Thông tư 41/2014/TT-BCT lao động nước ngoài di chuyển trong nội bộ doanh nghiệp

THE  MINISTRY OF INDUSTRY AND TRADE

Circular No. 41/2014/TT-BCT datedNovember 05, 2014 of the Ministry of Industry and Trade onbasis, procedures for identification of foreign workers reassigned within enterprises operating within 11 service sectors in Vietnam s WTO Commitments on services, who are exempt from work permits

Pursuant to the Government s Decree No. 95/2012/ND-CP dated November 12, 2012, defining the functions, tasks, powers and organizational structure of the Ministry of Industry and Trade;

Pursuant to the Government s Decree No. 102/2013/ND-CP dated September 05, 2013 on guidelines for some Articles of the Labor Code on foreign workers in Vietnam;

At the request of the Planning Office,

The Minister of Industry and Trade promulgates a Circular on basis, procedures for identification of foreign workers reassigned within enterprises operating within 11 service sectors in Vietnam s WTO commitments on services, who are exempt from work permits:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of adjustment

This Circular deals with the basis, procedures for identification of foreign workers reassigned within enterprises operating within 11 service sectors in Vietnam s WTO commitments on services, who are exempt from work permits.

Article 2. Subject of application

This Circular applies to foreign workers reassigned within the enterprise, foreign employers, and relevant entities.

Article 3. Commercial presence

Commercial presence prescribed in Clause 1 Article 3 of the Government s Decree No. 102/2013/ND-CP dated September 05, 2013 on guidelines for some Articles of the Labor Code on foreign workers in Vietnam (hereinafter referred to as Decree No. 102/2013/ND-CP) includes:

a) Business cooperation contracts;

b) Joint ventures, wholly foreign-invested enterprises;

c) Representative offices, branches of foreign enterprises.

Chapter II

BASIS, PROCEDURES FOR IDENTIFICATION OF FOREIGN WORKERS REASSIGNED WITHIN AN ENTERPRISE OPERATING WITHIN 11 SERVICE SECTORS ACCORDING TO VIETNAM S COMMITMENT TO WTO

Article 4. Basis for identification of foreign workers reassigned within enterprises operating within 11 service sectors in Vietnam s WTO commitments on services, who areexempt from work permits

1. The basis for identification of foreign workers being managers, executive officers, and experts reassigned within an enterprise operating within 11 service sectors in Vietnam s WTO commitments on services, who are exempt from work permits prescribed in Point a Clause 2 Article 7 of the Decree No. 102/2013/ND-CP, includes:

a) The foreign enterprise has established a commercial presence in Vietnam;

b) The commercial presence in Vietnam of the foreign enterprise operates within 11 service sectors specified in Appendix I hereof;

c) Any foreign worker that has been employed by the foreign enterprise for at least 12 months before being sent to work at the company s commercial presence in Vietnam.

2. The basis for identification of foreign workers being skilled workers experts reassigned within an enterprise that operates within 11 service sectors in Vietnam s WTO commitments on services, who are exempt from work permits prescribed in Point a Clause 2 Article 7 of the Decree No. 102/2013/ND-CP, includes:

a) The foreign enterprise has established a commercial presence in Vietnam;

b) The commercial presence in Vietnam of the foreign enterprise operates within 11 service sectors specified in Appendix II hereof;

c) Any foreign worker that has been employed by the foreign enterprise for at least 12 months before being sent to work at the company s commercial presence in Vietnam.

Article 5. Procedures for identification of foreign workers reassigned within enterprises operating within 11 service sectors in Vietnam s WTO commitments on services

1. Documents proving foreign workers reassigned within an enterprise operating within 11 service sectors specified in Appendix I and Appendix II hereof, who are exempt from work permits as prescribed in Point c Clause 2 Article 7 of the Decree No. 102/2013/ND-CP, includes:

a) A document issued by the foreign enterprise, which assigns the person to work at the enterprise s commercial presence in Vietnam and specifies the work duration;

b) A certification of the position of manager, executive officer, expert, or skilled worker as prescribed in Clause 4 Article 10 of the Decree No. 102/2013/ND-CP and Clause 3 Article 5 of Circular No. 03/2014/TT-BLDTBXH dated January 20, 2014 of the Ministry of Labor, War Invalids and Social Affairs, which provides guidelines for the Decree No. 102/2013/ND-CP (hereinafter referred to as Circular No. 03/2014/TT-BLDTBXH);

c) A document proving that the foreign worker has been employed by the foreign enterprise for at least 12 months before being sent to work at the company s commercial presence in Vietnam as prescribed in Clause 5 Article 5 of Circular No. 03/2014/TT-BLDTBXH.

The documents mentioned in Points a, b, and c of this Clause may be an original or a copy. Documents in foreign languages must be translated into Vietnamese, authenticated in accordance with Vietnam s Law, and are exempt from consular legalization;

d) A document proving that the commercial presence in Vietnam of the foreign enterprise engages in only the 11 service sectors specified in Appendix I hereof, which is any of the following documents: Investment license, certificate of investment, Certificate of Business Registration, Certificate of Business registration, license for establishment of a representative office or branch issued by a competent authority in accordance with Vietnam s law (01 certified true copy).

2. Foreign workers reassigned within a enterprise operating within 11 service sectors in Vietnam s WTO commitments on services shall follow procedures for certification of eligibility for exemption from work permit prescribed in Article 11 of the Circular No. 03/2009/TT-BTC.

3. If the Service of Labor, War Invalids and Social Affairs faces difficulties in identification of foreign workers reassigned within the enterprise operating within 11 service sectors specified Appendix I and Appendix II hereof, which is the basis for determination of the foreign worker s eligibility for exemption from work permit, the Service of Labor, War Invalids and Social Affairs shall send a written request for opinions to the Ministry of Industry and Trade using form No. 1 in Appendix III hereof (01 original) together with the documents mentioned in Clause 1 of this Article (01 copy)

Within 03 working days from the receipt of the request from the Service of Labor, War Invalids and Social Affairs, the Ministry of Industry and Trade shall send a document to the Service of Labor, War Invalids and Social Affairs, specifying whether the operation of the foreign enterprise s commercial presence in Vietnam is operating within 11 service sectors in Appendix I and Appendix II hereof.

4. If the employer does not concur with the Service of Labor, War Invalids and Social Affairs in identification of foreign workers reassigned within the enterprise engaged in only 11 service sectors in Appendix I and Appendix II hereof, the employer shall send a written request for opinions to the Ministry of Industry and Trade using form No. 2 in Appendix III hereof (1 original) together with the documents mentioned in Clause 01 of this Article (01 copy) and the written response of the Service of Labor, War Invalids and Social Affairs to the employer (01 copy).

Within 05 working days from the receipt of the request from the employer, the Ministry of Industry and Trade shall send a document to the employer and the Service of Labor, War Invalids and Social Affairs, specifying whether the foreign enterprise s commercial presence in Vietnam is operating within 11 service sectors in Appendix I and Appendix II hereof.

The Service of Labor, War Invalids and Social Affairs shall reconsider the foreign workers eligibility for exemption from work permits pursuant to the response of the Ministry of Industry and Trade.

Chapter III

IMPLEMENTATION PROVISION

Article 6. Implementation organization

1. Planning Office - The Ministry of Industry and Trade is in charge of settling the issues pertaining to identification of foreign workers reassigned within enterprises operating within 11 service sectors in Vietnam s WTO commitments on services as specified in Appendix I and Appendix II hereof.

2. Services of Labor, War Invalids and Social Affairs shall identify foreign workers reassigned within enterprises operating within 11 service sectors in Vietnam s WTO commitments on services, who are exempt from work permits.

3. Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Industry and Trade for prompt instructions.

Article 7. Reporting

Every 06 months, before January 15 and July 15, each Service of Labor, War Invalids and Social Affairs shall send a report to the Ministry of Industry and Trade and the Ministry of Labor, War Invalids and Social Affairs on foreign workers at local enterprises and organizations according to Point c Clause 7 Article 13 of Circular No. 03/2014/TT-BLDTBXH, including those who are exempt from work permits (box 20 and box 21) and those who are reassigned within the enterprise.

Article 8. Implementation effect

This Circular takes effect from December 22, 2014./.

For the Minister

The Deputy Minister

Do Thang Hai

APPENDIX I

LIST OF 11 SERVICE SECTORS EXEMPT FROM WORK PERMITS APPLIED TO FOREIGN WORKERS BEING MANAGERS, EXECUTIVE OFFICERS, AND EXPERTS ACCORDING TO VIETNAM S WTO COMMITMENTS ON SERVICES
(Promulgated together with Circular No. 41/2014/TT-BCT dated November 05, 2014 of the Ministry of Industry and Trade)

I. EXPLANATORY NOTES

In this Appendix, the symbols (*) and (**) indicate sub-sectors.

1. The service bearing the symbol (*) is consider a sub-sector of a service sector that covers a larger area without a specific CPC code. Example: CPC code of convention services is 87909*, meaning it is a sub-sector of some service sector in Central Product Classification, and this sector covers a larger area than convention services.

2. The service bearing the symbol (**) is consider a sub-sector of a service sector that covers a larger area with a specific CPC code.This code does not bear the symbol (**).e.g. voice mail service with CPC 7523** is a sub-section of data and message transmission services with CPC 7523).

II. LIST OF 1 SERVICE SECTORS

1. BUSINES SERVICES

A. Professional services

a) Legal services (CPC 861, excluding: participation in legal proceedings in the capacity of defenders or representatives of their clients before the courts of Viet Nam; legal documentation and certification services of the laws of Viet Nam).

b) Accounting, auditing and bookkeeping services (CPC 862).

c) Taxation services (CPC 863).

d) Architectural services (CPC 8671).

dd) Engineering services (CPC 8672).

e) Integrated engineering services (CPC 8673).

g) Urban planning and urban landscape architectural services (CPC 8674).

B. Computer services and related services (CPC 841 - 845, CPC 849)

C. Research and development services

Research and development services on natural sciences (CPC 851).

D. Rental/leasing services without operators

Aircraft rental (CPC 83104).

DD. OTHER BUSINES SERVICES

a) Advertising services (CPC 871, excluding advertising for cigarettes).

b) Market research services (CPC 864, excluding 86402).

c) Management consultant services (CPC 865).

d) Services related to management consulting (CPC 866, except CPC 86602 and Arbitration and conciliation services for commercial disputes between businesses (CPC 86602**))

dd) Technical testing and analysis services (CPC 8676, excluding conformity testing of transport vehicles and certification of transport vehicles).

e) Services incidental to agriculture, hunting and forestry (CPC 881).

g) Services incidental to mining (CPC 883), excluding supply of equipment, materials and chemicals, supply base services, offshore/marine support vessels, accommodation and catering, aviation services.

h) Services incidental to manufacturing (CPC 884 and 885).

i) Services related to scientific and technical consulting (CPC 86751, 86752 and 86753 only).

k) Maintenance and repair of equipment (not including maritime vessels, aircraft or other transport equipment) (CPC 633)

2. COMMUNICATION SERVICES

A. Courier Services (CPC 7512**)

* Express delivery services, i.e. services consisting of collection, sorting, transport and delivery, whether for domestic or foreign destination:

a) Written communication, on any kind of physical medium, including hybrid mail service and direct mail.

 Except for the handling of items of written communication the price of which is less than: 10 times the tariff for the handling of a standard domestic letter in the first weight level for domestic shipments; US$9 for international shipments, provided that the gross weight of these items is less than 2,000 grams.

b) Parcels and other goods.

* Handling of non-addressed items.

B. TELECOMMUNICATION SERVICES

Basic telecommunication services

a) Voice telephone services (CPC 7521).

b) Packet-switched data transmission services (CPC 7523**).

c) Circuit-switched data transmission services (CPC 7523**).

d) Telex services (CPC 7523**).

dd) Telegraph services (CPC 7523**).

e) Facsimile services (CPC 7521** + 7529**).

g) Private leased circuit services (CPC 7521** + 7529**).

h*) Other services:

- Videoconference services (CPC 75292);

- Video transmission services, excluding broadcasting.

- Radio based services includes:

+ Mobile telephone (terrestrial and satellite)

+ Mobile data (terrestrial and satellite);

+ Paging;

+ PCS;

+ Trunking;

- Internet Exchange Service (IXP).

- Virtual Private Network (VPN).

Value-added services

a) Electronic mail (CPC 7523**).

b) Voice mail (CPC 7523**).

c) On-line information and database retrieval (CPC 7523**).

d) Electronic data interchange (EDI) CPC (7523**).

dd) Enhance/value-added facsimile services, including store and forward, store and retrieve (CPC 7523**).

e) Code and protocol conversion.

g) On-line information and data processing (including transaction processing) (CPC 843**).

h) Other services

Internet Access Services IAS

C. Audiovisual Services

a) Motion picture production (CPC 96112, excl. video tape).

b) Motion picture distribution (CPC 96113, excl. video tape).

c) Motion picture projection service (CPC 96121).

d) Sound recording.

3. CONSTRUCTION AND RELATED ENGINEERING SERVICES

A. General construction work for building (CPC 512)

B. General construction work for civil engineering (CPC 513)

C. Installation and assembly work (CPC 514, 516)

D. Building completion and finishing work (CPC 517)

DD. Other (CPC 514, 516)

4. DISTRIBUTION SERVICES

A. Commission agents services (CPC 621, 61111, 6113, 6121)

B. Wholesale trade services (CPC 622, 61111, 6113, 6121)

C. Retailing services (CPC 622, 61111, 6113, 6121)

D. Franchising services (CPC 8929)

5. EDUCATIONAL SERVICES

A. Secondary education services (CPC 922)

B. Higher education services (CPC 923)

C. Adult education (CPC 924)

D. Other education services (CPC 929 including foreign language training)

6. ENVIRONMENTAL SERVICES

A. Sewage services (CPC 9401)

B. Refuse disposal services (CPC 9402)

C. Other services

- Cleaning services of exhaust gases (CPC 94040) and noise abatement services (CPC 94050);

- Environmental impact assessment services (CPC 94090*)

7. FINANCIAL SERVICES

A. Insurance and insurance-related services

a) Direct insurance:

- Life insurance, excluding health insurance services;

- Non-life insurance services

b) Reinsurance and retrocession

c. Insurance intermediation (such as brokerage and agency).

d) Services auxiliary to insurance (such as consultancy, actuarial, risk assessment and claim settlement).

B. Banking and other financial services

a) Acceptance of deposits and other repayable funds from the public.

b) Lending of all types, including consumer credit, mortgage credit, factoring and financing of commercial transaction.

c) Financial leasing.

d) All payment and money transmission services, including credit, charge and debit cards, travellers cheques and bankers drafts.

dd) Guarantees and commitments.

e) Trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:

- Money market instrument (including cheques, bills, certificates of deposits);

- Foreign exchange;

- Exchange rate and interest rate instrument, including products such as swaps, forward rate agreements;

- Bullion.

g) Money broking.

h) Asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository and trust services.

i) Settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments.

k) Provision and transfer of financial information, and financial data processing and related software by suppliers of other financial services.

l) Advisory, intermediation and other auxiliary financial services on all activities listed in subparagraphs from (a) to (k), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy.

C. Securities

a) Trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:

- Derivative products including futures and options;

- Transferable securities;

- Other negotiable instruments and financial assets, excluding bullion.

b) Participation in issues of all kinds of securities, including under-writing and placement as an agent (publicly or privately), provision of services related to such issues.

c) Asset management, such as portfolio management, all forms of collective investment management, pension fund management, custodial depository and trust services.

d) Settlement and clearing services for securities, derivative products, and other securities-related instruments.

dd) Provision and transfer of financial information, and related software by suppliers of securities services.

e) Advisory, intermediation and other auxiliary securities-related excluding (a), including investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy (for other services under (e), refer to (e) under banking sector).

8. HEALTH RELATED AND SOCIAL SERVICES

A. Hospital services (CPC 9311)

B. Medical and dental services (CPC 9312)

9. TOURISM AND TRAVEL RELATED SERVICES

A. Hotel and restaurant, including:

- Lodging services (CPC 64110).

- Catering food (CPC 642) and drink services (CPC 643).

B. Travel agencies and tour operator services (CPC 7471)

10. RECREATIONAL, CULTURAL AND SPORTING SERVICES

A. Entertainment services (including theatre, live bands and circus services) (CPC 9619)

B. Other services

Electronic games business (CPC 964**).

11. TRANSPORT SERVICES

A. Maritime transport services

a) Passenger transportation less cabotage (CPC 7211).

b) Freight transportation less cabotage (CPC 7212).

c) Maritime Auxiliary Services

- Container handling services (CPC 7411);

- Customs Clearance Services;

- Container station and depot services.

B. Internal Waterways Transport

a) Passenger transport (CPC 7221).

b) Freight transport (CPC 7222).

C. Air transport services

a) Sales and marketing air products services.

b) Computer reservation services.

c) Maintenance and repair of aircraft (CPC 8868**).

D. Rail transport services

a) Passenger transport (CPC 7111).

b) Freight transport (CPC 7112).

D. Road transport services

a) Passenger transport (CPC 7121+7122).

b) Freight transport (CPC 7123).

E. Services auxiliary to all modes of transport

a) Container handling services, except services provided at airports (part of CPC 7411).

b) Storage and warehouse services (CPC 742).

c) Freight transport agency services (CPC 748).

d) Other services (part of CPC 749)./.

APPENDIX II

LIST OF 11 SERVICE SECTORS EXEMPT FROM WORK PERMITS APPLIED TO FOREIGN WORKERS BEING SKILLED WORKERS ACCORDING TO VIETNAM S WTO COMMITMENTS ON SERVICES
(Promulgated together with Circular No. 41/2014/TT-BCT dated November 05, 2014 of the Ministry of Industry and Trade)

I. EXPLANATORY NOTES

In this Appendix, the symbols (*) and (**) indicate sub-sectors.

1. The sub-sector bearing the symbol (*) is consider a sub-sector of a service sector that covers a larger area without a specific CPC. Example: CPC code of convention services is 87909*, meaning it is a sub-sector of some service sector in Central Product Classification, and this sector covers a larger area than convention services.

2. The service bearing the symbol (**) is consider a sub-sector of a service sector that covers a larger area with a specific CPC code.This code does not bear the symbol (**).e.g. voice mail service with CPC 7523** is a sub-section of data and message transmission services with CPC 7523).

II. LIST OF 11 SERVICE SECTORS

1. BUSINES SERVICES

A. Professional services

a) Legal services (CPC 861, excluding: participation in legal proceedings in the capacity of defenders or representatives of their clients before the courts of Viet Nam; legal documentation and certification services of the laws of Viet Nam).

b) Taxation services (CPC 863)

c) Architectural services (CPC 8671)

d) Engineering services (CPC 8672)

dd) Integrated engineering services (CPC 8673)

e) Urban planning and urban landscape architectural services (CPC 8674)

B. Computer services and related services (CPC 841 - 845, CPC 849)

C. Research and development services

Research and development services on natural sciences (CPC 851)

D. Rental/leasing services without operators

Aircraft rental (CPC 83104)

DD. OTHER BUSINES SERVICES

a) Services related to management consulting (CPC 866, except CPC 86602 and Arbitration and conciliation services for commercial disputes between businesses (CPC 86602**))

b) Services related to scientific and technical consulting (CPC 86751, 86752 and 86753 only).

2. COMMUNICATION SERVICES

A. TELECOMMUNICATION SERVICES

Basic telecommunication services

a) Telex services (CPC 7523**)

b) Telegraph services (CPC 7523**)

c) Facsimile services (CPC 7521** + 7529**)

Value-added services

d) Enhance/value-added facsimile services, including store and forward, store and retrieve (CPC 7523**)

dd) Other services

B. Audiovisual Services

a) Motion picture projection service (CPC 96121)

b) Sound recording

3. CONSTRUCTION AND RELATED ENGINEERING SERVICES

Installation work (CPC 514)

4. DISTRIBUTION SERVICES

Franchising services (CPC 8929)

5. EDUCATIONAL SERVICES

Higher education services (CPC 923)

6. ENVIRONMENTAL SERVICES

Environmental impact assessment services (CPC 94090*)

7. FINANCIAL SERVICES

Non-life insurance services

8. HEALTH RELATED AND SOCIAL SERVICES

Medical and dental services (CPC 9312)

9. TOURISM AND TRAVEL RELATED SERVICES

Travel agencies and tour operator services (CPC 7471)

10. RECREATIONAL, CULTURAL AND SPORTING SERVICES

A. Entertainment services (including theatre, live bands and circus services) (CPC 9619)

B. Other services

Electronic games business (CPC 964**)

II. TRANSPORT SERVICES

Sales and marketing air products services./.

APPENDIX III

Form No. 1:Promulgated together with Circular No. 41/2014/TT-BCT dated November 05, 2014 of the Ministry of Industry and Trade

To: Ministry of Industry and Trade

Pursuant to Circular No.      /2014/TT-BCT dated                of the Ministry of Industry and Trade on basis, procedures for identification of foreign workers reassigned within enterprises operating within 11 service sectors in Vietnam s WTO commitments on services, who are exempt from work permits.

The Service of Labor, War Invalids and Social Affairs of ......... hereby requests the Ministry of Industry and Trade to determine whether the commercial presence in Vietnam of the foreign enterprise is operating within 11 service sectors in Vietnam s WTO commitments on services (relevant documents are enclosed herewith)./.

Form No. 2:Promulgated together with Circular No. 41/2014/TT-BCT dated November 05, 2014 of the Ministry of Industry and Trade

To: Ministry of Industry and Trade

Pursuant to Circular No.   /2014/TT-BCT dated        of the Ministry of Industry and Trade on basis, procedures for identification of foreign workers reassigned within enterprises operating within 11 service sectors in Vietnam s WTO commitments on services, who are exempt from work permits,

[Name of the enterprise/organization] hereby requests the Ministry of Industry and Trade to determine whether the enterprise/organization is operating within 11 service sectors in Vietnam s WTO commitments on services (relevant documents are enclosed herewith)./.