|
THE MINISTRY OF LABOR, INVALIDS AND SOCIAL AFFAIRS
________
No. 21/2021/TT-BLDTBXH
|
THE SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
_______________________
Hanoi, December 15, 2021
|
CIRCULAR
Detailing a number of articles of the Law on Vietnamese Guest Workers
Pursuant to the Law No. 69/2020/QH14 dated November 13, 2020 on Vietnamese Guest Workers;
Pursuant to the Government’s Decree No. 14/2017/ND-CP dated February 17, 2017 defining the functions, tasks, powers and organizational structure of the The Ministry of Labor, Invalids and Social Affairs;
At the proposal of the Director of the Department of Overseas Labour;
The Minister of Labor, Invalids and Social Affairs promulgates the Circular detailing and guiding the implementation of a number of articles of the Law No. 69/2020/QH14 dated November 13, 2020 on Vietnamese Guest Workers (hereinafter referred to as Law No. 69/2020/QH14) as follows:
Article 1. Scope of regulation
This Circular stipulates in detail a number of articles and clauses of the Law on Vietnamese Guest Workers as follows:
1. Dossiers for preparation of worker sources specified in Clause 5, Article 18.
2. Specific contents of labor supply contracts specified in Clause 3, Article 19.
3. Documents proving that the sending of Vietnamese workers abroad as guest workers complies with the law of the host country prescribed in Clause 4, Article 20; documents proving that the sending of Vietnamese workers abroad for training or improvement of occupational knowledge and skills complies with the law of the host country defined in Clause 2, Article 40.
4. The maximum commission level under brokerage contracts prescribed in Clause 3, Article 22.
5. The maximum service charge amount defined at Point c, Clause 4, Article 23.
6. Professional staff in charge of management and provision of support for guest workers defined at Point e, Clause 2, Article 26.
7. Contents of guarantee contracts and the liquidation of guarantee contracts specified in Clause 3, Article 58.
8. Programs, contents and duration of orientation education, and form and validity period of certificates of completion of orientation education courses specified in Clause 3, Article 65.
9. The form of written requests for registration of labor supply contracts prescribed in Clause 4, Article 20; form of written requests for registration of intern acceptance contracts defined in Clause 2, Article 40; form of written requests for registration of directly signed labor contracts specified at Point a, Clause 1, Article 53.
10. Form of contracts on the sending of Vietnamese workers abroad signed between workers and service enterprises defined in Clause 3, Article 21; contents and form of contracts on the sending of Vietnamese workers abroad signed between workers and Vietnamese organizations or individuals making offshore investment stipulated in Clause 4, Article 35; between workers and non-business units prescribed at Point b, Clause 1, Article 43.
11. The annual reporting regime for service enterprises specified at Point m, Clause 2, Article 26, for Vietnamese organizations or individuals making offshore investment defined Clause 8, Article 35, for non-business units prescribed at Point g, Clause 2, Article 43; reporting on the implementation of the sending of workers abroad for training or improvement of occupational knowledge and skills specified at Point l, Clause 2, Article 41.
Article 2. Subjects of application
1. Vietnamese guest workers.
2. Vietnamese enterprises providing the service of sending Vietnamese workers abroad as guest workers.
3. Vietnamese enterprises sending Vietnamese workers abroad for training or improvement of occupational knowledge and skills.
4. Vietnamese organizations and individuals making offshore investment to send Vietnamese workers abroad.
5. Public non-business units of ministries, ministerial-level agencies or government-attached agencies assigned to send Vietnamese workers abroad as guest workers.
6. Other agencies, organizations and individuals related to the implementation of this Circular.
Article 3. Dossiers for preparation of worker sources
A dossier for preparation of worker sources includes:
1. A document on preparation of worker sources, made according to Form No. 01 in the Appendix I to this Circular.
2. A copy of the written request of a worker-receiving foreign partner; or cooperation agreement between a Vietnamese enterprise and a worker-receiving foreign partner together with its certified Vietnamese translation, including the following contents:
a) Number of workers to be prepared by the Vietnamese enterprise, professions, occupations, their gender;
b) Workers’ occupational knowledge and skills, foreign language skills;
c) Basic information about the overseas jobs (workplace, wage amount, the term of the contract);
d) Estimated duration of selection.
3. A document proving that a foreign partner is permitted by a competent authority of the host country to recruit foreign workers, for the foreign partner entering into cooperation with a Vietnamese service enterprise for the first time. Such document may be:
a) 01 copy of the operation license granted by a competent agency of the host country in case the worker-receiving foreign partner is an employment service organization; or
b) 01 copy of any in the following documents, in case the worker-receiving foreign partner is the employer: written approval of the employment of foreign workers granted by the competent agency of the host country; notice the quota on accepted foreign workers granted by the competent agency of the host country; other papers permitting the recruitment of foreign workers in accordance with the laws of the host country.
4. A plan on preparation of worker sources, including:
a) Expected number of workers (the maximum expected number of workers shall equal to the amount specified at Point a, Clause 2 of this Article); their professions, occupations; their gender; their occupational knowledge and skills, foreign language skills;
b) Method of the preparation of worker sources:
b1) Preliminary selection (if any): Start time of preliminary selection, location of preliminary selection;
b2) Expected training of vocational skills (if any): Time (start time, finish time), place, form of training (directly/via training linkage);
b3) Expected foreign language training (if any): Time (start time, finish time), place, form of training (directly/via training linkage).
5. A commitment to prioritizing the recruitment of workers who have participated in worker source preparation activities. Such document shows that the enterprise prioritizes the recruitment of workers who have participated in worker source preparation activities when performing labor supply contracts.
Article 4. Specific contents of labor supply contracts
Specific contents of a labor supply contract according to market, profession, occupation and job shall be as follows:
1. For professions, occupations and jobs in the Japanese labor market, the specific contents are defined in the Appendix II issued together with this Circular.
2. For professions, occupations and jobs in the labor market of Taiwan (China), the specific contents are defined in the Appendix III issued together with this Circular.
3. For professions, occupations and jobs in the Korean labor market, the specific contents are defined in the Appendix IV issued together with this Circular.
4. For professions, occupations and jobs in the labor market of West Asia, Central Asia and Africa, specific contents are defined in the Appendix V issued together with this Circular.
5. For professions, occupations and jobs in the labor market of Europe and Oceania, the specific contents are defined in the Appendix VI issued together with this Circular.
6. For professions, occupations and jobs in the labor market of Americas, the specific contents are defined in the Appendix VII issued together with this Circular.
7. For professions, occupations and jobs in the labor market of China, Macau (China) and Southeast Asia, the specific contents are defined in the Appendix VIII issued together with this Circular.
8. For jobs performed at international seas, the specific contents are defined in the Appendix IX issued together with this Circular.
Article 5. Documents proving that the sending of Vietnamese workers abroad as guest workers complies with the law of the host country
1. For the Malaysian labor market and the labor market of Taiwan (China), proving documents include:
a) 01 copy of the paper on appraisal of the dossier for recruitment of Vietnamese workers issued by the representative mission of Vietnam in the country or territory;
b) 01 copy of the license of foreign worker recruitment granted by a competent agency of the host country to the employer, together with its Vietnamese translation.
2. For other countries and territories:
a) In case the worker-receiving foreign partner is the foreign employer, proving documents include:
a1) 01 copy of the employer’s business license or business registration that shows the business field suitable to the professions, occupations and jobs requiring foreign workers, and its Vietnamese translation;
a2) 01 copy of a document of the competent agency of the host country allowing the employer to recruit foreign workers or the list of professions, occupations and jobs for which the recruitment of foreign workers is permitted as defined by the host country, and its Vietnamese translation.
b) In case the worker-receiving foreign partner is an employment service organization, proving documents include:
b1) 01 copy of the employment service organization’s business license or business registration that shows the employment service is included in its business lines, and its Vietnamese translation;
b2) 01 copy of the cooperation agreement or written request or written authorization to recruit Vietnamese workers of the employer towards the employment service organization, and its Vietnamese translation;
b3) Proving documents for the employers specified at Point a of this Clause.
Article 6. Documents proving that the sending of Vietnamese workers abroad for training or improvement of occupational knowledge and skills complies with the law of the host country
In case the law of the host country or territory stipulates that the receipt of Vietnamese workers abroad for training or improvement of occupational knowledge and skills must be approved by the competent agency, the proving document shall be one of the following papers:
1. 01 copy of the written permission on the receipt of foreign interns of the intern-accepting institution, issued by a competent agency of the host country.
2. Another paper showing that the intern-accepting institution is permitted to receive interns in accordance with the host country’s regulations.
Article 7. Maximum commission levels under brokerage contracts
1. The maximum commission level under a brokerage contract shall be according to the agreement between a service enterprise and an intermediary organization or individual but does not exceed half of the worker’s monthly wage stated in the labor contract for every 12 working months. For cases of labor contracts with the definite term of 36 months or more, the maximum commission level under a brokerage contract does not exceed 1.5 of the worker’s monthly wage stated in the labor contract.
2. The maximum commission levels under brokerage contracts for a number of markets, professions, occupations and jobs are specified in the Appendix X issued together with this Circular.
Article 8. Maximum service charge amounts collected from workers for a number of markets, professions, occupations and jobs
The maximum service charge amounts collected from workers for a number of markets, professions, occupations and jobs are specified in the Appendix XI issued together with this Circular.
Article 9. Professional staff in charge of management and provision of support for guest workers
The following service enterprises must assign at least a professional staff in the host country or territory to manage and provide support for workers:
1. Service enterprises with 500 or more workers working in Taiwan (China), Korea, Macao (China), Japan.
2. Service enterprises with 300 or more workers working in other countries or territories.
Article 10. Contents of guarantee contracts
A guarantee contract includes the following key contents:
1. Parties
a) The guarantor that is an individual or organization fully meeting the conditions prescribed in Article 55 of the Law No. 69/2020/QH14;
b) The principal that is a Vietnamese guest worker;
c) The creditor that is a service enterprise or non-business unit that sends Vietnamese workers abroad as guest workers.
2. Scope of guaranty
The guarantor may commit to guarantee part or the whole of the following obligations of the principal:
a) Payment of unpaid service charges by the principal;
b) Payment of the expenses of compensation for damage caused by the principal’s breach of the contract;
c) Payment of the interests in case of late payment of amounts within the guaranty scope. The interests shall be calculated based on the interest rate applicable to demand deposits in Vietnam dong applied by the concerned credit institution as agreed upon by the parties and corresponding to the late payment period at the time of payment.
3. Rights and obligations of the parties
a) Rights of the guarantor
a1) To receive complete and accurate information about the rights and obligations of the principal towards the creditor that are provided by the creditor, the principal and related parties;
a2) To request the creditor to notify the principal’s workplace, employment situation, income, health, working and living conditions;
a3) To request the creditor to properly perform its commitments with the guarantor and the principal;
a4) To claim compensation for damage and use such compensation amount to offset an obligation with the creditor (if any) in case the creditor fails to perform or performs improperly or incompletely all the obligations mentioned at Points d1), d2), d4) and d8) of this Article, thereby causing damage to the guarantor;
a5) Be informed by the creditor or the principal that the principal has performed the guaranteed obligation;
a6) To request the creditor to return papers and documents proving the financial capability, capacity and reputation of the guarantor (if any) when the guarantee contract is terminated;
a7) To request the principal to perform his/her/its obligations towards the guarantor within the scope of the performed guaranteed obligation, unless otherwise agreed upon.
a8) To request the creditor to return his/her/its property received or the value corresponding to the part of the guaranteed obligation performed in case the principal still performs the guaranteed obligation.
b) Obligations of the guarantor
b1) To transfer papers and documents proving their financial capability, capacity, reputation and other necessary papers to the creditor;
b2) To mobilize and educate the principal to properly fulfill the obligations under the contract signed with the creditor; take necessary measures to prevent and remedy damage caused by the principal’s breach of the contract;
b3) To perform obligations on behalf of the principal within the scope of the guaranty committed in case the principal fails to perform or performs improperly or inadequately the obligations in the contract signed with the creditor;
b4) To handle over his/her/its own property to the creditor or a third person as agreed for settlement in case of failure to perform or failure to properly or adequately perform the guaranteed obligation;
b5) To pay for the value of the breached obligation and compensate for damage in case of non-performance or improper or incomplete performance of the guaranteed obligation.
c) Rights of the creditor
c1) To request the guarantor to perform the guaranteed obligation, unless the parties agree that the guarantor will only perform the obligation on behalf of the principal in case the principal is unable to perform the obligation;
c2) To request the guarantor to transfer papers and documents proving the guarantor’s financial capability, capacity, reputation and other necessary papers;
c3) To request the guarantor to take measures to mobilize and educate the principal to perform the obligations under the contract signed with the creditor;
c4) To request the guarantor to his/her/its own property to him/her/it for settlement in case the time limit for performance of the guaranteed obligation expires but the guarantor fails to perform or performs improperly or inadequately the guaranteed obligation;
c5) To request the guarantor to pay the value of the breached obligation and compensate for damage in case the guarantor fails to perform or performs improperly or inadequately the guaranteed obligation.
d) Obligations of the creditor
d1) To properly perform commitments with the guarantor and the principal;
d2) To timely provide accurate and complete information of the rights and obligations of the principal towards the creditor to the guarantor;
d3) To notify the principal’s workplace, employment situation, income, health, working and living conditions at the request of the guarantor;
d4) To preserve and not damage or lose papers and documents proving the financial capability, capacity and reputation of the guarantor, if the parties have an agreement that the creditor shall keep such papers and documents. In case of damage or loss of papers and documents, the creditor must pay compensation for damage;
d5) To notify the guarantor of the performance of obligations on behalf of the principal when there are grounds for the performance of the guaranteed obligation in accordance with the law on security transactions; if the principal is required to perform an obligation ahead of schedule due to a breach of the obligation, but fails to perform or performs improperly or inadequately such obligation, the creditor must clearly state the reason in the notice on the principal’s the performance of obligation ahead of time;
d6) To provide the guarantor with papers and documents proving that the principal’s obligations are within the scope of the guaranty, and the damage is caused by the principal;
d7) To notify the guarantor that the principal has performed the guaranteed obligation;
d8) To return papers and documents proving the financial capability, capacity and reputation of the guarantor (if any) when the guarantee contract is terminated;
d9) To notify the principal that the guarantor has performed the guaranteed obligation.
4. Termination of guaranty
The guaranty shall be terminated in cases prescribed by the civil law on guaranty.
5. Other agreements that are not contrary to the law regulations.
Article 11. Liquidation of guarantee contracts
1. The time limit for the liquidation of a guarantee contract is 30 (thirty) days from the date of termination of the guaranty, unless otherwise agreed upon by the parties.
2. The liquidation of the guarantee contract may be stated in a separate document or in the document of guaranty cancellation or the written agreement on termination of the guaranty, clearly stating the performance of the contents agreed in the guarantee contract of the parties, responsibilities of the parties (if any) due to the liquidation of the contract.
Article 12. Orientation education
1. Programs, duration and contents of orientation education are defined in the Appendix XII issued together with this Circular.
2. Form and validity period of certificates of completion of orientation education courses:
a) The form of certificates of completion of orientation education courses is prescribed in Form No. 06, Appendix I issued together with this Circular;
b) Certificates of completion of orientation education courses are valid within 24 months from the issuing date. Past the above time limit, enterprises, non-business units, organizations and individuals making offshore investment to send Vietnamese workers abroad are responsible for organizing re-orientation education. In case a certificate has not been expired, but the worker changes the worker-sending service enterprise, non-business unit, organization or individual, or changes the professions, occupations, jobs or host country, the service enterprise, non-business unit, organization or individual must conduct the orientation education of the changed contents; workers must be re-inspected and re-issued certificates of completion of orientation education courses.
Article 13. Forms of written requests for registration of contracts
1. The written requests for registration of labor supply contracts are made according to Form No. 02 in the Appendix I to this Circular.
2. The written requests for registration of intern acceptance contracts are made according to Form No. 04 in the Appendix I to this Circular.
3. The written requests for registration of directly signed labor contracts are made according to Form No. 05 in the Appendix I to this Circular.
Article 14. Contents and form of contracts on the sending of Vietnamese workers abroad
1. Contracts on the sending of Vietnamese workers abroad signed between workers and service enterprises are made according to Form No. 03 in the Appendix 01 to this Circular.
2. A contract on the sending of Vietnamese workers abroad signed between a worker and a Vietnamese organization or individual making offshore investment must be in accordance with Vietnam’s law and the law of the country or territory where the worker comes to work and has the following contents: working duration; professions, occupations and jobs to be performed; country or territory where the worker comes to work, workplace; pre-departure orientation education; working conditions and environment; working time and rest time; occupational safety and health; salary and bonuses (if any), overtime pay, salary deductions (if any); meal, accommodations, living and travel between the accommodations and the workplace; responsibility to pay expenses for travel between Vietnam and the workplace and vice versa; medical examination and treatment regime and other benefits and regimes (if any); benefits and regimes of the worker in case the worker suffers occupational accidents or diseases and other regimes; compensation for damage caused by breach of contract; mechanisms, procedures and laws to be applied for dispute settlement; other agreements which are not contrary to law and social morality.
3. A contracts on the sending of Vietnamese workers abroad signed between a worker and a non-business unit must be in accordance with Vietnam’s law and the law of the host country or territory, international agreements specified in Clause 1, Article 42 of the Law No. 69/2020/QH14, the labor supply contract signed with the worker-receiving foreign partner (if any) and have the following contents:
working duration; professions, occupations and jobs to be performed; country where the worker comes to work, workplace; pre-departure orientation education; training of occupational knowledge and skills, foreign languages (if any); expenses payable to the worker before departure; working conditions and environment; working time and rest time; occupational safety and health; salary and bonuses (if any), overtime pay, salary deductions (if any); meal, accommodations, living and travel between the accommodations and the workplace; responsibility to pay expenses for travel between Vietnam and the workplace and vice versa; medical examination and treatment regime and other benefits and regimes (if any); social insurance, health insurance and occupational accident and disease insurance regimes; compensation for damage caused by breach of contract; deposit payment and guaranty for performance of contractual obligations (if any); liquidation of the contract; mechanisms, procedures and laws to be applied for dispute settlement; other agreements which are not contrary to law and social morality.
Article 15. Regime of periodic reporting
The periodic reporting of Vietnamese service enterprises, organizations and individuals making offshore investment, non-business units that send Vietnamese workers abroad for working and of enterprises sending workers abroad for training or improvement of occupational knowledge and skills shall be as follows:
1. Every year, before December 20 of the reporting period, the above-mentioned enterprises, organizations and individuals shall make reports on the sending of Vietnamese workers abroad as guest workers according to the sample report outline in the Appendix XIII to this Circular.
2. The reports are made in writing and sent to report-receiving agencies by one of the following methods: in person or via postal service or online.
3. The period for data cut-off for annual reports shall be counted from December 15 of the year preceding the reporting period to December 14 of the reporting period.
Article 16. Effect
1. This Circular takes effect on February 01, 2022.
2. From the effective date of this Circular, the following documents cease to be effective:
a) Circular No. 21/2007/TT-BLDTBXH dated October 8, 2007 of the Ministry of Labor, Invalids and Social Affairs detailing a number of articles of the Law on Vietnamese Guest Workers and the Government’s Decree No. 126/2007/ND-CP dated August 1, 2007 detailing and guiding a number of articles of the Law on Vietnamese Guest Workers;
b) Circular No. 21/2013/TT-BLDTBXH dated October 10, 2013 of the Ministry of Labor, Invalids and Social Affairs providing for the maximum deposit levels and labor markets in which service enterprises are allowed to make agreement on deposit with workers;
c) Circular No. 22/2013/TT-BLDTBXH dated October 15, 2013 of the Ministry of Labor, Invalids and Social Affairs defining the forms and contents of labor supply contracts, contracts on the sending of Vietnamese workers abroad;
d) Decision No. 18/2007/QD-BLDTBXH dated July 18, 2007 of the Minister of Labor, Invalids and Social Affairs promulgating programs for training of necessary knowledge for workers before sending them abroad;
d) Decision No. 20/2007/QD-BLDTBXH dated August 02, 2007 of the Minister of Labor, Invalids and Social Affairs promulgating certificates of possession of necessary knowledge for workers before working abroad;
e) Decision No. 61/2008/QD-BLDTBXH dated August 12, 2008 of the Minister of Labor, Invalids and Social Affairs on the brokerage commission levels paid by the workers to enterprises in a number of markets.
3. Any difficulty and problem arising in the course of implementation of this Circular should be promptly reported to the Ministry of Labor, Invalids and Social Affairs (via the Department of Overseas Labour) for prompt guidance./.
|
|
FOR THE MINISTER
DEPUTY MINISTER
Nguyen Ba Hoan
|
Appendix I. Forms related to Vietnamese guest workers
(Issued together with the Circular No. 21/2021/TT-BLDTBXH dated December 15, 2021 of the Minister of Labor, Invalids and Social Affairs)
Form No. 01: Registration on preparation of worker sources
Form No. 02: Written request for registration of a labor supply contract
Form No. 03: Contract on the sending of Vietnamese workers abroad
Form No. 04: Written request for registration of an intern acceptance contract
Form No. 05: Written request for registration of a directly signed labor contract
Form No. 06: Certificate of completion of an orientation education course
