Thông tư liên tịch 32/2013/TTLT-BLĐTBXH-BNG của Bộ Lao động Thương binh và Xã hội, Bộ Ngoại giao về việc hướng dẫn trình tự, thủ tục xử phạt vi phạm hành chính đối với hành vi vi phạm quy định tại điểm a, điểm b và điểm c khoản 2 Điều 35 của Nghị định 95/2013/NĐ-CP ngày 22/08/2013 của Chính phủ

THE MISTRY OF LABOR, INVALIDS AND SOCIAL AFFAIRS – THE MINISTRY OF FOREIGN AFFAIRS

Joint Circular No. 32/2013/TTLT-BLDTBXH-BNG dated December 06, 2013 of the Ministry of Labor – Invalids and Social Affairs and the Ministry of Foreign Affair guiding the orders, procedures of sanctioning the administrative violations as specified at Point a, Point b and Point c Clause 2 Article 35 of the Decree No. 95/2013/ND-CP dated August 22, 2013 of the Government

Pursuant to the Decree No. 106/2012/ND-CP dated December 20, 2012 of the Government defining the functions, tasks, powers and organizational structure of the Ministry of Labor, War Invalids and Social Affairs;

Pursuant to the Decree No. 58/2013/ND-CP dated June 11, 2013 of the Government defining the functions, tasks, powers and organizational structure of the Ministry of Foreign Affairs;

Pursuant to the Decree No. 95/2013/ND-CP dated August 22, 2013 of the Government on penalties of administrative violations in labor, social insurance and overseas manpower supply by contract;

The Minister of Labor, War Invalids and Social Affairs and minster of Foreign Affairs promulgate the Circular guiding the orders, procedures of sanctioning administrative violations for acts of violation specified under Point a, Point b and Point c Clause 2 Article 35 of the Decree No.  95/2013/ND-CP dated August 22, 2013 of the Government on penalties of administrative violations in labor, social insurance and overseas manpower supply by contract;

Article 1. Scope of application

This Circular guides the orders, procedures of sanctioning administrative violations for acts of violations specified under Point a, Point b and Point c Clause 2 Article 35 of the Decree No.  95/2013/ND-CP dated August 22, 2013 of the Government on penalties of administrative violations in labor, social insurance and overseas manpower supply by contract (hereinafter referred as the Decree No. 95/2013/ND-CP).

Article 2. Subjects of application

1. Vietnamese workers working overseas by contract have one of the following acts:

a) Illegally staying in the host country after the labor contract or visa expires;

b) Failing to go to the contractual workplace after being admitted by the host country;

c) Enticing, forcing, deceiving Vietnamese workers into staying in the host country illegally;

2. Other agencies, organizations, individuals that are related to the sanction of administrative violations.

Article 3.Making records on violations

1. Persons competent in imposing penalties for administrative violations in the field of overseas manpower supply by contract, diplomatic officials, consular officials at diplomatic agencies, consular agencies and at other agencies authorized to perform consular functions of Vietnam overseas (hereinafter referred as overseas Vietnamese representative agencies, officials and civil servants on duty are entitled to impose penalties shall make records on administrative violations for acts of violations specified under Point a, Point b and Point c Clause 2 Article 35 of the Decree No. 95/2013/ND-CP when having one of the following bases:

a) Directly detecting the acts of violations when being on duty;

b) Receiving the notifications in wring from competent agencies, organizations at host country from acts of violation of workers;

c) Receiving the notification in writing of employers about acts of violation of workers; the content of the notification must be checked and verified before making records.

2. Making record of administrative violation shall comply with the regulations specified under Clause 2 and Clause 3 Article 58 of the Law on Handling of Administrative Violations.

3. After making record, the record must be given to the violator and sent to the competent person for consideration and making decisions on sanctioning administrative violations according to the regulations specified under Article 4 of this Circular;

a) The record made at People’s Committees where the violator resides before working overseas by officials, public servants on duty shall be sent to the Presidents of the People’s Committeesofprovinces and cities under direct central authority;

b) The record by officials, public servants on duty inlabor, invalids and social affairs sector shall be sent to the Head of the Overseas Labor Management Department;

c) The record made bylabor inspectors shall be sent to the chief inspector of the Ministry of Labor – Invalids and Social Affairs;

d) The record made by diplomatic officials, consular officials of overseas Vietnamese representative agencies shall be sent to the head of overseas Vietnamese representative agencies;

Article 4. Issuance of decisions on sanctioning administrative violations

1. Within 30 days after making the record on administrative violation, persons competent in imposing penalties for acts of violation specified under Point a, Point b and Point c Clause 3 Article 35 of the Decree No. 95/2013/ND-CP must issue the decision on sanctioning administrative violations. If the violator does not request for explanation within the time as specified under Clause 2 and Clause 3 of Article 61 of the Law on handling administrative violation, the time to issue the decision is within 7 days after written records of administrative violations are made.

2. For special cases involving many complicated circumstances that need more time for verification and collection of proof, the time limit to issue the decision of sanctioning administrative violation shall be prolonged for another 30 days.

Article 5. Sending the decision on sanctioning administrative violation

1. The decision on sanctioning administrative violation shall be sent to the violator, agencies collecting the fines, the president of People’s Committee of commune where the violator resided before working overseas for execution and it will be sent to the Labor – Invalids – Social Affairs Department of provinces and cities under central authority where the violator resided before working overseas within 2 working days since the day of issuing the sanctioning decision.

If the head of overseas Vietnamese representative agencies issues the sanctioning decision, within 2 working days since the day of issuing the decision, the sanctioning decision must be sent to the Department of Overseas Labor Management (Ministry of Labor – Invalids and Social Affairs) to transfer to the above agencies.

2. If the sanctioning decision can’t be handed over to the violator due to failing to verify the residence place, working place of the violator, the sanctioning decision shall be posted at the office of People’s Committee of commune where the violator resided before working overseas and overseas Vietnamese representative agencies that issues the sanctioning decision; and it shall be sent to the violator’s family or the guarantee (if any).

Article 6. Execution of the sanctioning decision on administrative violation

1. The violator may make payment at the office of the collecting agencies in Vietnam or Overseas Vietnamese Representative Agencies according to the regulations as specified under Article 41 of the Decree No. 95/2013/ND-CP.

2. If the sanctioning decision includes the remedial measures ofsuspending the worker from working abroad, communal competent agencies where the violator resided shall not be allowed to verify the dossier for that person to work abroad with in the time specified in the sanctioning decision.

Article 7. Enforcement of decision on settling administrative offenses

1. If the violator fails to comply with the sanctioning decision on administrative violation within the time limit, the issuer of the sanctioning decision shall send the sanctioning decision to the president of the People’s Committee of provinces and cities under central authority where the violator resided before working abroad to issue the enforcement of decision on settling administrative offenses.

If the head of the overseas Vietnamese representative agencies issues the sanctioning decision, the sanctioning decision on settling administrative violation shall be transferred to home country through the Department of Overseas Labor (Ministry of Labor – Invalids and Social Affairs).

2. Enforcement measures of decision on settling administrative violation shall be applied according to the Decree No.166/2013/ND-CP dated 12 November 2013 on enforcement of decision on settling administrative offenses.

Article 8. Implementation provisions

1. The Circular takes effect on January 21, 2014.

2. Every six months, competent agencies shall make a report on settling administrative violation as prescribed under this Circular as follows:

a) Overseas Vietnamese representative agency shall report to the Ministry of Foreign Affairs and the Ministry of Labor – Invalids and Social Affairs on the result of making record on administrative violation in the area and the result of settling administrative violation that the head of overseas Vietnamese representative agency issued the sanctioning decision.

b) The department of Labor – Invalids and Social Affairs of provinces and cities under central authority shall report the Ministry of Labor – Invalids and Social Affairs on the result of settling administrative violation.

c) Department of Overseas Labor shall report the Ministry of Labor – Invalids and Social Affairs on the result of settling administrative violation.

d) The inspector of the Ministry of Labor – Invalids and Social Affairs shall report the Ministry of Labor – Invalids and Social Affairs on the result of settling administrative violation that the chief inspector of the Ministry of Labor – Invalids and Social Affairs issued the sanctioning decision.

3. Department of Overseas Labor shall be responsible for inspecting the implementation of this Circular; summarizing and reporting to the Ministry of Labor – Invalids and Social Affairs on the result of settling administrative violation of workers as specified under Clause 1 Article 2 of this Circular; periodically provide information on the list of workers as specified under Clause 1 Article 2 of this Circular on the portal of the department of Overseas Labor; reporting to the related agencies in order tocoordinate withand implement contents as prescribed under this Circular.

4.In the course of implementation, any arising problems should be reported to the Ministryof Labor – Invalids and Social Affairsin order to coordinate with the Ministry of Foreign Affairs for timely guidance.