Circular No. 28/1999/TT-BLDTBXH guiding the implementation of Decree No. 152/1999/NĐ-CP dated September 20, 1999 of the Government on the matter of Vietnamese workers and experts going to work abroad for a limited period.

CIRCULAR

Guiding the Implementation of Decree No. 152/1999/ND-CP

dated September 20, 1999 of the Government on the matter of Vietnamese workers and experts going to work abroad for a limited period

chuyên gia Việt Nam đi làm việc có thời hạn ở nước ngoài

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Pursuant to Decree No. 152/1999/ND-CP dated September 20, 1999 of the Government on the matter of Vietnamese workers and experts going to work abroad for a limited period, the Ministry of Labor, Invalids and Social Affairs guides the implementation as follows:

I- CONDITIONS AND PROCEDURES FOR ISSUING LICENSES AND REGISTERING CONTRACTS

1. Conditions and procedures for issuing licenses for specialized businesses to send Vietnamese workers and experts to work abroad for a limited period as stipulated in Article 5 of the Decree:

a- Conditions for issuing licenses for specialized businesses:

Types of enterprises: State-owned enterprises; state-owned enterprises converted into joint-stock companies under Decree No. 44/1998/ND-CP dated June 29, 1998 of the Government where the state retains controlling shares or special shares; enterprises belonging to central organizations including: the Communist Youth Union of Ho Chi Minh, the General Confederation of Labor of Vietnam, the Central Women's Union of Vietnam, the Central Farmers' Union of Vietnam, the Central Council of the Vietnam Cooperative Federation, and the Vietnam Chamber of Commerce and Industry established in accordance with the law shall be considered for issuance of specialized business licenses when meeting the following conditions:

- Having a registered capital of at least one billion Vietnamese dong at the time of applying for the license;

- The management and operation system must have at least 50% of staff with a bachelor's degree or higher and proficiency in foreign languages. Leaders and management staff must have clear records, not having been convicted of criminal offenses; they must understand the labor market, labor laws, immigration laws of the receiving country, and relevant international laws;

- Relevant documents (if available) regarding the ability to conclude contracts and implement sending workers to work abroad for a limited period.

b- Documents for applying for a specialized business license:

- Application form for a license confirmed by the head of the enterprise's supervising agency (according to Form No. 1);

- Financial report on profit and loss confirmed by the state auditing agency or tax authority at the time of applying for the license;

- Economic feasibility study on the business's operational capacity including contents such as material infrastructure and financial capability; the level and capability of the direct staff; the ability to exploit overseas markets; organizational measures confirmed by the supervising agency;

- A copy of the decision to establish the enterprise and the decision to supplement functions certified by a state notary office, or a certified true copy from the issuing agency;

- Curriculum vitae of the General Director or Director of the enterprise and a list of key staff (according to Form No. 2 and Form No. 3).

c- Documents for applying for additional functions or establishing new enterprises:

- Document from the head of the ministry, sector, central organization, or the Chairman of the People's Committee of a provincial-level city proposing;

- Confirmation document from the financial agency at the ministry, sector, or provincial level regarding the enterprise's registered capital and financial report confirmed by the auditing or tax authority at the time of applying for the license;

- Economic feasibility study on the business's operational capacity as prescribed in Clause b, Point 1, Section I of this Circular.

d- Procedure and formalities:

- The documents specified in Clause b and c, Point 1, Section I of this Circular shall be prepared by the enterprise or the founding agency and submitted in one set to the Overseas Labor Management Department. Within fifteen days (excluding public holidays and weekends) from the date of receipt of the complete application, the Overseas Labor Management Department must notify the result.

- When receiving the specialized business operation license (according to Form No. 4), the enterprise must pay a fee of 10,000,000 (ten million) Vietnamese dong at the Overseas Labor Management Department.

- Within thirty days from the date of issuance of the specialized business operation license, the enterprise must publish at least once in a local newspaper and once in a national newspaper in three consecutive issues with the main information as follows:

+ Name, type of enterprise, headquarters address, telephone number, fax number; function of the enterprise;

+ Name and position of the General Director or Director of the enterprise;

+ Registered capital at the time of obtaining the license;

+ License number, issue date, start date of operations according to the license.

2- Contract Registration:

a- Objectives:

- Enterprises as stipulated in Clause 1, Article 6 of Decree No. 152/1999/ND-CP dated September 20, 1999 of the Government that have labor supply contracts, construction project subcontracting contracts, joint ventures, or joint operation contracts sharing products abroad must register their contracts with the Overseas Labor Management Department.

- Workers and experts (hereinafter referred to collectively as workers) who have individual contracts signed with foreign partners must register their contracts with the Department of Labor, Invalids and Social Affairs of the province where they reside. For some individual contracts related to the health, education, and training sectors, the Department of Labor, Invalids and Social Affairs will handle them based on coordination with the relevant sectoral agencies.

- Workers sent abroad by enterprises who are still working there upon expiration of their contracts, if they extend their contracts or sign new ones, must register with the representative of the sending enterprises in that country (if present) or with the sending enterprises.

- Workers currently in another country not sent by enterprises, if they extend their contracts or sign new ones, must register with the Vietnamese representative agency in that country.

- Contracts signed between Vietnamese enterprises and foreign organizations and individual contracts (referred to collectively as contracts) must include the following basic contents: number of workers, labor structure; industry (work performed), place of work, working hours, rest time; wages, bonuses, overtime pay system; working conditions and living conditions, food and accommodation expenses; travel expenses from Vietnam to the place of work and vice versa; social insurance; labor protection; service fees, training fees, selection fees (if any); responsibilities for handling disputes or special incidents that occur and the duration of contract implementation.

b- The registration dossier for contracts includes:

- For enterprises:

+ One copy of the contract registration form (according to Form No. 5);

+ A copy of the contract and copies of related documents concerning the acceptance of workers by the receiving country (certified by the enterprise's head);

+ Report on the implementation of the previous contract (if any);

+ Enterprises without a specialized business license must provide a document proving their financial capability at the time of contract registration;

Enterprises undertaking construction projects or joint venture contracts abroad must submit a copy of the contract with comments confirmed by the head of the Ministry, sector, Chairman of the Provincial People's Committee, or city directly under the Central Government.

- Workers dispatched by enterprises whose contracts have been extended or who have signed new contracts:

+ Application for extension of work abroad (according to Form No. 8A);

+ A copy of the extended labor contract or a new labor contract.

- For individual contracts:

+ Registration certificate for working abroad, certified by the People's Committee of the commune, ward, town where the worker's permanent residence is registered or confirmed by the authority where the worker is employed, sent to the Department of Labor, Invalids and Social Affairs (according to Form No. 6);

+ A copy accompanied by a notarized translation of the labor contract or a copy of the document accepting work with content similar to the labor contract, approved by the competent authority of the destination country.

- Workers under individual contracts abroad whose contracts have been extended or who have signed new contracts:

+ Application for extension of work abroad (according to Form No. 8B);

+ Copy of passport and old labor contract;

+ A copy of the extended contract or new labor contract (certified by the employer).

c- Procedure and formalities for contract registration:

- For enterprises:

+ The contract registration dossier is submitted to the Overseas Labor Management Agency.

+ Within 3 days for enterprises with a specialized business license and within 7 days (excluding public holidays and weekly rest days) for non-specialized enterprises, from the date of receipt of the complete contract registration dossier, if there is no notification from the Overseas Labor Management Agency, the enterprise is permitted to organize recruitment and handle procedures for workers to work abroad.

+ For new markets and markets without Vietnamese representative offices, enterprises must report to the Overseas Labor Management Agency about the signed contracts before registering the contract at least 5 days prior.

- For workers with individual contracts:

The contract registration dossier is directly submitted to the Department of Labor, Invalids and Social Affairs of the place of permanent residence. The Department of Labor, Invalids and Social Affairs issues the worker a Registration Acceptance Certificate (according to Form No. 7), while sending one copy to the provincial police and retaining one copy at the Department of Labor, Invalids and Social Affairs. Within 3 days (excluding public holidays and weekly rest days) from the date of receipt of a valid contract registration dossier, if the Department of Labor, Invalids and Social Affairs does not issue any comments, the worker can proceed with exit procedures. For individual contracts related to Health, Education and Training sectors, the contract review period shall not exceed 5 days (excluding public holidays and weekly rest days) from the date of receipt of a valid contract registration dossier.

- Workers whose contracts have been extended or who have signed new contracts:

The contract registration dossier is submitted to the enterprise's representative in the destination country or to the dispatching enterprise. Within 10 days (excluding public holidays and weekly rest days) from the date of receipt of a valid contract registration dossier, the enterprise will examine and process it. If there is no response from the enterprise within this period, the worker has the right to implement the contract.

- Workers under individual contracts abroad whose contracts have been extended or who have signed new contracts:

The dossier is submitted to the Vietnamese representative office in the host country. Within 5 days (excluding public holidays and weekly rest days), if the representative office does not issue any comments, the worker may implement the contract.

II- WORKER SELECTION

1- Principles of Selection:

a- Recruitment can only be conducted after the deadline specified in Clause c, Point 2, Section I of this Circular.

b- If recruiting workers from other units or localities, the enterprise must present a permit to operate in this field issued by the labor supply unit or the Department of Labor, Invalids and Social Affairs.

c- The enterprise reserves approximately 10% of the number of workers according to the signed contract for selecting children of martyrs, war invalids, families meritorious to the revolution, soldiers, and volunteers who have completed their duties.

d- It is prohibited to sign contracts to send Vietnamese workers to work in professions or areas listed in Appendix 1 attached to this Circular.

2- Recruitment Process:

a- Before recruitment, the enterprise must publicly announce at its headquarters and recruitment area the requirements regarding gender, age; the job the worker will perform, place of work, and contract duration; working and living conditions; wages, remuneration; contributions and levels thereof, rights and obligations of the worker.

b- The enterprise conducts direct recruitment; at the latest, within 5 days from the date of the worker's application, the enterprise must publicly announce the results to the worker.

c- After 6 months from the date of successful recruitment, if the enterprise has not yet dispatched the worker, it must clearly inform the worker of the reasons.

d- The enterprise signs a contract with a hospital designated by the Health Sector to conduct health examinations for workers. The enterprise can only recruit those who are deemed fit for work based on the hospital's conclusion.

3- The recruitment dossier includes:

a- A voluntary application to work abroad for a fixed term (with personal and family commitments);

b- A curriculum vitae with confirmation from the People's Committee of the commune, ward, town where the applicant usually resides, or the personnel management unit of the organization;

c- A health certificate with conclusions from the hospital specified in Clause d, Point 2, Section II of this Circular;

d- Other necessary documents as required by the foreign party.

III- TRAINING AND ORIENTATION EDUCATION

Training and orientation education for workers before departure is a mandatory requirement. Enterprises are responsible for organizing training and orientation courses at vocational schools and training centers (referred to as training institutions).

1- Foreign language study:

Workers must participate in concentrated foreign language courses according to the program designed for workers going to work abroad.

2- Orientation education includes the following contents:

- Labor Law, Criminal Law, Civil Law, Exit-Entry Law and Residence Law of Vietnam and the laws of the receiving country, obligations to comply with and adhere to the laws;

- Customs, traditions, working conditions and living habits, relationships between employer and employee in the receiving country, communication experience;

- The content of the contract that the enterprise has signed with the foreign partner and the content of the contract to be signed with the worker; rights, obligations, and legal responsibilities of the worker in fulfilling the commitments recorded in the contract;

- Responsibilities of the enterprise towards the worker; responsibilities of the worker towards the enterprise;

- Discipline and industrial work style. Regulations and norms on labor safety in factories, farms, and on marine transportation vessels and fishing boats.

3- Training program and duration:

- For workers: regulated by the Department of Overseas Labor Management.

- For experts: regulated by the relevant ministry or sector.

- For officers and sailors working on marine transport vessels: regulated by the Maritime Administration.

4- Examination and issuance of certificates for workers:

Training institutions are responsible for organizing examinations, evaluating quality, issuing training and orientation education certificates.

IV- MANAGEMENT WORK

1- Domestic management:

a- Signing contracts to work abroad:

- The enterprise signs a contract with the worker (according to Model No. 9) and is responsible for managing the worker's file.

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

b- Employment records, social insurance books:

- The enterprise must manage the employment records and social insurance books of the workers. If they do not have them, the enterprise must apply for issuance at the Department of Labor, Invalids and Social Affairs and the social insurance agency in the area where the enterprise is located. The enterprise is responsible for confirming the work history, salary, and social insurance contributions of the worker during their time abroad according to current social insurance laws.

- In cases where workers go abroad under individual labor contracts, the Department of Labor, Invalids and Social Affairs is responsible for processing the issuance of employment records and social insurance books for the workers.

c- Contract termination:

- The enterprise is responsible for terminating the contract with the worker upon their return to the country. The termination content includes: Returning the employment record and social insurance book confirmed fully; settling all related payments between the enterprise and the worker; processing the transfer back to the original unit or place of residence and implementing policies and benefits (if any) according to the contract and state regulations.

- Workers returning from individual labor contracts must process their return at the Department of Labor, Invalids and Social Affairs where the contract was registered.

2- Overseas management:

- The enterprise is directly responsible for managing the workers it sends abroad. Enterprises with many workers working abroad may establish representative offices or appoint representatives to manage in the receiving country.

- Enterprise staff sent to manage labor abroad must have good moral character, professional qualifications, and language skills to meet the tasks of monitoring and supervising the implementation of signed contracts; handling labor disputes and issues related to workers until the completion of the repatriation of workers.

- The enterprise must report in writing about the dispatch of staff for management (accompanied by a curriculum vitae of the dispatched person) to the Department of Overseas Labor Management and the Vietnamese representative office in the receiving country, and be subject to state management by the Vietnamese representative office in the receiving country.

- Issues arising from workers abroad exceeding the scope of authority must be reported immediately in writing to the competent authority for guidance, the Vietnamese representative office in the receiving country, and the Department of Overseas Labor Management.

- The enterprise must prepare a list of Vietnamese workers (according to Model No. 10) and send it to the Vietnamese representative office in the receiving countries and the Department of Overseas Labor Management.

3- Reporting system:

a- Enterprises, units under central ministries and sectors, Departments of Labor, Invalids and Social Affairs must report regularly every three months, six months, and annually before the 15th day of the last month of each quarter (according to Model No. 11) to the Department of Overseas Labor Management.

b- In case of sudden incidents (law violations; labor disputes; accidents; deaths...), enterprises must immediately report to the competent authority, the Vietnamese representative office in the receiving country, and the Department of Overseas Labor Management.

V- COMPLAINTS, REPORTS, AND DISPUTE RESOLUTION:

1- All complaints and reports from workers, enterprises, organizations, and individuals related to the implementation of contracts and sending workers to work abroad shall be resolved in accordance with the Vietnamese Law on Complaints and Reports.

2- Disputes arising between workers and Vietnamese enterprises:

- Disputes arising shall be resolved based on the overseas employment contracts signed between the two parties and the provisions of Vietnamese law; first, both parties must negotiate and mediate in respect of each other's rights and interests. In cases where the parties cannot reach an agreement, one party may request the court to resolve the dispute in accordance with the current Vietnamese laws.

- Disputes arising from labor relations with overseas contracting enterprises, joint ventures, associations... shall be resolved under Vietnamese labor law.

3- Disputes between workers and the enterprise owners in the receiving country:

Workers shall negotiate and make representations through Vietnamese enterprises (or representatives of Vietnamese enterprises abroad) with the counterparties for consideration and resolution based on the signed contracts and the laws of the receiving country. If unresolved, they shall promptly report to the Vietnamese representative agency in the receiving country for intervention and resolution.

4- Disputes involving multiple parties:

Enterprises have the responsibility to proactively coordinate with related parties to examine and resolve disputes, while reporting to their supervisory agencies and the Vietnamese representative agency in the receiving country, and the Overseas Labor Management Bureau for coordination in resolving disputes.

VI- REWARD AND DISCIPLINE FOR VIOLATIONS

1. Rewards:

Industries, localities, enterprises, social organizations, individuals; foreign organizations and individuals who have many achievements in sending Vietnamese workers to work abroad shall be commended and rewarded by the Ministry of Labor, Invalids and Social Affairs according to their authority or recommended by the State for commendation in the following forms:

- Certificate of Merit, Medal, Badge of Honor for the Labor-Invalids and Social Affairs Cause;

- Commendation by the Prime Minister;

- Labor Order;

- Friendship Order.

2. Administrative Violation Handling:

a- Enterprises violating the provisions of Decree No. 152/1999/NĐ-CP dated September 20, 1999 of the Government shall be punished according to Clause 1, Article 21 of Decree No. 38/CP dated June 25, 1996 of the Government on administrative penalties for violations of labor laws, specifically:

- Violating Point 2, Section II; Section III; Clause a, Point 1, Section IV of this Circular.

- Collecting money improperly, collecting money through intermediaries;

- Causing workers to flee at a rate of 5% or more compared to the total number of workers sent abroad under each contract due to subjective reasons;

- Failing to timely address disputes, resulting in adverse consequences;

In addition to the above penalties, depending on the nature and severity of the violation, enterprises will be subject to other measures as prescribed by the Administrative Violations Handling Ordinance, including:

- Temporary suspension or cessation of contract implementation;

- Temporary suspension of the business license for specialized activities of sending workers to work abroad for six months or one year from the date of the decision;

- Revocation of the business license;

- If causing damage to workers, compensation must be provided according to the law;

b- Workers violating the provisions of Decree No. 152/1999/NĐ-CP dated September 20, 1999 of the Government shall be punished according to the provisions of Clause 1, Article 21 of Decree No. 38/CP dated June 25, 1996 of the Government on administrative penalties for violations of labor laws, specifically:

- Violating the contracts signed with Vietnamese enterprises and the agencies, organizations, or employers of the receiving country;

- Illegal strikes in the receiving country;

- Organizing, inciting, coercing others to violate contracts or participate in illegal strikes;

- Violating Vietnamese law or the law of the receiving country.

In addition to the above penalties, depending on the nature and severity of the violation, other measures will be applied as prescribed by the Administrative Violations Handling Ordinance, including:

- Being ordered to return home, bearing all travel, accommodation costs... without refund of deposit. The enterprise shall notify in writing the People's Committee of the locality where the worker usually resides and the worker's family.

- Not being eligible for re-recruitment to work abroad.

VII - IMPLEMENTATION ORGANIZATION

1- Enterprises that have been granted licenses to send workers to work abroad under Decree No. 07/CP dated January 20, 1995 of the Government shall exchange new licenses within three days from the date of receipt of valid application files.

2- The Overseas Labor Management Bureau, the Inspectorate of Labor Policy and Social Affairs under the Ministry of Labor, Invalids and Social Affairs, and the Departments of Labor, Invalids and Social Affairs shall organize inspections and audits of the dispatching of workers and experts abroad in accordance with the law. If violations that cause adverse effects are discovered, they shall be handled and recommendations made for handling according to the law, depending on the degree of violation.

3- Ministries, sectors, central management agencies, provincial and municipal authorities directly under the Central Government have the responsibility to direct and manage the activities of enterprises within their jurisdiction; At the same time, they shall cooperate with relevant ministries and sectors to promptly resolve emerging issues.

4- This Circular takes effect fifteen days from the date of signature; abolishing Circular No. 20/LĐTBXH-TT dated August 3, 1995 and previous regulations inconsistent with this Circular.

5- During the implementation process, if there are any difficulties, please reflect them to the Ministry of Labor, Invalids and Social Affairs for research and resolution.