Circular No.41/2014/TT-BCT Regulating Vietnam Work Permit Exemption for Foreign Laborers Transferring Internally within an Enterprise
13 Aug 2015
Pursuant to Point a sub-article 7.2 of Decree 102/2013/NĐ-CP, Vietnam Ministry of Industry and Trade has issued Circular No. 41/2014/TT-BCT dated November 5, 2014 regulating the work permit exemption for foreign laborers transferring internally within an enterprise in eleven services of Commitments on Services of Vietnam with WTO.
| MINISTRY OF INDUSTRY AND TRADE | SOCIALIST REPUBLIC OF VIETNAM Independence – Freedom – Happiness |
| No: 41/2014/TT-BCT |
Hanoi, November 5th, 2014 |
CIRCULAR
STIPULATING FOUNDATIONS, PROCEDURES TO DEFINE FOREIGN LABOURERS’ INTERNAL MOVEMENT IN ENTERPRISES OPERATING IN 11 SERVICE SECTORS SPECIFIED IN VIETNAM’S COMMITEMENT SCHEDULE TO WORLD TRADE ORGANIZATION NOT SUBJECT TO LABOUR LICENSING
Pursuant to Government’s Decree No. 95/2012/NĐ-CP dated November 12th stipulating function, task, power and organization structure of Ministry of Industry and Trade;
Pursuant to Government’s Decree No. 95/2012/NĐ-CP dated September 5th, 2013 stipulating implementation provisions of Labor Code on foreign workers in Vietnam;
Having considered recommendation of General Director of Planning Department,
Minister of Industry and Trade promulgates Circular stipulating foundations, procedures to define foreign laborers’ internal movement in enterprises operating in 11 service sectors specified in Vietnam’s commitment schedule to World Trade Organization not subject to labor licensing as follows:
Chapter I
GENERAL PROVISIONS
Article 1. Scope of regulation
This Circular stipulates foundations, procedures to define foreign laborers’ internal movement in the enterprises operating in 11 service sectors specified in Vietnam’s commitment schedule to World Trade Organization (hereinafter referred to as WTO) not subject to labor licensing.
Article 2. Subjects of application
This Circular is applicable to foreign laborers moving internally in enterprises, foreign employers and relevant organizations, individuals.
Article 3. Commercial presence
Commercial presence specified in Clause 1, Article 3, Government’s Decree No. 102/2013/ NĐ-CP dated September 5th, 2013 providing implementation provisions of Labor Code on foreign workers in Vietnam (hereinafter referred to as Decree No. 102/2013/ NĐ-CP) includes the followings:
- a) Business cooperation contract;
- b) Joint-venture enterprise, 100% foreign-capital enterprises; c) Representative office, branch of foreign enterprises.
Chapter II
FOUNDATIONS, PROCEDURES TO DEFINE FOREIGN LABOURERS’ INTERNAL MOVEMENT IN ENTERPRISES OPERATING IN 11 SERVICE SECTORS SPECIFIED IN VIETNAM’S COMMITMENT SCHEDULE TO WORLD TRADE ORGANIZATION
Article 4. Foundations to define foreign laborers’ internal movement in enterprises operating in 11 service sectors specified in Vietnam’s commitment schedule to WTO not subject to labor licensing
- Foundations to define internal movement of foreign laborers as managers, CEOs, experts in enterprises operating in 11 service sectors specified in Vietnam’s commitment schedule to WTO not subject to labor licensing in accordance to Point a, Clause 2, Article 7, Decree No. 102/2013/NĐ-CP include:
a) Foreign enterprises established commercial presence in territory of Vietnam;
b) Foreign enterprises’ commercial presence in territory of Vietnam operates in 11 service sectors listed in Annex I attached to this Circular;
c) Vietnamese workers employed by foreign enterprise for at least 12 months prior being assigned to Vietnam for working at foreign enterprise’s commercial presence in territory of Vietnam.
- Foundations to define internal movement of foreign laborers as technicians in enterprises operating in 11 service sectors specified in Vietnam’s commitment schedule to WTO not subject to labor licensing in accordance to Point a, Clause 2, Article 7, Decree No. 102/2013/NĐ-CP include:
a) Foreign enterprises established commercial presence in territory of Vietnam;
b) Foreign enterprises’ commercial presence in territory of Vietnam operating in 11 service sectors listed in Annex II attached to this Circular;
c) Vietnamese workers employed by foreign enterprise for at least 12 months prior being assigned to Vietnam for working at such foreign enterprise’s commercial presence in territory of Vietnam.
Article 5. Procedures to define foreign laborers’ internal movement in enterprises operating in 11 service sectors specified in Vietnam’s commitment schedule to WTO
- Documents on proving foreign laborers’ internal movement in enterprises operating in 11 service sectors specified in Annexes I and II attached to this Circular not subject to labor licensing in accordance to Point c, Clause 3, Article 8, Decree No. 102/2013/NĐ-CP include:
a) Foreign enterprise’s document on staff assignment to work at such foreign enterprise’s commercial presence in territory of Vietnam clearly states working term;
b) Written certification on the titles such as manager, CEO, expert, or technician as specified in Clause 4, Article 10, Decree No. 102/2013/NĐ-CP and Clause 3, Article 5, Circular No. 03/2014/TT-BLĐTBXH dated January 20th, 2014 of Ministry of Labor, Invalid and Social Welfares providing implementation guidance on provisions of Decree No. 102/2013/NĐ-CP (hereinafter referred to as Circular No. 03/2014/TT-BLĐTBXH);
c) Documents proving foreign worker’s employment by foreign enterprise for at least 12 months prior being assigned to work at enterprise’s commercial presence in territory of Vietnam in accordance to Clause 5, Article 5, Circular No. 03/2014/TT-BLĐTBXH.
Documents specified in Points a, b, and c of this Article shall be one (01) original or one (01) copy, if being written in foreign languages, such documents must be translated into Vietnamese and notarized, without legalization, in accordance to the legal regulations;
d) Documents proving commercial presence of foreign enterprise operating in 11 service sectors in territory of Vietnam as specified in Annex I attached to this Circular shall be either one of the followings: Investment license, Investment certificate, Business registration certificate, Enterprise registration certificate, Representative office and branch establishment license issued by competent authority in accordance to legal regulations (one (01) certified copy).
- Foreign workers internally moving in enterprise operating in 11 service sectors specified in Vietnam’s Commitment Schedule to WTO shall follow certifying procedures on not subjected to labor licensing as specified in Article 11 Circular No. 03/2014/TT-BLĐTBXH.
- In case that Department of Labor, Invalid, and Social Welfares finds any difficulties in defining internal moving of foreign workers in enterprise operating in 11 service sectors as specified in Annexes I and II attached to this Circular not being subjected to labor licensing, Department of Labor, Invalid, and Social Welfares shall make request in Form No. 1 in Annex III attached to this Circular to Ministry of Industry and Trade for the answer (one (01) original request with documents as specified in clause 1 of this Article (one (01) copy)).
Within three (03) working days from the date of request receiving from Department of Labor, Invalid, Social Welfare, Ministry of Industry and Trade shall have reply clearly defining operation of foreign enterprise’s commercial presence in territory of Vietnam included in 11 service sectors as specified in Annexes I and II attached to this Circular or not.
- In case of contrary opinions between employer and Department of Labor, Invalid, Social Welfares on defining internal moving of workers in foreign enterprise operating in 11 service sectors as specified in Annexes I and II attached to this Circular, employer shall make request in Form No. 2 in Annex III attached to this Circular to Ministry of Industry and Trade for answer (one (01) copy) and answering letter of Department of Labor, Invalid, and Social Welfares to employer (one (01) copy).
Within five (05) working days from the date of request receiving submitted by employer, Ministry of Industry and Trade shall have answer in writing to Department of Labor, Invalid, and Social Welfares with copy to employer clearly defining operation of foreign enterprise’s commercial presence in territory of Vietnam included in 11 service sectors as specified in Annexes I and II attached to this Circular or not.
Based on answering document of Ministry of Industry and Trade, Department of Labor, Invalid, and Social Welfares shall be responsible to re- examine defining foreign workers not being subjected to labor licensing.
Chapter III
IMPLEMENTATION ORGANIZATION
Article 6. Implementation responsibility
- Planning Department – Ministry of Industry and Trade as contact point assumes responsibility on solving issues related to defining foreign worker’s internal moving in foreign enterprise operating in 11 service sectors in Vietnam’s Commitment Schedule to WTO as specified in Annexes 1 and 2 attached to this Circular.
- Department of Labor, Invalid, and Social Welfares assumes responsibility in defining foreign worker’s internal moving in foreign enterprise operating in 11 service sectors in Vietnam’s Commitment Schedule to WTO not being subjected to labor licensing as specified in this Circular.
- During implementation, involving organization, agencies, and individuals finding any difficulty, obstacle, or query shall reflect to Ministry of Industry and Trade for timely guidance and amendment.
Article 7. Reporting regime
Periodically for every 6 months, prior January 15th and July 15th of each year, Department of Labor, Invalid, and Social Welfares shall make report on foreign laborers working in foreign enterprises and organizations in locality to Ministry of Industry and Trade in accordance to Point c, Clause 7, Article 13, Circular No. 03/2014/TT-BLĐTBXH including report on foreign workers’ internal moving not subjected to labor licensing in blanks (20 and 21).
Article 18. Enforcement
This Circular comes into force on December 22nd, 2014./.
P.O. MINISTER
DEPUTY MINISTER
Signed and stamped
Do Thang Hai