Recently, the authorities have discovered many cases of foreign workers working in wind power projects in some areas in Vietnam who have not been granted work permits or are confirmed not to be eligible for a work permit as prescribed by laws, affecting the project's construction process. Therefore, it is necessary to know the regulations on licensing for foreign workers to work in wind power projects following the law.
Legal Basic:
- Decree 152/2020/NĐ-CP on foreign workers working in Vietnam and recruitment and management of Vietnam workers working for foreign employers in Vietnam;
- Decree 28/2020/NĐ-CP administrative penalties for violations arising from labor, social insurance and sending Vietnam workers abroad under contracts.
1. Conditions for foreign workers to work in Vietnam
Article 151 of the Labor Code 2019 stipulates that foreign workers working in Vietnam are foreign nationals and must meet the following conditions:
• Being a full eighteen (18) years of age and having the full legal capacity for civil acts;
• Having professional qualifications, technical and other skills, work experience, and good health as stipulated in regulations of the Minister of Health;
• Not being a person currently serving a sentence or with a criminal conviction which has not yet been absolved/removed from the record, and not subject to prosecution for criminal liability following the law of the foreign country or the law of Vietnam;
• Having a work permit issued by the competent Vietnamese authority except in the cases prescribed in article 154 of Labor Code 2019.
The term of a labor contract of foreign workers working in Vietnam must not exceed the term of the work permit. On employment of foreign workers to work in Vietnam, the two parties may agree on entering into several definite term labor contracts.
Foreign workers working in Vietnam must comply with the law of Vietnam on labour and shall be protected by the law of Vietnam unless an international treaty of which Vietnam is a member contains some other provision.
According to the above regulations, having a work permit is one of the conditions for foreign workers to work in Vietnam. Therefore, foreign workers working in Vietnam must have a work permit exemption if you are not eligible for the work permit exemption specified in Article 154 of the Labor Code 2019 and Article 7 of Decree 152/2020/ND-CP. As follows:
• Work permit exemption cases for foreign employees in Vietnam:
(i) Is the owner or capital contributor of a limited liability company with a capital contribution value conformable with regulations of the Government;
(ii) Is the Chairperson or a member of the Board of Directors of a joint-stock company a capital contribution value conformable with regulations of the Government;
(iii) Is the manager of a representative office, project or the person in charge of the operation of an international organization or a foreign non-governmental organization in Vietnam;
(iv) Enters Vietnam for a period of fewer than 03 months to do marketing of a service;
(v) Enters Vietnam for a period of fewer than 03 months to resolve a complicated technical or technological issue which (i) affects or threatens to affect the business operation and (ii) cannot be resolved by Vietnamese experts or any other foreign experts currently in Vietnam;
(vi) Is a foreign lawyer who has been granted a lawyer’s practicing certificate in Vietnam following the Law on Lawyers;
(vii) In one of the cases specified in an international treaty to which the Socialist Republic of Vietnam is a signatory;
(viii) Gets married to a Vietnamese citizen and wishes to reside in Vietnam;
(ix) Other circumstances specified by the Government.
Specifically, without regard to the cases in clauses (iii), (iv), (v), (vi), (vii) and (viii) above, a foreign worker is exempt from a work permit if:
(i) He/she is the owner or capital contributor of a limited liability company with a capital contribution value of at least 3 billion dongs;
(ii) He/she is the Chairperson or a member of the Board of Directors of a joint-stock company with a capital contribution value of at least 3 billion dongs;
(iii) He/she is an intra-company transferee within 11 sectors in the schedule of commitments in services between Vietnam and WTO, including business services, communication services, construction services, distribution services, educational services, environmental services, financial services, health services, tourism services, recreational and cultural services, and transport services;
(iv) He/she enters Vietnam to provide professional, and engineering consulting services or perform other tasks intended for research, formulation, appraisal, supervision, evaluation, management, and execution of programs and projects using official development assistance (ODA) following regulations or agreement in international treaties on ODA signed between the competent authorities of Vietnam and foreign countries;
(v) He/she is granted a communication and journalism practicing certificate in Vietnam by the Ministry of Foreign Affairs as per the law;
(vi) A foreign competent authority or organization sends him/her to Vietnam to teach and study at an international school under the management of a foreign diplomatic mission or the United Nations, or of a facility established under an agreement to which Vietnam is a signatory;
(vii) He/she is a volunteer;
(viii) He/she enters Vietnam to hold the position of a manager, executive, expert, or technical worker for a period of work of fewer than 30 days and up to 3 times a year;
(ix) He/she enters Vietnam to implement an international agreement to which central or provincial authority is a signatory as per the law;
(x) He/she is a student studying at a foreign school or training institution which has a probation agreement with an agency, organization, or enterprise in Vietnam; or a probationer or apprentice on a Vietnam sea-going ship;
(xi) He/she is a relative of a member of a foreign representative body in Vietnam;
(xii) He/she obtains an official passport to work for a regulatory agency, political organization, or socio-political organization;
(xiii) He/she takes charge of establishing a commercial presence;
(xiv) He/she is certified by the Ministry of Education and Training as a foreign worker entering Vietnam for teaching and research purpose.
2. Procedures for granting permits for foreign workers to work in wind power projects in Vietnam
Step 1: Apply for approval of the need to use foreign workers
Article 4 of Decree 152/2020/ND-CP stipulates that enterprises and organizations must apply for approval of the need to use foreign workers when carrying out the procedures for applying for a permit as follows:
• At least 30 days before the date on which foreign workers are expected to be employed, the employer (except contractor) shall determine the demand for foreign workers for every job position for which Vietnamese workers are underqualified and send a corresponding report to the Ministry of Labor, War Invalids and Social Affairs or the People's Committee of province or central-affiliated city (hereinafter referred to as province) where the foreign workers are expected to work.
• During the process, in case of any change to the demand for foreign workers, the employer shall send a report to the Ministry of Labor, War Invalids and Social Affairs or the People's Committee of the province, using Form No. 02/PLI Appendix I hereto appended at least 30 days before the date on which the foreign worker is expected to be employed.
• The Ministry of Labor, War Invalids and Social Affairs or the People's Committee of the province shall issue a document specifying accepted job positions and non-accepted job positions, using Form No. 03/PLI Appendix I hereto appended within ten working days after receiving the foregoing report on demand for foreign workers or report on change thereof.
• The application includes:
- Form of the report explaining the demand for foreign workers (under Form No. 01/PLI, Appendix 01 of Decree No. 152/2020/ND-CP).
- Letter of introduction / Power of attorney for the applicant.
Step 2: Apply for a work permit for foreign workers in Vietnam
After applying for approval of the need to use foreign workers, the enterprise shall apply for a work permit for the foreigner. Detailed components of the application are specified in Article 9 of Decree No. 152/2020/ND-CP.
3. Sanctions for violations against regulations on foreign workers working in Vietnam
Article 31 of Decree 28/2020/ND-CP stipulates the level of sanction for acts of violating regulations on foreign workers working in Vietnam as follows:
• Fines ranging from VND 15,000,000 to VND 25,000,000 shall be imposed on any foreign worker in Vietnam that commits one of the following violations:
- Accepting job offers without holding work permits or without written confirmations of their exemption from work permit requirements as required by law;
- Using work permits or written confirmations of their exemption from work permit requirements has already become null and void.
• Fines shall be imposed on any employer that employs foreign workers to work 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 already null or void at one of the following rates:
- Fines ranging from VND 30,000,000 to VND 45,000,000 to be imposed if the violation involves 01 – 10 workers;
- Fines ranging from VND 45,000,000 to VND 60,000,000 to be imposed if the violation involves 11 – 20 workers;
- Fines ranging from VND 60,000,000 to VND 75,000,000 to be imposed if the violation involves 21 or more workers.
In addition to the above penalties, foreign workers work in Vietnam without a work permit or do not have a written confirmation that they are not eligible for a work permit, when violating the above levels, they may be sanctioned in the form of additional sanction, which is expulsion from Vietnam.
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