Thông tư 21/2007/TT-BLĐTBXH của Bộ Lao động, Thương binh và Xã hội về việc hướng dẫn chi tiết một số điều của Luật Người lao động Việt Nam đi làm việc ở nước ngoài theo hợp đồng và Nghị định số 126/2007/NĐ-CP ngày 01/8/2007 của Chính phủ quy định chi tiết và hướng dẫn một số điều của Luật Người lao động Việt Nam đi làm việc ở nước ngoài theo hợp đồng

CIRCULAR

DETAILING A NUMBER OF ARTICLES OF THE LAW ON VIETNAMESE GUEST WORKERS AND GOVERNMENTS DECREE NO. 126/2007/ND-CP DATED AUGUST 1, 2007, DETAILING AND GUIDING A NUMBER OF ARTICLES OF THE LAW ON VIETNAMESE GUEST WORKERS

Pursuant to the November 29, 2006 Law on Vietnamese Guest Workers;

Pursuant to the Governments Decree No. 126/2007/ND-CP dated August 1, 2007, detailing and guiding a number of articles of the Law on Vietnamese Guest Workers;

Pursuant to the Governments Decree No. 29/2003/ND-CP dated March 31, 2003, defining the functions, tasks, powers and organizational structure of the Ministry of Labor, War Invalids and Social Affairs;

The Ministry of Labor, War Invalids and Social Affairs details and guides the implementation of a number of articles of the Law on Vietnamese Guest Workers (below referred to as the Law for short) and the Governments Decree No. 126/200/ND-CP dated August 1, 2007, detailing and guiding a number of articles of the Law on Vietnamese Guest Workers (below referred to as Decree No. 126/2007/ND-CP for short) as follows:

I. LICENSES AND PROCEDURES FOR GRANT AND EXCHANGE OF LICENSES

1. Guest worker service-provision licenses (Clause 7, Article 8 of Decree No. 126/2007/ND-CP):

A guest worker service-provision license (below referred to as a license for short) is defined as follows:

a) Size: 1 A4 page (210 x 297 mm);

b) Characteristics: Printed on white hard paper with blue patterns, embedded national emblem and black-edged frame;

c) Principal contents: The official name of the country, the name of the licensing agency, legal grounds for li1censing, full name, serial number and date of grant of the license; full name and transaction name of the licensed enterprise; the serial number, date and place of issue of its business registration certificate; its office address, telephone and fax numbers and email address; contents of licensed services; effective date of the license.

(The license form is in Appendix 01 to this Circular - not printed herein)

2. Licensing dossiers (Clause 1, Article 10 of the Law):

Licensing dossiers shall be submitted to the Guest Workers Administration Bureau, each comprising:

a) The enterprise's application for a license, made according to the form in Appendix 02 to this Circular (not printed herein);

b) A copy of its business registration certificate;

c) Papers evidencing its satisfaction of set capital requirements;

d) The written certification of deposits, issued by the commercial bank where the enterprise pays deposits;

e) The scheme on sending workers abroad as prescribed in Article 4 of Decree No. 126/2007/ND-CP;

f) The resume of the leader in charge of administering the sending of workers abroad, enclosed with papers evidencing his/her satisfaction of the conditions set in Clause 3, Article 9 of the Law.

g) The organizational scheme (for enterprises sending workers abroad for the first time) or the report on organization of the apparatus in charge of sending workers abroad and that in charge of training necessary knowledge for workers before they go to work abroad;

h) The list of full-time officials in the apparatus in charge of sending workers abroad, with the following details: full name, date of birth, position, professional qualifications, foreign language skills and assigned tasks.

3. Dossiers for renewal of licenses (Clause 2, Article 11 of the Law):

Dossiers for renewal of licenses shall be submitted to the Guest Workers Administration Bureau, each comprising:

a) The enterprise's application for license renewal, made according to the form in Appendix 03 to this Circular (not printed herein);

b) The granted license;

c) A copy of the re-granted business registration certificate;

d) Papers evidencing the satisfaction of set capital conditions;

e) The resume of the leader in charge of administering the sending of workers abroad, enclosed with papers evidencing his/her satisfaction of the conditions set in Clause 3, Article 9 of the Law.

f) The report on organization of the apparatus in charge of sending workers abroad and that in charge of sending workers abroad, with the following details: full name, date of birth, position, professional qualifications, foreign language skills and assigned tasks.

h) Papers evidencing the contribution to the Overseas Employment Assistance Fund.

4. Dossiers for permit renewal (Clause 1, Article 78 of the Law):

Dossiers for permit renewal shall be submitted to the Guest Workers Administration Bureau, each comprising:

a) The enterprise's written request for permit renewal, made according to the form in Appendix 04 to this Circular (not printed herein);

b) The issued permit;

c) A copy of the business registration certificate;

d) The report on the enterprise's 2007 results of sending workers abroad;

e) Papers evidencing the satisfaction of set capital conditions;

f) Papers certifying the contribution to the Labor Export Assistance Fund under the provisions of the Government's Decree No. 81/2003/ND-CP dated July 17, 2003, detailing and guiding the implementation of the Labor Code regarding Vietnamese guest workers;

g) The written certification of deposits, issued by the commercial bank where the enterprise pays deposits;

h) The resume of the leader in charge of administering the sending of workers abroad, enclosed with papers evidencing his/her satisfaction of the conditions set in Clause 3, Article 9 of the Law.

i) The report on organization of the apparatus in charge of sending workers abroad and that in charge of training necessary knowledge for workers before they go to work abroad;

j) The list of full-time officials in the apparatus in charge of sending workers abroad, with the following details: full name, date of birth, position, professional qualifications, foreign language skills and assigned tasks.

5. Fee for grant or renewal of licenses (Clause 1, Article 7 of Decree No. 126/2007/ND-CP and Clause 6, Article 11 of the Law): Enterprises providing guest worker services (below referred to as service enterprises) shall pay a fee for grant or renewal of licenses at the Guest Workers Administration Bureau when receiving licenses.

6. Reporting on replacement of leaders in charge of administering the sending of workers abroad (Clause 3, Article 9 of the Law):

In case of replacement of leaders in charge of administering the sending of workers abroad, service enterprises shall send written reports thereon to the Guest Workers Administration Bureau, enclosed with resumes of new leaders and papers evidencing their satisfaction of the conditions set in Clause 3, Article 9 of the Law. 7. Procedures for turning in, revocation of licenses (Clauses 1 and 2, Article 15 of the Law):

a) Procedures for turning in of licenses: Within 10 days after obtaining a decision on termination of its operation according to Points a and b, Clause 1, Article 15 of the Law, a service enterprise shall notify in writing the Guest Workers Administration Bureau of the termination of its operation, turn in its license to the latter, and report on contracts still in force; the number of workers still working abroad; the number of workers already recruited for these contracts and their contributions; the contribution to the Overseas Employment Assistance Fund; and the plan for performance of liabilities in relation to contracts still in force.

After fulfilling its obligations towards the State under law and liabilities towards workers under signed contracts, a service enterprise shall report to the Guest Workers Administration Bureau on its fulfillment of obligations and liabilities, and send to the latter documents evidencing such fulfillment. The Guest Workers Administration Bureau shall consider and issue a document for the enterprise to withdraw its deposits in accordance with law.

b) Procedures for revocation of licenses: Within 15 days after the Minister of Labor, War Invalids and Social Affairs issues a decision on revocation of its license, a service enterprise shall turn in that license to the Guest Workers Administration Bureau and report on contracts still in force; the number of workers still working abroad; the number of workers already recruited for these contracts and their contributions; the contribution to the Overseas Employment Assistance Fund; and the plan for performance of liabilities in relation to contracts still in force.

After fulfilling its obligations towards the State under law and liabilities towards workers under signed contracts, a service enterprise shall report to the Guest Workers Administration Bureau on its fulfillment of obligations and liabilities, and send to the latter documents evidencing such fulfillment. The Guest Workers Administration Bureau shall consider and issue a document for the enterprise to withdraw its deposits in accordance with law.

II. NOTIFICATION OF ASSIGNMENT, CHANGE AND TERMINATION OF ASKS OF BRANCHES (Article 16 of the Law)

1. Notification of assignment of guest worker service tasks to branches of service enterprises:

Within 15 days after assigning to a branch the task of providing guest worker services, a service enterprise shall notify in writing the Guest Workers Administration Bureau and the provincial/municipal Labor, War Invalids and Social Affairs Service in the locality where the branch is 1ocated of the branch's full name, address, telephone number, fax number and email address; the name of the branch's head and guest worker service tasks assigned to the branch, and its authorized powers.

The notice must be enclosed with the enterprise's decision assigning to the branch tasks of providing some guest worker services, a copy of the branch establishment decision, a copy of the branch's business registration certificate, a written authorization for the branch to collect service charges, brokerage charges and workers' deposits (if any) as well as the list of the branch's head and its officials in charge of sending workers abroad with their full names, years of birth, positions, professional qualifications, foreign language proficiency levels and tasks to be performed at the branch.

2. Notification of changes in, or termination of guest worker service tasks of a branch of a service enterprise:

In case of a change of the branch head, contents of tasks assigned to, or authorization for, the branch, the location of the branch's office or termination of guest worker service tasks assigned to the branch, the service enterprise shall notify in writing the Guest Workers Administration Bureau and the provincial/municipal Labor, War Invalids and Social Affairs Service in the locality where the branch is located of that change and its plan for settlement of related problems.

3. Reporting by a branch:

A branch of a service enterprise shall report to the provincial/municipal Labor, War Invalids and Social Affairs Service in the locality where it is located on its performance of tasks assigned by the enterprise before June 20 and December 20 annually and make extraordinary reports at the request of the provincial/municipal Labor, War Invalids and Social Affairs Service.

III. NON-BUSINESS STATE ORGANIZATIONS SENDING WORKERS ABROAD

(Article 39 of the Law)

1. Notification of assignment of tasks of sending workers abroad to non-business organizations:

Ministers, heads of ministerial-level agencies and heads of government-attached agencies shall send to the Ministry of Labor, War Invalids and Social Affairs written notices of assignment of tasks of sending workers abroad to their attached non-business organizations, enclosed with task assignment decisions and documents evidencing their satisfaction of the conditions set in Clauses 1 and 3, Article 39 of the Law.

2. Notification of replacement of persons administering non-business organizations' activities of sending workers abroad:

In case of replacement of leaders administering activities of sending workers abroad, non-business organizations sending workers abroad must send reports to the Guest Workers Administration Bureau, enclosed with resumes of new leaders assigned the same task and documents evidencing their satisfaction of the conditions set in Clause 3, Article 39 of the Law.

IV. PROCEDURES FOR REGISTRATION OF CONTRACTS

1. Dossiers of, procedures for, registration of labor supply contracts of service enterprises (Articles 18 and 19 of the Law):

1.1. A dossier of registration of a labor supply contract comprises: a) The enterprises written registration of the labor supply contract, made according to the form in Appendix 05 to this Circular (not printed herein);

b) A copy of the labor supply contract, enclosed with its Vietnamese translation;

c) Documents evidencing that the sending of workers abroad accords with the law of the host country, enclosed with their Vietnamese translations;

d) The plan for performance of the labor supply contract;

e) Other documents related to each market according to regulations.

1.2. Procedures for registration of labor supply contracts:

Enterprises shall submit dossiers of registration of labor supply contracts to the Guest Workers Administration Bureau.

Within 10 days after receiving a complete and valid dossier, the Guest Workers Administration Bureau shall give a written reply to the enterprise and state the reason for refusal, if any.

2. Dossiers of, procedures for, registration of intern acceptance contracts of enterprises sending workers abroad for working in the form of skill improvement internship (Articles 36 and 37 of the Law);

2.1. A dossier of registration of an intern acceptance contract comprises:

a) The written registration of the intern acceptance contract, made according to the form in Appendix 06 to this Circular (not printed herein);

b) A copy of the intern acceptance contract, enclosed with its Vietnamese translation;

c) Documents evidencing that the sending of workers abroad accords with the law of the host country.

d) A copy of the business registration certificate;

e) The certificate of the enterprise's deposits, issued by the commercial bank where the enterprise pays deposits.

2.2. Procedures for registration of intern-acceptance contracts:

An enterprise sending workers abroad for working in the form of skill improvement internship shall submit the dossier of registration of performance of an inter-acceptance contract to the Guest Workers Administration Bureau, if the contract has a term of 90 days or more, and to the provincial/municipal Labor, War Invalids and Social Affairs Service in the locality where the enterprise is headquartered, if the contract has a term of under 90 days.

Within 10 days after receiving a complete and valid dossier, the Guest Workers Administration Bureau or the provincial/municipal Labor, War Invalids and Social Affairs Service shall reply the enterprise in writing, stating the reason for refusal, if any.

3. Dossiers of, procedures for, registration of individual contracts (Article 52 of the Law)

3.1. A dossier of registration of an individual contract comprises:

a) An application for registration of the individual contract, made according to the form in Appendix 07 to this Circular (not printed herein);

b) A copy of the individual contract, enclosed with its Vietnamese translation certified by the translation organization;

c) A copy of the individual's identity card or passport;

d) The workers resume, certified by the People's Committee of the commune, ward or township where he/she resides or by the agency, organization or unit managing him/her and their comments on his/her sense of observance of law and morality.

3.2. Procedures for registration of individual contracts:

Within 5 days after receiving a complete and valid dossier, the provincial/municipal Labor, War Invalids and Social Affairs Service in the locality where the worker resides shall issue a certificate of registration of the individual contract, made according to the form in Appendix 08 to this Circular (not printed herein), and give a written reply, stating the reason for refusal, if any.

Provincial/municipal Labor, War Invalids and Social Affairs Services shall manage dossiers of guest workers working under individual contracts.

4. Extension and signing of new contracts (Clause 5, Article 46, and Point e, Clause 1, Article 53 of the Law):

Upon the end of his/her working term under a contract signed with a service enterprise or a labor user (for workers working under an individual contracts), if a Vietnamese guest worker extends the contract or signs anew one with the employer in the host country and is not required to return home under the law of that host country, he/she shall report thereon to the Vietnamese diplomatic mission or consulate in that country.

V. RECRUITMENT AND MANAGEMENT OF WORKERS

1. Recruitment of guest workers (Points b and c, Clause 2, Article 27 of the Law):

a) When recruiting workers, a service enterprise and its branches assigned the task of sending workers abroad shall post up at their offices the number of workers to be recruited, their sexes and ages, jobs to be done, working places, terms of contract, conditions on health, job skills and foreign language proficiency, expenses to be paid by workers in order to work overseas, their basic rights and obligations during the overseas working term.

b) When recruiting workers in a locality, a service enterprise and its branches assigned the task of sending workers abroad shall produce licenses and notify the recruitment plan and conditions specified at Point a of this Clause to the provincial/municipal Labor, War Invalids and Social Affairs Service and local authorities of the district and commune where the enterprise recruits workers.

c) A service enterprise shall make commitment with workers who are recruited to work overseas on the time of waiting for their exit.

During the time committed by the service enterprise, if a worker no longer wants to work overseas, the service enterprise shall return him/her the dossier and the worker shall bear all expenses (if any) which the enterprise has paid to carry out procedures for him/her to work overseas, including expenses for dossiers, health check, training of necessary knowledge, learning materials and accommodation in the training period, and entry visa.

Past the committed time limit, if the service enterprise cannot yet send the worker abroad, it must notify the reason to that worker. If the worker no longer wants to go to work abroad, within 15 days after being notified by the worker, the service enterprise shall return the dossier to him/her and expenses he/she has paid, including dossier expenses, training fees, visa fees, air ticket expenses, service and brokerage charges, and shall carry out procedures to refund the worker's deposits.

2. Signing of guest worker contracts (Point b, Clause 1, Article 27 of the Law):

a) A service enterprise shall sign contracts with workers at least 5 days before their exit and manage their dossiers;

b) A service enterprise may collect service and brokerage charges from workers after signing with the latter guest worker contracts and the workers are accepted or granted entry visas by the host country.

3. Liquidation of guest worker contracts (Point e, Clause 1 and Point i, Clause 2 of Article 27; Point f, Clause 2 of Article 41 of the Law):

a) The liquidation of guest worker contracts signed between a service enterprise or a non-business organization and workers must be recorded in writing;

b) The document on liquidation of a contract must have the following contents: the reason for liquidation of the contract; the performance of liabilities by involved parties; the sums paid by the service enterprise or non-business organization and workers and other contents as agreed upon by the involved parties;

c) If a service enterprise unilaterally liquidates a contract, the document on contract liquidation must have the following contents: the reason for unilateral liquidation of the contract; the performance of liabilities by involved parties; sums paid by the service enterprise and the worker, and compensations (if any) enclosed with documents evidencing the damage;

d) The refund of workers' deposits upon liquidation of guest worker contracts complies with the guidance of the Ministry of Labor, War Invalids and Social Affairs and the State Bank of Vietnam;

e) The liquidation of guaranty contracts upon liquidation of guest worker contracts complies with the guidance of the Ministry of Labor, War Invalids and Social Affairs and the Ministry of Justice.

4. Management, protection of lawful rights and interests of workers (Points e and g, Clause 2, Article 27 of the Law):

a) Within 15 days after workers' exit for working abroad, a service enterprise shall report the list of concerned guest workers, made according to the form in Appendix 09 to this Circular (not printed herein), to the Vietnamese diplomatic mission and consulate in the host country;

b) Service enterprises shall appoint their personnel to manage guest workers in countries and regions to which they send large numbers of workers or in particular labor markets according to regulations of the Guest Workers Administration Bureau;

c) Service enterprises shall monitor and supervise the performance of labor contracts between workers and employers, promptly settle problems arising beyond workers' sending capacity or upon workers request.

VI. REPORTING

(Clause 12, Article 8 of Decree No. 126/2007/ND-CP)

1. Reporting by service enterprises:

a) To draw up lists of guest workers and lists of workers returning home or quitting contracts according to the forms in Appendices 10 and 11 to this Circular (not printed herein) and send them to the Guest Workers Administration Bureau before the 20th every month;

b) To make annual reports on the situation of sending workers abroad, enclosed with financial reports on the sending of workers abroad, made according to the form in Appendix 13 to this Circular (not printed herein), and send them to the Guest Workers Administration Bureau before December 20 every year;

c) To make reports on the number of local workers recruited to work abroad according to the form in Appendix 14 to this Circular (not printed herein) and send them to the Guest Workers Administration Bureau before December 20 every year;

2. Reporting by non-business organizations sending workers abroad:

a) To draw up lists of guest workers and lists of workers returning home or quitting contracts according to the forms in Appendices 10 and 11 to this Circular (not printed herein) and send them to the Guest Workers Administration Bureau before the 20th every month;

b) To send annual reports on the situation of sending workers abroad to the ministries, ministerial-level agencies and government-attached agencies directly managing the organizations and to the Guest Workers Administration Bureau before December 20 every year;

3. Reporting by enterprises winning or receiving contracts, and organizations or individuals making offshore investment:

a) To draw up lists of guest workers according to the form in Appendix 15 to this Circular (not printed herein) and send them to the Guest Workers Administration Bureau at least 20 days before sending workers abroad;

b) To send annual reports on the situation of sending workers abroad to the Guest Workers Administration Bureau before December 20 every year.

4. Reporting by enterprises sending workers abroad for working in the form of skill improvement internship:

a) To draw up lists of guest workers under signed contracts according to the form in Appendix 16 to this Circular (not printed herein) and send them to Guest Workers Administration Bureau and the provincial/municipal Services of Labor, War Invalids and Social Affairs which register inter-acceptance contracts (for contracts of a term of under 90 days) at least 5 days after the workers' exit;

b) To make reports on the situation of guest workers after completing intern-acceptance contracts according to the form in Appendix 17 to this Circular (not printed herein) and send them to the Guest Workers Administration Bureau and the provincial/municipal Labor, War Invalids and Social Affairs Service which register intern-acceptance contracts (for contracts of a term of under 90 days).

5. Reporting by provincial/municipal Services of Labor, War Invalids and Social Affairs:

a) To draw up lists of workers registering to go to work abroad under individual contracts according to the form in Appendix 12 to this Circular (not printed herein) and lists of guest workers working under intern-acceptance contracts registered in localities quarterly and send them to the Guest Workers Administration Bureau before the 20th of the last month of every quarter;

b) To send to the Guest Workers Administration Bureau reports on the number of local workers recruited and sent to work abroad and the local situation of sending workers abroad before December 20 every year.

VII. ORGANIZATION OF IMPLEMENTATION

1. This Circular takes effect 15 days after its publication in CONG BAO.

2. This Circular replaces Circular No. 22/2003/TT-BLDTBXH dated October 13, 2003, guiding the implementation of a number of articles of the Governments Decree No. 81/2003/ND-CP dated July 17, 2003, detailing and guiding the implementation of the Labor Code regarding Vietnamese guest workers.

3. In the course of implementation, arising problems should be reported to the Ministry of Labor, War Invalids and Social Affairs for study and solution.