's professional qualification and/or skill certificates,
including the university, equivalent- or higher level diploma, or the skill
certificate, granted by competent authorities according to the regulations of
such foreign country.
For foreign laborers
being craftsmen of traditional crafts or persons having experiences in the
professions, production administration or management but having no certificates
thereof, there must be written remarks on their professional, skill and
managerial qualifications, certified by competent authorities of the country of
which such person bears the nationality;
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The above-said papers
prescribed in the dossiers, which are granted by foreign authorities or
notarized or authenticated, must be consularly legalized under the Vietnamese
law provisions and translated into Vietnamese. The translations and copies
thereof must be notarized according to Vietnamese law provisions.
2. Procedures and
order for recruitment of foreign laborers:
a/ For employers:
- Employers must
publish in central or local newspapers for three consecutive issues their
employment needs and fully notify the job requirements and benefits of laborers
and employers in the process of recruitment and working and after the laborers
give up their jobs.
- Employers must carry
out the procedures of application for work permits for foreign laborers working
in Vietnam under the provisions of this Decree, after the foreign laborers
submit dossiers comprising all the papers prescribed by this Decree.
b/ For foreign
laborers:
- Foreigners wishing
to work in Vietnam must thoroughly study the Vietnamese law provisions supplied
by the employers, and, concurrently, prepare all necessary papers in accordance
with the provisions of this Decree.
- Foreigners wishing
to work in Vietnam must submit job application dossiers as prescribed in Clause
1 of this Article to the employers.
c/ After receiving the
work permits, the laborers and their employers must enter into written labor
contracts (with the exception of foreign laborers sent by the foreign sides to
work in Vietnam). The employers shall have to send copies of the signed labor
contracts to the agencies which have granted work permits to the foreign
laborers. The contents of the jobs in the labor contracts must not be contrary
to those inscribed in the granted work permits.
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1. Foreign laborers
working for enterprises, agencies or organizations in Vietnam must have work
permits, excluding the following subjects:
- Foreign laborers
entering Vietnam to work for less than 3 (three) months or to handle emergency
cases (emergency cases are defined as complicated technical or technological
incidents which affect or threaten to affect production or business activities
and cannot be handled by Vietnamese experts or foreign experts currently
working in Vietnam).
- Foreigners being
Managing Board members, general directors, deputy general directors, directors
or deputy directors of the enterprises which are set up under the Vietnamese
law provisions and have the legal person status.
- Foreigners being
chiefs of Vietnam-based representative offices or branches.
- Foreign lawyers
granted permits by the Ministry of Justice for the practice of lawyer's
profession in Vietnam according to law provisions.
2. The
provincial/municipal Labor, War Invalids and Social Affairs Services shall grant
work permits to foreign laborers according to a form set by the Ministry of
Labor, War Invalids and Social Affairs.
3. A dossier of
application for a work permit comprises:
- The employer's
written request for a work permit, made according to a form set by the Ministry
of Labor, War Invalids and Social Affairs.
- The foreign
laborer's job application dossier (prescribed in Clause 1, Article 5 of this
Decree).
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5. For the subjects requiring
no work permits as prescribed in Clause 1 of this Article, the employers shall
have to report to the provincial/municipal Labor, War Invalids and Social
Affairs Services of the localities (where the enterprises, agencies or
organizations are headquartered) on the details of foreign laborers, including
full names, nationalities, passport serial numbers, dates of job commencement
and completion, and job(s) to be done, at least 7 (seven) days before the
concerned foreign laborers start to work.
For foreigners
entering Vietnam to perform assorted contracts (other than labor contracts)
between enterprises, agencies or organizations in Viet-nam and foreign
enterprises, agencies or organizations, the enterprises, agencies and
organizations in Vietnam shall make the reports as required for foreigners
working for less than 3 (three) months for enterprises, agencies or
organizations in Vietnam.
Article
7.- Extension of work permits
1. Work permits may be
extended in cases where the employers have made plans to train and are training
Vietnamese laborers to take over the jobs currently done by foreign laborers
but these Vietnamese laborers are not yet able to substitute such foreign
laborers. Work permits shall not be extended for foreign laborers who are punished
for breaching labor disciplines under the provisions at Points b and c, Clause
1, Article 84 of the Labor Code, which have been amended and supplemented.
2. Dossiers of
application for extension of work permits:
a/ The employers shall
make applications for extension of work permits according to the regulations of
the Ministry of Labor, War Invalids and Social Affairs, which must clearly
state the reasons for not having trained Vietnamese laborers, full names of the
Vietnamese laborers who have been trained and are being trained, training
expenses, training duration, training places, in order to substitute foreign
laborers.
b/ A copy of the labor
contract or the foreign side's document appointing the foreigner to continue
working in Vietnam (certified by the employer).
c/ The granted work
permit.
3. Extensible duration
of work permits
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Article
8.- Work permits re-granted in case of
loss or damage
1. Foreign laborers
shall have to make applications for the re-granting of work permits, which
clearly state the reasons for their loss or damage, and are certified by the
employers, and send them to the provincial/municipal Labor, War Invalids and
Social Affairs Services which have granted such work permits, enclosed with the
damaged work permits.
2. Work permits
re-granted to foreign laborers shall be exactly the same as the granted ones.
Article
9.- Work permits shall be invalidated in
the following cases:
1. Work permits expire.
2. Labor contracts
terminate ahead of time.
3. The jobs inscribed
in the labor contracts are different from the ones proposed for the granting of
work permits.
4. Work permits are
revoked by competent State bodies for violations of Vietnamese laws.
5. Enterprises,
agencies or organizations terminate their operation.
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Article
10.- Use of work permits
1. Foreign laborers
shall keep their granted work permits that remain valid. At least 3 (three)
days before their work permits expire, the foreign laborers must hand over them
to the employers. The employers shall have to receive such work permits and, within
7 (seven) days after receiving the work permits, hand them over to the agencies
which have granted such work permits.
2. Foreign laborers
must produce their work permits upon request of competent State bodies.
Chapter
III
INSPECTION,
COMMENDATION AND HANDLING OF VIOLATIONS
Article
11.- The ministries, the ministerial-level
agencies, the Government-attached agencies and the People's Committees at all
levels shall have to examine and inspect the implementation of the Labor Code
and this Decree.
Article
12.- Enterprises, agencies, organizations
and individuals that record achievements in the implementation of the Labor
Code and this Decree shall be commended and/or rewarded according to Vietnamese
law provisions.
Article
13.- Enterprises, agencies, organizations
and individuals that commit acts of violating the provisions of the Labor Code
and this Decree, and/or other relevant law provisions shall, depending on the
nature and seriousness of their violations, be sanctioned administratively or
examined for penal liability according to Vietnamese law provisions.
Article
14.- Foreign laborers currently working at
enterprises, agencies or organizations in Vietnam, who have not yet been
granted work permits, shall have to carry out the procedures of application
therefor under the provisions in Article 6 of this Decree. Past 6 (six) months
after this Decree becomes effective, any foreign laborers who have no work
permits shall be proposed by the provincial/municipal Labor, War Invalids and
Social Affairs Services to the Public Security Minister to issue decisions to
expel them out of Vietnam according to law provisions.
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IMPLEMENTATION
PROVISIONS
Article
15.- The Ministry of Labor, War Invalids
and Social Affairs and the concerned ministries and branches shall, within the
scope of their respective functions, tasks and powers, have to guide the
implementation of this Decree.
Article
16.- The Ministry of Finance shall have to
guide the rates of the fee for granting of work permits to foreign laborers,
and the regime of collection, remittance, management and use thereof.
Article
17.- Responsibilities of the
provincial/municipal Labor, War Invalids and Social Affairs Services:
1. To receive and
archive dossiers of application for granting, extension, and re-granting of
work permits.
2. Within 15 days
after receiving the complete and valid dossiers of application for granting,
extension or re-granting of work permits from the employers, the
provincial/municipal Labor, War Invalids and Social Affairs Services shall have
to grant, extend or re-grant work permits. In case of refusal to grant, extend
or re-grant work permits, they shall have to issue written replies, clearly
stating the reason(s) therefor.
3. To oversee, sum up
and report on the situation of foreign laborers working in enterprises,
agencies and/or organizations located in the localities under their management.
4. To examine and
inspect the implementation of the Labor Code and this Decree.
5. To revoke expired
work permits.
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1. To abide by the
provisions of the labor legislation and other relevant law provisions of
Vietnam.
2. To carry out
procedures of application for granting, extension or re-granting of work
permits to foreign laborers and pay the fee for granting of work permits
according to the regulations of the Ministry of Finance.
3. To fully perform
the labor contracts signed with foreign laborers.
4. To receive the
expired work permits of foreign laborers and hand them over to the agencies
which have granted them.
5. To manage the
foreign laborers' job application dossiers, and concurrently supplement papers
related to the foreign laborers.
6. To manage foreign
laborers working in their enterprises, agencies or organizations.
7. To report on the
situation of their employment of foreign laborers according to the regulations
of the Ministry of Labor, War Invalids and Social Affairs.
Article
19.- This Decree takes implementation
effect 15 days after its publication in the Official Gazette and replaces the
Government's Decree No. 58/CP of October 3, 1996 and Decree No. 169/1999/ND-CP
of December 3, 1999 regarding the granting of work permits to foreigners
working in enterprises and organizations in Vietnam.
For foreign laborers
who have been granted work permits which are still valid till the effective
date of this Decree, such work permits shall remain valid and are not required
to be changed for new ones.
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ON
BEHALF OF THE GOVERNMENT
PRIME MINISTER
Phan Van Khai