DECREE No. 70/2023/ND-CP – Amending and supplementing a number of articles of the Government’s Decree No. 152/2020/ND-CP
20 Sep 2023
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GOVERNMENT ________ No. 70/2023/ND-CP |
SOCIALIST REPUBLIC OF VIETNAM _______________________ Hanoi, September 18, 2023 |
DECREE
Amending and supplementing a number of articles of the Government’s Decree No. 152/2020/ND-CP dated December 30, 2020 regulating foreign workers working in Vietnam and recruiting and managing Vietnamese workers working for foreign organizations and individuals in Vietnam
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Pursuant to the Law on Government Organization dated June 19, 2015; Law amending and supplementing a number of articles of the Law on Government Organization and the Law on Organization of Local Government dated November 22, 2019;
Pursuant to the Labor Code dated November 20, 2019;
Pursuant to the Law on Investment dated June 17, 2020;
Pursuant to the Enterprise Law dated June 17, 2020;
At the proposal of the Minister of Labor, War Invalids and Social Affairs;
The Government promulgates a Decree amending and supplementing a number of articles of the Government’s Decree No. 152/2020/ND-CP dated December 30, 2020 regulating foreign workers working in Vietnam and recruiting and managing Vietnamese workers working for organizations, foreign individuals in Vietnam.
Article 1. Amending and supplementing a number of articles of the Government’s Decree No. 152/2020/ND-CP dated December 30, 2020 regulating foreign workers working in Vietnam and recruiting and managing Vietnamese workers working for foreign organizations and individuals in Vietnam
1. To amend and supplement a number of points and clauses of Article 3 as follows:
a/ To amend and supplement Point a, Clause 3, Article 3 as follows:
“a) University degree or higher or equivalent and at least 3 years of work experience suitable to the job position that the foreign worker intends to work in Vietnam.”.
b/ To amend and supplement Clause 5, Article 3 as follows:
“5. An executive director is a person who falls into one of the following cases:
a) The head of the branch, representative office or business location of the enterprise.
b) The head and directly administers at least one field of the agency, organization or enterprise and is under the direct direction and administration of the head of the agency, organization or enterprise.”.
c/ To amend and supplement Point a, Clause 6, Article 3 as follows:
“a) Be trained for at least 1 year and have at least 3 years of experience suitable to the job position that the foreign worker intends to work in Vietnam.”.
2. Article 4 is amended and supplemented as follows:
“Article 4. Employing foreign workers
1. Determine the need to employ foreign workers
a) At least 15 days before the expected date of employment of foreign workers, the employer (except the contractor) shall determine the demand for foreign workers for each job position that the Vietnamese employee has not yet met and report to the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor. War Invalids and Social Affairs where the foreign worker plans to work according to Form No. 01/PLI Annex I promulgated together with this Decree.
In the course of implementation, if the demand for employing foreign workers changes in terms of position, job title, working form, number and location, the employer must report to the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs according to Form No. 02/PLI Annex I promulgated together with this Decree in advance at least 15 days from the expected date of employment of foreign workers.
b) In the case of foreign workers specified in Clauses 3, 4, 5, 6 and 8, Article 154 of the Labor Code and Clauses 1, 2, 4, 5, 7, 8, 9, 10, 11, 12, 13 and 14, Article 7 of this Decree, the employer is not required to determine the need to employ foreign workers.
c) From January 1, 2024, the announcement of recruitment of Vietnamese workers to positions expected to recruit foreign workers shall be made on the Portal of the Ministry of Labor, War Invalids and Social Affairs (Employment Department) or the Portal of the Employment Service Center by the Chairman of the provincial People’s Committee, centrally-run cities shall decide to establish themselves within at least 15 days from the expected date of reporting to the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs where the foreign worker is expected to work. The content of the recruitment announcement includes: position and job title, job description, number, qualification requirements, experience, salary, time and location of work. After failing to recruit Vietnamese workers to positions recruiting foreign workers, the employer shall determine the need to employ foreign workers as prescribed at Point a, Clause 1 of this Article.
2. The Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs shall approve or disapprove the employment of foreign workers for each job position according to Form No. 03/PLI Appendix I promulgated together with this Decree within 10 working days from the date of receipt of the explanatory report; or report explaining changes in demand for foreign workers.”.
3. Clause 3 of Article 6 is supplemented as follows:
“3. In case a foreign worker works for an employer in many provinces or centrally-run cities, within 3 working days from the date the foreign worker starts working, the employer must report electronically to the Ministry of Labor, War Invalids and Social Affairs and the Department of Labor, War Invalids and Social Affairs the association where the foreign worker comes to work according to Form No. 17/PLI Annex I promulgated together with this Decree.”.
4. To amend and supplement a number of clauses of Article 7 as follows:
a/ To amend and supplement Clause 6 of Article 7 as follows:
“6. Being sent to Vietnam by a competent foreign agency or organization to teach or act as a manager or executive director at an educational institution proposed by a foreign diplomatic mission or intergovernmental organization to establish in Vietnam; establishments and organizations established under international treaties to which Vietnam has signed and acceded.”
b/ To amend and supplement Clause 14, Article 7 as follows:
“14. To be certified by the Ministry of Education and Training of foreign workers to enter Vietnam to perform the following jobs:
a/ Teaching and research;
b/ To act as managers, managing directors, principals and vice principals of educational institutions proposed to be established in Vietnam by foreign diplomatic missions or intergovernmental organizations.”.
5. To amend and supplement a number of points and clauses of Article 9 as follows:
a/ To amend and supplement Clause 1, Article 9 as follows:
“1. A written application for a work permit by the employer according to Form No. 11/PLI Appendix I promulgated together with this Decree. In case a foreign worker works for one employer at more than one location, the written application for a work permit must list all working locations.”
b/ To amend and supplement Points a and b, Clause 4, Article 9 as follows:
“a) Documents proving that the manager or executive director as prescribed in Clauses 4 and 5, Article 3 of this Decree include the following 3 types of papers:
– The company’s charter or operation regulations of agencies, organizations or enterprises;
– Certificate of enterprise registration or certificate of establishment or establishment decision or other document of equivalent legal validity;
– Resolutions or decisions on appointment of agencies, organizations or enterprises.
b) Papers proving technical experts and laborers as prescribed in Clauses 3 and 6, Article 3 of this Decree include the following 2 types of papers:
– Diplomas or certificates or certificates;
– Written certification of the overseas agency, organization or enterprise on the number of years of experience of experts, technical workers or work permits that have been granted or confirmed not to be eligible for the granted work permit.”.
c/ To amend and supplement the name of Clause 8, Article 9 as follows:
“8. Documents related to foreign workers, except for the case of foreign workers specified at Point a, Clause 1, Article 2 of this Decree.”.
d/ To amend and supplement Point e, Clause 8, Article 9 as follows:
“e) For foreign workers working as prescribed at Point i, Clause 1, Article 2 of this Decree, there must be a document from the foreign agency, organization or enterprise sending the foreign worker to work in Vietnam and suitable to the expected job position or documents proving that they are managers as prescribed in Clause 4 Article 3 of this Decree.”.
đ) Point c, Clause 9, Article 9 is supplemented as follows:
“c) For foreign workers who are experts or technical workers who have been granted a work permit and have been extended once but wish to continue working with the same job position and job title stated in the work permit, the dossier of application for a new work permit shall include the documents specified in Clause 1, 2, 5, 6, 7, 8 of this Article and a copy of the work permit issued.”.
6. Clause 2 of Article 11 is amended and supplemented as follows:
“2. Within 05 working days after receiving a complete application for a work permit, the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs where the foreign worker intends to work shall issue a work permit to the foreign worker according to Form No. 12/PLI Appendix I promulgated together with the Decree this determination. In case of refusal to issue a work permit, a written reply clearly stating the reason shall be given.
The work permit is A4 size (21 cm x 29.7 cm), consisting of 2 pages: page 1 is blue; Page 2 has a white background, blue pattern, in the middle in the shape of a star. Work permits are coded as follows: codes of provinces and centrally-run cities and codes of the Ministry of Labor, War Invalids and Social Affairs according to Form No. 16/PLI Appendix I promulgated together with this Decree; last 2 digits of the year of issuance of the license; type of license (new symbol 1; renewal of symbol 2; re-issuance of symbol 3); sequence number (from 000.001).
In case the work permit is electronic, it must comply with relevant laws and meet the contents according to Form No. 12/PLI Annex I promulgated together with this Decree.”.
7. Clause 3 of Article 12 is amended and supplemented as follows:
“3. Change one of the following contents: full name, nationality, passport number, working location, change of enterprise name without changing the enterprise code stated in the valid work permit.”.
8. Clause 7 of Article 17 is amended and supplemented as follows:
“One of the documents specified in Clause 8, Article 9 of this Decree proves that the foreign worker continues to work for the employer according to the content of the granted work permit, unless the foreign worker works as prescribed at Point a, Clause 1, Article 2 of this Decree.”.
9. Point b, Clause 1, Article 22 is amended and supplemented as follows:
“b) Organizations that are decentralized, delegated, assigned, ordered or tendered by provincial-level People’s Committees.”.
10. Point b, Clause 4, Article 27 is amended and supplemented as follows:
“b) Organizations that are decentralized, authorized, assigned, ordered or bid by provincial-level People’s Committees to recruit and manage Vietnamese laborers working for foreign organizations and individuals shall report to the Department of Labor, War Invalids and Social Affairs.”.
11. To amend and supplement a number of points and clauses of Article 30 as follows:
a/ To amend and supplement Point a, Clause 1, Article 30 as follows:
“a) Implement the approval of the demand for employing foreign workers; confirmation of not being eligible for a work permit; issuance, re-issuance, extension and revocation of work permits for foreign workers in one of the following cases:
Working for the employer specified at Point g, Clause 2, Article 2 and the employer specified at Points c, d, e, Clause 2, Article 2 of this Decree are permitted by the Government, the Prime Minister, ministries, ministerial-level agencies and agencies attached to the Government;
Working for an employer in many provinces and centrally-run cities.”.
b/ To amend and supplement Point c, Clause 1, Article 30 as follows:
“c) Perform the unified state management of recruitment and management of foreign workers working in Vietnam from central to local levels and manage Vietnamese working for foreign organizations and individuals in Vietnam.”.
c/ To amend and supplement Clause 3, Article 30 as follows:
“3. Responsibilities of the Ministry of Defence:
a/ To coordinate with competent agencies in charge of foreign workers and Vietnamese laborers working for foreign organizations and individuals in Vietnam in complying with the provisions of law on ensuring security and order in strategic areas, key and weak areas for national defense.
b/ To direct the Border Guards to coordinate with functional forces in managing and inspecting Vietnamese laborers working for foreign organizations and individuals in Vietnam and foreign workers working in border areas, border gates, islands and maritime areas in order to firmly protect territorial sovereignty, security, national borders of the Fatherland.”
d/ To amend and supplement Point a, Clause 4, Article 30 as follows:
“a) Monthly provide information on foreign workers granted visas with symbols including: DN1, DN2, LV1, LV2, LĐ1, LĐ2, DT1, DT2, DT3, DT4 to work for agencies, organizations and enterprises to the Ministry of Labor, War Invalids and Social Affairs;”.
dd) To amend and supplement Point a, Clause 6, Article 30 as follows:
“a) Implement the approval of the demand for employing foreign workers; confirmation of not being eligible for a work permit; issuance, re-issuance, extension and revocation of work permits for foreign workers in one of the following cases:
Working for the employer specified at Points a, b, h, i, k, l, Clause 2, Article 2 and the agencies and organizations specified at Points c, d, e, Clause 2, Article 2 of this Decree by provincial-level People’s Committees, specialized agencies affiliated to provincial-level People’s Committees, District-level People’s Committees shall be established;
Working for employers at multiple locations in the same province or centrally-run city.”.
12. To amend and supplement a number of templates as follows:
a) Amending Form No. 01/PLI; Form No. 02/PLI; Form No. 07/PLI; Form No. 08/PLI Annex I promulgated together with Decree No. 152/2020/ND-CP into Form No. 01/PLI; Form No. 02/PLI; Form No. 07/PLI; Form No. 08/PLI Appendix promulgated together with this Decree;
b) Add Form No. 16/PLI and Form No. 17/PL1 to Appendix I promulgated together with Decree No. 152/2020/ND-CP.
13. Substituting or supplementing a number of words and phrases at the following points, clauses, articles and appendices:
a) To replace the phrase “Chairman of the provincial-level People’s Committee” in Clause 1, Article 5 with the phrase “Department of Labor, War Invalids and Social Affairs”; Replace the phrase “The Chairman of the People’s Committee of the province shall direct” with the phrase “proposed by the Department of Labor, War Invalids and Social Affairs” in Clause 2, Article 5;
b) To replace the phrase “Clauses 4, 6 and 8 of Article 154″ with the phrase “Clauses 4 and 6 of Article 154″ and the phrase “3 days” with the phrase “3 working days” in Clause 2, Article 8;
c) Replace the phrase “translated into Vietnamese and certified” with the phrase “translated into Vietnamese and notarized or authenticated” at Point e, Clause 3, Article 8;
d) Replace the phrase “translated into Vietnamese and authenticated” with the phrase “translated into Vietnamese and notarized or authenticated” in Clause 10, Article 9 and Clause 4, Article 23;
dd) Replace the phrase “Papers specified in Clauses 3 and 4 of this Article” with the phrase “Papers specified in Clause 3 of this Article” in Clause 5, Article 13;
e) Replace the phrase “translated into Vietnamese” with the phrase “translated into Vietnamese and notarized or authenticated” in Clause 5, Article 13 and Clause 8, Article 17;
g) Replace the phrase “Certified copy of passport” with the phrase “Certified copy of passport or copy of passport certified by the employer” at Point d, Clause 3, Article 8; Clause 7 of Article 9 and Clause 5 of Article 17;
h) Replace the phrase “20. Salary:….VND” with the phrase “20. Average salary / month: …. million VND” in Form No. 11/PLI Appendix I promulgated together with Decree No. 152/2020/ND-CP;
i) Replace the phrase “People’s Committee of the province/city….” with the phrase “Department of Labor, War Invalids and Social Affairs…” in Form No. 03/PLI Appendix I promulgated together with Decree No. 152/2020/ND-CP;
k) Replace the phrase “Director/Chairman of the provincial People’s Committee” with the phrase “Director/Director”, the phrase “At the request in the digital document” to the phrase “At the request and the contents of information provided in the digital document” in Form No. 03/PLI Appendix I promulgated together with Decree No. 152/2020/ND-CP;
l) Replace the phrase “Chairman of the People’s Committee of the province/city…” with the phrase “Department of Labor, War Invalids and Social Affairs….” in Form No. 04/PLI, Form No. 05/PLI, Form No. 06/PLI Annex I promulgated together with Decree No. 152/2020/ND-CP;
m) Replace the phrase “TM. People’s Committee of the province, city …/Chairman” with the phrase “Director” in Form No. 06/PLI Appendix I promulgated together with Decree No. 152/2020/ND-CP.
n) Add the phrase “(Enterprise/organization) please assure that the above information is true. If wrong, (enterprise/organization) please take full responsibility before the law” after Section 24 of Form No. 09/PLI Annex I issued together with Decree No. 152/2020/ND-CP.
o) Add the phrase “Immigration Department (Ministry of Public Security)” in the section “Recipient” Form No. 13/PLI Appendix I promulgated together with Decree No. 152/2020/ND-CP.
14. The following points and clauses are repealed:
a/ To annul Clause 4, Article 13;
b/ To annul Points c, d and dd, Clause 5 and g, Clause 6, Article 30;
c/ Abolition of Point a, Clause 6a, Article 30 of the Government’s amended Decree No. 152/2020/ND-CP dated December 30, 2020 regulating foreign workers working in Vietnam and recruiting and managing Vietnamese workers working for foreign organizations and individuals in Vietnam, supplemented in the Government’s Decree No. 35/2022/ND-CP dated May 28, 5, 2022 regulating the management of industrial parks and economic zones.
Article 2. Abolition of a number of provisions of the Government’s Decree No. 35/2022/ND-CP dated May 28, 5, 2022 regulating the management of industrial parks and economic zones
1. To annul the opening paragraph “Issuance, re-issuance, extension and revocation of work permits and certification of foreign workers not eligible for work permits for foreigners working in industrial parks or economic zones” and the phrase “receipt of reports on the employment of foreign workers” at Point dd, Clause 2, Article 68.
2. To abolish the paragraph “receiving explanatory reports of enterprises in industrial parks or economic zones on the demand for employing foreigners for each job position that Vietnamese have not yet met” at Point c, Clause 3, Article 68.
Article 3. Enforcement Terms
1. This Decree takes effect from September 18, 2023.
2. Transitional Terms:
For the report explaining the need to employ foreign workers, the dossier of request for confirmation is not eligible for work permit issuance; granting, re-issuing and extending work permits submitted by foreign employers to the Ministry of Labor, War Invalids and Social Affairs, provincial-level People’s Committees, Departments of Labor, War Invalids and Social Affairs, Management Boards of industrial parks, economic zones and hi-tech parks before the effective date of this Decree, shall apply according to the provisions of Decree No. 152/2020/ND-CP dated December 30, 12 of the Government regulating foreign workers working in Vietnam and recruiting and managing Vietnamese workers working for foreign organizations and individuals in Vietnam and Decree No. 35/2022/ND-CP dated May 28, 5 of the Government regulating the management of industrial parks and economic zones.
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TM. GOVERNMENTKT. PRIME MINISTER
DEPUTY PRIME MINISTER
Tran Hong Ha |