You are using an outdated browser and your browsing experience will not be optimal. Please update to the latest version of Microsoft Edge, Google Chrome or Mozilla Firefox. Install Microsoft Edge

October 21, 2013

New Decree on Foreign Employees Working in Vietnam

Subscribe to Updates
Tilleke & Gibbins

As part of the Vietnamese government’s efforts to overhaul its labor legislation, it adopted Decree 102/2013/ND-CP on September 5, 2013 (Decree 102), elaborating on the provisions of the new Labor Code (in force since May 1, 2013) on foreign workers in Vietnam. Decree 102 will be effective as of November 1, 2013. We discuss some of the key points below.

Employer Reporting Requirements

Decree 102 confirms the Labor Code’s requirement that employers (with exceptions) are to report their demand for foreign employees in respect of positions for which qualified Vietnamese workers cannot be found. Decree 102 clarifies further that employers must send these reports annually to the Chairman of the local People’s Committee, which is to issue written approvals to the employer for employing foreign workers in respect of each position. If there is a change in the employer’s needs for foreign employees, it will need to notify the local People’s Committee of such changes. These reports must be submitted with work permit applications.

Additional Categories for Work Permit Exemptions

Decree 102 extends the categories of foreign nationals who are exempt from work permit requirements, adding: (1) volunteers; (2) journalists; (3) teachers at international schools under the management of diplomatic missions or international organizations; and (4) those with master’s degrees or higher who engage in consulting, teaching, or research at universities for 30 days or less. Foreign workers for whom the work permit exemption already applies under the new Labor Code include, among others, capital-contributing members or owners of limited liability companies, members of the board of management of shareholding companies, and lawyers.

While Decree 102 expands the categories of workers exempted from work permits, the Decree provides that a foreign national’s employer must request the relevant labor authority to certify in writing that the employee satisfies the conditions for exemption. Previously, the employer had only to report to the labor authorities that the foreign employee was eligible for an exemption. Under Decree 102, however, an applicant for work permit exemption is no longer required to legalize the foreign documents in the application file; only translation into Vietnamese and a relatively simple authentication process of such documents in Vietnam is required.

Related Professionals

Practices

Employment

Location

RELATED INSIGHTS​ 

August 23, 2021
Since July 13, 2021, the Thai government has issued a series of resolutions offering relief measures for persons insured under sections 33 (regular employees), 39 (former employees still paying contributions to the SSO) and 40 (freelancers) of the Social Security Act B.E. 2533 (1990) (the SSA) who have been affected by the COVID-19 prevention measures under the Emergency Decree on Public Administration in Emergency Situations B.E. 2548 (2005), including the business closures required in some provinces. The latest cabinet resolution extends relief measures to SSA-insured persons in 29 provinces designated as maximum control areas (or “dark red” provinces). The provinces are grouped into three categories based on when they received that designation (which, in turn, impacts the duration of the relief which they receive): Two types of relief measures have been announced—one for parties under section 33 of the SSA, and one for parties under sections 39 and 40.   Section 33 (Regular Employees) Monetary assistance is available for Thai nationals insured under section 33 of the SSA (and their employers) engaged in the following business activities: Administrative and support activities Arts, entertainment, and recreation Automotive repair Construction Food and accommodation Information and communication activities Professional activities in science and academia Services Transportation and storage Wholesale/retail Employers must submit an application to the Social Security Office (SSO) through the online portal (www.sso.go.th/eservices) in order for them and their employees to receive the assistance payments. Each qualifying employee receives THB 2,500 per month if they are registered with the SSO within the deadline, while registered employers receive THB 3,000 per qualifying employee, up to a maximum of 200 employees (i.e., THB 600,000), as summarized in the table below.   Section 39 (Former Employees Still Paying SSO Contributions) and Section 40 (Freelancers) THB 5,000 assistance payments are available for Thai employees insured
Read More
August 23, 2021
Ho Chi Minh City has been locked down for months in an effort to fight the challenging fourth wave of the Covid-19 pandemic. We explore the various options available to employers to cut labor costs, as well as government relief measures to support both workers and employers.
Read More
August 5, 2021
With the latest wave of COVID-19 continuing to have a serious impact on Thailand, many businesses have been looking for ways to survive. Some have temporarily reduced employees’ wages, while others have resorted to a complete or partial halt to operations. In these unprecedented circumstances, it is vital that business owners understand the legal criteria and steps for implementing a temporary cessation of operations in Thailand, as outlined in this article. Any business can apply for a temporary cessation of operations under section 75 of the Labor Protection Act (LPA) if there is a necessity and a significant cause, such as the business being unable to operate as usual, and if the necessity is not considered force majeure under Thai law. (If it is deemed force majeure, an employer may be able to withhold all wages—more on this below.) If these criteria are met, the employer can choose whether to seek temporary cessation of operations on a whole or partial basis, depending on the actual situation and necessity. The employer then has to inform a labor inspection officer and the employees at least three business days in advance of the intended cessation of operations. Once this is done, operations may be halted, but the employer must pay employees at least 75 percent of their wages, calculated based on the rate on their latest working day, and these payments must continue throughout the entire cessation period. “Necessity” and force majeure Though the LPA does not indicate what qualifies as a “necessity” allowing an employer to call for a temporary cessation, past rulings from the Supreme Court provide some guidance on this issue. For instance, reduced purchase orders from customers and financial difficulties faced by the employer can amount to a situation of “necessity.” Additionally, the situation has to be significant
Read More
July 28, 2021
Lawyers from Tilleke & Gibbins’ labor and employment team including Kien Trung Trinh, Sarah Galeski, and Nam Ngoc Trinh have written the Vietnam chapter of Practical Law’s Employment and Employee Benefits Global Guide. The 2021 edition of the handbook provides a high-level comparative overview of employment laws and regulations across 32 jurisdictions around the world. Tilleke & Gibbins also contributed the Myanmar chapter of the guide. The Vietnam chapter covers a wide range of typical employment matters, such as limitations on working hours, paid leave requirements, minimum wage, and health and safety obligations. In addition, the guide provides insight on a number of topics of special interest to foreign investors doing business in Vietnam, including the following: Mandatory contents of a labor contract; Visas and permits required for expatriate employees; Employers’ obligations for protecting employees’ privacy and personal data; Procedural requirements for the dismissal of an employee; Employer and parent company liability. The 2021 edition also includes a special section on Covid-19 related provisions of labor law. To read the Vietnam chapter, click on the link below.
Read More