Joint Circular No. 03/2006/TTLT/BLDTBXH-BNG guiding the implementation of certain provisions of Government Decree No. 141/2005/NĐ-CP dated November 11, 2005 on the management of Vietnamese labor working abroad.

CIRCULAR

Guidelines for Implementing Certain Provisions of Decree No. 141/2005/NĐ-CP

dated November 11, 2005 of the Government on the Management of Vietnamese Workers Working Abroad

Guidelines for Implementing Certain Provisions of Decree No. 141/2005/NĐ-CP dated November 11, 2005 of the Government on the Management of Vietnamese Workers Working Abroad

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Pursuant to Decree No. 141/2005/NĐ-CP dated November 11, 2005 of the Government on the Management of Vietnamese Workers Working Abroad;

Pursuant to Decree No. 29/2003/NĐ-CP dated March 31, 2003 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Labor, Invalids, and Social Affairs;

Pursuant to Decree No. 21/2003/NĐ-CP dated March 10, 2003 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Foreign Affairs;

The Ministry of Labor, Invalids, and Social Affairs and the Ministry of Foreign Affairs jointly issue guidelines on the management and administrative penalties for Vietnamese workers working abroad (hereinafter referred to as workers) by diplomatic agencies, consular agencies, and other agencies authorized to perform consular functions of the Socialist Republic of Vietnam (hereinafter collectively referred to as Vietnamese representative agencies) abroad, and enterprises sending workers to work abroad (hereinafter referred to as enterprises) as follows:

I. MANAGEMENT OF VIETNAMESE WORKERS WORKING ABROAD

1. Responsibilities of Enterprises

1.1. With respect to workers:

a. Fully disseminate the contents stipulated in Decree No. 141/2005/NĐ-CP dated November 11, 2005 of the Government on the Management of Vietnamese Workers Working Abroad (hereinafter referred to as Decree 141) in the orientation education program for workers before they go to work abroad;

b. Notify and coordinate with foreign partners (recruitment companies or employers) to receive workers at the border checkpoint of the host country. In necessary cases, the enterprise must send staff to accompany and coordinate with the foreign side to transport workers to their workplaces;

c. Provide workers before they go to work abroad: telephone number, address of the Vietnamese representative agency in the host country (Labor Management Office, Consular Section); telephone number, address, and name of the representative of the Vietnamese enterprise, recruitment company, and employer;

d. Within three months from the date of entry, the enterprise must send staff to the workplace to understand the employment situation, income, living conditions of workers, and resolve initial difficulties faced by workers;

đ. Promptly resolve issues arising related to the rights and obligations of workers according to the contracts signed between the parties (between the enterprise and the worker, between the employer and the worker); proactively coordinate with the Vietnamese representative agency in the host country to resolve matters involving workers that exceed the capacity of the enterprise;

For complex cases such as death of workers, serious accidents posing a threat to life, or incidents involving workers, the enterprise must send staff to directly coordinate with the Vietnamese representative agency in the host country to resolve the matter within three days from the date of occurrence.

1.2. Report quarterly to the Vietnamese representative agency abroad or the Labor Management Board (in areas where there is a Labor Management Board) on the following content:

a. The situation of labor sent by the enterprise to work in the host country (report data according to Form No. 01 issued together with this Circular). Number of incidents occurred, including unresolved incidents and reasons;

b. Implementation of the responsibilities of the enterprise as stipulated in Decree 141 and other relevant laws.

1.3. Timely report to the Department of Overseas Labor Management and coordinate with the Vietnamese representative agency in the host country to immediately handle after discovering workers violating provisions in Clauses 5, 6, 7, and 9 of Article 4 of Decree 141.

1.4. Provide all pre-departure files of workers who violate the provisions of Decree 141 to the Department of Overseas Labor Management upon request.

2. Responsibilities of Vietnamese Representative Agencies Abroad:

2.1. Study and understand the market, demand, policies, and methods of receiving foreign workers in the host country to propose to relevant agencies in the country about signing agreements and cooperation agreements on labor with the host country;

2.2. Guide Vietnamese enterprises to access the market and sign contracts in accordance with Vietnamese and host country laws;

2.3. Review or support domestic competent authorities in reviewing the legal basis and feasibility of contracts accepting Vietnamese workers;

2.4. Guide and inspect the activities of enterprises or representatives of Vietnamese enterprises abroad regarding management responsibilities and handling issues arising related to the rights and obligations of workers working abroad;

2.5. Monitor and compile the number and situation of workers currently working in the host country;

2.6. Verify the reasons for workers returning home before the scheduled time when necessary;

2.7. Support enterprises in mediating disputes between workers and employers in necessary cases;

2.8. Protect the legitimate rights and interests of workers working abroad in accordance with Vietnamese law, host country law, international law, and international practices;

2.9. Propagate and explain so that workers working abroad understand and strictly comply with Vietnamese law and host country law;

2.10. Proactively coordinate with relevant agencies, organizations, and individuals in the host country to handle and resolve issues arising related to workers working abroad;

2.11. Consider and decide on administrative penalties for workers who violate provisions as stipulated in Article 29 of Decree 141 and guided in this Circular;

2.12. Report every six months to the Ministry of Foreign Affairs and the Ministry of Labor, Invalids, and Social Affairs on the situation of workers working in the host country;

2.13. Perform other tasks as prescribed by law.

3. Responsibilities of the Labor Management Board (for areas with a Labor Management Board):

3.1. Directly implement the responsibilities stipulated in Points 2.1; 2.2; 2.3; 2.4; 2.5; 2.6; 2.7; 2.8; 2.9; 2.10 of Section 2 of Part I of this Circular, and take the lead and coordinate with relevant units to advise the Head of the Vietnamese Representative Office abroad to implement the responsibilities stipulated in Points 2.11, 2.12, and 2.13 of Section 2 of Part I of this Circular.

3.2. Perform other tasks assigned by the Director of the Overseas Labor Management Department and the Head of the Vietnamese Representative Office in the host country.

3.3. Implement regular and ad hoc reporting systems to the Head of the Vietnamese Representative Office abroad and the Director of the Overseas Labor Management Department as prescribed.

4. Coordination relations among units under the Vietnamese Representative Office abroad in managing labor in areas where there is a Labor Management Board.

4.1. For incidents involving workers that are complex in nature or fall outside the scope of responsibility, the Labor Management Board shall compile the situation and proactively report to the Head of the Vietnamese Representative Office in the host country to direct relevant units to cooperate in resolving the issue.

4.2. Based on the nature of the incident, the characteristics of the area, and the personnel situation of the Vietnamese Representative Office abroad, the Head of the Representative Office shall direct and assign responsibilities for handling the incident to units within the Representative Office.

4.3. For issues arising related to policies on sending Vietnamese workers to work abroad that affect bilateral relations or the rights and interests of a large number of Vietnamese workers, or serious incidents, the Labor Management Board shall proactively coordinate with relevant units to study and propose solutions to the Head of the Vietnamese Representative Office abroad for reporting to domestic competent authorities.

II. ADMINISTRATIVE PENALTIES FOR VIETNAMESE WORKERS WORKING ABROAD

1. Procedure for drafting administrative violation reports

Upon receiving notification from the competent authority of the host country or the employer regarding the violation committed by the worker as stipulated in Clauses 5, 6, 7, and 9 of Article 4 of Decree 141, the Head of the Vietnamese Representative Office abroad must dispatch a diplomatic officer or consular officer to investigate and verify the reported violation if necessary, and draft an administrative violation report, specifically as follows:

1.1. Within five days from the date of receipt of the notification from the competent authority of the host country or the employer, the diplomatic or consular officer responsible for handling the case must draft an administrative violation report (in accordance with Form No. 02 issued together with this Circular). The administrative violation report shall be drafted at the Vietnamese Representative Office in the host country or at the place of residence/work of the worker.

1.2. In cases where the worker is not present at the location where the administrative violation report is being drafted, the report shall be drafted in absentia, and the reason for the worker's absence must be clearly stated in the report.

1.3. After completion, the administrative violation report must be immediately transferred to the authorized authority for punishment.

2. Procedure for issuing a penalty decision

2.1. Within the time limit for issuing a penalty decision as stipulated in Point a, Clause 2, Article 31 of Decree 141, the diplomatic or consular officer responsible for handling the case must complete the file according to the prescribed procedures for the authorized authority to issue a penalty decision.

The content of the administrative penalty decision is in Form No. 03 issued together with this Circular.

2.2. The Head of the Vietnamese Representative Office abroad may delegate a second person in the office to make the administrative penalty decision. Such delegation must be made in writing. The delegated person is responsible for the administrative penalty decision they make.

3. Enforcement of the penalty decision

3.1. The enforcement of the administrative penalty decision is carried out in accordance with Points a and b of Clause 3, Article 31 of Decree 141.

3.2. A notice about the worker's non-compliance with the penalty decision must be drafted in accordance with Form No. 04 issued together with this Circular.

3.3. The administrative penalty decision and the notice about the worker's non-compliance with the penalty decision must be sent to the person subject to the penalty, the Overseas Labor Management Department to notify relevant agencies, organizations, and individuals.

If the place of residence of the person subject to the penalty cannot be determined, the penalty decision and the notice about non-compliance with the administrative penalty decision must be publicly posted at the headquarters of the Vietnamese Representative Office in the host country.

3.4. Thirty days after the issuance of the notice about the person subject to the penalty's non-compliance with the administrative penalty decision, if the person still does not comply with the decision, the Vietnamese Representative Office abroad will send the entire case file to the Overseas Labor Management Department to request and transfer the file to the competent authority in the country for consideration and prosecution of criminal liability against the violator.

4. Case files

4.1. The case file includes:

a. Notification from the competent authority of the host country regarding the worker's violation of the law;

b. Administrative violation report;

c. Administrative penalty decision;

d. Notice about non-compliance with the administrative penalty decision;

e. Any accompanying documents and evidence (if any).

If the above documents are in a foreign language, the Vietnamese Representative Office in the host country shall translate them into Vietnamese and certify their validity. If they are copies, they must be certified by the Vietnamese Representative Office in the host country.

4.2. The case file shall be prepared in two sets, one set retained at the Vietnamese Representative Office abroad, and one set sent back to the Overseas Labor Management Department.

III. IMPLEMENTATION

1 ||| This Circular takes effect fifteen (15) days from the date of publication in the Official Gazette.

2. Within thirty days from the date this Circular takes effect, the Vietnamese representative agencies in areas where Vietnamese workers are present must exchange and agree with the competent authorities of the host countries on the agency, organization, or employer responsible for issuing and the content of the notification regarding the violation of laws by workers.

3. During the implementation process, if there are any difficulties, they should be promptly reported to the Ministry of Labor - Invalids and Social Affairs and the Ministry of Foreign Affairs for consideration and guidance on resolution./.