1. Legal grounds

– Labor Code 2019

– Decree 152/2020/ND-CP stipulating foreign workers working in Vietnam and recruiting and managing Vietnamese employees working for foreign organizations and individuals in Vietnam.

2. The concept of foreign workers working in Vietnam

Pursuant to Clause 1, Article 2 of Decree No. 152/2020/ND-CP Foreign workers being citizens of foreign nationality come to work in Vietnam in the following forms:

Performance of labor contracts; Moving within the enterprise; Performing all kinds of contracts or agreements on economy, commerce, finance, banking, insurance, science and technology, culture, sports, education, vocational education and health; Contracted service providers; Offering services; Working for a foreign non-governmental organization or an international organization in Vietnam that is permitted to operate in accordance with Vietnamese law; Volunteers; Person responsible for establishing a commercial presence; Managers, executives, experts, technical workers; Participating in the implementation of bidding packages and projects in Vietnam; Relatives of members of foreign representative missions in Vietnam are allowed to work in Vietnam according to the provisions of international treaties to which the Socialist Republic of Vietnam is a contracting party.

3. Notes when businesses use foreign workers

3.1. Conditions of foreign workers working in Vietnam

Foreign workers working in Vietnam must fully satisfy the following conditions:

– Foreign workers must be at least 18 years old and have full civil act capacity;

– Foreign workers must have professional qualifications, techniques, skills and work experience; be healthy as prescribed by the Minister of Health;

– The foreign worker is not a person who is currently serving a sentence or has not yet been expunged or is being examined for penal liability in accordance with foreign or Vietnamese laws;

– Having a work permit issued by a competent Vietnamese state agency, except for the case specified in Article 154 of the Labor Code 2019. – Foreign workers working in Vietnam work within the term of the labor contract, the term of the labor contract must not exceed the term of the work permit. When employing foreign workers to work in Vietnam, the two parties may agree to enter into multiple definite-term labor contracts. – Foreign workers working in Vietnam must comply with the provisions of Vietnamese labor law and be protected by Vietnamese law, except in the case of an international treaty to which the Socialist Republic of Vietnam is a contracting party. member has otherwise specified.

3.2. Conditions for recruitment and employment of foreigners working in Vietnam

Enterprises, agencies, organizations, … want to recruit foreign workers to work, they must meet the provisions of law:

– Enterprises, agencies, organizations, individuals and contractors are only allowed to recruit foreign workers to work as managers, executives, experts and technical workers that workers in Vietnam are not allowed to do. The South has not been able to meet the needs of production and business.

– Before recruiting foreign workers to work in Vietnam, enterprises, agencies, organizations and individuals must explain their demand for labor use as prescribed in Clause 1, Article 4, Section 1, Chapter II of Decree No. Decree 152/2020/ND-CP and approved in writing by a competent state agency.

Labor demand is defined as follows:

+ At least 30 days before the expected date of employment of foreign workers, the employer (except for contractors) must determine the need to employ foreign workers for each public position. jobs that Vietnamese workers have not yet met and report to the Ministry of Labor, War Invalids and Social Affairs or the People’s Committees of the provinces and centrally-run cities (hereinafter abbreviated as the People’s Committee of the province). province) where the foreign worker is expected to work according to Form No. 01/PLI Appendix I issued together with this Decree.

+ In the course of implementation, if there is a change in the need to use foreign workers, the employer must report to the Ministry of Labor, War Invalids and Social Affairs or the provincial People’s Committee at least 30 days in advance from the date of implementation. expected date of employment of foreign workers.

+ In the case of foreign workers specified in Clauses 3, 4, 5, Article 154 of the Labor Code, and in Clauses 1, 2, 8, 9, 10, 11, 12, 13, Article 7 of the Decree 152/2020/ND-CP, the employer is not required to determine the need to employ foreign workers.

– Before recruiting and using foreign workers to work in Vietnam, the contractor must declare in detail the job positions, professional and technical qualifications, work experience, and working time to be employed. Foreign workers to execute the bidding package are based on Article 5, Section 1, Chapter II of Decree 152/2020/ND-CP and approved in writing by competent state agencies.

Accordingly, before recruiting foreign workers, the contractor must declare the number, qualifications, professional capacity and experience of foreign workers to be recruited to execute the bidding package in Vietnam and propose to recruit Vietnamese workers for the positions expected to recruit foreign workers to the Chairman of the People’s Committee of the province where the contractor implements the bidding package. In case the contractor needs to adjust and supplement the declared number of employees, the investor must certify the contractor’s plan to adjust and supplement the labor needs to be used.

3.3. Cases in which foreign workers working in Vietnam do not need a work permit

– The employee is the head of a representative office or project or is primarily responsible for the operation of an international organization or foreign non-governmental organization in Vietnam.

– Employees entering Vietnam with a term of less than 3 months to make a service offering.

– Employees entering Vietnam with a term of less than 3 months to handle problems, technical situations, complex technologies that arise, affecting or potentially affecting production and business that Vietnamese experts have not yet met. Nam and foreign experts currently in Vietnam can’t handle it.

– The employee is a foreign lawyer who has been granted a license to practice law in Vietnam in accordance with the Law on Lawyers.

– In case according to the provisions of international treaties to which the Socialist Republic of Vietnam is, the employee is a member.

– The employee is a foreigner married to a Vietnamese and living in the Vietnamese territory.

– The employee is the owner or capital contributor of a limited liability company with a capital contribution value of 3 billion VND or more.

– The employee is the Chairman of the Board of Directors or a member of the Board of Directors of a joint-stock company with a capital contribution value of 3 billion VND or more.

– Employees moving within enterprises within 11 service industries in Vietnam’s service commitment schedule with the World Trade Organization, including: business, information, construction, distribution, education, environment, finance, health, tourism, culture, entertainment and transport.

– Workers enter Vietnam to provide professional and technical consulting services or perform other tasks for research, construction, appraisal, monitoring, evaluation, management and implementation. implementing programs and projects using official development assistance (ODA) according to regulations or agreements in international treaties on ODA signed between Vietnamese and foreign competent authorities.

– The employees are licensed by the Ministry of Foreign Affairs to operate information and press activities in Vietnam in accordance with the law.

– Employees who are sent to Vietnam by competent foreign agencies or organizations to teach and conduct research at international schools under the management of foreign diplomatic missions or the United Nations; establishments and organizations established under agreements that Vietnam has signed or joined.

– Volunteer workers specified in Clause 2, Article 3 of this Decree.

– Entering Vietnam to work as a manager, executive director, expert or technical worker for less than 30 days and no more than 3 times in a year.

– Entering Vietnam to implement international agreements signed by central and provincial agencies and organizations in accordance with law.

– Students who are studying at overseas schools and training institutions that have an internship agreement in agencies, organizations and enterprises in Vietnam; trainees and trainees on Vietnamese ships.

– The employee is a relative of a member of a foreign representative agency in Vietnam specified at Point l, Clause 1, Article 2 of Decree 152/2020/ND-CP.

– Employees with official passports to work for state agencies, political organizations, socio-political organizations.

– The employee is the person responsible for establishing the commercial presence.

– Employees are certified by the Ministry of Education and Training as foreign workers entering Vietnam for teaching and research purposes.

Above is Khoa Tin‘s advice on “What should businesses pay attention to when using foreign workers?”

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