Circular No. 03/2014/TT-BLDTBXH dated January 20, 2014 of the Ministry of Labor, War Invalids and Social Affairs guiding the implementation of some articles of the Decree No. 102/2013/ND-CP of September 5, 2013, detailing a number of articles of the Labor Code regarding foreign workers in Vietnam

CIRCULAR

Guiding a number of articles of the Government’s Decree
No. 102/2013/ND-CP of September 5, 2013, detailing a number of articles of the Labor Code regarding foreign workers in Vietnam[1]

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

Pursuant to the Government’s Decree No. 102/2013/ND-CP of September 5, 2013, detailing a number of articles of the Labor Code regarding foreign workers in Vietnam;

At the proposal of the Director of the Department of Employment;

The Minister of Labor, War Invalids and Social Affairs promulgates the Circular guiding a number of articles of the Government’s Decree No. 102/2013/ND-CP of September 5, 2013, detailing a number of articles of the Labor Code regarding foreign workers in Vietnam (below referred to as Decree No. 102/2013/ND-CP).

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation and subjects of application

The scope of regulation and subjects of application of this Circular are those provided in Articles 1 and 2 of Decree No. 102/2013/ND-CP.

Article 2. Interpretation of terms

1. Contractual service provider specified at Point d, Clause 1, Article 2 of Decree No. 102/2013/ND-CP means a foreign worker who has at least 2 years’ (24 months’) working experience in a foreign enterprise without commercial presence in Vietnam and must satisfy the conditions on “specialist” specified in Clause 3, Article 3 of Decree No. 102/2013/ND-CP.

2. Foreign worker offering services specified at Point dd, Clause 1, Article 2 of Decree No. 102/2013/ND-CP means the one who neither lives in Vietnam nor receives remunerations from any source in Vietnam, and participates in activities related to the representation for a service provider in order to negotiate the consumption of services of this provider, provided that he/she neither sells services directly to the public nor personally participates in the provision of services.

3. Manager or executive defined at Point i, Clause 1, Article 2 of Decree No. 102/2013/ND-CP means a foreign worker who personally participates in managing an organization or enterprise, including directing this organization or enterprise or its attached unit; and supervising and controlling the performance of professional, managerial or other supervisory staff members.

Chapter II

IDENTIFICATION OF WORKING POSITIONS ELIGIBLE FOR
FOREIGN WORKERS

Article 3. Demand for foreign workers

1. At least 30 days before the scheduled date for recruiting foreign workers, employers (except contractors) shall make an explanation report on their demand for foreign workers under Clause 1, Article 4 of Decree No. 102/2013/ND-CP according to form No. 1 enclosed with this Circular, stating working positions, quantity, professional qualifications, experience, salary levels and working duration, and send this report directly to the provincial-level Departments of Labor, War Invalids and Social Affairs of localities where the employers’ head offices are located.

2. Employers that have the employment of foreign workers approved but want to  change their demand for foreign workers shall submit an adjusted explanation report, made according to form No. 2 enclosed with this Circular, at least 30 days before the scheduled date for new recruitment, additional recruitment or recruitment for replacement of foreign workers, directly to the provincial-level Departments of Labor, War Invalids and Social Affairs of localities where the employers’ head offices are located.

3. Within 15 days after receiving the employers’ explanation report or adjusted explanation report on their demand for foreign workers, the provincial-level Departments of Labor, War Invalids and Social Affairs shall send a notice of the approval of employment of foreign workers to each employer, made according to form No. 3 enclosed with this Circular.

Article 4. Contractors’ demand for foreign workers

For a request for employment of Vietnamese workers in the working positions expected to be performed by foreign workers under Clause 3, Article 5 of Decree No. 102/2013/ND-CP, at least 2 months for a request for 500 Vietnamese workers or more or 1 month for a request for fewer than 500 Vietnamese workers before recruiting foreign workers, a contractor shall send directly or by post such request, made according to form No. 4 enclosed with this Circular, to the chairperson of the provincial-level People’s Committee of the locality where the contractor performs the bid package, after obtaining the investor’s certification of the approval of employment of foreign workers.

When the contractor wishes to change or increase the number of foreign workers already stated in the bid or proposal dossier, the investor shall make certification, made according to form No. 5 enclosed with this Circular, of his/her/its approval of the change or increase of foreign workers to be employed by the contractor; and, before recruiting foreign workers under the changed plan, the contractor shall make a request for recruitment of Vietnamese workers in the working positions expected to be performed by foreign workers under this Article.

Chapter III

GRANT OF WORK PERMITS

Article 5. Dossier of application for a work permit

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

1. A written application for a work permit made by the employer as prescribed in Clause 1, Article 10 of Decree No. 102/2013/ND-CP shall be made according to form No. 6 enclosed with this Circular.

2. The written certification that the worker is neither a criminal nor examined for penal liability as prescribed in Clause 3, Article 10 of Decree No. 102/2013/ND-CP is specified as follows:

a/ A judicial record card granted by the National Center for Judicial Records is required for a foreign worker who used to reside in Vietnam; or that granted by the provincial-level Justice Department is required for a foreign worker who is currently residing in Vietnam, and the written certification granted by a competent foreign agency that the worker is neither a criminal nor examined for penal liability under the foreign law is required;

b/ For a foreign worker who has never resided in Vietnam, the written certification granted by a competent foreign agency that the worker is neither a criminal nor examined for penal liability under the foreign law is required.

3. The written certification that the worker is a manager, an executive, a specialist or a technical worker as prescribed in Clause 4, Article 10 of Decree No. 102/2013/ND-CP is specified as follows:

a/ For a foreign worker who is a manager or an executive, one of the following papers is required:

- A paper proving he/she is a manager or an executive, such as work permit or labor contract or appointment decision stating that he/she has worked as a manager or an executive;

- The written certification that he/she is a manager or an executive, granted by the agency, organization or enterprise in which he/she used to work.

b/ For a foreign worker who is a specialist, one of the following papers is required:

- A paper proving that he/she has an engineer or bachelor or higher degree or an equivalent degree and has at least 5 years’ working experience in the trained major relevant to the working position he/she expects to perform in Vietnam;

- The written certification that he/she is a specialist, granted by a competent agency or organization or an overseas enterprise.

c/ For a foreign worker who is a technical worker, the following papers are required:

- A paper proving or the written certification granted by a competent agency or organization or an overseas enterprise that he/she has received at least one year’s training in the technical major;

- A paper proving that he/she has at least 3 years’ working experience in the trained technical major relevant to the working position he/she expects to perform in Vietnam.

4. The written approval of the employment of foreign workers as prescribed in Clause 5, Article 10 of Decree No. 102/2013/ND-CP is the notice of the provincial-level Department of Labor, War Invalids and Social Affairs of the working positions in which the employment of foreign workers is approved by the chairperson of the provincial-level People’s Committee, or the written decision of the chairperson of the provincial-level People’s Committee permitting the contractor to recruit foreign workers in working positions for which Vietnamese workers cannot be recruited.

5. The papers specified at Points a, c and g, Clause 8, Article 10 of Decree No. 102/2013/ND-CP may be one of the following:

- Labor contract;

- Written certification made by the employer;

- Decision on recruitment of the foreign worker;

- Certificate of tax or insurance premium payment by the foreign worker.

Article 6. Work permit

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

a/ The format of a work permit:

A work permit has A4 size (21 cm x 29.7 cm) and consists of two pages of which page 1 is blue and plastic-coated and page 2 has a white background and blue patterns with a star in the middle.

b/ The contents of a work permit are provided in form No. 7 enclosed with this Circular.

2. The Department of Employment under the Ministry of Labor, War Invalids and Social Affairs shall organize the printing and issuance of work permits.

Article 7. Cases in which a work permit is re-granted

1. The work permit is lost or damaged.

2. The content written in the work permit, such as full name, date of birth, nationality, passport number or workplace, is changed.

The workplace written in a work permit is the address of the place where the foreign worker works. Change of the workplace’s address written in a work permit means that the foreign worker is sent, transferred or seconded to work on a full-time basis in a branch, representative office or another establishment of the employer within a province or centrally run city.

Article 8. Dossier of application for re-grant of a work permit

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

1. A written request for re-grant of a work permit by the employer as prescribed in Clause 1, Article 14 of Decree No. 102/2013/ND-CP shall be made according to form No. 8 enclosed with this Circular.

2. The papers in a dossier of application for re-grant of a work permit for a foreign worker under labor contract as prescribed at Point b, Clause 3, Article 14 of Decree No. 102/2013/ND-CP include: The granted work permit (unless it is lost) with the remaining validity duration of at least 5 days and no more than 15 days up to the date of its expiration; the health certificate as prescribed in Clause 2, Article 10 of Decree No. 102/2013/ND-CP; and the written notice of the provincial-level Department of Labor, War Invalids and Social Affairs of the working positions in which the employment of foreign workers is approved by the chairperson of the provincial-level People’s Committee, or the decision of the chairperson of the provincial-level People’s Committee permitting the contractor to recruit foreign workers in working positions for which Vietnamese workers cannot be recruited.

3. In case his/her work permit is lost as prescribed in Clause 3, Article 14 of Decree No. 102/2013/ND-CP, the foreign worker shall make a written explanation and has it certified by the employer.

Article 9. Duration of a granted or re-granted work permit

The duration of a granted work permit or a re-granted work permit complies with Article 11 or Article 16 of Decree No. 102/2013/ND-CP, respectively, but must not exceed the duration stated in the written approval of the chairperson of the provincial-level People’s Committee of the employment of foreign workers or must not exceed the duration stated in the decision of the chairperson of the provincial-level People’s Committee permitting the contractor to recruit foreign workers in each working position for which Vietnamese workers cannot be recruited.

Article 10. Written reply on refusal to grant or re-grant a work permit

In case of refusal to grant a work permit as prescribed in Clause 2, Article 12 of Decree No. 102/2013/ND-CP or refusal to re-grant a work permit as prescribed in Clause 3, Article 15 of Decree No. 102/2013/ND-CP, the provincial-level Department of Labor, War Invalids and Social Affairs shall issue a reply to the employer, made according to form No. 9 enclosed with this Circular.

Article 11. Certification that foreign workers are exempt from work permit

The certification that foreign workers are exempt from work permit as prescribed in Clause 2, Article 8 of Decree No. 102/2013/ND-CP is guided as follows:

1. The employer shall send a written request directly to the provincial-level Department of Labor, War Invalids and Social Affairs for certification that foreign workers are exempted from work permit, made according to form No. 10 enclosed with this Circular.

2. The provincial-level Department of Labor, War Invalids and Social Affairs shall grant the certification that foreign workers are exempt or not exempt from work permit, made according to form No. 11 enclosed with this Circular.

Chapter IV

ORGANIZATION OF IMPLEMENTATION

Article 12. Responsibilities of provincial-level People’s Committee chairpersons

1. To direct local functional agencies in law propagation and dissemination; to conduct examination and inspection and handle violations under regulations on recruitment and management of foreign workers in localities.

2. To direct local agencies and organizations in recommending and supplying Vietnamese workers to contractors.

3. To approve working positions in which employers may recruit foreign workers; to assign provincial-level Departments of Labor, War Invalids and Social Affairs to receive, summarize, appraise and submit the demands for foreign workers to provincial-level People’s Committee chairpersons for approval and notify such approval to every employer.

4. To decide to permit contractors to recruit foreign workers in each working position for which Vietnamese workers cannot be recruited.

Article 13. Responsibilities of provincial-level Departments of Labor, War Invalids and Social Affairs

1. To propagate and disseminate Vietnam’s labor law and guide the order, procedures and dossiers for grant or re-grant of work permits for enterprises, organizations, investors, contractors and foreign workers in localities.

2. To recommend and supply workers to employers or contractors in accordance with law.

3. To receive, summarize and appraise the demands for foreign workers in each working position in localities, submit these demands to provincial-level People’s Committee chairpersons for approval, and notify in writing each working position in which foreign workers may be employed to each employer as approved by provincial-level People’s Committee chairpersons.

4. To grant or re-grant work permits and grant certification that foreign workers are exempt from work permit. To record in the monitoring book according to form No. 12 enclosed with this Circular when receiving a dossier of application for grant or re-grant of a work permit or when receiving a request for certification that foreign workers are exempt from work permit, and hand a receipt to the employer. Such receipt must clearly state the date of receiving the dossier; papers included in the dossier; and time to reply. To preserve dossiers of application for grant or re-grant of work permits in accordance with law.

5. To examine and inspect the implementation of regulations on recruitment and management of foreign workers in Vietnam by employers in localities.

6. To revoke work permits under Clause 2, Article 17 of Decree No. 102/2013/ND-CP.

7. Periodical reporting:

a/ Before the 5^th every month, to send a notice of the situation of grant of work permits, made according to form No. 13 enclosed with this Circular, to provincial-level Public Security Departments;

b/ Before the 10^th of the first month of every quarter, to send the previous quarter’s report on foreign workers in localities, made according to form No. 14 enclosed with this Circular, to the Ministry of Labor, War Invalids and Social Affairs;

c/ Every 6 months before July 15 and every year before January 15 of the subsequent year, to send reports on the situation of foreign workers in enterprises, agencies and organizations in localities, made according to form No. 15 enclosed with this Circular, to the Ministry of Labor, War Invalids and Social Affairs.

8. To apply information technology to the management of, and grant or re-grant of work permits to, foreign workers in Vietnam.

Article 14. Responsibilities of employers

1. To strictly comply with Vietnam’s law on foreign workers in Vietnam.

2. To guide and disseminate Vietnam’s law on foreign workers in Vietnam to foreign workers.

3. To carry out procedures for requesting the grant or re-grant of work permits or certification of exemption from work permit for foreign workers in Vietnam.

To grant work permits under Section 3 of Decree No. 102/2013/ND-CP to foreign workers who have been granted work permits but are sent, transferred or seconded to work on a full-time basis in a province or city other than the province or city where they are working or to work in another working position for the employer.

4. To pay fees for grant or re-grant of work permits in accordance with law.

5. To lawfully implement labor contracts signed with foreign workers in enterprises or organizations; to send written notices of the signing of labor contracts, enclosed with copies of these contracts, to provincial-level Departments of Labor, War Invalids and Social Affairs that have granted work permits to foreign workers.

6. To manage dossiers of, and regularly update and supplement papers related to, foreign workers in enterprises or organizations.

7. To manage foreign workers in enterprises or organizations.

8. Within 3 days after revoking a work permit from a foreign worker for the cases specified in Clause 1, Article 17 of Decree No. 102/2013/ND-CP, to submit the revoked permit directly to the provincial-level Department of Labor, War Invalids and Social Affairs that has granted such permit. If unable to revoke a work permit, to make a written report clearly stating the reason.

9. Before the 5^th of the first month of every quarter, to send the previous quarter’s report to provincial-level Departments of Labor, War Invalids and Social Affairs of localities where the employers’ head offices are located or where the projects or bid packages are performed, on the employment of foreign workers, made according to form No. 16 enclosed with this Circular.

10. For a foreign worker who has been granted a work permit but is sent, transferred or seconded to work in a branch, representative office or another unit of the same employer within and outside a province or city for at least 10 days in a month or at least 30 accumulated days in a year, to send a written notice of the working time and working position of this worker, enclosed with a copy of the granted work permit, to the provincial-level Department of Labor, War Invalids and Social Affairs of the locality where the foreign worker comes to work.

Article 15. Responsibilities of investors

1. To supervise and request contractors to strictly comply with the commitments in bid dossiers and proposal dossiers on the employment of Vietnamese workers and foreign workers for contract performance.

2. To guide, urge and examine contractors in implementing regulations on recruitment and employment of foreign workers for contractors in accordance with law; to monitor and manage foreign workers in observing Vietnam’s law; before the 5^th of the first month of every quarter, to send the previous quarter’s report to provincial-level Departments of Labor, War Invalids and Social Affairs on the employment of foreign workers by contractors, made according to form No. 16 enclosed with this Circular.

Article 16. Responsibilities of foreign workers

1. To study  Vietnam’s law on foreign workers in Vietnam and prepare papers in dossiers of application for grant or re-grant of work permits.

2. To implement regulations on recruitment and management of foreign workers in Vietnam and relevant regulations.

3. Within 2 days after having their work permits revoked under Clause 1, Article 17 of Decree No. 102/2013/ND-CP, to hand over the permits to the employers.

Article 17. Effect

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

2. This Circular replaces Circular No. 31/2011/TT-BLDTBXH of November 3, 2011, of the Ministry of Labor, War Invalids and Social Affairs, guiding a number of articles of the Government’s Decree No. 34/2008/ND-CP of March 25, 2008, on recruitment and management of foreigners working in Vietnam, and the Government’s Decree No. 46/2011/ND-CP of June 17, 2011, amending and supplementing a number of articles of the Government’s Decree No. 34/2008/ND-CP of March 25, 2008.

3. For employers that registered before November 1, 2013, their demands for recruitment and employment of foreign workers in 2014 under Clause 7, Article 19 of the Government’s Decree No. 34/2008/ND-CP of March 25, 2008, and its amendments and supplements, and under Clause 10, Article 14 of Circular No. 31/2011/TT-BLDTBXH of November 3, 2011, of the Ministry of Labor, War Invalids and Social Affairs, provincial-level Departments of Labor, War Invalids and Social Affairs shall summarize, appraise and report such demands to provincial-level People’s Committee chairpersons for consideration and decision.

Any problems arising in the course of implementation should be reported to the Ministry of Labor, War Invalids and Social Affairs for timely guidance and supplementation.

For the Minister of Labor, War Invalids and Social Affairs
Deputy Minister
NGUYEN THANH HOA

* All the forms mentioned in this Circular are not translated.-