LEGAL UPDATE

On 30 December 2020, the Government issued Decree No. 152/2020/ND-CP regulating foreign workers working in Vietnam and recruiting, managing Vietnamese employees working for foreign organizations and individuals in Vietnam replacing Decree No. 11/2016/ND-CP issued on 3 February 2016 detailing a number of Article of Labor Code regarding foreign workers working in Vietnam and Decree No. 75/2014/ND-CP issued on 28/07/2014 detailing a number of Article of Labor Code regarding recruiting, managing Vietnamese workers working for foreign organizations or individuals in Vietnam. Accordingly, the new Decree was issued with the following notable points:

1.Amending expert certification cases

The newly issued Decree has abolished the case of certification as an expert when “There is a document certifying that he/she is an expert of an overseas agency, organization or enterprise“.

In addition, point b Clause 3 of Article 3 has added the case of expert certification when “Having at least 5 years of experience and practicing certificate in accordance with the job position the foreign worker is expected to work for in Vietnam.”

2. Amending provisions on the deadline for handling the written explanation of demand for foreign workers regulated at Article 4 of the Decree

The competent authorities shall approve or disapprove in writing of the employment of foreign workers for each job position within 10 working days from date of receipt of the report on explanation or the report on explanation of demand for foreign workers instead of 15 days as the current regulations.

3. Detailing the implementation of report for utilization of foreign workers

In particular, Article 6 of the Decree has regulated:

Before July 5 and January 5 of the following year, the foreign employer shall make a report for the first 6 months of the year and annually on the employment of foreign workers according to the form attached to this Decree. The closing time of the first 6 months of reporting is from December 15 of the year prior to the reporting period to June 14 of the reporting period, the annual reporting period is from December 15 of the year prior to the reporting period to December 14 of the reporting period.

Before July 15 and January 15 of the following year or unexpectedly at request, the Dolisa shall report to the Molisa on the situation of domestic workers outside work in the locality according to the form issued together with this Decree. The time for closing the first 6 months and annual report data shall comply with the Government’s regulations on reporting regime of state administrative agencies.

4. Adding cases that are ineligible for issuing Work Permits regulated at Article 7 of the Decree

• Be the owner or capital contributor of a limited liability company with a capital contribution value of VND 3 billion or more;
• Be the Chairman of the Board of Directors or a member of the Board of Directors of a joint stock company with capital contribution of 3 billion VND or more;
• Being certified by the Ministry of Education and Training that foreign workers enter Vietnam to teach and research,

5. Amending the time for conducting procedures to confirm that the foreign worker is not required to be issued a work permit regulated at Article 8 of the Decree.

Accordingly, the new Decree stipulates that the employer must carry out procedures to confirm that the foreign worker is not required to be issued a work permit at least 10 days in advance from the date the foreign worker starts working instead of 7 working days according to current regulations.

In addition, for cases where the foreign worker is not certified, the employee must be reported to the competent authority at least 03 days in advance from the date of the foreign worker. start to work.

6. Adding the following bolded documents in the application for certification not subject to work permit regulated at Article 8 of the Decree

a) A written request for certification that the foreign worker is not required to be granted a work permit using the Form issued together with this Decree;

b) A medical certificate or medical certificate

c) The written approval of demand for foreign workers, except for cases where the need to use foreign workers is not required;

d) A certified copy of the passport that is still valid in accordance with the law;

e) Documents proving that the foreign worker is not required to be issued a work permit;

f) The documents specified at Points b, c and dd of this Clause are 01 original or authenticated copy, if foreign, they must be legalized, translated into Vietnamese and certified unless exempt from consular legalization under international treaties to which the Socialist Republic of Vietnam and the foreign country concerned are both members or on the principle of reciprocity or according to the provisions of law.

In addition, the deadline for processing dossiers to request certification of not subject to work permit is also changed from 03 working days according to current regulations to 05 working days under the new Decree

7. Adding document in the case of application for a work permit to a foreign worker that has been granted a work permit, which is still in validity and wishes to work for another employer at the same job position and the same job title as stated in the work permit regulated at Article 9 of the Decree

Accordingly, the application for a work permit must include an additional “confirmation from the previous employer that the employee is currently working”.

8. Adding documents regulating on consular legalization and paper authentication regulated at Article 9.10 of the Decree

Regarding documents of foreign enterprises sending to work in commercial presence of foreign enterprises in the territory of Vietnam Document proving that the foreign worker has been recruited by that foreign enterprise at least 12 consecutive months before working in Vietnam is 01 original or certified true copy, if it is from the foreign country, it must be consular legalized, except for cases of consular legalization exemption under international treaties to which the Socialist Republic of Vietnam and the foreign country concerned are both members or on the principle of reciprocity or according to the provisions of law; translated into Vietnamese and authenticated in accordance with Vietnamese law

9. Amending the regulations on the labor contract submission to the competent authority regulated at Article 11 of the Decree

The new Decree requires that employers shall send the required signed contract to the authority that issued the work permit. However, there is no specific deadline for the submission of this labor contract instead of within 05 working days from the date of signing the labor contract as currently regulated.

10. Adding bolded conditions for the extension of work permits are added regulated at Article 16 of the Decree as follows:

• Work permit issued is valid for at least 05 days but not more than 45 days;
• The demand for foreign workers is approved by the competent authority;
• Documents proving that the foreign worker continues to work for the employer according to the contents of the work permit issued;

In particular, the work permit is only extended once for a period not exceeding 02 years

11. Regulating in detail regarding the dossier and procedureres for renewal of work permits regulated at Article 17 and Article 18 of the Decree as follows:

– Application file for renewal of work permits:

• The written request for extension of the work permit of the employer;
• 02 color photos (4cm x 6cm, white background, straight face, bare head, no colored glasses), taken within 06 months from the date of submission;
• Issued valid work permit;
• A written approval of demand for foreign workers, except for cases where the need to use foreign workers is not required;
• A certified copy of the passport is valid as prescribed by law;
• Medical or health certificate;
• One of the documents proving that the foreign worker continues to work for the employer according to the contents of the work permit issued;

– Procedures for renewal of work permits:

• The time limit for the extension of a work permit is changed within 05 working days from the date of receiving the complete dossier instead of 03 working days according to the current regulations.
• For foreign workers working under a labor contract, after the foreign worker is granted an extension of the work permit, the employer and the foreign worker must sign a labor contract in writing according to the provisions of Vietnamese labor law before the expected date of continuing to work for the employer. The employer must send the signed labor contract upon request to the competent authority

12. Adding case of work permit revocation regulated at Article 20 of the Decree

The foreign worker, while working in Vietnam, fails to comply with the law of Vietnam, affecting social security, order and safety.

13. Regulating in detail regarding procedure of work permit revocation regulated at Article 21 of the Decree

• In case the work permit expires, within 15 days from the date the work permit expires, the employer shall revoke the work permit of the foreign worker to return it to the agency that was issue such work permit together with a document clearly stating the reason for revocation, in case it is subject to revocation but cannot be revoked.
• For the case of the employer or the foreign worker not complying with the provisions of this Decree or the foreign worker during the time working in Vietnam fails to comply with the law of Vietnam, affecting this social security, order and safety, the agency that has issued the work permit shall issue a decision to revoke the work permit and notify the employer to revoke the work permit of the foreign worker and return it to the agency that issued the work permit.
• Within 05 working days from the day on which the revoked work permit is received, the competent authority shall send a written confirmation of revocation of the work permit to the employer

14. Supplement regulations on recruitment and management of Vietnamese employees working for foreign organizations and individuals in Vietnam

“Including provisions on:

• Competence to recruit and manage Vietnamese employees working for foreign organizations and individuals;
• Application for registration for recruitment of Vietnamese employees;
• Order and procedures for recruiting Vietnamese workers to work for foreign organizations and individuals;
• Responsibilities of Vietnamese employees working for foreign organizations and individuals;
• Responsibilities of organizations competent to recruit and manage Vietnamese employees;
• Responsibilities of employment service organizations and labor hiring enterprises.”