Nghị định 112/2021/NĐ-CP hướng dẫn Luật Người lao động Việt Nam đi làm việc ở nước ngoài theo hợp đồng

DECREE

ELABORATION OF SOME ARTICLES AND MEASURES FOR EXECUTING LAW ON VIETNAMESE GUEST WORKERS

Pursuant to the Law on Government Organization dated June 19, 2015; the Law on amendments to some Articles of Law on Government Organization and Law on Local Government Organization dated November 22, 2019;

Pursuant to the Law on Investment dated June 17, 2020;

Pursuant to the Law on Enterprises dated June 17, 2020;

Pursuant to the Law on Vietnamese Guest Workers dated November 13, 2020;

At the request of the Minister of Labor, War Invalids and Social Affairs;

The Government promulgates Decree on elaboration of some Articles and measures for executing Law on Vietnamese Guest Workers.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Decree elaborates some Articles and measures for executing the Law on Vietnamese Guest Workers. To be specific:

1. Requirements and application for issuance of license for provision of Vietnamese guest worker service according to Clause 2 Article 10; Clause 4 Article 12; Clause 4 Article 16; Clause 6 Article 17; and Clause 2 Article 74.

2. Requirements for provision of Vietnamese guest worker service in some markets, professions and sectors according to Clause 2 Article 8.

3. Deposits and management, use thereof of enterprises according to Clause 3 Article 24, Clause 2 Article 36.

4. Top limit of deposits, management, use and return of deposits of workers according to Clause 5 Article 25, Point c Clause 1 Article 43.

5. Requirements and procedures for online registration of employment contracts which have been concluded after exit according to Clause 2 Article 54.

6. Measures for executing Law on Vietnamese Guest Workers.

Article 2. Regulated entities

1. Vietnamese guest workers under employment contracts signed with service providers and Vietnamese enterprises providing Vietnamese guest worker service.

2. Vietnamese citizens concluding legal employment contracts after exit.

3. Vietnamese enterprises providing Vietnamese guest worker service (hereinafter referred to as “service enterprises”).

4. Vietnamese enterprises sending Vietnamese workers abroad for training, improvement and enhancement.

5. Public service providers affiliated to ministries, ministerial agencies, Governmental agencies assigned to send Vietnamese abroad as guest workers (hereinafter referred to as “service providers”).

6. Agencies, organizations and individuals related to provision of Vietnamese guest worker service.

Chapter II

REQUIREMENTS AND APPLICATION FOR ISSUANCE OF LICENSE FOR PROVISION OF VIETNAMESE GUEST WORKER SERVICE

Article 3. License for provision of Vietnamese guest worker service

1. The license for provision of Vietnamese guest worker service (hereinafter referred to as “license”) shall be issued by the Minister of Labor, War Invalids and Social Affairs to an enterprise deemed eligible according to Clause 1 Article 10 of the Law on Vietnamese Guest Workers and this Decree.

2. The license has bright yellow pattern, a background of bronze drum, the national emblem and abbreviated name of the Ministry of Labor, War Invalids and Social Affairs in English language (MOLISA) imprinted. The license shall be printed on kraft paper in A4 size (21 cm x 29,7 cm) with blue outline according to Form No. 01 Appendix I attached to this Decree.

Article 4. Eligibility of professional employees

1. As for each detail specified in Article 9 of the Law on Vietnamese Guest Workers, an enterprise shall have at least 01 professional employee in charge of performance. The professional employee shall:

a) Hold a college degree or higher in either law, humanities, social services, social and behavioral sciences, or business and management;

b) Hold a college degree or higher in a discipline other than that specified in Point a of this Clause and have at least 02 years of experience in sending Vietnamese abroad as guest workers.

2. The professional employee shall conclude an employment contract and participate in compulsory social insurance at the enterprise, except for case where the professional employee is not required to participate in compulsory social insurance as specified in the law on social insurance.

3. The branch assigned by the service enterprise to perform some details specified in Article 9 of the Law on Vietnamese Guest Workers shall have at least 01 professional employee in charge of each detail and the professional employee shall meet requirements specified in Point a or Point b Clause 1 and Clause 2 of this Article.

Article 5. Requirements for facilities serving organization of orientation education for workers

1. Facilities serving organization of orientation education shall meet safety and hygiene conditions and the following requirements:

a) It is required to have adequate study rooms and boarding rooms for at least 100 trainees at any given time; places for first aid and emergency with first aid and emergency equipment;

b) The area of a study room is at least 1,4 m²/trainee with basic equipment for study;

c) The area of a boarding room is at least 3,5 m²/trainee with basic amenities; there must be no more than 12 trainees per room; there are separate boarding areas for male and female trainees, each with their own bathrooms and restrooms.

2. If the enterprise hires facilities to organize orientation education, the remaining hiring duration shall be at least 02 years at the time when the enterprise submits application for issuance of the license.

3. The branch assigned by the service enterprise to organize orientation education shall have facilities that meet safety and hygiene conditions, study rooms and boarding rooms in accordance with regulations in Point b and Point c Clause 1 of this Article and the hiring duration shall be at least 02 years if the branch hires facilities.

4. The service enterprise shall maintain the right to legally use facilities to organize orientation education during the period of provision of Vietnamese guest worker service.

Article 6. Requirements for website

1. The website of the enterprise shall have “.vn” domain name and upload basic information of the enterprise, image of the issued license and information about provision of Vietnamese guest worker service.

2. The website shall operate regularly and continuously in accordance with regulations of the law on management, provision and use online information.  Within 07 days from the date of change in information specified in Point b, Clause 2 Article 26 of the Law on Vietnamese Guest Workers, the service enterprise shall update the changed information on its website.

Article 7. Written application for issuance of license and documents proving satisfaction of requirements for provision of Vietnamese guest worker service

1. Written application for issuance of license shall use Form No. 02 under Appendix I attached to this Decree;

2. Documents proving satisfaction of requirements under Article 10 of the Law on Vietnamese Guest Workers include:

a) 01 copy of Charter of the enterprise at the time of application for issuance of license and documents proving capital contribution in accordance with regulations of the Law on Enterprise; 01 copy of the latest partner/shareholder register in case of a joint stock company;

b) 01 authentic copy of written confirmation of deposit payment for provision of Vietnamese guest worker service using Form No. 03 Appendix I attached to this Decree;

c) 01 copy of criminal record certificate issued no sooner than 06 months before the date of application for issuance of the license; 01 copy of specialized degree and 01 copy of document proving working experience (appointment decision or employment contract, document on termination of the employment contract or participation in social insurance or a document confirming work experience issued by the former workplace) of the legal representative;

d) 01 authentic copy of list of professional employees in charge of provision of Vietnamese guest worker service using Form No. 04 Appendix I attached to this Decree; 01 copy of specialized degree, diploma or foreign language certificate (if any) and 01 copy of document proving working experience (if any) of employment contract, document on termination of the employment contract or participation in social insurance or a document confirming work experience issued by the former workplace of each professional employee;

dd) 01 copy of certificate of ownership of houses and other land-attached assets or contract for hiring facilities serving organization of orientation education, enclosed with packing list of facilities certified by the enterprise, floor plan of study rooms and boarding areas.

3. In case of change in professional employees, within 07 days from the date of change, the service enterprise shall send proving documents specified in Point d, Clause 2 of this Article to the Ministry of Labor, War Invalids and Social Affairs.

4. In case of change in facilities serving organization of orientation education, within 07 days from the date of change, the service enterprise shall send proving documents specified in Point dd, Clause 2 of this Article to the Ministry of Labor, War Invalids and Social Affairs.

Article 8. Cooperation in issuing license via electronic network

1. The Ministry of Planning and Investment shall share information about name, code, address of the headquarter, legal representative, charter capital, owner, list of members/partners/shareholders of an enterprise applying for license with the Labor, War Invalids and Social Affairs to serve issuance of the license.

2. The Labor, War Invalids and Social Affairs shall share information about the issued license with the Ministry of Planning and Investment for state management of the enterprise.

3. The cooperation between the Labor, War Invalids and Social Affairs and the Ministry of Planning and Investment shall be made in form of connecting and sharing data among information technology systems.

Article 9. License return

1. Regarding a service enterprise that is consolidated, merged or fully divided according to regulations in the Law on Enterprises:

Within 15 days from the date in which the legal status of the service enterprise in the National Business Registration Database is changed to the “consolidated, merged or fully divided” status, the consolidated company, the acquiring securities company and fully divided companies shall return their licenses to the Ministry of Labor, War Invalids and Social Affairs and make reports as prescribed in Clause 3 of this Article.

2. Regarding a service enterprise that is dissolved, bankrupt or shut down:

Within 15 days from the date in which the legal status of the service enterprise in the National Business Registration Database is changed to the “undergoing dissolution or bankruptcy” status or within 05 working days from the date in which the Board of Directors, the owner or the General Meeting of Shareholders approves the resolution and the decision to terminate provision of Vietnamese guest worker service, the enterprise shall return its license to the Ministry of Labor, War Invalids and Social Affairs and make report as prescribed in Clause 3 of this Article.

3. The enterprise shall make a report on labor supply contracts that are still valid; list of current guest workers; list of workers already recruited and undergoing vocational training, foreign language training or orientation education; deposits and amounts collected from workers and contribution to Overseas Employment Support Fund; and then submit the report to the Ministry of Labor, War Invalids and Social Affairs.

Article 10. License revocation

1. In case the supervisory police authority or the competent authority issuing authentic copies of documents of the application for issuance of the license provides written confirmation stating that the declared information in the application is untruthful, within 10 working days from the date of receipt of the written confirmation, the Minister of Labor, War Invalids and Social Affairs shall decide to revoke the license.

2. If the service enterprise fails to maintain fulfillment of requirements specified in Article 10 or commits violations against regulations in Clauses 1, 2, 5, 6, 7, 8, 11, 12, 13 Article 7 or fails to fulfill all the obligations specified in Points c, e, g, h and i Clause 2 Article 26 of the Law on Vietnamese Guest Workers, thereby causing serious material or spiritual damage to workers, within 10 working days from the date in which the competent authority makes a record of violations, the Minister of Labor, War Invalids and Social Affairs shall decide to revoke the license.

3. If the service enterprise fails to provide Vietnamese guest worker service for 24 months consecutively for reasons other than natural disasters, conflict, political unrest, economic depression or force majeure which causes foreign countries to be unable to receive workers, within 10 days from the last day of the 24^th month, the Minister of Labor, War Invalids and Social Affairs shall decide to revoke the license.

4. Within 15 days from the date in which the Minister of Labor, War Invalids and Social Affairs decides to revoke the license, the enterprise shall make a report on labor supply contracts that are still valid; list of current guest workers; list of workers already recruited and undergoing vocational training, foreign language training or orientation education; deposits and amounts collected from workers and contribution to Overseas Employment Support Fund; and then submit the report to the Ministry of Labor, War Invalids and Social Affairs.

Article 11. Application and procedures for reissuance of license specified in Point b, Clause 1 Article 74 of the Law on Vietnamese Guest Workers

1. An application includes:

a) Written application for reissuance of license using Form No. 05 under Appendix I attached to this Decree;

b) Report on satisfaction of requirements specified in Points a, b, d, dd and e, Clause 1, Article 10 of the Law on Vietnamese Guest Workers using Form No. 06, Appendix I attached to this Decree;

c) An authentic copy of the license that is still valid and has been issued in accordance with regulations of the Law No. 72/2006/QH11 on Vietnamese Guest Workers.

2. Procedures:

a) The service enterprise shall submit an application in person or by post to the Ministry of Labor, War Invalids and Social Affairs or by online form at www.dolab.gov.vn;

b) Within 10 days from the date of receipt of the complete application as prescribed, the Minister of Labor, War Invalids and Social Affairs shall consider reissuing the license to the service enterprise. In case of refusal, the Ministry of Labor, War Invalids and Social Affairs shall reply in writing and clearly state reasons.

Chapter III

REQUIREMENTS FOR PROVISION OF VIETNAMESE GUEST WORKER SERVICE IN SOME MARKETS, PROFESSIONS AND SECTORS

Section 1. REQUIREMENTS FOR SENDING VIETNAMESE WORKERS TO WORK IN TAIWAN (CHINA)

Article 12. Requirements for sending Vietnamese workers to work in Taiwan (China)

The service enterprise shall maintain fulfillment of requirements specified in Article 10 of the Law on Vietnamese Guest Workers and fulfill the following requirements:

1. Having adequate number of professional employees to implement specific tasks and meet the following standards:

a) Having at least 01 professional employee in charge of search and development of overseas labor market, holding at least HSK5 certificate (Chinese proficiency certificate) or equivalent certificate;

b) Having at least 01 professional employee in charge of management of workers, holding at least HSK5 certificate (Chinese proficiency certificate) or equivalent certificate and gaining at least 01 year of experience in sending Vietnamese workers to work in Taiwan (China);

c) Having at least 01 professional employee in charge of orientation education, gaining at least 01 year of experience in sending Vietnamese workers to work in Taiwan (China);

2.  Failing to incur any penalty for violations against regulations on Vietnamese guest workers within 02 years by the date in which the application for introduction to the competent authority of Taiwan (China) is submitted to the Ministry of Labor, War Invalids and Social Affairs.

Article 13. Application and procedures for sending Vietnamese workers to work in Taiwan (China)

1. An application includes:

a) Written application using Form No. 07 under Appendix I attached to this Decree;

b) 01 copy of diploma, foreign language certificate; 01 copy of document proving working experience (employment contract, document on termination of the employment contract or participation in social insurance or a document confirming work experience issued by the former workplace) of the professional employee specified in Clause 1 Article 12 of this Decree.

2. Procedures:

a) The service enterprise shall submit an application in person or by post to the Ministry of Labor, War Invalids and Social Affairs or by online form at www.dolab.gov.vn;

b) Within 05 days from the date of receipt of the complete application as prescribed, the Ministry of Labor, War Invalids and Social Affairs shall send a written introduction of service enterprise to the competent authority of Taiwan (China). In case of refusal, the Ministry of Labor, War Invalids and Social Affairs shall reply in writing and clearly state reasons.

Article 14. Confirmation of list of Vietnamese workers sent to work in Taiwan (China)

1. Before sending Vietnamese workers to work in Taiwan (China), the service enterprise shall submit the list of workers to the Ministry of Labor, War Invalids and Social Affairs for confirmation.

2. Within 05 working days before submitting the application for issuance of visas for the workers, the service enterprise shall send the list of workers (including full name, date of birth, gender, place of permanent residence, passport number/ID card number, phone number of each worker, the receiving country and total estimated costs for exit) under labor supply contracts that have been approved in person or by post to the Ministry of Labor, War Invalids and Social Affairs or by online form at www.dolab.gov.vn.

3. Within 05 days from the date of receipt of the list, the Ministry of Labor, War Invalids and Social Affairs shall consider and confirm the list. In case of failure to make confirmation, the Ministry of Labor, War Invalids and Social Affairs shall reply in writing and clearly state reasons.

Section 2. REQUIREMENTS FOR SENDING VIETNAMESE WORKERS TO WORK IN JAPAN

Article 15. Requirements for sending Vietnamese workers to work in Japan

The service enterprise shall maintain fulfillment of requirements specified in Article 10 of the Law on Vietnamese Guest Workers and fulfill the following requirements:

1. Having adequate number of professional employees to implement specific tasks and meet the following standards:

a) Having at least 01 professional employee in charge of search and development overseas labor market, holding at least JLPT N2 certification (Japanese proficiency certification) or equivalent certificate;

b) Having at least 01 professional employee in charge of management of workers, holding at least JLPT N2 certification (Japanese proficiency certification) or equivalent certificate and gaining at least 01 year of experience in sending Vietnamese workers to work in Japan;

c) Having at least 01 professional employee in charge of orientation education, gaining at least 01 year of experience in sending Vietnamese workers to work in Japan;

2. Meeting standards applicable to service enterprises sending Vietnamese workers to work in Japan under agreement between the Ministry of Labor, War Invalids and Social Affairs and the competent authority in Japan.

Article 16. Application and procedures for sending Vietnamese workers to work in Japan

1. An application includes:

a) Written application using Form No. 08 under Appendix I attached to this Decree;

b) 01 copy of diploma, foreign language certificate; 01 copy of document proving working experience (employment contract, document on termination of the employment contract or participation in social insurance or a document confirming work experience issued by the former workplace) of the professional employee specified in Clause 1 Article 15 of this Decree.

2. Procedures:

a) The service enterprise shall submit an application in person or by post to the Ministry of Labor, War Invalids and Social Affairs or by online form at www.dolab.gov.vn;

b) Within 05 days from the date of receipt of the complete application as prescribed, the Ministry of Labor, War Invalids and Social Affairs shall make approval and send the written approval to the competent authority of Japan. In case of disapproval, the Ministry of Labor, War Invalids and Social Affairs shall reply in writing and clearly state reasons.

Article 17. Requirements for sending Vietnamese workers to work as hospital orderlies in Japan

The service enterprise shall maintain fulfillment of requirements specified in Article 10 of the Law on Vietnamese Guest Workers and fulfill the following requirements:

1. The labor supply contract for sending Vietnamese workers to work in Japan is being executed.

2. The enterprise shall establish a training institution to provide training in skills for hospital orderlies and foreign language; or connect with a vocational institution in joint training that meets the following standards: 

a) Having audio and video devices in service of training in Japanese; and practical rooms equipped with wheelchairs, mobility aids, medical beds, dining tables and chairs, wall-mounted handrails, shower chairs, bathtubs, automatic toilets and medical cabinets in order to provide training in skills for hospital orderlies under the program of Japan.

b) Having at least 01 teacher who provides training in skills for hospital orderlies under the program of Japan.

c) Having at least 01 teacher who teaches Japanese and holds at least JLPT N2 certification (Japanese proficiency certification) or equivalent certificate under the program of Japan.

Article 18. Application and procedures for sending Vietnamese workers to work as hospital orderlies in Japan

1. An application includes:

a) Written application using Form No. 09 under Appendix I attached to this Decree;

b) Images of equipment and devices, and practical rooms specified in Point a, Clause 2 Article 17 of this Decree;

c) 01 copy of nursing diploma of the teacher who provides training in skills for hospital orderlies and 01 copy of JLPT N2 certification of the teacher who teaches Japanese according to regulations in Point b and Point c Clause 2 Article 17 of this Decree.

2. Procedures:

a) The service enterprise shall submit an application in person or by post to the Ministry of Labor, War Invalids and Social Affairs or by online form at www.dolab.gov.vn;

b) Within 05 days from the date of receipt of the complete application as prescribed, the Ministry of Labor, War Invalids and Social Affairs shall make approval so that the enterprise participates in sending Vietnamese workers to work as orderlies in Japan.  In case of disapproval, the Ministry of Labor, War Invalids and Social Affairs shall reply in writing and clearly state reasons.

Article 19. Confirmation of list of Vietnamese workers sent to work in Japan

1. Before sending Vietnamese workers to work in Japan, the service enterprise shall submit the list of workers to the Ministry of Labor, War Invalids and Social Affairs for confirmation.

2. The service enterprise shall send the list of workers (including full name, date of birth, gender, place of permanent residence, passport number/ID card number, phone number of each worker, the receiving country, the employer, professions, and the expected date of exit) under labor supply contracts that have been approved in person or by post to the Ministry of Labor, War Invalids and Social Affairs or by online form at www.dolab.gov.vn.

3. Within 05 days from the date of receipt of the list, the Ministry of Labor, War Invalids and Social Affairs shall consider and confirm the list. In case of failure to make confirmation, the Ministry of Labor, War Invalids and Social Affairs shall reply in writing and clearly state reasons.

Section 3. REQUIREMENTS FOR PROVISION OF VIETNAMESE GUEST WORKERS AS DOMESTIC WORKERS

Article 20. Requirements for provision of Vietnamese guest workers as domestic workers

The service enterprise shall maintain fulfillment of requirements specified in Article 10 of the Law on Vietnamese Guest Workers and fulfill the following requirements:

1. The labor supply contract for sending Vietnamese workers to work in the receiving country is being executed.

2. It is required to have adequate number of professional employees to implement specific tasks and meet the following standards:

a) Having at least 01 professional employee in charge of search and development of overseas labor market, having foreign-language capacity in conformity with the language requirement of the receiving country and gaining at least 01 year of experience in sending Vietnamese workers to work in the receiving country;

b) Having at least 01 standing and professional employee in charge of management of workers in the receiving country, having foreign-language capacity in conformity with the language requirement of the receiving country and gaining at least 01 year of experience in sending Vietnamese workers to work in the receiving country;

c) Having at least 01 professional employee in charge of orientation education, gaining at least 01 year of experience in sending Vietnamese workers to work in the receiving country;

3. The workers shall have experience in working abroad as domestic workers or knowledge of domestic works and foreign-language capacity in conformity with the language requirement of the receiving country under guidelines provided by the Minister of Labor, War Invalids and Social Affairs.

Article 21. Application and procedures for provision of Vietnamese guest workers as domestic workers

1. An application includes:

a) Written application using Form No. 10 under Appendix I attached to this Decree;

b) 01 copy of diploma, foreign language certificate; 01 copy of document proving working experience (employment contract, document on termination of the employment contract or participation in social insurance or a document confirming work experience issued by the former workplace) of the professional employee specified in Clause 2 Article 20 of this Decree.

2. Procedures:

a) The service enterprise shall submit an application in person or by post to the Ministry of Labor, War Invalids and Social Affairs or by online form at www.dolab.gov.vn;

b) Within 05 days from the date of receipt of the complete application as prescribed, the Ministry of Labor, War Invalids and Social Affairs shall make approval so that the enterprise participates in provision of Vietnamese guest workers as domestic workers.  In case of disapproval, the Ministry of Labor, War Invalids and Social Affairs shall reply in writing and clearly state reasons.

Article 22. Confirmation of list of Vietnamese guest workers as domestic workers

1. Before provision of Vietnamese guest workers as domestic workers, the service enterprise shall submit the list of workers to the Ministry of Labor, War Invalids and Social Affairs for confirmation.

2. Within 05 working days before submitting the application for issuance of visas for the workers, the service enterprise shall send the list of workers (including full name, date of birth, gender, passport number/ID card number, the period on which every worker has undergone training in skills for domestic works and foreign language or appropriate working experience, phone number of each worker, the expected date of exit, name and address of the receiving country and the employer) under labor supply contracts that have been approved in person or by post to the Ministry of Labor, War Invalids and Social Affairs or by online form at www.dolab.gov.vn.

3. Within 05 days from the date of receipt of the list, the Ministry of Labor, War Invalids and Social Affairs shall consider and confirm the list. In case of failure to make confirmation, the Ministry of Labor, War Invalids and Social Affairs shall reply in writing and clearly state reasons.

Chapter IV

DEPOSIT AND MANAGEMENT, USE THEREOF OF ENTERPRISE

Section 1. DEPOSIT OF SERVICE ENTERPRISE

Article 23. Deposit

1. The enterprise shall make a deposit of VND 2.000.000.000 at a bank or foreign bank branch established and legally operated in Vietnam (hereinafter referred to as “custodian bank”).

2. The service enterprise assigning its branches to provide Vietnamese guest worker service shall make an additional deposit of VND 500.000.000 for each branch.

Article 24. Deposit management

1. The enterprise and the custodian bank shall sign a deposit contract that specifies contents, including name, code, address, legal representative of the enterprise; name, address, legal representative of the custodian bank; deposit; deposit purpose; interest rate of deposit as agreed; interest payment form; deposit use; deposit withdrawal; closure of deposit account; responsibilities of related parties, and other contents in accordance with regulations of the law.

2. The custodian bank shall make a written certification of deposit of the enterprise using Form No. 03 under Appendix I attached to this Decree;

3. The deposit shall be frozen by the custodian bank in accordance with regulations of the law.

Article 25. Deposit use

1. The deposit may only be used upon written request made by the Ministry of Labor, War Invalids and Social Affairs in the following cases:

a) The service enterprise does not fulfil or fully fulfil the obligations specified in Points c, dd and h, Clause 2, Article 26 of the Law on Vietnamese Guest Workers.

b) The deposit is used upon request made by the competent authority so as to comply with regulations in Points e and g Clause 2 Article 26 of the Law on Vietnamese Guest Workers;

c) The service enterprise does not fulfil or fully fulfil other obligations in provision of Vietnamese guest worker service.

2. After 30 days from the date in which the deposit is used, if the service enterprise does not return the used deposit and ensure the deposit according to regulations, the custodian bank shall be responsible for notifying in writing the Ministry of Labor, War Invalids and Social Affairs.

3. The enterprise may take back its deposit in the following cases:

a) The enterprise does not submit the application for issuance of the license for provision of Vietnamese guest worker service:

The enterprise shall submit 02 authentic copies of the deposit certificate to the custodian bank in order to take back its deposit.

b) The enterprise is not issued with a license for provision of Vietnamese guest worker service or the enterprise has deposited in another account and requested closure of the account that the enterprise has previously made its deposit or the service enterprise has been dissolved according to regulations of the law:

The Ministry of Labor, War Invalids and Social Affairs shall request in writing the custodian bank to return the deposit to the enterprise.

c) The enterprise fulfils all obligations in provision of Vietnamese guest worker service after returning its license or having its license revoked:

The enterprise shall send a report enclosed with documents proving the fulfillment of the obligations specified in Clause 1, Article 27 of the Law on Vietnamese Guest Workers and full contribution to the Overseas Employment Support Fund to the Ministry of Labor, War Invalids and Social Affairs.  Within 15 days from the date of receipt of the report, the Ministry of Labor, War Invalids and Social Affairs shall request in writing the custodian bank to return the deposit to the enterprise. In case of disapproval, the Ministry of Labor, War Invalids and Social Affairs shall reply in writing and clearly state reasons.

d) The service enterprise terminates assignment of provision of Vietnamese guest worker service to its branches or these branches terminate provision of Vietnamese guest worker service:

The service enterprise shall send a report on termination of assignment to its branches or their termination to the Ministry of Labor, War Invalids and Social Affairs. Within 05 working days from the date of receipt of the report, the Ministry of Labor, War Invalids and Social Affairs shall request in writing the custodian bank to return the deposit that the enterprise has made for each branch.

Section 2. Deposit of Vietnamese enterprise sending Vietnamese workers abroad for training, improvement and enhancement.

Article 26. Deposit

1. The enterprise shall make a deposit at a bank or foreign bank branch established and legally operated in Vietnam (hereinafter referred to as “custodian bank”).

2. The deposit is equal to 10% of the value of a one-way flight ticket (economy class) from the workplace to Vietnam, multiplied by the number of guest workers under the contract for receiving intern workers.

Article 27. Deposit management

1. The enterprise and the custodian bank shall sign a deposit contract that specifies contents, including name, code, address, legal representative of the enterprise; name, address, legal representative of the custodian bank; deposit; deposit purpose; interest rate of deposit; interest payment form; deposit use; deposit withdrawal; closure of deposit account; responsibilities of related parties, and other contents in accordance with regulations of the law.

2. The custodian bank shall make a written certification of the deposit of the enterprise using Form No. 11 under Appendix I attached to this Decree;

3. The deposit shall be frozen by the custodian bank in accordance with regulations of the law.

Article 28. Deposit use

1. The deposit is used to secure the obligations of the enterprise specified in Points dd, h, k and m, Clause 2, Article 41 of the Law on Vietnamese Guest Workers and may only be used upon written request made by the Ministry of Labor, War Invalids and Social Affairs (for vocational training contracts for overseas training, improvement and enhancement with a period of 90 days or more) or according to the document made by the labor authority under the People's Committee of province where the headquarter of the enterprise is located (for vocational training contracts for overseas training, improvement and enhancement with a period of less than 90 days).

2. After 30 days from the date in which the deposit is used, if the enterprise does not return the used deposit and ensure the deposit according to regulations, the custodian bank shall be responsible for notifying in writing the Ministry of Labor, War Invalids and Social Affairs (for vocational training contracts for overseas training, improvement and enhancement with a period of 90 days or more) or the labor authority under the People's Committee of province where the headquarter of the enterprise is located (for vocational training contracts for overseas training, improvement and enhancement with a period of less than 90 days).

3. Within 05 working days from the date of receipt of the enterprise's report on liquidation of the contract for overseas vocational training with workers enclosed with proving documents, the Ministry of Labor, War Invalids and Social Affairs (for vocational training contracts for overseas training, improvement and enhancement with a period of 90 days or more) or the labor authority under the People's Committee of province where the headquarter of the enterprise is located (for vocational training contracts for overseas training, improvement and enhancement with a period of less than 90 days) shall request in writing the custodian bank to return the deposit to the enterprise.

Chapter V

TOP LIMIT OF DEPOSIT, MANAGEMENT, USE AND RETURN OF DEPOSIT OF WORKERS

Section 1. Deposit paid by workers to service enterprises

Article 29. Top limit of deposit of workers

The service enterprise and the workers shall reach agreement on the custodian bank and the making of deposit in which the deposit does not exceed the top limit specified in Appendix II issued with this Decree and it must be clearly stated in the contract for provision of Vietnamese guest worker service.

Article 30. Deposit making

1. The worker, the service enterprise and the custodian bank shall agree to sign a deposit contract to fulfil the obligations in the contract for provision of Vietnamese guest worker service, specifying name, passport number/ID card number and address of the worker; name, address, legal representative of the custodian bank; name, code, address, legal representative of the enterprise; deposit; deposit purpose; interest rate of deposit; interest payment form; deposit use; deposit withdrawal; closure of deposit account; responsibilities of related parties and other contents in accordance with regulations of the law.

2. The deposit shall be only made after the service enterprise and the worker sign a contract for provision of Vietnamese guest worker service and the worker has been accepted to work by the receiving country or issued with a visa for entry into the receiving country or territory.

Article 31. Deposit management and use

1. The deposit of the worker shall be used to pay for damage arising due to his/her faults to the service enterprise according to the contract for provision of Vietnamese guest worker service

2. The service enterprise and the worker or the person authorized by the worker shall agree on compensation for damage arising due to worker’s faults and record it in the contract liquidation document.

Article 32. Deposit return

1. The deposit shall be returned in the following cases

a) The worker completes the contract or terminates the contract for provision of Vietnamese guest worker service by the deadline and does not cause any damage to the enterprise; the worker unilaterally terminates the contract for provision of Vietnamese guest worker service according to regulations in Point dd, Clause 1, Article 6 of the Law on Vietnamese Guest Workers;

b) The worker has paid a deposit but the enterprise fails to send the worker to work abroad within the period as committed or after the exit pending period and the worker no longer needs to work abroad;

c) The worker does not cause any damage to the enterprise;

d) The remaining deposit shall be returned after the compensation for damage arising due to worker’s faults to the enterprise under the contract for provision of Vietnamese guest worker service is paid.

2. Deposit return procedures

a) In cases mentioned in Points a, b and c, Clause 1 of this Article, according to the document on liquidation of the contract for provision of Vietnamese guest worker service, the custodian bank shall return the deposit (including both principle and interest) to the worker or the person authorized by the worker;

b) In the case mentioned in Point d, Clause 1 of this Article, the custodian bank shall return the deposit to the worker (including principle and interest) according to the document on liquidation of the contract for provision of Vietnamese guest worker service or the legally effective decision on complaint settlement or the successful mediation record or the effective decision made by the Court.

3. In case the service enterprise does not carry out procedures so that the worker may take back his/her deposit according to regulations or does not reach an agreement with the worker as prescribed in Clause 2, Article 31 of this Decree, the worker has the right to request in writing to the Ministry of Labor, War Invalids and Social Affairs to reach resolution according to procedures for resolution to complaints or institution of legal proceedings according to regulations of the law.

4. In case the enterprise transfers rights and obligations to an another enterprise issued with license as prescribed in Clause 3, Article 28 or Point a, Clause 3, Article 29 of the Law on Vietnamese Guest Workers, the transferee shall be responsible for liquidating the contract for provision of Vietnamese guest worker service so that the worker can take back his/her deposit.

5. In case the enterprise goes bankrupt and hands over dossiers to the Ministry of Labor, War Invalids and Social Affairs according to regulations in Point b, Clause 3, Article 29 of the Law on Vietnamese Guest Workers, the Ministry of Labor - War Invalids and Social Affairs shall send a document on return of the deposit to the worker to the custodian bank.

Section 2. Deposit paid by workers to service providers

Article 33. Deposit method

1. Service providers and workers shall agree on deposit methods in accordance with international agreements specified in Clause 1, Article 42 of the Law on Vietnamese Guest Workers.

2. In case international agreements do not contain regulations on deposit methods, service providers and workers shall agree on making deposit according to regulations of the civil law but the value does not exceed the top limit of deposit specified in Appendix II issued with this Decree.

Article 34. Deposit making

1. The worker, the service provider and the custodian bank shall agree to sign a deposit contract to fulfil the obligations in the contract for provision of Vietnamese guest worker service, specifying name, passport number/ID card number and address of the worker; name, address, legal representative of the custodian bank; name, address, legal representative of the service provider; deposit value; deposit purpose; interest rate of deposit; interest payment form (in case of cash deposit); deposit use; deposit return; responsibilities of related parties and other contents in accordance with regulations of the law.

2. The deposit shall be only made after the service provider and the worker sign a contract for provision of Vietnamese guest worker service and the worker has been accepted to work by the receiving country or issued with a visa.

Article 35. Deposited asset management and use

1. Deposited assets of the worker shall be used to pay for damage arising due to his/her faults to the service provider according to the contract for provision of Vietnamese guest worker service.

2. The service provider and the workers or the person authorized by the worker shall agree on compensation for damage arising due to worker’s faults and record it in the contract liquidation document.

Article 36. Deposit return

1. The deposit shall be returned in the following cases

a) The worker completes the contract or terminates the contract for provision of Vietnamese guest worker service by the deadline and does not cause any damage to the service provider; the worker unilaterally terminates the contract for provision of Vietnamese guest worker service according to regulations in Point dd, Clause 1, Article 6 of the Law on Vietnamese Guest Workers;

b) The worker has made the deposit but the service provider fails to send him/her to work abroad;

c) The worker does not cause any damage to the service provider;

d) The deposit shall be returned to the worker after he/she has paid compensation for damage arising due to his/her faults to the service provider under the contract for provision of Vietnamese guest worker service.

2. Deposit return procedures

a) In cases mentioned in Points a, b and c, Clause 1 of this Article, according to the document on liquidation of the contract for provision of Vietnamese guest worker service, the custodian bank shall return the deposit (including both principle and interest) to the worker or the person authorized by the worker;

b) In the case mentioned in Point d, Clause 1 of this Article, the custodian bank shall return the deposit to the worker (including principle and interest in case of cash deposit) according to the document on liquidation of the contract for provision of Vietnamese guest worker service or the legally effective decision on complaint settlement or the successful mediation record or the effective decision made by the Court.

3. In case the service enterprise does not carry out procedures so that the worker may take back his/her deposit or does not reach an agreement with the worker as prescribed in Clause 2, Article 35, the worker has the right to request in writing to the governing body of the service provider to reach resolution according to procedures for resolution to complaints or institution of legal proceedings according to regulations of the law.

Chapter IV

REQUIREMENTS AND PROCEDURES FOR ONLINE REGISTRATION OF EMPLOYMENT CONTRACTS WHICH HAVE BEEN CONCLUDED AFTER EXIT.

Article 37. Requirements for registration of employment contracts which have been concluded after exit.

1. Being not listed under cases of prohibited from making exit, ineligible for making exit and suspended from making exit as per the law.

2. Having legal employment contracts.

3. Legally residing in the host country during the duration for execution of employment contracts.

Article 38. Procedures for online registration of employment contracts and contribution to Overseas Employment Support Fund

1. The workers may make online registration of their employment contracts at the web portal (www.dolab.gov.vn) using Form No. 12, Appendix I issued with this Decree; and download electronic employment contracts, passport pages containing personal information and signatures, residence permits or other documents proving legal residence of the workers in the host country during the duration for execution of employment contracts.

2. Within 05 days from the date of receipt of the online registration of employment contracts, the Ministry of Labor, War Invalids and Social Affairs shall reply to the receipt of online registration, and at the same time notify the Vietnamese diplomatic mission in the host country. In case of refusal, the Ministry of Labor, War Invalids and Social Affairs shall clearly state reasons.

3. After receiving notification from the Ministry of Labor, War Invalids and Social Affairs of the approval for contract registration, the workers shall make contribution to the Overseas Employment Support Fund in the form of cash payment or transfer to the Fund’s account.

Chapter VII

IMPLEMENTATION

Article 39. Responsibility of Ministry of Labor, War Invalids and Social Affairs

1. Develop legal documents on Vietnamese guest workers.

2. Cooperate with relevant agencies in researching and developing overseas labor market.

3. Negotiate and request competent authorities to sign international labor treaties according to regulations of the law on international treaty; sign international labor agreements in accordance with the law on international agreement.

4. Organize training courses on provision of Vietnamese guest worker service for professional employees of service enterprises.

5. Decide the issuance and revocation of licenses for provision of Vietnamese guest worker service.

6. Build and upgrade information technology systems to connect and share digital data among state management agencies according to regulations of this Decree and relevant legal documents.

7. Maintain and regularly update policies and legal documents on Vietnamese guest workers; information about international treaties and agreements on Vietnamese guest workers to which Vietnam is a signatory; policies and laws of the receiving countries; list of service enterprises; list of enterprises that have returned their licenses or have their licenses revoked to the web portal (www.molisa.gov.vn, www.dolab.gov.vn).

8. Organize and provide guidance on report and registration of contracts of Vietnamese organizations and individuals making outward investment, enterprises and Vietnamese guest workers; supervise implementation of reports and contracts that have been registered.

9. Resolve complaints and denunciations of provision of Vietnamese guest worker service according to regulations of the law.

10. Organize and carry out inspection and examination of provision of Vietnamese guest worker service.

11. Cooperate with the Ministry of Foreign Affairs in appointing officials, organizing management, directing and providing professional guidance on management and protection of the legal rights and interests of Vietnamese guest workers.

12. Organize the implementation of statistics and information on the field of Vietnamese guest workers.

13. Cooperate with the Ministry of Foreign Affairs, the Ministry of Public Security, the Ministry of Finance, the Ministry of Planning and Investment, State Bank of Vietnam, local authorities and other relevant agencies and organizations in the field of Vietnamese guest workers.

14. Direct, provide guidance and cooperate with local state management agencies in state management of Vietnamese guest workers.

Article 40. Responsibility of Ministry of Foreign Affairs

1. Cooperate with the Ministry of Labor, War Invalids and Social Affairs and relevant ministries and central authorities in researching and proposing guidelines and policies on Vietnamese guest workers to the Government.

2. Direct and provide guidance for overseas Vietnamese diplomatic missions on the following tasks:

a) Providing consular protection and protection of the legal rights and interests of Vietnamese workers working in the host country in accordance with Vietnamese law, the law of the host country and international treaties to which Vietnam and that country are signatories;

b) Cooperating with domestic authorities in handling issues on Vietnamese guest workers that arise in the host country, researching and providing information to develop the market of provision of Vietnamese guest worker service;

c) Cooperating with the Ministry of Labor, War Invalids and Social Affairs and relevant agencies in organizing overseas labor market promotion activities;

d) Extracting information about Vietnamese workers working overseas on the database system of Vietnamese guest workers;

d) Propagate and disseminate the State's legal policies on Vietnamese guest workers;

e) Encourage overseas Vietnamese workers to register employment contracts which have been concluded after exit.

Article 41. Responsibility of Ministry of Public Security

1. Direct police forces at all levels to proactively prevent, detect and promptly handle violations against regulations on security, order and social safety related to Vietnamese guest workers.

2. Promptly detect and handle acts of illegally providing Vietnamese guest worker service or taking advantage of guest worker programs for exit or other purposes.

3. Cooperate with the Ministry of Labor, War Invalids and Social Affairs, overseas Vietnamese diplomatic missions and relevant agencies of receiving countries in receiving Vietnamese workers rejected by receiving countries or forced to return to their home country.

Article 42. Responsibility of Ministry of Planning and Investment

1. Share information about name, code, address of the headquarter, legal representative, charter capital, owner, list of members, shareholders of the enterprise applying for a license and the service enterprise with the Ministry of Labor, War Invalids and Social Affairs to carry out state management of provision of Vietnamese guest worker service.

2. Provide information for the Ministry of Labor, War Invalids and Social Affairs on issuance, adjustment and termination of the validity of outward investment registration certificates within 05 days from the date of issuance, adjustment or promulgation of Decision on termination of the validity of outward investment registration certificates in order to cooperate in management of Vietnamese guest workers under contracts signed with organizations and individuals making outward investment.

Article 43. Responsibilities of ministries, ministerial agencies and Governmental agencies

1. Direct the resolution of issues related to Vietnamese guest worker service provided by service providers under their management.

2. Resolve complaints and denunciations related to service providers providing Vietnamese guest worker service under their management according to regulations of the law.

3. Cooperate with the Ministry of Labor, War Invalids and Social Affairs in managing Vietnamese guest workers in some industries, professions and specific jobs in the fields managed by ministries and central authorities.

Article 44. Responsibilities of People’s Committees of central-affiliated cities and provinces

1. Perform state management regarding guest workers in provinces and central-affiliated cities.

2. Direct affiliated specialized agencies and People’s Committee of lower levels to:

a) Propagate and disseminate the State's policies, guidelines and laws on Vietnamese guest workers;

b) Enable service enterprises and providers to employ local workers and manage local guest workers;

c) Deal with complaints and accusations of organizations and individuals related to Vietnamese guest workers as per the law;

d) Examine, inspect and promptly deal with violations committed by local service enterprises and providers;

dd) Receive applications for contracts of Vietnamese guest workers directly signed with foreign employers and update them on the database system of Vietnamese guest workers;

e) Receive applications for contracts of Vietnamese enterprises providing Vietnamese guest worker service in the form of training, improvement and enhancement for a period of less than 90 days.

3. Send annual reports to the Ministry of Labor, War Invalids and Social Affairs and adhoc reports upon request on the situation of Vietnamese guest workers in provinces and cities.

Chapter VIII

IMPLEMENTATION PROVISIONS

Article 45. Entry into force

1. This Decree comes into force from January 01, 2022.

2. The Government’s Decree No. 38/2020/ND-CP dated April, 03 2020 on elaboration of Law on Vietnamese Guest Workers; and Joint Circular No. 17/2007/TTLT-BLDTBXH-NHNNVN dated September, 04 2007 of the Ministry of Labor, War Invalids and Social Affairs – State Bank of Vietnam on management and use of deposits of enterprises and Vietnamese guest workers shall cease to be effective from the effective date of this Decree.

Article 46. Transition clauses

1. Enterprises that have been issued with licenses for provision of Vietnamese guest worker service before the effective date of this Decree shall be responsible for review and amendment to meet the requirements specified at Points a, b, d, dd and e, Clause 1, Article 10 of the Law on Vietnamese Guest Workers and regulations of Article 4, Article 5 and Article 6 of this Decree, report using Form No. 06 Appendix I and confirmation of deposit using Form No. 03 Appendix I issued with this Decree, and then send to the Ministry of Labor, War Invalids and Social Affairs before January 01, 2023.

2. Service enterprises that have obtained approval for sending Vietnamese workers to work in Taiwan (China) and Japan, and providing Vietnamese guest workers as domestic workers can continue to provide Vietnamese guest worker service in these markets, professions and sectors. Such service enterprises shall be also responsible for review and amendment in order to meet the requirements specified in Chapter III of this Decree before January 01, 2023.

3. Deposit agreements between workers and service enterprises or service providers that have been concluded before the effective date of this Decree will continue to be executed according to agreements and law regulations.

Article 47. Implementation responsibilities

Ministers, Heads of ministerial agencies, Heads of Governmental agencies, Presidents of People’s Committees of central-affiliated cities and provinces and regulated entities of this Decree shall be responsible for implementation of this Decree.