(Luận văn thạc sĩ) vietnamese laws on foreign workers in the legal context of asean economy

Vietnamese Laws on Foreign Workers
in the Legal Context of Asean Economy
Doan Thi Phuong Diep
University of Economics and Law, Vietnam National University - HCMC, Vietnam
Duong Kim The Nguyen
University of Economics Ho Chi Minh city, Vietnam

Abstract
According to the imformation from the International Labor Organization (ILO), a total of 80,000
Vietnamese leave the country for jobs overseas each year. ILO said that approximately 400,000 Vietnamese
workers are now present in over 40 countries and territories worldwide. The annual inflows of remittances by
labor migrant have reached about US$2 billion in recent years (ILO,2017). This reflects in part the importance
of labor migration, in particular labor migration among countries in the ASEAN region. Labor migration poses
legal issues in all countries in both aspects, how to receive migrant workers and how to sent domestic workers
abroad. The development of a comprehensive legal framework will enable countries to manage migrant
workers, which in turn can bring economic benefits to the country as well as to the region. On the other hand,
the improvement of the legal framework of the country will also be the condition to promote the international
cooperation in this field in the most profitable way.
Within the scope of this article, the authors only mention a legal issue in the current context in Vietnam,
which is the issue of receiving migrant workers in Vietnam. The article contains the following (1) situation of
migrant workers in Vietnam, (2) international law on labor migration from the Vietnamese perspective, and
(3) Vietnamese law on migrant workers.
1. Overview of foreign workers in Vietnam today
In the context of economic integration in the region and the globe, the boundaries between countries are
exclusively legal, and limit the behavior of national rights in domestic and foreign affairs. These limits are
increasingly blurred by the demands for integration, economic exchanges and cultural exchanges among
nations. Labor migration also poses similar issues.
According to the 2015 data in the report sent to the Ministry of Labor – Invalids and Social Affairs
(MOLISA), People Committee of Ho Chi Minh City said that the current foreign workers who have work
permits and cerfify they are not eligible and valid to work permits in the city are more than 20,300 people. Of
those, more than 19,000 were licensed. The country has the biggest number of Japanese labor working in Ho

Chi Minh City, followed by Korea, USA, UK, China, Taiwan - China. Foreign workers account for the largest
number of management positions (nearly 55%), the remaining are expert workers. There are nearly 5,500
enterprises and organizations in the city employing foreign workers. As of June 30, 2017, The data from the
Insitute of Labor – Invalids and Social Affairs, Ho Chi Minh City show that there were 22,656 foreign workers
working in 6,889 organizations and enterprises in the city (the author retrieved).

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Meanwhile, according to MOLISA statistics (PV, 2017), as of June 2017, foreigners working in Vietnam
come from 110 countries, of which Chinese nationals make up the highest proportion with 30.9%. The report
on the status of foreign workers in Vietnam shows that in just over ten years, the number of foreign workers
in Vietnam has increased from more than 12,600 in 2004 to more than 82,585 in 2016. By the time of June 2017,
this figure was over 84,000 people (B.D, 2016). Licensed workers account for more than 93% of all foreign
workers in Vietnam.
.
Also, according to statistics of Insitute of Labor – Invalids and Social Affairs, Ho Chi Minh City, 67.38% of
foreign laborers are experts, 27.29% of laborers are managers, CEOs accounted for 0.58% and technical workers
accounted for 4.72%.
The above statistics are taken from the practices of foreign workers management in the city. In the reality,
there are still unlicensed foreign workers that cannot be put in the statistics. This number of laborers come to
Vietnam in many different ways but mainly travel, then stay to work in Vietnam without being licensed.
These figures give us a general view that the number of foreign workers coming to Viet Nam is increasing
steadily over time, especially the labor movement of ASEAN countries. This is explained by a variety of
objective and subjective reasons. However, in our opinion, the removal of legal barriers to this movement
plays a decisive role. The development of common ASEAN visa or visa exemption among countries in the
region is a good example.
2. Internation laws on labor migration having Vietnam’s participation
From an international perspective, Vietnam has ratified important international Conventions relating to
the reception of foreign workers. Specifically ILO Convention No. 122 of July 9, 1964 on Employment Policy

Convention and ILO Convention No. 111 of 1958 against discrimination in employment and occupation
(Discrimination).
In particular, the Convention 122 on Employment Policy requires "With the aim of stimulating economic
growth and development, raising living standards, meeting the demand for human resources and overcoming
unemployment and underemployment, each country will declare and pursue the primary goal, which is an
active policy to fully promote freedom of choice for employment.
The above policy aims to ensure that:
(a) employment for people having jobs or looking for jobs;
(b) the selected jobs should be most effective if possible;
(c) have the freedom of choice of employment and the fullest opportunity for each employee to qualify and
use his or her skills and competences in a job that is appropriate to him or her, regardless of race, color, sex,
religion, political perspectives, national extraction or social origin "(Article 1 of Convention 122).
Convention No. 111 of 1958 (Vietnam has ratified), which states that “Each Member for which this
Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods
appropriate to national conditions and practice, equality of opportunity and treatment in respect of
employment and occupation, with a view to eliminating any discrimination in respect thereof” (Article 2 of
the 111th Convention)
As a member country of APEC (Asia-Pacific Economic Cooperation), Vietnam participates in the activities
of this community. One of the vital activities of APEC is human resource development. This activity aims to
help countries develop human resources for economic development. This is a crucial activity in the common
operational goals noted by APEC. APEC agreed in an effort to build a dynamic and harmonious Asia-Pacific
community by promoting trade and freedom in investment; openly promoting regional economic integration,
encouraging economic and technical cooperation, strengthening human security, and creating a favorable and

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sustainable business environment. APEC’s initiatives turn policy objectives into concrete results and specific
agreements into tangible benefits.
In addition to participating in international conventions on labor, participating as a member country of

the APEC community, Vietnam also signed a series of other trade agreements. Doan Xuan Truong (2017),
showed that within the Asian area, “Labor issues are increasingly being considered in trading policies, and
bilateral and regional investment. This trend is evident in Free Trade Agreements (FTAs), which include labor
clauses”. One of the important agreements is the ASEAN-Japan Comprehensive Partnership Agreement
(AJCEP) in 2008, although this agreement is prone to economic cooperation and tariffs, yet one of the key
objectives in economic cooperation of the agreement is the development of resources. The resource
development in this shared playground will also create a favorable environment for labor mobility among
member countries.
The above are just some of the international and regional cooperation agreements that Vietnam
participates in. These agreements are more or less related to labor issues and are the basis for the fact that
Vietnam has been prepared to "open" its doors to receive labor force from other countries or vice versa. This
matter also raises questions, what is the preparation for the legal aspects from the Vietnamese side in the
implementation of these international commitments, particularly the activities of receiving and managing
foreign labor? And how do we balance the national interests in domestic labor protection with the
responsibility and other benefits of receiving international workers to come to work in Vietnam? This question
will be presented in part (3) of this article.
3. Current Vietnamese laws on foreign workers
After the August Revolution in 1945, Vietnam has changed the basic regulations of labor twice. Firstly, with
the introduction of the Labor Code 1994, this law was replaced by the second law promulgated in 2012 with
many changes in general but not much change in management of foreign workers. There may be three
following basic issues:
3.1. Recruitment of foreign workers
Recruitment rights. Recruitment of foreign workers is stipulated at the same time as the current two
documents, including the Labor Code and the Decree No. 11 / CP (2016). Accordingly, the Labor Code
recognizes the labor recruitment as a fundamental right of employers (No.1a, Article 6, Labor Code). Besides,
Decree 11 / CP clearly stipulates the right to recruit foreign employees, including types of enterprises,
representative offices, branches of enterprises, agencies and organizations licensed by the competent
authority, state bodies, political organizations, socio-political organizations, socio-political-professional
organizations, social organizations, socio-professional organizations, foreign non-governmental
organizations, international organizations in Vietnam. In accordance with these regulations, the laws allow

the broad scope of foreign worker recruitment, including all organizations and enterprises. However,
individuals who wish to recruit foreign workers must be individuals permitted to do business.
One point worth noting is that even though the Vietnamese labor laws have not been mentioned, the Laws
on cadres and civil servants do not permit the recruitment of foreign employees to work as civil servants or
officials at state organizations. However, Vietnamese state organizations can do recruitment by signing labor
contracts with foreign workers.
Process of recruiting foreign workers. One of the contents of the state management of foreign workers, which
has been developed to enhance the effectiveness of management, is to establish a management process for the
recruitment and employment of foreign workers in Vietnam. Regarding the recruitment process, it is clearly
seen that the law is strictly regulated through the following steps:

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- The first step: apply for permission for recruitment. According to the provisions in Article 4, Clause 1 of
Decree No.11 / CP of 2006, "the employers have responsibilities to determine the demands for employing
foreign laborers for each job position that is not yet fulfilled by the Vietnamese laborers, and report to the
Chairman of the People's Committee of the province or city directly under the Central Government
(abbreviated as provincial People's Committee) where the foreign workers intend to work”.
Basing on the report explaining and proposing the employment of foreign laborers, the Chairman of the
provincial People's Committee shall offer written approvals to the employers on the employment of foreign
laborers for each position".
To foreign contractors winning works in Vietnam, if they wish to employ foreign laborers, "the contractors
must declare the number, qualifications and professional capability and experience of the foreign workers to
conduct the bidding package in Vietnam, and propose to recruit Vietnamese laborers to the tentative positions
of the foreign workers (having the certification of the employer) and the Chairman of the People's Committee
of the province where the contractors performs the bidding package".
"Chairman of People's Committee shall direct local institutions and organizations to introduce and supply
Vietnamese laborers to contractors. Within two months from the date of receiving the proposal for recruitment
of 500 or more Vietnamese laborers, and one month from the date of receiving the proposal for recruitment of

less than 500 Vietnamese laborers, if not introducing or supplying the Vietnamese laborers to contractors,
Chairman of People's Committee shall consider and decide on the contractors' recruitment of foreign laborers
to work in the positions that cannot be filled up by Vietnamese laborers.
3. Investors shall have to supervise and request contractors to strictly comply with the contents already
declared on the employment of Vietnamese and foreign laborers; to guide, urge and inspect contractors in
implementing the regulations on recruitment and employment of foreign laborers working for contractors
according to the provisions of laws; to monitor and manage foreign employees in fulfilling the provisions of
Vietnamese laws; to quarterly report to the Insitute of Labor – Invalids and Social Affairs on the status of
recruitment, employment and management of foreign laborers of contractors according to the regulations of
the Ministry of Labor, Invalids and Social Affairs”.
In short, by the end of the first step, enterprises will be entitled to recruit workers on the basis of the
permission of Chairman of the provincial People's Committee for foreign workers. This permission is
expressed through the decision or approval of the employment of foreign workers. This approval must be
granted within 15 days from the date of receiving the report explaining the employers’ needs for foreign
employment.
- The second step: recruitment of foreign workers. After the approval of the President of the provincial
People's Committee on the recruitment of foreign employees, enterprises should carry out the procedures for
notification of recruitment and search for foreign laborers.
- The third step: applying for a work permit. After having been approved for recruitment of foreign workers
and also found suitable workers, enterprises shall carry out the procedures for applying for work permits.
This procedure is detailed in Section 3.2 below.
- The fourth step: sign the labor contract. On the basis of the granted work permit, enterprises shall proceed
a formal labor contract with the foreign worker. Then, they will come to Vietnam to work.
- The above is the whole process involving in the recruitment of foreign workers. It can be seen that the
provisions of Decree No. 11 / CP (2016) and Circular No. 40 / TT-BLDTBXH relatively cover all steps in the
process of recruiting foreign workers. This process allows effective management of foreign workers working
locally as well as fluctuations that may be related to the number of foreign workers.

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3.2. Issuance of work permits to foreign laborers to work in Vietnam
Issuance of work permits is a vital part of controlling labor migration to Vietnam. In that sense, the issuance
of work permits is today considered as a step in the process of recruiting foreign workers to work in Viet Nam,
and it is also considered as a procedure to check working conditions for foreign workers in Vietnam.
Vietnamese laws currently does not set out procedures for foreign workers moving within ASEAN and
beyond ASEAN. This means that all non-Vietnamese workers are considered as foreign workers, and if they
want to come to Vietnam to work, they need to meet the conditions required, particularly obtaining the work
permits.
Article 169 of the Labor Code 2012 of Vietnam stipulates that "Laborers who are foreign citizens working
in Vietnam must satisfy the following conditions:
Having full civil act capacity;
b) Having professional qualifications, skills and health tailored to work requirements;
c) They are not offenders or examined for penal liability according to the provisions of Vietnamese laws
and foreign laws;
d) Having work permits granted by authorised Vietnamese state insitutions, except cases prescribed in
Article 172 of this Code”.
Meanwhile, according to Article 9 of Decree 11/CP, foreign workers need to meet certain requirements to
obtain the work permits, as follows:
- Having full civil act capacity as prescribed by laws.
- Having good health in accordance with work requirements.
- Be managers, executive directors, experts or technical workers.
- Not being a criminal offender or being prosecuted for criminal liability in accordance with the provisions
of Vietnamese laws and foreign laws.
- Having written official approvals offered by authorised state institutions on the employment of foreign
workers.
These conditions are also the types of documents that employers must prepare in the applications for work
permits. These conditions indirectly show that Vietnam currently only accepts two groups of foreign workers,
including the first group of managers or executive directors, the second group of experts or technical workers
(Experts are defined as “foreign workers belonging to one of the following cases:

a) Having a written certification of being an expert of an institution, organization, enterprise in a foreign
country;
b) Having a university degree or higher or equivalent and having at least 03 years of working experience
in a profession trained for the positions that the foreign workers intend to work in Vietnam; for special cases,
the Prime Minister shall consider and decide.
Technical workers are "those who have been trained in technical professions or other related majors for at
least one year and have worked for that major at least three years). These regulations mean that unskilled
workers from abroad are unable to work in Vietnam. In our views, this determination is a way of limiting
foreign workers to work in Vietnam, yet, this restriction is still complied with the international conventions
that Vietnam participates in. In particular, Article 52 (2) of the 1990 International Covention on the Protection
of the Rights of Migrant Workers and their Families provides: "For migrant workers, the country of
employment may:
a. Restrict access to certain types of jobs, occupations or activities if such restrictions are needed in the
interests of the nation and are regulated by national laws.
b. Restrict the freedom to choose paid jobs in accordance with the laws of that country for the recognition
of professional qualifications issued abroad. However, the relating member countries shall make efforts to
recognise these qualifications”.

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Accordingly, the provisions of Vietnamese laws contain restrictions related to the reception of foreign
workers to work in Vietnam. Nevertheless, the restriction is defined as "necessary for the benefit and national
laws and regulated by the countries. " It can therefore be affirmed that the provisions of Vietnamese laws in
this area are absolutely complied with the 1990 International Convention.
The work permits in Vietnam are issued according to the tentative working time of foreign workers in
Vietnam, yet, the maximum duration of the permits is not over 2 years and may be extended or reissued.
Foreign workers who are required to have work permits to work in Vietnam, but if not having these, they will
be deported (Article 171 (2) of the 2012 Labor Code). (According to real statistics from Ho Chi Minh City and
the source of the author, there are no cases of foreign workers deported because of lack of work permits)

Cases of not requiring work permits. Besides the requirements for the issuance of work permits as a
condition for accepting foreign workers to work in Vietnam, the laws currently provides the possibilities for
foreign workers working in Vietnam without work permits. Specifically, the cases are specified in Article 172
of the Labor Code 2012:
- Being a capital-contributing member or owner of a limited liability company
- Being a member of the Directorate Board of a joint stock company
- Being a head of a representative office or project of an international organization or a non-profit
organization in Vietnam.
- Coming to Vietnam for a period of less than 3 months to sell services.
- Coming to Vietnam for a period of less than 3 months to handle complicated technical situations that
affect or likely affect production and business that Vietnamese specialists and foreign experts in Vietnam can
not solve them.
- Being a foreign lawyer licensed to practice laws in Vietnam in accordance with the Lawyer Laws.
- According to the provisions of treaties to which the Socialist Republic of Vietnam is a member.
- Being a student studying in Vietnam and working in Vietnam, but the employer must deliver notice
with 7 days in advance to the provincial-level state management agency being in charge of labor.
Decree 11 / CP adds a number of jobs that do not require work permits, such as:
a) Foreign workers who are internally transferred within an enterprise operating in the 11 service sectors
in the list of Viet Nam’s commitments on services to the World Trade Organization, including: business,
communication, construction, distribution, education , environment, finance, healthcare, tourism, cultural
entertainment and transport;
b) Foreign workers entering Viet Nam to provide advisory services and technical expertise or perform other
tasks serving research, construction, appraisal, monitoring and evaluation, management and implementation
of programs/projects funded with official development assistance (ODA) as specified and agreed in
international agreements on ODA between competent authorities of Viet Nam and other countries;
c) Foreign workers who are issued with a license for the practice of journalism in Viet Nam by the Ministry
of Foreign Affairs in accordance with the laws;
d) Foreign workers who are teachers of foreign organizations that are sent to Viet Nam by such
organizations to teach and research in international schools under the management of foreign diplomatic
missions or international organizations in Viet Nam or permitted by the Ministry of Education and Training

to teach and research in Viet Nam’s education and training institutions;
dd) Volunteers certified by foreign diplomatic missions or international organizations in Viet Nam;
e) Foreign workers coming to Viet Nam to work as experts, managers, executive directors or technical
employees with a period of less than 30 days and no more than 90 cumulative days in 01 years;
g) Foreign workers entering Viet Nam to implement international agreements to which central and local
state agencies are signatories as prescribed by the law;
h) Students studying in foreign schools and institutions having agreements on internship in agencies,
organizations and enterprises in Viet Nam;

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i) Family members of diplomatic agents of foreign diplomatic missions in Viet Nam permitted for working
by the Ministry of Foreign Affairs, except where international treaties to which the Socialist Republic of Viet
Nam is a signatory that contains provisions different from this;
k) Foreign workers who have official passports to work for state agencies, social organizations and sociopolitical organizations;
l) Other cases decided by the Prime Minister at the proposal of the Ministry of Labor - Invalids and Social
Affairs.
It can be seen that the addition of the list of non-licensing activities from 2016 is an important step for
Vietnam in implementing its international commitments for a free and progressive region where foreigners
can come to work in effective protection and have full of rights as a citizen of that country. Expanding the list
without licensing is a visible move in which good will and the real need to expand country relations in the
field of labor, as well as the spirit that Vietnam is already ready for an open labor market with competitive
strength prepared.
It should be noted that, even though there are a number of occupations that foreign workers can work in
Vietnam without a work permit. However, in order to perform well the management functions, with this
group of workers, Decree 11 / CP stipulates in Article 8 that for this labor user, the employer should carry out
the procedure of "certifying foreign workers that are not licensed". This certification is also conducted by the
Department of Labor, Invalids and Social Affairs where the enterprise located.
3.3. Rights and obligations of foreign workers working in Vietnam

Clause 2 of Article 169 of the Labor Code 2012 stipulates Laborers who are foreign citizens working in
Vietnam must obey the Vietnamese labor legislation and international treaties to which Vietnam is a member,
having different regulations protected by Vietnamese laws. Therefore, basically, the rights and obligations of
foreign workers working in Vietnam are similar to Vietnamese workers working in Vietnam as defined in
Article 5 of the 2012 Labor Code. Many of the rights of foreign workers are even higher than the rights of
Vietnamese workers, such as the right to be paid, the current practice of the same enterprise, even the same
positions and the workload, the salary of a foreigner is usually higher than that of Vietnamese.
For the first time, Social Insurance Law 2014 allows foreign employees to participate in social insurance in
Vietnam: "Employees who are foreign citizens working in Vietnam have work permits or practice certificate
or a licensed working certificate granted by authorized Vietnamese agencies may participate in compulsory
social insurance according to the Government's regulations" (Article 2, Clause 2 of the Laws on Social
Insurance, 2014). The recognition of this right has not been effective yet (The provisions on the right to social
insurance of foreign workers in Vietnam will come into effect from 1/1/2018), but this is a new point in
asserting that the rights of foreign workers and Vietnamese citizens to work is absolutely equal (In fact,
according to the assessment of labor experts, foreign workers working in Vietnam will not be "very happy"
with this right because the current social insurance regimes in Vietnam is low and the retirement regime is
only applied for a long term when workers reside for a long time in Vietnam. Due to these inconveniences, in
the reality, the social insurance is not the right that foreign workers care about.), also relating to the right to
participate in social insurance of foreign workers.
One of the most important rights of foreign workers working in Vietnam is the right to work, free choice
of employment, occupation, vocational training, professional development and non-discrimination. (Article 5,
Clause 1, point a of the 2012 Labor Code). This right is recognized for all workers, yet, there is still a limit on
the freedom of choice for foreign workers. In particular, foreign workers cannot become cadres, civil servants
or officials as Vietnamese citizens. This limitation is also explained by the exceptions recognized in the 1990
Convention on the Rights of Migrant Workers and Their Families.

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In brief, from all of the regulations on the issue of recruitment, issuance of work permits, the reception of

foreign workers to work in Vietnam, there may be two requirements that seem to contradict each other. The
first is to welcome foreign workers in a context of regional and global economic integration, in the urge to
establish international trade relations. The second is to protect the domestic labor market by limiting the
competition between foreign workers and Vietnamese workers, reducing the unemployment rate. The
Vietnamese Government has chosen to compromise both of these requirements by responding to the first
requirement, opening up and receiving foreign workers in the spirit of respect for international commitments.
However, some exceptions are still kept to protect the domestic labor market.
References
ILO (2017), Labour migration in Viet Nam last visit on 4 June 2018.
PV(2017, June 20), More than 30% of foreign workers in Vietnam are Chinese. Retrieved from
/>1
B.D (2016, June 19), More than 82.5 thousand foreign workers are working in Vietnam Retrieved from />1
Doan Xuan Truong, 2017. Labor Commitments in Next Generation Free Trade Agreements - Opportunities and Challenges for Vietnam.
Journal of Democracy and Law. No. 10.
The Vietnam Labor Code 2012
The Vietnam Laws on Social Insurance 2014)
Decree No. 11/CP (2016) no.11/2016/ND-CP dated February 03, 2016 detailing a number of articles of the Labor Code in respect of foreign
workers in Vietnam
Circular No. 40/TT-BLDTBXH guidance on implementation of a number of articles of decree no.11/2016/ND-CP dated February 03, 2016
detailing a number of articles of the Labor Code in respect of foreign workers in Vietnam

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