How to Resolve Disputes in Labour in Vietnam?

   

Both employees and employers can consult labour dispute lawyers in Vietnam to understand the labour law and protect their rights.

A labour dispute is one of the most common disputes in society, in particular it means a dispute over rights, obligations and interests among the parties during the establishment, execution or termination of labor relation; a dispute between the representative organizations of employees; a dispute over a relationship that is directly relevant to the labor relation.

In fact, labour disputes happen often, but there are many situations where employees often have little understanding of their rights, leading to disadvantages if the employer does not know or does not follow the law.

Therefore, identifying employment disputes is very important. For employees, learning about labor law is to know their rights. Employers need to understand labor laws to ensure compliance.

Labour disputes incurred during pandemic, questions needing answers?

For example, during the recent pandemic, many businesses faced difficulties in doing business in Vietnam and hence many common labour disputes arisen. For workers, a dispute could arise from not being paid on time. Other concerns are whether there is any violations that lead to the termination of the labor contract? Has the employer carried out restructuring procedures and notified state agencies according to the correct procedure before terminating the labor contract with the employee? Does the employer have an agreement with the employee before suspending the labor contract during the pandemic? When the business is not efficient, is the employer required to pay the 13th month salary to the employee?

What types of labour dispute you might be encountering?

At present, labour disputes are classified into different types based on the object who participated in the dispute: Labour disputes between the employee and the employer; labour between the employee and the organization that sends the employee to work overseas under a contract; labour dispute between the outsourced worker and the enterprise. Right-based or interest-based collective labour disputes between one or several representative organizations of employees and the employer or one or several representative organizations of employees.

How to settle labour dispute at court?

The labor dispute settlement process must follow the following principles:

Respect the parties’ autonomy through negotiation throughout the process of labor dispute settlement;

Prioritize labour dispute settlement through mediation and arbitration on the basis of respect for the rights and interests of the two disputing parties, and respect for the public interest of the society and conformity with the law;

The labour dispute shall be settled publicly, transparently, objectively, promptly, and lawfully;

Ensure the participation of the representatives of each party in the labour dispute settlement process;

Labour dispute settlement shall be initiated by a competent authority or person after it is requested by a disputing party or by another competent authority or person and is agreed by the disputing parties.

When a labour dispute arises, one party or parties may request a Labor Mediator; The Labor Arbitration Council or the People’s Court to settle the disputes.

Matter on time limit is an important matter that the parties should pay attention. The time limit to request a labor mediator to settle an individual labor dispute is 06 months from the date on which a party discovers the act of infringement of their lawful rights and interests.

For the form of dispute settlement through the Labor Arbitration Council, the time limit is 09 months from the date on which a party discovers the act of infringement of their lawful rights and interests. In case of requesting the Court to settle the labour dispute, the time limit is 01 year from the day on which a party discovers the act of infringement of their lawful rights and interests.

What labour dispute lawyers in Vietnam could help?

Many of the labour disputes could be resolved effectively at court hence engaging a labour dispute lawyers in Vietnam to file a lawsuit will help parties involved.

Please note, upon the expiration of the above-mentioned time limitation, the disputing parties will not have the right to request the competent authorities to resolve the dispute. In case the requester is able to prove that the aforementioned time limits cannot be complied with due to a force majeure event or unfortunate event, the duration of such event shall not be included in the time limit for requesting settlement of individual labour dispute.

ANT Lawyers, a law firm in Vietnam, always follow up the labour matters to update clients on regular basis.

Readmore:https://antlawyers.vn/library/how-to-resolve-disputes-in-labour-in-vietnam.html

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When Labour Dispute over Bonus Issue Arise and How to Resolve?

    

Employment bonus promise could help drive the performance for the business but sometimes disputes arise because there is discrepancy in translating how performance is met in the eye of employer and employee.

According to the provisions the Labor Code, the bonus, also known as the “other supplement”, is one of the main contents of the Labor Contract. Specifically, bonus is understood as a sum of money paid by an employer to the employees on the basis of annual business results and the level of work performance of employees. When the dispute arises, the employer or the employee could consult with labour dispute lawyers in Vietnam to advise and handle the matter effectively.

Bonus regulations of each company must be decided and publicly announced by the employer at the workplace after consultation with the representative organization of the grassroots-level employees’ collective. However, there are companies that do not specify bonus regulations or companies with unclear bonus regulations referring to such generally as “based on capability”, or “based on work results” without referring to specific key performance indicator (KPI). Such regulations will easily cause labor disputes that each party would need to seek consultancy from labour dispute lawyers in Vietnam. In most of the case, the employee would face disadvantage because the employer will be the one whom make the final decision on whether or not the capability or work results are satisfied.

A labor dispute means a dispute over rights, obligations and interests among the parties during the establishment, execution or termination of labor relation; a dispute between the representative organizations of employees; a dispute over a relationship that is directly relevant to the labor relation. Labor disputes over bonuses can be individual labor disputes or collective labor disputes. The competence authority to settle labor disputes belongs to the Labor Mediator, the Labor Arbitration Council, and the People’s Court. Normally, individual labor disputes or collective labor disputes must go through the mediation procedure of the labor mediator before referring to the court to settle, unless otherwise provided for by law.

For individual disputes, in case the conciliation is unsuccessful or either party fails to implement the agreements in the minutes of successful conciliation or the settlement time limit expires but if the labour conciliator fails to conduct conciliation, each disputing party has the right to request a court or arbitration council for settlement.

For collective disputes over bonuses, in case the conciliation is unsuccessful or one of the two parties fails to implement the agreements in the minutes of successful conciliation, the parties have the right to request the President of the district-level People’s Committee to resolve the dispute. If the parties disagree with the decision of the President of the People’s Committee of the district or beyond the time limit but the President of the People’s Committee of the district does not settle, the parties have the right to request the Court to settle. In such situation, a litigation lawyer would be engaged to assist for productive result.

How labour dispute lawyers in Vietnam could help?

Labour dispute lawyers in Vietnam could help from the early stage to draft and review labour contract, labour regulations to be submitted and registered with authority. Once there are labour dispute potentially arisen, the labor dispute lawyers could assist with advice, negotiation for settlement. The last resort would be needing the labor dispute lawyers to assist in filing litigation petition at court for resolution.

ANT Lawyers, a law firm in Vietnam, always follow up the labour matters to update clients on regular basis.

Readmore:https://antlawyers.vn/library/when-labour-dispute-over-bonus-issue-arise-and-how-to-resolve.html

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How to Terminate the Employment Contracts Due to Economic Reasons?

       

Termination of a labor contract is an event that terminates the employment relationship between the employee and the employer. In particular, there are many cases of termination of labor contracts such as the labor contract expires, the work stated in the labor contract has been completed, both parties agree to terminate the labor contract, the employer lays off the employee due to structural or technological changes or because of economic reasons, merger, consolidation or division of the enterprise or cooperative,…

In case more than one employee face the risk of unemployment for economic reasons, the employer shall propose and implement a labor utilization plan in accordance with labour code. Specifically, the labor utilization plan must contain the following main contents: list and number of employees who continue to be employed, employees sent for re-training to continue using; list and number of retired employees; list and number of employees transferred to work part-time; employees must terminate labor contracts and measures and financial sources to ensure the implementation of the plan.

In case the employer cannot employ and have to dismiss employees, the employer shall pay job-loss allowances to the employees. Accordingly, the employer shall pay a job-loss allowance to an employee who loses his/her job and has worked regularly for the employer for 12 months or longer. The job-loss allowance is equal to 1 month’s wage for each working year, but must not be lower than 2 months’ wage.

The working period used for the calculation of job-loss allowance is the total time during which the employee actually works for the employer minus the time during which the employee benefits from unemployment insurance in accordance with the Law of Social Insurance and the working period for which the employer has paid a severance allowance to the employee. The wage used for the calculation of job-loss allowance is the average wage in accordance with the labor contract during 6 months preceding the time the employee loses his/her job.

The dismissal of more than one employee in accordance with this regulation may be implemented only after discussion with the representative organization of the grassroots-level employees’ collective and notification 30 days in advance to the provincial-level state management agency of labor.

It is important for the employer to consult with dispute lawyers specializing in labour matters for the avoidance of potential dispute with the employee, and cause negative social impact when deciding to terminate contract due to economic reasons.

Readmore:https://antlawyers.vn/library/how-to-terminate-the-employment-contracts-due-to-economic-reasons.html

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How Probation is Regulated in Vietnam Labour Code?

   

Probation is an agreement between an employee and an employer on a probationary job in a certain period of time in accordance with the provisions of law. Before entering into a labor contract, the employer and the employee should go through a probationary period to determine the long-term cooperation and attachment between the parties. The probation should comply with the provisions of the Labor Code and relevant guiding documents. The Labor Code 2019 comes into force as of January 1st, 2020, a number of new regulations accordingly are issued in connection to the probation, which each company should review the matter with its labour dispute lawyers in Vietnam for compliance.

Regarding the circumstances which are permitted to enter into a probationary contract, this contract is not applicable to the labor term which is below 01 month. The Labor Code 2012 does not require that the probationary provision must be stipulated in the labor contract. Accordingly, an employer and an employee may negotiate on the probation, the rights and responsibilities of the parties during the probation period. The parties may conclude a probation contract if there is an agreement on the probation. If the probation work meets the requirements, the employer shall conclude an employment contract with the employee. From these provisions, it can be understood that the employee and the employer should make a separate probationary contract. The labor contract should be signed when the probation is completed and the employee meets the recruitment requirements of the employer. According to the latest provisions in the Labor Code 2019, the employer and the employee may agree on the probation stated in the labor contract or a separate probationary contract. If the probationary provision is stipulated in the labor contract, the employer shall continue performing the existing labor contract at the end of the probationary period once the employee satisfies the requirements. Otherwise, a new labor contract shall be entered into.

The Labor Code determined the restriction of the probation period based on the nature and complexity of the job. The probationary period previously was limited to no more than 60 days for jobs requiring a college or higher professional qualification. Currently, the probationary period is permitted to extend up to 180 days for the executives. The executives play an important role in business and operation of the enterprises, including owner of a sole proprietorship, a partner of a partnership company, chairperson or member of the Board of Member, President of a company, President or member of the Board of Directors, Director/General Director, or holder of another managerial position prescribed in the company’s charter (applicable to the enterprise with no state capital)

Another amendment to the cancellation of the probationary contract, the Labor Code 2019 removed the limitation of the right to cancel. Accordingly, during the probationary period, each party has the right to cancel the probationary contract or labor contract entered into without prior notice and compensation. On the contrary, the employee and the employer may cancel the probation if the probationary job does not meet the requirements that the parties have agreed upon under the Labor Code 2012

Probationary periods are primarily designed to test out whether both employer and employee to match each other at the start of an employment relationship. The enterprises as employers need to have a clear understanding of the principles of entering into a labor contract as well as a probationary contract to avoid potential dispute in Vietnam.

Readmore:https://antlawyers.vn/library/how-probation-is-regulated-in-vietnam-labour-code.html

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Penalties on Working Without Work Permit in Vietnam

       

Vietnam has become an attractive destination for foreigner investors due to the impressive development of socio – economic in recent years. This is such a good opportunity for Vietnamese enterprises to get cooperation in business with foreign partners.

To take advantage of the opportunities to be the pioneer and market share, many of them have demand in employees with good skills and qualifications. To meet these requirements, more and more companies hire foreign workers for specific positions which might lack of human resources within Vietnam territory.

According to Labor Code 2019, the employer wishing to recruit the foreign workers has to explain their labor demand to the People’s Committee of provinces and obtain written approval from this agency. Pursuant to this written approval, the employer shall submit the application for the work permit to the Department of Labor, War Invalids and Social Affairs of the province where the planned working place of such foreign workers is located.

A foreign employee means a person who has a foreign nationality and:

Is at last 18 years of age and has full legal capacity;

Has qualifications, occupational skills, practical experience and adequate health as prescribed by the Minister of Health;

Is not serving a sentence; does not have an unspent conviction; is not undergoing criminal prosecution under his/her home country’s law or Vietnam’s law;

Possessing a work permit granted by a competent Vietnamese state agency, except the cases specified in Labor Code.

Therefore, based on regulations of the Labor Code of Vietnam, except for the foreign employees exempted from work permit i.e. investor of company established in Vietnam, all of cases the foreign employees wishing to work in Vietnam shall be subject to work permit application. A foreign employee shall produce his/her work permit in Vietnam when carrying out immigration procedures or upon request of a competent state agency.

In case foreign employees who do not belong to work permit exemption being found working in Vietnam without work permit, that person shall be considered violation of the law of Vietnam. In addition, the employer that uses the violated employee without work permit shall be punished accordingly.

According to Decree No. 28/2020/ND-CP dated March 1, 2020 on administrative penalties for violations arising from labor, social insurance and sending Vietnamese workers abroad under contracts.

i) Foreign employee that working without work permits, except for the cases in which the work permit is exempt shall be expelled.

ii) Employers who employ foreign workers in Vietnam without work permits or written confirmations of their exemption from work permit requirements, or employs foreign workers holding expired work permits or written confirmations of exemption from work permit requirements shall be implied:

+ A fine from VND 30,000,000 to VND 45,000,000 if the violation involves 01 – 10 workers;

+ A fine From VND 45,000,000 to VND 60,000,000 if the violation involves 11 – 20 workers;

+ A fine From VND 60,000,000 to VND 75,000,000 if the violation involves 21 or more workers.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Attorneys in Hanoi, Attorneys in Ho Chi Minh and Attorneys in Danang.

Nguồn:https://antlawyers.vn/library/penalties-on-working-without-work-permit-in-vietnam.html

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How Mediation and Labor Arbitration Councils Work in Settlement of Labor Disputes?

       

During and after the Covid-19 pandemic, the financial health of enterprises have been negatively impacted leading to management’s decision to reduce cost through termination of labour contract with employee. The illegal termination of labour contract could lead to disputes between employer and employee which sometime would cost the employer more than it gains. It is important for the employer to engage with labour lawyers to consult before taking the decision to consider factors that would involve. After disputes arise, mediator or labour arbitration councils could be used for resolving disputes.

Individual labor disputes shall be settled through mediation by labor mediators before being brought to the Labor arbitration council or the Court, except for the following labor disputes which mediation is not mandatory: disputes over disciplining under dismissal or unilateral termination of employment contracts; disputes over damages and allowances upon termination of employment contracts; disputes between a domestic worker and his/her employer; disputes over social insurance in accordance with social insurance laws, disputes over health insurance in accordance with health insurance laws, disputes over unemployment insurance in accordance with employment laws; disputes over insurance for occupational accidents and occupational disease in accordance with occupational safety and hygiene laws; disputes over damages between an employee and enterprises, organization that dispatches the employee to work overseas under a contract; disputes between the outsourcing employee and the employer using outsourcing employee.

The mediator shall complete the mediation process within 05 working days from the receipt of the request from the requesting parties or the authority. Both disputing parties must be present at the mediation meeting. The disputing parties may authorize another person to attend the mediation meeting.

In case the two parties reach an agreement, the labor mediator shall make a written record of successful mediation which bears the signatures of the disputing parties and the labor mediator. In case the two parties do not reach an agreement, the labor mediator shall recommend a mediation option for the disputing parties to consider. Where the two parties do not agree with the recommended mediation option or where one of the disputing parties is absent for the second time without a valid reason after having been legitimately summoned, the labor mediator shall make a record of unsuccessful mediation which bears the signatures of the present disputing parties and the labor mediator.

The disputing parties shall be entitled to request the settlement from Labor arbitration councils in the following cases: a disputing party fails to perform the agreements specified in the record of successful mediation; mediation is not mandatory; the labor mediator fails to initiate the mediation by the deadline; the mediation is unsuccessful.

After the Labor arbitration council has been requested to settle a dispute, the parties must not simultaneously request the Court to settle the same dispute. If within 07 working days from the receipt of the request, an arbitral tribunal is not established; or within 30 working days from the establishment of the arbitral tribunal, it fails to issue a decision on the settlement of the labor dispute, parties shall be entitled to request the settlement from the Court. In case a disputing party fails to comply with the decision of the arbitral tribunal, the parties are entitled to bring the case to Court.

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How to Send Vietnamese Workers Working Abroad Under Contracts?

      

Decree No. 38/2020/ND-CP detailing the implementation of a number of articles of the law on Vietnamese workers working abroad under contracts has been signed by the Government on April 3, 2020 taking effect from May 20, 2020.

This Decree prescribes the areas and jobs workers must not go to work abroad; licenses, conditions and procedures for the grant or replacement of licenses for provision of services to send workers abroad; deposits of service-providing enterprises sending laborers to work abroad; deposits, management and use of deposits of enterprises performing the intern labor contract. Specifically:

Up to seven jobs are not allowed to for Vietnamese workers to work abroad including: massaging in the restaurants, hotels or entertainment centers; the work must be in constant contact with explosives, toxic substances in the metallurgy of non-ferrous metals (copper, lead, mercury, silver and zinc), regular contact with manganese, mercury dioxide; the work must be in contact with open radioactive sources, exploiting radioactive ores of all kinds; the production and packaging must be in constant contact with the chemicals of nitric acid, sodium sulfate, carbon disulfide, pesticides, herbicides, rat poison, antiseptic, and anti-termite with strong toxicity; hunting for wild animals, crocodiles and sharks; regular work in places where there is lack of air, high pressure (underground, in the ocean); shrouding, burial corpses, cremating corpses, exhuming graves.

In addition, it is prohibited to send workers to war zones or areas at risk of war, areas where radiation is being contaminated, areas contaminated with poison or areas with particularly dangerous epidemics.

For service-providing enterprises sending laborers to work overseas, to set up company, and comply with the law, they must meet the following conditions among others: the legal capital is not lower than VND 5,000,000,000 (five billion Vietnam dong); having owners, all members and shareholders being domestic investors under the provisions of the Law on Investment 2014; having an operation plan to send workers to work abroad; having a specialized apparatus and material foundations to organize the training of necessary knowledge for workers before going to work abroad and activities of sending laborers to work abroad; deposit VND 1,000,000,000 (one billion Vietnam dong) at commercial banks licensed to operate in Vietnam.

The enterprise sending workers to work abroad upon the form of practice for skills improvement makes deposit to account at commercial bank. The level of deposit of an enterprise sending workers to work abroad upon the form of practice for skills improvement is equal to 10% of the ordinary flight ticket of one class at the time the enterprise deposits from the country where the employee works. The number of workers going to work abroad in Vietnam under the Contract of accepting internships has been registered.

In addition, this Decree also stipulates the conditions for activities of sending laborers to work in the territory of Taiwan, to practice skills in Japan and to work as domestic servants in the host country of Middle East region.

The interested individuals and organizations should pay attention to implement details of the regulation or seek lawyers in the labour management areas for consultation.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Attorneys in Hanoi, Attorneys in Ho Chi Minh and Attorneys in Danang.

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How to Resolve Disputes in Employment in Vietnam?

       

A labor dispute is a dispute over rights, obligations and interests arising between parties in employment relationship. Labor disputes include individual labor disputes between employees and employers, and collective labor disputes between labor collectives and employers. When a labor dispute occurs, the competent agency, organization or individual will settle it on the basis of the measures and principles of labor dispute settlement prescribed in Chapter XIV of the Labor Code 2012

Measures for resolving labor disputes include: negotiation, grassroots conciliation, settlement of individuals and organizations competent to settle labor disputes.

For individual labor dispute resolution, labor conciliator, People’s Court is an individual or organization competent to resolve disputes. Labor conciliator; Chairman of the district People’s Committee; The People’s Court is competent to resolve collective labor disputes over labor rights and conciliators; The Labor Arbitration Council is competent to settle collective labor disputes about benefits.

Negotiation is a method of resolving a dispute in which the parties to a dispute deal directly with each other in order to reach an agreement on the settlement of the dispute. In fact, this is the most widely used solution. During the negotiation process, the parties will discuss issues related to the dispute, and propose solutions to resolve that dispute. The decision is made on the basis of agreement between the parties themselves and is not the result of any external pressure.

Unlike negotiation, conciliation is a method of resolving disputes involving third parties but not third parties make decisions but only support and guide the parties to negotiate. Under the provisions of Clause 1, Article 201 of the Labor Code 2012, individual labor disputes must go through the conciliation procedure of a labor conciliator before requesting a court to settle them, except for labor disputes on disciplinary measures in the form of dismissal or disputes over the unilateral termination of the labor contract; compensation for damages, benefits when terminating a labor contract; between domestic servants and employers; on social insurance in accordance with the law on social insurance, on health insurance in accordance with the law on health insurance; on compensation for damages between laborers and enterprises and non-business units that send laborers to work abroad under contracts. If the two parties reach an agreement, the labor conciliator shall make a record of successful conciliation. On the contrary, the two parties cannot reach an agreement, and the labor conciliator issues a conciliation plan for the two parties to consider and if the two parties accept the conciliation plan, the labor conciliator shall make a record of successful conciliation. In case the two parties do not accept the conciliation plan or a disputing party has been duly summoned for the second time but still absent without plausible reasons, the labor conciliator shall make a record of unsuccessful conciliation.

Dispute resolution by the Chairman of the district People’s Committee is the method to be applied when there is a request for resolving a collective labor dispute on rights. Chairpersons of district-level People’s Committees shall base themselves on labor laws, collective labor agreements, registered labor rules and legal regulations and agreements to consider and settle labor disputes.

The Labor Arbitration Council is the competent authority to settle collective labor disputes about benefits. At the meeting of the Labor Arbitration Council, there must be representatives of both parties to the dispute. The Labor Arbitration Council has the responsibility to assist the parties in self-negotiation. In case the two parties reach an agreement or accept the mediation plan, the Labor Arbitration Council shall make a record of successful mediation and issue a decision recognizing the agreement of the parties. In case the two parties fail to reach an agreement or one of the disputing parties has been duly summoned for the second time but still absent without plausible reasons, the Labor Arbitration Council shall make a record of unsuccessful mediation and after within 03 days, the labor collective has the right to carry out the procedures to go on strike.

Trial is a mode of resolving individual labor disputes and collective labor disputes over rights, in which the Court will issue a judgment or decision to resolve the case. The settlement of labor disputes in court is generally the final settlement activity after the dispute has been settled at other stages with no results. The settlement of labor disputes at the Court is done by a judicial body with special state power, proceeding according to the strict procedures and procedures prescribed in the Civil Procedure Code 2015. The greatest advantage of this method of dispute resolution is that the court’s decisions on labor disputes are guaranteed to be enforced by state coercive measures.

Employees as well as the labor collective and employers should pay attention to selecting the most appropriate and optimal resolution solution when labor disputes occur. It is also suggested to consult with labour lawyers of law firm speacializing in employment matters for efficiency.

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Can Employer Terminate the Labor Contract with Employee Due To Covid 19 Outbreak?

        

Due to intricate occurrence of Covid 19, many enterprises are forced themselves to reduce the number of employees for maintaining the operation financially. Specifically, the employer has to make difficult decision to terminate the labor contract with the employee. The termination of the labour contract has to be considered carefully because of potential legal risks brought up which dispute lawyers in labour should be consulted before execution. Within this post, we are not trying to resolve all cases but only aiming to brief some matters of concern for preparation.

The employer could refer to the regulation in the Labor Code which allows “an employer may unilaterally terminate a labor contract if as a result of natural disaster, fire or another force majeure event as prescribed by law, the employer, though having applied every remedial measure, has to scale down production and cut jobs. Force majeure in this case is understood as (i) Enemy-inflicates destruction, epidemics (ii) Relocation or narrowing of the production and business sites, at the request of competent State agencies.

In particular, after applying corrective measures, over the time, considering enterprise’s financial potential is insufficient as well as the business production is reduced significantly due to epidemic, the employer may consider unilaterally terminate labor contract with employee. However, employer still have to abide by or ensure the rights to employee regarding the interests which employee is entitle to receive when being unilaterally terminated labor contract includes salary, severance allowance, social insurance, payment for untaken leave days, the tax payment which employer must paid for employee. Besides, employer also is subject to pay a compensation if consented by both sides are employer and employee.

Firstly, employer is obliged to pay salary to employee timely and fully as in the agreed labor contract by both parties;

Secondly, employer is responsible for paying the severance allowance to employee whom has worked regularly for full 12 months or longer at the rate of half of a month’s wage for each working year.

Thirdly, social insurance, employer is responsible for the fulfill payment of social insurance and perform the closing insurance book for employee after terminate the labor contract according to the law of social insurance.

Fourthly, if the income of employee subject to personal income tax, employer must extract from the income of employee to submit the tax to tax agency according to law on personal income tax.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have law firm in Hanoi, law firm in Ho Chi Minh City and law firm in Da Nang.

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Issuance of Work Permit for Foreigner Online

      

From October 2nd 2017, the issuance of work permits to foreign employees working in Vietnam via Internet will be applied in accordance with the guidance of Circular No. 23/2017/TT-BLDTBXH issued by the Ministry of Labor – Invalids and Social Affairs on August 15th 2017.

Accordingly, the issuance and re-issuance of work permits for foreigners will be made via the electronic portal: http://dvc.vieclamvietnam.gov.vn. Employers must register their account to log into the Portal.

Before at least 7 working days, from the date the foreign worker intends to commence work, the employer must declare the information in the declaration form and submit the application for work permit via the electronic portal. The dossier includes: The declaration form and enclosed papers in accordance with the provisions of law on e-transactions and management of foreign laborers working in Vietnam; if the attached documents are in the form of paper, the employer must convert to electronic versions like pdf, doc, docx or jpg.

Within 5 working days from the date of receiving the dossier, the licensing agency shall reply via email to the employer. If the dossier is invalid, the licensing agency must clearly state the reasons.

Upon receipt of the result of notification of valid dossiers, the employers shall submit directly or by post the originals of the work permit application dossiers to the licensing agency for inspection, comparison and archive regulations. Within a maximum of 08 working hours from the date of receipt of the original application, the licensing agency shall return the result to the employer.

This Circular comes into effect from October 2nd 2017.

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Penalties on Working Without Work Permit in Vietnam

     

Vietnam has become an attractive destination for foreigner investors due to the impressive development of socio – economic in recent years. This is such a good opportunity for Vietnamese enterprises to get cooperation in business with foreign partners.

To take advantage of the opportunities to be the pioneer and market share, many of them have demand in employees with good skills and qualifications. To meet these requirements, more and more companies hire foreign workers for specific positions which might lack of human resources within Vietnam territory.

According to Labor Code 2019, the employer wishing to recruit the foreign workers has to explain their labor demand to the People’s Committee of provinces and obtain written approval from this agency. Pursuant to this written approval, the employer shall submit the application for the work permit to the Department of Labor, War Invalids and Social Affairs of the province where the planned working place of such foreign workers is located.

A foreign employee means a person who has a foreign nationality and:

Is at last 18 years of age and has full legal capacity;

Has qualifications, occupational skills, practical experience and adequate health as prescribed by the Minister of Health;

Is not serving a sentence; does not have an unspent conviction; is not undergoing criminal prosecution under his/her home country’s law or Vietnam’s law;

Possessing a work permit granted by a competent Vietnamese state agency, except the cases specified in Labor Code.

Therefore, based on regulations of the Labor Code of Vietnam, except for the foreign employees exempted from work permit i.e. investor of company established in Vietnam, all of cases the foreign employees wishing to work in Vietnam shall be subject to work permit application. A foreign employee shall produce his/her work permit in Vietnam when carrying out immigration procedures or upon request of a competent state agency.

In case foreign employees who do not belong to work permit exemption being found working in Vietnam without work permit, that person shall be considered violation of the law of Vietnam. In addition, the employer that uses the violated employee without work permit shall be punished accordingly.

According to Decree No. 28/2020/ND-CP dated March 1, 2020 on administrative penalties for violations arising from labor, social insurance and sending Vietnamese workers abroad under contracts.

i) Foreign employee that working without work permits, except for the cases in which the work permit is exempt shall be expelled.

ii) Employers who employ foreign workers in Vietnam without work permits or written confirmations of their exemption from work permit requirements, or employs foreign workers holding expired work permits or written confirmations of exemption from work permit requirements shall be implied:

+ A fine from VND 30,000,000 to VND 45,000,000 if the violation involves 01 – 10 workers;

+ A fine From VND 45,000,000 to VND 60,000,000 if the violation involves 11 – 20 workers;

+ A fine From VND 60,000,000 to VND 75,000,000 if the violation involves 21 or more workers.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Attorneys in Hanoi, Attorneys in Ho Chi Minh and Attorneys in Danang.

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Labour Matters and Labour Legal Compliance

    

The labour management is one of the most important matters in the operation of enterprises. For the employee, he or she has to fulfill the job requirements as per labour contract, follow internal labour regulations, and work under the supervision of the employer. For employer, complying with regulations include paying salary, ensuring benefits, and other mandatory labour compliance as per labour laws and collective labour agreements signed.

The following recaps the labour matters and labour legal compliance according to Vietnam labour laws:

To make reports on labour use according to the provisions of Article 6, Circular No. 23/2014/TT-BLDTBXH dated August 29th 2014 (Circular 23).

To make periodical reports on the use and change of labour according to the provisions of Point d, Clause 2, Article 6 of the Labour Code 2012 and Clause 2, Article 8 of Decree No. 03/2014/ND-CP and Clause 2, Article 6 of the Circular 23.

To make and use labour management books as guided in Article 7 of Circular 23.

Build and send wage scales, payroll, technical standards, titles, professional standards and labour norms in accordance with Article 93 of Labour Code 2012 and Chapter III of Decree No. 49/2013/ND-CP dated May 14th 2013

To participate and pay social insurance, health insurance, unemployment insurance for employees in accordance with current law.

To construct and register the labour regulations of the unit in accordance with Article 119, Clause 1, Clause 2, Article 120 of the Labour Code 2012, Chapter V of Decree No. 05/2015/ND-CP dated January 12th (Decree 05) and Chapter III of Circular 47/2015/TT-BLDTBXH dated November 15th 2015.

To develop and promulgate the Grassroots Democracy Regulation; Statute of periodical dialogue in the workplace as stipulated in Decree 60/2013/ND-CP dated June 19th 2013

To negotiate, sign and send the Collective Labour Agreement to the provincial labour authority in accordance with Chapter V of the Labour Code 2012, Chapter III of Decree 05 and Article 3 of Circular 29/2015/TT-BLDTBXH dated July 31st 2015 (this is optional).

To make explanatory reports on the demand for use, the procedures for the grant and re-grant of work permits and the implementation of reporting regimes according to the provisions of Decree No. 11/2016/ND-CP dated March 2nd 2016 and Circular 40/2016/TT-BLDTBXH dated October 25th 2016 (if employing foreign workers).

To formulate and promulgate the Regulation on evaluation of the performance of tasks as provided in Clause 1, Article 12 of Decree 05 (This content is part of the company’s working regulations and we must have this content to be able to unilaterally terminate the labour contract with the employee under Clause 1, Article 38 of the Labour Code 2012).

To carry out the procedures for the establishment of a grassroots trade union organization in accordance with the provisions of Paragraphs 1 and 3 of Article 189 of the Labour Code 2012 and Article 5 of the Trade Union Law 2012 (This is not mandatory but depends on the quantity of workers want to join the union of the company).

To report on occupational accidents, technical incidents causing serious unsafety and occupational hygiene at the unit as provided in Clause 1, Article 36 of the Law on Occupational Safety and Hygiene 2015 (if any); Periodically report on occupational accidents according to the provisions of Clause 1, Article 24 of Decree No. 39/2016/ND-CP dated May 15th 2016 (Decree 39).

To report annually on occupational safety and health as provided in Article 10 of Circular 07/2016/TT-BLDTBXH dated May 15th 2016

To declare the fatal occupational accident or serious injury of 2 or more labourers as stipulated in Clause 1, Article 34 of the Law on Occupational Safety and Hygiene 2015; Article 10 of Decree 39 (if any).

To monitor, manage and declare the use of machines, equipments and materials with strict requirements on labour safety in accordance with Articles 30 and 31 of the Law on Occupational Safety and Hygiene, Article 16 of Decree 44/2016/ND-CP dated May 15th 2016 (Decree 44) (if any); Circular 53/2016/TT-BLDTBXH dated December 28th 2016

To arrange full-time officials working in occupational safety and health in accordance with Article 36 of Decree 39.

To arrange staff to work in the health sector in accordance with Article 37 of Decree 39.

To provide material allowances to labourers working under dangerous and harmful conditions (if any) according to the provisions of Article 24 of the Law on Occupational Safety and Hygiene 2015; Circular 25/2013/TT-BLDTBXH dated October 18th 2013

To review, classify and organize occupational safety and health training for labourers as stipulated in Article 14 of the Law on Occupational Safety and Health 2015; Article 17 of Decree 44.

To organize health examination and treatment of occupational diseases for labourers according to the provisions of Article 21 of the Law on Occupational Safety and Hygiene 2015.

To compile the workers’ health records and labour sanitation dossiers according to the provisions of Circular No. 19/2016/TT-BYT dated June 30th 2016

To allocate and monitor personal protective devices for labourers according to the provisions of Article 23 of the Law on Occupational Safety and Hygiene 2015; Circular 04/2014/TT-BLDTBXH dated Feruary 12th 2014

To develop and implement an annual plan for occupational safety and health; Occupational safety and health regulations of the enterprise for each working area; Safe working methods for each type of work; Control of risk and harmful factors; Risk assessment on occupational safety and health; The plan for handling technical incidents causing serious unsafety and emergency rescue as provided in Articles 15, 18, 76, 77 and 78 of the Law on Occupational Safety and Hygiene 2015.

To develop a plan for implementation of the month of action on occupational safety and health in accordance with Circular 02/2017/TT-BLDTBXH dated February 20th, 2017

It is important the company to retain law firm in Vietnam with labour expertise to avoid non compliance and disputes to be arisen.

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What to Note When Signing Labour Contract with Foreign Workers?

    

With the policy of opening the economy in Vietnam, not only Vietnam attracts investors to set up company, but also the demand for foreign workers in enterprises grows and diversifies. However, in order for Vietnam companies to be able to use foreign workers, they must sign a labor contract.

After meeting the conditions specified in the Labor Code on meeting the requirements for recruitment and working in Vietnam, the foreign worker working in Vietnam shall sign a labor contract before the expected date intend to work for the employer. In this contract, the employer and the foreign worker will agree on all issues arising in the process of working as well as using labor together.

Firstly, on the working position in the labor contract, it must show the correct position and position for which the employer has determined the needs with the competent authority and in accordance with the working position shown in the document and the work permits which have been granted to foreign workers.

Regarding the working time, it will normally be agreed upon by the two parties but must not exceed the number of working days (hours) as prescribed by Vietnamese law. The number of overtime hours must be based on voluntary work and must ensure rest time, rest during working time and weekends for foreign workers.

According to the provisions of the Labor Code, in addition to Vietnamese public holidays and New Year’s holidays, foreign workers are allowed to take one more day off for the national traditional New Year and one national day of the country. This is a humane regulation, respecting the national culture of Vietnam. Therefore, the employer needs to learn about the National Day and the traditional Tet holiday of foreign workers so that the employees can take leave in accordance with the provisions of the law.

Regarding the term of the labor contract, the term of the labor contract for foreigners is also governed by the duration of the work permit issued by the competent Vietnamese authority. Accordingly, the term of the labor contract for foreign workers working in Vietnam must not exceed the term of the work permit. Therefore, the employer should pay attention to conclude the contract term in accordance with regulations.

In addition, employers and foreign workers should be aware of the terms of disputes which could potentially arise. Because, contract terms are an important legal basis to resolve when a labor dispute arises, agreeing in advance on how to resolve a dispute when a dispute arises will create a clear legal foundation for easy settlement by both parties. Dispute lawyers are suggested to be consulted at an early stage to avoid dispute escalation.

At most, it is important that the employers and foreign workers need to pay attention and strictly comply with the provisions of the law so that the process of entering into and performing the contract is conducted smoothly and in compliance with the law in Vietnam.

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What Are Advantages Resolving Disputes by Commercial Arbitration?

 Commercial arbitration is a method of settling disputes selected by the parties and conducted in accordance with law. Compared with other method of dispute resolution such as mediation, negotiation, court litigation, dispute resolution by commercial arbitration also has advantages and disadvantages.

In accordance with Vietnamese law and international law, the method of dispute resolution by commercial arbitration also stems from the agreement of the parties on a voluntary basis. However, the difference between these methods is that the settlement of disputes through arbitration will be governed by the Commercial Arbitration Law. The parties are allowed to agree on appropriate arbitration selection, either before or after the dispute arises.

The practice of applying commercial arbitration law in resolving disputes presents some advantages:

Firstly, this is a method of resolving disputes on the principle of confidentiality if the parties do not agree otherwise. This is an advantage that all claimants respect because it limits the disclosure of business secrets, and keeps the credibility of the parties.

Secondly, the decision of the arbitrator is final, binding on the parties and the right to appeal in this case is invalid. The trial at Commercial Arbitration takes place only at one trial level, which the trial at the Court is at two levels. Therefore, it creates a premise for the following advantages.

Thirdly, the settlement of disputes arising through commercial arbitration shows flexibility while shortening the proceedings thereby contributing to saving time and effort of the parties.

Fourthly, the settlement of disputes by arbitration is not territorially limited so the parties may agree to choose any arbitrator to resolve their disputes.

However, the competing parties also need to pay attention that the choice of arbitration method also reveals some disadvantages such as: The enforcement of arbitral awards depends heavily on the willingness of the parties to the dispute. If the party who is serving the judgment does not voluntarily follow the arbitral awards and does not request to cancel the arbitral award after the expiration of the time limit for enforcing the arbitral award, the judgment-executing party may send a written request to the civil judgment enforcement agency for judgment execution.

In addition, one of the disputing parties may submit a request to the Court to cancel the arbitration award when encountering one of these following conditions: (i) There is no arbitration agreement or the arbitration agreement is invalid; (ii) The arbitration council’s composition or procedures of arbitral proceedings does not comply with the parties’ agreement or regulations; (iii) The dispute falls beyond the arbitration council’s jurisdiction: when an arbitral award contains the details falling beyond the arbitration council’s jurisdiction, such details shall be cancelled; (iv) The evidence provided by the parties on which the arbitration council bases to issue the award is counterfeit: an arbitrator receives money, assets or other material benefits from one disputing party, thus affecting the objectivity and impartiality of the award; (v) The award contravenes the fundamental principles of Vietnamese law.

Finally, when the parties choose to resolve their disputes by arbitration method, the costs are relatively higher than in the proceeding of court litigation.

At ANT Lawyers, our trial lawyers with accreditation in national and international arbitration practice could help providing legal advice in disputed matters, and guide the clients throughout the process. The lawyers could also advise the clients on various matters from choice of arbitrator, choice of arbitration rules, ad-hoc or institutional arbitration, place of arbitration, enforcement of arbitral award.

Employees as well as the labor collective and employers should pay attention to selecting the most appropriate and optimal resolution solution when labor disputes occur. It is also suggested to consult with labour lawyers of law firm speacializing in employment matters for efficiency.

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Conditions for Foreign Experts to Work in Vietnam

On December 30th, 2020, Decree 152/2020/ND-CP has been issued regulating on foreigners working in Vietnam and recruiting, managing Vietnamese employees working for foreign organizations and individuals in Vietnam. Decree 152 clearly defines the forms and conditions for foreign employees to be eligible to work in Vietnam, and provides conditions for exemption from work permits in Vietnam, recruitment of foreign employees, renew and re-issue work permits.

According to current regulations, foreign citizens come to work in Vietnam for the purposes of performing employment contracts; performing intra-company transfer program; performing contracts or agreements on business, trade, finance, banking, insurance, science and technology, culture, sports, education, vocational training and health; providing services under contracts; offering services; working for foreign non-governmental organizations or international organizations in Vietnam that have been granted with operating licenses in accordance with the Vietnam law; working as volunteers; taking charge of establishing the commercial presence; working as managers, executives, experts, technical workers; performing packages or projects in Vietnam; or accompanying members of foreign representative bodies in Vietnam who are authorized to work in Vietnam under an international treaty to which the Socialist Republic of Vietnam is a signatory as their relatives.

For the conditions for foreign employees to work in Vietnam, Decree 152 has some notable new points, which according to Clause 3, Article 3 of this Decree, an expert who wish to work in Vietnam requires a foreign worker who obtains at least a bachelor’s degree or equivalent and at least 03 years’ experience in his/her training field in corresponding with the job position/job assignment that he/she will be appointed in Vietnam or obtains at least 5 years’ experience and a practicing certificate in corresponding with the job position that he/she will be appointed in Vietnam. There are opinions that this regulation makes it difficult for many foreign experts to come to Vietnam to work because in fact there are many experienced people who do not have appropriate qualifications and certificates.

Foreign experts, managers, executives or foreign technicians working in Vietnam for up to 30 days and no more than 3 times a year may be exempted from work permits. Cases eligible for exemption from work permits (or a certificate of exemption from work permits) must be notified to the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs of the provinces and centrally-run cities regarding personal information of the foreign worker and the expected start /end date, at least three days prior to the first scheduled working date in Vietnam.

At least 30 days from the expected date of employment of the foreign employee, the employer (except contractors) is responsible for determining the demand to use foreign workers for each job position that the Vietnamese employee has not yet met requirements of the position and report to the Ministry of Labor, War Invalids and Social Affairs or the People’s Committee of the province where the foreign worker is expected to work. During the implementation process, if there is a change in the demand for foreign employees, the employer must also report at least 30 days in advance.

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