DECREE

STIPULATING THE SENDING OF VIETNAMESE SPECIALISTS AND LABORERS ABROAD TO WORK FOR A DEFINITE TIME

THE GOVERNMENT

Pursuant to the September 30, 1992 Law on Organization of the Government;
Pursuant to Articles 18, 134, 135 and 184 of the Labor Code of June 23, 1994;
At the proposal of the Minister of Labor, War Invalids and Social Affairs,

DECREES

Chapter I

GENERAL PROVISIONS

Article 1.- The sending through development of international cooperation, of Vietnamese laborers and specialists (excluding officials and employees prescribed in the Ordinance on Public Employees who are sent abroad for official missions or duties by competent agencies and organizations) abroad to work for a given period of time is a socio-economic activity which help develop human resources, create jobs and incomes for and raise the professional skills of laborers, increase the national revenues and enhance the cooperative relations between Vietnam and other countries in the world.

...

...

...

1. The Government encourages Vietnamese agencies, organizations and individuals within and without the country to participate through their activities in the search for and generation of employment overseas in compliance with international laws, the laws of Vietnam and the countries which employ Vietnamese laborers.

2. Laborers and specialists (hereinafter referred collectively to as the laborers) shall be sent to work overseas for a definite time in the following forms:

a) Through Vietnamese enterprises which have contracts for project construction joint ventures or product-sharing partnership in foreign countries and/or make overseas investment;

b) Through Vietnamese enterprises which provide services on labor supply.

c) Under labor contracts signed by individual laborers directly with labor users overseas.

3. The laborers must not work overseas in the prohibited areas and must not perform jobs on the lists of those banned under the Vietnamese law.

4. The sending of laborers to work overseas for a definite time in the forms prescribed in Clause 2 of this Article must be based on contracts as prescribed in this Decree and the laws of the labor-using countries and at the same time must comply with the basic principles of Vietnamese laws.

Article 3.- Enterprises sending laborers abroad to work for a definite time in the forms prescribed at Points a and b of Clause 2, Article 2, this Decree, include:

1. Enterprises licensed to conduct such specialized business operation.

...

...

...

Article 4.- The Ministry of Labor, War Invalids and Social Affairs shall assist the Government in performing the unified management over the sending of Vietnamese laborers overseas to work for a definite time.

Chapter II

PROCEDURES FOR LICENSING THE SPECIALIZED BUSINESS OPERATION AND REGISTERING CONTRACTS FOR SENDING LABORERS OVERSEAS TO WORK FOR A DEFINITE TIME

Article 5.-

1. Vietnamese enterprises which satisfy all following conditions shall be considered for the granting of licenses for the specialized business operation of sending laborers overseas to work for a definite time:

a) Being State enterprises, enterprises of the Central Committees of the Ho Chi Minh Communist Youth Union, the Vietnam Women’s Union, the Vietnam Confederation of Labor, the Vietnam Peasants' Association, the Central Council of the Vietnam Union of Cooperatives, the Vietnam Chamber of Commerce and Industry;

b) Having the charter capital of VND1 billion or more;

c) At least 50% of its officials who manage and administer the operation of sending laborers to work overseas have acquired the university degree or higher and know foreign language(s) in order to work directly with foreign partners. The enterprise�s leader(s) and managerial cadres must have transparent life stories and have not been criminally convicted;

d) Having documents which prove its capability to conclude contracts and to send laborers to work overseas.

...

...

...

a) The application for the license to conduct the specialized business operation;

b) Documents evidencing the capital and financial situation of the enterprise at the time of application for the license, with certification of the competent financial body;

c) The economic feasibility study report on the operation of the enterprise in the field of sending Vietnamese laborers to work overseas, with comments of the head of its managing agency (head of the ministry, branch, central-level mass organization of president of the People's Committee of the province or centrally-run city, which is the managing agency of the enterprise).

d) The decision on establishment of the enterprise conducting specialized business of sending laborers to work overseas.

For the establishment of new enterprises engaged in such specialized business or the addition of the function of sending laborers to work overseas to the already established enterprises, the heads of ministries, branches, central bodies of mass organizations or presidents of the People's Committees of the provinces and centrally-run cities shall have to consult in writing with the Ministry of Labor, War Invalids and Social Affairs before issuing the decisions thereon.

3. The dossiers of application for specialized business licenses shall be addressed to the Ministry of Labor, War Invalids and Social Affairs. The time limit for considering the granting of a license shall not exceed 15 days after fully receiving the valid dossiers prescribed in Clause 2, this Article; the specialized business licensing fee shall be VND10,000,000 (ten million).

Article 6.-

1. Enterprises shall register their contracts at the Ministry of Labor, War Invalids and Social Affairs according to the following regulations:

a) The enterprises with licenses for the specialized business operation shall have to register their contracts at least three days before the recruitment of laborers for overseas labor is organized.

...

...

...

c) The dossiers of contract registration of an enterprise shall include:

- The copy of the contract already signed with the foreign party;

- For in enterprise which has no license for the specialized business prescribed in Clause 2, Article 3, this Decree, there must be document evidencing its financial capability to ensure the contract performance, by the time of contract registration, with certification of the competent financial body.

2. Laborers going to work under the labor contracts signed by individuals with employers overseas shall have to register such contracts at the provincial/municipal Labor, War Invalids and Social Affairs Services of the localities where they reside.

The dossiers of application for registration of individuals' labor contracts shall include:

- The application for working overseas, with certification by the commune/ward People's Committee of the concerned laborer's residence. For persons who are working at non-business units or production and business establishments, the certification by such units and establishments is also required;

- The copy of the labor contract or the copy of the document on accepting the laborer by the foreign party.

3. Where he/she deems that a contract sent for registration fails to meet all necessary conditions prescribed by the Ministry of Labor, War Invalids and Social Affairs or violates the provisions of this Decree, the Minister of Labor, War Invalids and Social Affairs shall decide the temporary suspension or cessation of the performance of the contract signed with the foreign party.

Chapter III

...

...

...

Article 7.-

1. Vietnamese citizens aged full 18 years or older, who volunteer to work overseas and satisfy all criteria and conditions required by the contracts signed with foreign parties, shall be entitled to be sent overseas for working, excluding the following persons:

a) State officials and employees who are working in the State's administrative agencies, the people-elected bodies or socio-political organizations;

b) Officers, non-commissioned officers and men of the People's Army and the People's Police, who are still on active service;

c) Persons who are yet permitted to exit under the current law provisions.

2. Dossiers submitted to enterprises by individuals shall include:

a) The application for working overseas;

b) The curriculum vitae with certification by the commune/ward/district town People's Committee or by the agency, unit which manages the applicant;

c) The health certificate;

...

...

...

e) Other papers requested by the foreign party (if any).

Article 8.- The laborers who go to work overseas through labor supply enterprises shall have the following rights and interests:

1. To be provided with adequate and accurate information on employment, dormitories and working places, contract terms, working and living conditions, wages, bonuses, extra-work payment, insurance regimes and other necessary information before signing the contracts for working overseas;

2. To have their legitimate rights and interests protected by Vietnamese diplomatic missions and consulates in foreign countries;

3. To enjoy privileges in sending their incomes in foreign currency(ies) as well as equipment and raw materials back to the country for investment in the development of production and business under Vietnam’s current policies and laws;

4. To complain or denounce to the competent State bodies of Vietnam about violations of labor contracts by enterprises which have sent laborers to work overseas; to complain to the competent State bodies of the host country(ies) about the violations of labor contracts by employers;

5. To sign contracts for working overseas with enterprises which send laborers to work overseas, sign contracts with employers in foreign countries and enjoy the benefits inscribed in the signed contracts.

6. To participate in the social insurance regimes according to the current provisions of Vietnamese laws;

7. To receive back the deposit amounts and the interests thereon after fulfilling the overseas labor contracts and returning home.

...

...

...

1. To strictly observe the term in the signed contracts for working overseas and the labor contracts, the regulations on working and activities in the work places;

2. To pay service charges to enterprises which send them to work overseas as prescribed in Clause 2, Article 12 of this Decree;

3. To pay deposits to enterprises which send laborers to work overseas in order to ensure the performance of the contracts for working overseas:

4. To pay income tax according to the current law provisions. In case of working in countries which have signed with Vietnam agreements to avoid the double taxation, only to fulfill the income tax obligation prescribed in such agreements;

5. To pay the social insurance premiums according to the current law provisions;

6. To participate in courses on vocational training and guidance before being sent to work overseas;

7. Not to abandon or organize other laborers to abandon the labor contracts already signed with the employers in order to take up jobs at other places;

8. To be self-responsible for the damage caused by their breaches of the contracts or laws to the enterprises which send them to work overseas and to the foreign parties according to the laws of Vietnam and the host country(ies):

9. To strictly abide by the State's regulations of management of Vietnamese citizens, working overseas and be subject to the management by the Vietnamese diplomatic missions in the host countries;

...

...

...

Article 10.-

1. The laborers who go to work overseas under the individual contracts for overseas labor shall have the rights, interests and obligations prescribed in Clauses 2, 3, 4 and 6 of Article 8, and Clauses 1, 4, 5, 6, 7, 8. 9 and 10 of Article 9, of this Decree; be entitled to carry abroad or bring home necessary personal working tools without having to pay taxes.

2. The laborers who go to work overseas in forms stated at Point a, Clause 2, Article 2, shall have the rights, interests and obligations prescribed in Clause 1, 2, 3, 4 and 6, Article 8, and Clauses 1, 4, 5, 6, 7, 8, 9 and 10, Article 9, of this Decree.

Article 11. -

1. The laborers who go to work overseas in forms stated at Points a and b, Clause 2, Article 2 of this Decree, when their contracts expire and if they are permitted to extend their contract and continue working overseas or they wish to make new contracts shall have to register with the enterprises which have sent them for filling in procedures and be entitled to the rights, interests and obligations prescribed by this Decree.

2. The laborers working overseas who are not the subjects mentioned in Clause 1 of this Article shall have to register their lawful labor contracts, if any, with the Vietnamese representations in such countries according to the provisions on contract registration and shall be entitled to the rights, interests and obligations prescribed in Clause 1, Article 10 of the Decree.

Chapter IV

RIGHTS AND OBLIGATIONS OF ENTERPRISES WHICH SEND VIETNAMESE LABORERS TO WORK OVERSEAS FOR A DEFINITE TIME

Article 12.- The enterprises with specialize business licenses shall have the following rights:

...

...

...

2. To collect service charges in support of the enterprises' operation at the rate of not exceeding 12% of the wage of a contractual laborer, and particularly for officers and crew members working onboard the sea-shipping vessels, not exceeding 18% of the wage of a contractual laborer;

3. To receive deposits of laborers as prescribed in Clause 1, Article 19 of this Decree. The deposit reception must be clearly inscribed in the contracts for sending laborers to work overseas;

4. To sign decisions on sending laborers to work overseas, who are recruited by the enterprises according to the registered numbers, which serve as basis for the competent Police office to issue passports to laborer;

5. To initiate lawsuits at courts in order to request laborers to compensate for damage caused by the breaches of contracts in accordance with the provisions of law;

6. To request the overseas Vietnamese missions and relevant State bodies to provide information on overseas labor markets and to protect the legitimate interests of enterprises.

7. To enjoy the State support in vocational, technical, technological and foreign-language trainings for laborers as well as in fostering and raising the qualifications of the enterprises' personnel engaged in the management of activity of sending laborers to work overseas.

Article 13.- The enterprises having specialized business licenses shall have the following obligations:

1. To register contracts, organize the sending of laborers to work overseas in strict accordance with the provisions of this Decree and relevant legislation

of the State;

...

...

...

3. To strictly observe contracts signed with foreign countries, to ensure all rights and interests of the laborers under the terms of the contracts signed with the laborers and with the foreign parties;

4. Within 15 days after receiving the deposit money of laborers, the enterprises shall have to transfer the entire collected deposit money into their accounts opened at the State Treasuries in the localities where the enterprises are headquartered and notify this in writing to the Ministry of Labor, War Invalids and Social Affairs;

5. To collect social insurance premiums from the laborers for remittance to the competent functional bodies according to the provisions of law;

6. To prioritize the recruitment of subjects entitled to preference policies under the guidance of the Ministry of Labor, War Invalids and Social Affairs.

7. To organize the sending, management and return home of laborers and protect their legitimate interest during their working overseas. To promptly and adequately supply information on the numbers and work places of the Vietnamese laborers to the Vietnamese representations in countries where the enterprises’ laborers are working. To be subject to the direction of the overseas Vietnamese representations in settling arising matters related to laborers sent abroad by the enterprises;

8. Where a laborer gets an accident or an occupational disease or dies overseas, the concerned enterprise shall have to assume the prime responsibility and coordinate with the foreign party, the functional bodies of Vietnam and the host country for timely solution, ensuring the legitimate interests of the laborer;

9. Not to send laborers to do jobs or to work in areas in foreign countries, which are on the lists of banned jobs and areas as stipulated by the Ministry of Labor, War Invalids and Social Affairs;

10. To keep and make certification in the labor books and social insurance books of the laborers sent to work overseas according to the current regulations of the State;

11. To compensate for damage caused to laborers by the enterprises or the foreign parties due to the latter's breaches of contracts, according to the laws of Vietnam and the host countries;

...

...

...

13. To observe the regime of quarterly, bi-annual, annual and extraordinary reports according to the guidance of the Ministry of Labor, War Invalids and Social Affairs.

Article 14.-

1. The enterprises shall have to directly recruit laborers according to the requirements set by the labor-using parties in foreign countries in strict accordance with the provisions of Vietnamese laws. Enterprises may cooperate with other units or localities in preparing sources of laborers for preliminary selection and have to publicize the recruitment criteria and other matters related to the laborers when they work overseas.

2. Where enterprises recruit laborers at other units or localities, they must produce their specialized business licenses to the labor supplying units or the provincial/municipal Labor, War Invalids and Social Affairs Services.

3. Enterprises shall have to stipulate the time limits for recruitment and carry out the procedures for the laborers going to work overseas. Where the time limit expires and the laborers have not yet been sent overseas to work, the reasons therefor must be notified to the laborers. Upon the expiry of such time limit, if a laborer has no demand for working overseas, the concerned enterprise shall have to pay back the entire amount of money already spent by such laborer according to regulation and agreement reached with the enterprise.

Article 15.- Enterprises shall nominate their representatives overseas to manage and protect the interests of laborers working overseas, to inquire into and develop the labor markets. Cadres nominated to be the enterprises’ representatives overseas must be the persons possessed of good virtues, professional capabilities and qualifications and acquiring foreign language(s) required by their work. The staff and powers of the overseas laborer-managing apparatuses shall be decided by the enterprises provided that they comply with the laws of Vietnam and the host countries.

Article 16.- Enterprises having no specialized business licenses but the labor supply contracts compatible to their production and/or business lines prescribed in Clause 2, Article 3 of this Decree, when sending laborers to work overseas, shall have the rights and obligations prescribed in Clauses 1, 2, 3, 4, 5 and 6, Article 12 and Article 13 of this Decree.

When sending laborers to work overseas, enterprises shall have to prioritize the recruitment of laborers working at the enterprises. Where the enterprises' laborers are not enough, they may recruit laborers into the enterprises so as to send them to work overseas.

Article 17.- Enterprises which have contracts for project construction, joint ventures or product-sharing partnership in foreign countries or make investment overseas, when taking laborers to work abroad, shall have the rights and obligations prescribed in Clauses 4, 5 and 6, Article 12, and Clauses 1, 2, 3, 5, 6, 7, 8, 9, 10, 11 and 13, Article 13, of this Decree and pay the management fees to the Ministry of Labor, War Invalids and Social Affairs as prescribed by the Ministry of Finance and the Ministry of Labor, War Invalids and Social Affairs, shall be entitled to take abroad and bring home necessary production machinery and equipment relating to the performance of the contracts signed with the foreign parties without having to pay taxes is prescribed by Vietnamese law, implement regimes for the laborers according to the provisions of labor legislation of Vietnam and pay renumeration to the laborers in collected foreign currency(ies), if any.

...

...

...

RESPONSIBILITIES OF MINISTRIES, BRANCHES AND LOCALITIES IN SENDING VIETNAMESE LABORERS TO WORK OVERSEAS FOR A DEFINITE TIME

Article 18.- The Ministry of Labor, War Invalids and Social Affairs shall have the responsibilities to:

1. Negotiate and sign governmental agreements on labor cooperation with foreign countries under the authorization of the Prime Minister.

2. Determine the norms for annual and five-year plans on sending laborers to work overseas; coordinate with other ministries, branches, central mass organizations and localities in directing the implementation thereof;

3. Study policies and regimes regarding the sending of Vietnamese laborers to work overseas for a definite time for the submission thereof to the Government for promulgation or to promulgate them according to competence and direct the implementation of such policies and regimes;

4. Study overseas labor markets and prescribe necessary working and living conditions for the laborers, define lists of jobs and areas banned from sending Vietnamese laborers to work overseas.

5. Guide the work of vocational fostering in order to create sources of laborers for sending to work overseas; stipulate programs for vocational training and guidance for laborers before they are sent to work overseas. Set up national centers for creating sources of technical and skilled laborers who also acquire foreign language(s), meeting the requirements of overseas labor markets;

6. Grant, suspend and withdraw specialized business licenses, undertake the contract registration and collect fees and management charges as prescribed;

7. Organize the inspection and examination of agencies and enterprises involved in the sending of Vietnamese laborers to work overseas; temporarily suspend or cease the performance of contracts as prescribed in Clause 3, Article 6 and Clause 3, Article 24 of this Decree;

...

...

...

9. Coordinate with the Ministry for Foreign Affairs, other ministries and concerned branches in settling matters arising in the management of Vietnamese laborers working overseas;

10. Coordinate with the Ministry for Foreign Affairs and the Government Commission for Organization and Personnel in studying the organization of the laborers management sections in the Vietnamese representative missions in foreign countries and areas where a large number of Vietnamese laborers work or where exist great demands for and potential to accept Vietnamese laborers, with the staff, functions, tasks and powers compatible to the Ordinance on overseas representations of the Socialist Republic of Vietnam.

Article 19.-

1. The Ministry of Finance shall assume the prime responsibility and coordinate with the Ministry of Labor, War Invalids and Social Affairs in specifying the collection and use of fees, management charges and service charges, the level and procedures for keeping of the laborers� deposits.

2. The Vietnamese representations overseas shall perform the State management over the Vietnamese laborers in the respective host countries; provide in time, through the Ministry for Foreign Affairs, information on the foreign labor markets and the situation of the Vietnamese laborers in the host countries for the Ministry of Labor, War Invalids and Social Affairs; contact functional bodies of the host countries so as to help the Ministry of Labor, War Invalid and Social Affairs establish the relations of cooperation on labor using; coordinate with concerned organizations and agencies of the host countries and international organizations in settling arising matters so as to protect the legitimate interests of the Vietnamese laborers and enterprises.

3. The Ministry of Public Security shall, within the scope of its responsibility; coordinate with the Ministry of Labor War Invalids and Social Affairs in managing the laborers working overseas; create favorable conditions for the laborers to get their passports according to the provisions of law and meet the requirements on the time to perform the contracts with the foreign parties.

4. The Ministry of Planning and Investment and other ministries as well as branches shall, within their respective scope of responsibilities, include the content of labor cooperation with foreign countries into their plans for external economic development as well as international cooperation programs, and determine together with the Ministry of Labor, War Invalids and Social Affairs, norms in the animal and five-year plans on sending Vietnamese laborers to work overseas.

5. The Ministry of Trade and the State Bank of Vietnam shall study and submit to the Government for promulgation or promulgate according to their competence policies of creating conditions for the laborers and the enterprises which send Vietnamese laborers to work overseas for a definite time to exercise their rights prescribed in Clause 3, Article 8, Clause 1 of Article 10 and Article 17 of this Decree.

Article 20.- The ministries, branches, central bodies of mass organizations and the People's Committees of the provinces and centrally-run cities shall have the responsibilities to:

...

...

...

2. Direct, manage and be responsible for activities of the enterprises which send laborers to work overseas and are under their respective management, and at the same time coordinate with concerned ministries and branches in settling arising matters;

3. Report on the situation of sending laborers to work overseas by the enterprises under their respective management; draw up annual and five-year plans on the sending of laborers to work overseas and send them to the Ministry of Labor, War Invalids and Social Affairs for a sum-up to be submitted to the Government.

Article 21.- The Ministry of Labor, War Invalids and Social Affairs, the Ministry of Finance, the Ministry of Planning and Investment and the State Bank shall coordinate with concerned ministries and branches in specifying the laborers who are entitled to social policies, who have done meritorious service to the country and/or who are poor, and may all borrow credits to pay the deposits and fees before they are sent abroad to work for a definite time.

Article 22. - Where Vietnamese laborers must be urgently brought home due to force majeure circumstances, the agencies in charge of enterprises which send Vietnamese laborers to work overseas shall have to direct the enterprises to organize the sending of laborers back home; where the cases go beyond their competence and capabilities, the agencies in charge shall have to coordinate with the Ministry for Foreign Affairs, the Ministry of Labor, War Invalids and Social Affairs and the Ministry of Finance in drawing up plans and submit them to the Prime Minister for decision.

Chapter VI

COMMENDATION, REWARD AND HANDLING OF VIOLATIONS

Article 23.-

1. Citizens and enterprises that well and effectively carry out activities of sending Vietnamese laborers to work overseas shall be commended and/or rewarded according to the State's regulations.

2. Foreign individuals and organizations that make positive and effective contributions to the activities of sending Vietnamese laborers to work overseas shall be commended and/or rewarded.

...

...

...

1. Organizations and individuals are strictly forbidden to take advantage of the sending of laborers to work overseas in order to recruit and train laborers for business purpose and inlegitimate profits or to organize illegal sending of laborers to work overseas. In case of serious violation, the violator shall be examined for penal liability, have to compensate for damage according to the provisions of law.

2. Laborers who violate terms of contracts signed with enterprises which organize the sending of laborers to work who overseas, with the employers in foreign countries and the provisions of this Decree shall have to compensate for damage and relevant costs, shall be compelled to return home as agreed upon in the contracts, and be sanctioned according to the provisions of Vietnamese law.

3. Enterprises which violate the provisions of this Decree shall be subject to warning and/or pecuniary penalties, to temporary suspension or cessasion of the contract performance. In case of serious violations, they shall be suspended from such specialized business activities or have their specialized business licenses withdrawn.

4. Individuals, economic organizations and State bodies that violate the provisions of this Decree, obstruct or adversely affect the activities of sending Vietnamese laborers to work overseas shall, depending on the seriousness of their violations, be handled for administrative violations or sanctioned according to the provisions of law.

Chapter VII

IMPLEMENTATION PROVISIONS

Article 25. - This Decree shall replace Decree No.07/CP of January 20, 1995 of the Government and take effect 15 days after its signing. The previous regulations which are contrary to this Decree shall be all annulled.

Enterprises which have been granted licenses to send laborers to work overseas before this Decree takes effect shall be entitled to continue using such licenses until they expire. Enterprises which fully satisfy conditions prescribed by this Decree may have their expired licenses changed for new ones.

Article 26.- The sending of laborers to work overseas under the governmental agreements on labor cooperations or agreements on cooperation between Vietnamese branches or localities with foreign branches or localities , as permitted by the Government, shall comply with the provisions of such agreements without having to carry out the procedures for registration under the provisions of this Decree, but having to report on the situation and results of implementation of agreements to the Ministry of Labor, War Invalids and Social Affairs.

...

...

...

Article 28.- The ministers, the heads of ministerial-level agencies, the heads of agencies attached to the Government and the presidents of the People's Committees of the provinces and centrally-run cities shall have to implement this Decree.

ON BEHALF OF THE GOVERNMENT
PRIME MINISTER




Phan Van Khai