The Decree 102/2013/nd-Cp: Detailing The Implementation Of A Number Of Articles Of The Labor Code Of Foreign Workers Working In Vietnam

Original Language Title: Nghị định 102/2013/NĐ-CP: Quy định chi tiết thi hành một số điều của Bộ luật Lao động về lao động nước ngoài làm việc tại Việt Nam

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THE GOVERNMENT.
Numbers: 102 /2013/NĐ-CP
THE SOCIALIST REPUBLIC OF VIETNAM.
Independence-Freedom-Happiness
Hanoi, September 5, 2013

DECREE

The detailed regulation of some of the provisions of the Labor Code of Foreign Labour working in Vietnam.

____________________________________

Government Law Base December 25, 2001;

The Labor Code base on June 18, 2012;

At the suggestion of the Minister of Labour-Trade and Social Affairs;

The government issued a decree regulating the implementation of some of the laws of the Labor Code of Foreign Labour working in Vietnam, Vietnam said.

Chapter I

COMMON RULES

What? 1. The adjustment range

The decree stipulated that the implementation of the Labor Code for the Employment of Labor licenses was a foreign citizen working in Vietnam, the expulsion of labour as foreign nationals working in Vietnam without a permit for labour.

What? 2. Subject applies

1. Labor is a foreign citizen working in Vietnam (then abbreviated as foreign workers) in the following forms:

a) The implementation of the labor contract;

b) Move in the business internal;

c) Implemonations of contracts or agreements on economics, commerce, finance, banking, insurance, technical science, culture, sports, education, vocational education and health;

d) Provider service providers;

Hey, let's sell the service.

e) Working for the non-governmental organization abroad, the international organization in Vietnam is allowed to operate under the provisions of Vietnamese law;

g) Volunteers;

h) The person responsible for establishing a commercial presence;

i) Manager, executive director, expert, technical labor;

l) participate in the implementation of the bidding, project in Vietnam.

2. The user of foreign workers, including:

a) The business operates under the Corporate Law, Investment Law or by the international treaty that the Socialist Republic of Vietnam is a member;

b) the contractor (chief contractor, subcontractor) foreign or in the country to the bid, implement the contract;

c) The representative office, the branch of the business, the agency, the organization and the contractor were granted the established licensing authority;

d) State authorities;

Political organization, political-social organization, social political organization-profession, social organization, social organization-profession, non-governmental organization abroad, international organization in Vietnam;

e) The organization of a career is established by the rule of law;

g) the foreign project office or international organization in Vietnam;

h) The executive office of the foreign title in accordance with the contract of business cooperation in Vietnam;

i) organizations practice law in Vietnam by law;

l) Cooperated, associate cooperatim established and operate under the Law of Cooperation;

l) Society, the corporate association established by the rule of law;

m) Household business, individuals are allowed to operate business under the rule of law.

What? 3. Explain words

In this decree, the words below are understood as follows:

1. Foreign workers who move in the business interior are managers, executives, experts and technical workers of a foreign enterprise that has established a trade presence on Vietnamese territory, moving temporarily in the internal affairs of the United States and the United States. enterprise to a commercial presence on Vietnamese territory and has been employed by foreign businesses for at least 12 months.

2. Volunteers are foreign workers who work in Vietnam in the form of voluntary and unpaid form to make an international wish that the Socialist Republic of Vietnam is a member.

3. Experts are foreign workers who have been recognized by foreign countries as professionals or foreign labourers who have a degree of engineer, bachelor or equivalent, and have at least 05 years of professional training.

4. Technical Labor is a foreign worker who has been trained in engineering for at least 01 years and has worked for at least three years in the engineering industry trained.

Chapter II

THE LABOR PERMIT LEVEL, THE EMPLOYMENT LICENSE LEVEL, THE DEPORTATION OF FOREIGN WORKERS WITHOUT A WORK PERMIT IS ISSUED.

Item 1

LOCATE THE WORK SITE USED BY FOREIGN WORKERS.

What? 4. The need to use foreign workers

1. Every year, the employer (except the contractor) is responsible for determining the need to use foreign workers for each position of work that the Vietnamese labourers have yet to respond to and report the program to the Chairman of the Provincial People ' s Committee. Central to the Central Committee (later abbreviated as the Provincial People's Committee) where employers are headquartered. In the process of implementing the need for foreign workers, employers must report to the Chairman of the Provincial People's Committee.

2. The chairman of the Provincial People's Committee has a written approval for each employer on the use of foreign workers to each position of work.

What? 5. The need to use the contractor ' s foreign workers

1. The case needs to use a foreign worker whose expertise is consistent with the request of the bid, in the filing of the bid, the required profile must prescribe the number, qualifications, expertise, the experience of the foreign worker mobiles to carry out. The procurement, which prohibits the use of foreign workers to perform the work in which Vietnamese workers are able to implement and meet the requirements of the bid, in particular the common labour, labor does not pass through vocational training.

The evaluation, the choice of the contractor to follow the regulations on the use of labour stated in the filing of the bid, the requested record, and the provisions for the bidding of the Vietnamese law.

2. When performing the contract, the owner of the investment must hold oversight, asking the contractor to perform the right content committed in the bids, the proposed record of the use of Vietnamese workers and foreign workers.

3. Before the hiring of foreign workers, the contractor was responsible for the proposal to recruit Vietnamese workers to work positions expected to recruit foreign workers (accompanied by the confirmation of the investment owner) with the Chairman of the Provincial People ' s Provincial Committee where he was elected. The contractor makes the bid.

Where the contractor has the need to adjust, the addition of the number of workers identified in the bids, the proposed record, the owner of the investment must confirm the adjustment method, the addition of the required labor needs of foreign contractors.

4. The chairman of the Provincial People ' s Committee directed the agencies, the organization of the local introduction, the supply of Vietnamese workers to the contractor. For a maximum period of 2 months, since the date of the adoption of the proposal from 500 Vietnamese workers and 1 months, since the date received by the offer of under 500 Vietnamese workers without introducing or supplying Vietnamese workers was given to the public. As a contractor, the chairman of the People's Committee is considering, deciding whether the contractor is hired by foreign workers to be employed by Vietnamese workers.

5. The investment owner is responsible for guidance, says the contractor, which checks the contractor to implement the regulations on recruitment, use of foreign workers working for the contractor in accordance with the rule of law; track and management of foreign workers who carry out the rules. The law of Vietnam law; quarterly, the report of the Department of Labour-Trade and Social Affairs on the situation of recruitment, use and management of foreign workers of contractors by the provisions of the Ministry of Labor-Trade and Social Affairs.

6. Gentlemen, the Department of Labor-Trade and Social Affairs coordinated with the public office and the relevant agencies to examine the regulations of the Vietnamese law against foreign workers working at the bids issued by the contractor. On the ground.

What? 6. The report uses foreign workers

The monthly and annual, Labor and Social Service has been responsible for reporting the Ministry of Labor-Trade and Social Affairs on the need to use foreign workers, approving the need to use foreign workers and the situation to use the labourers. Besides, the foreign movement works on the ground.

Item 2

THE FOREIGN WORKER IS NOT PART OF THE LABOR PERMIT.

What? 7. The cases of foreign workers are not part of the labor permit level.

1. Foreign workers specified in Clause 1, Clause 2, Clause 3, Clause 4, Clause 5, Clause 6, Clause 7 and Clause 8 Articles 172 of the Labor Code.

2. Other cases do not belong to the employment license level, including:

a) Moving within the business interior of the range of 11 services sectors in Vietnam ' s service commitment to the World Trade Organization, including: business; information; construction; distribution; education; the environment; financial; health; tourism; culture; culture; and tourism. entertainment and transportation;

The Ministry of Commerce guides the base, the procedure to identify foreign workers moving within the business sector within the range of 11 of the above-based services industries.

b) In Vietnam to provide professional and technical consulting services or perform other tasks that serve the research, construction, appraisal, assessment, management and implementation of the program, the project using the main source of development support for the project. (ODA) by regulation or agreement in international treaties on ODA has signed between the competent authorities of Vietnam and abroad;

c) Ministry of Foreign Affairs is licensed by the Ministry of Foreign Affairs of Information, the press in Vietnam by law;

d) Teachers of the agency, foreign institutions held by the authority of the country sent to Vietnam to teach at the International School of the Jurisdiction Of Foreign Diplomatic Representatives or International Organization in Vietnam;

Volunteers;

Foreign workers are regulated at the point of point and point 2 This must have the confirmation of the foreign diplomatic representative body or international organization in Vietnam.

e) A person with a master's degree or equivalent to performing counseling, teaching, scientific research at the institution of higher education, a vocational training facility with a duration of no more than 30 days;

The institution of higher education, the institution of higher education, must have a confirmation of the employment of foreign workers, teaching, scientific research.

g) Foreign workers in Vietnam implement the international agreement that the state agency in the Central, provincial authority and political organization-the Central-level society signs in accordance with the rule of law.

The state agency in the Central, provincial agency and political organization-the Central-level society must have a written text with the authority to grant a labor permit authority over foreign workers entering Vietnam to implement the international agreement that the countries have to do. Agency, this organization signed.

h) Other cases led by the Prime Minister by the Prime Minister at the suggestion of the Ministry of Labor-Trade and Social Affairs.

What? 8. The procedure to confirm foreign workers is not under the employment license level.

1. The Department of Labor-Trade and Social Affairs has the authority to confirm that foreign workers are not under the employment license level.

2. The employer must recommend the Department of Labor-Trade and Social Affairs where foreign workers regularly work to confirm the foreign worker who is not part of the labor license grant before at least 07 days of work, since the day of the worker. I mean, the foreign movement started to work.

3. The proposed filing does not have a labor license level, including:

a) The proposed text confirms the foreign worker not under the employment of the work permit;

b) The list of quotation on foreign workers with content: surname, name; age; gender; nationality; passport number; date of beginning and date of work; the position of the work of the foreign worker;

c) The papers to prove that foreign workers are not part of the work permit.

The papers prove that foreign workers do not have a work permit of 1 or 01 copies if in foreign language are exempt from the legalization, but must translate into Vietnamese and corroborate the provisions of Vietnamese law. Male.

4. During the 3-day period of work, since the date of receiving enough of the offer, the Department of Labor-Trade and Social Affairs has the confirmation text of the employer. The unconfirmed case has a written answer and specifies the reason.

Section 3

LEVEL OF LABOR PERMIT

What? 9. Labor licensing conditions

1. There is full civil conduct capacity under the rule of law.

2. There is health in line with the job requirement.

3. As a manager, managing director, expert or technical worker.

For foreign workers to practice medical treatment, healing, direct examination, healing in Vietnam or working in the field of education, training and vocational training must have sufficient conditions under the law of Vietnamese law on the examination, healing, and disease. education, training and vocational training.

4. Not a person who commits a crime or is in charge of criminal responsibility under the regulation of Vietnamese law and foreign law.

5. Being approved by the text of the state agency has jurisdiction over the use of foreign workers.

What? 10. File to issue a labor permit

1. The text offers the employment licenses of employers by the provisions of the Ministry of Labor-Trade and Social Affairs.

2. The health certificate is issued overseas or in Vietnam by the provisions of the Ministry of Health.

3. The confirmation text is not an offender or is a criminal responsibility for the statutory responsibility of the Vietnamese law and the foreign law is valid for a period of 6 months, as of the time of filing.

4. The confirmation text is the manager, chief executive, expert or technical worker.

For some professions, work, text validation of the expertise, the technique of foreign workers is replaced by one of the following papers:

a) The recognition paper is the artifact of traditional professions led by the authority of the foreign country;

b) The text that proves the experience of the foreign football player;

c) The license to transport air transport aircraft by the authority of Vietnam's authority to foreign pilots;

d) A train maintenance permit issued by the authorities of Vietnam for foreign workers for the maintenance of the flying boat.

5. The text of the Chairman of the Provincial People ' s Committee on the approval of the use of foreign workers.

6. 02 black images (size 4cm x 6cm, head for ceiling, face capture, clear face, clear two ears, non-glasses, white font), screenshot not more than 06 months to the time of filing.

7. The passport copy or paper has a value that changes the passport value as defined by the law.

The papers stipulate in Clause 2, Clause 3, and Clause 4 This is 1 main or 01 copies; if foreign language must be legally legalised, unless the case is exempt from the legal exemption under the international treaty that the Socialist Republic does. Foreign and foreign-related countries are either members or in accordance with the laws of the law and the provisions of the law and the Vietnamese translation, which attes to the provisions of Vietnamese law.

8. Other documents related to foreign workers:

a) For foreign workers in accordance with the regulation at point b 1 Article 2 This decree must have the text of the foreign enterprise sent to work at the commercial presence of that foreign enterprise on Vietnam territory and the proof text. Foreign workers have been employed by foreign businesses before working in Vietnam for at least 12 months;

b) For foreign workers by regulation at Point 1 Article 2 This decree must have a contract or agreement signed between the Vietnamese and foreign partners, which must have an agreement on the employment of foreign workers at work in the United States. Vietnam.

c) For foreign workers by regulation at Point 1 Article 2 This decree must have the contract to provide the signing service between the Vietnamese and foreign partners and the document that proves the foreign worker who has worked for the business. foreign countries have no commercial presence in Vietnam for at least 2 years;

d) For foreign workers by regulation at the Point 1 Article 2 This decree must have the text of the service provider of foreign workers into Vietnam to negotiate provision of the service;

For foreign workers in accordance with the Regulation 1 Article 2 This decree must have a foreign non-governmental organization certification, the international organization is allowed to operate under the provisions of Vietnamese law;

e) For foreign workers by regulation at Point 1 Article 2 This decree must have the text of the service provider of foreign workers into Vietnam to establish a commercial presence of that service provider;

g) For foreign workers in accordance with the regulation at Point 1 Article 2 This decree that participated in the activities of foreign enterprises established a trade presence in Vietnam must have a written proof of foreign workers. to participate in the activities of the foreign business.

The papers stipulated in this clause are 1 major or 01 copies, if in foreign language are exempt from the legalization, but must translate into Vietnamese and corroborate the provisions of Vietnamese law.

What? 11. The duration of the labor permit

The duration of the employment permit is issued as no more than 02 years and by the deadline of one of the following cases:

1. The deadline for the labor contract is expected to sign;

2. The country ' s deadline for foreign workers to work in Vietnam;

3. The contract deadline or the signing agreement between the Vietnamese side and the foreign side;

4. The contract deadline or agreement provides the signing service between the Vietnamese side and the foreign side;

5. The deadline stated in the text of the service provider sends foreign workers into Vietnam to negotiate the provision of the service;

6. The deadline has been identified in the certificate of foreign non-governmental organization, the international organization is allowed to operate under the regulation of Vietnamese law;

7. The deadline in the text of the service provider to send foreign workers into Vietnam to establish a commercial presence of that service provider;

8. The term in the text of proof of foreign workers being involved in the operation of a foreign business has established a trade presence in Vietnam.

What? 12. Labor license order

1. Before at least 15 working days, since the day that foreign workers are expected to start working for employers, employers must file a draft of a labor license grant to the Department of Labor-Trade and Social Affairs where the worker is employed by the employer. There is an entire time spent working for employers.

In case the foreign worker did not have the entire time working for employers in a province, the Central City of the Central, the filing recommended that the labor permit submit to the Department of Labor-Trade and Social Affairs where the headquarters are located. of the employer.

2. During the 10-day period of work, since the date of receiving enough records, the Department of Labor-Trade and Social Affairs granted labor permits to foreign workers under the sample provided by the Ministry of Labor-Trade and Social Affairs. The absence of a work permit is written and explicitly stated.

3. For foreign workers by regulation at the Point A 1 Article 2 This decree, after foreign workers are granted a labor permit, employers and foreign workers must sign a written labor contract in accordance with the consent of the United States of the United States. regulation of the Vietnamese labour law before the date of the expected employment for employers. The labor contract content is not left with the content written in the labor permit that has been granted.

During the 5-day period of work, since the day of the signing of the labor contract, the employer must submit a copy of the signed labour contract and the copy of the work permit has been granted to the Department of Labor-Trade and Society granted that labor permit.

Section 4

LEVEL OF LABOR PERMIT

What? 13. The cases of resupply of labor permit

1. The labor permit is lost, broken or changed the contents of a work permit such as them, name; date, month, year of birth; nationality; passport number; work site.

2. Labor license expired.

What? 14. Proposition of the offer to grant a labor permit

1. The text offers to grant the employment license of the employer by the provisions of the Ministry of Labor-Trade and Social Affairs.

2. 02 color images (size 4cm x 6cm, head for ceiling, face capture, clear face, clear two ears, non-glasses, white font), screenshots of no more than 6 months as of the time of filing.

3. Papers for foreign workers:

a) For the case of a degree of employment license under the stipulation at Clap 1 Article 13 This Protocol must have a passport copy or paper with a value of change in accordance with the provisions of the law and the work permit issued (except for the case of a contract). loss);

b) For the case of the degree of employment permit under the stipulation at Clause 2 Article 13 This must have a work permit issued (except for the lost case) for at least 05 days, but not more than 15 days, before the date of the work permit. Expires; the health certificate is prescribed at Section 2 Article 10 This Agreement; the text of the Chairman of the Provincial People's Committee on the approval of the use of foreign workers and one of the following papers:

-Foreign Office for foreign workers working in Vietnam;

-The contract or agreement signed between the Vietnamese and foreign partners, which must have an agreement on the employment of foreign workers working in Vietnam;

-The contract provides the signing service between the Vietnamese and foreign partners or the document that proves the foreign worker continues to negotiate provision of services in Vietnam;

-Foreign governmental organization certification, international organization is allowed to operate under the provisions of Vietnamese law;

-The document proves that foreign workers continue to work at the foreign NGO, the international organization in Vietnam;

-The text of a service provider to send foreign workers into Vietnam to establish a commercial presence of that service provider;

-The foreign worker's identity was engaged in the operation of a foreign business that established a commercial presence in Vietnam.

The identification papers at this point are 1 main or 01 copies, if in foreign language it is exempt from the legalization but must translate into Vietnamese and corroborate the provisions of Vietnamese law.

What? 15. Labor license reorder

1. For the case of resupply of the work permit under the regulation at paragraph 1 Article 13 This decree:

a) For a period of 3 days, since the day the foreign worker finds the lost labor permit, which is broken or changed the contents of the work permit, the foreign worker is responsible for reporting the employer;

b) During the 5-day period of work, since the day the employer received the report of the foreign worker, the filing of a repetition of the employment permit for the Department of Labor-Trade and Social Affairs provided that work permit.

2. For the case of granting a work permit under the regulation at paragraph 2 Article 13 This decree:

Before at least 05 days but not more than 15 days, prior to the expiration of the expired labor permit, employers must file a repetition of the employment permit for the Department of Labor-Trade and Social Affairs granted that labor permit.

3. During the 3-day period of work, since the date of receiving enough paperwork to grant a labor permit, the Department of Labor-Trade and Social Affairs reissued the work permit. The absence of a work permit is written and explicitly stated.

4. For foreign workers by regulation at the Point A 1 Article 2 This decree, after foreign workers are granted a labor permit, employers and foreign workers must sign a contract to contract the labor degree in writing, according to the report. in accordance with the provisions of the Vietnamese labor law before the expected date of continuing work for employers. The labor contract content is not left with the content that is written in the reissued labor permit.

In the 5-day period of work, since the day of the signing of the labor contract, the employer must submit a copy of the signed labor contract and the copy of the labor permit has been granted back to the Department of Labor-Trade and Society has issued a work permit. Yeah.

What? 16. The duration of the labor permit is issued

1. The duration of the labour permit issued in the case of regulation at Clause 1 Article 13 This decree by the deadline of the labor permit has been granted unless the time of foreign workers has been working towards the time of the proposed grant of paper. -No, no.

2. The duration of the work permit is granted in the case of regulation at paragraph 2 Article 13 This decree is no more than 02 years and by the time of one of the following cases:

a) The deadline for the labor contract is expected to sign;

b) The deadline for foreign workers to work in Vietnam;

c) The deadline of the contract or agreement signed between the Vietnamese and foreign partners;

d) The duration of the contract provides the signing service between the Vietnamese and the foreign side;

) The deadline in the text of the service provider sends foreign workers into Vietnam to negotiate provision of services;

e) The deadline has been defined in the certificate of foreign non-governmental organization, the international organization is allowed to operate under the rule of law;

g) The deadline in the text of the service provider to send foreign workers into Vietnam to establish a commercial presence of that service provider;

h) The deadline in the text of proving that foreign workers to be engaged in the operation of a foreign enterprise has established a trade presence in Vietnam.

Section 5

REVOKING THE LABOR PERMIT, THE DEPORTATION OF FOREIGN WORKERS

What? 17. Labor license recall

1. The cases of labor permit are revoked:

a) Content in the filing of the employment license grant, the filing of the proposed repetition of the labor license is forgery;

b) Labor license expires;

c) Foreign workers or employers who do not perform properly according to the work permit content have been granted;

d) End of labor contract;

The content of the labor contract is not true to the content of the work permit that has been granted;

e) Contract or agreement on economics, commerce, finance, banking, insurance, technical science, culture, sports, education, vocational education, health care, expiration or termination;

g) The foreign language ' s text outside the announcement of sending foreign workers to work in Vietnam;

h) The employer terminated the operation;

i) Foreign workers are fined for imprisonment, death or disappearance according to the Court ' s statement;

) The agency, the organization has the authority to offer written consent of the revoking of labor permits by foreign workers in violation of the provisions of Vietnamese law.

2. The Department of Labor-Trade and Social Affairs has the authority to revok the granted labor permit.

What? 18. Expulsion of foreign workers

1. Foreign workers working in Vietnam do not have a labor permit without the provisions of regulation at Article 7 of this decree being expelled under the provisions of Vietnamese law.

2. The Department of Labor-Trade and Social Affairs recommended that the agency be deported to the case of foreign workers working in Vietnam without a work permit.

The organization and the individual who found foreign workers working in Vietnam do not have a work permit, informed the Department of Labor-Trade and Social Affairs.

3. For a 15-day period of work, since the date of the determination of foreign workers working in Vietnam without a permit for labor, the Labor Department and Social Affairs recommend the public to deport the foreign worker.

4. Ministry of Public Security is responsible:

a) Guide to the authority, the deportation procedure for foreign workers working in Vietnam does not have a work permit;

b) The guidance of the visa granting to the foreign worker after having been granted a labor permit, granting a labor permit or submitting enough of the filing of a labor license grant, the file offers to grant a labor permit;

c) Chair, in coordination with the Ministry of Labor-Trade and Social Guide, the procedure to send a list of foreign workers granted a labor permit, granting a labor permit for the agency to export the entry.

Chapter III

EXECUTION CLAUSE

What? 19.

1. This decree has been in effect since 1 November 2013.

2. Decree 34 /2008/NĐ-CP March 25, 2008 Government of the United States regulates the recruitment and management of foreigners working in Vietnam; United States decree. 46 /2011/ND-CP June 17, 2011 by the Government amended, adding some of the provisions of the Digital Protocol. 34 /2008/NĐ-CP March 25, 2008 The government provides for the recruitment and management of foreigners working in Vietnam from the date of this Decree effective.

3. For the working permit that is still in effect on the date of this Decree effective enforcement is not in exchange for new labor licenses.

What? 20.

1. Minister of Labour-Trade and Social Affairs, Minister of Public Security, Minister of Trade and Minister of Health for the implementation of this decree.

2. Minister, Deputy Head of the Ministry of Foreign Affairs, Head of the Government of the Government, Chairman of the Provincial Committee of the Provincial People's Committee, the city directly responsible for the implementation of this decree.

TM. THE GOVERNMENT.

Prime Minister

(signed)

Dao Dung