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MINISTRY OF
INDUSTRY AND TRADE
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 41/2014/TT-BCT
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Hanoi, November
05, 2014
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CIRCULAR
BASIS, PROCEDURES FOR IDENTIFICATION OF FOREIGN WORKERS REASSIGNED
WITHIN ENTERPRISES OPERATING WITHIN 11 SERVICE SECTORS IN VIETNAM'S WTO
COMMITMENTS ON SERVICES, WHO ARE EXEMPT FROM WORK PERMITS
Pursuant to the Government's Decree No. 95/2012/ND-CP
dated November 12, 2012, defining the functions, tasks, powers and
organizational structure of the Ministry of Industry and Trade;
Pursuant to the Government's Decree No.
102/2013/ND-CP dated September 05, 2013 on guidelines for some Articles of the
Labor Code on foreign workers in Vietnam;
At the request of the Planning Office,
The Minister of Industry and Trade
promulgates a Circular on basis, procedures for identification of foreign
workers reassigned within enterprises operating within 11 service sectors in
Vietnam's WTO commitments on services, who are exempt from work permits:
Chapter I
GENERAL PROVISIONS
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This Circular deals with the basis, procedures
for identification of foreign workers reassigned within enterprises operating
within 11 service sectors in Vietnam's WTO commitments on services, who are
exempt from work permits.
Article 2. Regulated
entities
This Circular applies to foreign workers
reassigned within the enterprise, foreign employers, and relevant entities.
Article 3. Commercial
presence
Commercial presence prescribed in Clause 1
Article 3 of the Government's Decree No. 102/2013/ND-CP dated September 05,
2013 on guidelines for some Articles of the Labor Code on foreign workers in
Vietnam (hereinafter referred to as Decree No. 102/2013/ND-CP) includes:
a) Business cooperation contracts;
b) Joint ventures, wholly foreign-invested
enterprises;
c) Representative offices, branches of foreign
enterprises.
Chapter II
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Article 4. Basis for
identification of foreign workers reassigned within enterprises operating
within 11 service sectors in Vietnam's WTO commitments on services, who are
exempt from work permits
1. The basis for identification of foreign
workers being managers, executive officers, and experts reassigned within an
enterprise operating within 11 service sectors in Vietnam's WTO commitments on
services, who are exempt from work permits prescribed in Point a Clause 2
Article 7 of the Decree No. 102/2013/ND-CP , includes:
a) The foreign enterprise has established a
commercial presence in Vietnam;
b) The commercial presence in Vietnam of the foreign
enterprise operates within 11 service sectors specified in Appendix I hereof;
c) Any foreign worker that has been employed by
the foreign enterprise for at least 12 months before being sent to work at the
company's commercial presence in Vietnam.
2. The basis for identification of foreign
workers being skilled workers experts reassigned within an enterprise that
operates within 11 service sectors in Vietnam's WTO commitments on services,
who are exempt from work permits prescribed in Point a Clause 2 Article 7 of
the Decree No. 102/2013/ND-CP , includes:
a) The foreign enterprise has established a
commercial presence in Vietnam;
b) The commercial presence in Vietnam of the
foreign enterprise operates within 11 service sectors specified in Appendix II
hereof;
c) Any foreign worker that has been employed by
the foreign enterprise for at least 12 months before being sent to work at the
company's commercial presence in Vietnam.
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1. Documents proving foreign workers reassigned
within an enterprise operating within 11 service sectors specified in Appendix
I and Appendix II hereof, who are exempt from work permits as prescribed in
Point c Clause 2 Article 7 of the Decree No. 102/2013/ND-CP , includes:
a) A document issued by the foreign enterprise,
which assigns the person to work at the enterprise's commercial presence in Vietnam
and specifies the work duration;
b) A certification of the position of manager,
executive officer, expert, or skilled worker as prescribed in Clause 4 Article
10 of the Decree No. 102/2013/ND-CP and Clause 3 Article 5 of Circular No.
03/2014/TT-BLDTBXH dated January 20, 2014 of the Ministry of Labor, War
Invalids and Social Affairs, which provides guidelines for the Decree No.
102/2013/ND-CP (hereinafter referred to as Circular No. 03/2014/TT-BLDTBXH);
c) A document proving that the foreign worker has
been employed by the foreign enterprise for at least 12 months before being
sent to work at the company's commercial presence in Vietnam as prescribed in
Clause 5 Article 5 of Circular No. 03/2014/TT-BLDTBXH.
The documents mentioned in Points a, b, and c of
this Clause may be an original or a copy. Documents in foreign languages must
be translated into Vietnamese, authenticated in accordance with Vietnam's Law,
and are exempt from consular legalization;
d) A document proving that the commercial
presence in Vietnam of the foreign enterprise engages in only the 11 service
sectors specified in Appendix I hereof, which is any of the following
documents: Investment license, certificate of investment, Certificate of
Business Registration, Certificate of Business registration, license for
establishment of a representative office or branch issued by a competent
authority in accordance with Vietnam's law (01 certified true copy).
2. Foreign workers reassigned within a
enterprise operating within 11 service sectors in Vietnam's WTO commitments on
services shall follow procedures for certification of eligibility for exemption
from work permit prescribed in Article 11 of the Circular No. 03/2009/TT-BTC .
3. If the Service of Labor, War Invalids and
Social Affairs faces difficulties in identification of foreign workers
reassigned within the enterprise operating within 11 service sectors specified
Appendix I and Appendix II hereof, which is the basis for determination of the
foreign worker's eligibility for exemption from work permit, the Service of
Labor, War Invalids and Social Affairs shall send a written request for
opinions to the Ministry of Industry and Trade using form No. 1 in Appendix III
hereof (01 original) together with the documents mentioned in Clause 1 of this
Article (01 copy)
Within 03 working days from the receipt of the
request from the Service of Labor, War Invalids and Social Affairs, the
Ministry of Industry and Trade shall send a document to the Service of Labor,
War Invalids and Social Affairs, specifying whether the operation of the
foreign enterprise's commercial presence in Vietnam is operating within 11
service sectors in Appendix I and Appendix II hereof.
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Within 05 working days from the receipt of the
request from the employer, the Ministry of Industry and Trade shall send a
document to the employer and the Service of Labor, War Invalids and Social
Affairs, specifying whether the foreign enterprise's commercial presence in
Vietnam is operating within 11 service sectors in Appendix I and Appendix II
hereof.
The Service of Labor, War Invalids and Social
Affairs shall reconsider the foreign workers' eligibility for exemption from
work permits pursuant to the response of the Ministry of Industry and Trade.
Chapter III
IMPLEMENTATION
Article 6. Implementation
1. Planning Office - The Ministry of Industry
and Trade is in charge of settling the issues pertaining to identification of
foreign workers reassigned within enterprises operating within 11 service
sectors in Vietnam's WTO commitments on services as specified in Appendix I and
Appendix II hereof.
2. Services of Labor, War Invalids and Social
Affairs shall identify foreign workers reassigned within enterprises operating
within 11 service sectors in Vietnam's WTO commitments on services, who are
exempt from work permits.
3. Difficulties that arise during the
implementation of this Circular should be reported to the Ministry of Industry
and Trade for prompt instructions.
Article 7. Reporting
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Article 8. Effect
This Circular takes effect from December 22,
2014./.
PP MINISTER
DEPUTY MINISTER
Do Thang Hai
APPENDIX I
LIST OF 11 SERVICE SECTORS EXEMPT FROM WORK PERMITS
APPLIED TO FOREIGN WORKERS BEING MANAGERS, EXECUTIVE OFFICERS, AND EXPERTS ACCORDING
TO VIETNAM'S WTO COMMITMENTS ON SERVICES
(Promulgated together with Circular No. 41/2014/TT-BCT dated November 05,
2014 of the Ministry of Industry and Trade)
I. EXPLANATORY NOTES
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1. The service bearing the symbol (*) is
consider a sub-sector of a service sector that covers a larger area without a
specific CPC code. Example: CPC code of convention services is 87909*, meaning
it is a sub-sector of some service sector in Central Product Classification,
and this sector covers a larger area than convention services.
2. The service bearing the symbol (**) is
consider a sub-sector of a service sector that covers a larger area with a
specific CPC code. This code does not bear the symbol (**). e.g. voice
mail service with CPC 7523** is a sub-section of data and message transmission
services with CPC 7523).
II. LIST OF 1 SERVICE SECTORS
1. BUSINES SERVICES
A. Professional services
a) Legal services (CPC 861, excluding:
participation in legal proceedings in the capacity of defenders or
representatives of their clients before the courts of Viet Nam; legal
documentation and certification services of the laws of Viet Nam).
b) Accounting, auditing and bookkeeping services
(CPC 862).
c) Taxation services (CPC 863).
d) Architectural services (CPC 8671).
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e) Integrated engineering services (CPC 8673).
g) Urban planning and urban landscape
architectural services (CPC 8674).
B. Computer services and related services (CPC
841 - 845, CPC 849)
C. Research and development services
Research and development services on natural
sciences (CPC 851).
D. Rental/leasing services without operators
Aircraft rental (CPC 83104).
DD. OTHER BUSINES SERVICES
a) Advertising services (CPC 871, excluding
advertising for cigarettes).
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c) Management consultant services
(CPC 865).
d) Services related to management consulting
(CPC 866, except CPC 86602 and Arbitration and conciliation services for
commercial disputes between businesses (CPC 86602**))
dd) Technical testing and analysis services (CPC
8676, excluding conformity testing of transport vehicles and certification of
transport vehicles).
e) Services incidental to agriculture, hunting
and forestry (CPC 881).
g) Services incidental to mining (CPC 883),
excluding supply of equipment, materials and chemicals, supply base services,
offshore/marine support vessels, accommodation and catering, aviation services.
h) Services incidental to manufacturing (CPC 884
and 885).
i) Services related to scientific and technical
consulting (CPC 86751, 86752 and 86753 only).
k) Maintenance and repair of equipment (not
including maritime vessels, aircraft or other transport equipment) (CPC 633)
2. COMMUNICATION SERVICES
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* Express delivery services, i.e. services
consisting of collection, sorting, transport and delivery, whether for domestic
or foreign destination:
a) Written communication, on any kind of
physical medium, including hybrid mail service and direct mail.
Except for the handling of items of
written communication the price of which is less than: 10 times the tariff for
the handling of a standard domestic letter in the first weight level for
domestic shipments; US$9 for international shipments, provided that the gross
weight of these items is less than 2,000 grams.
b) Parcels and other goods.
* Handling of non-addressed items.
B. TELECOMMUNICATION SERVICES
Basic telecommunication services
a) Voice telephone services (CPC 7521).
b) Packet-switched data transmission services
(CPC 7523**).
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d) Telex services (CPC 7523**).
dd) Telegraph services (CPC 7523**).
e) Facsimile services (CPC 7521** + 7529**).
g) Private leased circuit services (CPC 7521** +
7529**).
h*) Other services:
- Videoconference services (CPC 75292);
- Video transmission services, excluding
broadcasting.
- Radio based services includes:
+ Mobile telephone (terrestrial and satellite)
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+ Paging;
+ PCS;
+ Trunking;
- Internet Exchange Service (IXP).
- Virtual Private Network (VPN).
Value-added services
a) Electronic mail (CPC 7523**).
b) Voice mail (CPC 7523**).
c) On-line information and database retrieval
(CPC 7523**).
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dd) Enhance/value-added facsimile services,
including store and forward, store and retrieve (CPC 7523**).
e) Code and protocol conversion.
g) On-line information and data processing
(including transaction processing) (CPC 843**).
h) Other services
Internet Access Services IAS
C. Audiovisual Services
a) Motion picture production (CPC 96112, excl.
video tape).
b) Motion picture distribution (CPC 96113, excl.
video tape).
c) Motion picture projection service (CPC
96121).
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3. CONSTRUCTION AND RELATED ENGINEERING
SERVICES
A. General construction work for building
(CPC 512)
B. General construction work for civil engineering
(CPC 513)
C. Installation and assembly work (CPC 514,
516)
D. Building completion and finishing work
(CPC 517)
DD. Other (CPC 514, 516)
4. DISTRIBUTION SERVICES
A. Commission agents' services (CPC 621,
61111, 6113, 6121)
B. Wholesale trade services (CPC 622, 61111,
6113, 6121)
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D. Franchising services (CPC 8929)
5. EDUCATIONAL SERVICES
A. Secondary education services (CPC 922)
B. Higher education services (CPC 923)
C. Adult education (CPC 924)
D. Other education services (CPC 929
including foreign language training)
6. ENVIRONMENTAL SERVICES
A. Sewage services (CPC 9401)
B. Refuse disposal services
(CPC 9402)
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- Cleaning services of exhaust gases (CPC 94040)
and noise abatement services (CPC 94050);
- Environmental impact assessment services (CPC
94090*)
7. FINANCIAL SERVICES
A. Insurance and insurance-related services
a) Direct insurance:
- Life insurance, excluding health insurance
services;
- Non-life insurance services
b) Reinsurance and retrocession
c. Insurance intermediation (such as brokerage
and agency).
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B. Banking and other financial services
a) Acceptance of deposits and other repayable
funds from the public.
b) Lending of all types, including consumer
credit, mortgage credit, factoring and financing of commercial transaction.
c) Financial leasing.
d) All payment and money transmission services,
including credit, charge and debit cards, travellers' cheques and bankers
drafts.
dd) Guarantees and commitments.
e) Trading for own account or for account of
customers, whether on an exchange, in an over-the-counter market or otherwise,
the following:
- Money market instrument (including cheques,
bills, certificates of deposits);
- Foreign exchange;
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- Bullion.
g) Money broking.
h) Asset management, such as cash or portfolio
management, all forms of collective investment management, pension fund
management, custodial, depository and trust services.
i) Settlement and clearing services for
financial assets, including securities, derivative products, and other
negotiable instruments.
k) Provision and transfer of financial
information, and financial data processing and related software by suppliers of
other financial services.
l) Advisory, intermediation and other auxiliary
financial services on all activities listed in subparagraphs from (a) to (k),
including credit reference and analysis, investment and portfolio research and
advice, advice on acquisitions and on corporate restructuring and strategy.
C. Securities
a) Trading for own account or for account of
customers, whether on an exchange, in an over-the-counter market or otherwise,
the following:
- Derivative products including futures and
options;
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- Other negotiable instruments and financial
assets, excluding bullion.
b) Participation in issues of all kinds of
securities, including under-writing and placement as an agent (publicly or
privately), provision of services related to such issues.
c) Asset management, such as portfolio
management, all forms of collective investment management, pension fund
management, custodial depository and trust services.
d) Settlement and clearing services for
securities, derivative products, and other securities-related instruments.
dd) Provision and transfer of financial
information, and related software by suppliers of securities services.
e) Advisory, intermediation and other auxiliary
securities-related excluding (a), including investment and portfolio research
and advice, advice on acquisitions and on corporate restructuring and strategy
(for other services under (e), refer to (e) under banking sector).
8. HEALTH RELATED AND SOCIAL SERVICES
A. Hospital services (CPC 9311)
B. Medical and dental services (CPC 9312)
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A. Hotel and restaurant, including:
- Lodging services (CPC 64110).
- Catering food (CPC 642) and drink services
(CPC 643).
B. Travel agencies and tour operator services
(CPC 7471)
10. RECREATIONAL, CULTURAL AND SPORTING
SERVICES
A. Entertainment services (including theatre,
live bands and circus services) (CPC 9619)
B. Other services
Electronic games business (CPC 964**).
11. TRANSPORT SERVICES
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a) Passenger transportation less cabotage (CPC
7211).
b) Freight transportation less cabotage (CPC
7212).
c) Maritime Auxiliary Services
- Container handling services (CPC 7411);
- Customs Clearance Services;
- Container station and depot services.
B. Internal Waterways Transport
a) Passenger transport (CPC 7221).
b) Freight transport (CPC 7222).
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a) Sales and marketing air products services.
b) Computer reservation services.
c) Maintenance and repair of aircraft (CPC
8868**).
D. Rail transport services
a) Passenger transport (CPC 7111).
b) Freight transport (CPC 7112).
D. Road transport services
a) Passenger transport (CPC 7121+7122).
b) Freight transport (CPC 7123).
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a) Container handling services, except services
provided at airports (part of CPC 7411).
b) Storage and warehouse services (CPC 742).
c) Freight transport agency services (CPC 748).
d) Other services (part of CPC 749)./.
APPENDIX II
LIST OF 11 SERVICE SECTORS EXEMPT FROM WORK PERMITS
APPLIED TO FOREIGN WORKERS BEING SKILLED WORKERS ACCORDING TO VIETNAM'S WTO
COMMITMENTS ON SERVICES
(Promulgated together with Circular No. 41/2014/TT-BCT dated November 05,
2014 of the Ministry of Industry and Trade)
I. EXPLANATORY NOTES
In this Appendix, the symbols (*) and (**)
indicate sub-sectors.
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2. The service bearing the symbol (**) is
consider a sub-sector of a service sector that covers a larger area with a
specific CPC code. This code does not bear the symbol (**). e.g. voice
mail service with CPC 7523** is a sub-section of data and message transmission
services with CPC 7523).
II. LIST OF 11 SERVICE SECTORS
1. BUSINES SERVICES
A. Professional services
a) Legal services (CPC 861, excluding:
participation in legal proceedings in the capacity of defenders or representatives
of their clients before the courts of Viet Nam; legal documentation and
certification services of the laws of Viet Nam).
b) Taxation services (CPC 863)
c) Architectural services (CPC 8671)
d) Engineering services (CPC 8672)
dd) Integrated engineering services (CPC 8673)
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B. Computer services and related services
(CPC 841 - 845, CPC 849)
C. Research and development services
Research and development services on natural
sciences (CPC 851)
D. Rental/leasing services without operators
Aircraft rental (CPC 83104)
DD. OTHER BUSINES SERVICES
a) Services related to management consulting
(CPC 866, except CPC 86602 and Arbitration and conciliation services for commercial
disputes between businesses (CPC 86602**))
b) Services related to scientific and technical
consulting (CPC 86751, 86752 and 86753 only).
2. COMMUNICATION SERVICES
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Basic telecommunication services
a) Telex services (CPC 7523**)
b) Telegraph services (CPC 7523**)
c) Facsimile services (CPC 7521** + 7529**)
Value-added services
d) Enhance/value-added facsimile services,
including store and forward, store and retrieve (CPC 7523**)
dd) Other services
B. Audiovisual Services
a) Motion picture projection service (CPC 96121)
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3. CONSTRUCTION AND RELATED ENGINEERING
SERVICES
Installation work (CPC 514)
4. DISTRIBUTION SERVICES
Franchising services (CPC 8929)
5. EDUCATIONAL SERVICES
Higher education services (CPC 923)
6. ENVIRONMENTAL SERVICES
Environmental impact assessment services (CPC
94090*)
7. FINANCIAL SERVICES
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8. HEALTH RELATED AND SOCIAL SERVICES
Medical and dental services (CPC 9312)
9. TOURISM AND TRAVEL RELATED SERVICES
Travel agencies and tour operator services (CPC
7471)
10. RECREATIONAL, CULTURAL AND SPORTING
SERVICES
A. Entertainment services (including theatre,
live bands and circus services) (CPC 9619)
B. Other services
Electronic games business (CPC 964**)
II. TRANSPORT SERVICES
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APPENDIX III
Form No. 1: Promulgated together with
Circular No. 41/2014/TT-BCT dated November 05, 2014 of the Ministry of Industry
and Trade
THE PEOPLE’S
COMMITTEE OF [PROVINCE/CITY]
SERVICE OF LABOR, WAR INVALIDS AND SOCIAL AFFAIRS
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
---------------
No.: ……../SLDTBXH-………
Re: identification of foreign workers reassigned
within enterprises operating in 11 service sectors in WTO commitments
[Location and
date]
To: Ministry of
Industry and Trade
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The Service of Labor, War Invalids and Social
Affairs of ......... hereby requests the Ministry of Industry and Trade to
determine whether the commercial presence in Vietnam of the foreign enterprise
is operating within 11 service sectors in Vietnam's WTO commitments on services
(relevant documents are enclosed herewith)./.
DIRECTOR
(Signature, full name, and seal)
Form No. 2: Promulgated
together with Circular No. 41/2014/TT-BCT dated November 05, 2014 of the
Ministry of Industry and Trade
NAME OF
EMPLOYER
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
---------------
No.: ……………….
Re: identification of foreign workers
reassigned within an enterprise operating within 11 service sectors in WTO
commitments
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To: Ministry of
Industry and Trade
Pursuant to Circular No.
/2014/TT-BCT dated of the Ministry of
Industry and Trade on basis, procedures for identification of foreign workers
reassigned within enterprises operating within 11 service sectors in Vietnam's
WTO commitments on services, who are exempt from work permits,
[Name of the enterprise/organization] hereby
requests the Ministry of Industry and Trade to determine whether the
enterprise/organization is operating within 11 service sectors in Vietnam's WTO
commitments on services (relevant documents are enclosed herewith)./.
Authorized
representative of enterprise/organization
(Signature, full name, and seal)