Are Vietnamese enterprises allowed to apply probation to foreigners? What are the procedures for issuance of a work permit in Vietnam?
Are Vietnamese enterprises allowed to apply probation to foreigners?
Pursuant to Article 2 of the 2019 Labor Code of Vietnam stipulating as follows:
Regulated entities
1. Employees, trainees, apprentices and other employees without labor relations.
2. Employers.
3. Foreign employees who work in Vietnam.
4. Other organizations and individuals directly related to labor relations.
Pursuant to Article 24 of the 2019 Labor Code of Vietnam stipulating as follows:
Probation
1. An employer and an employee may include the contents of the probation in the employment contract or enter into a separate probation contract.
2. The probation contract must include the probation period and the contents specified in Points a, b, c, dd, g and h Clause 1 Article 21 of this Code.
3. Probation is not allowed if the employee works under an employment contract with a duration of less than 01 month.
According to the above regulations, foreign employees are also one of the regulated entities of the 2019 Labor Code of Vietnam.
Therefore, Vietnamese employers can agree on probation with foreign employees in accordance with the law.
Are Vietnamese enterprises allowed to apply probation to foreigners? What are the procedures for issuance of a work permit in Vietnam? (Image from the Internet)
Do foreign employees on probation need to apply for a work permit in Vietnam?
Pursuant to Clause 1, Article 3 of the 2019 Labor Code of Vietnam stipulating as follows:
Definitions
For the purposes of this document, the terms below shall be construed as follows:
1. “employee” means a person who works for an employer under an agreement, is paid, managed and supervised by the employer.
The legal working age is 15, except for the cases specified in Section 1 Chapter XI of this Labor Code.
According to the above provisions, probation is also a form of work, foreign employees on probation in Vietnam work for an employer under an agreement, are paid, managed and supervised by the employer.
Pursuant to Article 151 of the 2019 Labor Code of Vietnam stipulating as follows:
Requirements for foreigners to work in Vietnam.
1. A foreign employee means a person who has a foreign nationality and:
a) is at last 18 years of age and has full legal capacity;
b) has qualifications, occupational skills, practical experience and adequate health as prescribed by the Minister of Health;
c) 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;
d) has a work permit granted by a competent authority of Vietnam, except in the cases stipulated in Article 154 of this Labor Code.
2. The duration of a foreign employee’s employment contract must not exceed that of the work permit. When a foreign employee in Vietnam is recruited, both parties may negotiate conclusion of multiple fixed-term labor contracts.
3. Foreign employees working in Vietnam shall comply with and shall be protected by the labor law of Vietnam, unless otherwise prescribed by treaties to which Vietnam is a signatory.
Pursuant to Article 154 of the 2019 Labor Code of Vietnam stipulating as follows:
Work permit exemption for foreign employees in Vietnam
A foreign employee is not required to have the work permit if he/she:
1. Is the owner or capital contributor of a limited liability company with a capital contribution value conformable with regulations of the Government.
2. 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.
3. Is the manager of a representative office, project or the person in charge of the operation of an international organizations or a foreign non-governmental organization in Vietnam.
4. Enters Vietnam for a period of less than 03 months to do marketing of a service.
5. Enters Vietnam for a period of less than 03 months to a resolve complicated technical or technological issue which (i) affects or threatens to affect business operation and (ii) cannot be resolved by Vietnamese experts or any other foreign experts currently in Vietnam.
6. Is a foreign lawyer who has been granted a lawyer’s practicing certificate in Vietnam in accordance with the Law on Lawyers.
7. In one of the cases specified in an international treaty to which the Socialist Republic of Vietnam is a signatory.
8. Gets married with a Vietnamese citizen and wishes to reside in Vietnam.
9. Other circumstances specified by the Government.
According to the above regulations, foreign employees working in Vietnam need to meet the above requirements. Including the requirement that a work permit issued by a competent Vietnamese state agency is required, except for the following cases:
- Be the owner or capital contributor of a limited liability company with a capital contribution value conformable with regulations of the Government.
- Be 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.
- Be the manager of a representative office, project or the person in charge of the operation of an international organizations or a foreign non-governmental organization in Vietnam.
- Enter Vietnam for a period of less than 03 months to do marketing of a service.
- Enter Vietnam for a period of less than 03 months to a resolve complicated technical or technological issue which (i) affects or threatens to affect business operation and (ii) cannot be resolved by Vietnamese experts or any other foreign experts currently in Vietnam.
- Be a foreign lawyer who has been granted a lawyer’s practicing certificate in Vietnam in accordance with the Law on Lawyers.
- In one of the cases specified in an international treaty to which the Socialist Republic of Vietnam is a signatory.
- Get married with a Vietnamese citizen and wishes to reside in Vietnam.
Therefore, if foreign employees do not fall into the above cases, they still have to apply for a work permit when they try working in Vietnam.
What are the procedures for issuance of work permit in Vietnam?
Pursuant to Article 11 of Decree 152/2020/ND-CP on the procedures for issuance of work permit in Vietnam as follows:
- At least 15 working days before the day on which a foreign worker starts to work, the applicant shall submit an application for work permit to the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs of the province where he/she is expected to work. The applicant is:
+ the employer, if the foreign worker moves to Vietnam for employment for the purposes specified in points a, b, e, g, I and k clause 1 Article 2 of Decree 152/2020/ND-CP;
+ the Vietnamese agency, organization or enterprise, or foreign organization or enterprise operating in Vietnam for which the foreign worker is expected to work, if the foreign worker moves to Vietnam for employment for the purposes specified in points c and d clause 1 Article 2 of Decree 152/2020/ND-CP; or
+ the foreign service offeror in Vietnam, or the person in charge of establishing a commercial presence as prescribed in points dd and h clause 1 Article 2 of Decree 152/2020/ND-CP.
- Within 5 working days after receiving a duly completed application, the Ministry of Labor, War Invalids and Social Affairs or Department of Labor, War Invalids and Social Affairs of province where the foreign worker is expected to work shall issue a work permit to the foreign worker, using Form No. 12/PLI Appendix I hereto appended. The form of work permit shall be solely printed and issued by the Ministry of Labor, War Invalids and Social Affairs. If the application is rejected, a written explanation is required.
- For a foreign worker specified in point a clause 1 Article 2 of Decree 152/2020/ND-CP, after the foreign worker is issued with a work permit, the employer and the foreign worker must sign a written employment contract as per Vietnam’s labor law before the date on which the foreign worker is expected to work.
- The employer shall send that employment contract to the competent authority that issued that work permit. The employment contract is the original or a certified true copy.
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