On September 5th, 2013, the Government issued the Decree No. 102/2013/NĐ-CP detailing the implementation of some articles of the Labor Code on foreign employees working in Vietnam (abbreviated Decree 102).

 

On September 5th, 2013, the Government issued the Decree No. 102/2013/NĐ-CP detailing the implementation of some articles of the Labor Code on foreign employees working in Vietnam (abbreviated Decree 102). The Decree 102 takes effect from November 1st, 2013. The Decree No. 34/2008/NĐ-CP on recruitment and administration of foreign employees in Vietnam; the Decree No. 46/2011/NĐ-CP on amendment of some articles in the Decree No. 34/2008/NĐ-CP are annulled from the effective day of this Decree.

Some notablepoints ofDecree102 as follows:

1/ Identifying a number of foreign employees need and then reporting to the Chairperson of the Municipal People’s Committee :

An employer shall annually determine his/her demand of a number foreign employees in every position in which Vietnamese employee is not competent yet, and then send a report to the Chairperson of the Municipal People’s Committee. Only after receiving a Committee’s approval the employer starts his/her recruitment.

 2/ Exemption from work permit and certifying those who are exempt from work permits:

Those who come to and stay in Vietnam for less than three months for handling incidents, seriously technical and technological problems arisen that affect or threaten to shut down the production and business operation which cannot be solved by Vietnamese experts and foreign ones working in Vietnam are exempt from work permits. Those who are not in such cases must be granted work permits even though stay in Vietnam for less than three months.

At least 7 working days prior to the date the work-permit-exemption from a relevant Department of Labor.

3/ Application for a work permit :

In addition to the documents regulated in previous decree, some following ones shall be required:

• The approval of foreign employee recruitment from the Chairperson of the Municipal People’s Committee.
• 02 of (4x6)cm color pictures.
• The copy of an employee’s passport or the likes.

The application must be applied at least 15 working days before the date the foreign employee start to work.

After the work permit has been granted, the employer and the employee sign a labor contract of which the content must not be contrary to the one of the work permit (job title, position, duration...), after 5 days from signing date a copy of the contract shall be sent to the agency by which the permit has been granted.

4/ Regrant of a work permit:

A work permit will be regranted in the following cases:

4.1/ The work permit is lost, damaged, or the content of the permit has to changed (name, surname, day/month/year of birth, nationality, passport number, workplace).

4.2/ The permit nearly expires.

In 15 days time and 5 days before expire date, an application for permit regrant must be applied. The application includes: 

• A health certificate of the employee; 
• The approval of the Chairperson of The Municipal People’s Committee; 
• An assignment paper sending him/her to Vietnam (or a contract signed by the Vietnamese partner and the abroad one, in which an article mentioning an assignment of sending foreign employees to Vietnam must be).

5/ Revocation of work permit:

A work permit will be revoked in the following cases:

• The contents of the application is false;
• The permit expires;
• The content of the permit is violated;
• A suggestion from a govermental authority due to the violation of the foreign employee against laws of Vietnam.

Any work permit in validity until the effective date of this Decree is not necessary to be replaced.

In case of foreign employee has not his/her work permit or his/her work permit is expired the employer will be imposed a fine of $VND 30 million to 75 million. In addition, the enterprise can be suspended in a months time (according to Item 2 and 3 Article 22 of the Decree No. 95/2013/NĐ-CP dated August 22nd, 2013 on penalty for administrative violation against the Labor Code and Insurance Law of Vietnam).