Decree No. 144/2007/ND-CP sanctioning of administrative violations Vietnamese workers abroad for employment đã được thay thế bởi Decree No. 95/2013/NĐ-CP administrative violations against regulations on labor và được áp dụng kể từ ngày 10/10/2013.
Nội dung toàn văn Decree No. 144/2007/ND-CP sanctioning of administrative violations Vietnamese workers abroad for employment
THE GOVERNMENT | SOCIALIST REPUBLIC OF VIET NAM |
No. 144/2007/ND-CP | Hanoi, September 10, 2007 |
DECREE
ON SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN THE SENDING OF VIETNAMESE WORKERS ABROAD FOR EMPLOYMENT
THE GOVERNMENT
Pursuant to the Law on Organization of the Government dated December 25, 2001;
Pursuant to the Law on Vietnamese workers working abroad under contract dated November 29, 2006;
Pursuant to the Ordinance on Handling of administrative violations dated July 02, 2002;
At the proposal of the Minister of Labor, War Invalids and Social Affairs,
DECREES:
Chapter I.
GENERAL PROVISIONS
Article 1. Scope of application
1. The Decree stipulates acts of administrative violations, sanctioning forms and levels, sanction competence, remedies, procedures for sanctioning administrative violations in the sending of Vietnamese workers abroad for employment.
2. Administrative violations in the sending of Vietnamese workers abroad for employment include:
a) Acts of violating regulations on operational conditions of licensed enterprises;
b) Acts of violating regulations on contract registration, reporting on sending of Vietnamese workers abroad for employment;
c) Acts of violating regulations on selecting, signing and liquidating contracts with workers;
d) Acts of violating regulations on skill and foreign language training, necessary knowledge provision for workers;
e) Acts of violating regulations on collecting, paying, managing, using brokerage money, deposit and service money; contribution to the Fund for Overseas employment support;
f) Acts of violating regulations on organizing the sending of Vietnamese workers abroad for employment and managing workers in receiving countries;
g) Acts committed by workers under overseas employment contract and other related subjects
Article 2. Subjects of application
1. Companies, State-owned non-profit organizations, off-shore investment organizations and individuals sending Vietnamese workers abroad for employment; Vietnamese organizations, individuals involving in the sending of Vietnamese workers abroad for employment; workers under overseas employment contract intentionally or unintentionally violate regulations on sending Vietnamese workers abroad, which, however, do not constitute a criminal offence and, as stipulated by this Decree, must be administratively sanctioned.
2. Violations on the sending of Vietnamese workers abroad for employment committed by public servants in performing their duties shall be handled according to regulations on public servants; in cases where the violations have signals of criminal offence, they shall be criminally prosecuted under laws and regulations.
Article 3. Extenuating and aggravating circumstances
1. Extenuating circumstances:
a) The violators have prevented or reduced harms caused by the violations or volunteer to take remedies to compensate for damages;
b) The violators have voluntarily reported their violations, honestly repenting their mistakes;
c) Violations are committed where the violators are mentally incited by the illegal acts of the other persons;
d) Violations are committed due to being forced to or due to material or spiritual dependence;
e) The violators are pregnant women, elderly persons, persons suffering from ailment or disability which restrict their capacity to perceive or to control their acts;
f) Violations are committed due to their particularly difficult plights which were not caused by themselves;
g) Violations are committed due to backwardness.
2. Aggravating circumstances:
a) Violations are committed in an organized manner;
b) Violations are committed repeatedly or relapsed;
c) Inciting, dragging, forcing materially or spiritually dependent persons to commit violations;
d) Violations are committed in the state of being intoxicated by alcohol, beer or other stimulants;
e) Abusing one’s positions and powers to commit violations;
f) Taking advantage of war, natural disaster circumstances or other special difficulties of the society to commit violations;
g) Committing violations while serving criminal sentences or decisions on handling of administrative violations;
h) Continuing to commit administrative violations though the competent persons have requested the termination of such acts;
i) After the violations, having committed acts of fleeing or concealing the administrative violations.
Article 4. Time limits for handling of administrative violations
The time limits for sanctioning an administrative violation in the sending of Vietnamese workers abroad for employment shall be one year as from the date such administrative violation is committed; In cases of passing the above-mentioned time limits, no sanction shall be imposed but other remedies prescribed in this Decree shall still be applied.
If the persons with sanctioning competence are at fault in letting the time limits for sanctioning administrative violations expire, they shall be handled according to the provisions in Article 121 of the Ordinance on handling administrative violations.
Article 5. Forms of sanctioning administrative violations and measures to overcome consequences
1. Principle forms of sanctioning administrative violations:
For each administrative violation, the violating individuals or organizations must be subjected to one of the following principal sanctioning forms:
a) Caution;
b) Fine.
Maximum fine for an act of administrative violation in the sending of Vietnamese workers abroad for employment is VND 40,000,000.
2. Additional sanctioning forms:
Depending on the nature and severity of their violations, individuals and/or organizations that commit administrative violations may also be subjected to the application of one or more following additional sanctioning forms:
a) Revocation of licenses for sending workers abroad (hereinafter referred to as License);
b) Confiscation of material evidences, means used to commit administrative violations.
c) Forced repatriation.
3. Apart from the sanctioning forms prescribed in Clauses 1 and 2 of this Article, the violating individuals and organizations may also be subjected to the application of one or more following remedies:
a) Suspension, with definite term, the sending of Vietnamese workers abroad for employment for the period from 03 months to 12 months;
b) Temporary suspension the implementation of labour supply contract for the period from 01 month to 06 months;
c) Suspension the implementation of labour supply contract.
After the temporary suspension of contracts ends, if companies, organizations still cannot take remedies for consequences caused by their violations, their labour supply contracts can be terminated.
d) Forcibly repatriating workers at the request of receiving country or Vietnamese competent authorities;
e) Forcibly compensating damages and bear all arising expenses due to the administrative violations;
f) Banning workers to work abroad in the period from 02 years to 05 years;
g) Forcibly contributing an adequate amount of money to the Fund for Overseas Employment Support according to the current regulations.
Chapter II.
ACTS OF ADMINISTRATIVE VIOLATION AND SANCTIONING FORMS
Article 6. Acts of violating conditions for operation of service companies
1. A caution or a fine from VND 2,000,000 to VND 5,000,000 shall be applied to one of the following violations:
a) Failing to publicize the License for sending workers abroad as regulated;
b) Failing to post publicly the Decision of licensed enterprise on assigning tasks to its branch and a copy of its License at its branch’s office.
2. A fine from VND 5,000,000 to VND 10,000,00 shall be applied to the act of not publicizing the enterprise’s assignment to its branch on performing numbers of activities in the overseas employment service provision as stipulated;
3. A fine from VND 10,000,000 to VND 20,000,000 shall be applied to one of the following violations:
a) Within 30 days from the issuance of the License for sending workers abroad, a licensed enterprise does not implement the plan on organizing its apparatus for sending Vietnamese workers abroad for employment as stipulated;
b) Within 90 days from the issuance of the License for sending workers abroad, a licensed enterprise does not implement the plan on organizing its apparatus for pre-departure orientation for workers;
c) The leader of the licensed enterprise in charge of administering the dispatch of Vietnamese workers for overseas employment does not have university degree or above;
d) The leader of a licensed enterprise in charge of administering the sending Vietnamese workers abroad for employment does not have at least 3 years of experience in the field of sending Vietnamese workers abroad for employment or international relations and cooperation;
e) A licensed enterprise delegates the execution of the dispatch of workers for abroad employment to those who used to be managers of companies whose License were revoked, or those who are in punishment from a caution or higher levels due to their violations on the legal regulations on sending Vietnamese workers abroad for employment
f) A licensed enterprise violates regulations in assigning tasks to its branch.
4. A fine from VND 20,000,000 to VND 40,000,000 shall be applied to one of the following violations:
a) Continuing to perform, in violation of the regulation, one of the activities in dispatching Vietnamese workers for overseas employment after receiving a notice on refusal to renew its license or on termination of its service provision.
b) Failings to acquire adequate legal capital as stipulated
c) Failing to directly perform overseas employment service provision
d) The licensed enterprise’s branch exceeding its authority in performing the assigned task
5. Additional sanctioning forms: Revoking License of licensed enterprises which commit one of the violations prescribed at point a, b, c, d and e of Clause 3; b and c of Clause 4 of this Article.
6. Remedies:
a) A suspension of overseas employment service provision from six (06) months to twelve (12) months shall be applied to enterprise who commit one of the acts prescribed at point e Clause 3 of this Article, except the case of being applied additional sanctioning forms prescribed at Clause 5 of this Article;
b) The violated licensed enterprise shall be forcibly requested to compensate damages and bearing all arising expenses due to its administrative violation to one of the acts prescribed at Point e, Clause 3 and 4 of this Article.
Article 7. Acts of violating regulations on contract registration, reporting on the sending of workers abroad for employment
1. A caution or a fine from VND 2,000,000 to VND 5,000,000 shall be applied to one of the following violations:
a) Failing to report, on a periodical or irregular basis, on the sending of workers abroad for employment at the request of competent authorities;
b) Number of dispatched workers exceeds the number approved by competent authorities in labour supply contract and intern acceptance contract;
2. A fine from VND 10,000,000 to VND 15,000,000 shall be applied to one of the following violations:
a) Sending workers abroad without registering labour supply contract or intern acceptance contract with competent authorities or register but not yet approved by competent authorities;
b) Contract winning or receiving companies, off shore investing companies and individuals sending workers abroad without reporting to competent authorities or report but not yet approved by competent authorities.
3. Additional sanctioning forms: Revoking license of enterprise who commits one of the acts prescribed at point a Clause 2 of this Article.
4. Remedies:
a) A suspension of overseas employment service provision from six (06) months to twelve (12) months shall be applied to a licensed enterprise which commits acts prescribed at point a Clause 2 this Article, except for cases where the enterprise is being applied additional sanctioning form prescribed at Clause 3 of this Article;
b) The violated licensed enterprise shall be forcibly requested to compensate damages and bear all arising expenses due to its administrative violation to one of the acts prescribed at point b Clause 1 and Clause 2 of this Article.
Article 8. Violations on selection of workers, signing and liquidating contracts with workers
1. A caution or a fine from VND 2,000,000 to VND 5,000,000 shall be applied to one of the following violations:
a) Failing to publicly notice, provide workers with adequate information on quantity, selection criteria and conditions of the contracts as stipulated;
b) Failing to liquidate contracts with workers as stipulated.
2. A fine from VND15,000,000 to VND 20,000,000 shall be applied to one of the following violations:
a) Failing to directly select workers;
b) Failing to state clearly financial rights and responsibilities of parties in contracts signed with workers as stipulated;
3. A fine from VND 25,000,000 to VND 35,000,000 shall be applied to one of the following violations:
a) Failing to sign contracts with workers as stipulated;
b) The content of contracts for sending workers for overseas employment signed between enterprises and workers, employment contract, skill-improvement internship contract are not in conformity with approved labour supply contracts and intern acceptance contracts
c) Content of the contract signed between workers and state owned non-profit organisations, contract winning or receiving companies, off shore investing organizations and individuals and the employment contracts are not in conformity with reports on sending workers abroad for employment as stipulated;
4. Remedies;
a) A temporary suspension of labour supply contract from one (1) month to three (03) months shall be applied to licensed enterprise who commits one of the violating acts prescribed in Clause 2 of this Article;
b) A temporary suspension of labour supply contract from three (03) months to six (06) months shall be applied to licensed enterprise who commits one of the violating acts prescribed at Clause 3 this Article;
c) A suspension of the implementation of labour supply contract in cases where after the temporary suspension of labor supply contract ends as prescribed at Point b this Clause, the remedies have not been taken.
d) A forcible repatriation of workers at the request of receiving country or Vietnamese competent authority shall be applied to one of the violations prescribed at Point a Clause 3 this Article;
e) A forcible compensation for damages and bearing all arising expenses due to administrative violation shall be applied to one of the violations prescribed at Clause 1,2 and 3 of this Article.
Article 9. Acts of violations to the regulations on skills and foreign language training, necessary knowledge provision.
1. A fine from VND 10,000,000 to VND 15,000,000 shall be applied to one of the following violations:
a) Failing to perform or fully perform pre departure orientation provision for workers as stipulated;
b) Failing to perform or fully perform the testing and issuing certificates of attendance for workers after attending pre departure orientation provision course;
c) Failing to organize or coordinate with vocational training centers, education centers to train skills and foreign language for workers on overseas employment in order to meet requirements of the contract.
2. Remedies:
a) A temporary suspension of labour supply contract from one (01) month to three (03) months shall be applied to licensed enterprise who commits one of the violations prescribed at Clause 1 of this Article;
b) A suspension of labour supply contract in cases where after the labor supply contract suspension period ends, the licensed enterprise does not overcome consequences caused by its violations;
c) A forcible compensation of damage and bearing all arising expenses due to the administrative violation shall be applied to one of the violations prescribed Clause 1 of this Article.
Article 10. Acts of violations to the regulations on collecting, paying, managing, using brokerage money, deposit and service money; contribution to the Fund for Overseas Employment Support
1. A fine from VND 10,000,000 to VND 15,000,000 shall be applied to licensed enterprises which fail to contribute or fully contribute to the Fund for Overseas Employment Support as stipulated.
2. A fine from VND 20,000,000 to VND 30,000,000 shall be applied to one of the following violations:
a) Collect recruitment fee from workers;
b) Failing to abide by regulations on collecting, managing and using deposit of workers;
c) Failing to make supplement payment, in an adequate and timely manner, the deposit of licensed enterprise in conformity with regulations on deposit of licensed enterprise;
d) Failing to abide by regulations on collecting, managing, using brokerage money;
e) Failing to pay the worker the remaining of service charge equivalent to the remaining time of the contract for sending workers for overseas employment in cases where the worker had paid service charge for the whole contractual period and had to prematurely return not due to the worker’s fault.
3. Additional sanctioning forms:
a) Revoking License in the case prescribed at Point c Clause 2 this Article;
b) A confiscation of means and evidence used for the violation shall be applied to one of the violations prescribed at point a, b, d and e Clause 2 of this Article
4. Remedies:
a) A temporary suspension of labour supply contract from three (03) months to six (06) months shall be applied to licensed enterprise who commits violating acts prescribed at point a Clause 2 this Article;
b) A suspension of labour supply contract in cases where after labor supply contract temporary suspension period ends as prescribed at point a this Article but the service companies fail to take remedies due to their violations;
c) A suspension of overseas employment service provision from three (03) months to six (06) months shall be applied to licensed enterprise who commit one of the violating acts prescribed at point b and c Clause 2 this Article, except the cases where the licensed enterprise has been applied additional sanctioning forms prescribed at point a Clause 3 this Article;
d) A forcible contribution of due amount to the Fund for Overseas Employment Support according to current regulations for the violation prescribed at Clause 1 this Article;
e) A forcible compensation of damages and bearing all arising expenses for the violation prescribed at Clause 2 this Article.
Article 11. Acts of violation to the regulations on the sending workers abroad for employment and management of workers abroad
1. A fine from VND 10,000,000 to VND 15,000,000 shall be applied to acts of not reporting, coordinating with Vietnamese diplomatic mission, consular in managing and protecting legitimate rights and interests of Vietnamese workers during their overseas employment.
2. A fine from VND 25,000,000 to VND 40,000,000 shall be applied to one of the following acts:
a) Failing to organize the management and protection of legitimate rights and interests of workers dispatched as stipulated;
b) Failing to timely solve arising problems in cases the workers die, having had occupational accidents or risks, occupational diseases, or have their life, health, honor, dignity or property abused and settle of disputes relating to workers which affects legitimate rights and interests of the workers;
c) Abusing the sending workers abroad for employment in order to select, train and collect money from workers;
d) Abusing the sending workers abroad for employment in order to bring Vietnamese citizen to foreign countries, which, however, does not constitute a criminal offense to be prosecuted;
e) Sending workers to work in zones, business lines prohibited by Vietnamese Government or by receiving countries.
3. Additional sanctioning forms:
a) Revoking License of service companies who commit one of the violations prescribed at point c, d and e Clause 2 of this Article;
b) Confiscating means and evidences used for administrative violations prescribed at point c, d, e Clause 2 of this Article;
4. Remedies:
a) A suspension of overseas employment service provision from six (06) months to twelve (12) months shall be applied to a licensed enterprise if it commits one of the violations prescribed at point c, d and e Clause 2 of this Article, except the cases where the licensed enterprise is being applied additional sanctioning measures prescribed at point a Clause 3 of this Article;
b) A forcibly repatriation of workers at the request of the receiving country or Vietnamese competent authority for one of the violations prescribed at Clause 2 this Article;
c) A forcible compensation of damages and bearing all arising expenses due to administrative violations to one of the violation acts prescribed at Clause 1 and 2 this Article.
Article 12. Violations of workers under overseas employment contracts and other relating subjects
1. A caution or a fine from VND 500,000 to VND 1,000,000 shall be applied to the acts of not registering individual contracts to competent authority as stipulated
2. A caution or a fine from VND 1,000,000 to VND 3,000,000 shall be applied to one of the following acts:
a) Staying illegally at receiving country after the expiration of labor contract;
b) Running away from the workplace;
3. A fine from VND 3,000,000 to VND 5,000,000 shall be applied to one of the following acts:
a) Not going to the work place under employment contract after entering receiving country
b) Dragging, seducing, forcing, cheating Vietnamese workers to stay illegally at receiving country, which does not constitute a criminal offense to be prosecuted.
4. Additional sanctioning form: A forcibly repatriation shall be applied to one of the acts prescribed at Clause 2 and 3 of this Article.
5. Remedies:
a) A forcible compensation of damages and bearing all arising expenses due to violations prescribed at Clause 2 and Clause 3 this Article;
b) A ban on going to work abroad during the period of two (02) years shall be applied to violations prescribed at Clause 2 this Article;
c) A ban on going to work abroad for the period of five (05) years shall be applied to violations prescribed at Clause 3 this Article.
Chapter III.
SANCTIONING COMPETENCE
Article 13. Sanctioning competence of Chairman of provincial people’s committee.
1. A caution
2. Fine up to maximum level as stipulated in this Decree.
3. Applying additional sanctioning forms prescribed at point b Clause 2 Article 5 of this Decree.
4. Applying remedies prescribed at e and f Clause 3 Article 5 this Decree.
Article 14. Sanctioning competence of Labor, War Invalids and Social Affairs Inspectorate
1. The Labor, War Invalids and Social Affairs Inspectors who are on duty have the right to:
a) Impose a caution;
b) Confiscate evidences and means used to commit violation acts which values up to VND 2,000,000
2. Chief Inspectors of the Departments of Labor, War Invalids and Social Affairs have the right to:
a) Impose a caution:
b) Impose a fine level up to VND 20,000,000;
c) Apply additional sanctioning forms prescribed at point b Clause 2 Article 5 of this Decree;
d) Apply remedies prescribed at point e and f Clause 3 Article 5 of this Decree
3. Chief Inspector of the Ministry of Labor, War Invalids and Social Affairs has the right to:
a) Impose a caution:
b) Impose a fine up to the maximum prescribed at this Decree;
c) Apply additional sanctioning forms prescribed at point b and c Clause 2 Article 5 of this Decree;
d) Apply remedies prescribed at point b, c, e and f Clause 3 Article 5 of this Decree.
Article 15. Sanctioning competence of Director General of DOLAB
1. Impose a caution:
2. Impose a fine up to the maximum prescribed at this Decree;
3. Apply additional sanctioning forms prescribed at point b and c Clause 2 Article 5 of this Decree;
4. Apply remedies prescribed at Clause 3 Article 5 of this Decree.
Article 16. Sanctioning competence of the Head of diplomatic and consular mission in foreign countries (herein referred to as Vietnamese representative mission)
1. Impose a caution;
2. Impose a fine up to VND 10,000,000;
3. Apply additional sanctioning forms prescribed at point b and c Clause 2 Article 5 of this Decree;
4. Apply remedies prescribed at point d and e Clause 3 Article 5 of this Decree.
Article 17. Competence to revoke License
The Minister of Labor, War Invalids and Social Affairs has the right to decide the withdrawal of License for sending workers abroad.
In cases where a licensed enterprise violates the Law on Vietnamese workers working abroad under contract and as the result, its License must be withdrawn, the Chairman of Provincial People’s Committee, Chief Inspector of the Ministry of Labor, War Invalids and Social Affairs, Director General of the Department of Overseas Labor request Minister of Labor, War Invalids and Social Affairs to withdraw the License for sending workers abroad.
Chapter IV.
PROCEDURES FOR SANCTIONING ADMINISTRATIVE VIOLATIONS
Article 18. The procedures for sanctioning administrative violations in the sending of workers abroad performed in the territory of Vietnam
Procedures for sanctioning administrative violations in the sending of workers abroad for employment performed in the territory of Vietnam shall be implemented in conformity with current regulations on handling administrative violations
Article 19. The procedures for sanctioning administrative violations in the sending of workers abroad performed outside the territory of Vietnam
1. Procedures for making reports:
a) In cases specified in point b of this Clause, diplomatic officers, consular officers in Vietnamese Representative missions overseas and the competent sanctioning authorities prescribed in Chapter III of this Decree are responsible for making reports of administrative violations (as Form No. 01, issued together with this Decree);
b) Foundations to make administrative violation reports:
- Written notifications of competent agencies, organizations in receiving countries on administrative violation acts of workers;
- Written denunciations and complaint which have been screened and verified;
- Notices of employers, licensed enterprises and state-owned non-profit entities on administrative violation acts of workers which have been inspected and verified;
- Inspection results of competent bodies.
c) The reports on administrative violations must clearly state the date, location of making report; the full names and positions of the report makers; the full names, addresses, passport numbers and expiry of passports, occupation of violators; the date and location when and where the administrative violations occur; acts of violations; the testimonies of the violators (if any); the attestation/witnesses of the violators’ Vietnamese colleagues or attestation/witnesses of the employers in cases where there are no Vietnamese colleagues working with.
In cases where the workers have violation acts which are prescribed in Point a, Clause 3, Article 12 of this Decree, the administrative violation report must be certified by competent authorities of the receiving countries that the workers have entered and by the employers that the workers have not yet arrived at the workplaces.
d) A report must be made into at least three copies, signed by the report makers, the violators (if any), the violators’ Vietnamese colleagues or the employers; in case the reports have several sheets, these persons must sign their names to each page of the reports. If the violators or the persons who certified violation acts refuse to sign, the report makers shall have to clearly state their reasons in the report accordingly.
A copy of the made report must be given to the violators (if present).
e) In cases where the violators are representatives of service companies, state non-profit entities committed administrative violation acts specified in this Decree outside the territory of Vietnam, the competent persons make the reports of violation acts and send with a dossier of violation to the Director General of The Department of Overseas Labor for consideration of sanctioning decisions. After receiving the reports of the administrative violations with the said above dossiers, the Director General of The Department of Overseas Labor shall be responsible for conducting sanctioning procedures and implements sanctioning decisions under the provisions of Ordinance Handling of administrative violations issued in 2002.
2. The sanction decisions:
a) The time limit for making sanctioning decisions shall be ten (10) days as from the date of making the reports on the administrative violations; in cases where administrative violations involving many complications, the time limit for the decision shall be thirty (30) days. The content of sanctioning decisions is as the Form No. 02, issued together with this Decree;
If the competent persons fail to issue sanctioning decisions, they shall be dealt with as prescribed in Article 121 of the Ordinance on Handling Administrative Violations 2002.
b) The sanctioning decision must clearly state the date, the full names and positions of the decision issuers; the full names, addresses, passport numbers and expiry of passports, occupation of the violators; acts of administrative violation; situation related to the violation settlement; articles and clauses of legal documents to be applied; the principal sanctioning forms; if these sanctions are monetary fines, the decisions must specify the fine amount in Vietnam Dong; the additional sanctioning forms, remedies; duration and places for executing the sanctioning decisions and the signatures of the sanctioning decision issuers.
The sanctioning decisions must clearly state that in case the sanctioned person fail to voluntarily abide by the decision, he/she shall be forced to execute the sanctioning decisions; the right of the sanctioned person to complain and initiate a lawsuit against the sanctioning decisions in conformity with the regulations.
c) The sanctioning decisions shall be addressed to the sanctioned persons within three (03) days from the date of issuance. In case the place of residence of the sanctioned persons cannot be determined, within three (03) days from the date of issuance, sanctioning decisions must be posted at the Vietnam Representative missions in the receiving countries, posted on the website of Vietnam Representative missions in the receiving countries (if any), notified to their latest employers and addressed to the Department of Overseas Labor to inform workers’ families or their guarantors (if any) and the Department of Labor - Invalids and Social Affairs where workers resided prior to going for overseas employment;
d) The sanctioning decisions shall take effect after their signing. In cases where the places of residence of the sanctioned persons cannot be identified, the sanctioning decisions shall take effect after ten (10) days as from the date which the sanctioning decisions are listed at Vietnam diplomatic missions in the receiving countries.
3. Abiding by the sanctioning decision
a) The sanctioned persons must execute the sanctioning decision within (30) days as from the date which sanctioning decisions take effect;
b) Within the time limit specified in point a of this paragraph, if the sanctioned persons fail to voluntarily execute the sanctioning decisions, he/she shall be subject to coercive execution by competent agencies.
If the place of residence of the sanctioned persons whose violations prescribed in Clause 2 and 3, Article 12 of this Decree cannot be determined, and the mentioned violators fail to voluntarily execute the sanctioning decisions within three (03) days from the last day of the time limit for them to voluntarily execute the sanctioning decisions, the competent persons shall issue written notices of not abiding by the sanctioning decisions (Form No. 03, issued together with this Decree), list notices at the Vietnam representative missions in the receiving countries, post them on the website of Vietnam diplomatic missions in the receiving countries (if any). Within three (03) days from the date of noticing the failure to abide by the sanctioning decisions, Vietnam representative missions in the receiving countries must address the notice to the Department of Overseas Labour to inform workers’ families or their guarantors (if any) and the Department of Labor – War Invalids and Social Affairs where the workers resided prior to going for overseas employment.
c) After thirty (30) days from the date of noticing the failure to abide by the sanctioning decisions specified at Point b of this clause, if the sanctioned persons whose violations prescribed in Clause 2 and Clause 3 of Article 12 of this Decree and their place of residence cannot be determined, do not still abide by the sanctioning decisions, they may be criminally prosecuted under the provisions of Article 274 and Article 275 of the Criminal Law.
4. Fining procedures:
a) In fining, the specific fine amount for an act of administrative violation shall be the average of the fine range stipulated for such an act; in cases with extenuating circumstances, the fine amount can be reduced but not to below the minimum level of the fine range; in cases with aggravating circumstances, the fine amount may be increased but not beyond the maximum level of the fine range;
b) The workers who are fined abroad can pay at Vietnam representative missions with receipts. Vietnam diplomatic missions are responsible for collecting and remitting fines.
c) The fines are collected in American dollar (USD) or in the currencies of countries where workers are working or in Viet Nam Dong;
If the fines are collected in American dollar, the average exchange rates of the inter-bank foreign currency market of U.S. dollar against the Viet Nam Dong, announced by the State Bank at the time of fine collection is applied.
If the fines are collected in the currencies of countries where workers are working, the exchange rates between that currency against US Dollar announced by the State Bank of the receiving countries or the rate of the bank where Vietnam diplomatic missions in the receiving countries open its account for temporary keeping Fund of the State budget and the money is kept stable for a period of six (06) months.
d) The collected fines must be remitted to the temporary keeping Fund of the State budget in Vietnam diplomatic mission and are managed as follows:
- Periodically, at the latest by 15th each month, Vietnam diplomatic missions must remit the full amount of the collected fine of the previous month to the temporary keeping Fund of the State budget. The collected fines must be remitted to the Fund in the currency they had been collected.
- On biannual and annual basis, the Vietnam diplomatic missions must draw the balance sheet of the collected and remitted fines during that period, report to the Ministry of Foreign Affairs. The Ministry of Foreign Affairs shall sum up, draw the balance sheets with the Ministry of Finance on the annual collection.
e) If the violated workers do not voluntarily abide by the decisions, the sanctioning competent agencies shall require licensed enterprises to deduct the workers’ deposits to implement sanctioning decisions (if any). After receiving the notice that the sanctioned workers fail to voluntarily execute the sanctioning decisions with related dossiers, within three (03) days, the Director General of Department of Overseas Labour shall be responsible for deciding forced execution, handling and informing concerned agencies and individuals for execution.
5. Measures to ensure the handling of sanctioning decisions:
Vietnam diplomatic missions shall issue necessary papers for the sanctioned persons to return in accordance with regulations of law; in case the sanctioned workers are financially incapable to purchase air tickets themselves, the Vietnam diplomatic missions shall coordinate with the authorities of the receiving countries, licensed enterprises and the sanctioned workers’ families to purchase air tickets for their return. The sanctioned workers must refund related expenses after their return.
Chapter V.
COMPLAINTS, DENUNCIATION AND HANDLING OF VIOLATIONS
Article 20. Complaints and denunciations
1. The organizations and individuals which are sanctioned for administrative violations in the sending of workers abroad for employment or their legal representatives shall have the right to complaint about the administrative decisions of the competent persons.
Citizens shall have the right to denounce illegal acts and administrative decisions of competent persons and agencies on sanctioning administrative violations in the sending of workers abroad for employment.
2. The procedures for making complaints and denunciations, settling complaints and denunciations shall comply with the legislation on complaints and denunciations.
3. The initiation of lawsuits against decisions on sanctioning administrative violations, decisions on application of measures to prevent and ensure the handling of administrative violations in the sending of workers abroad for employment shall comply with the regulations on procedures for settlement of administrative cases.
Article 21. Dealing with persons competent to sanction administrative violations
The competent person to sanction administrative violations in the sending of workers abroad for employment who harass, tolerate, cover up, fail to sanction or sanction improperly, sanction beyond their competence, depending on the nature and severity of their violations, be disciplined or prosecuted for criminal liability; if causing damage to the State, citizens and organizations, they must compensate accordingly as stipulated by regulations of law.
Article 22. Handling of violations committed by persons sanctioned for administrative violations
Persons who are sanctioned for administrative violations under the provisions of this Decree, if committing acts of opposing officials on duty, delaying or evading the execution of decisions, or committing other violations, shall, depending on the nature and severity of their violations, be administratively handled or prosecuted for criminal liability, if causing damage, they must compensate accordingly as stipulated by regulations of law.
Chapter VI.
IMPLEMENTATION PROVISIONS
Article 23. Implementation Effect
This Decree takes effect after 15 days from the date of publication on Official Gazette. All previous regulations on sanctioning administrative violations in the sending of workers abroad for employment which are contrary to this Decree shall be annulled.
Article 24. Implementation and Guidance
The Ministers, Heads of Ministerial-level agencies, Heads of agencies affiliated to the Government, Chairmen of People’s Committee of provinces and cities under the central Government shall be responsible to implement this Decree. /.
Sent to: | FOR THE GOVERNMENT |
FORM No.01
(Issued with Decree No. 144/2007/ND-CP dated September 10, 2007, of the Government)
Name of organization making the report No: /BB-VPHC | SOCIALIST REPUBLIC OF VIET NAM
(Place), date…month….year |
REPORT ON ADMINISTRATIVE VIOLATION FOR WORKERS ON OVERSEAS EMPLOYMENT
Today, at.... hour .... date…..
Name of report makers: ... ... ... ... ... ... ... ... ... ... ... Position: ... ... ... ... ...;
Based on ... ... ... ... ... ... ... .... about workers violating the law.
With the presence of: (2)
1. Mr/Ms ... ... ... ... ... ... ... ... ... ... ... ... ... .. Occupation: ... ... ... ....;
As Vietnamese workers who are also working at ... ... ... ... ... ... ... ... .... (the location where worker has violation act).
Passport number (or identification number) ... ... ... ... .. Date of issue: ... ... ... ... .. ... ..;
Place of issue: ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..;
2. Mr/Ms ... ... ... ... ... ... ... ... ... ... ... ... ... .. Occupation: ... ... ... ....;
Address: ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. ...; As the employer of worker who has violation acts.
3. Mr/Ms ... ... ... ... ... ... ... ... ... ... .. Occupation: ... ... ... ... ... ... ........;
Address: ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Make report on the worker’s administrative violation on the dispatch of workers for overseas employment toward:
Mr(Ms):……………………………………………………………….;
Occupation: ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. ... ....;
Address of working place: ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..; Permanent residence address in Vietnam: ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... ...; Passport number (or identification) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...;
Issued on ... ... ... ... ... ... ... .. at ... ... ... ... ... ... ... ... ... .... ... .... ... ... ... ...;
The expiry the passport: ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..;
Having committed the acts: ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... .... ....;
Date……….of committing violation acts
Location violations occur ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..;
As violation of the provisions of Article ... ... ... Item ……….. Point ... ... ... .. of Decree No. ... ... ... ... ... ... ../2007/ND-CP on April 2007 the Government to regulate on sanctioning administrative violations in the dispatch of Vietnamese workers abroad.
Opinions of the administrative violator (if he/she presents at the place of making administrative violation reports ): ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Opinions of the certifying person (if any): ... ... ... ... .. ... ... ... ... ... ....
…………………………………………………………….……………… ... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... ... ... ... ... ...
The reports shall be made in (3)…….. copies, equally in content and value. One copy is given to the violator (if presented), one for the sponsor of workers in Vietnam, one for the Department of Overseas Labor, a copy is sent to the Head of Vietnam Diplomatic missions in (4) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
After re-reading the reports, the presented persons agreed with the content of the reports, having no other comments and together sign the reports or have different opinions as follows:
Additional comments (if any): ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
……………………………………………………………………………. ... ... ... ... ...
... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ....
This report includes ... ... pages which are signed on each page by the presented persons.
The violator
(If present)
(Signature, full names)
| Report makers
(Signature, full names)
| Witnesses (if any)
(Signature, full names)
|
The reason for the violator (or the certified person) not to sign the report: ... ... ... ...
The reason why the violator is absent: ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..
Notes:
(1) Includes: Workers, specialists and trainees to work abroad.
(2) The witnesses (if any) may be Vietnamese workers working together with violator and / or representatives of the service companies, the employer, the competent bodies of the receiving countries.
(3) Reports shall be made in at least 03 copies.
(4) Name of the receiving countries.
Form No. 02
(Issued with Decree No. 144/2007/ND-CP dated September 10, 2007, of the Government)
Name of decision making agency No: / QD-XPHC | SOCIALIST REPUBLIC OF VIET NAM
(Place), date…month….year |
DECISION ON ADMINISTRATIVE VIOLATION SANCTIONING FOR WORKER ON OVERSEAS EMPLOYMENT
Pursuant to Decree No. ... ... ... ... ... .../2007/ND-CP on date…. month ... .. in the year of 2007 by the Government to sanction administrative violations in the sending of workers for overseas employment;
Pursuant to the administrative violation report made by Mr/Ms ... ... ... ... ... ... ... ... ... Position: ... ... ... ... ... ... ... ... made on ... ... ... ... ... at: ... ... ... ... ... ... ... ...
Considering the administrative violation act done by Mr/Ms ... ... ... ... ... ... ... ;
I: ... ... ... ... ... ... ... ... ... ....; Position: ... ... ... ... ... ... ... ... ... ... ... ... ....; Organization ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..;
(In case of being authorized, the number and date of written authorization letter must be mentioned)
DECIDES:
Article 1 .
Sanction ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... for
Mr/Ms ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. .... ... ... ..; Occupation: ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ....;
Permanent residence address in Vietnam: ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ....; Identity card number / Passport number: ... ... ... ... ... ... ... ... ... .. ... ... ..;
Issued on ... ... ... ... ... ... ... ... .... at ... ... ... ... ... ... ... ... ... ... .... ... ... ... ...;
Expiry of the passport: ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... ... ..; Form of additional sanction: Forced to repatriate.
Remedial measures (if any): ... ... ... ... ... ... ... ... ... ... ... ... ....;
Reason:
- Having committed the following administrative violation acts ... ... ... ... ... ... ... .... ...
... ... ... ... ...
Specified ay point ... ... ... .. Item ... ... ... .Article of Decree No. ... ... ... ../2007/ND-CP day…. month ....year 2007 of the Government on sanctioning administrative violations in the sending of workers for overseas employment.
Circumstances related to the handling of the violations: ... ... ... ... ... ...
Article 2. This decision is effective from the date of signing (1)
Within 03 days from the effective date of decision, this decision must be sent to: Mr. (Mrs.) ... ... ... ... ... ... ... ... ... ... ... to be executed (2);
The sanctioned persons must strictly abide by the sanctioning decisions within 30 days as from the date which this Decision takes effect, if within 30 days, the sanctioned persons do not execute the sanctioning decisions, they shall be forced to execute; the right to complain and make lawsuits against administrative sanction decisions are prescribed by law.
This decision includes ... ... ... ... ... ... ... ... ... ... .. pages which are sealed between the pages.
| Decision-issuer
(Signature, full name and seal)
|
Notes:
(1) Where the residence or workplace of the sanctioned person cannot be determined, this Decision takes effect 10 days as from the date it is listed at Vietnam diplomatic mission in the receiving countries.
(2) Where the residence or workplace of the sanctioned persons cannot be determined, within 03 days as from the effective date of the Decisions, they must be listed at Vietnam diplomatic mission in the receiving countries, posted on website of the mission, notified to the most recent employers of the sanctioned person, sent to: Department of Overseas Labor to inform the sanctioned families or their sponsor (if any) and the Department of Labor - War Invalids and Social Affairs where the sanctioned persons resided prior to going for overseas employment.
Form No. 03
(Issued with Decree No. 144/2007/ND-CP dated September 10, 2007, of the Government)
Name of notifying organization No: / TB-KCHQDXP | SOCIALIST REPUBLIC OF VIET NAM
(Place), date…month….year |
NOTICE ON FAILING TO ABIDE BY ADMINISTRATIVE VIOLATION SANCTIONING DECISION
Pursuant to Decree No. ... ... ... ... ... .../2007/ND-CP on date…. month ... .. in the year of 2007 by the Government to sanction on administrative violations in the sending of workers for overseas employment;
To ensure implementation of administrative violation sanction decisions on the sending of workers for overseas employment number ... ........ date…..;
I: ... ... ... ... ... ... ... ....; Position: ... ... ... ... ... ... ... ... ... ... ... ... ... ..; Organization: ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...;
NOTIFIES
Base on the administrative violation sanctioning decision Number…dated …
For: (full name of the sanctioned persons): ... ... ... ... ... ... ... ... ... ... ... ... ... ....; Occupation: ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. ... ... .... ... ... ... ... ..;
Address of workplace abroad: ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...;
Permanent residence address in Vietnam ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ....; Identity card number / Passport number: ... ... ... ... ... .... ... .. ... ... ... ....;
Issued on ... ... ... ... ... ... ... ... .. at ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..; Duration of the passport: ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. ... ... ... ... ....;
Within 30 days as from the date this notice takes effect, Mr (Mrs.)... ... must strictly comply with the administrative violation sanction decisions Number dated ...
When the above time expired, if the sanctioned person does not execute the sanctioning decisions (name of Vietnam diplomatic mission in receiving countries) will transfer the violation dossier to competent authorities in Vietnam for criminal prosecution as prescribed by law.
This notice takes effect from the date of signing
This notice includes……………..pages, which are sealed between pages.
This notice shall be listed and kept at ... ... ... ... ... ... ... ... .. (name of Vietnam diplomatic mission in receiving countries), posted in the Website ... ... ... ... ... ... ... ... ... (name of Vietnam diplomatic mission in receiving countries) and be sent to:
1. Mr (Mrs.) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. to execute (1)
2. The Department of Overseas Labor to inform involved agencies, organizations and individuals.
| Notifying person (Signature, full name and seal) |
Note: (1) If the workplace or residence of the sanctioned person is determined.
