Draft decree hard on illegal labour

Lack of a valid work permit remains grounds for a foreign worker’s deportation, Photo: Le Toan

The Ministry of Labour, Invalids, and Social Affairs (MoLISA) last week issued a draft governmental decree on sanctions in the sectors of labour and social insurance. Under the draft’s Article 30, a series of punishments are imposed on foreigners working in Vietnam, as well as their employers, if found to violate labour-related regulations.

Specifically, foreigners working in Vietnam will be deported from Vietnam if they work without a work permit or with an outdated work permit, except for cases in which they are exempt from having a work permit by the country’s authorised agencies.

In fact, under the current regulations, the same punishment is also stipulated, and there is no reason for the punishment to be removed under this draft, because such a violation is considered to be very serious, affecting the Vietnamese labour environment, according to MoLISA.

The draft, expected to take effect this year, also stipulates that employers will face a fine of somewhere between VND5-VND10 million ($227-454) if they fail to or insufficiently report their usage of foreign employees to authorised agencies. Under the current regulations, the fine is only VND1 million-VND2 million ($45-$90) for this type of violation.

A new feature in the draft decree states that if an employer uses from one to 10 foreign employees who have no work permit or an outdated work permit, they will earn a fine of VND30-VND45 million ($1,363-2,045).

The more foreign employees of the type are used, the higher the fines for the employer will increase, such as VND45-VND60 million ($1,363-2,727) for 11-20 people, and VND60-VND75 million ($2,727-3,409) for 21 people and more. What is more, the employer could be suspended from operations for one to three months if the violation is more serious.

Tran Trong Binh, a senior attorney from French Hanoi-based international law firm Audier and Partners LLC, told VIR with his own opinions that it is quite necessary to maintain the sanction of deporting violators from Vietnam.

“This is aimed to enhance the strictness of Vietnam’s law,” Binh said. “I think all the sanctions are necessary, as they will help enhance the awareness of foreign labourers in Vietnam and their employers about respect towards the country’s law.

“Local authorised agencies have discovered many cases related to foreign workers having no work permit in Vietnam over the past few years,” continued.

In November 2017, the Department of Labour, Invalids, and Social Affairs of the south-central province of Binh Thuan reported to the provincial People’s Committee that, following examinations of the usage of workers at the Vinh Tan power centre in Tuy Phong district, the department discovered that more than 500 foreign workers were working without any work permit at the centre’s Vinh Tan 1 plant, constructed by Chinese contractors, and Vinh Tan 4, built by Japanese and South Korean contractors.

Nguyen Lan Phuong, partner at the law firm Baker and McKenzie Vietnam, told VIR that she also agreed with the fines for violators set out in the draft decree.

“In general, it is quite necessary to impose fines on foreigners working in Vietnam found to be violating the country’s labour laws. This is aimed to ensure the enforcement of the state management over labour issues and also to ensure labourers’ interests,” Phuong said.

“However, drafters should only apply supplementary punishment in the case of serious violations – for example for 20 people upward. This is aimed to limit negative impacts on enterprises’ activities,” she suggested.