Thông tư 21/2021/TT-BLĐTBXH hướng dẫn luật người lao động đi làm việc ở nước ngoài

CIRCULAR

DETAILING A NUMBER OF ARTICLES OF THE LAW ON VIETNAMESE GUEST WORKERS

Pursuant to the Law on Vietnamese Guest Workers No. 69/2020/QH14 dated November 13, 2020;

Pursuant to Decree No. 14/2017/ND-CP dated February 17, 2017 of the Government on functions, duties, entitlements, and organizational structure of the Ministry of Labor – War Invalids and Social Affairs; 

At the request of the Head of the Overseas Labor Agency;

The Minister of Labor - War Invalids and Social Affairs promulgates Circular on detailing a number of Articles of the Law on Vietnamese Guest Workers No. 69/2020/QH14 dated November 13, 2020 (hereinafter referred to as “Law No. 69/2020/QH14”)

Article 1. Scope

This Circular elaborates a number of the following Articles and Clauses of the Law on Vietnamese Guest Workers:

1. Applications for preparation of labor sources in accordance with regulations prescribed in Clause 5 Article 18.

2. Details of the labor supply contract in accordance with regulations prescribed in Clause 3 Article 19.

3. Documents proving compliance with regulations and laws of host countries of the provision of Vietnamese guest workers in accordance with regulations prescribed in Clause 4 Article 20; Documents proving compliance with regulations and law of host countries in bringing Vietnamese workers abroad for training and improvement in accordance with regulations prescribed in Clause 2 Article 40.

4. The ceiling wage under brokerage agreements in accordance with regulations prescribed in Clause 3 Article 22.

5. The ceiling service fees in accordance with regulations prescribed in Point c Clause 4 Article 23.

6. Professional staff for managing and supporting overseas workers in accordance with regulation prescribed in Point e Clause 2 Article 26.

7. The content of guarantee contracts and liquidation of guarantee contracts in accordance with regulations prescribed in Point 3 Article 58.

8. Programs, contents, duration of orientation education; form and duration of certificate for completion of orientation education courses in accordance with regulations prescribed in Clause 3 Article 65.

9. The form of applications for registration of labor supply contracts in accordance with regulations prescribed in Clause 4 Article 20; the form of applications for registration of contracts for receiving intern workers in accordance with regulations prescribed in Clause 2 Article 40; the form of applications for registration of directly-concluded labor contracts in accordance with regulations prescribed in Point a Clause 1 Article 53.

10. The form of contracts for the provision of Vietnamese guest worker services signed between the workers and service enterprises in accordance with regulations prescribed in Clause 3 Article 21; the content and form of contacts for the provision of Vietnamese guest worker services signed between the workers and Vietnamese entities making outward investments in accordance with regulations prescribed in Clause 4 Article 35; between the workers and service providers in accordance with regulations prescribed in Point b Clause 1 Article 43.

11. Annual reports of service enterprises in accordance with regulations prescribed in Point m Clause 2 Article 26, of Vietnamese entities making outward investments in accordance with regulations prescribed in Clause 8 Article 35, and of service providers in accordance with regulations prescribed in Point g Clause 2 Article 43; reports on provision of overseas training, improvement and enhancement for workers in accordance with regulations prescribed in Point l Clause 2 Article 41.

Article 2. Regulated entities

1. Vietnamese guest workers.

2. Vietnamese enterprises providing Vietnamese guest worker services.

3. Vietnamese enterprises providing overseas training, improvement, and enhancement for workers.

4. Vietnamese entities making outward investments providing Vietnamese guest worker services.

5. Public service providers affiliated to ministries, ministerial agencies, Governmental agencies assigned to bring Vietnamese abroad as guest workers.

6. Entities related to the implementation of this Circular.

Article 3. Preparation of labor sources

An application for preparation of labor sources includes:

1. Documents on preparing labor sources in accordance with Form No. 1 of Appendix I promulgated with this Circular.

2. Copies of the written request of foreign employment receivers or cooperation agreements between Vietnamese enterprises and foreign employment receivers attached with certified Vietnamese translations including the following content:

a) The number of workers that the Vietnamese enterprise has to prepare and professions and genders of workers;

b) Requirements on qualifications, vocational skills, and foreign languages ​​of workers;

c) Basic information on the foreign job (working place, salary, length of the labor contract);

d) Estimated time for the qualification.

3. A document proving permission to employ foreign workers issued by competent authorities of host countries regarding a foreign employment receiver cooperating with a Vietnamese service enterprise for the first time is one of the two following documents:

a) 1 copy of the license to operate issued by a competent authority of the host country regarding a foreign employment receiver is an employment service organization;

b) 1 copy of one of the following documents regarding a foreign employment receiver is the employee: the written approval on foreign workers issued by a competent authority of the host country; the quota notification for receiving foreign workers issued by a competent authority of the host country; other documents permitting the recruitment of foreign workers in accordance with regulations of the host country.

4. A plan for preparing labor sources includes the following content:

a) The estimated number of workers (the maximum number is equal to the one prescribed in Point a Clause 2 of this Article); professions; genders; qualifications, vocational skills, and foreign languages of workers;

b) Methods of preparing labor sources:

B1) Pre-qualifications (if any): Time and location;

b2) Expected vocational skills training (if any): Time (start time and end time), location, and methods of training (direct/associate);

b3) Expected foreign languages education (if any): Time (start time and end time), location, and methods of education (direct/associate);

5. A commitment to prioritize selecting workers who have participated in the labor source preparation phase is the document showing the prioritized content for a selection of the enterprise for each worker who has participated in the labor source preparation phase when forming the labor supply contract.

Article 4. Detailed content of the labor supply contract

The detailed content of a labor supply contract according to the market, sector, profession, and job is as follows:

1. Regarding sectors, professions, and jobs in the Japanese market, comply with regulations prescribed in Appendix II promulgated with this Circular.

2. Regarding sectors, professions, and jobs in the Taiwanese market (China), comply with regulations prescribed in Appendix III promulgated with this Circular.

3. Regarding sectors, professions, and jobs in the Korean market, comply with regulations prescribed in Appendix IV promulgated with this Circular.

4. Regarding sectors, professions, and jobs in West Asia, Central Asia, and Africa markets, comply with regulations prescribed in Appendix V promulgated with this Circular.

5. Regarding sectors, professions, and jobs in markets of Europe and Oceania, comply with regulations prescribed in Appendix VI promulgated with this Circular.

6. Regarding sectors, professions, and jobs in the market of Americas, comply with regulations prescribed in Appendix VII promulgated with this Circular.

7. Regarding sectors, professions, and jobs in the Chinese market or Macau market (China), comply with regulations prescribed in Appendix VIII promulgated with this Circular.

8. Regarding labor jobs on the international sea, comply with regulations prescribed in Appendix IX promulgated with this Circular.

Article 5. Documents proving compliance with regulations and laws of host countries of the provision of Vietnamese guest workers

1. Regarding the Malaysian market and the Taiwanese market (China), proving documents include:

a) 1 copy of the appraisal sheet for recruitment of Vietnamese workers of a Vietnamese representative mission in the host country or territory;

b) 1 copy of the license to recruit foreign workers issued by a competent authority of the host country to the employer with its Vietnamese translation.

2. Regarding other countries or territories:

a) If a foreign employment receiver is the employer of foreign workers, proving documents include:

a1) 1 copy of the business license or business registration license of the employer showing the field of business suitable for the sector, profession, and job for foreign worker recruitment with its Vietnamese translation;

a2) 1 copy of the document issued by a competent authority of the host country permitting the employer to recruit foreign workers or approving the sector, profession, and job eligible for foreign worker recruitment with its Vietnamese translation.

b) If a foreign employment receiver is an organization of foreign employment services, proving documents include:

b1) 1 copy of the business license or business registration license of the employment service organization showing the sector and profession of business including employment services with its Vietnamese translation;

b2) 1 copy of the cooperation agreement or written request or letter of authorization for the recruitment of Vietnamese workers of the employer for the employment service organization with its Vietnamese translation;

b3) Proving documents regarding employers prescribed in Point a of this Clause.

Article 6. Documents proving compliance with regulations and law of host countries in bringing Vietnamese workers abroad for training and improvement

Regarding countries or territories that need to have the approval of competent authorities for receiving foreign workers coming to train and improve their vocational skills, the proving document is one of the following documents:

1. 1 copy of the document issued by a competent authority of the host country to permit an intern worker receiver to receive foreign workers.

2. Other documents proving that the intern worker receiver is licensed to receive foreign workers in accordance with regulations of the host country.

Article 7. The ceiling wage under brokerage agreements

1. The ceiling wage under brokerage agreements according to the agreement between the service enterprises with intermediary entities shall not exceed 0,5 months of the worker's contract for every 12 working months. In case the labor contract has a working term of 36 months or more, the ceiling wage according to the brokerage agreement shall not exceed 1,5 months of the salary in the contract of the worker.

2. The ceiling wage under brokerage agreements for a number of specific markets, sectors, professions, and jobs is prescribed in Appendix X promulgated with this Circular.

Article 8. The ceiling service fee collected from workers for a number of markets, sectors, professions, and jobs

The ceiling service fee collected from workers for a number of markets, sectors, professions, and jobs is prescribed in Appendix XI promulgated with this Circular.

Article 9. Professional staff for managing and supporting overseas workers

A service enterprise shall appoint at least 1 professional employee in the host country or territory to manage and support workers according to the following regulations:

1. Service enterprises that have 500 or more employees working in Taiwan (China), Korea, Macau (China), and Japan.

2. Service enterprises that have 300 or more employees working in the remaining countries or territories.

Article 10. Content of guarantee contracts

Guarantee contracts include the following main content:

1. Participants

a) The guarantors are entities that have sufficient conditions as prescribed in Article 55 of the Law No. 69/2020/QH14;

b) The obligors are Vietnamese guest workers;

c) The obligees are service enterprises or service providers that provide Vietnamese guest worker services.

2. Scope of guarantee

The scope of guarantee is part of or the entire of the following tasks of the obligor:

a) Paying unpaid service fees of the obligors;

b) Paying compensation for the damage caused by the obligors' breach of the contract;

c) Paying the interest in case of late payment of money under the scope of guarantee which is calculated by the interest for demand deposits in VND of a credit institution as agreed by parties corresponding to the time of late payment at the time of payment.

3. Rights and tasks of participants

a) The guarantor may:  

a1) Receive sufficient and accurate information on rights and tasks of obligors for obligees from the obligee, obligor, and related parties;

a2) Request the obligee to inform the working place, employment situation, income, health, and working and living conditions of the obligor;

a3) Request the obligee to comply with commitments with the guarantor and obligor;

a4) Request compensation for damage and use that amount to compensate tasks with the obligee (if any) in case the obligee fails to perform or improperly or incompletely performs the tasks prescribed in Point d1), d2), d4), and d8) of this Article causing damages to the guarantor;

a5) Receive notifications on the completion of tasks of the obligor from the obligor or obligee;

a6) Request the obligee to return documents proving the financial capability, capability, and reputation of the guarantor (if any) when the guarantee contract ends;

a7) Request the obligor to perform its task within the scope of the guarantee task performed by the guarantor, except for cases with other agreements.

a8) Request the obligor to return the received asset or the value corresponding to the part of guarantee tasks performed by the guarantor in case the obligor still performs its tasks.

b) The guarantor shall: 

b1) Transfer documents proving its financial capability, capability, and reputation, and other necessary documents to the obligee;

b2) Mobilize and educate the obligor to properly perform tasks according to the signed contract with the obligee; adopt necessary measures to prevent and remedy damages caused by the obligor's breach of the contract;

b3) Perform tasks on behalf of the obligor within the committed scope of guarantee in case the obligor fails to perform or improperly or incompletely performs tasks in the signed contract with the obligee;

b4) Hand over its asset to the obligee or a third party according to an agreement to handle in case the guarantor fails to perform or improperly or incompletely performs its tasks

b5) Pay the value of the violated task and compensate the damage in case the guarantor fails to perform or improperly or incomplete performs its tasks.

c) The obligee may: 

c1) Request the guarantor to perform its tasks, except for cases where parties agree that the guarantor shall only perform tasks on behalf of the obligor in case the obligor is incapable of performing its tasks;

c2) Request the guarantor to transfer documents proving its financial capability, capability, and reputation, and other necessary documents to the obligee;

c3) Request the guarantor to mobilize and educate the obligor to properly perform tasks according to the signed contract with the obligee;

c4) Request the guarantor to hand over its asset to handle in case the guarantor fails to perform or improperly or incompletely performs its tasks when the deadline is due;

c5) Request the guarantor to pay the value of the violated task and compensate the damage in case the guarantor fails to perform or improperly or incomplete performs its tasks.

d) The obligee shall:  

d1) Comply with commitments with the guarantor and obligor; 

d2) Accurately, sufficiently, and timely inform the guarantor of rights and tasks of the obligor for the obligee;

d3) Inform the working place, employment situation, income, health, and working and living conditions of the obligor at the request of the guarantor;

d4) Preserve, protect, keep, and prevent loss of documents proving the financial capability, capability, and reputation of the guarantor if parties agree that the obligee will be in charge of such documents. In case the mentioned documents are damaged or lost, the obligee shall compensate the damage;

d5) Inform the guarantor about the performance of tasks on behalf of the obligor when there are grounds for performing the guarantee tasks in accordance with the law on secured transactions; if the obligor must perform tasks ahead of time due to violation of tasks but fails to perform or improperly or incomplete performs such tasks, the obligee shall provide specific explanations in the notification about the performance of tasks ahead of time of the obligor;

d6) Provide the guarantor with documents proving the tasks of the obligor within the scope of guarantee tasks and the damage caused by the obligor;

d7) Inform the guarantor about the completion of tasks of the obligor;

d8) Return documents proving the financial capability, capability, and reputation of the guarantor (if any) when the guarantee contract ends;

d9) Inform the obligor about the completion of tasks of the guarantor.

4. Termination of guarantee

The termination of guarantee happens in cases prescribed by the civil law on guarantee.

5. Other agreements that are not contrary to regulations of the law.

Article 11. Liquidation of guarantee contracts

1. The time for the liquidation of a guarantee contract is 30 days from the date of termination of the guarantee, except for cases with different agreements of parties.

2. The liquidation of guarantee contracts shall be in a separate document or included in the guarantee termination document or guarantee termination agreement, specifying the extent of the implementation of agreed content in the guarantee contract of parties and responsibilities of parties (if any) due to the liquidation.

Article 12. Orientation education

1. The program, duration, and content of the orientation education is prescribed in Appendix XII promulgated with this Circular.

2. Form and duration of the certificate of completion of the orientation education course:

a) The form of the certificate of completion of the orientation education course is prescribed in Form No. 6 Appendix I promulgated with this Circular;

b) The certificate of completion of the orientation education course is valid for 24 months from the date of issuance. Past the mentioned time limit, enterprises, service providers, or entities making outward investments that provide Vietnamese guest worker services shall reorganize the orientation education. In case the certificate has yet to exceed the 24-month duration of validity, but the worker wishes to change the service enterprise, service provider, or entities making outward investments or change the sector, profession, job, or host country, the enterprise, service provider, or entities shall organize an orientation education for changed content; that worker must take an examination to obtain a certificate of completion of such an orientation education course.

Article 13. Forms of applications for registration of contracts

1. The application for registration of labor supply contracts is in accordance with Form No. 2 of Appendix I promulgated with this Circular.

2. The application for registration of contracts for receiving intern workers is in accordance with Form No. 4 of Appendix I promulgated with this Circular.

3. The application for registration of labor contracts is in accordance with Form No. 5 of Appendix I promulgated with this Circular.

Article 14. Content and forms of contracts for Vietnamese guest worker services

1. The contract for Vietnamese guest worker services signed between a worker and a service enterprise is in accordance with Form No. 3 of Appendix No. 1 promulgated with this Circular.

2. The contract for Vietnamese guest worker services signed between a worker and an entity making outward investment shall be in accordance with the law of Vietnam and the law of the host country or territory and have the following content:

The working duration; sector and profession; host country or territory, working place; orientation education before going to work; working conditions and environments; working time and break time; vocational safety and hygiene; salary and bonus (if any), overtime salary, and deductions from salary (if any); conditions for eating, living, and traveling from the lodging place to the working place; responsibilities to pay traveling cost from Vietnam to the working place and vice versa; policies on medical examination and treatment and other benefits or policies (if any); rights and policies of workers when having vocational accidents or diseases and other policies; compensation of damage due to breach of the contract; mechanisms, procedures, and laws for settlement of disputations; other agreement in accordance with the law and social morality.

3. The contract for Vietnamese guest worker services signed between a worker and a service provider shall be in accordance with the law of Vietnam, law of the host country or territory, international agreements prescribed in Clause 1 Article 42 of Law No. 69/2020/QH14, labor supply contracts signed with the foreign employment receiver (if any) and have the following content:

The working duration; sector and profession; host country or territory, working place; orientation education before going to work; training for vocational skills and foreign languages (if any); costs workers have to pay before going; working conditions and environments; working time and break time; vocational safety and hygiene; salary and bonus (if any), overtime salary, and deductions from salary (if any); conditions for eating, living, and traveling from the lodging place to the working place; responsibilities to pay traveling cost from Vietnam to the working place and vice versa; policies on social insurance, health insurance, labor accident insurance, occupational disease insurance; compensation of damage due to breach of the contract; deposit and guarantee for the implementation of tasks of the contract (if any); liquidation of the contract; mechanisms, procedures, and laws for settlement of disputations; other agreement in accordance with the law and social morality.

Article 15. Regulations on annual reports

Regulations on annual reports of service enterprises, entities making outward investments, service providers providing Vietnamese guest worker services, and enterprises that provide overseas training and improvement for workers are as follows:

1. Annually, before December 20 of the reporting period, entities mentioned above shall submit a report on the performance of the provision of guest workers according to the Report Outline of Appendix XIII promulgated with this Circular.

2. Reports shall be written and sent to a receiving agency directly or by post or by online methods.

3. The time to finalize the reporting data in annual reports is from December 15 of the year before the reporting period to December 14 of the reporting period.

Article 16. Entry into force

1. This Circular comes into force as of February 1, 2022.

2. The following documents and regulations shall expire from the date this Circular comes into force:

a) Circular No. 21/2007/TT-BLDTBXH dated October 8, 2007 of the Ministry of Labor – War Invalids and Social Affairs detailing a number of Articles of the Law on Vietnamese guest workers and Decree No. 126/2007/ND-CP dated August 1, 2007 of the Government detailing and guiding a number of Articles of the Law on Vietnamese guest workers;

b) Circular No. 21/2013/TT-BLDTBXH dated October 10, 2013 of the Ministry of Labor – War Invalids and Social Affairs providing for the ceiling level of deposit and labor market in which service enterprises permitted making agreement about the depositing with workers;

c) Circular No. 22/2013/TT-BLDTBXH dated October 15, 2013 of the Ministry of Labor – War Invalids and Social Affairs providing the forms and content of labor supply contracts and guest worker contract;

d) Decision No. 18/2007/QD-BLDTBXH dated July 18, 2007 of the Minister of Labor – War Invalids and Social Affairs on the promulgation of the necessary knowledge training program for workers prior to overseas employment;

dd) Decision No. 20/2007/QD-BLDTBXH dated August 2, 2007 of the Minister of Labor – War Invalids and Social Affairs on the promulgation of certificates of necessary knowledge training for workers prior to overseas employment

e) Decision No. 61/2008/QD-BLDTBXH dated August 12, 2008 of the Minister of Labor – War Invalids and Social Affairs on the amount of brokerage fees paid by workers to enterprises in a number of markets.

3. Difficulties that arise during the implementation of this Circular shall be reported to the Ministry of Labor - War Invalids and Social Affairs (through the Overseas Labor Agency) for timely guidance./.

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