On management of Vietnamese laborers working abroad

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the November 12, 1996 Law on Promulgation of Legal Documents and the December 16, 2002 Law Amending and Supplementing a Number of Articles of the Law on Promulgation of Legal Documents;

Pursuant to the June 23, 1994 Labor Code and the April 2, 2002 Law Amending and Supplementing a Number of Articles of the Labor Code;

Pursuant to the 2002 Ordinance on Handling of Administrative Violations;

Considering the opinions of the National Assembly Standing Committee in the National Assembly Office's Document No. 1357/VPQH-CDVXH of August 3, 2005;

At the proposal of the Minister of Labor, War Invalids and Social Affairs,

DECREES:

Article 1.- Sending laborers to work abroad

1. Sending laborers to work abroad is a socio-economic activity contributing to creating employment, increasing income and raising job skills and fostering advanced working styles for laborers.

2. The State encourages agencies, organizations and Vietnamese people at home and abroad to participate in expanding markets, seeking partners and contracts to create conditions for laborers to work abroad in accordance with international law, Vietnamese laws and laws of host countries.

Article 2.- Scope of regulation

This Decree defines the responsibilities of enterprises sending Vietnamese laborers to work abroad (hereinafter referred to as enterprises), Vietnamese laborers working abroad (hereinafter referred to as laborers), laborers' guarantors, agencies and organizations managing laborers; acts of violation and the handling of acts of violation of state management over labor export.

Article 3.- Subjects of application

1. Enterprises.

2. Vietnamese laborers working abroad according to the provisions of law.

3. Guarantors of laborers.

4. Organizations and individuals involved in labor export.

Article 4.- Prohibited acts

1. Sending Vietnamese laborers to work in regions, professions and jobs banned by the laws of Vietnam or the host countries.

2. Taking advantage of sending laborers to work abroad to organize illegal sending of Vietnamese nationals abroad.

3. Taking advantage of sending laborers to work abroad to recruit, train and collect money from laborers in contravention of law.

4. Organizing the sending of laborers to work abroad without signing contracts according to the provisions of law.

5. Escaping immediately after entering the host country.

6. Leaving without permission one's workplace designated in one's labor contract.

7. Failing to return home upon termination of one's labor contract at the expiration of one's working term prescribed by the host country.

8. Organizing, inducing, inciting or forcing laborers to go on strike in contravention of the laws of the host country.

9. Mediating, inducing, inciting or cheating Vietnamese laborers in foreign countries to leave their workplaces designated in their labor contracts.

Article 5.- Recruitment of laborers

Enterprises specified in Clause 1, Article 3 of this Decree must directly recruit laborers, coordinate with local administrations in publicizing the number, sex, age, professions or jobs of laborers to be recruited, contractual term, working and living conditions, wages, overtime pays, and other incomes (if any), social insurance, and amounts to be paid by laborers before and during their working period in foreign countries.

Article 6.- Organization of orientation training and education

Enterprises shall be responsible for organizing foreign language teaching, orientation education and job skills complementation for laborers before they go to work abroad; hold examinations and grant certificates to laborers at the end of training courses according to the provisions of law.

Article 7.- Signing of contracts with laborers and signing of guaranty contracts

Enterprises shall have to sign contracts of working abroad with laborers and guaranty contracts with laborers' guarantors before laborers go to work abroad.

Article 8.- Taking of laborers to their workplaces in foreign countries

Enterprises shall be responsible for coordinating with foreign partners and employers to take laborers to their workplaces under contracts signed with foreign partners.

Article 9.- Management and settlement of matters related to laborers

Enterprises shall have the following responsibilities:

1. To appoint their representatives to inspect and supervise the performance of contracts; to protect the legitimate interests of laborers.

2. Together with their foreign partners and employers to solve matters related to laborers in the following cases:

a/ Employers fail to properly perform labor contracts already signed with laborers;

b/ Laborers have labor accidents, risk accidents or occupational diseases, or their dignity and honor are infringed upon;

c/ Laborers die.

3. To give advice and assistance to laborers in case of a dispute between laborer and employer.

4. To cooperate with their partners, families and guarantors in calling and persuading laborers who have escaped from their workplaces designated in their contracts; if laborers fail to follow, enterprises must report such to the Agency for Management of Overseas Laborers, diplomatic missions, consulates or other agencies authorized to perform consular functions of the Socialist Republic of Vietnam (hereinafter referred collectively to as Vietnamese representative missions) in the host countries for handling under the provisions of this Decree.

5. To supply information to Vietnamese representative missions in the host countries for the latter to issue papers for laborers to return home.

Article 10.- Liquidation of contracts with laborers

Enterprises shall liquidate contracts of working abroad with laborers according to the provisions of Vietnamese law.

Article 11.- Responsibilities of enterprises to state agencies

1. To register contracts according to the provisions of law.

2. To report lists of laborers already sent to work abroad according to the provisions of law; send periodical reports and reports on cases of deceased laborers, laborers meeting with accidents, missing laborers, laborers' strikes, bankrupt enterprises, escaped laborers and other relevant matters that have arisen to the Agency for Management of Overseas Laborers and Vietnamese representative missions in the host countries according to the provisions of law.

Article 12.- Participation in recruitment

When joining in recruitment, laborers shall have to thoroughly know the following contents: policies and laws of Vietnam and the host country; recruitment criteria and conditions; contractual term; jobs to be performed; workplaces; working and living conditions, wages, overtime pays and other incomes (if any), insurance regime; amounts to be paid by laborers before and during the working period in the foreign country; other necessary information in the contract.

Article 13.- Participation in orientation training and education courses

Before going to work abroad, laborers must attend all training courses, foreign language tests, orientation education and job skills complementation courses.

Article 14.- Signing of contracts with enterprises

1. To sign contracts of working abroad with enterprises after carefully studying the contracts' terms.

2. To fully comply with the terms of the contracts of working abroad already signed with enterprises.

3. To select and recommend guarantors for signing guarantors contracts with enterprises.

Article 15.- Performance of contracts of working abroad

While working abroad, laborers shall have the responsibilities:

1. To come to work at the places as agreed upon in the contracts of working abroad already signed with enterprises.

2. To sign the contracts with employers, properly perform the terms of such contracts and strictly obey the rules of the workplaces.

3. Not to leave without permission their workplaces stated in the signed labor contracts.

4. To immediately notify the sending enterprises and Vietnamese representative missions in the host countries for timely assistance when being involved in a dispute over labor relations with their employer or having their honor and dignity infringed upon.

5. To observe the laws, respect the customs and practices of the host countries.

6. To return to Vietnam after terminating their labor contracts within the time limit provided for by the laws of the host countries.

Article 16.- Guarantors of laborers

1. Guarantors of laborers are those selected and recommended by laborers and accepted by enterprises to sign guaranty contracts with enterprises. Guarantors must fully meet the following conditions:

a/ Having full civil act capacity for entering into guaranty contracts;

b/ Having economic capability to meet the conditions set in the guaranty contracts or prestige and responsibility to secure the laborers' fulfillment of their obligations.

2. Guarantors have the responsibilities:

a/ To sign guaranty contracts with enterprises to secure laborers' fulfillment of their obligations towards enterprises;

b/ To perform all obligations committed in the guaranty contracts on behalf of laborers in case laborers fail to perform their obligations toward enterprises according to the provisions of law;

c/ To mobilize and educate laborers and laborers' families to perform their obligations under the contracts signed with enterprises.

3. The Ministry of Labor, War Invalids and Social Affairs shall coordinate with the Ministry of Justice in guiding the guaranty for laborers.

Article 17.- Responsibilities of the Ministry of Labor, War Invalids and Social Affairs

1. To perform the tasks and powers as defined by law.

2. To direct the dissemination of the contents of this Decree and relevant legal documents among enterprises and laborers; direct the supervision and inspection of the enterprises' discharge of their responsibilities defined in this Decree.

3. To coordinate with the Ministry of Foreign Affairs in guiding the management of Vietnamese laborers working abroad.

4. To coordinate with ministries, branches and provincial/municipal People's Committees and managing agencies of enterprises in dealing with matters arising in the management of Vietnamese laborers working abroad.

5. To coordinate with overseas Vietnamese representative missions in reaching agreement with foreign functional authorities on written notices mentioned at Point a, Clause 1, Article 31 of this Decree to suit the requirements of each market.

Article 18.- Responsibilities of the Ministry of Foreign Affairs

1. Together with the Ministry of Labor, War Invalids and Social Affairs and concerned ministries and branches, to study and propose to the Government guidelines and policies concerning the sending of laborers to work abroad; explore information so as to develop foreign markets for sending laborers to work there; and handle matters related to Vietnamese laborers working abroad.

2. To direct and guide Vietnamese representative missions to provide consular and legal protection for Vietnamese citizens working abroad in accordance with current provisions of Vietnamese laws and treaties to which Vietnam is a contracting party.

Article 19.- Responsibilities of the Ministry of Public Security

1. To direct the police force at all levels to grasp the situation of organizations and individuals engaged in sending laborers to work abroad in order to prevent, detect and promptly handle violations of law.

2. To coordinate with concerned ministries, branches and agencies in conducting propaganda about and mobilizing the people to participate in preventing, fighting and denouncing offenses in labor export activities.

3. To coordinate with overseas Vietnamese representative missions and the Ministry of Labor, War Invalids and Social Affairs in directing competent authorities to investigate and handle in time cases showing criminal signs according to the provisions of law.

4. To coordinate with the Ministry of Labor, War Invalids and Social Affairs and overseas Vietnamese representative missions in receiving Vietnamese laborers expelled or forced to return home by foreign authorities under the provisions of this Decree.

Article 20.- Responsibilities of the Ministry of Health

1. To designate qualified medical establishments to conduct health examinations and issue health certificates for Vietnamese laborers to work abroad.

2. To assume the prime responsibility for, and coordinate with the Ministry of Labor, War Invalids and Social Affairs in, stipulating health conditions and criteria for Vietnamese laborers to work abroad to meet the requirements of each market.

3. To direct, supervise, inspect and handle violations committed by medical establishments in organizing health examinations for laborers to work abroad according to the provisions of law.

Article 21.- Responsibilities of the Ministry of Finance

1. To assume the prime responsibility for, and coordinate with the Ministry of Labor, War Invalids and Social Affairs and concerned ministries and branches in, stipulating financial regimes in the domain of sending laborers to work abroad.

2. To coordinate with the Ministry of Foreign Affairs and the Ministry of Labor, War Invalids and Social Affairs in guiding financial regimes for overseas Vietnamese representative missions to send Vietnamese laborers home according to the provisions of this Decree.

Article 22.- Responsibilities of overseas Vietnamese representative missions

1. To study and explore the host countries' markets, policies and methods of receiving foreign laborers so as to make proposals to the Government.

2. To guide enterprises to gain access to markets and sign labor cooperation contracts according to the provisions of the laws of Vietnam and the host countries.

3. To assist specialized agencies in Vietnam in appraising the conditions and feasibility of labor receipt contracts and the legal person status of foreign partners.

4. To guide and supervise activities of Vietnamese enterprises' representatives in foreign countries concerning their responsibilities to manage laborers and handle matters related to laborers.

5. To protect the legitimate rights and interests of laborers working abroad; and handle violations committed by Vietnamese laborers working abroad according to the provisions of this Decree.

6. To report on and propose competent Vietnamese agencies for settlement cases showing signs of serious violation of the provisions of Vietnamese law.

7. To coordinate with functional agencies of Vietnam and the host countries and enterprises in sending violating laborers home.

Article 23.- Responsibilities of provincial/municipal People's Committees

1. To conduct regular propaganda, education and dissemination of the State's guidelines, policies and laws concerning the sending of laborers to work abroad.

2. To perform state management in their localities and define responsibilities of laborers' families for laborers working abroad; to regularly supervise, inspect and handle in time violations committed by enterprises in their localities in the sending of laborers to work abroad.

3. To direct People's Committees at all levels and local specialized agencies to perform the following tasks:

a/ To coordinate with enterprises in creating sources of laborers and recommending those who have a sense of organization and discipline and well observe the provisions of law for being recruited to work abroad;

b/ To commend units, individuals and families that have made outstanding achievements in sending laborers to work abroad; publicize the list of sanctioned persons, forming public opinion criticizing violators; and mobilize families of violating laborers to urge them to voluntarily return home.

Article 24.- Sanctioning forms and remedies

1. For each act of administrative violation, violating organizations and individuals shall be subject to one of the following principal sanctioning forms:

a/ Caution;

b/ A fine of up to VND 20,000,000 (twenty million).

2. Depending on the nature and severity of their administrative violations, enterprises may be subject to the additional sanctioning form of deprival of the right to use labor export activity permits for a definite period (three or six months).

3. In addition to the principal and additional sanctioning forms specified in Clauses 1 and 2 of this Article, violating organizations or individuals may be subject to the application of the following remedies:

a/ To suspend or terminate the performance of contracts of sending laborers to work abroad;

b/ To organize the repatriation of Vietnamese laborers at the request of the host country or a competent Vietnamese agency;

c/ To pay damages and bear all expenses arising from administrative violations;

d/ To force laborers administratively sanctioned abroad to return home;

e/ To withdraw labor export activity permits.

Article 25.- Statute of limitations for sanctioning violations

The statute of limitations for administratively sanctioning violations specified in this Decree is one year, counting from the date of commission of administrative violations; beyond this time limit, violators shall not be sanctioned but still be subject to the application of remedies specified in Clause 3, Article 24 of this Decree.

Section 2. ACTS OF VIOLATION, SANCTIONING FORMS AND LEVELS

Article 26.- Sanctioning of violations committed by enterprises

1. A caution or a fine of between VND 200,000 (two hundred thousand) and VND 500,000 (five hundred thousand) shall be imposed on enterprises committing one of the following acts:

a/ Failing to report or reporting insufficient information on their attached units and/or organizations that are assigned labor export-related tasks;

b/ Failing to fully register the number of laborers sent to work abroad under the contracts already registered and accepted by competent agencies;

c/ Violating the provisions of Clause 1, Article 9 of this Decree.

2. A fine of between VND 5,000,000 (five million) and VND 10,000,000 (ten million) shall be imposed on enterprises or organizations violating one of the provisions of Article 8, Clause 3 of Article 9, Article 10 and Article 11 of this Decree.

3. A fine of between VND 10,000,000 (ten million) and VND 15,000,000 (fifteen million) shall be imposed on enterprises committing one of the following acts:

a/ Violating the provisions of Article 5, Article 6, Article 7, and Clause 2 of Article 9 of this Decree;

b/ Collecting recruitment fees from laborers;

c/ Failing to make contributions to the labor export support fund according to the provisions of law;

d/ Failing to pay damages to laborers for contractual breaches;

e/ Collecting and managing deposits of laborers in contravention of regulations;

f/ Collecting labor export service charges in contravention of regulations;

g/ Failing to report to competent agencies before signing contracts of sending laborers to perform particular jobs; signing contracts of receiving large numbers of laborers; contracts of sending laborers to work in countries where there are no Vietnamese laborers or Vietnamese representative missions;

h/ Lacking responsibility in resolving disputes, causing harm to the legitimate interests of laborers.

4. A fine of between VND 15,000,000 (fifteen million) and VND 20,000,000 (twenty million) shall be imposed on enterprises committing one of the following acts:

a/ Recruiting and organizing without permission of competent agencies the sending of laborers to work abroad;

b/ Violating the provisions of Clause 1 and Clause 2, Article 4 of this Decree;

c/ Abusing the capacity of sending laborers to work abroad to organize recruitment, orientation training and education to gain illicit profits;

d/ Lacking responsibility in management work, causing serious harms to the interests of laborers.

5. Additional sanctioning forms:

In addition to the principal sanctioning form, depending on the severity of their violations, enterprises may have the right to use permits deprived of for a definite period if they violate one of the provisions of Clause 2, Clause 3, Points a, c and d of Clause 4 of this Article.

6. Remedies:

a/ Enterprises shall be suspended from performing contracts if they violate one of the provisions of Points a, b, c, f and h, Clause 3 of this Article.

b/ Enterprises must stop performing contracts if they still fail to remedy consequences caused by their violations after the expiration of the period of suspension of performance of contracts;

c/ Enterprises shall have the right to use labor export permits deprived of by competent persons if they violate the provisions of Point b, Clause 4 of this Article or have been administratively sanctioned twice or more within 12 months;

d/ Enterprises must organize repatriation of laborers at the request of the host countries or competent Vietnamese agencies;

e/ Enterprises must pay damages and bear all expenses incurred by laborers.

Article 27.- Sanctioning of violations committed by laborers working abroad

1. A caution shall be imposed on laborers committing one of violations specified in Clause 5, 6, 7 and 9, Article 4 of this Decree.

2. Laborers sanctioned under the provisions of Clause 1 of this Article shall be subject to the application of the remedy of repatriation.

Section 3. SANCTIONING COMPETENCE

Article 28.- Competence to sanction violations committed in Vietnam

1. Presidents of People's Committees of provinces or centrally run cities shall have the powers:

a/ To serve a caution;

b/ To impose fines of up to VND 20,000,000 (twenty million);

c/ To apply the remedy specified at Point e, Clause 6, Article 26 of this Decree.

2. Labor inspectors on duty shall have the powers:

a/ To serve a caution;

b/ To impose fines of up to VND 200,000 (two hundred thousand).

3. Departmental-level chief labor inspectors shall have the powers:

a/ To serve a caution;

b/ To impose fines of up to VND 20,000,000 (twenty million).

4. Ministerial-level chief labor inspectors shall have the powers:

a/ To serve a caution;

b/ To impose fines of up to VND 20,000,000 (twenty million).

c/ To apply remedies specified at Points a, b and e, Clause 6, Article 26 of this Decree.

5. The director of the Agency for Management of Overseas Laborers shall have the powers:

a/ To serve a caution;

b/ To impose fines of up to VND 20,000,000 (twenty million).

c/ To apply remedies specified in Clause 5, Article 26 of this Decree.

When handling violations, competent persons specified in Clauses 1, 2, 3 and 4 of this Article may, if deeming it necessary to apply additional sanctions specified in Clause 5, Article 26 of this Decree, propose the director of the Agency for Management of Overseas Laborers to consider and decide.

d/ To apply remedies specified at Points a, b and d and e, Clause 6, Article 26 of this Decree.

6. The Minister of Labor, War Invalids and Social Affairs shall consider and decide to withdraw labor export activity permits under the provisions of Point c, Clause 6, Article 26 of this Decree at the proposal of competent persons defined in Clause 1, Clause 4 or Clause 5 of this Article.

Article 29.- Competence to sanction laborers in foreign countries

Heads of overseas Vietnamese representative missions may decide to impose administrative sanctions on and apply remedies to laborers under the provisions of Article 27 of this Decree.

Section 4. SANCTIONING PROCEDURES AND EXECUTION OF SANCTIONING DECISIONS

Article 30.- Sanctioning procedures and execution of sanctioning decisions for violations committed in Vietnam

For violations committed in Vietnam, the sanctioning procedures and execution of sanctioning decisions shall comply with the provisions of the 2002 Ordinance on Handling of Administrative Violations.

Article 31.- Sanctioning procedures and execution of sanctioning decisions for violations committed abroad

1. Procedures for making written records

a/ Upon receiving written notices of competent authorities of the host countries or employers on laborers' violations of the provisions of Clause 5, 6, 7 or 9, Article 4 of this Decree; diplomatic or consular officials in Vietnamese representative missions in such countries shall have to make written records of administrative violations according to a set form;

b/ The written record of an administrative violation must specify the date, month and year of making; full name and position of the record maker; full name, address and occupation of the violator; date, month and year of commission of the violation; act of violation; testimonies of the violator (if any) or of his/her co-laborer;

c/ A written record must be made at least in three copies; signed by its maker, the violator or the person (if any) certifying the act of violation referred to at Point b of this Clause; if it has more than one sheet, each sheet must be signed. If the violator or the person certifying the act of violation refuses to sign the record, the record maker must write the reason therefor in the record. One copy of the record must be handed to the violator (if present).

2. Sanctioning decisions

a/ The time limit for issue of sanctioning decisions is 10 (ten) days, counting from the date of making of records on administrative violations; for cases of violation involving many complicated circumstances, the time limit for issue of sanctioning decisions shall not exceed 30 (thirty) days, counting from the date of making of records.

Persons with sanctioning competence who fail to issue sanctioning decisions due to their fault shall be handled under the provisions of Article 121 of the 2002 Ordinance on Handling of Administrative Violations.

b/ A sanctioning decision must specify the date, month and year of issue; full name and position of the issuer; full name, address and occupation of the violator; act of violation; circumstances related to the settlement of the violation; the applicable clause(s) and article(s) of legal documents; principal sanctioning form; remedy(ies); time limit and place of execution of the decision, and the signature of the issuer.

A sanctioning decision must also specify that the sanctioned person, if failing to voluntarily comply with the decision, shall be forced to do so; and the right to complain about or sue against the decision according to the provisions of law.

c/ A sanctioning decision shall be sent to the violator within three days after the date of its issue.

Where the whereabouts of the violator is unknown, within three days after the date of its issue, the sanctioning decision must be posted up at the office of the Vietnamese representative mission in the host country and sent to the Agency of Management of Overseas Laborers for notification to concerned agencies and individuals.

d/ Sanctioning decisions shall become effective as from the date of their signing. Where the whereabouts of the violator is unknown, the sanctioning decision shall become effective 15 days after the date of its posting at the office of the Vietnamese representative mission in the host country.

3. Compliance with sanctioning decisions

a/ Sanctioned persons must comply with sanctioning decisions within 30 days, counting from the date such decisions become effective;

b/ Within the time limit specified at Point a of this Clause, if the sanctioned person fails to voluntarily comply with the sanctioning decision, within three days, counting from the date of expiration of the time limit for voluntary compliance with the sanctioning decision, the person with sanctioning competence shall issue a written notice on the non-compliance with the sanctioning decision, post up it at the office of the Vietnamese representative mission in the host country and send it to the Agency for Management of Overseas Laborers for notification to concerned agencies and individuals.

c/ If the violator fails to comply with the sanctioning decision after 30 days counting from the date of notification on his/her non-compliance with the sanctioning decision, he/she may be examined for penal liability for illegal stay abroad under the provisions of Article 274 of the Penal Code.

4. Measures to secure compliance with sanctioning decisions

Overseas Vietnamese representative missions shall have to issue necessary papers to sanctioned persons for repatriation according to the provisions of law; coordinate with functional authorities of the host country, Vietnamese enterprises and violators' families in buying air fares for violators to go home if they cannot afford air fares.

Section 5. COMPLAINTS, DENUNCIATIONS

Article 32.- Complaints, denunciations

The lodging and settlement of complaints and denunciations concerning the sending of laborers to work abroad shall comply with the provisions of law on complaints and denunciations.

Article 33.- Implementation effect

This Decree takes effect 15 days after its publication in "CONG BAO."

To annul Article 17 of the Government's Decree No. 113/2004/ND-CP of April 16, 2004, and regulations contrary to this Decree.

Article 34.- Organization of implementation

1. The Minister of Labor, War Invalids and Social Affairs shall coordinate with concerned ministries and branches in guiding and organizing, and be responsible for supervising and urging the implementation of this Decree.

2. Ministers, heads of ministerial-level agencies, heads of Government-attached agencies, and presidents of People's Committees of provinces and centrally-run cities shall have to implement this Decree.