How to Resolve Disputes in Labour in Vietnam?

Both employees and employers can consult labour dispute lawyers in Vietnam to understand the labour law and protect their rights.

A labour dispute is one of the most common disputes in society, in particular it means a dispute over rights, obligations and interests among the parties during the establishment, execution or termination of labor relation; a dispute between the representative organizations of employees; a dispute over a relationship that is directly relevant to the labor relation.

In fact, labour disputes happen often, but there are many situations where employees often have little understanding of their rights, leading to disadvantages if the employer does not know or does not follow the law.

Therefore, identifying employment disputes is very important. For employees, learning about labor law is to know their rights. Employers need to understand labor laws to ensure compliance.

Labour disputes incurred during pandemic, questions needing answers?

For example, during the recent pandemic, many businesses faced difficulties in doing business in Vietnam and hence many common labour disputes arisen. For workers, a dispute could arise from not being paid on time. Other concerns are whether there is any violations that lead to the termination of the labor contract? Has the employer carried out restructuring procedures and notified state agencies according to the correct procedure before terminating the labor contract with the employee? Does the employer have an agreement with the employee before suspending the labor contract during the pandemic? When the business is not efficient, is the employer required to pay the 13th month salary to the employee?

What types of labour dispute you might be encountering?

At present, labour disputes are classified into different types based on the object who participated in the dispute: Labour disputes between the employee and the employer; labour between the employee and the organization that sends the employee to work overseas under a contract; labour dispute between the outsourced worker and the enterprise. Right-based or interest-based collective labour disputes between one or several representative organizations of employees and the employer or one or several representative organizations of employees.

How to settle labour dispute at court?

The labor dispute settlement process must follow the following principles:

Respect the parties’ autonomy through negotiation throughout the process of labor dispute settlement;

Prioritize labour dispute settlement through mediation and arbitration on the basis of respect for the rights and interests of the two disputing parties, and respect for the public interest of the society and conformity with the law;

The labour dispute shall be settled publicly, transparently, objectively, promptly, and lawfully;

Ensure the participation of the representatives of each party in the labour dispute settlement process;

Labour dispute settlement shall be initiated by a competent authority or person after it is requested by a disputing party or by another competent authority or person and is agreed by the disputing parties.

When a labour dispute arises, one party or parties may request a Labor Mediator; The Labor Arbitration Council or the People’s Court to settle the disputes.

Matter on time limit is an important matter that the parties should pay attention. The time limit to request a labor mediator to settle an individual labor dispute is 06 months from the date on which a party discovers the act of infringement of their lawful rights and interests.

For the form of dispute settlement through the Labor Arbitration Council, the time limit is 09 months from the date on which a party discovers the act of infringement of their lawful rights and interests. In case of requesting the Court to settle the labour dispute, the time limit is 01 year from the day on which a party discovers the act of infringement of their lawful rights and interests.

What labour dispute lawyers in Vietnam could help?

Many of the labour disputes could be resolved effectively at court hence engaging a labour dispute lawyers in Vietnam to file a lawsuit will help parties involved.

Please note, upon the expiration of the above-mentioned time limitation, the disputing parties will not have the right to request the competent authorities to resolve the dispute. In case the requester is able to prove that the aforementioned time limits cannot be complied with due to a force majeure event or unfortunate event, the duration of such event shall not be included in the time limit for requesting settlement of individual labour dispute.

ANT Lawyers, a law firm in Vietnam, always follow up the labour matters to update clients on regular basis.

Readmore: https://antlawyers.vn/library/how-to-resolve-disputes-in-labour-in-vietnam.html

When Labour Dispute over Bonus Issue Arise and How to Resolve?

Employment bonus promise could help drive the performance for the business but sometimes disputes arise because there is discrepancy in translating how performance is met in the eye of employer and employee.

According to the provisions the Labor Code, the bonus, also known as the “other supplement”, is one of the main contents of the Labor Contract. Specifically, bonus is understood as a sum of money paid by an employer to the employees on the basis of annual business results and the level of work performance of employees. When the dispute arises, the employer or the employee could consult with labour dispute lawyers in Vietnam to advise and handle the matter effectively.

Bonus regulations of each company must be decided and publicly announced by the employer at the workplace after consultation with the representative organization of the grassroots-level employees’ collective. However, there are companies that do not specify bonus regulations or companies with unclear bonus regulations referring to such generally as “based on capability”, or “based on work results” without referring to specific key performance indicator (KPI). Such regulations will easily cause labor disputes that each party would need to seek consultancy from labour dispute lawyers in Vietnam. In most of the case, the employee would face disadvantage because the employer will be the one whom make the final decision on whether or not the capability or work results are satisfied.

A labor dispute means a dispute over rights, obligations and interests among the parties during the establishment, execution or termination of labor relation; a dispute between the representative organizations of employees; a dispute over a relationship that is directly relevant to the labor relation. Labor disputes over bonuses can be individual labor disputes or collective labor disputes. The competence authority to settle labor disputes belongs to the Labor Mediator, the Labor Arbitration Council, and the People’s Court. Normally, individual labor disputes or collective labor disputes must go through the mediation procedure of the labor mediator before referring to the court to settle, unless otherwise provided for by law.

For individual disputes, in case the conciliation is unsuccessful or either party fails to implement the agreements in the minutes of successful conciliation or the settlement time limit expires but if the labour conciliator fails to conduct conciliation, each disputing party has the right to request a court or arbitration council for settlement.

For collective disputes over bonuses, in case the conciliation is unsuccessful or one of the two parties fails to implement the agreements in the minutes of successful conciliation, the parties have the right to request the President of the district-level People’s Committee to resolve the dispute. If the parties disagree with the decision of the President of the People’s Committee of the district or beyond the time limit but the President of the People’s Committee of the district does not settle, the parties have the right to request the Court to settle. In such situation, a litigation lawyer would be engaged to assist for productive result.

How labour dispute lawyers in Vietnam could help?

Labour dispute lawyers in Vietnam could help from the early stage to draft and review labour contract, labour regulations to be submitted and registered with authority. Once there are labour dispute potentially arisen, the labor dispute lawyers could assist with advice, negotiation for settlement. The last resort would be needing the labor dispute lawyers to assist in filing litigation petition at court for resolution.

ANT Lawyers, a law firm in Vietnam, always follow up the labour matters to update clients on regular basis.

Readmore: https://antlawyers.vn/library/when-labour-dispute-over-bonus-issue-arise-and-how-to-resolve.html

New Rules on the Work Permit Granting Conditions | ANT Lawyers

This new regulations take effect from April 1st 2016.

Decree 11/2016/ND-CP dated February 3rd 2016 detailing the implementation of the provisions on the granting of work permit to foreign laborers working in Vietnam. This Decree replaces the Decree 102/2013/ND-CP.

Firstly, the Decree 11/2016/ND-CP (Decree 11) clearly stipulating the concept of professionals, managers and CEO. Besides the concepts of current job position, Decree 11 added the concept for other positions that foreign workers undertake.

Foreign workers are considered professionals when they meet one of the two conditions: There is a written confirmation confirmed that they are experts from the agency, organization and business in foreign countries; At least have university degree or equivalent and have at least 03 years working experience in specialized majors in line with the position that foreign workers are expected to work in Vietnam; Other special cases will be decided by the Prime Minister.

The case where foreign workers are considered managers and CEO: Managers are people who manage the enterprise as defined in Clause 18, Article 4 of the Law on Enterprise or the heads and deputy heads of the agency or organization; CEO is the head and directly operating subsidiary agencies, organizations and businesses.

Secondly, Decree 11 also supplements the cases that are not subject to work permit application. In addition to the cases under the old regulations, Point e, Paragraph 2, Article 7 of Decree 11 supplements the cases of foreigners working in Vietnam in the position of experts, managers, CEO or technical labor with working time of less than 30 days and the cumulative time not exceeding 90 days in 01 years, will not have to applying for work permit.

For cases that are not subject to work permit application, foreigners still need to have the certificate of the Department of Labour, Invalids and Social Affairs. The time limit for cases that are not subject to work permit application shall not exceed 02 years and in accordance with the terms of specific cases. (Old regulation did not specify the time limit).

Thirdly, the Decree 11 provides more details on the dossier requesting for the issuance of work permit. Specifically, Decree 11 provides that the health certificate must be valid for a period of 12 months from the signing date of the health argument, and still in effect at the time of work permit application.

Also in Article 10 of Decree 11, the dossier requesting for the issuance of work permit must have the criminal record card or written confirmation confirmed that foreign workers are not offenders or prosecuted for criminal responsibility, which are issued by foreign country. The case where foreign workers are residing in Vietnam, only the criminal record card must be granted by Vietnam. These documents are issued not more than 6 months from the date of issuance to the date of application.

Fourthly, the Decree also refers to dossier requesting for the issuance of work permits for some special cases. Compared with the old regulations, Decree 11 supplements Paragraph 8 of Article 10 on the dossier for some special cases as follows: Has been granted the work permit which is still valid and the employee works for another employer in the same job and position stating in the work permit; Has been granted the work permit which is still valid then the employee works in the different job and position stating in the work permit in accordance with the law but does not change the employer; Has been granted the work permit but it has expired as regulated in Article 174 of the Labor Code and then would like to continue to work in the same job and position stating in the work permit; Has been granted the work permit in the above cases based on the provisions in Decree 102/2013/ND-CP.

Lastly, Decree 11 mentions the cases that need to re-issue the work permit. Specifically, Decree 11 supplements in Article 13 that if the work permit is still valid for at least 5 days but not more than 45 days, it will be re-issued. (Old regulation does not have this case).

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This publication is designed to provide updated information of legal matters, and does not constitute professional advice.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Attorneys in Hanoi, Attorneys in Ho Chi Minh and Attorneys in Danang.

Employer’s Obligations on Recruitment, Labor Management and Labor Declaration under | ANT Lawyers

 Labour and employment compliance are continuous process which has no ending and there is no reason to stop.

In order for the companies in Vietnam to improve the effectiveness of its compliance in labour and employment in Vietnam, it is always important to pay attention to the details and fix the pending matters one by one. Labour and employment lawyers in Vietnam would help the clients with a thorough reviewing process if required.

The employer is required to comply with current labor regulations on recruitment procedure, labor management and declaration as following:

– Recruitment procedure:

The employer may recruit employee by either way of announcement at its head office or mass media. Employment application form must comply with the standard form which is attached in application dossier submitted by candidate. The application dossier must be returned to the candidate (if required) within 03 months from the date of announcement of recruitment results.

– Labor management:

The employer is required to create employment log book where is recorded information on the employees and their employment. The employment log book must be reserved at head office and make it available if required by Department of Labour, Invalid and Social Affairs (DOLISA).

– Labor declaration

Employers must semi-annually report any changes in their labor utilization as prescribed form to the DOLISA before May 25 or November 25 of each year.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Law firm in Hanoi, Law firm in Ho Chi Minh City and Law firm in Da Nang.

Employer’s Obligations on Recruitment, Labor Management and Labor Declaration under | ANT Lawyers

 Labour and employment compliance are continuous process which has no ending and there is no reason to stop.

In order for the companies in Vietnam to improve the effectiveness of its compliance in labour and employment in Vietnam, it is always important to pay attention to the details and fix the pending matters one by one. Labour and employment lawyers in Vietnam would help the clients with a thorough reviewing process if required.

The employer is required to comply with current labor regulations on recruitment procedure, labor management and declaration as following:

– Recruitment procedure:

The employer may recruit employee by either way of announcement at its head office or mass media. Employment application form must comply with the standard form which is attached in application dossier submitted by candidate. The application dossier must be returned to the candidate (if required) within 03 months from the date of announcement of recruitment results.

– Labor management:

The employer is required to create employment log book where is recorded information on the employees and their employment. The employment log book must be reserved at head office and make it available if required by Department of Labour, Invalid and Social Affairs (DOLISA).

– Labor declaration

Employers must semi-annually report any changes in their labor utilization as prescribed form to the DOLISA before May 25 or November 25 of each year.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Law firm in Hanoi, Law firm in Ho Chi Minh City and Law firm in Da Nang.

What Are Advantages Resolving Disputes by Commercial Arbitration? | ANT Lawyers

 Commercial arbitration is a method of settling disputes selected by the parties and conducted in accordance with law. Compared with other method of dispute resolution such as mediation, negotiation, court litigation, dispute resolution by commercial arbitration also has advantages and disadvantages.

In accordance with Vietnamese law and international law, the method of dispute resolution by commercial arbitration also stems from the agreement of the parties on a voluntary basis. However, the difference between these methods is that the settlement of disputes through arbitration will be governed by the Commercial Arbitration Law. The parties are allowed to agree on appropriate arbitration selection, either before or after the dispute arises.

The practice of applying commercial arbitration law in resolving disputes presents some advantages:

Firstly, this is a method of resolving disputes on the principle of confidentiality if the parties do not agree otherwise. This is an advantage that all claimants respect because it limits the disclosure of business secrets, and keeps the credibility of the parties.

Secondly, the decision of the arbitrator is final, binding on the parties and the right to appeal in this case is invalid. The trial at Commercial Arbitration takes place only at one trial level, which the trial at the Court is at two levels. Therefore, it creates a premise for the following advantages.

Thirdly, the settlement of disputes arising through commercial arbitration shows flexibility while shortening the proceedings thereby contributing to saving time and effort of the parties.

Fourthly, the settlement of disputes by arbitration is not territorially limited so the parties may agree to choose any arbitrator to resolve their disputes.

However, the competing parties also need to pay attention that the choice of arbitration method also reveals some disadvantages such as: The enforcement of arbitral awards depends heavily on the willingness of the parties to the dispute. If the party who is serving the judgment does not voluntarily follow the arbitral awards and does not request to cancel the arbitral award after the expiration of the time limit for enforcing the arbitral award, the judgment-executing party may send a written request to the civil judgment enforcement agency for judgment execution.

In addition, one of the disputing parties may submit a request to the Court to cancel the arbitration award when encountering one of these following conditions: (i) There is no arbitration agreement or the arbitration agreement is invalid; (ii) The arbitration council’s composition or procedures of arbitral proceedings does not comply with the parties’ agreement or regulations; (iii) The dispute falls beyond the arbitration council’s jurisdiction: when an arbitral award contains the details falling beyond the arbitration council’s jurisdiction, such details shall be cancelled; (iv) The evidence provided by the parties on which the arbitration council bases to issue the award is counterfeit: an arbitrator receives money, assets or other material benefits from one disputing party, thus affecting the objectivity and impartiality of the award; (v) The award contravenes the fundamental principles of Vietnamese law.

Finally, when the parties choose to resolve their disputes by arbitration method, the costs are relatively higher than in the proceeding of court litigation.

At ANT Lawyers, our trial lawyers with accreditation in national and international arbitration practice could help providing legal advice in disputed matters, and guide the clients throughout the process. The lawyers could also advise the clients on various matters from choice of arbitrator, choice of arbitration rules, ad-hoc or institutional arbitration, place of arbitration, enforcement of arbitral award.

Employees as well as the labor collective and employers should pay attention to selecting the most appropriate and optimal resolution solution when labor disputes occur. It is also suggested to consult with labour lawyers of law firm speacializing in employment matters for efficiency.

What Are Advantages Resolving Disputes by Commercial Arbitration? | ANT Lawyers

 Commercial arbitration is a method of settling disputes selected by the parties and conducted in accordance with law. Compared with other method of dispute resolution such as mediation, negotiation, court litigation, dispute resolution by commercial arbitration also has advantages and disadvantages.

In accordance with Vietnamese law and international law, the method of dispute resolution by commercial arbitration also stems from the agreement of the parties on a voluntary basis. However, the difference between these methods is that the settlement of disputes through arbitration will be governed by the Commercial Arbitration Law. The parties are allowed to agree on appropriate arbitration selection, either before or after the dispute arises.

The practice of applying commercial arbitration law in resolving disputes presents some advantages:

Firstly, this is a method of resolving disputes on the principle of confidentiality if the parties do not agree otherwise. This is an advantage that all claimants respect because it limits the disclosure of business secrets, and keeps the credibility of the parties.

Secondly, the decision of the arbitrator is final, binding on the parties and the right to appeal in this case is invalid. The trial at Commercial Arbitration takes place only at one trial level, which the trial at the Court is at two levels. Therefore, it creates a premise for the following advantages.

Thirdly, the settlement of disputes arising through commercial arbitration shows flexibility while shortening the proceedings thereby contributing to saving time and effort of the parties.

Fourthly, the settlement of disputes by arbitration is not territorially limited so the parties may agree to choose any arbitrator to resolve their disputes.

However, the competing parties also need to pay attention that the choice of arbitration method also reveals some disadvantages such as: The enforcement of arbitral awards depends heavily on the willingness of the parties to the dispute. If the party who is serving the judgment does not voluntarily follow the arbitral awards and does not request to cancel the arbitral award after the expiration of the time limit for enforcing the arbitral award, the judgment-executing party may send a written request to the civil judgment enforcement agency for judgment execution.

In addition, one of the disputing parties may submit a request to the Court to cancel the arbitration award when encountering one of these following conditions: (i) There is no arbitration agreement or the arbitration agreement is invalid; (ii) The arbitration council’s composition or procedures of arbitral proceedings does not comply with the parties’ agreement or regulations; (iii) The dispute falls beyond the arbitration council’s jurisdiction: when an arbitral award contains the details falling beyond the arbitration council’s jurisdiction, such details shall be cancelled; (iv) The evidence provided by the parties on which the arbitration council bases to issue the award is counterfeit: an arbitrator receives money, assets or other material benefits from one disputing party, thus affecting the objectivity and impartiality of the award; (v) The award contravenes the fundamental principles of Vietnamese law.

Finally, when the parties choose to resolve their disputes by arbitration method, the costs are relatively higher than in the proceeding of court litigation.

At ANT Lawyers, our trial lawyers with accreditation in national and international arbitration practice could help providing legal advice in disputed matters, and guide the clients throughout the process. The lawyers could also advise the clients on various matters from choice of arbitrator, choice of arbitration rules, ad-hoc or institutional arbitration, place of arbitration, enforcement of arbitral award.

Employees as well as the labor collective and employers should pay attention to selecting the most appropriate and optimal resolution solution when labor disputes occur. It is also suggested to consult with labour lawyers of law firm speacializing in employment matters for efficiency.

How to Send Vietnamese Workers Working Abroad Under Contracts? | ANT Lawyers

Decree No. 38/2020/ND-CP detailing the implementation of a number of articles of the law on Vietnamese workers working abroad under contracts has been signed by the Government on April 3, 2020 taking effect from May 20, 2020.

This Decree prescribes the areas and jobs workers must not go to work abroad; licenses, conditions and procedures for the grant or replacement of licenses for provision of services to send workers abroad; deposits of service-providing enterprises sending laborers to work abroad; deposits, management and use of deposits of enterprises performing the intern labor contract. Specifically:

Up to seven jobs are not allowed to for Vietnamese workers to work abroad including: massaging in the restaurants, hotels or entertainment centers; the work must be in constant contact with explosives, toxic substances in the metallurgy of non-ferrous metals (copper, lead, mercury, silver and zinc), regular contact with manganese, mercury dioxide; the work must be in contact with open radioactive sources, exploiting radioactive ores of all kinds; the production and packaging must be in constant contact with the chemicals of nitric acid, sodium sulfate, carbon disulfide, pesticides, herbicides, rat poison, antiseptic, and anti-termite with strong toxicity; hunting for wild animals, crocodiles and sharks; regular work in places where there is lack of air, high pressure (underground, in the ocean); shrouding, burial corpses, cremating corpses, exhuming graves.

In addition, it is prohibited to send workers to war zones or areas at risk of war, areas where radiation is being contaminated, areas contaminated with poison or areas with particularly dangerous epidemics.

For service-providing enterprises sending laborers to work overseas, to set up company, and comply with the law, they must meet the following conditions among others: the legal capital is not lower than VND 5,000,000,000 (five billion Vietnam dong); having owners, all members and shareholders being domestic investors under the provisions of the Law on Investment 2014; having an operation plan to send workers to work abroad; having a specialized apparatus and material foundations to organize the training of necessary knowledge for workers before going to work abroad and activities of sending laborers to work abroad; deposit VND 1,000,000,000 (one billion Vietnam dong) at commercial banks licensed to operate in Vietnam.

The enterprise sending workers to work abroad upon the form of practice for skills improvement makes deposit to account at commercial bank. The level of deposit of an enterprise sending workers to work abroad upon the form of practice for skills improvement is equal to 10% of the ordinary flight ticket of one class at the time the enterprise deposits from the country where the employee works. The number of workers going to work abroad in Vietnam under the Contract of accepting internships has been registered.

In addition, this Decree also stipulates the conditions for activities of sending laborers to work in the territory of Taiwan, to practice skills in Japan and to work as domestic servants in the host country of Middle East region.

The interested individuals and organizations should pay attention to implement details of the regulation or seek lawyers in the labour management areas for consultation.

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Penalties on Working Without Work Permit in Vietnam | ANT Lawyers

Vietnam has become an attractive destination for foreigner investors due to the impressive development of socio – economic in recent years. This is such a good opportunity for Vietnamese enterprises to get cooperation in business with foreign partners.

To take advantage of the opportunities to be the pioneer and market share, many of them have demand in employees with good skills and qualifications. To meet these requirements, more and more companies hire foreign workers for specific positions which might lack of human resources within Vietnam territory.

According to Labor Code 2019, the employer wishing to recruit the foreign workers has to explain their labor demand to the People’s Committee of provinces and obtain written approval from this agency. Pursuant to this written approval, the employer shall submit the application for the work permit to the Department of Labor, War Invalids and Social Affairs of the province where the planned working place of such foreign workers is located.

A foreign employee means a person who has a foreign nationality and:

• Is at last 18 years of age and has full legal capacity;
• Has qualifications, occupational skills, practical experience and adequate health as prescribed by the Minister of Health;
• Is not serving a sentence; does not have an unspent conviction; is not undergoing criminal prosecution under his/her home country’s law or Vietnam’s law;
• Possessing a work permit granted by a competent Vietnamese state agency, except the cases specified in Labor Code.

Therefore, based on regulations of the Labor Code of Vietnam, except for the foreign employees exempted from work permit i.e. investor of company established in Vietnam, all of cases the foreign employees wishing to work in Vietnam shall be subject to work permit application. A foreign employee shall produce his/her work permit in Vietnam when carrying out immigration procedures or upon request of a competent state agency.

In case foreign employees who do not belong to work permit exemption being found working in Vietnam without work permit, that person shall be considered violation of the law of Vietnam. In addition, the employer that uses the violated employee without work permit shall be punished accordingly.

According to Decree No. 28/2020/ND-CP dated March 1, 2020 on administrative penalties for violations arising from labor, social insurance and sending Vietnamese workers abroad under contracts.

i) Foreign employee that working without work permits, except for the cases in which the work permit is exempt shall be expelled.

ii) Employers who employ foreign workers in Vietnam without work permits or written confirmations of their exemption from work permit requirements, or employs foreign workers holding expired work permits or written confirmations of exemption from work permit requirements shall be implied:

+ A fine from VND 30,000,000 to VND 45,000,000 if the violation involves 01 – 10 workers;

+ A fine From VND 45,000,000 to VND 60,000,000 if the violation involves 11 – 20 workers;

+ A fine From VND 60,000,000 to VND 75,000,000 if the violation involves 21 or more workers.

Whom is Exempted from Work Permit Since 2021?

On December 30, 2020, the Government issued Decree No. 152/2020/ND-CP regulating foreign workers working in Vietnam and recruiting and managing Vietnamese employees to work for the foreign employers in Vietnam.

In which, foreign workers in Vietnam are not required to be granted work permits include:

The employee is the owner or capital contributor of a limited liability company with a capital contribution of at least 3 billion VND; Chairman of the Board of Directors or a member of the Board of Directors of a joint stock company with a capital contribution of at least 3 billion VND;

Intra-corporate transferees within 11 service sectors in Vietnam’s service commitment schedule with the World Trade Organization, including: business services, communication services, construction services, distribution services, educational services, environmental services, financial services, health services, tourism services, recreational and cultural services, and transport services;

The person responsible for establishing a commercial presence;

The employee enters Vietnam to work as manager, executive, expert or technical worker for a working time of less than 30 days and not more than 3 times a year;

The employee who enters Vietnam for a period of less than 03 months to offer services;

The employee enters Vietnam for a period of less than 03 months to handle complicated incidents, technical or technological situations that affect or risk affecting production and business that Vietnamese experts and the foreign experts currently in Vietnam cannot handle it;

Foreign lawyer who has been granted a law practice license in Vietnam in accordance with the Law on Lawyers; The employee is licensed by the Ministry of Foreign Affairs to operate information and press in Vietnam in accordance with the law; The person certified by the Ministry of Education and Training to enter Vietnam for teaching and researching;

The employee enters Vietnam to provide professional and engineering consulting services or perform other tasks intended for research, formulation, appraisal, supervision, evaluation, management and execution of programs and projects using official development assistance (ODA) in accordance with regulations or agreement in international treaties on ODA signed between the competent authorities of Vietnam and foreign countries;

The employee is sent to Vietnam by competent foreign agency or organization to teach and research at international schools under the management of foreign diplomatic missions or the United Nations; establishment and organization established under the agreement which Vietnam has signed and acceded to;

The employee enters Vietnam to implement an international agreement to which a central or provincial authority is a signatory as per the law;

Person obtains an official passport to work for a regulatory agency, political organization, or socio-political organization;

Relatives of members of foreign representative missions in Vietnam;

In cases where the provisions of an international treaty to which the Socialist Republic of Vietnam is a signatory;

Head of representative office, project or is responsible for the activities of international organizations, foreign non-governmental organizations in Vietnam;

The employee is a volunteer;

The student studies at a foreign school or training institution which has a probation agreement with an agency, organization or enterprise in Vietnam; or a probationer or apprentice on a Vietnam sea-going ship;

The employee is a foreigner who marries a Vietnamese and lives in the territory of Vietnam.

This Decree takes effect from February 15, 2021.

Conditions for Foreign Experts to Work in Vietnam | ANT Lawyers

On December 30th, 2020, Decree 152/2020/ND-CP has been issued regulating on foreigners working in Vietnam and recruiting, managing Vietnamese employees working for foreign organizations and individuals in Vietnam. Decree 152 clearly defines the forms and conditions for foreign employees to be eligible to work in Vietnam, and provides conditions for exemption from work permits in Vietnam, recruitment of foreign employees, renew and re-issue work permits.

According to current regulations, foreign citizens come to work in Vietnam for the purposes of performing employment contracts; performing intra-company transfer program; performing contracts or agreements on business, trade, finance, banking, insurance, science and technology, culture, sports, education, vocational training and health; providing services under contracts; offering services; working for foreign non-governmental organizations or international organizations in Vietnam that have been granted with operating licenses in accordance with the Vietnam law; working as volunteers; taking charge of establishing the commercial presence; working as managers, executives, experts, technical workers; performing packages or projects in Vietnam; or accompanying members of foreign representative bodies in Vietnam who are authorized to work in Vietnam under an international treaty to which the Socialist Republic of Vietnam is a signatory as their relatives.

For the conditions for foreign employees to work in Vietnam, Decree 152 has some notable new points, which according to Clause 3, Article 3 of this Decree, an expert who wish to work in Vietnam requires a foreign worker who obtains at least a bachelor’s degree or equivalent and at least 03 years’ experience in his/her training field in corresponding with the job position/job assignment that he/she will be appointed in Vietnam or obtains at least 5 years’ experience and a practicing certificate in corresponding with the job position that he/she will be appointed in Vietnam. There are opinions that this regulation makes it difficult for many foreign experts to come to Vietnam to work because in fact there are many experienced people who do not have appropriate qualifications and certificates.

Foreign experts, managers, executives or foreign technicians working in Vietnam for up to 30 days and no more than 3 times a year may be exempted from work permits. Cases eligible for exemption from work permits (or a certificate of exemption from work permits) must be notified to the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs of the provinces and centrally-run cities regarding personal information of the foreign worker and the expected start /end date, at least three days prior to the first scheduled working date in Vietnam.

At least 30 days from the expected date of employment of the foreign employee, the employer (except contractors) is responsible for determining the demand to use foreign workers for each job position that the Vietnamese employee has not yet met requirements of the position and report to the Ministry of Labor, War Invalids and Social Affairs or the People’s Committee of the province where the foreign worker is expected to work. During the implementation process, if there is a change in the demand for foreign employees, the employer must also report at least 30 days in advance.

Performing Labor Contracts in the Period of Covid – 19 Epidemic | ANT Lawyers

The Covid-19 epidemic has seriously affected the development of the economy and society. The situation of businesses being spacing as well as suspension of production and service provision happens regularly in epidemic-affected localities, and that also seriously affects the life stability of employees. Because most enterprises’ financial situations get worse, so the businesses seem like they cannot guarantee income for employees. This is a force majeure and legal event, and the labor law has specific provisions to balance and ensure the interests of employees but also make the best support to enterprises.

Specifically, according to the provisions of Clause 3, Article 99 of the Labor Code 2019, specific instructions are provided in Official Dispatch No. 264/QHLĐTL-TL of Ministry of Labor – Invalids and Social affairs about paying salary (known as “ stoppage salary”) for employees during the shutdown period related to the Covid-19 epidemic on July 15, 2021; direct instructions for businesses and employees during the epidemic period, in case of having to suspend work due to an incident that is not the fault of the employer such as a dangerous disease, the employee and the employer agree on the salary according to the following regulations.

In case of having to suspend work for less than 14 working days, the agreed stoppage salary shall not be lower than the minimum wage.

In case of having to suspend work for more than 14 working days, the stoppage salary shall be agreed upon by both parties but must ensure that that salary in the first 14 days is not lower than the minimum wage.

Accordingly, the labor relationship is a civil relationship as well as ensuring the agreement between the parties, however, it is also necessary to pay attention to ensuring the life quality of the employee, thus stipulating the case of having to suspend work from under 14 days that the parties have the right to agree on a salary which is ensured not lower than the minimum wage; besides, in case of suspension for more than 14 days, this is undesirable in the labor relationship as the damage for the employee is not allowed to work as well as does not guarantee income, and this also for the employer that they are not able to guarantee the output of goods and services provided to the partner, as well as the normal operation of the business, etc. Therefore, the law allows the parties to agree on the stoppage salary in this case.

The epidemic is a force majeure. In the case of having to suspend work for too long as it is unable to judge the progress of the epidemic, to ensure the financial ability of the employer as well as the health and safety of employees, the parties may agree to suspend performing labor contract. The content specified at point h, Clause 1, Article 30 of the Labor Code 2019, allows the parties to agree to suspend the labor contract, therefore we can realize this is also an appropriate regulation in the current epidemic period. Currently, when suspended in performing a labor contract, the employee is not entitled to salary and other rights and benefits as agreed in the labor contract. However, the employee and the employer may have another agreement on employee benefits.

According to Article 31 of the Labor Code 2019, within 15 days after ending the suspension period of the labor contract, the employee must be present at the workplace as well as the employer must accept the employee’s return to resume work under the signed labor contract in case of the valid labor contract, unless otherwise agreed by the parties. Accordingly, the employee and the employer must fully agree on the contents related to the suspension of the labor contract, to avoid issues and disputes arising after ending the suspension period of the performing labor contract.

In addition, Point c, Clause 1, Article 36 of the Labor Law 2019 stipulates that the employer has the right to unilaterally terminate a labor contract in case of natural disaster, fire, dangerous epidemic, enemy sabotage or migration, relocation, or downsizing of production and business under the request of the competent state agency, and the employer has sought all remedies but can’t help reducing personnel. Therefore, in the situation of dangerous epidemics, termination of the labor contract with termination grounds is considered a non – illegal act of unilaterally terminating the labor contract.

However, the grounds for termination because of the dangerous epidemic that the employer has tried all measures to overcome but can’t help reducing the personnel are only necessary conditions that the employer needs to comply with, besides, Employers need to comply with the procedure for unilateral termination of labor contracts in terms of the notice period, as well as done allowances to employees when unilaterally terminating labor contracts according to regulations in law.

What to Note When Signing Labour Contract with Foreign Workers? | ANT Lawyers

With the policy of opening the economy in Vietnam, not only Vietnam attracts investors to set up company, but also the demand for foreign workers in enterprises grows and diversifies. However, in order for Vietnam companies to be able to use foreign workers, they must sign a labor contract.

After meeting the conditions specified in the Labor Code on meeting the requirements for recruitment and working in Vietnam, the foreign worker working in Vietnam shall sign a labor contract before the expected date intend to work for the employer. In this contract, the employer and the foreign worker will agree on all issues arising in the process of working as well as using labor together.

Firstly, on the working position in the labor contract, it must show the correct position and position for which the employer has determined the needs with the competent authority and in accordance with the working position shown in the document and the work permits which have been granted to foreign workers.

Regarding the working time, it will normally be agreed upon by the two parties but must not exceed the number of working days (hours) as prescribed by Vietnamese law. The number of overtime hours must be based on voluntary work and must ensure rest time, rest during working time and weekends for foreign workers.

According to the provisions of the Labor Code, in addition to Vietnamese public holidays and New Year’s holidays, foreign workers are allowed to take one more day off for the national traditional New Year and one national day of the country. This is a humane regulation, respecting the national culture of Vietnam. Therefore, the employer needs to learn about the National Day and the traditional Tet holiday of foreign workers so that the employees can take leave in accordance with the provisions of the law.

Regarding the term of the labor contract, the term of the labor contract for foreigners is also governed by the duration of the work permit issued by the competent Vietnamese authority. Accordingly, the term of the labor contract for foreign workers working in Vietnam must not exceed the term of the work permit. Therefore, the employer should pay attention to conclude the contract term in accordance with regulations.

In addition, employers and foreign workers should be aware of the terms of disputes which could potentially arise. Because, contract terms are an important legal basis to resolve when a labor dispute arises, agreeing in advance on how to resolve a dispute when a dispute arises will create a clear legal foundation for easy settlement by both parties. Dispute lawyers are suggested to be consulted at an early stage to avoid dispute escalation.

At most, it is important that the employers and foreign workers need to pay attention and strictly comply with the provisions of the law so that the process of entering into and performing the contract is conducted smoothly and in compliance with the law in Vietnam.

What Changes in Procedures for Granting Work Permits for Foreign Workers from 2021? | ANT Lawyers

Vietnam law allows enterprises, agencies, organizations, individuals and contractors to recruit foreign workers for job positions that Vietnamese workers cannot meet the needs of business operation in Vietnam. However, the procedures to apply for permit allowing foreign workers to work in Vietnam is complicated which many times labour lawyers could be engaged to help provide more productive solutions to avoid delay or dispute that lead to the negative impact to the rights and benefits of employer or employee.

A foreign employee means a person who hold a foreign nationality and is at last 18 years of age and has full legal capacity; has qualifications, occupational skills, practical experience and adequate health as prescribed by the Minister of Health; is not serving a sentence; does not have an unspent conviction; is not undergoing criminal prosecution under his/her home country’s law or Vietnam’s law; has a work permit granted by a competent authority of Vietnam, except in the cases the foreign employees are not required to have the work permit.

Job positions in which enterprises are employed by foreign workers include managers, executives, experts and technical workers.

Manager means a person in charge of management of an enterprise or the head or deputy head of an agency or organization.

Executive means the head or a person who directly administers affiliated entities of an agency, organization or enterprise.

Expert means a foreign worker who obtains at least a bachelor’s degree or equivalent and at least 03 years’ experience in his/her training field in corresponding with the job position/job assignment that he/she will be appointed in Vietnam; obtains at least 5 years’ experience and a practicing certificate in corresponding with the job position that he/she will be appointed in Vietnam; or falls under a special case subject to decision of the Prime Minister according to a request of the Ministry of Labor, War Invalids and Social Affairs.

Technical worker means a foreign worker who has been trained in technical field or another major for at least 01 year and have worked for at least 03 years in his/her training field; or obtains at least 5 years’ experience in corresponding with the job position that he/she will be appointed in Vietnam.

Before applying for a work permit for a foreign worker, at least 30 days before the date on which foreign workers are expected to be employed, the employer (except contractor) shall request to determine the demand for foreign workers for every job position for which Vietnamese workers are underqualified and send a corresponding report to the People’s Committee of province where the foreign workers are expected to work.

The People’s Committee of province shall issue a document specifying accepted job positions and non-accepted job positions within 10 working days after receiving the foregoing report on demand for foreign workers or report on change thereof.

At least 15 working days before the day on which a foreign worker starts to work, the employee shall submit an application for work permit to the Department of Labor, War Invalids and Social Affairs of the province where he/she is expected to work.

Within 5 working days after receiving a duly completed application, the Department of Labor, War Invalids and Social Affairs of province where the foreign worker is expected to work shall issue a work permit to the foreign worker. The form of work permit shall be solely printed and issued by the Ministry of Labor, War Invalids and Social Affairs. If the application is rejected, a written explanation is required.

After the foreign worker is issued with a work permit, the employer and the foreign worker must sign a written employment contract as per Vietnam’s labor law before the date on which the foreign worker is expected to work. The employer shall send that employment contract to the competent authority that issue that work permit. The employment contract is the original or a certified true copy.

In a number of cases, there are situation which employer engages a foreign employee in a job but fails to perform sufficient work permit procedures in time. When a labour dispute arise, it takes time to prove the labour relationship between the parties and this would negatively impact the right and benefits of the employee. It is therefore important to ensure the labour compliance from both employer and employee side to avoid dispute.

Conditions for Foreign Experts to Work in Vietnam | ANT Lawyers

On December 30th, 2020, Decree 152/2020/ND-CP has been issued regulating on foreigners working in Vietnam and recruiting, managing Vietnamese employees working for foreign organizations and individuals in Vietnam. Decree 152 clearly defines the forms and conditions for foreign employees to be eligible to work in Vietnam, and provides conditions for exemption from work permits in Vietnam, recruitment of foreign employees, renew and re-issue work permits.

According to current regulations, foreign citizens come to work in Vietnam for the purposes of performing employment contracts; performing intra-company transfer program; performing contracts or agreements on business, trade, finance, banking, insurance, science and technology, culture, sports, education, vocational training and health; providing services under contracts; offering services; working for foreign non-governmental organizations or international organizations in Vietnam that have been granted with operating licenses in accordance with the Vietnam law; working as volunteers; taking charge of establishing the commercial presence; working as managers, executives, experts, technical workers; performing packages or projects in Vietnam; or accompanying members of foreign representative bodies in Vietnam who are authorized to work in Vietnam under an international treaty to which the Socialist Republic of Vietnam is a signatory as their relatives.

For the conditions for foreign employees to work in Vietnam, Decree 152 has some notable new points, which according to Clause 3, Article 3 of this Decree, an expert who wish to work in Vietnam requires a foreign worker who obtains at least a bachelor’s degree or equivalent and at least 03 years’ experience in his/her training field in corresponding with the job position/job assignment that he/she will be appointed in Vietnam or obtains at least 5 years’ experience and a practicing certificate in corresponding with the job position that he/she will be appointed in Vietnam. There are opinions that this regulation makes it difficult for many foreign experts to come to Vietnam to work because in fact there are many experienced people who do not have appropriate qualifications and certificates.

Foreign experts, managers, executives or foreign technicians working in Vietnam for up to 30 days and no more than 3 times a year may be exempted from work permits. Cases eligible for exemption from work permits (or a certificate of exemption from work permits) must be notified to the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs of the provinces and centrally-run cities regarding personal information of the foreign worker and the expected start /end date, at least three days prior to the first scheduled working date in Vietnam.

At least 30 days from the expected date of employment of the foreign employee, the employer (except contractors) is responsible for determining the demand to use foreign workers for each job position that the Vietnamese employee has not yet met requirements of the position and report to the Ministry of Labor, War Invalids and Social Affairs or the People’s Committee of the province where the foreign worker is expected to work. During the implementation process, if there is a change in the demand for foreign employees, the employer must also report at least 30 days in advance.

Penalties on Working Without Work Permit in Vietnam | ANT Lawyers

Vietnam has become an attractive destination for foreigner investors due to the impressive development of socio – economic in recent years. This is such a good opportunity for Vietnamese enterprises to get cooperation in business with foreign partners.

To take advantage of the opportunities to be the pioneer and market share, many of them have demand in employees with good skills and qualifications. To meet these requirements, more and more companies hire foreign workers for specific positions which might lack of human resources within Vietnam territory.

According to Labor Code 2019, the employer wishing to recruit the foreign workers has to explain their labor demand to the People’s Committee of provinces and obtain written approval from this agency. Pursuant to this written approval, the employer shall submit the application for the work permit to the Department of Labor, War Invalids and Social Affairs of the province where the planned working place of such foreign workers is located.

A foreign employee means a person who has a foreign nationality and:

Is at last 18 years of age and has full legal capacity;

Has qualifications, occupational skills, practical experience and adequate health as prescribed by the Minister of Health;

Is not serving a sentence; does not have an unspent conviction; is not undergoing criminal prosecution under his/her home country’s law or Vietnam’s law;

Possessing a work permit granted by a competent Vietnamese state agency, except the cases specified in Labor Code.

Therefore, based on regulations of the Labor Code of Vietnam, except for the foreign employees exempted from work permit i.e. investor of company established in Vietnam, all of cases the foreign employees wishing to work in Vietnam shall be subject to work permit application. A foreign employee shall produce his/her work permit in Vietnam when carrying out immigration procedures or upon request of a competent state agency.

In case foreign employees who do not belong to work permit exemption being found working in Vietnam without work permit, that person shall be considered violation of the law of Vietnam. In addition, the employer that uses the violated employee without work permit shall be punished accordingly.

According to Decree No. 28/2020/ND-CP dated March 1, 2020 on administrative penalties for violations arising from labor, social insurance and sending Vietnamese workers abroad under contracts.

1. i) Foreign employee that working without work permits, except for the cases in which the work permit is exempt shall be expelled.

2. ii) Employers who employ foreign workers in Vietnam without work permits or written confirmations of their exemption from work permit requirements, or employs foreign workers holding expired work permits or written confirmations of exemption from work permit requirements shall be implied:

3. A fine from VND 30,000,000 to VND 45,000,000 if the violation involves 01 – 10 workers;

4. A fine From VND 45,000,000 to VND 60,000,000 if the violation involves 11 – 20 workers;

5. A fine From VND 60,000,000 to VND 75,000,000 if the violation involves 21 or more workers.

Employment lawyers in Vietnam | ANT lawyers

Our employment practice at ANT Lawyers helps clients with the following:

Regulatory issues: advising on regulatory issues in relation to recruitment, employment and termination of labour contracts.

Employment documents: drafting, negotiating and amending labour contracts, office rules and collective labour agreements.

Licensing requirements: advising on the obtaining of work permits for expatriates, registration of office rules and collective labour agreements.

Labour dispute: mediating and reconciling labour disputes, representing clients before Vietnamese courts for settlement of personal and collective labour disputes, representing employee in employment dispute matters in Vietnam for best interests protection.

Please contact us for inquiries through email ant@antlawyers.vn or call our partner directly at + 84 912 817 823.

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