Vietnam Legal and Tax Update - Alert on New Labour Regulation - September 2013
On 05 September 2013, the Government issued Decree No. 102/2013/ND-CP (“Decree 102”), providing specific guidelines for some Articles of the new Labour Code in related to the foreign employees working in Vietnam.
Below are some key points of Decree 102 that may be of interest
- Foreign employees working in Vietnam for period less than 3 months shall now be required to apply for the work permit, except for foreigners coming to Vietnam to offer services or to handle complicated technical issues which is beyond expertise of the local or foreign experts in Vietnam. Apart from this, Decree 102 provides some additional cases which are exempted from work permit application (for example, teachers of foreign organizations dispatched to Vietnam to teach at international schools under the management of the diplomatic organization or international organizations in Vietnam).
- On an annual basis, the Employer (except for foreign contractors) must determine its demand on using the foreign employees for some working positions which cannot be done by the local employee and report to the Chairman of Provincial People's Committee where the company is located. The Employer shall obtain approval from the Chairman of Provincial People's Committee for each of the working positions. This approval is actually part of the dossier when the Employer applies work permit for its foreign employees.
- For the foreign contractors, it is required to include into the bidding documents the declaration of number of foreign specialists, their qualifications, professional qualifications and experience that are mobilized to implement the project. It is strictly prohibited the use of unskilled, untrained foreign employee performing jobs which Vietnamese workers are able to perform. Before the employment of foreigners for the work in Vietnam, the contractor must submit a request for the local labour of the respective working positions to the Chairman of Provincial People's Committee, according to which the Chairman shall instruct the relevant organizations to introduce local employees to the contractors. Only where the local employees cannot meet the requirement of the contractors, the Chairman shall consider allowing the contractors to employ foreigners for the work in Vietnam.
- The employer needs to apply for the confirmation from the DoLISA for the foreign employees that not subject to work permit granting.
Decree 102 will take effective from 01 November 2013.