Circular No. 21/2007/TT-BLDTBXH provides detailed guidance on certain provisions of the Law on Vietnamese Workers Going Abroad under Contracts and Decree No. 126/2007/NĐ-CP dated August 1, 2007 of the Government detailing and guiding certain provisions of the Law on Vietnamese Workers Going Abroad under Contracts.

CIRCULAR

Detailed guidance on certain provisions of the Law on Vietnamese Workers Going Abroad under Contracts and Decree No. 126/2007/ND-CP dated August 1, 2007 of the Government detailing and guiding certain provisions of the Law on Vietnamese Workers Going Abroad under Contracts
going to work abroad under contracts and Decree No. 126/2007/ND-CP dated August 1, 2007 of the Government detailing and guiding certain provisions
of the Law on Vietnamese Workers Going Abroad under Contracts
The Law on Vietnamese Workers Going Abroad under Contracts

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Pursuant to the Law on Vietnamese Workers Going Abroad Under Contract dated November 29, 2006;

Pursuant to Decree No. 126/2007/ND-CP dated August 1, 2007 of the Government detailing and guiding certain provisions of the Law on Vietnamese Workers Going Abroad under Contracts;

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

The Ministry of Labour - Invalids and Social Affairs hereby details and guides the implementation of certain provisions of the Law on Vietnamese Workers Going Abroad under Contracts (hereinafter referred to as the Law) and Decree No. 126/2007/ND-CP dated August 1, 2007 of the Government detailing and guiding the implementation of certain provisions of the Law on Vietnamese Workers Going Abroad under Contracts (hereinafter referred to as Decree No. 126/2007/ND-CP) as follows:

I. LICENSE AND PROCEDURES FOR ISSUANCE AND RENEWAL OF LICENSE

The service license for sending workers to work abroad (hereinafter referred to as the License) is specified as follows:

a) Size of the License: one page, A4 size (dimensions: 210 x 297mm);

b) Characteristics of the License: printed on white hard paper with blue pattern, featuring an embossed national emblem and black border;

c) Main contents of the License include: National Emblem, name of the issuing authority, legal basis for issuance, full name of the License, License number, date of issuance, full name and trading name of the enterprise receiving the License, business registration certificate number, date of issue, place of issue, address, telephone number, fax number, electronic transaction address of the enterprise receiving the License, scope of service activities to be carried out, effective date of the License.

(Model of the License at Appendix No. 01 attached hereto)

The documents for issuance of the License shall be submitted to the Overseas Labour Management Department, including:

a) Enterprise's application for issuance of the License according to the model at Appendix No. 02 attached hereto;

b) Copy of Business Registration Certificate;

c) Documents proving compliance with capital requirements as prescribed;

d) Bank's confirmation of deposit from the commercial bank where the enterprise has deposited;

đ) Business plan for sending workers to work abroad as provided for in Article 4 of Decree No. 126/2007/ND-CP;

e) Curriculum vitae of the leader managing the activity of sending workers to work abroad accompanied by documents proving compliance with conditions as provided for in Clause 3 Article 9 of the Law;

g) Organizational plan (for enterprises participating in this activity for the first time) or report on the organizational structure for sending workers to work abroad and training facilities for workers before going abroad;

h) List of dedicated staff in the organizational structure for sending workers to work abroad, including: name, date of birth, position, professional qualifications, language proficiency, assigned tasks.

The documents for renewal of the License shall be submitted to the Overseas Labour Management Department, including:

a) Enterprise's application for renewal of the License according to the model at Appendix No. 03 attached hereto;

b) Previously issued License;

c) Copy of the renewed business registration certificate;

d) Documents proving compliance with capital requirements as prescribed;

đ) Curriculum vitae of the leader managing the activity of sending workers to work abroad accompanied by documents proving compliance with conditions as provided for in Clause 3 Article 9 of the Law;

e) Report on the organizational structure for sending workers to work abroad and training facilities for workers before going abroad;

g) List of dedicated staff in the organizational structure for sending workers to work abroad, including: name, date of birth, position, professional qualifications, language proficiency, assigned tasks;

h) Documents confirming contribution to the Overseas Employment Support Fund.

The documents for renewal of the License shall be submitted to the Overseas Labour Management Department, including:

a) Enterprise's application for renewal of the License according to the model at Appendix No. 04 attached hereto;

b) Previously issued License;

c) Copy of the business registration certificate;

d) Report on the results of sending workers to work abroad by the enterprise in 2007;

đ) Documents proving compliance with capital requirements as prescribed;

e) Documents confirming contribution to the Export Labour Support Fund as prescribed in Decree No. 81/2003/ND-CP dated July 17, 2003 of the Government detailing and guiding the implementation of the Labour Code regarding Vietnamese workers working abroad;

h) Bank's confirmation of deposit from the commercial bank where the enterprise has deposited;

i) Curriculum vitae of the leader managing the activity of sending workers to work abroad accompanied by documents proving compliance with conditions as provided for in Clause 3 Article 9 of the Law;

j) Report on the organizational structure for sending workers to work abroad and training facilities for workers before going abroad;

k) List of dedicated staff in the organizational structure for sending workers to work abroad, including: name, date of birth, position, professional qualifications, language proficiency, assigned tasks.

The enterprise providing services to send workers abroad (hereinafter referred to as the service enterprise) shall pay the fee for issuing and renewing the Permit at the Overseas Labor Management Department upon receiving the Permit.

6. Report on Change of Leader Managing the Activity of Sending Workers to Work Abroad (Clause 3 Article 9 of the Law):

When there is a change in the leadership responsible for sending workers abroad, the service enterprise must report in writing to the Overseas Labor Management Department along with a brief resume of the new person assigned to lead the activities of sending workers abroad and documents proving compliance with the conditions stipulated in Clause 3 Article 9 of the Law.

7. Procedures for Returning and Revoking the License (Clause 1 and Clause 2 Article 15 of the Law):

a) Procedure for Resubmitting the Permit: Within ten days from the date of the decision to terminate operations pursuant to points a and b Clause 1 Article 15 of the Law, the service enterprise must notify in writing the Overseas Labor Management Department of the termination of operations, resubmit the issued Permit to the Overseas Labor Management Department, and report on ongoing contracts, the number of workers currently working abroad, the number of workers selected for ongoing contracts, contributions made by selected workers to work abroad, the contribution to the Overseas Employment Support Fund, and plans to fulfill responsibilities under ongoing contracts.

After fulfilling obligations to the State as prescribed by law and responsibilities towards workers under signed contracts, the service enterprise must report in writing to the Overseas Labor Management Department about the completion of these obligations, accompanied by documents proving the fulfillment of these obligations. The Overseas Labor Management Department will review and issue a document allowing the enterprise to withdraw the deposit according to the law.

b) Procedure for Revoking the Permit: Within fifteen days from the date the Minister of Labor, Invalids, and Social Affairs issues the decision to revoke the Permit, the service enterprise must resubmit the issued Permit to the Overseas Labor Management Department and report on ongoing contracts, the number of workers currently working abroad, the number of workers selected for ongoing contracts, contributions made by selected workers to work abroad, the contribution to the Overseas Employment Support Fund, and plans to fulfill responsibilities under ongoing contracts.

After fulfilling obligations to the State as prescribed by law and responsibilities towards workers under signed contracts, the service enterprise must report in writing to the Overseas Labor Management Department about the completion of these obligations, accompanied by documents proving the fulfillment of these obligations. The Overseas Labor Management Department will review and issue a document allowing the enterprise to withdraw the deposit according to the law.

II. ANNOUNCEMENT REGARDING ASSIGNMENT OF TASKS, CHANGE, AND TERMINATION OF ASSIGNMENT OF TASKS FOR BRANCHES (Article 16 of the Law)

1. Announcement regarding the assignment of tasks for branches of service enterprises to provide services for sending workers abroad:

Within fifteen days from the date of assigning tasks for the branch to carry out activities of sending workers abroad, the service enterprise must notify in writing the Overseas Labor Management Department and the Department of Labor, Invalids, and Social Affairs where the branch is located about the following contents: full name, address, phone number, fax number, email address of the branch; name of the head of the branch, tasks assigned to the branch for sending workers abroad, and the scope of authority granted to the branch.

The report must be accompanied by the Decision of the enterprise assigning tasks to the branch to carry out certain activities of sending workers abroad, a copy of the Decision establishing the branch, a copy of the Business Registration Certificate of the branch, a document authorizing the branch to collect service fees, brokerage fees, and deposits from workers (if applicable), and a list of key personnel at the branch responsible for sending workers abroad including their names, years of birth, positions, professional qualifications, language proficiency, and tasks assigned to them at the branch.

2. Announcement regarding changes or termination of assignments of tasks for branches of service enterprises to provide services for sending workers abroad:

In cases where there is a change in the head of the branch, the content of the assigned tasks, the scope of authority granted to the branch, the location of the branch's headquarters, or the termination of the assignment of tasks for the branch to provide services for sending workers abroad, the enterprise must notify in writing the Overseas Labor Management Department and the Department of Labor, Invalids, and Social Affairs where the branch is located about the changes and plans to resolve any issues arising from these changes.

3. Reporting Requirements for Branches:

The branch of the service enterprise must report to the Department of Labor, Invalids, and Social Affairs where the branch is located on the implementation of assigned tasks before June 20th and December 20th each year, and submit special reports as required by the Department of Labor, Invalids, and Social Affairs.

III. ORGANIZATION OF STATE ACTIVITIES TO SEND WORKERS ABROAD (Article 39 of the Law)

1. Notification regarding the assignment of tasks to state organizations for sending workers abroad:

The Minister, the Head of a ministry equivalent to a ministry, or the Head of a government agency must notify in writing the Ministry of Labor, Invalids, and Social Affairs about the assignment of tasks to subordinate state organizations for sending workers abroad, accompanied by the Decision assigning tasks and documents proving compliance with the conditions stipulated in Clause 1 and Clause 3 Article 39 of the Law.

2. Notification regarding changes in the leadership responsible for sending workers abroad in state organizations:

When there is a change in the person leading and managing the activity of sending workers to work abroad, the organization conducting such activities must report in writing to the Overseas Labor Management Department along with the curriculum vitae of the new person assigned to lead and manage the activity of sending workers to work abroad, and documents proving that they meet the conditions stipulated in Clause 3 of Article 39 of the Law.

IV. REGISTRATION PROCEDURES FOR CONTRACTS

1. Documents and procedures for registering labor supply contracts of service enterprises (Articles 18 and 19 of the Law):

1.1. The registration documents for labor supply contracts include:

a) A registration document for labor supply contracts according to the form attached as Appendix No. 05 to this Circular;

b) A copy of the labor supply contract, with a Vietnamese translation;

c) Documentation proving that sending workers to work abroad complies with the laws of the receiving country, with a Vietnamese translation;

d) Implementation plan for the labor supply contract;

đ) Other relevant documents for each market as prescribed.

1.2. Registration procedures for labor supply contracts:

The enterprise submits the registration documents for labor supply contracts to the Overseas Labor Management Department.

Within ten days from the date of receipt of complete and valid documents, the Overseas Labor Management Department must respond in writing to the enterprise, stating the reasons if it does not approve.

2. Documents and procedures for registering internship labor reception contracts of enterprises sending workers to work abroad under the skill enhancement internship program (Articles 36 and 37 of the Law):

2.1. The registration documents for internship labor reception contracts include:

a) An internship labor reception contract registration document according to the form attached as Appendix No. 06 to this Circular;

b) A copy of the internship labor reception contract, with a Vietnamese translation;

c) Documentation proving that sending workers to work abroad complies with the laws of the receiving country;

d) A copy of the Business Registration Certificate;

đ) A deposit confirmation letter issued by a commercial bank where the enterprise has deposited the funds.

2.2. Registration procedures for internship labor reception contracts:

Enterprises sending workers to work abroad under the skill enhancement internship program submit the registration documents for implementing internship labor reception contracts to the Overseas Labor Management Department for contracts lasting ninety days or more, and to the Department of Labor, Invalids, and Social Affairs at the location of the enterprise's main office for contracts lasting less than ninety days.

Within ten days from the date of receipt of complete and valid documents, the Overseas Labor Management Department or the Department of Labor, Invalids, and Social Affairs must respond in writing to the enterprise, stating the reasons if it does not approve.

3. Documents and procedures for registering individual contracts (Article 52 of the Law):

3.1. The registration documents for individual contracts include:

a) An individual contract registration application according to the form attached as Appendix No. 07 to this Circular;

b) A copy of the individual contract, with a Vietnamese translation certified by a translation organization;

c) A copy of the identity card or passport;

d) A resume with confirmation from the People's Committee of the commune, ward, town where the worker usually resides, or from the agency, organization, unit managing the worker, and comments on the worker's compliance with the law and moral character.

3.2. Registration procedures for individual contracts:

Within five days from the date of receipt of complete and valid documents, the Department of Labor, Invalids, and Social Affairs at the place of residence of the worker must issue a confirmation certificate for the registration of individual contracts according to the form attached as Appendix No. 08 to this Circular, stating the reasons in writing if it does not approve.

The Department of Labor, Invalids, and Social Affairs is responsible for managing the files of workers going to work abroad under individual contracts.

4. Extension and signing of new contracts (Clause 5 of Article 46 and Point đ of Clause 1 of Article 53 of the Law):

After completing the term of employment abroad according to the contract signed with a service enterprise or the employer (in the case of workers going to work abroad under individual contracts), if Vietnamese workers extend their stay or sign a new employment contract with the employer in the host country without returning to Vietnam as required by the laws of the receiving country, they must report to the Vietnamese diplomatic or consular mission in the host country about the extension or signing of a new employment contract.

V. SELECTION AND MANAGEMENT OF LABOR

1. Selection of workers to go to work abroad (Point b and c of Clause 2 of Article 27 of the Law):

a) When organizing the selection of workers, service enterprises and branches of service enterprises entrusted with the task of sending workers to work abroad must publicly post at their headquarters the following contents: number of workers needed, gender, age, job duties, workplace, contract duration, health, skills, language requirements, costs that workers must contribute to go work abroad, basic rights and obligations of workers during their time working abroad.

b) When selecting workers in local areas, service enterprises and branches of service enterprises entrusted with the task of sending workers to work abroad must present the Permit and notify the Department of Labor, Invalids, and Social Affairs, district, commune authorities where the service enterprise selects workers about the plan and conditions for selecting workers including the contents specified in point a of this clause.

c) Service enterprises must commit to workers regarding the waiting period for departure after the workers are selected to go work abroad.

During the period committed by the service enterprise, if the worker no longer wishes to work abroad, the service enterprise must return the dossier to the worker, and the worker shall bear the costs incurred by the service enterprise for processing the worker's overseas employment procedures, including: application fees, health examination fees, training course fees, study material fees, food and accommodation expenses during the necessary knowledge training period, entry procedure fees (visa).

If beyond the committed period, the service enterprise has not yet sent the worker to work abroad, it must clearly inform the worker of the reasons. In case the worker no longer wishes to work abroad, within fifteen days from the date of notification that the worker does not wish to work abroad, the service enterprise must refund the worker's dossier, the fees paid by the worker to the enterprise, including: application fees, training course fees, entry procedure fees (visa), airfare, service fees, brokerage fees, and processing fees for refunding the worker's deposit.

2. Entering into a Contract to Send Workers Abroad (point b, Clause 1, Article 27 of the Law):

a) The service enterprise must enter into a contract with the worker at least five days before the worker's departure and be responsible for managing the worker's dossier;

b) The service enterprise may only collect service fees and brokerage fees from the worker after signing the Contract to Send Workers Abroad with the worker and after the worker has been accepted for employment abroad or granted an entry visa (visa).

3. Terminating the Contract to Send Workers Abroad (points đ, Clause 1 and point i, Clause 2, Article 27, point e, Clause 2, Article 41 of the Law):

a) The termination of the Contract to Send Workers Abroad between the service enterprise and the organization and the worker must be documented in writing;

b) The termination document must include: reasons for terminating the contract, performance of obligations by both parties, payments between the service enterprise and the organization and the worker, other agreed contents;

c) In cases where the service enterprise unilaterally terminates the contract, the termination record must include: reasons for unilateral termination of the contract, performance of obligations by both parties, payments between the service enterprise and the worker, compensation content (if any) accompanied by evidence proving the content of the loss;

d) The refund of the worker's deposit when terminating the Contract to Send Workers Abroad shall be carried out according to the guidelines of the Ministry of Labor - Invalids and Social Affairs - State Bank of Vietnam;

đ) The termination of the Guarantee Contract when terminating the Contract to Send Workers Abroad shall be carried out according to the guidelines of the Ministry of Labor - Invalids and Social Affairs - Justice;

4. Managing and Protecting the Rights and Legitimate Interests of Workers (points đ and g, Clause 2, Article 27 of the Law):

a) Within fifteen days from the date the worker departs to work abroad, the service enterprise must report a list of workers working abroad according to Form 09 attached to this Circular to the Vietnamese diplomatic and consular agencies in the host country;

b) The service enterprise is responsible for appointing management staff in countries or regions where many workers are sent to work or in special labor markets as stipulated by the Overseas Labor Management Department;

c) The service enterprise is responsible for monitoring the implementation of the Employment Contract between the worker and the employer, promptly resolving issues exceeding the worker's self-resolution capacity or when the worker requests assistance.

VI. REPORTING REGIME (Clause 12, Article 8 of Decree 126/2007/NĐ-CP)

1. Reporting regime of the service enterprise:

a) Prepare a list of workers going to work abroad and a list of workers returning home or leaving the contract prematurely according to Form 10 and Form 11 attached to this Circular and send it to the Overseas Labor Management Department before the 20th of each month;

b) Submit an annual report on the situation of sending workers abroad along with the financial report on the operation of sending workers abroad according to Form 13 attached to this Circular to the Overseas Labor Management Department before December 20th each year;

c) Report the number of workers selected to work abroad in localities to the Overseas Labor Management Department and the Provincial Department of Labor - Invalids and Social Affairs where the enterprise selects workers according to Form 14 attached to this Circular before June 20th and December 20th each year;

2. Reporting regime of organizations sending workers abroad:

a) Prepare a list of workers going to work abroad and a list of workers returning home or leaving the contract prematurely according to Form 10 and Form 11 attached to this Circular and send it to the Overseas Labor Management Department before the 20th of each month;

b) Submit an annual report on the situation of sending workers abroad to the ministry, agency equivalent to a ministry, or agency under the Government directly managing the organization and the Overseas Labor Management Department before December 20th each year.

3. Reporting regime of enterprises winning bids, accepting bids, organizations, and individuals investing abroad:

a) At least twenty days before sending workers abroad, prepare a list of workers entering into the Contract to Send Workers Abroad according to Form 15 attached to this Circular and send it to the Overseas Labor Management Department;

b) Submit an annual report on the situation of sending workers abroad to the Overseas Labor Management Department before December 20th each year.

4. Reporting regime of enterprises sending workers abroad for advanced skill enhancement internships:

a) Within no later than five days from the date the worker departs the country, prepare a list of workers going to work abroad under registered contracts according to the form at Appendix 16 attached to this Circular and send it to the Department of Overseas Labor Management or send it to the Department of Labor, Invalids, and Social Affairs where the labor internship acceptance contract was registered (for contracts with a duration of less than ninety days);

b) Report on the situation of workers going to work abroad after completing the labor internship acceptance contract according to the form at Appendix 17 attached to this Circular and send it to the Department of Overseas Labor Management or send it to the Department of Labor, Invalids, and Social Affairs where the labor internship acceptance contract was registered (for contracts with a duration of less than ninety days).

5. Reporting system of the Department of Labor, Invalids, and Social Affairs:

a) Prepare a list of workers registering to go to work abroad under individual contracts according to the form at Appendix 12 attached to this Circular and a list of workers going to work abroad under labor internship acceptance contracts registered locally quarterly and send it to the Department of Overseas Labor Management before the twentieth day of the last month of each quarter;

b) Report the number of workers from the locality selected and sent to work abroad and the situation of sending workers to work abroad in the locality to the Department of Overseas Labor Management before December 20th each year.

VII. IMPLEMENTATION

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

2. This Circular replaces Circular No. 22/2003/TT-BLDTBXH dated October 13, 2003 guiding the implementation of certain provisions of Decree No. 81/2003/NĐ-CP dated July 17, 2003 of the Government detailing and guiding the implementation of the Labor Code regarding Vietnamese workers working abroad.

3. During the implementation process, if there are any difficulties, individuals and organizations are requested to promptly reflect them to the Ministry of Labor, Invalids, and Social Affairs for research and resolution./.