The recruitment and employment of foreign workers in Vietnam are clearly regulated in the prevailing Labor Code and guiding documents. Previously, the competent authority would decide whether to issue the work permits for foreign workers based on the needs explained by the enterprises. Recently, the explanation of enterprises is required to be much more detailed and specific.
So, is Vietnam tightening the use of foreign workers, and to what extent? BLawyers Vietnam will analyze as below.
1. Regulations on recruitment and management of foreign workers according to the prevailing law
By the law, to be employed and work in Vietnam, both foreign workers and Vietnam-based enterprises need to meet certain conditions.
For a foreign worker, in addition to meeting the conditions for civil act capacity, professional qualifications, and work experience, he/ she must have a work permit issued by a competent Vietnamese authority, except for cases not subject to the issuance of a work permit.
For an enterprise, when recruiting foreign workers, it is necessary to note the following issues:
- Only foreign workers may be recruited into managerial, executive, expert, and technical positions that Vietnamese workers can not satisfy according to production and business needs.
- A must of explaining the need to use labor and get the written approval of the competent authority before recruiting foreign workers to work in Vietnam.
- If the enterprise is a contractor, it must clearly declare the job positions, professional and technical qualifications, work experience, and working time needed to use foreign workers to execute the bidding package and get approval by documents of competent authorities before recruiting and employing foreign workers to work in Vietnam.
In addition, foreign workers and enterprises should pay attention to the duration of labor contracts for foreign workers working in Vietnam. Specifically, Vietnamese law stipulates that the term of a labor contract must not exceed the term of the work permit.
2. Is Vietnam tightening the recruitment and use of foreign workers in Vietnam?
The answer is yes. The purpose of the tightening is to ensure job opportunities for Vietnamese citizens, enterprises only use foreign workers in cases where it is not possible to recruit Vietnamese who meet the job criteria set by the enterprise.
3. The extent of tightening the recruitment and employment of foreign workers in Vietnam
On 14 May 2021, the Ministry of Labor, War Invalids, and Social Affairs issued Official Dispatch No. 03/CD-LDTBXH to strengthen the management of foreign workers in Vietnam (“Official Dispatch 03”). According to Official Dispatch 03, the strengthening of the management of foreign workers is carried out by State authorities through the following tasks:
- Reviewing all establishments and enterprises employing foreign workers in the locality and closely monitoring all cases of entry of foreign workers who have registered and worked at those establishments and enterprises;
- Ensuring the issuance of work permits to foreign workers in accordance with the conditions, order, and procedures as prescribed by the labor law;
- Strengthening the inspection, examination, and strictly handling of establishments and enterprises that use illegal workers and deliberately violate the law. Applying the measure of the expulsion of foreign workers working in Vietnam without a work permit and failing to comply with the provisions of the Law on entry, exit, transit, and residence of foreigners in Vietnam.
- Carrying out inspection of epidemic prevention and control at establishments and enterprises employing foreign workers. Applying the suspension and strictly handling the establishments and enterprises that fail to ensure safety according to the provisions of law.
Currently, when an enterprise declares the reasons for using foreign workers in a document explaining the need to use foreign workers (Form No. 01/PLI of Decree 152/2020/ND-CP), such enterprise must report to the competent authority the following information:
- Current situation of using foreign workers in the enterprise: The enterprise needs to clearly state the number of foreign workers working, job positions, titles, and the total number of employees of the enterprise. The provision of this information is intended to help State authorities have a basis to assess whether the number of foreign workers to be recruited is suitable for the employment situation or not.
- Description of position and job title: The enterprise needs to clearly state the job content and title to be assigned to foreign workers when recruiting.
- Requirements on qualifications and experience to perform that job: Regarding qualifications, the enterprise needs to clearly state the requirements for professional qualifications, specifying the training majors. For experience, the enterprise needs to specify the requirements for the number of years of working experience that the foreign worker needs and other requirements (if any).
- Reasons for not recruiting Vietnamese people for the position that is expected to employ foreign employees: The enterprise needs to state which jobs/requirements Vietnamese employees cannot undertake and not bring work results according to the enterprise’s wishes.
For further information, please contact:
Minh Ngo Nhat, Partner, BLawyers
minh.ngo@blawyersvn.com
