On February 23, 2024, the Minister of Labor, Invalids and Social Affairs issued Circular No. 02/2024/TT-BLĐTBXH ("Circular 02") amending Circular No. 21/2021/TT-BLĐTBXH detailing certain provisions of the Law on Vietnamese workers working abroad under contracts ("Circular 21"). Below are some noteworthy updates provided by ATA Legal Services:
1. Significant Changes in Labor Recruitment Documentation
a. The foreign party is the employer
Previously, Circular 21 required a written approval from the competent authority of the host country for employing foreign workers, but in practice, not all legal systems worldwide allow such approvals to be issued.
Therefore, Circular 02 has amended this requirement by not mandating such documents but instead requiring readily available documents to demonstrate compliance when employing Vietnamese workers, specifically:
- Business license or equivalent documents issued by the competent authority of the employer indicating a relevant business field compatible with the foreign labor recruitment, along with a Vietnamese translation.
- Documents demonstrating the employer's compliance with the requirements for hiring foreign workers, along with a Vietnamese translation for countries with specific requirements.
b. The foreign party is a labor service provider
Previously, Circular 21 only required the submission of an operating license issued by the competent authority of the host country. However, Circular 02 has added requirements for supporting documents, including:
- Business license of the labor service provider indicating the business scope covering job placement services.
- Cooperation agreement/letter requesting recruitment of Vietnamese workers from the employer to the labor service provider.
- Documents related to the employer as per the aforementioned requirements.
It can be observed that Circular 02 has tightened regulations by requiring proof that the foreign employer genuinely needs Vietnamese workers and establishing a relationship with the labor service provider through cooperation agreements to source Vietnamese labor.
2. Facilitating the Process of Sending Vietnamese Workers Abroad to Different Markets
Overall, Circular 02 allows the utilization of existing documents or equivalents to streamline the process, catering to various labor markets in different countries/territories, especially those lacking regulations on foreign labor recruitment permits. It also covers cases where the employer is a household or an individual. Specifically:
a. For the markets of Malaysia and Taiwan
Starting from May 15, 2024, for Malaysia and Taiwan (China), a copy of the Foreign Worker Recruitment Assessment Form issued by the Vietnamese representative office in Malaysia and Taiwan (China) suffices, without the need for a copy of the recruitment permit issued by the competent authority of the host country, along with a Vietnamese translation.
b. The foreign party is the employer
* For European, American, Oceanic markets, and technical professionals in the South Korean market:
Besides the previously specified documents, Circular 02 allows the provision of other equivalent documents such as:
- Business license or equivalent documents issued by the competent authority of the employer indicating a relevant business field compatible with foreign labor recruitment.
- Documents issued by the receiving country's authority permitting the employer to recruit foreign workers, confirming the employer's compliance with recruitment requirements, or specifying the list of industries and occupations allowed to recruit foreign workers, for countries with such regulations.
* For other countries or territories: Documentation includes copies of documents issued by the competent authority of the receiving country permitting the employer to recruit foreign workers.
If the receiving country does not specify the above documents: Business license or equivalent documents of the employer indicating a relevant business field compatible with foreign labor recruitment, along with compliance with the list of industries, occupations for recruiting foreign workers, as per the receiving country's regulations.
c. The foreign party is the labor service provider
Similar to the above case, besides the business license, Circular 02 allows the provision of equivalent documents issued or confirmed by the competent authority for the labor service provider indicating the business scope covering job placement services. Other documents remain unchanged as per previous regulations, including cooperation agreements/requests/authorization letters for recruiting Vietnamese workers and documents related to the employer.
Circular 02 takes effect from May 15, 2024
- Employment contracts for sending Vietnamese workers abroad and related agreements signed, and workers dispatched before the effective date of Circular 02 shall continue to be implemented until the contracts end.
- Labor supply contracts registered, approved by the Ministry of Labor, Invalids and Social Affairs, and workers not yet dispatched before the effective date of Circular 02 must be amended, supplemented, or newly signed if they contain provisions contrary to Circular 02.
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