Guidelines on foreign employees in VN
VGP - The Ministry of Labor, War Invalids and Social Affairs (“MOLISA”) on October 25, 2016 issued Circular No.40/2016/TT-BLDTBXH (“Circular 40”) guiding the implementation of some articles of Decree No. 11/2016/ND-CP dated February 3, 2016 (“Decree 11”) on foreign employees working in Viet Nam.
Question: What are the key points on foreign employers and employees working in Viet Nam in Circular 40?
Answer: Circular 40 supersedes Circular 03/2014/TT-BLDTBXH (“Circular 03”) and contains some key points as follows:
Decree 11 regulates ten cases involving foreign citizens working in Viet Nam with regards to performance of labor contracts, internal secondment within enterprises, performance of contracts/agreements on economic, commercial, financial matters etc., but has yet to give specific definitions of each of these forms.
Circular 40 stipulates regulations on service providers under contracts and foreign employees working under the form of service offering. In addition, the MOLISA adds explanations on some cases involving employers as follows: (i) For foreign employees as service providers working under contract or performing contracts/agreements on economic, commercial or financial matters, banking, insurance, science and technology, culture, sports, vocational training and health, the employers will be the Vietnamese partners for whom foreign employees come to work under contracts; (ii) For foreign employees working in Viet Nam under the form of service offering or working as persons responsible for establishing a commercial presence, the employers will be such foreign employees coming to Viet Nam for service offering or the persons responsible for establishing a commercial presence Determining the need for use of foreign employees.
At least 30 days prior to the proposed day of using foreign employees, employers (except contractors) must submit an explanatory report (based on a template) on the need for use of foreign employees to the MOLISA or the Chairman of provincial People's Committee. In case of a change in the need for use, employers must also submit an explanatory report on such change (based on a template) to these bodies at least 30 days from the proposed day of using foreign employees.
Contractors must also declare the quantity, qualifications, professional capabilities and experience of foreign employees who are mobilized to carry out the bidding package in Viet Nam, and make a proposal to recruit Vietnamese employees into the positions intended for foreign ones (attached with owner's confirmations) to the Chairman of the provincial People's Committee of the place where the package is carried out./.
