Thông tư liên tịch 03/2006/TTLT-BLDTBXH-BNG

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;

c/ To provide laborers, before they go to work abroad, with telephone numbers and addresses of Vietnamese representative offices in host countries (labor management boards, consular sections); telephone numbers, addresses and names of representatives of Vietnamese enterprises, intermediary companies and labor users;

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:

2.1. To research into and probe host countries' markets, demands, policies and modes of receiving foreign laborers in order to propose concerned domestic agencies on the signing of labor cooperation treaties or agreements with host countries;

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;

2.11. To consider and decide on administrative sanctioning of laborers that commit violations according to the provisions of Article 29 of Decree No. 141 and the guidance in this Circular;

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.

4.3. For arising problems which are related to policies on sending Vietnamese laborers to work abroad, or which affect bilateral relations or rights and interests of the majority of Vietnamese laborers, or other serious cases, labor management boards shall take initiative in coordinating with concerned sections in studying and proposing settlement plans to heads of foreign-based Vietnamese representative offices in order to report thereon to functional agencies at home.

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.

2.2. The head of a foreign-based Vietnamese representative agency may authorize the second-ranking person in the agency to decide on administrative sanctioning. The authorization must be made in writing. Authorized persons must bear responsibility for the sanctioning decisions they issue.

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;

b/ An administrative violation record;

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.