Coming into force on January 1 this year, the 2020 Law on Vietnamese Guest Workers (the Law) defines the rights, obligations and responsibilities of Vietnamese guest workers, enterprises, non-business units, and agencies, organizations and individuals involved in the field of Vietnamese guest workers. The Law also prescribes occupational knowledge and skills training and foreign language and career orientation education for workers, the Fund for Overseas Employment Support, policies toward workers, and state management of the field of Vietnamese guest workers.
The 74-article Law aims to institutionalize the 2013 Constitution and the Party’s recent guidelines on the sending of Vietnamese workers abroad as well as deal with emerging problems.
The Law is expected to create a transparent and synchronous legal environment for sending of Vietnamese workers abroad as guest workers, ensuring the compatibility between the law on Vietnamese guest workers and relevant laws of host countries and international conventions related to migrant workers. The Law also creates favorable conditions for Vietnamese workers who wish to work abroad while ensuring prompt protection of and support for them in the current trend of international labor mobility and prevention of special risks such as war, global economic recession, Covid-19 pandemic, etc. Other objectives of the Law are to reform administrative procedures, eliminate or simplify business investment conditions for enterprises providing the service of sending Vietnamese workers abroad as guest workers, and strictly manage such enterprises for the purpose of protecting workers as the service of sending Vietnamese workers abroad as guest workers is a special conditional business line.
Compared to the 2006 version, the Law contains some salient new provisions.
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Forms of contract applicable to Vietnamese guest workers
According to Article 5 of the Law, contracts applicable to Vietnamese guest workers include: (i) Contracts on the sending of Vietnamese workers abroad, signed with non-business units to implement international agreements; (ii) Contracts or written agreements on the sending of Vietnamese workers abroad, signed with Vietnamese enterprises providing the service of sending Vietnamese workers abroad as guest workers; Vietnamese enterprises that have won or received contracts to execute works or projects abroad; Vietnamese enterprises sending Vietnamese workers abroad for occupational knowledge and skills training or improvement; or Vietnamese organizations and individuals making offshore investment and; (iii) Labor contracts signed by Vietnamese workers directly with overseas employers.
Particularly, according to Article 54 of the Law, workers who lawfully enter into labor contracts after leaving the country will be entitled to the rights specified at Points a, b, d, e, h and i, Article 6.1 of the Law if they make online registration of their contracts with state authorities of Vietnam and fulfill the obligations mentioned at Points a, b and i, Article 6.2 of the Law.
Conditions for grant of licenses for providing the service of sending Vietnamese workers abroad as guest workers
The Law adds provisions on charter capital, deposits, at-law representatives, professional staff, physical facilities and websites of enterprises providing the service of sending Vietnamese workers abroad as guest workers (service enterprises) while removing provisions on organizational structure plan and operation scheme of these enterprises.
Under Article 10 of the Law, to be granted a license for provision of the service of sending Vietnamese workers abroad as guest workers, an enterprise must have the charter capital of at least VND 5 billion and its owner(s) and all members or shareholders must be domestic investors as prescribed by the Law on Investment.
Service enterprises have to maintain the conditions specified in Article 10 of the Law and satisfy the Government-specified conditions for each market, profession, occupation or job throughout their operation process.
Noticeably, the Law adds a condition requiring a service enterprise to have a website if wishing to obtain a license for provision of the service of sending Vietnamese workers abroad as guest workers.
Recruitment and training of workers
The Law has amendments on human resources training, recruitment, training in occupational skills and foreign language and career orientation education for workers.
According to Article 18 of the Law, a service enterprise is permitted to prepare worker sources before registering a labor supply contract at the request of a worker-receiving foreign partner or under a cooperation agreement with a worker-receiving foreign partner provided that it gains a written approval from the Ministry of Labor, Invalids and Social Affairs.
Service enterprises will prepare worker sources through organizing preliminary selection of workers; and providing refresher training in occupational skills and foreign language for workers or, when necessary, entering into cooperation or partnership with vocational education institutions or employment service organizations to do so. However, they may only collect training charges in accordance with law.
Service charges
The Law introduces the new concept of service charge and revises provisions on service charges.
Article 23 of the Law defines service charges as revenues received by service enterprises from worker-receiving foreign partners and workers to cover expenses, find and develop markets, negotiate and sign labor supply contracts, and manage workers working abroad in accordance with the Law.
The service charge must be agreed upon between the worker and service enterprise. It may only be collected after the labor supply contract is approved by the Ministry of Labor, Invalids and Social Affairs and the contract on the sending of Vietnamese workers abroad is signed. In case the service charge is paid by the worker-receiving foreign partner, the service enterprise may only collect from the worker the deficit as compared to the agreed charge amount.
The service charge must not exceed one month’s salary of the worker under the contract for every 12 working months, or one and a half months’ salary of the worker under the contract for every 12 working months for officers and crewmen working on board seagoing vessels. In case the term of a contract on the sending of Vietnamese workers abroad is 36 months or longer, the maximum service charge amount is equal to three months’ salary of the worker under the contract. In case it is agreed in the contract on the sending of Vietnamese workers abroad that a service charge will be collected for the extended duration of the labor contract, the maximum service charge amount for every extended 12 working months must not exceed half month’s salary of the worker under the contract. For specific markets, professions, occupations and jobs, the Minister of Labor, Invalids and Social Affairs may stipulate a maximum service charge amount lower than the above-mentioned level.
Worthy of note, the Law adds a provision on service charge, stating that in case a service enterprise has collected the service charge from a worker for the whole working duration as agreed upon in the contract on the sending of Vietnamese workers and the worker has to return home ahead of schedule not due to his/her fault, the service enterprise must refund to the worker the service charge amount and interest thereon corresponding to the remaining duration of the contract.
In addition to the above changes, the Law has other amendments to the provisions on rights, obligations and legal responsibilities of service enterprises toward Vietnamese guest workers so as to better protect workers. The Law also adds a number of provisions on the application of technology and digitization of information on migrant workers in state management and administrative procedure reform activities through inter-agency coordination and connection in enterprise management.-
