Thông tư 04/2004/TT-BLDTBXH

CIRCULAR

PROVIDING GUIDELINES FOR IMPLEMENTATION OF A NUMBER OF ARTICLES OF DECREE 105/2003/ND-CP OF THE GOVERNMENT DATED 17 SEPTEMBER 2003 WITH RESPECT TO EMPLOYMENT AND ADMINISTRATION OF FOREIGN EMPLOYEES WORKING IN VIETNAM

To implement Decree 105/2003/ND-CP of the Government dated 17 September 2003 on employment and administration of foreign employees working in Vietnam and Resolution 01/2004/NQ-CP of the Government dated 12 January 2004 on a number of basic solutions for directing and administering implementation of State planning and the State budget for year 2004, the Ministry of Labour, War Invalids and Social Affairs provides the following guidelines:

I. APPLICABLE ENTITIES AND GOVERNING SCOPE:

1. The enterprises, bodies and organizations stipulated in article 1 of Decree 105/2003/ND-CP (hereinafter collectively referred to as employers) shall comprise:

(a) Enterprises belonging to all economic sectors, including enterprises operating pursuant to the Law on State Owned Enterprises, the Law on Enterprises, and the Law on Foreign Investment in Vietnam;

(b) Contractors (head contractors and sub-contractors) being economic organizations with Vietnamese or foreign legal entity status awarded with a contract;

(c) Business and service organizations belonging to State administrative bodies, the armed forces, people's bodies, political organizations, socio-political organizations, and social organizations;

(d) Offices of foreign investment projects, branches of foreign companies; representative offices of: economic, trade, financial, banking, insurance, scientific and technical, cultural, sporting, educational, and medical health organizations;

(dd) State professional entities;

(e) Medical health, cultural, educational, training, and sporting establishments, comprising:

- Sporting establishments established and operating pursuant to Ordinance 28/2000/PL-UBTVQH10 of the Standing Committee of the National Assembly dated 25 September 2000;

- Educational and training establishments and vocational training schools and establishments established and operating pursuant to the Law on Education 11/1998/QH10 dated 2 December 1998 and the Labour Code (Amended);

- Hospitals, institutes with hospital beds, health centers, centers for the prevention of social ills, reserve health centers, treatment camps and medical health establishments established and operating pursuant to the Law on Enterprises, the Law on State Owned Enterprises and the Law on Foreign Investment in Vietnam;

- Cultural establishments established and operating pursuant to the law of Vietnam, including cultural establishments established and operating pursuant to the Law on Enterprises, the Law on State Owned Enterprises and the Law on Foreign Investment in Vietnam;

(g) Offices of foreign or international projects in Vietnam;

(h) Branches of foreign lawyer organizations permitted to operate in Vietnam;

(i) Co-operatives established and operating pursuant to the Law on Co- operatives.

2. Foreign employees stipulated in article 2 of abovementioned Decree 105/2003/ND-CP means persons without Vietnamese nationality in accordance with the Law on Vietnamese Nationality passed by the National Assembly on 20 May 1998.

II. RECRUITMENT AND ADMINISTRATION OF FOREIGN EMPLOYEES WORKING IN VIETNAM:

1. Employers shall be permitted to employ foreign employees pursuant to article 3 of Decree 105/2003/ND-CP and clause 11 of section I of Resolution 01/2004/NQ-CP specifically:

(a) Employers prescribed in clause 1(a) of section I of this Circular shall be permitted to employ foreign employees in accordance with the following provisions:

* The number of foreign employees permitted to be employed shall be calculated in accordance with this formula:

L_NN = L_DN x 0.03

In which:

- L_NN is the number of foreign workers an enterprise is permitted to employ in accordance with regulations, including those whom the employer employs in the form of a labour contract and those whom the foreign party has appointed to come to Vietnam to work at the enterprise. The result L_NN shall not exceed fifty (50) persons and it may be a minimum of one person.

Foreign individuals being members of a board of management, general director, deputy general director, director and deputy director of an enterprise established pursuant to the law of Vietnam; heads of representative offices and heads of branches in Vietnam; and foreign individuals who come to Vietnam to work at enterprises in order to perform various types of contracts (except labour contracts) in accordance with article 6.5 of Decree 105/2003/ND-CP shall not be included in the above number of foreign workers in an enterprise.

- L_DN is the current number of employees in an enterprise (including Vietnamese and foreign individuals) at the time of recruitment of foreign employees, comprising: the number of employees currently working at the enterprise; the number of employees currently appointed by the enterprise to work or be trained overseas; the number of employees on social insurance leave (sick leave, maternity leave, workplace accidents or occupational illness); the number of employees currently being trained by the enterprise; and the number of employees currently on leave due to postponement of their labour contracts.

If the result L_NN includes a decimal, it shall be rounded up to the next whole number.

Example 1: 76 is the current number of employees in Enterprise A at the time of recruitment of foreign employees. The number of foreign employees that Enterprise A is permitted to employ shall be: L_NN = 76 x 0.03 = 2.28. So Enterprise A is permitted by the regulations to employ 3 foreign employees.

Example 2: 1767 is the current number of employees in Enterprise B at the time of recruitment of foreign employees. The number of foreign employees that Enterprise B is permitted to employ shall be: L_NN = 1767 x 0.03 = 53.01. So Enterprise B is permitted by the regulations to employ 50 foreign employees.

- If an enterprise requires to recruit foreign employees to work in positions for which Vietnamese workers do not yet satisfy the requirements and in excess of the number permitted by the regulations, it shall be permitted to recruit in addition not in excess of fifty (50) per cent of the permitted number provided that it has written approval from the chairman of the people's committee of the province or city under central authority in the locality of the head office of the enterprise. Enterprises shall prepare any request for recruitment of additional foreign employees on Form 1 issued with this Circular.

- With respect to foreign investment projects which the competent State body approved prior to the date of effectiveness of Decree 105/2003/ND-CP employment of foreign employees shall be implemented in accordance with the approved personnel plan of the project.

- With respect to enterprises which employed foreign employees prior to the date of effectiveness of Decree 105/2003/ND-CP employers shall be permitted to continue to employ the number of foreign employees they have employed until expiry of signed labour contracts or until expiry of issued work permits. If, upon expiry of the above employment terms, an enterprise needs to recruit foreign employees in excess of the ratio permitted by the regulations, employment shall be implemented in accordance with the provisions of this Circular.

(b) Employers prescribed in sub-clauses (b), (c), (d), (dd), (e), (g), (h) and (i) of clause 1 of Section I of this Circular must, prior to employing foreign employees, forward a request to the people's committee of the province or city under central authority in the locality of the head office of the enterprise, on Form 2 issued with this Circular; and they may only employ foreign employees after they have written approval from the chairman of the people's committee of the province or city under central authority.

If a competent State body fixed the number of foreign employees to be employed annually when such body granted the decision or licence for establishment and operation in Vietnam, the above provision is not required to be implemented.

2. Foreign individuals with highly technical skills, very experienced professionally in production operation and management as stipulated in article 4.3 of Decree 105/2003/ND-CP shall be provided for as follows:

(a) Foreign individuals with highly technical skills shall comprise engineers; people with qualifications equivalent to engineer or higher with a university graduate degree, master's degree or doctorate appropriate for the expertise or work required by the employer;

(b) Foreign individuals being traditional trade artisans must have written certification from the competent body or organization in the country of their nationality;

(c) Foreign individuals with many years of professional experience in production operation or management means at least five years experience, with the ability to undertake the work required by the employer, and they must have written certification from the competent body or organization overseas.

3. The work application file stipulated in article 5.1 of Decree 105/2003/ND-CP shall be provided for as follows:

A foreign employee wishing to come to Vietnam to work shall submit two sets of his or her work application file to the employer, and each file set shall contain:

(a) Application for work on Form 3 issued with this Circular;

(b) Legal record issued by the authorized body of the country of residence of the foreign individual. If the foreign individual has resided in Vietnam for six months or more, in addition to the legal record issued by the authorized body of the foreign country, there must also be a legal record issued by the Department of Justice of the locality where the foreign individual is residing;

(c) Curriculum vitae of the foreign individual as stipulated in article 5.1(c) of Decree 105/2003/ND-CP on Form 4 issued with this Circular, with a photo adhered;

(d) Health certificate issued overseas. If the foreign individual currently resides in Vietnam, the health certificate must be issued in accordance with the regulations of the Ministry of Health;

(dd) Copies of certificates of professional expertise and skills of the foreign individual, comprising university graduate degree, master's degree, doctorate or certificate of level of skills of the foreign individual issued by the authorized body pursuant to the laws of such country;

Where a foreign employee is a traditional trade artisan or is a person who has professional experience in production operation or management but does not possess certificates, he or she must have a document containing his or her own observations on his or her professional expertise, skills and management skills as confirmed by an authorized overseas body;

(e) Three colour photos taken within the last twelve (12) months (3cm x 4cm in size, bareheaded, frontal view, showing the face and ears clearly, and without glasses).

Any documents prescribed for the above work application file which are issued, certified or notarized by a foreign body or organization must be consularized in accordance with the law of Vietnam and translated into Vietnamese; the translations and any copies of the documents must be notarized in accordance with the law of Vietnam.

III. ISSUANCE OF WORK PERMITS TO FOREIGN INDIVIDUALS WORKING IN VIETNAM:

1. Issuance of work permits as stipulated in article 6 of Decree 105/2003/ND-CP shall be provided for as follows:

(a) Form of work permits:

Work permits shall be 13cm x 17cm in size, with 4 pages: Pages 1 and 4 shall be light blue plastic; pages 2 and 3 shall be white background with light blue pattern, with the form of a star in the middle.

(b) Contents of work permits:

Page 1: The official name of Vietnam shall appear at the top of the page, and below it the national emblem of Vietnam; thereafter shall appear the words "Work permit" and below that the number of the work permit in both Vietnamese and English.

Page 2: On the top left-hand corner shall appear a space for the photo; below in the centre the words "Work permit", and below that the information about the foreign employee to whom the work permit is issued, comprising full name, sex, date of birth, current nationality, passport number, professional (trade) qualifications, to work where, working position, duration of work, namely date of commencement and date of termination of work, in both Vietnamese and English. Following that information shall appear the name, signature and seal of the director of the Department of Labour, War Invalids and Social Affairs and the date of signing.

Page 3: From the top downwards shall appear the words "Extension of work permit on the ...th occasion", on the next line "Extended from which date until which date" specifying the date of expiry, in both Vietnamese and English. Following that information shall appear the name, signature and seal of the director of the Department of Labour, War Invalids and Social Affairs and the date of signing.

Page 4 shall contain "Notes" in both Vietnamese and English.

The specific layout and contents of work permits shall be in accordance with Form 5 issued with this Circular.

(c) Work permits shall be uniformly printed, published and issued by the Labour, War Invalids and Social Affairs Publishing House.

2. The file, order and procedures for an application for issuance of a work permit as stipulated in article 6.3 of Decree 105/2003/ND-CP shall be provided for as follows:

(a) The employer shall be responsible to prepare the application file for issuance of a work permit for the employee, comprising:

- Letter from the employer requesting issuance of a work permit on Form 6 issued with this Circular;

- The work application file of the foreign employee as prescribed in clause 3 of Section II of this Circular. Where the foreign party has appointed the employee to come to Vietnam to work, the file is not required to contain an application for work but must contain the appointment by the foreign party for the employee to work in Vietnam.

(b) The employer shall be responsible to forward one set of the application file for issuance of a work permit to the Department of Labour, War Invalids and Social Affairs in the locality of the head office of the enterprise.

(c) The employer shall be responsible to receive the work permit issued by a Department of Labour, War Invalids and Social Affairs and to deliver it to the foreign employee.

(d) After a foreign employee is issued with a work permit, the employer and employee shall be responsible to sign a labour contract on Form 6 issued with Circular 21/2003/TT-BLDTBXH of the Ministry of Labour, War Invalids and Social Affairs dated 22 September implementing Decree 44/2003/ND-CP of the Government dated 9 May 2003 on labour contracts. Within five days from the date of signing a labour contract, the employer shall be responsible to forward a copy of the labour contract to the body which issued the work permit for the employee.

3. Extension of work permits:

(a) If an employer needs to extend a work permit for a foreign employee, the employer shall be responsible to prepare an application file for extension of a work permit, and the file shall contain:

- Request by the employer for extension of a work permit on Form 7 issued with this Circular;

- Copy labour contract or appointment by the foreign party directly appointing the foreign employee to work in Vietnam (certified by the employer);

- Work permit already issued by the competent body for the foreign employee.

(b) The employer shall be responsible to forward one set of the application file for extension of a work permit to the Department of Labour, War Invalids and Social Affairs in the locality of the head office of the enterprise.

(c) The employer shall be responsible to receive the extended work permit issued by the Department of Labour, War Invalids and Social Affairs and to deliver it to the foreign employee.

(d) If an employer needs a second extension for a foreign employee, the employer shall forward a request for approval for extension of the work permit to the chairman of the people's committee of the province or city under central authority in the locality of the head office of the enterprise, on Form 8 issued with this Circular.

4. Re-issuance of work permits:

Where a work permit issued for a foreign employee is lost or damaged as stipulated in article 8 of Decree 105/2003/ND-CP an application for re- issuance of the work permit must be made on Form 9 issued with this Circular and forwarded together with the damaged work permit to the Department of Labour, War Invalids and Social Affairs which issued the work permit. The employer shall be responsible to certify the reason why the work permit was lost or damaged, and there must be a request from the employer to the competent body for re-issuance of a work permit for the foreign employee within the application for re-issuance of the work permit made by the foreign employee.

5. With respect to persons who do not require a work permit as stipulated in article 6.5 of Decree 105/2003/ND-CP an employer shall be responsible to provide a report with summarized contents to the Department of Labour, War Invalids and Social Affairs in the locality of the head office of the enterprise, on Form 10 issued with this Circular.

IV. IMPLEMENTING PROVISIONS:

1. The responsibilities of employers shall be:

(a) To implement fully the law of Vietnam on employment and administration of foreign employees working in Vietnam;

(b) Prior to 5 January and 5 July each year, to report to the Department of Labour, War Invalids and Social Affairs in the locality of the head office of the enterprise on the annual and six-monthly status of employment of foreign employees, on Form 11 issued with this Circular. Employers shall also be responsible to provide one-off reports on employees and status of employment of employees at the request by the competent State administrative body;

(c) To pay the fees for issuance of work permits, extension of work permits and re-issuance of work permits in accordance with the regulations of the Ministry of Finance.

2. The responsibilities of Departments of Labour, War Invalids and Social Affairs shall be:

(a) To issue work permits, to extend work permits, and to re-issue work permits in accordance with law;

(b) To guide and organize implementation; and prior to 5 January and 5 July each year, to report to the Ministry of Labour, War Invalids and Social Affairs on the status of issuance of work permits for and the employment of foreign employees by local enterprises, bodies and organizations under the management of the Department, on Form 12 issued with this Circular;

(c) To guide, check and inspect implementation of the law on employment and administration of foreign employees working in Vietnam.

3. The responsibilities of chairmen of people's committees of provinces and cities under central authority shall be:

(a) Within a time-limit of fifteen (15) days from the date of receipt of a request from an employer for written approval of the employment of foreign employees as stipulated in clause 1(a) of Section II of this Circular, the chairman of a people's committee of a province or city under central authority shall be responsible to consider and approve the employment of foreign employees. In a case of refusal, the chairman must provide a written explanation specifying the reasons.

(b) Within a time-limit of fifteen (15) days from the date of receipt of a request from an employer for written approval of the employment of foreign employees exceeding the prescribed number as stipulated in clause 1(b) (sic) of Section II of this Circular, the chairman of a people's committee of a province or city under central authority shall be responsible to consider and approve the employment of foreign employees exceeding the prescribed number. In a case of refusal, the chairman must provide a written explanation specifying the reasons.

(c) Within a time-limit of fifteen (15) days from the date of receipt of a request for written approval of the extension of a work permit as stipulated in clause 3(a) of Section III of this Circular, the chairman of a people's committee of a province or city under central authority shall be responsible to consider and approve a request from an employer for a second or further extension of a work permit. In a case of refusal, the chairman must provide a written explanation specifying the reasons.

4. This Circular shall be of full force and effect after fifteen (15) days from the date of publication in the Official Gazette. The following are hereby repealed: Circular 08/2000/TT-BLDTBXH of the Ministry of Labour, War Invalids and Social Affairs dated 29 March 2000 on issuance of work permits; and Decision 311/2000/QD-BLDTBXH of the Minister of Labour, War Invalids and Social Affairs dated 29 March 2000 issuing forms for work permits and on printing, distribution and management of work permits for foreign individuals working in enterprises and organizations in Vietnam.

5. With respect to management boards of industrial zones, export processing zones and high-tech zones which were previously authorized by the Ministry of Labour, War Invalids and Social Affairs to issue work permits for foreign employees, jurisdiction to delegate authority for issuance of work permits shall now belong to Departments of Labour, War Invalids and Social Affairs.

If any problems arise during the course of implementation of this Circular, they should be promptly reported to the Ministry of Labour, War Invalids and Social Affairs for its investigation and resolution.