Subjects and process of entering into labor contracts for foreigners working in Vietnam

by Admin

09/05/2022

Documentation & Knowledge

Subjects and process of entering into labor contracts for foreigners working in Vietnam

 

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The transfer of labor between countries is an inevitable trend of globalization; in that context, Vietnam is considered as one of the countries that attracts foreign workers to live and work, especially high-qualified and managerial workers. In particular, when the Labor Code 2019 and Decree No. 152/2020/NĐ-CP took effect, regulations on foreigners working in Vietnam, leading to new issues generating in the process of entering into labor contracts with them.

Therefore, Dai Ha Thanh Law Firm would like to provide several notes related to the subjects and process of entering into labor contracts with foreigners working in Vietnam as follows:

1. Subjects entering into foreigners' labor contracts in Vietnam

The conditions on the subject capacity of foreign workers to enter into labor contracts are prescribed by Vietnamese Labor Code, including the following requirements

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Thereby, it can be seen that these are the most basic requirements for foreigners who want to work in Vietnam through a labor contract, ensuring that foreign workers are legal; therefore, they have the capacity to collaborate for a long time while simultaneously being  eligible to devote themselves to the Vietnamese market. Failing to meet the aforementioned requirements while intentionally entering into a labor contract, especially the work permit provision is illegal, may lead to legal risks, as well as being responsible before the law.

Employers to be able to enter into contracts with foreign labors are specified in Article 2.2 of Decree 152/2020/ND-CP, including:

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The above subjects must be registered, established and operated in accordance with Vietnam's regulations or international treaties (if any). The subjects of employers in Decree 152/2020/ND-CP have been expanded compared to the previous Decree 11/2016/ND-CP, accordingly, the subject "international organizations in Vietnam" added. In addition, the working conditions of foreign employers' units must be consistent with the provisions of the Vietnamese Labor Code.

2. The process of entering into contracts for foreigners working in Vietnam

The process of recruiting foreign workers in Vietnam is detailed in the Labor Code 2019 and Decree 152/2020/ND-CP. We would like to provide the general process of recruiting foreign workers based on the above legal documents, particularly as follows:


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Stage 1: Apply for approval of demand and confirm the need for foreign workers

a. For non-contractor employers

At least 30 days before the expected date of employment of foreign workers, the employer is responsible for determining the need to employ foreign workers for each job position that the Vietnamese employees fail to meet employers' requirements and report to the Ministry of Labor, Invalids and Social Affairs or the People's Committee of the province where the foreign worker is expected to work.

       b. For contractor employers

Before recruiting foreign workers, the contractor is responsible for declaring the number, qualifications, professional capacity, and experience of the foreign workers to be recruited to execute the bidding package in Vietnam and request the recruitment of Vietnamese laborers to work positions expected to recruit foreign workers with the President of the People's Committee of the province where the contractor implements the bidding package.

Provincial People's Committee president directs the introduction, supply or coordinatione in introducing and supplying Vietnamese workers to contractors. Within a maximum of 02 months from the date of receipt of a request to recruit from 500 Vietnamese employees or more and a maximum of 01 month from the date of receiving a request to recruit from 100 to less than 500 Vietnamese employees and 15 days from the day on which the request for recruitment of less than 100 Vietnamese workers is received, but fails to introduce or supply Vietnamese workers to the contractor, the President of the provincial People's Committee shall consider and decide whether the contractor is eligible recruiting foreign workers to positions where Vietnamese workers cannot be recruited.

The cases that not require to determine the demand for foreign workers:

  1. Is the manager of a representative office, project or the person in charge of the operation of an international organizations or a foreign non-governmental organization in Vietnam.
  2. Enters Vietnam for a period of less than 03 months to do marketing of a service.
  3. Enters Vietnam for a period of less than 03 months to a resolve a complicated technical or technological issue which (i) affects or threatens to affect business operation and (ii) cannot be resolved by Vietnamese experts or any other foreign experts currently in Vietnam.
  4. He/she is the owner or capital contributor of a limited liability company with a capital contribution value of at least 3 billion dong.
  5. He/she is the Chairperson or a member of the Board of Directors of a joint-stock company with a capital contribution value of at least 3 billion dong.
  6. He/she enters Vietnam to hold the position of a manager, executive, expert or technical worker for a period of work of less than 30 days and up to 3 times a year.
  7. He/she enters Vietnam to implement an international agreement to which a central or provincial authority is a signatory as per the law.
  8. He/she is a student studying at a foreign school or training institution which has a probation agreement with an agency, organization or enterprise in Vietnam; or a probationer or apprentice on a Vietnam sea-going ship.
  9. He/she is a relative of a member of foreign representative body in Vietnam.
  10. He/she obtains an official passport to work for a regulatory agency, political organization, or socio-political organization.
  11. He/she takes charge of establishing a commercial presence.

Stage 2: Apply for a Work Permit

a. Files to apply for a Work Permit

For foreign workers who subject to Work Permits, an application for a Permit includes:

(1) The employer's written request for a work permit;

(2) The health certificate is valid for 12 months from the date of signing the health conclusion to the date of filing;

(3) Judicial record cards are issued within 06 months from the date of issuance to the date of filing;

(4) Documents and papers proving expertise and work, including: (a) managers, executive directors; (b) experts, technical workers; (c) foreign football players; (d) pilot an aircraft; (e) aircraft maintenance; (f) qualified seafarers; (g) other sports fields; (h) education (including basic education, higher education, vocational education, foreign language education and informatics);

(5) 02 color photos (4cm x 6cm in size, white background, straight face, bare head, not wearing colored glasses), photos taken within 06 months from the date of application;

(6) Written approval of the need to employ foreign workers;

(7) Certified copy of valid passport;

(8) Other documents related to the foreign worker;

(9) Dossier of application for a work permit for some special cases.

The papers in Sections 2, 3, 4, 6 and 8 are 01 original or a certified copy. If they are created from a foreign country, they must be consular legalized (except for the case of exemption from consular legalization according to Articles of Consular Legalization in the international treaties between states). These papers must be translated into Vietnamese and authenticated/notarized in accordance with Vietnamese law.

b. Authority and procedures for granting work permits

The authority to grant a work permit belongs to the Ministry of Labor - Invalids and Social Affairs or the Department of Labor - Invalids and Social Affairs where the foreign worker is expected to work. Accordingly, within 05 working days from the date of receipt of complete dossiers of application for work permits, the above agencies shall grant work permits to foreign workers. In case the work permit is not granted, a written reply clearly stating the reason.

c. Maximum duration of a Work Permit

The term of the Work Permit is based on the term of the labor contract expected to be signed, however, it can only be granted for a maximum of 2 years. After the expiration of the Work Permit, the employer shall renew it (when it is still valid for at least 5 days but not more than 45 days) and re-sign the labor contract in accordance with regulations. provisions of the law.

Work permit exemption for foreign employees in Vietnam:

  1. He/she is the owner or capital contributor of a limited liability company with a capital contribution value of at least 3 billion dong.
  2. He/she is the Chairperson or a member of the Board of Directors of a joint-stock company with a capital contribution value of at least 3 billion dong.
  3. He/she Is the manager of a representative office, project or the person in charge of the operation of an international organizations or a foreign non-governmental organization in Vietnam.
  4. Enters Vietnam for a period of less than 03 months to do marketing of a service.
  5. Enters Vietnam for a period of less than 03 months to a resolve complicated technical or technological issues which (i) affects or threatens to affect business operation and (ii) cannot be resolved by Vietnamese experts or any other foreign experts currently in Vietnam.
  6. Is a foreign lawyer who has been granted a lawyer’s practicing certificate in Vietnam in accordance with the Law on Lawyers.
  7. In one of the cases specified in an international treaty to which the Socialist Republic of Vietnam is a signatory.
  8. Gets married with a Vietnamese citizen and wishes to reside in Vietnam.
  9. He/she enters Vietnam to provide professional and engineering consulting services or perform other tasks intended for research, formulation, appraisal, supervision, evaluation, management and execution of programs and projects using ODA.
  10. He/she is granted a communication and journalism practicing certificate in Vietnam by the Ministry of Foreign Affairs as per the law.
  11. He/she is sent by a foreign competent authority or organization to Vietnam to teach and study at an international school under management of a foreign diplomatic mission or the United Nations; or of a facility established under an agreement to which Vietnam is a signatory.
  12. He/she is a volunteer.
  13. He/she enters Vietnam to hold the position of a manager, executive, expert or technical worker for a period of work of less than 30 days and up to 3 times a year.
  14. He/she enters Vietnam to implement an international agreement to which a central or provincial authority is a signatory as per the law
  15. He/she is a student studying at a foreign school or training institution which has a probation agreement with an agency, organization or enterprise in Vietnam; or a probationer or apprentice on a Vietnam sea-going ship.
  16. He/she is a relative of a member of foreign representative body in Vietnam.
  17. He/she obtains an official passport to work for a regulatory agency, political organization, or socio-political organization.
  18. He/she takes charge of establishing a commercial presence.
  19. He/she is certified by the Ministry of Education and Training as a foreign worker entering Vietnam for teaching and research purposes.

Stage 3: Signing the labor contract

After the foreign worker is granted a permit, the employer must sign a written labor contract with the employee before the expected working date. The employer must send the original or a certified copy of the signed labor contract to the agency that has issued the work permit.

Above is the advice of Dai Ha Thanh Law Firm regarding the subject and process of entering into a contract with foreigners working in Vietnam. If you need detailed advice, please liaise with us for timely and effective assistance.

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