Thông tư 03/2014/TT-BLDTBXH

CIRCULAR

PROVIDING GUIDANCE ON IMPLEMENTATION OF SOME ARTICLES OF DECREE NO. 102/2013/ND-CP DATED SEPTEMBER 05, 2013 OF THE GOVERNMENT DETAILING THE IMPLEMENTATION OF SOME ARTICLES OF LABOUR CODE ON FOREIGN EMPLOYEES IN VIETNAM

Pursuant to Decree No. 106/2012 / ND-CP dated December 20, 2012 of the Government defining the functions, tasks, powers and organizational structure of the Ministry of Labour - Invalids and Social Affairs;

Pursuant to Decree No. 102/2013 / ND-CP dated September 5, 2013 of the Government detailing the implementation of some articles of the Labor Code on foreign employees in Vietnam;

At the request of Director of Employment Department;

The Minister of Labour - Invalids and Social Affairs issues this Circular providing the guidance on the implementation of some articles of Decree No. 102/2013 / ND-CP dated September 5, 2013 of the Government detailing the implementation of some articles of the Labor Code on employment of foreigners working in Vietnam (Decree No. 102/2013 / ND-CP of September 5, 2013 of the Government detailing the implementation of a number of articles of the Labour Code on foreign employees in Vietnam (hereafter referred to as Decree No. 102/2013 / ND-CP).

Chapter I

GENERAL REGULATION

Article 1. Scope and subjects of application

The scope and subjects of application in this Circular are the scope and subjects of application specified in Article 1 and 2 of Decree No. 102/2013/ND-CP.

Article 2. Explanation of terms

1. Service providers under contract specified at Point Article, Clause 1, Article 2 of Decree No. 102/2013/ND-CP are foreign employees who work at least for 02 months (24 months) in a foreign enterprise which does not have its commercial presence in Vietnam and must meet the conditions for “expert” under the provisions in Clause 3, Article 3 of Decree No. 102/2013/ND-CP.

2. Foreign employees working in the form of service offering specified at Point dd, Clause 1, Article 2 of Decree No. 102/2013/ND-CP are the foreign employees who do not live in Vietnam and do not receive remuneration from any source in Vietnam, participate in activities related to the representation of a service provider to negotiate the service consumption of such provider on the condition that they must not sell such services directly to the public as well as not be involved in service supply.

3. Administrator and chief operating officer specified at Point i, Clause 1, Article 2 of Decree No. 102/2013/ND-CP are the foreign employees directly involved in management in organizations and enterprises including the direction of organizations and enterprises or units directly attached to such organizations and enterprises; monitoring and control of work of professional employees, management staff or other monitoring employees

Chapter II

DETERMINATION OF POSITION FOR EMPLOYMENT OF FOREIGN EMPLOYEES

Article 3. Need for employment of foreign employees

1. Before at least 30 days from the day the employer (except for contractor) plans for the recruitment of foreign employees, the employer will make a report as specified in Clause 1, Article 4 of Decree No. 102/2013/ND-CP on the need for employment of foreign employees, including: job position, number, qualification, experience, salary and working time under the Form No.1 issued with this Circular and submit it directly to the Department of Labor - Invalids and Social Affairs of provinces and centrally-run cities (hereafter referred to as Department of Labor - Invalids and Social Affairs) where the employer’s head office is located.

2. Employer who has been approved for employment of foreign employees but wishes to change the need for employment of foreign employees should submit an explanation report under the Form No.2 issued with this Circular on the adjustment or supplementation at least 30 days before the expected day of new recruitment, additional recruitment or recruitment for substitution of foreign employees to the Department of Labor - Invalids and Social Affairs where the employer’s head office is located.

3. The Department of Labor - Invalids and Social Affairs shall inform its approval for employment of foreign employees to each employer under the Form No.3 issued with this Circular within 15 days after receipt of explanation report or adjustment, supplementation report on the need for employment of foreign employees of the employer.

Article 4. Need for employment of foreign employees of contractor

In case of recruitment of Vietnamese employees to the job positions estimated for foreign employees as stipulated in Clause 3, Article 5 of Decree No. 102/2013/ND-CP, at least 2 months prior to the proposal for recruitment from 500 Vietnamese employees or more and at least 01 month prior to the proposal for recruitment of less than 500 Vietnamese employees, the contractor shall submit his/her proposal directly or by post to the Chairman of provincial People’s Committee where the contractor carries out the bid package after having the investor’s certification on acceptance of employment of foreign employees under the Form No.04 issued with this Circular. In case the contractor has a need for adjustment or addition of number of foreign employees determined in the bidding documents or proposal documents, the investor must certify the approved adjustment or addition plan for the need of foreign employees to be employed from the contractor under the Form No. 05 issued with this Circular and before recruiting foreign employees under the adjustment or addition plan, the contractor shall make a proposal for recruitment of foreign employees to the job positions estimated for foreign employees as stipulated in this Article.

Chapter III

ISSUE OF WORK PERMIT

Article 5. Dossier for issue of work permit

The documents specified in Clause 1, 3, 4, 5 and 8, Article 10 of Decree No. 102/2013/ND-CP are as follows:

1. Written request for issue of work permit of the employer specified in Clause 1, Article 10 of Decree No. 102/2013/ND-CP under the Form No.06 issued with this Circular.

2. Written certification of not being the criminal or under criminal prosecution specified in Clause 3, Article 10 of Decree No. 102/2013/ND-CP is done as follows:

a) In case the foreign employees have resided in Vietnam, they must have judicial record issued by the National Center for Judicial Records or in case they are residing in Vietnam, they must have the judicial record issued by the Department of Justice of provinces or centrally-run cities and the written certification of not being the criminal or under criminal prosecution as stipulated by foreign law issued by the foreign competent authority;

b) In case the foreign employees have not resided in Vietnam, they must have the written certification of not being the criminal or under criminal prosecution as stipulated by foreign law issued by the foreign competent authority;

3. Written certification of being manager, chief operating officer, specialist or technical employee specified in Clause 4, Article 10 of Decree No. 102/2013/ND-CP is done as follows:

a) For foreign employees who are manager or chief operating officer, they must have one of the documents as follows:

- Documents for demonstration of being manager or chief operating officer are: work permit or labour contract or appointment decision specifying that such foreign employees have worked as manager or chief operating officer;

- Written certification of being manager or chief operating officer which is certified by the organ, organization or enterprise where such foreign employees used to work.

b) For foreign employees as specialists, they must have one of the following documents:

- Documents for demonstration of being foreign employees with qualification of engineer or bachelor or equivalent or higher or having at least 5 years of working in the speciality trained consistently with the job position in which the foreign employees plan to work in Vietnam;

- Written certification of being specialist recognized by foreign organ, organization or enterprise.

c) For foreign employees as technical employees, they must have one of the following documents:

- Written evidence or written certification of the foreign competent authority or enterprise on being trained in technical speciality for at least 01 year;

- Written evidence of having at least 3 years of working in the speciality trained consistently with the job position in which the foreign employees plan to work in Vietnam;

4. Written approval for employment of foreign employees specified in Clause 5, Article 10 of Decree No. 102/2013/ND-CP as the notice of the Department of Labour - Invalids and Social Affairs of the job position approved by the Chairman of provincial People’s Committee or the written decision of the Chairman of provincial People’s Committee on the employment of foreign employees from the contractor to the job position which cannot recruit Vietnamese employees.

5. Written evidence specified at Point a, d and g, Clause 8, Article 10 of Decree No. 102/2013/ND-CP as one of the following documents:

- Labor contract;

- Written certification of the employer;

- Recruitment decision of foreign employees;

- Tax or insurance payment certificate of foreign employees.

Article 6. Work permit

1. The form of work permit specified in Clause 2, Article 12 of Decree No. 102/2013/ND-CP is as follows:

a) Appearance of work permit:

The work permit has A4 size (21 cm x 29,7 cm), including 2 pages: page 1 is blue, plastic-coated; page 2 has white background with blue pattern and a star in the middle.

b) Contents of work permit comply with the Form No.7 issued with this Circular.

2. The work permit is uniformly printed and issued by the Employment Department of the Ministry of Labour - Invalids and Social Affairs.

Article 7. Cases of re-issue of work permit

1. Work permit is lost or damaged.

2. Change of contents stated in the issued work permit: full name, date of birth, nationality, Passport number or working place.

The working place stated in the work permit is the address where the foreign employees work. The change of working address stated in the work permit is that the foreign employees are appointed, transfer or assignment to work full time at branch or representative office or other establishments of the employer in the same centrally-run provinces.

Article 8. Dossier to request the re-issue of work permit

The documents specified in Clause 1 and 3, Article 14 of Decree No. 102/2013/ND-CP are as follows:

1. Written request for re-issue of work permit of the employer specified in Clause 1, Article 14 of Decree No. 102/2013/ND-CP under the Form No.8 issued with this Circular.

2. Documents in the dossier to request the re-issue of work permit to the foreign employees working in the form of labor contract specified at Point b, Clause 3, Article 14 of Decree No. 102/2013/ND-CP including the issued work permit (except case of loss) which is still valid at least 5 days but not exceeding 15 days, before the expiry date of the issued work permit; the health certificate stipulated in Clause 2, Article 10 of Decree No. 102/2013/ND-CP; the written notification of the Department of Labour - Invalids and Social Affairs of the job position approved for employment of foreign employees by the Chairman of provincial People’s Committee or the written decision on recruitment of foreign employees of the contractor from the Chairman of provincial People’s Committee to the positions which cannot recruit Vietnamese employees.

3. In case the work permit is lost as specified in Clause 3, Article 14 of Decree No. 102/2013/ND-CP, the foreign employees must have a written explanation which shall be certified by the employer.

Article 9. Duration of the work permit issued or re-issued

The duration of work permit issued is in accordance with Article 11 of Decree No. 102/2013/ND-CP and re-issued in accordance with Article 16 of Decree No. 102/2013/ND-CP but not exceeding the duration in the written approval of the Chairman of provincial People’s Committee for the employment of foreign employees or not exceeding the duration in the written decision of the Chairman of provincial People’s Committee or the written decision on recruitment of foreign employees of the contractor from the Chairman of provincial People’s Committee to each position which cannot recruit Vietnamese employees.

Article 10. Written response of failure to issue or re-issue of work permit

In case of failure to issue the work permit specified in Clause 2, Article 12 of Decree No. 102/2013/ND-CP or specified in Clause 3, Article 15 of Decree No. 102/2013/ND-CP, the Department of Labour - Invalids and Social Affairs shall give the employer the reply under the Form No.09 issued together with this Circular.

Article 11. Certification of foreign employees not subject to the issue of work permit

The certification of foreign employees not subject to the issue of work permit specified in Clause 2, Article 8 of Decree No. 102/2013/ND-CP is done as follows:

1. The employer shall send the written certification directly to the Department of Labour - Invalids and Social Affairs for certification that the foreign employees are not subjec to the issue of work permit under the Form No.10 issued with this Circular.

2. The Department of Labour - Invalids and Social Affairs shall carry out the certification of foreign employees who are subject to or not subject to the issue of permit under the Form No.11 issued with this Circular.

Chapter IV

IMPLEMENTATION ORGANIZATION

Article 12. Responsibility of Chairman of provincial People’s Committee

1. Directing the local competent authorities in propagation and publicity of law; examination, inspection and handling of violation under regulation of law on recruitment and management of foreign employees in the areas.

2. Directing the local organs and organization to introduce and provide Vietnamese employers for the contractor.

3. Approving the job positions for which the employer may recruit the foreign employees; appointing the Department of Labour - Invalids and Social Affairs to receive, aggregate and assess the reality for report to the Chairman of provincial People’s Committee on the need for employment of foreign employees and notifying the approval of the Chairman of provincial People’s Committee to each employer.

4. Making a decision on permitting the contractor to recruit foreign employees to each position which cannot recruit Vietnamese employees.

Article 13. Responsibility of the Department of Labour - Invalids and Social Affairs

1. Propagate and disseminating regulations of law on Vietnam labor and providing instructions on the order, procedures and dossier for issue or re-issue of work permit to the enterprises, organizations, investors, contractor and foreign employees in the area.

2. Introducing or providing employees for the employers or contractors as prescribed by law.

3. Receiving, aggregating and assessing the need for employment of foreign employees to each job position at localities for submission to the Chairman of provincial People’s Committee and notifying in writing the each job position entitled to the employment of foreign employees to each employer as approved by the Chairman of provincial People’s Committee

4. Issuing or re-issuing work permit or certifying the case not subject to the issue of work permit. When receiving dossier for the issue or re-issue of work permit or certification of case not subject to the issue of work permit, using the follow-up book under the Form No.12 issued with this Circular and handing in the receipt to the employer. The receipt must be stated with the date of receipt of dossier, name of documents and time limit for response. Keeping the dossier for issue or reissue of work permit as presecribed by law.

5. Examining or inspecting the compliance with regulations of law on recruitment and management of foreign employees working in Vietnam of the employer in the area.

6. Revoking the work permit as stipulated in Clause 2, Article 17 of Decree No. 102/2013/ND-CP.

7. Periodical report

a) Before the fifth date of every month, notifying the Police of provinces and centrally-cities of the reality of issue of work permit under the Form No.13 issued with this Circular.

b) Making quarterly report to the Ministry of Labour - Invalids and Social Affairs on foreign employees working in provinces or cities under the Form No.14 issued with this Circular before the 10th date of first month of the following quarter.

c) Every 06 months, before July 15 and annually before January 15 of the following year, making report to the Ministry of Labour - Invalids and Social Affairs of the reality of foreigners working at enterprises, organs or organizations in the management areas under the Form No.15 issued with this Circular.

8. Applying information technology to the management and issue or re-issue of work permit to the foreign employees working in Vietnam.

Article 14. Responsibility of employer

1. Complying with the regulations of Vietnam law on foreign employees working in Vietnam.

2. Instructing and providing the foreign employees with regulations of Vietnam law on foreign employees working in Vietnam.

3. Performing procedures to request the issue or re-issue of work permit and certification of cases not subject to the issue of work permit to the foreign employees working in Vietnam.

In case the foreign employees have been issued with the work permit but appointed, transferred or assigned to  work full time in a province or city different from the province or city where they are working or held a different job position for the employer, the issue of work permit complies with the provisions in Section 3 of Decree No. 102/2013/ND-CP.

4. Making payment of fees for issue or re-issue of work permit as prescribed by law.

5. Fully complying with the labor contract signed with the foreign employees working at enterprises and organizations as prescribed by law; sending notification of the signing of labor contract with the copy of signed labor contract to the Department of Labour - Invalids and Social Affairs which has issued the work permit to the foreign employees.

6. Managing dossiers and regularly updating and adding documents related to the foreign employees working at enterprises and organizations.

7. Managing foreign employees working at enterprises and organizations.

8. Within 03 days after recovery of work permit for cases specified in Clause 1, Article 17 of Decree No. 102/2013/ND-CP of the foreign employees, the employer shall submit these work permits directly to the Department of Labour - Invalids and Social Affairs which has issues such work permits. In case of failure to recover the work permits, the employer must make a written report specifying the reasons.

9. Making periodical report

a) The employer shall make periodical report for every 06 months before the 5th of July annually and before the 5th of January of the following year to the Department of Labour - Invalids and Social Affairs where the employer’s head office is located or the employer is carrying out projects or bidding package on the reality of employment of foreign employees under the Form No.16 issued withi this Circular.

b) The foreign employees have been issued with work permit but appointed, transferred or assigned to work at the other branches or representative offices or other establishments of such employer inside and outside the province, city during at least 10 days in a month or at least 30 days accumulated in a year. In this case, the employer must notify in writing of the working time, job position of the foreign employees coming to working in province or city together with the work permit to the Department of Labour - Invalids and Social Affairs where the foreign employees come to work.

Article 15. Responsibility of the investor

1. Monitoring and requiring the contractor to comply with the contents committed in the bidding documents and the proposal documents of the employment of Vietnamese and foreign employees upon execution of contract.

2. Instructing, urging and inspecting the contractor in compliance with regulaitons on recruitment and employment of foreign employees working for the contractor as prescribed by law; monitoring and managing the foreign employees in compliance with regulations of Vietnam law; making the quarterly report to the Department of Labour - Invalids and Social Affairs on the reality of employment of foreign employees of the contractor under the Form No. 16 issued with this Circular prior to the first month of the following quarter.

Article 16. Responsibility of foreign employees.

1. Studying regulations of Vietnam law on foreign employees working in Vietnam; preparing documents in the dossier for the issue or re-issue of work permit;

2. Observing regulations of law on recruitment and management of foreign employees working in Vietnam and other relevant regulations;

3. Within 02 days after the foreign employees are revoked their work permit as stipulated in Clause 1, Article 17 of Decree No. 102/2013/ND-CP, the foreign employees must return their work permits to their employers.

Article 17. Effect

1. This Circular takes effect on March 10, 2014.

2. This Circular replaces Circular No. 31/2011/TT-BLDTBXH dated November 03, 2011 of the Ministry of Labour - Invalids and Social Affairs guiding the implementation of some articles of Decree No. 34/2008/ND-CP dated March 25, 2008 of the Government and Decree No. 46/2011/ND-CP dated June 17, 2011 of the Government amending and adding some articles of Decree No. 34/2008/ND-CP dated March 25, 2008 of the Government regulating the recruitment and management of foreign employees working in Vietnam.

3. In case the employer has registered the need for recruitment and employment of foreign employees in 2014 under the provisions in Clause 7, Article 19 of Decree No. 34/2008/ND-CP dated March 25, 2008 of the Government which has been amended and added and Clause 10, Article 14 of Circular No. 31/2011/TT-BLDTBXH dated November 03, 2011 of the Ministry of Labour - Invalids and Social Affairs prior to November 01, 2013, the Department of Labour - Invalids and Social Affairs shall make aggregation, assessment and report to the provincial People’s Committee for consideration and decision.

Any problem arising during the implementation of this Circular should be reported to the Ministry of Labour - Invalids and Social Affairs for timely guidance and addition./.