Decree No. 141/2005/ND-CP on the management of Vietnamese workers working abroad

DECREE

On managing Vietnamese labor working abroad

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Pursuant to the Law on Legislative Regulatory Acts dated November 12, 1996; the Law Amending and Supplementing Certain Provisions of the Law on Legislative Regulatory Acts dated December 16, 2002;

Pursuant to the Labor Code on June 23, 1994; Law Amending and Supplementing Certain Articles of the Labor Code on April 2, 2002;

Pursuant to the Administrative Violation Handling Ordinance 2002;

Pursuant to the opinion of the Standing Committee of the National Assembly in Document No. 1357/VPQH-CVĐXH dated August 3, 2005 of the National Assembly Office;

At the proposal of the Minister of Labor, Invalids and Social Affairs,

DECREE:

PART I

GENERAL PROVISIONS

Article 1. Sending Vietnamese workers to work abroad

1. Sending Vietnamese workers to work abroad is an economic and social activity contributing to creating jobs, increasing income, improving vocational skills, and fostering advanced work ethics for workers.

2. The State encourages agencies, organizations, and Vietnamese citizens both within and outside the country to participate in opening markets, finding partners, and contracts to facilitate Vietnamese workers going to work abroad in accordance with international law, Vietnamese law, and the laws of the host countries.

Article 2. Scope of Regulation

This Decree stipulates the responsibilities of enterprises sending Vietnamese workers to work abroad (hereinafter referred to as enterprises), Vietnamese workers working abroad (hereinafter referred to as workers), guarantors for workers, and agencies and organizations in managing workers; violations and handling of violations related to state management in the field of labor export.

Article 3. Applicability

1. Enterprises.

2. Vietnamese workers working abroad as prescribed by law.

3. Guarantors for workers.

4. Organizations and individuals related to labor export activities.

Article 8. Prohibited acts

1. Sending Vietnamese workers to work in areas, occupations, and positions prohibited by Vietnamese law or the law of the receiving country.

2. Using the pretext of sending workers to work abroad to organize the illegal departure of Vietnamese citizens to foreign countries.

3. Using the pretext of sending workers to work abroad to organize the recruitment, training, and collection of money from workers contrary to the law.

4. Organizing the departure of workers to foreign countries for work without registering the contract as required by law.

5. Fleeing immediately upon entry into the receiving country.

6. Leaving the place of work specified in the labor contract without authorization.

7. Not returning to Vietnam when the labor contract ends according to the time limit set by the host country.

8. Organizing, inciting, coercing workers to illegally strike against the law of the host country.

9. Organizing intermediation, incitement, luring, and deceiving Vietnamese workers abroad to leave their places of work as specified in the labor contract.

Chapter II

RESPONSIBILITIES OF ENTERPRISES SENDING WORKERS TO WORK ABROAD

Article 5. Recruitment of Workers

The enterprise specified in Clause 1 of Article 3 of this Decree must directly recruit workers; cooperate with local authorities to publicly announce the number of workers to be recruited, gender, age, profession, duration of the contract, working conditions and living conditions, wages, overtime pay, and other sources of income (if any), social insurance, expenses that workers must pay before departure and during the period of work abroad.

Article 6. Training and Orientation Education Organization

The enterprise shall be responsible for organizing foreign language teaching, orientation education, and vocational skill supplementation for workers before they go to work abroad; checking and issuing certificates for workers upon completion of the course in accordance with the provisions of the law.

Article 7. Signing Contracts with Workers and Guarantee Contracts

The enterprise shall be responsible for signing "Overseas Work Contract" with workers and "Guarantee Contract" with guarantors for workers before going to work abroad.

Article 8. Transporting Workers to Overseas Workplaces

The enterprise shall be responsible for coordinating with foreign partners and employers to transport workers to their workplaces according to the contracts signed with the foreign side.

Article 9. Management and Resolution of Issues Arising for Workers

The enterprise shall be responsible for the following:

1. Appointing company representatives to inspect and supervise the implementation of contracts; protecting the legitimate rights and interests of workers.

2. Jointly resolving issues arising for workers with foreign partners and employers in cases where:

a) Employers fail to comply with labor contracts signed with workers;

b) Workers suffer from workplace accidents, risks, occupational diseases, or damage to reputation and dignity;

c) Workers die.

3. Advising and supporting workers in cases of labor disputes between workers and employers.

4. Cooperating with partners, families, and guarantors to persuade runaway workers to return to their workplaces according to the contracts; if workers do not comply, the enterprise must report to the Overseas Labor Administration Bureau, diplomatic missions, consular offices, or other agencies authorized to perform consular functions of the Socialist Republic of Vietnam (hereinafter referred to collectively as Vietnamese Representative Agencies) in the host country for handling in accordance with this Decree.

5. Providing information to Vietnamese Representative Agencies in the host country for issuing documents for workers returning home.

Article 10. Termination of Contracts with Workers

The enterprise shall terminate "Overseas Work Contract" with workers in accordance with Vietnamese law.

Article 11. Responsibilities of Enterprises towards State Agencies

1. Registering contracts in accordance with the law.

2. Reporting lists of workers sent to work abroad in accordance with the law; submitting regular reports, and reporting cases of worker deaths, accidents, disappearances, strikes, factory bankruptcies, worker runaways, and other related incidents to the Overseas Labor Administration Bureau and Vietnamese Representative Agencies in the host country in accordance with the law.

Chapter III

RESPONSIBILITIES OF WORKERS AND GUARANTORS FOR WORKERS GOING ABROAD TO WORK FOR EMPLOYEES WORKING ABROAD

Article 12. Participation in Selection

When participating in selection, workers shall be responsible for thoroughly understanding the contents: policies and laws of Vietnam and the host country; selection criteria and conditions; contract duration; type of work to be performed; place of work; working and living conditions; wages, overtime pay, and other income (if any); insurance benefits; expenses that workers must pay before departure and during work in the host country; other necessary information in the contract.

Article 13. Participation in training and orientation courses

Before going to work abroad, workers must fully participate in training courses and language tests, orientation education, and vocational skill improvement as prescribed.

Article 14. Signing contracts with enterprises

1. Sign a "Contract for Working Abroad" with the enterprise after carefully studying the conditions stipulated in the contract.

2. Fully implement all contents of the "Contract for Working Abroad" signed with the enterprise.

3. Select and introduce a guarantor to sign a "Guarantee Contract" with the enterprise.

Article 15. Implementation of overseas employment contracts

During the time working abroad, workers have the responsibility to:

1. Report for duty at the location agreed upon in the "Contract for Working Abroad" signed with the enterprise.

2. Sign and strictly comply with the terms of the labor contract with the employer and workplace regulations.

3. Not leave the workplace without authorization as stipulated in the signed labor contract.

4. Immediately notify the enterprise that sent them and the Vietnamese representative office in the host country when there is a dispute with the employer or their honor and dignity are violated to receive timely support.

5. Adhere to the laws, respect the customs and traditions of the host country.

6. Return home upon termination of the labor contract according to the prescribed duration under the host country's law.

Article 16. Guarantors for workers

1. The guarantor for workers is a person chosen and introduced by the worker and accepted by the enterprise to sign a guarantee contract with the enterprise. The guarantor must meet the following conditions:

a) Possess full civil capacity to enter into a "Guarantee Contract".

b) Have sufficient economic capability to meet the conditions stipulated in the "Guarantee Contract" or have credibility and responsibility to ensure the worker fulfills their obligations.

2. The guarantor has the responsibility to:

a) Sign a "Guarantee Contract" with the enterprise to ensure the fulfillment of the worker's obligations to that enterprise;

b) Fulfill all obligations committed to in the "Guarantee Contract" on behalf of the worker if the worker fails to fulfill their obligations to the enterprise as required by law;

c) Mobilize and educate the worker and the worker's family to fulfill their obligations as stipulated in the contract signed with the enterprise.

3. The Ministry of Labor, Invalids, and Social Affairs shall coordinate with the Ministry of Justice to guide the process of guaranteeing workers.

Chapter IV

RESPONSIBILITIES OF STATE AGENCIES

Article 17. Responsibilities of the Ministry of Labor, Invalids, and Social Affairs

1. Perform tasks and exercise powers as prescribed by law.

2. Direct the dissemination and popularization of the contents of this Decree and related legal documents to enterprises and workers; direct inspections and audits of enterprises to ensure compliance with the responsibilities stipulated in this Decree.

3. Coordinate with the Ministry of Foreign Affairs to guide the management of Vietnamese workers working abroad.

4. Coordinate with other ministries, sectors, provincial people's committees directly under the central government, and the competent authorities of enterprises to resolve issues arising from the management of Vietnamese workers working abroad.

5. Coordinate with Vietnamese representative offices abroad to negotiate with relevant authorities of the host country regarding the notification document specified in point a, Clause 1, Article 31 of this Decree, tailored to the requirements of each market.

Article 18. Responsibilities of the Ministry of Foreign Affairs

1. In collaboration with the Ministry of Labor, Invalids and Social Affairs, relevant ministries and sectors shall study and propose to the Government policies and guidelines in the field of sending Vietnamese workers abroad for employment; gather information to develop the market for sending Vietnamese workers abroad for employment; handle issues arising related to Vietnamese workers employed abroad.

2. Direct and guide Vietnamese representative offices abroad to implement consular and legal protection for Vietnamese citizens working abroad in accordance with current Vietnamese laws and international treaties to which Vietnam is a party.

Article 19. Responsibilities of the Ministry of Public Security

1. Direct public security forces at all levels to monitor organizations and individuals involved in the field of sending Vietnamese workers abroad for employment in order to prevent, detect, and promptly address violations of the law.

2. Coordinate with relevant ministries, sectors, and agencies to promote mass movements to participate in preventing, combating, and reporting crimes in the labor export sector.

3. Coordinate with Vietnamese representative offices abroad and the Ministry of Labor, Invalids and Social Affairs to direct competent authorities to promptly investigate and handle cases where there are signs of criminal activity as stipulated by law.

4. Coordinate with the Ministry of Labor, Invalids and Social Affairs and Vietnamese representative offices abroad in receiving Vietnamese workers who have been expelled from foreign countries or forced to return home according to this Decree.

Article 20. Responsibilities of the Ministry of Health

1. Designate healthcare facilities that meet the conditions to examine and certify the health of Vietnamese workers going abroad for employment.

2. Lead and coordinate with the Ministry of Labor, Invalids and Social Affairs and competent authorities of foreign countries to establish health conditions and standards for Vietnamese workers going abroad for employment suitable for each market.

3. Direct, inspect, audit, and handle violations by healthcare facilities in organizing health examinations for workers going abroad for employment in accordance with the law.

Article 21. Responsibilities of the Ministry of Finance

1. Lead and coordinate with the Ministry of Labor, Invalids and Social Affairs and relevant ministries and sectors to establish financial systems in the field of sending Vietnamese workers abroad for employment.

2. Coordinate with the Ministry of Foreign Affairs and the Ministry of Labor, Invalids and Social Affairs to guide financial mechanisms for Vietnamese representative offices abroad to bring Vietnamese workers back home according to this Decree.

Article 22. Responsibilities of Vietnamese Representative Offices Abroad

1. Study and understand the labor market, policies, and methods of accepting foreign workers in other countries to propose to the Government.

2. Guide enterprises to access markets and sign labor cooperation contracts in compliance with Vietnamese and local laws.

3. Support domestic specialized agencies in assessing the conditions and feasibility of labor reception contracts, and the legal status of foreign partners.

4. Guide and inspect the activities of Vietnamese enterprises' representatives abroad regarding their management responsibilities and handling issues arising with workers.

5. Protect the rights and legitimate interests of workers employed abroad; handle violations by Vietnamese workers employed abroad according to this Decree.

6. Report and recommend competent Vietnamese authorities to resolve cases involving serious violations of Vietnamese law.

7. Coordinate with Vietnamese and local functional agencies, and enterprises sending workers abroad, to repatriate workers who violate the law.

Article 23. Responsibilities of the People's Committee of provinces and centrally governed cities

1. Regularly organize propaganda, education, and dissemination of the State's policies and laws in the field of sending workers to work abroad.

2. Implement state management within its jurisdiction, define the responsibilities of workers' families towards workers going to work abroad; regularly inspect, audit, and promptly handle violations in the activities of sending workers to work abroad by enterprises in the locality.

3. Direct the People's Committees at all levels and specialized agencies of the locality to perform the following tasks:

a) Coordinate with enterprises in sourcing and introducing workers who have a sense of organizational discipline and comply well with legal regulations to participate in the recruitment process for working abroad;

b) Reward units, individuals, and families with outstanding achievements in the activity of sending workers to work abroad; publicly announce the list of those punished, creating social public opinion to criticize violators; mobilize the families of violating workers to encourage them to voluntarily return home.

Chapter V

HANDLING OF VIOLATIONS IN STATE MANAGEMENT IN THE ACTIVITY OF EXPORTING LABOR

Section 1

FORMS OF PENALTY AND TIME LIMIT FOR PENALTY

Article 24. Forms of penalty and measures to remedy consequences

1. For each act of administrative violation, the violating organization or individual must bear one of the following main forms of administrative sanction:

a) Warning;

b) Fine up to 20,000,000 (twenty million) Vietnamese dong.

2. Depending on the nature and degree of violation, administrative violator enterprises may be subject to supplementary penalties including suspension of the right to use the license for labor export operations for a limited period (three months or six months).

3. In addition to the main forms of penalty and supplementary penalties stipulated in Clause 1 and Clause 2 of this Article, organizations and individuals who violate may also be subject to the following remedial measures:

a) Temporarily suspend or terminate the implementation of contracts for sending workers to work abroad;

b) Organize the repatriation of Vietnamese workers according to the requirements of the host country or competent authorities of Vietnam;

c) Compensate for losses and bear all costs arising from the administrative violation;

d) Force workers who have been administratively penalized outside the country to return;

đ) Revoke the license for labor export operations.

Article 25. Time limit for administrative penalties

The time limit for administrative penalties for violations prescribed in this Decree is one year, counted from the date of the administrative violation; if beyond the aforementioned period, no penalty will be imposed but remedial measures stipulated in Clause 3 of Article 24 of this Decree will still be applied.

Section 2

VIOLATIONS, FORMS, AND AMOUNTS OF PENALTIES

Article 26. Handling of violations by enterprises

1. Warning or fine from 200,000 (two hundred thousand) Vietnamese dong to 500,000 (five hundred thousand) Vietnamese dong for enterprises committing one of the following acts:

a) Not reporting or not fully reporting the contents regarding units and organizations under the enterprise assigned tasks related to labor export activities;

b) Registering insufficient numbers of workers sent abroad for contracts already registered and approved by competent authorities;

c) Violating the provisions of Clause 1 of Article 9 of this Decree.

2. Fine from 5,000,000 (five million) Vietnamese dong to 10,000,000 (ten million) Vietnamese dong for enterprises and organizations committing one of the violations stipulated in Article 8, Clause 3 of Article 9, Article 10, and Article 11 of this Decree.

3. Fine from 10,000,000 (ten million) Vietnamese dong to 15,000,000 (fifteen million) Vietnamese dong for enterprises committing one of the following acts:

a) Violating the provisions of Article 5, Article 6, Article 7, and Clause 2 of Article 9 of this Decree;

b) Collecting selection fees from workers;

c) Not contributing to the labor export support fund as prescribed by law;

d) Not compensating for damages to workers due to breach of contract;

đ) Collecting and managing worker deposits in violation of regulations;

e) Collecting service fees for labor export in violation of regulations;

g) Not reporting to competent authorities before signing contracts for workers to engage in special occupations; signing contracts to accept large numbers of workers; contracts for sending workers to work in places where there are no Vietnamese workers or no Vietnamese representative offices abroad;

h) Neglecting responsibility in resolving disputes, harming the legitimate rights of workers.

4. Fine from 15,000,000 (fifteen million) Vietnamese dong to 20,000,000 (twenty million) Vietnamese dong for enterprises committing one of the following acts:

a) Conducting selection and organizing workers to go abroad without permission from competent authorities;

b) Violating the provisions of Clause 1 and Clause 2 of Article 4 of this Decree;

c) Exploiting the name of sending workers abroad to organize selection, training, and orientation education for improper profit;

d) Neglecting management responsibilities, seriously harming the interests of workers.

5. Additional forms of punishment:

In addition to the main form of penalty, depending on the level of violation, enterprises may have their licenses suspended for a limited period if they violate any of the provisions in Clause 2, Clause 3, point a, c, d of Clause 4 of this Article.

6. Measures to remedy consequences:

a) Enterprises are temporarily suspended from implementing contracts if they violate any of the provisions in point a, b, c, e, and h of Clause 3 of this Article.

b) Enterprises are suspended from implementing contracts if, after the temporary suspension period has ended, they still fail to remedy the consequences caused by the violation;

c) Enterprises have their labor export operation licenses revoked by authorized persons if they violate the provision in point b of Clause 4 of this Article or are administratively fined two or more times within twelve months;

d) Enterprises must organize the repatriation of workers according to the requirements of the host country or competent authorities of Vietnam;

đ) Enterprises must compensate for losses and bear all costs arising from the violation for workers.

Article 27. Handling violations by workers working abroad

1. A warning shall be imposed on workers who commit any of the violations stipulated in Clauses 5, 6, 7, and 9 of Article 4 of this Decree.

2. Workers subject to punishment under Clause 1 of this Article shall be required to take corrective measures and return to the country.

Section 3

AUTHORITY TO IMPOSE PENALTIES

Article 28. Authority to impose penalties for violations within the country

1. The Chairman of the People's Committee of provinces and centrally governed cities has the authority:

a) To issue warnings;

b) To impose fines up to 20,000,000 (twenty million) Vietnamese dong;

c) To apply remedial measures as prescribed in point đ, Clause 6, Article 26 of this Decree.

2. Labor inspectors performing their duties have the authority:

a) To issue warnings;

b) To impose fines up to 200,000 (two hundred thousand) Vietnamese dong.

3. The Chief Inspector of the Department of Labor Inspection has the authority:

a) To issue warnings;

b) To impose fines up to 20,000,000 (twenty million) Vietnamese dong.

4. The Chief Inspector of the Ministry of Labor has the authority:

a) To issue warnings;

b) To impose fines up to 20,000,000 (twenty million) Vietnamese dong;

c) To apply remedial measures as prescribed in points a, b, and đ, Clause 6, Article 26 of this Decree.

5. The Director of the Overseas Labor Management Department has the authority:

a) To issue warnings;

b) To impose fines up to 20,000,000 (twenty million) Vietnamese dong;

c) To apply supplementary penalties as prescribed in Clause 5, Article 26 of this Decree.

Those with authority as prescribed in Clauses 1, 2, 3, and 4 of this Article, when imposing penalties and finding it necessary to apply supplementary penalties as prescribed in Clause 5, Article 26 of this Decree, shall recommend the Director of the Overseas Labor Management Department to consider and decide.

d) To apply remedial measures as prescribed in points a, b, d, and đ, Clause 6, Article 26 of this Decree.

6. The Minister of Labor, Invalids, and Social Affairs shall consider and decide on revoking the license for labor export operations as prescribed in point c, Clause 6, Article 26 of this Decree upon the recommendation of those with authority as prescribed in Clauses 1, 4, and 5 of this Article.

Article 29. Authority to impose penalties for workers abroad

The head of Vietnam's representative offices abroad has the authority to decide administrative penalties and apply remedial measures against workers as prescribed in Article 27 of this Decree.

Section 4

PROCEDURES FOR IMPOSING PENALTIES AND ENFORCING DECISIONS ON PENALTIES

Article 30. Procedures for imposing penalties and enforcing decisions on penalties for violations within the country

For violations occurring within the country, the procedures for imposing penalties and enforcing decisions on penalties shall be applied according to the Administrative Violations Handling Ordinance 2002.

Article 31. Procedures for imposing penalties and enforcing decisions on penalties for violations abroad

1. Procedure for preparing the violation report

a) Upon receiving a notification from the competent authority of the host country or a notification from the employer regarding the worker's violation of the provisions of Clauses 5, 6, 7, and 9 of Article 4 of this Decree, diplomatic officials or consular officers in Vietnam's representative offices abroad shall be responsible for preparing the administrative violation report according to the prescribed model;

b) The administrative violation report must clearly state the date, month, year, and location where the report was prepared; the name, position of the person preparing the report; the name, address, occupation of the violator; the date, month, year, and location where the violation occurred; the act of violation; the statement of the violator (if available) or other Vietnamese workers working together;

c) The report must be prepared in at least three copies, signed by the person preparing the report, the violator, or the person confirming the violation as prescribed in point b of this clause (if available); if the report consists of multiple pages, each page must be signed. If the violator or the person confirming the violation refuses to sign, the person preparing the report must record the reason in the report. The completed report must be handed over to the violator one copy (if present).

2. Decision on penalty

a) The deadline for issuing a decision on penalty is ten days from the date of the administrative violation report; for cases with many complex circumstances, the latest deadline for issuing a decision on penalty is thirty days from the date of the administrative violation report.

If the person authorized to impose penalties fails to issue a decision on penalty due to negligence, they shall be handled according to Article 121 of the Administrative Violations Handling Ordinance 2002.

b) The decision on penalty must clearly state the date, month, year of issuance; the name, position of the person issuing the decision; the name, address, occupation of the violator; the act of violation; related circumstances in resolving the violation case; the article and clause of the applicable legal document; the main form of penalty, remedial measures; the deadline, place for enforcing the decision on penalty, and the signature of the person issuing the decision on penalty.

In the decision on penalty, it must also clearly state that if the violator does not voluntarily comply, they will be subject to compulsory enforcement; the right to appeal or initiate litigation against the administrative penalty decision according to the law.

c) The decision on penalty must be sent to the violator within three days from the date of issuance of the decision.

In cases where the residence of the violator cannot be determined, within three days from the date of issuance of the decision, the decision on penalty must be posted at Vietnam's representative office in the host country and sent to the Overseas Labor Management Department to notify relevant agencies and individuals.

d) The decision on penalty takes effect from the date of signing. In cases where the residence of the violator cannot be determined, the decision on penalty takes effect fifteen days from the date of posting at Vietnam's representative office in the host country.

3. Compliance with the decision on penalty

a) The violator must comply with the decision on penalty within thirty days from the date the decision on penalty takes effect;

b) Within the time limit prescribed in point a of this clause, if the violator does not voluntarily comply with the decision on penalty, within three days from the end of the voluntary compliance period, the person authorized to impose penalties shall issue a written notice about non-compliance with the decision on penalty, post the notice at Vietnam's representative office in the host country; send it to the Overseas Labor Management Department to notify relevant agencies and individuals.

c) After thirty days from the date of notification regarding non-compliance with the penalty decision specified in point b of this clause, if the person subject to punishment still fails to comply with the penalty decision, they may be held criminally responsible for the crime of illegally remaining abroad as provided for in Article 274 of the Penal Code.

4. Measures to ensure the implementation of the penalty decision

The Vietnamese representative agency abroad is responsible for issuing necessary documents for the person subject to punishment to return home in accordance with the law; coordinating with competent authorities of the host country, Vietnamese enterprises, and the family of the person subject to punishment to purchase air tickets for the person subject to punishment to return home in cases where the person subject to punishment lacks financial capability to purchase air tickets.

Section 5

APPEAL AND COMPLAINT

Article 32. Appeal and Complaint

Appeals and complaints, and their resolution in the field of sending workers to work abroad, shall be carried out in accordance with the laws on appeal and complaint.

Chapter VI

IMPLEMENTING PROVISIONS

Article 33. Effective Date

This Decree shall take effect fifteen days after its publication in the Official Gazette.

Repeal Article 17 of Decree No. 113/2004/NĐ-CP dated April 16, 2004 of the Government stipulating administrative penalties for violations of labor laws and other provisions contrary to this Decree.

Article 34. Implementation Organization

1. The Minister of Labor, Invalids and Social Affairs shall coordinate with relevant ministries and sectors to guide, organize the implementation, and bear responsibility for inspecting and urging the enforcement of this Decree.

2. Ministers, Heads of ministerial-level agencies, Heads of government-affiliated agencies, Chairpersons of provincial People's Committees under central cities are responsible for implementing this Decree./.