Important changes on eligibility for issuance of license for provision of Vietnamese guest worker service

Recently, the National Assembly of Vietnam has approved the Law on Vietnamese guest workers 2020, which will come into force from January 01, 2020.

Điều kiện cấp phép hoạt động dịch vụ đưa người lao động đi làm việc ở nước  ngoài

According to Article 10 of the Law on Vietnamese guest workers 2020, an enterprise shall be issued with license for provision of Vietnamese guest worker service if the enterprise:

1. Has at least VND 5 billion of charter capital; has owners, members and shareholders who are domestic investors according to Law on Investment

This is the inherited condition as prescribed in Article 9 of the Law on Vietnamese guest workers 2006.

Moreover, according to Article 6 of the Decree No. 38/2020/NĐ-CP on elaborating to Law on Vietnamese Guest Workers 2006, enterprises permitted to organize guest worker programs must be limited liability companies, joint stock companies and partnerships which are established and operating according to Law on Enterprises of Vietnam.

2. Has made deposit payments as prescribed by Law

According to Article 24 of the Law on Vietnamese guest workers 2020, deposit payments of service enterprises shall be deposited in banks and shall be used in case service enterprises fail to adequately execute obligations in provision of Vietnamese guest worker service at request of competent authorities.

In particular, within 30 days from the date on which deposit payments are used, service enterprises must return used amount and ensure the prescribed deposit payment.

It can be seen that this condition is inherited from the Law on Vietnamese guest workers 2006 and its guiding Decree. Concurrently, according to Article 10 of the Decree No. 38/2020/NĐ-CP of Vietnam’s Government, enterprises shall place margin deposit of VND 1,000,000,000 at commercial institutions licensed for operations in Vietnam.

Thus, the new Law still maintains the conditions on deposit for labor export service enterprises. The deposit level, the management and use of the deposit and the case of dissolution, withdrawal or re-submission of the License will be guided by the Government.

3. Has Vietnamese nationals as legal representatives

Concurrently, legal representatives must have at least higher education level and at least 5 years of experience in providing Vietnamese guest worker service or employment services; is not criminally prosecuted; has no criminal records regarding violation to national security, charges that violate life, health, self-esteem or dignity of human beings, fraudulence for appropriation, credibility abuse for appropriation, false advertisement, manipulating customers, organizing or allowing other individuals to migrate or stay in Vietnam illegally, organizing or allowing other individuals to travel abroad or stay abroad illegally, forcing other individuals to travel abroad or stay abroad illegally.

In comparison with Article 9 of the Law on Vietnamese guest workers 2006 guided by Decree No. 38/2020/NĐ-CP of Vietnam’s Government, there is no conditions for the enterprise’s legal representatives, it was only stipulated that the leader in charge of administering activities of sending workers abroad having a university or higher degree, at least 03 years experience in the sending of workers abroad or in international cooperation and relations.

Thus, it is necessary to pay attention to the conditions of the legal representative in order to organize the organization of the labor export business in accordance with the provisions of the law.

4. Has adequate number of professional employees to implement details of Vietnamese guest worker service as prescribed, to be specific:

- Signing and executing contracts and agreements related to provision of Vietnamese guest workers.

- Searching and developing overseas labor market; providing information, advertisement and advice regarding overseas employment opportunities.

- Preparing workforce and recruiting workers.

- Organizing craft improvement, foreign languages and orientation education for workers before working abroad.     

- Managing workers; protecting rights and legal benefits of guest workers.

- Executing policies for guest workers.

- Liquidating contracts for Vietnamese guest worker service provision.

- Providing employment for repatriating workers.

Compared to Article 9 of the Law on Vietnamese guest workers 2006, it was only generally stipulated that enterprises must have a specialized section to provide necessary knowledge for workers before sending them abroad and to provide guest worker services in accordance with regulations of the Ministry of Labor, War Invalids and Social Affairs. For an enterprise participating in the sending of workers abroad for the first time, a plan on organization of the specialized section in charge of providing necessary knowledge for workers and sending them abroad is required.

Thus, this new Law has specified that enterprises must have adequate number of professional employees to implement its details of Vietnamese guest worker service and are no longer required a specialized section to provide necessary knowledge for workers before sending them abroad and to provide guest worker services; and for enterprises participating in the sending of workers abroad for the first time, a plan on organization of the specialized section in charge of providing necessary knowledge for workers and sending them abroad is no longer required.

5. Has adequate facilities of enterprises or is continuously hired by enterprises to satisfy orientation education for Vietnamese guest workers

The Law on Vietnamese guest workers 2006 did not have such conditions, however, according to Clause 2 Article 8 of Decree No. 38/2020/NĐ-CP of Vietnam’s Government, conditions for organizations providing necessary knowledge for workers owned by service providers or hired by service providers under contracts shall comply with regulations and law and satisfy following basic requirements:

- Have adequate rooms for study and stay for 100 workers at any given time;

- Average area for rooms for study is 1.4 m2/learner and rooms for stay is 3.5 m2/learner with basic equipment to ensure studying and staying capabilities.

Thus, the new Law has specified conditions on facilities of enterprises right in the eligibility for issuance of license for provision of Vietnamese guest worker service. Details of this condition will be prescribed by the Government later.

6. Has a web page

This is a completely new condition that is recognized for the first time in the Law on Vietnamese guest workers 2020.

Le Vy

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