Some major foreign business
societies continues to voice their concern over cumbersome procedures for
employing foreigners in Vietnam despite further clarification having been in
place.
An
expert at the Ministry of Labour, Invalids and Social Affairs (MoLISA) said
Circular 31/2011/TT-BLDTBXH implementing Decree 46/2011/ND-CP and Decree
34/2008/ND-CP “had basically met requirements of foreigners working in
Vietnam”.
The
expert referred to two provisions of Decree 46 “criticised the most by foreign
business associations in Vietnam” which had been clarified with Circular 31, to
take effect from December 18, 2011.
The
first guidance involves Decree 46’s provision on the advertisement of
recruitment of foreigners in local newspapers and submitting the advertisement
as part of the application document for hiring the foreigners.
Under
Circular 31, if the employer already advertised the recruitment on two issues
of national and local newspapers without results, in the next 36 months it
could conduct the employment without having to advertise again.
The
second guidance involves Decree 46’s provision on the extension of a foreign
employee’s work permit. Under the Decree, the employer must enter into an
apprenticeship contract with a Vietnamese employee expected to substitute the
relevant foreign employee.
However,
Circular 31 provided that if an employer does not have such a training contract
with a Vietnamese employee, it could show a document proving that it has
implemented a programme or plan to train Vietnamese to substitute the relevant
foreign employee.
The
MoLISA expert noted that Decree 46 was only applicable for foreigners with
labour contracts in Vietnam, “not all types of foreigners working in the
country”. According to the MoLISA statistics nearly 78,000 foreigners are
working in Vietnam with roughly one thid having a labour contract.
Baker&McKenzie
Vietnam Limited managing director Frederick R.
Burker
said Decree 46 and Circular 31 “include a lot of stumbling-blocks”, underlining
the requirement of a traineeship contract with Vietnamese for every employer
who wanted to extend the work permit for their foreign employees.
“In
fact, some foreign employees cannot be replaced by Vietnamese, so the contract
is unnecessary and impractical,” he said. “The regulations need to be further
improved and the government needs to take them very seriously, as they would be
an obstruction to Vietnam’s further attraction of foreign investment,” Burker
said.
Meanwhile,
the 760-member European Chamber of Commerce in Vietnam (EuroCham), which
represents the Vietnam-based commercial and industrial chambers of France,
Canada, Germany, Switzerland, Britain and Norway, said the requirement of an
apprenticeship contract with a Vietnamese employee would mean a big roadblock
for foreigners working in Vietnam.
“We
hope that in practice, the alternative [documentary proof of training programme
for Vietnamese employee] is applied, and no training contract will be
required.,” said EuroCham Human Resources and Training Committee chairwoman
Nicola Connolly.
“However,
some of our members have already reported that despite the alternative wording
in Circular 31, they are being asked for an individual training contract with a
named Vietnamese person to replace the foreigner.
“We
are afraid this puts a lot of administrative pressures and burdens in the way,
especially for small- and medium enterprises which do not have training
programmes in place and no professional resources to deal with additional
administrative requirements. It remains unclear under Circular 31 if a training
contract or only a general training programme is required,” said Connolly.
EuroCham
said the training contract requirement was unnecessary as its members and other
foreign businesses were consistently promoting their Vietnamese staff and
“localising” without any law requiring them to do so.
“The
foreign business community are concerned that the new Decree 46 and the
Circular 31 will discourage investment in Viet.
Thanh
Tung | vir.com.vn
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