Vietnam – Resolution No. 105 Affecting Foreign Labour in Vietnam

Jump to: Background | Easing Regulations on Issuance, Extension, and Certification of Work Permits for Foreign Labour in Vietnam | Mobility of Foreign Labour among Provinces Is Allowed without Requirement of a New Work Permit | Mobility of Foreign Labour among Provinces Is Allowed without Requirement of a New Work Permit | Ordering Enhanced Guidance on Qualification for Foreign Teachers | Temporary Suspension of Unnecessary Audits

On 9 September 2021, the Vietnamese government issued Resolution No. 105/NQ-CP (“Resolution 105”) on supporting enterprises, co-operatives, and business households in the context of the COVID-19 pandemic.  Resolution 105, which is effective on the same date, gives specific instructions from the government to various ministries on production, work permits, vaccination passports, and financial support to businesses.

As part of Resolution 105, some notable instructions relate to labour and foreign experts with the aim to give flexibility in respect of the issuance of work permits enabling mobility of labour from overseas to Vietnam as well as among the country’s provinces.

Among some of the conveniences and benefits introduced under Resolution 105, given the instructions, the supporting documents required to back up a work permit application have been made more flexible.  The competent authority should now be open for work permit applications for those whose qualification is not relevant to their experience and for those who have worked long-term in Vietnam and can now provide previous work permits as evidence of work experience. 

Also, with Resolution 105, mobility will be enhanced within Vietnam for foreign workers.  Foreign workers who have been granted work permits, as long as they are still valid, may relocate for work in another province or city for a period not exceeding six months without having to re-apply for a work permit.  This should help reduce administrative burdens and delays around foreign workers moving from one location to another within Vietnam.

Many businesses in Vietnam have been severely affected during the COVID-19 pandemic with a large number of enterprises, business households, and co-operatives having temporarily suspended their operations, dissolved, or gone bankrupt.  Supportive measures from the government are essential to aid their recovery and development.

Decree No.152/2020/ND-CP¹,which was issued in February 2021, has regulated the recruitment and management of foreign labour in Vietnam.  (For prior coverage, see GMS Flash Alert 2021-019, 13 January 2021.)  It has come under criticism for the changes it introduced in terms of the requirements around qualifying as a foreign expert/technician.  The business community and foreign labour have expressed their concerns over its inflexibility with regards to supporting documents evidencing suitable experience and education background of foreign nationals who wish to obtain a work permit in Vietnam; they have been calling for the Decree’s amendment to align Vietnam’s rules more with international standards and practices.

Taking these concerns into account, the new Resolution 105 aims to regulate certain changes that support foreign labour’s ability to work in – and move around in – Vietnam.

The Ministry of Labour, War Invalids and Social Affairs (“MOLISA”) has been asked to instruct provincial competent authorities to relax some conditions on the issuance, extension, and certification of work permits for foreign labourers in Vietnam, namely:

• The provisions within Point a, Clause 3, Article 3 of Decree 152 shall be implemented as follows: Having a university degree or above or an equivalent and having at least three years of work experience relevant to the position that the foreign worker is expected to undertake in Vietnam.  (In this regard, the degree is no longer connected to the job position that the foreign labourer will undertake in Vietnam as regulated in Decree 152.)
• The provisions within Point a, Clause 6, Article 3 of Decree 152 shall be implemented as follows: Having been trained in a technical or other specialised discipline for at least one year and having at least three years of work experience relevant to the position that the foreign worker is expected to undertake in Vietnam.  (As such, the training field does not have to relate to the role or relevant experience as regulated in Decree 152.)
• The provisions within Point b, Clause 4, Article 9 of Decree 152 shall be implemented as follows: Documents affirming experts and technical workers as prescribed in Clauses 3 and 6, Article 3 of this Decree are: Diploma, certificate, confirmation letter; a written certification from an agency, organisation, or enterprise in a foreign country about the number of years of experience of the expert, technical worker; or a previously issued work permit to prove the experience.  (Therefore, previously issued work permits are now accepted as documentation affirming the experience of an expert or technical worker while they were not recognized as regulated in Decree 152.)

There are still areas of concern including:

1.     Whether a work permit issued in one province will be accepted in another province;

2.     For those who have been working in Vietnam for a long time and are being promoted to a higher level, will the old work permit be sufficient proof of experience?

For this matter, it is recommended that businesses should consult with the local labour authority before applying for a new work permit for their foreign labourers.

Also, Resolution 105 allows foreign workers who have been granted work permits that are still valid to be sent, dispatched, or seconded to work in another province or city for a period not exceeding six months without having to re-apply for a work permit.  The employer must report to the labour management agency where the foreign workers have come to work.

Decree 152 is silent on the requirements concerning a foreign labourer who is granted a work permit from a provincial labour authority and is relocated to work on a project in another province for a period of time.  Due to this, many businesses and foreign labourers have been challenged by provincial labour authorities at their new location as a result of the inconsistency between the working place in the work-permit and the foreign labourer’s actual working place, and sometimes penalised for the inconsistencies.  With the above instruction, businesses now can mobilise their foreign workers to work in provinces different from the provinces where their work permits are issued provided that the businesses notify in writing to the provincial labour authority where the foreign workers have come to work. 

MOLISA will provide further guidance on which documents/information should be reported. Businesses are advised to submit the notification in advance of the move to avoid challenges from the provincial labour authorities.

Up to 27 August 2021, Vietnam recognised vaccine certificates and certifications of recovery from COVID-19 for 61 countries and territories.  With Resolution 105, the Ministry of Foreign Affairs (“MOFA”) is requested to speed up the negotiations with other countries and territories for mutual agreements on recognition of a “vaccine passport” in order to help open the economy at a suitable time and, in a timely manner, report back to the prime minister.

Currently, foreign labourers who enter to Vietnam to work will be subject to compulsory quarantine of 7 or 14 days upon their arrival in Vietnam:

• Quarantine scheme of seven days shall apply for those who:
  • tested negative for COVID-19, using the RT-PCR method, within 72 hours before travelling to Vietnam; and
  • have a certificate of completion of a COVID-19 vaccination, where the last dose is received within the period of 14 days to 12 months before travelling to Vietnam; or
  • tested positive for COVID-19 within six months before travelling to Vietnam and have recovered from the disease. 
• Quarantine scheme of 14 days shall apply for those who cannot provide evidence as above.

Also, to support the quarantine scheme of seven days, the MOFA of Vietnam regulated that:

• if the COVID-19 vaccination certificate/Certificate of recovery from COVID-19 has not been officially presented at the embassy of Vietnam in the related foreign country, the documents shall be notarised and made legal in order to be used in Vietnam for the seven-days quarantine scheme;
• if the COVID-19 vaccination certificate/Certificate of recovery from COVID-19 has been officially recognised by MOFA, the expatriate will bring the original certificate to Vietnam and the original documents will be checked by the competent authority in Vietnam.

Foreign nationals who intend to travel to Vietnam should arrange to have the last dose of COVID-19 vaccine no later than 14 days before travelling to undergo the short quarantine.  Also, they can check if their COVID-19 vaccination certificate is recognised in Vietnam by searching the website of the MOFA (in Vietnamese) by clicking here.

In Resolution 105, the Ministry of Education and Training is required to co-operate with MOLISA to provide further guidance on qualifications for foreign teachers lecturing at short-term training centres, high-schools, vocational training centres, and universities in line with international practice and in accordance with Vietnamese laws on education, university education, and vocational education.

Regulations in Decree 152 on qualification requirements for foreign teachers are restrictive for such teachers in terms of their obtaining a valid work permit to work legally in Vietnam.  The government is requesting a reconsideration of the required qualifications for foreign teachers; it is expected this may help expand the number of teachers who can apply for a work permit as a foreign teacher in Vietnam.  Educational organisations in Vietnam engaging foreign teachers should wait for further guidance from MOLISA.

Resolution 105 also requests that the relevant authorities temporarily suspend unnecessary audits at enterprises, business households, and co-operatives that were planned in 2021.  The audits, according to the government, can be carried out later at a suitable time when the COVID-19 pandemic is under control.

Previously under instructions from MOLISA, many provincial People Committees implemented certain measures to re-enforce the management of foreign workers working in Vietnam, including carrying out labour audits on foreign labourers working in their provinces.  Due to the COVID-19 pandemic as well as the changes in the labour regulations, many foreign workers could not apply/re-new their work permits on-time, which resulted in challenges and the application of penalties during the labour audits. (For prior coverage, see the following issues of GMS Flash Alert: 2021-019 (13 January 2021)) With Resolution 105, it is expected that fewer labour audits will be carried out during the year.  However, businesses are still advised to review their current foreign labour compliance status in advance of any potential future audit, given that foreign labour management is still an area of focus of the Vietnamese competent authority in the long-term.

1  Decree No.152/2020/ND-CP dated 30/12/2020 on foreign workers working in Vietnam and recruitment and management of Vietnamese workers working for foreign employers in Vietnam.  (For prior coverage, see GMS Flash Alert 2021-019, 13 January 2021.)

*  Please note that KPMG LLP (U.S.) does not provide any immigration services.  However, KPMG Law LLP in Canada can assist clients with U.S. immigration matters.   

The information contained in this newsletter was submitted by the KPMG International member firm in Vietnam.