At present, the use of foreign workers is an essential need for many Vietnamese enterprises, especially in certain fields that require the experience and qualifications of foreign experts and managers. On September 18, 2023, the Government issued Decree 70/2023/ND-CP, which amends and supplements a number of articles of Decree 152/2020/ND-CP of December 30, 2020, regulating foreign workers working in Vietnam and the recruitment and management of Vietnamese workers working for foreign organizations and individuals in Vietnam. This Decree will take effect immediately upon promulgation.
In the article published on HM&P's website on August 28, 2023, we mentioned issues that enterprises need to consider when recruiting and using foreign workers in their enterprises (details of this article can be found at: https://hmplaw.vn/en/what-companies-need-to-consider-when-hiring-foreign-workers-in-vietnam-en).
For this article, we will continue to raise some notes for companies on this issue as the Decree 70/2023/ND-CP takes effect.
1. Changes in the approval of the use of foreign labor demand
First, from the date of the enactment of Decree 70/2023/ND-CP, the report explaining the need to employ foreign workers will be submitted by enterprises to the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs where the foreigner is to work, instead of to the Provincial People's Committee as required by Decree 152/2020/ND-CP.
Second, the deadline for enterprises to submit an explanatory report has also been changed, according to which enterprises only need to submit an explanatory report at least 15 days before the expected date of employment of foreign workers, instead of at least 30 days as before. This adjustment is convenient for enterprises, as in many cases the need to use foreign workers arises in an emergency.
Third, a very important note for enterprises is the new requirement to post recruitment notices for Vietnamese workers in positions expected to recruit foreign workers. Accordingly, from January 1, 2024, recruitment notices for Vietnamese workers for positions where foreign workers are expected to be hired must be posted on the electronic information portal of the Ministry of Labor, War Invalids and Social Affairs (Department of Labor) or the electronic information portal of the employment service center established by the decision of the Chairman of the Provincial People's Committee. The announcement shall be made at least 15 days from the expected date of the report explaining the need to employ foreign workers. After the announcement period, if the enterprise cannot recruit Vietnamese workers, the enterprise shall make an explanation report.
In essence, the 30-day period prior to the expected date of employment of foreign workers has now been divided into two periods, one of which requires enterprises to announce the recruitment of Vietnamese workers, and the remaining period is for the enterprise to submit an explanatory report.
2. Changing the concepts of experts and chief executive officers
Previously, companies had to prove that the recruited workers met many conditions, including the conditions of workers' experience and qualifications, when carrying out work permit procedures. Currently, there has been an important change in this regard. Specifically, for experts, Decree 70/2023/ND-CP introduces the definition of "a university degree or higher or equivalent and at least 3 years of work experience appropriate to the position that the foreign worker expected to work in Vietnam" instead of "a university degree or higher or equivalent and at least 3 years of work experience in a specialized training appropriate to the position that the foreign worker expected to work in Vietnam". Similarly, Decree 70/2023/ND-CP removed the requirement for technical workers to have work experience in their specialized training. These changes make it easier to prove that workers meet the company's recruitment requirements, as many foreign workers do not work in accordance with their specialized training, but still have a lot of experience in the position that the company is recruiting. Removing this requirement will help companies reach more workers, thereby screening and recruiting the most suitable workers.
In addition, Decree 70/2023/ND-CP also clarifies the cases that are considered as chief executive officers. Accordingly, the new regulations specifically indicate the cases that are considered chief executive officers, including: (i) the heads of branches, representative offices or enterprise locations of the enterprise; and (ii) 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. This provision makes it easier for companies to distinguish between the positions of chief executive officer and manager when determining the position in which employees will work.
3. Special notes for enterprises located in industrial parks and economic zones
According to the provisions of Point a Clause 6a Article 30 of the Decree 152/2020/ND-CP (This Clause 6a is supplemented by Article 72 of Decree 35/2022/ND-CP), for workers working in industrial parks , economic zones, the management board of industrial parks and economic zones shall issue, re-issue, extend, and revoke work permits and confirm that foreign workers are not subject to work permits for foreigners working in industrial parks and economic zones.
However, Article 1.14.(c) of the Decree 70/2023/ND-CP has abolished this regulation, so it can be seen that, now, the authority to issue, re-issue, extend, and revoke work permits and confirm that foreign workers are not subject to work permits for foreigners working in industrial parks and economic zones will also belong to the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor and War Invalids and Social Affairs. In other words, the management board of industrial parks and economic zones will no longer manage the use of foreign labor by enterprises.
The above are some important notes that enterprises should pay attention to when carrying out related procedures.
