Labour Regulations Update in September 2023

I. Official letter No. 2853/BHXH-TTKT of Vietnam Social Insurance on enhancing leadership in law implementation and prevention of fraud, abuse, and misuse of social insurance fund, unemployment insurance, and health insurance

On 14 September 2023, Vietnam Social Insurance issued the Official Letter No. 2853/BHXH-TTKT on enhancing leadership in Law implementation and prevention of fraud, abuse and misuse of Social Insurance (SI), Unemployment Insurance (UI) and Health Insurance (HI) funds. 

In light of recent occurrences, the Social Insurance Agency and relevant authorities have identified and handled various violations in the fields of SI, UI, and HI in certain localities, such as abusing, taking advantage of sickness and maternity funds, seeking profit from the one – time Social Insurance under the form of authorization, abusing and seeking profit from the Unemployment Insurance/Health Insurance funds. 

In order to solve the above situations, Vietnam Social Insurance proposes that the Ministry of Labor, Invalids and Social Affairs, the Ministry of Health, and the People’s Committees of centrally governed provinces and cities pay attention and provide guidance on the following key points: 

1. Enhance the inspection activities for units/enterprises that pay the SI, UI, and HI late, building the salary scales and payrolls, signing labor contracts, and determining compulsory Social Insurance payments at enterprises as a basis for contributions and enjoyment of SI, UI, and HI benefits for Employees. 
2. Enhance the inspection and supervision activities of agencies, units, enterprises in the area in complying with Laws on SI, UI, and HI. Simultaneously, grasping the “compliant situation” of enterprises to have timely warnings. 
3. Re-check the cases which Employees claim severance allowance coincide with the working period and having SI and UI contribution in order to recover improper benefits claimed; regularly and proactively coordinate and share data with the Social Insurance of provinces and cities to review and resolve the Unemployment Insurance regime, avoid issuing decisions on Unemployment Insurance payment to wrong subjects and amount. 
4. Enhance coordination with the provincial Social Insurance agency to inspect, audit Employers in the area, in which focus on inspecting and examining units/enterprises that have the signs of violation in collecting, contributing, resolving Social Insurance and Unemployment Insurance benefits. 
5. Strictly handle units, enterprises and individuals that violate the Law on implementing SI, UI and HI benefits and policies according to the provisions of the Laws to promptly ensure rights and benefits of the SI, HI and UI participants. 

Thus, it can be noticed that the Social Insurance and other authorities are focusing strongly on SI, UI, and HI compliance of enterprises and taking measures to deal with the units, enterprises and individuals who violate the Law on implementing Social Insurance, Unemployment Insurance and Health Insurance regimes and policies. 

We recommend that units/enterprises always prioritize compliance with the Laws in the field of SI, UI and HI. 

II. Decree No. 70/2023/ND-CP amending and supplementing some articles of decree NO. 152/2020/ND-CP on work permits

On 18 September 2023, the Government issued Decree No. 70/2023/ND-CP amending and supplementing several articles of Decree No. 152/2020/ND- CP dated 30 December 2020, of the Government regulating foreign workers working in Vietnam and recruiting and managing Vietnamese workers working for foreign organizations and individuals in Vietnam (“Decree 70”). Accordingly, Decree 70 amends and supplements several important contents as follows:

AMENDING AND SUPPLEMENTING INTERPRETATION OF WORDINGS

1. For expert positions, Decree 70 no longer requires work experience in the specialized field of training, but only requires work experience appropriate to the job position that foreign workers plan to work in Vietnam.
2. For technical labor positions, Decree 70 no longer requires work experience in the specialized field being trained, but only requires work experience appropriate to the job position that foreign workers plan to work in Vietnam.
3. For the position of Executive Director, Decree 70 is amended and supplemented in a way that is clearer, more precise, and more logical. Accordingly, the Executive Director is a person in one of the following cases:

• • Head of branch, representative office, or business location of the enterprise.
  • The person who heads and directly operates at least one area of an agency, organization, or enterprise and is subject to the direct direction and management of the head of the agency, organization, or enterprise.

AMENDMENTS AND SUPPLEMENTS ON DETERMINING THE NEED FOR EMPLOYING FOREIGN WORKERS

1. For determining the need to use foreign workers, Decree 70 has shortened the reporting time to the competent authority from at least 30 days in advance to at least 15 days in advance from the expected date of employing foreign workers.
   Accordingly, the reporting and explanation time to competent authorities when there is a change in the need to employ foreign workers in terms of position, job title, working form, quantity, and location has also been shortened from at least 30 days in advance to at least 15 days in advance from the expected date of employing foreign workers.
2. Decree 70 adds the following cases that do not require determining the need to employ foreign workers:
   • Being a foreign lawyer who has been granted a License to practice law in Vietnam according to the provisions of the Law on Lawyers.
   • Foreigners marry Vietnamese people and live in Vietnamese territory.
   • Entering Vietnam to provide professional and technical consulting services or perform other tasks serving research, development, appraisal, monitoring, evaluation, management and program implementation, project uses official development assistance (ODA) according to regulations or agreements in international treaties on ODA signed between competent agencies of Vietnam and foreign countries.
   • Licensed by the Ministry of Foreign Affairs to operate information and press activities in Vietnam according to the provisions of law.
   • Volunteers specified in Clause 2, Article 3, Decree 152.
   • Confirmed by the Ministry of Education and Training that foreign workers enter Vietnam to perform the following jobs: (i) Teaching and research; (ii) Act as a manager, executive director, principal, or vice principal of an educational institution proposed by a foreign diplomatic mission or intergovernmental organization to establish in Vietnam.
3. From January 1, 2024, employers must make recruitment announcements for Vietnamese workers in positions expected to recruit foreign workers on the competent authority’s electronic information portal within the time limit at least 15 days from the expected date of the explanation report. In cases where Vietnamese workers cannot be recruited, foreign workers will be recruited.
   The content of the recruitment announcement includes: position and job title, job description, quantity, requirements for qualifications, experience, salary, working time and location.

AMENDMENTS AND SUPPLEMENTS ON THE REPORT ON EMPLOYMENT OF FOREIGN WORKERS

Decree 70 adds the following cases that must be reported to the competent authority:
In case a foreign employee works for an employer in many provinces and centrally run cities, within 3 working days from the date the foreign employee starts working, the employer must report through the web portal for competent authorities according to Form.

AMENDMENTS AND SUPPLEMENTS ON EMPLOYEES NOT SUBJECT TO WORK PERMITS

Decree 70 amends the following two contents in regulations on cases where foreign workers not subject to work permits:

1. Being sent to Vietnam by a competent foreign agency or organization to teach or work as a manager or executive director at educational establishments proposed to be established by foreign diplomatic missions or intergovernmental organizations in Vietnam; establishments and organizations established under international treaties that Vietnam has signed and participated in.
2. Confirmed by the Ministry of Education and Training that foreign workers enter Vietnam to perform the following jobs:
3. • Teaching and research;
   • Work as a manager, executive director, principal, or vice principal of an educational institution proposed to be established by a foreign diplomatic mission or intergovernmental organization in Vietnam.

AMENDMENT AND SUPPLEMENT OF APPLICATION DOCUMENT FOR ISSUANCE OF WORK PERMIT

1. Decree 70 adds regulations that in case a foreign employee works for an employer in multiple locations, the work permit application must fully list the work locations.
2. Decree 70 amends and supplements documents proving that one is a manager or executive director, including the following three types of documents:
   • Company charter or operating regulations of agencies, organizations or enterprises;
   • Business registration certificate or establishment certificate or establishment decision or other documents of equivalent legal value;
   • Resolution or Appointment Decision of agencies, organizations, or enterprises.
3. Decree 70 amends and supplements documents proving that you are an expert or technical worker, including the following two types of documents:
   • Diploma or license or certification;
   • Written confirmation from an agency, organization, or enterprise abroad regarding the number of years of experience of the expert, technical worker, or confirmation that the work permit has been issued or that the work permit is not required to be issued.
4. In the case of foreign workers entering Vietnam to work as managers, executive directors, experts, and technical workers, Decree 70 is amended and supplemented to require a document from an agency, organization and enterprises send foreign workers to work in Vietnam and are suitable for the expected job position or documents proving that they are managers.
5. Decree 70 adds a special case when issuing work permits, specifically in the case of foreign workers who are experts or technical workers who have been granted a work permit and have had it extended once but wishing to continue working with the same job position and job title stated in the work permit. When this special case happens, the application for a work permit is simpler.
6. Decree 70 supplements regulations on Work Permit codes and mentions electronic Work Permits.
7. Decree 70 adds regulations that the passport in the application file for a work permit can be a certified copy or a copy certified by the employer.

AMENDMENTS AND SUPPLEMENTS ON CASES OF RE-ISSUANCE OF WORK PERMITS

Decree 70 adds another case of reissuing a work permit, which is the case of a business changing its name without changing the business code recorded in the valid work permit.

AMENDING AND ADDING AUTHORITY RELATED TO FOREIGN WORKERS

1. Decree 70 adds authority of the Ministry of Labor, War Invalids and Social Affairs related to work permits for the following cases:
   • Foreign employees work for representative offices, branches of enterprises, agencies, and organizations permitted to be established by the Government, Prime Minister, ministries, ministerial-level agencies, and agencies under the Government.
   • Foreign employees work for one employer in many provinces and centrally run cities.
2. Decree 70 adds authority of the Department of Labor, War Invalids and Social Affairs related to work permits for the following cases:
   Foreign employees work for employers at many locations in the same province or centrally run city.
3. Decree 70 amends, adds the following responsibilities of the Ministry of Public Security, specifically “Monthly provide information on foreign workers granted visas with symbols including: DN1, DN2, LV1, LV2, LĐ1, LĐ2, ĐT1, ĐT2, ĐT3, ĐT4 to work in an agency, organization, and enterprise to the Ministry of Labor, War Invalids and Social Affairs“.
4. Decree 70 abolishes the authority of the Industrial Park and Economic Zone Management Board to issue, re-issue, extend, and revoke Work Permits and confirm that employees are not subject to work permits for foreigners working in industrial parks and economic zones. At the same time, Decree 70 also abolishes the authority of the Management Board of industrial parks and economic zones to receive reports on the use of foreign workers and receive reports explaining the need for use foreigners for each job position that Vietnamese people cannot meet.

AMENDMENTS AND ADDITIONS TO FORM

1. Decree 70 Amending Form No. 01/PLI; Form No. 02/PLI; Form No. 07/PLI; Form No. 08/PLI, Appendix I issued with Decree No. 152/2020/ND- CP becomes Form No. 01/PLI; Form No. 02/PLI; Form No. 07/PLI; Form No. 08/PLI Appendix promulgated together with this Decree.
2. Decree 70 Supplementing Form 16/PLI and Form No. 17/PL1.

TRANSITIONAL PROVISIONS

For the report explaining the need to use foreign workers, the application for confirmation is not subject to a work permit; issue, re-issue, and extend work permits that foreign employers have submitted to the Ministry of Labor, War Invalids and Social Affairs, Provincial People’s Committee, Department of Labor, War Invalids and Social Affairs, Department of Labor, War Invalids and Social Affairs, Management of industrial parks, economic zones, and high- tech zones before the effective date of this Decree shall apply according to the provisions of Decree No. 152/2020/ND-CP and Decree No. 35/2022/ND – CP.

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