Nghị định 85/1998/NĐ-CP về việc tuyển chọn, sử dụng và quản lý người lao động Việt Nam làm việc cho tổ chức, cá nhân nước ngoài tại Việt Nam

DECREE

ON RECRUITMENT, USE AND MANAGEMENT OF VIETNAMESE LABOR WORKING FOR FOREIGN ORGANIZATIONS AND INDIVIDUALS IN VIETNAM

THE GOVERNMENT

Pursuant to the Law on Organization of the Government of September 30, 1992;Pursuant to the Labor Code of June 23, 1994;At the proposal of the Minister of Labor, War Invalids and Social Affairs,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Vietnamese laborers as defined in this Decree are Vietnamese citizens aged from 18 full years and upward, who are permanently residing in Vietnam, have a clear personal history and have full capacity for civil acts.

Article 2.- Foreign organizations in Vietnam as defined in this Decree are foreign agencies and organizations that are allowed by competent authorities of Vietnam to operate on Vietnamese territory. They include:

1. Foreign diplomatic representative offices and consulates, representative offices of international organizations in the system of the United Nations Organization, regional organizations and sub-regional organizations;

2. Representative offices of foreign news agencies, press, radio and television;

3. Representative offices and project offices of foreign non-governmental organizations;

4. Representative offices of foreign investment projects, branches of foreign companies and representative offices of foreign economic, commercial, financial, banking, insurance, scientific and technical, cultural, educational, medical and legal consultancy organizations.

Article 3.- Foreign individuals in Vietnam as defined in this Decree are persons bearing foreign nationality working at the agencies mentioned in Article 2 of this Decree or persons allowed by the competent authority of Vietnam to take up residence in Vietnam.

Article 4.- The Vietnamese Government encourages foreign organizations and individuals in Vietnam (hereafter called foreign organizations and foreign individuals in abbreviation) to use Vietnamese labor according to prescriptions of this Decree and the Labor Code of the Socialist Republic of Vietnam.

Chapter II

RECRUITMENT, USE AND MANAGEMENT OF VIETNAMESE LABOR WORKING FOR FOREIGN ORGANIZATIONS AND INDIVIDUALS IN VIETNAM

Article 5.- Vietnamese working people who meet all the conditions stipulated in Article 1 of this Decree are allowed to work for foreign organizations and individuals except the following persons:

1. Government officials and personnel in active service; officers, non-commissioned officers, members of the Vietnam People's Army and the Vietnam People's Police in active service;

2. Persons in the category mentioned in Item 1 of this Article who work in branches and jobs related to State secrets as provided for by law and who have retired or quit their jobs or have been demobilized for less than five years;

3. The wife or husband of a person whose job is related to State secrets;

4. Persons who have been disciplined for acts of disclosing State secrets or national security;

5. Persons who are examined for penal liabilities, persons who are serving court sentences or court criminal verdicts or whose sentence is not yet annulled.

Article 6.-

1. Vietnamese laborers who wish to work for foreign organizations or individuals under Items 1, 2 and 3 of Article 2 of this Decree shall have to send job applications to the labor supply organization of the Ministry for Foreign Affairs.

2. Vietnamese laborers who wish to work for foreign organizations and individuals mentioned in Item 4, Article 2 of this Decree shall have to send their job application dossier to the labor supply organization of the People's Committee of the province or city directly under the Central Government where the foreign organization or individual has their main office.

Article 7.- The dossier of the laborers shall include:

1. The job application (according to the form prescribed by the Ministry of Labor, War Invalids and Social Affairs);

2. The labor register. If the working people is not yet issued a labor register, he/she must have a letter of recommendation of the People's Committee of the commune, ward or township where he/she registers his/her civic status;

3. A resume certified by the public security office of the commune, ward or township where the working people register his/her civic status;

4. A valid health certificate of the medical office;

5. Four color portrait photos of ID size (4 x 6 cm);

6. Copies of diplomas and certificates of educa-tional, specification, professional and foreign language standard related to the job which the laborer applies for, certified by the competent authority.

Article 8.- The foreign organization or individual that needs to use Vietnamese labor shall have to send a written request to the labor supply organization prescribed in Article 6 of this Decree. In the request, the requester must specify the criteria, number and timelimit of the recruitment; the rights and obligations of the Vietnamese laborers and of the foreign organization and individual in the process of work and at the termination of the work.

Article 9.- The labor supply organization mentioned in Article 6 of this Decree shall have:

1. To receive the job application of the Vietnamese working people and the written request of labor supply of the foreign organization or individual;

2. To sign the labor supply contract with the foreign organization or individual;

3. To organize the recruitment, introduction and supply of Vietnamese working people to the foreign organization or individual according to the labor supply contract already signed;

4. To settle the administrative and personnel procedures with the Vietnamese people working for the foreign organization or individual by assignment of the competent State management authority;

5. To strictly carry out the prescriptions of the Labor Code, this Decree and other prescriptions of Vietnamese law;

6. Periodically every six months and every year to report to the competent labor agency on the recruitment, training and supply of Vietnamese labor for foreign organizations and individuals.

Article 10.- The supply of Vietnamese labor to foreign organizations and individuals shall be performed according to the labor supply contract between the labor supply organization and the foreign organization or individual. In case the labor supply organization cannot meet the request of the foreign organization or individual after termination of the time limit for the recruitment under the labor supply contract already signed, the foreign organization or individual can directly recruit Vietnamese labor and transfer the dossier to the labor supply organization stipulated in Article 6 of this Decree in order to fill the procedures according to the stipulations of this Decree.

Article 11.- The labor contract shall be signed directly between the Vietnamese laborers and the foreign organization or individual according to the form prescribed by the Ministry of Labor, War Invalids and Social Affairs. The Vietnamese working people shall sign labor contracts with foreign organizations or individuals only with the recommendation from the labor supply organization and shall not act contrarily to the labor supply contract prescribed in Article 10 of this Decree.

Article 12.- The labor supply organization is allowed to organize training and fostering to raise the standard of the Vietnamese working people in order to meet the request in labor of the foreign organization and individual.

Article 13.- Responsibility of the Vietnamese laborers working for a foreign organization or individual:

1. To fully perform their obligations toward the State as prescribed by Vietnamese law;

2. To carry out strictly the terms of the labor contract already signed with the foreign organization or individual;

3. To carry out strictly the prescriptions of the labor supply organization, which has recommended them, guided them and created conditions for them to come and work at the foreign organization or individual.

Article 14.- Responsibility of the foreign organizations or individuals using Vietnamese labor:

1. To carry out strictly the stipulations of the Labor Code, this Decree and other related regulations of Vietnamese law;

2. To carry out strictly the labor supply contract and the labor contract already signed;

3. When they need to send Vietnamese laborers for training abroad, foreign organizations or individuals shall have to send a written notice about the number, time, place of training and branches and jobs for training to the labor supply organization mentioned in Article 6 of this Decree in order to implement the stipulations of Item 4, Article 9 of this Decree.

Article 15.- The Labor, War Invalids and Social Affairs Services of the provinces and cities directly under the Central Government shall have to supervise and control the recruitment, training and supply of Vietnamese labor for foreign organizations and individuals by labor supply organizations under the jurisdiction of the locality. Periodically every six months and every year, it has to report to the People's Committee of the province or city directly under the Central Government, the Ministry of Labor, War Invalids and Social Affairs and the related ministries and branches on the recruitment, training, supply and management of Vietnamese laborers working for foreign organizations and individuals under the jurisdiction of the locality.

Chapter III

HANDLING OF VIOLATIONS

Article 16.- Vietnamese laborers, labor supply organizations or foreign organizations and individuals that do not fully implement the provisions of this Decree shall, depending on whether they are a collective or individual, and on the nature and extent of the violation, be put on administrative sanctions or be examined for penal liabilities as prescribed by Vietnamese law.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 17.- This Decree takes effect as from January 1st, 1999. The earlier regulations which are contrary to this Decree are now annulled.

Article 18.- Within 90 days after this Decree takes effect, Vietnamese laborers who have worked for foreign organizations or individuals before this Decree takes effect but the labor contract is still valid, must complete the dossier as prescribed in Article 7 of this Decree so that the foreign organization or individual shall transfer the dossier to the labor management agency for official registration for management.

Article 19.- The Ministry for Foreign Affairs, the People's Committees of the provinces and centrally-run cities shall have to set up or assign a labor supply organization to carry out the tasks mentioned in this Decree.

Article 20.- The Ministry of Labor, War Invalids and Social Affairs shall have to guide and inspect the implementation of this Decree.

Article 21.- The Ministers, the Heads of ministerial-level agencies, the Heads of the agencies attached to the Government, the Presidents of the People's Committees of the provinces and centrally-run cities shall have to implement this Decree.

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