Policy and recommendations on admisistrative management of foreign labor Bases for capability building of domestic labor

x Title of Research : POLICY AND RECOMMENDATIONS ON ADMINISTRATIVE MANAGEMENT OF FOREIGN LABOR: BASES FOR CAPABILITY BUILDING OF DOMESTIC LABOR Researcher : NGUYEN THI TUYET VAN HELEN

i

CAPABILITY BUILDING OF DOMESTIC LABOR

_

A DISSERTATION Presented to the Faculty of the Graduate School Southern Luzon State University, Lucban, Quezon, Philippines

in Collaboration with Thai Nguyen University, Socialist Republic of Vietnam

ii

The Dissertation of

NGUYEN THI TUYET VAN

entitled

POLICY AND RECOMMENDATIONS ON ADMINISTRATIVE

MANAGEMENT OF FOREIGN LABOR: BASES FOR

CAPABILITY BUILDING OF DOMESTIC LABOR

Submitted in Partial Fulfilment of the Requirements for the Degree

DOCTOR OF BUSINESS ADMINISTRATION

A program offered by Southern Luzon State University,

Republic of the Philippines in collaboration with

Thai Nguyen University, Socialist Republic of Vietnam

has been approved by Oral Examination Committee

WALBERTO A MACARAAN, EdD CONRADO L ABRAHAM, PhD

MELCHOR MELO O PLACINO, PhD JOANNA PAULA A ELLAGA, DBA

CECILIA N GASCON, PhD

Chairman

DINH THI NGOC LAN, PhD APOLONIA A ESPINOSA, PhD

Accepted in Partial Fulfilment of the Requirements for the Degree

Doctor of Business Administration

Date Vice President for Academic Affairs

iii

This is to certify that the dissertation entitled “Policy and Recommendations

on Administrative Management of Foreign Labor: Bases for Capability Building of Domestic Labor”, orally defended/ presented under the DBA Program jointly offered

by Southern Luzon State University of the Republic of the Philippines and Thai Nguyen University of the Socialist Republic of Vietnam, embodies the result of original and scholarly work carried out by the undersigned

This dissertation does not contain words or ideas taken from published sources or written works by other persons which have been accepted as basis for the award of any degree from other higher education institutions, except where proper referencing and acknowledgement were made

Nguyen Thi Tuyet Van (Helen)

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I would like to express our most sincere thanks to the Management Board of the Southern Luzon State University, Thai Nguyen University, professors who have helped me facilitate the learning process all throughout

I would like to express sincerest gratitude to Associate Professor Dr Dinh Ngoc Lan, the enthusiastic teacher who have dedicated guidance, encouragement, and time and exchange ideas for me during this research

I would like to express my sincere thanks to the Department of Employment - Ministry of Labor - Invalids and Social Affairs, the Department

of Labor - Invalids and Social Affairs, Hanoi, Lang Son, Ninh Binh, Quang Ninh, Phu Tho, Nghe An, Thanh Hoa, Quang Nam, Da Nang, Ba Ria - Vung Tau, Binh Duong, Ho Chi Minh city and Dong Nai that helped me in accomplishing my research material

I sincerely thank the Board of the University of Labor and Social affair (ulsa), colleagues in ULSA, classmates DBA1 who enthusiastically helped and shared experiences to complete the dissertation

Finally, I would like to share this gift to the hearts of my family who has passed enthusiasm and encouragement to complete my dissertation

Nguyen Thi Tuyet Van

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To my family and friends This piece of work is for you

NTV

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PAGE

TITLE PAGE ……… i

APPROVAL SHEET ……… ii

CERTIFICATE OF ORIGINALITY ……… iii

ACKNOWLEDGEMENT ……… iv

DEDICATION ……… v

TABLE OF CONTENTS ……… vi

LIST OF TABLES ……… viii

LIST OF FIGURES ……… ix

ABSTRACT ……… x

CHAPTER I INTRODUCTION ……… 1

Background of the Study ……… 3

Statement of the Problem ……… 7

Objectives of the Study ……… 8

Significance of the Study ……… 9

Scope and Limitations of the Study ……… 9

Definition of Terms ……… 10

II REVIEW OF LITERATURE ……… 14

Theoretical and Conceptual Framework ……… 19

III METHODOLOGY ……… 56

Population, Sample and Sampling Technique ………… 56

Research Instrument ……… 57

Data Gathering Procedure ……… 58

Statistical Treatment ……… …….…… 58

IV RESULTS AND DISCUSSIONS ……… 60

4.1 Characteristics and understanding of foreign labors

on the policy, legal documents relating to the

vii

4.2 The granting of labor license for foreigners working

under labor contracts ……… 65

4.3 Management of foreign labors in Vietnam ………… 67

Draft of an Act on Foreign Labors ……… 73

V SUMMARY OF FINDINGS, CONCLUSIONS AND RECOMMENDATIONS Summary of Findings ……… 95

Conclusions & Recommendations ……… 99

REFERENCES …….……… ……… ……… 104

APPENDICES ……… 109

Appendix A - Questionnaire ……… 110

CURRICULUM VITAE ……… 124

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1.1 The Cities/Provinces of Vietnam Using Foreign Labors … 2 2.1 Number of Foreign Labors in Vietnam ……… 52 2.2 Qualifications of Foreign Labors ……… 52 3.1 Distribution of the Questionnaire for Foreign Workers in the

4.1 Some General Information About Foreign Labors in

4.2 The Policy, Legal Documents of Vietnam that Foreign

4.3 The Information Channels Convey Legal Documents to

4.5 Period of 24 Months for Labor License ……… 65 4.6 Necessity of Promulgating the Act on Foreign Labors …… 66 4.7 Foreign Labors is Needed to Manage Information ………… 67 4.8 The Information of Foreign Labors to Register ……… 68

4.9 Appropriate Forms to Administrative Management of

4.10 The Difficulties in Implementing of the Recruitment

4.11 Necessity Additional Provisions on Foreign Labor ………… 71

4.12 Additional Provisions of the Law on of the Place and Work

which is not Allowed to Use of Foreign Labors ……… 72 4.13 The Necessity to Promulgate the Act on Foreign Labor … 72

ix

1 Theoretical and Conceptual Framework ……… 20

2 The Highest Level of Technical Expertise Gained ………… 62

x

Title of Research : POLICY AND RECOMMENDATIONS ON

ADMINISTRATIVE MANAGEMENT OF FOREIGN LABOR: BASES FOR CAPABILITY BUILDING OF DOMESTIC LABOR

Researcher : NGUYEN THI TUYET VAN (HELEN)

Degree Conferred : DOCTOR OF BUSINESS ADMINISTRATION

Name and Address

of Institution

: Southern Luzon State University, Lucban, Quezon, Philippines and Thai Nguyen University, Socialist Republic of Vietnam

Year Written : 2013

In this dissertation, the author analyzed the policies/ legal regulations

on the management of foreign labours in Vietnam to find out the reasons why Vietnam enterprises have to employ foreign labours Through this research, the author listed systematically the legal documents on administrative management of Vietnam on managing foreign labours This research used both primary data and secondary data The respondents in this research were government labor officers of Labour Management Authority, the employers and foreign labours

To have more strategic policies/legal regulations on managing foreign workers in Vietnam, as well as to improve and enhance the qualification of local labor, the author proposed series of recommendations: Vietnam should (1) draft a law on foreign Labor; (2) inherit the reasonable current advanced regulations on managing foreign labours; (3) disseminate new legal regulations to comply with present situation; and (4) continuously recruit foreign labours who have professional qualifications and high skills, and at the

xi them the technology and advance scientific management

Chapter I

INTRODUCTION

In the context of international integration today, labors from a country to work for other countries are indispensable objective Vietnam, as well as many other countries around the world, continuously hires foreign laborers They implement the open-door policy to attract foreign investment into Vietnam and work for the economic development in the country This encourages foreigners to enter Vietnam and to work for enterprises and organizations of all economic sectors

In fact, there are many enterprises and organizations wishing to recruit foreign laborers as part of their enterprises They render services to Vietnam particularly in the business organizations and services under the State administrative agencies, armed forces, Assembly Office of Foreign and branches of foreign companies, representative offices of economic organization, trade, finance, banking, insurance, science and technology, culture, sports, education, health, the international business units of the state project offices, and foreign law firms licensed to operate in Vietnam and the cooperative Presence of foreign labors in Vietnam are engaged in professional fields such as industry, services, trade, construction and assembly; information technology, education; produce cartoon graphic and physical education, sports, arts In the 63 provinces/cities of Vietnam, there are 47 provinces /cities using foreign labor

Hue

47 Binh Thuan

The use of foreign labors in enterprises and organizations in Vietnam has certain positive effects Foreign labors are qualified and highly technical, creating conditions for enterprises and organizations in Vietnam to implement and develop the sectors requiring high technology Also, the use of foreign labors will create conditions for employees in Vietnam to study and improve the professional qualifications for fast engagement in new techniques and

new technologies while working on their behavior and attitude towards advanced work Furthermore, the use of foreign labors will help improve productivity, labor quality, business performance and reputation of the enterprise or organization

However, there are negative effects on having foreign labors in Vietnam such as creating heavy pressure with the creation of jobs for domestic labor despite the high unemployment rate It may also reveals secrets on the use of certain technology for some fields Use of foreign labors will also mean that the enterprises will have higher costs which may partly affect production costs especially when using a large percentage of foreign labors This will further cause difficulty in administrative management and rise problems on social order and security The phenomenon of foreign laborers working illegally in our country tends to increase despite the control of the state management agencies This fact poses serious questions about the effectiveness of management on the use of foreign labor in organizations and enterprises and set urgency for the state management agency to increase and strengthen the inspection and control

Background of the Study

Currently, administrative management of foreign labors is a hot subject

in Vietnam This problem has attracted the attention not only of the State management agencies, academics, journalists but also of other objects As a lecturer at the University of Labor and Social affair under the Ministry of Labor

- Invalids and Social Affairs of Vietnam this study on the “Policy and Recommendations on Administrative Management of Foreign Labor: Bases

for Capability Building of Domestic Labor” is needed to play a part in the

improvement of the administrative management of foreign labors and also be directly adopted to teaching

In recent years, legislation to adjust the field of administrative management of foreign labors in Vietnam has been focused In that system, the main text is the Labor Code and documents guiding the implementation, Ordinance on entry, exit, residence and other guiding documents

The Labor Code of the Republic of Socialist Vietnam in 1994 (amended and supplemented in 2002, 2006 and 2007) was a major step that marked the development of the labor market and the labor relations in Vietnam In labor law system of Vietnamese, the Labor Code position is important because it regulates a large field, with far-reaching impact on the entire social life, all economic sectors and all enterprises, institutions, manufacturing facilities, business and all employees

In this Code, the regulations on management of foreign labors are mentioned in Article 131, Article 132 and 133 Accordingly, foreigners working

in Vietnam must comply with labor laws of Vietnam and Vietnam's labor law protection For jobs requiring highly technical or managerial jobs that Vietnam's labor has not met, the enterprise may hire a foreign labor rate for certain, period but must have programs and plans training workers to Vietnam

to do the job early and replace them as prescribed Foreigners working for three months or more for enterprises, organizations and individuals in Vietnam must have work permits issued by the State management of labor in the provinces and cities under central level; duration of work permits

according to the duration of labor contracts, but not exceeding 36 months and may be renewed at the request of the employer Foreigners working in Vietnam are entitled to the rights and fulfill their obligations under the law of Vietnam, except where international agreements which the socialist Republic

of Vietnam has signed or acceded to contain provisions

To guide the implementation of the Labor Code, the State has issued some guidelines as follows:

- Decree No 34/2008/ND-CP dated 25th of March, 2008 regulations

on recruitment and management of foreign labor in Vietnam

- Decree No 46/2011/ND-CP dated 17th of Jun, 2011 amending and supplementing a number of articles of regulations on Decree No 34/2008/ND-CP of 25th of March, 2008 regulations on recruitment and management of foreign labor in Vietnam

- Circular No 31/2011/TT-BLDTBXH of the Ministry of Labor, Invalids and Social Affairs guiding the implementation of some articles of Decree No 34/2008/ND-CP dated 25th of March, 2008 of the Government and Decree No 46/2011/ND-CP of 17th of Jun, 2011 amending and supplementing a number of articles of regulations on Decree No 34/2008/ND-CP dated 25th of March, 2008 regulations

on recruitment and management of foreign labor in Vietnam

On the 1st of May, 2013, the new Labor Code of Vietnam officially took effect and the management of foreign labors will be carried out according to the provisions of Section 3, Chapter XI of this Code

For the administrative management of foreign labors working in Vietnam under the contract labor, Vietnamese law shall provide a procedure that is applied to foreign labors in the Public Security department such as presenting their visas, for temporary residence after being granted a work permit, work permit renewal or granting of work permits

In order to guide the Ordinance on Entry, Exit, Residence, State of Vietnam has issued two documents:

- Decree No 21/2001/ND-CP dated 28th of May, 2001 of the Government detailing the implementation of the Ordinance on entry, exit and residence of foreigners in Vietnam

- Joint Circular No 04/2002/TTLT/BCA-BNG dated 29th of January,

2012 of the Ministry of Public Security and Ministry of Foreign Affairs guiding the implementation of Decree No 21/2001/ND - CP dated 28th of May, 2001 of the detailing the implementation of the Ordinance on entry, exit and residence of foreigners in Vietnam

Vietnamese Labor Code in 2012 of Parliamentary Socialist Republic of Vietnam was ratified on the 18th of June, 2012 Regulations for foreign laborers working in Vietnam are given in Chapter XI of this Code

Accordingly, the provisions referred to in Chapter XI the labor conditions of foreign citizens working in Vietnam, work permits for workers foreign citizens working in Vietnam, term of the work permit, cases work permits expire and grant and revoke work permits At the same time, the Labor Code of Vietnam regulates the foreign citizens working in Vietnam to

comply with the Vietnamese labor law, international treaties to which Vietnam

is a member and Vietnamese law male protection

Overall, legislative activities on the management of foreign labors working in Vietnam has made a fundamental legal basis to implement state management for this type of labor, while ensuring rights of foreign labors and the obligations that they have made to the Vietnamese country

Statement of the Problem

At present, the government administration of foreign workers in Vietnam has achieved some remarkable results The government has enacted some of laws and regulations to apply on foreign workers Also, the Government has focused on monitoring for foreign workers In July 2012, there were 77,0871 foreign workers in Vietnam These workers has contributed significantly to the deficiency of qualified and high technical expertise workers in Vietnam

Besides the above results in Vietnam, however, the the government administration of foreign workers are still facing many potential problems There is no separate legal system for foreign workers yet Some current legal regulation was not reasonable resulting to the confusion in application It creates unharmonious relationship between foreign employers and the workforce training initiative in the country That is the reason why the author

chooses the topic

1

Report labor employment survey, the first nine month of 2012 , General Statistics Office of Vietnam (http://www.gso.gov.vn

In this dissertation, the author focused on the system of legal documents of Vietnam on the government administration for foreign workers

To achieve the main objective of the study, the author would have to answer the following questions:

1 What legal documents are stipulating government administration of foreign workers in Vietnam?

2 Which policies /legal regulations are reasonable considering to foreign labor management?

3 What are the main reasons leading to employment of foreign worker situation in Vietnamese enterprises?

Objectives of the Study

In general, this dissertation study policies/regulations and make recommendations on administrative management of foreign labor

Specifically, this study has the following objectives:

1 Have a list of the legal documents on management of foreign workers in Vietnam

2 Analysis of policies / legal regulations on the management of foreign labor

3 Indicate the main reasons that leads to employment of foreign workers in Vietnamese enterprises

4 Propose a draft Law on Foreign labor

Significance of the Study

The research topic of this dissertation will be of great benefit to the following:

For the state, the results of the dissertation will serve as the basis of

the policy makers, and agencies of state management of foreign labors to review and consider the issuance of policies, law in the future that may contribute to an effective administrative management of foreign labors in enterprises and organizations in Vietnam

For employers and foreign labors, the dissertation will contribute to

improve the rights and obligations of the two subjects in the labor relation In particular, the rights and obligations of foreign labor will be completed towards harmonization with domestic labor for useful of foreign labor and building capacity for domestic labor

For researchers, the results of the dissertation can serve as a

reference in research, material in teaching concerning the administrative management of foreign labor particularly in higher education and postgraduate studies, and use this as documentation study for staff working in administrative management agencies It will also contribute in providing justifications regarding the civil servants working in state management on foreign labors

Scope and Limitations of the Study

In general, this dissertation studied the policies/regulations and make recommendations on administrative management of foreign labor that will

serve as bases for capability building of domestic labor It focused on describing the policy/regulation of Vietnam on administrative management of foreign labor, analyzing of the main reasons for Vietnam to hire foreign workers, identifying the reasonable policy/regulation that should be improved for an effective administrative management of foreign labor, and recommending improvement of the administrative management of foreign labor The research was conducted in 13 provinces of the 63 provinces namely: Hanoi, Lang Son, Ninh Binh, Quang Ninh, Phu Tho, Nghe An, Thanh Hoa, Quang Nam , Da Nang, Ba Ria – Vung Tau, Binh Duong, Ho Chi Minh city and Dong Nai Vietnamese laborers who work overseas as contract workers and foreign workers illegally working in Vietnam are not included in this study

Definition of Terms

For clarity and better understanding, the terms are interpreted as follows:

Administrative Management of Foreign Labor is a system policy, legal and

institutional mechanisms for agencies to manage of state and control its impact on the relationship and operation of foreign workforce to most effective use of labor resources, to achieve the goals of economic

- social development the country’s set in each period of development Employee means a person who is at least 15 years of age, has the ability to

work under an employment contract, is paid and is managed and

controlled by the employer

Employer means an enterprise, an egency, an organization, a cooperative, a

household, or an individual who hires or employs a worker or workers

on the basis of an employment contract In the case of an individual,

that individual must have full capacity of civil acts

Employment refers to all work activities to generate income prohibited by

law

Enterprises and organizations are groups using foreign operating under the

Enterprise Law, Investment Law, foreign contractors contractors in Vietnam representative office, branch of economic organization, trade, finance, banking, insurance, science and technology, culture, sports, education, medical political organizations – social, political and social organizations – professional organizations, social organizations, social organizations – professional organizations non-governmental organizations; the business units of the State, medical facilities, cultural, educational, sports agency authorized to permit the up; project office of foreign or international in Vietnam, the executive offices of foreign partners in business cooperation contracts in Vietnam; the practicing organization in Vietnam under the provisions of the law of Vietnam Cooperatives, unions of cooperatives established and

operating under the Cooperative Law

Foreign Expert is a person who has expertise, high technical service,

research equipment, techniques or management (including qualified engineers or engineering equivalent or more; technology the traditional professions) and a 5 (five) years or more experience in the profession,

operating in the manufacturing, sales and management jobs

Foreign labor is a person who is not a national of Vietnam, at least 18 years

of age, whose health is consistent with job requirements; as a

manager, executive or experts; no criminal records on guilty of violating national security; not being prosecuted for criminal liability, are criminal penalties as prescribed by the law of Vietnam and foreign laws, having

a work permit issued by the State competent authorities of Vietnam, except for cases that do not require a work permit in accordance with

the laws of Vietnam

Foreigners are persons who not considered Vietnamese under the Law on

Nationality of Vietnam

Labor Management is an active management of labor people in a certain

organization, which can manage all subjects affecting management aims to create common interests of the organization

Management is the process of getting activities completed efficiently and

effectively with and through other people

Management of foreign labors is the management of foreign laborers in a

given organization, including managers (competent authorities) subject

to influence management (workers the foreigners working in enterprises and organizations in Vietnam) aims to create common interestsof the organization

Managers, executives are foreign labors directly managing foreign

enterprises, have established a commercial presence in Vietnam, only general supervision or direction from the board or the neck east of the enterprise or the equivalent; enterprise management involves directing enterprises or departments or units of commercial presence, monitoring and controlling the work of the professional technical staff, management or supervisory staff, have the right to hire and fire or

recommend hiring, firing or other personnel activities Managers, executives are not directly performing tasks related to the provision of

services of commercial presence

Technical workers are foreign labors who have specialized training

techniques over a period of 1 year or more, with a diploma or certificate

and worked from 3years or more specialized technical training

Monograph book "Labor migration in International law and Vietnamese law," the authors Nguyen Dang Dung, Pham Hong Thai, Vu Cong Giao – Hanoi National University, 2011 This book brings together a number of articles, research on issues of international labor migration in the context of globalization To establish a legal framework for international justice international labor migration and protection of rights and legitimate interests of migrant workers International Labor Organization has issued several agreements and documents, including most importantly the United Nation

about Convention on the rights of migrant workers and members of their family and both Convention No 97 and No 143 of the International Labor Organization The authors of this book mention the following:

- Labor migration: A global trend, a global effort;

- International legal framework on protection of migrant workers;

- Protection of migrant workers in Southeast Asia;

- Export of labor, a number of policy issues and practices;

- The study evaluates the economic impact - social international migration in Vietnam

In this book, the authors studied the migrant workers on a large scale (global, Southeast Asia) Labor export is an important content of this book Migrant workers residing in Vietnam are studied from the angle of impact assessment - economic society; the authors do not go deep study of foreign laborers working in Vietnam enterprises and organizations in Vietnam South

+ The article "Do not use foreign labor, as labor Vietnam can meet" the author Hai Vy, 2010 (Vneconomy)

+ The article "Nearly 57,000 foreign laborers working in Vietnam" by Vu Quynh, 2010 (Vneconomy)

+ The article "Do not hire enough workers in Vietnam, hired foreign labors" by Vu Quynh, 2011 (Vneconomy)

+ The article "Must report on foreign labors on periodically" by Vu Quynh, 2011 (Vneconomy)

+ The article "Who manages foreign labors in Vietnam?" By Hieu Dung,

2012 (Vneconomy)

The author of the article above is posted on the new Vneconomy is the investigative reporting of small nature, but nature is not the depth of a comprehensive study on the issue of foreign labor management work in enterprises and organizations in Vietnam

The Scientific theme "Movement of Natural Persons in the Process of International Economic Integration" by Master Nguyen Manh Cuong chairman,

in 2005

In this study, the authors refers to the general problem of Movement of Natural Persons in the process of international economic integration as (GATS four modes of trade and services, contents of Movement of Natural Persons; discussions and negotiations on Movement of Natural Persons of the world and the region, Vietnam's commitments on Movement of Natural Persons in the integration) and the problems of human move set for Vietnam

in the process of international economic integration

In this research, scope of not addressed in depth study of foreign laborers working in enterprises and organizations in Vietnam Because Movement of Natural Persons concern with addressed within the scope of the research projects are common to all persons in Vietnam and Vietnam may be moved outside the territory of Vietnam

Scientific theme "Social Insurance for Foreign Labors Working in Vietnam" by Dr Dang Anh Due, 2005

In this research, the authors have given a legal basis and factual basis for the application of social insurance policies of Vietnam for foreign laborers working in Vietnam; oriented perspective on social insurance policy for foreign laborers working in Vietnam and recommendations on the content of social insurance policies for foreign laborers working in Vietnam Thus, in this study, the authors were studying the social insurance aspects of foreign laborers working in Vietnam, not a comprehensive study on other issues related to foreign labors work in Vietnam as a work permit, work and the management body for this type of labor

Scientific theme "State Management for Foreign Labors in Vietnam," by

Dr Phan Huy Duong, 2011

The authors of this scientific theme have generalized the theoretical issues and practical with the contents, as follows:

- Overview of the theoretical issues on the labor market, the labor movement, the role and content of state management for our country in general labor and foreign labors working in Vietnam in particular in the context of globalization and international economic integration

- Analysis of the situation of foreign labors and management experience in several countries, from which to draw lessons for our country today and give the group solution

Report “Improving the Management of Foreign Labors” by Philip Martin, 2004

The purpose of this report is to assist the Thai Government in the development of policies to improve the management of unskilled foreign

labors from Myanmar, Cambodia, and Lao PDR who are employed in Thailand We are grateful to the Ministry of Labor and Social Welfare (MOLSW) for cooperating with the International Labor Organization (ILO) and International Organization for Migration (IOM) to support the study, to the Thailand Development Research Institute (TDRI) and Chulalongkorn and Mahidol Universities for preparing useful case studies, and to the employers, migrants, and others who described the Thai migrant labor system and shared their own experiences of it The report has three major sections:

- A review of the demand for migrants and alternatives to migrants in the context of Thai labor force and labor market trends

- An analysis of efforts to regularize the status of unauthorized migrants

- Suggestions for linking migration management policies with other economic, labor and education policies based on case studies and best practices from other countries

Report “Policy on Irregular Migrants in Malaysia: An Analysis of its Implementation and Effectiveness” by Azizah Kassim and Ragayah Haji Mat Zin, 2011

The report has five chapters The first explains the objective, scope and methodology of research carried out; a conceptual framework; literature review; a brief account of the expansion of foreign population in the country and the policy on irregular migrants and its implementation A socio-economic background of the respondents is given in Chapter 2, while chapter 3

describes and analyzed their inflow patterns elucidating, among others, the purpose of their entry, location of their first landing; routes taken, the role of formal agencies and social networks in making their way into Malaysia, securing jobs and initial adaptation in the country Chapter 4 focuses on irregular migrants who were apprehended and placed in the state run depot prior to deportation It examines their interface with the Malaysian immigration, labor and criminal laws and how policy measures put in place impacted on their lives and work It also provides an assessment of their understanding of Malaysia’s policy measures on irregular migrant workers, their survival strategies in circumventing these measures and the possibility of their return to Malaysia after their deportation Chapter 5 provides an evaluation of the implementation of policy measures on irregular migrants It concludes that, contrary to popular belief, the policy is not a total failure It has

a measure of success to the extent that it decelerated the expansion of irregular migrants to a manageable level and with it their many negative consequences It also offers some proposals to be considered by the government in its attempt to curb the expansion of irregular migrants in the country

Theoretical and Conceptual Framework

Policy is a particular expression of the general political line Based on general politics, political platform of the ruling party that builds the policy

Policy is the foundation to be regulatory law In other words, the law is the result of the institutionalization of policies There can not be the policy of the law (institutionalized), or it may never be legal because it is not turned to

the law of selection when no longer fit the new ideas and change of practice But there will be no legal or non-legal policy than policy In this sense, the policy is the soul, the content of the law, there are legal forms and means of expression of policy when it is recognized, that is issued by the state as a regulatory sequences

Employees are foreign citizens working in Vietnam must comply with Vietnamese labor law, international treaties to which Vietnam is a contracting party other and protected by Vietnamese law Accordingly, the provisions of the labor contract, the recruitment process, duration of work, compensation and labor safety and sanitation work in labor relations will apply the provisions

of the Vietnamese Labor Code

Theoretical and conceptual framework of the dissertation as follows:

Figure 1 Theoretical and Conceptual Framework

Administrative Management

As stated in terms of the dissertation, administrative management of

foreign labor is through a system policy, legal and institutional mechanisms for agencies to manage of state and control its impact on the relationship and operation of workforce foreign to most effective use of labor resources, to achieve the goals of economic - social development the country's set in each period of development

Accordingly, administrative management of foreign labor have some of the characteristics, as follow:

First, the administrative management of foreign labor is actively operating government first conducted based on the power of the state Management process, from the research that policymakers, construction law, construction of apparatus, formation mechanism and management of the impact of policy making, the policy to all employers to use foreign workers and foreign laborers, administrative management of foreign workers are required

to hold a full, timely and accurate information on foreign workers including the amount and structure of foreign labor by nationality, sex, age, qualification and status of foreign employers, including licensing, registration, periodic reports management administration of foreign labor in order to achieve the ultimate goal is to use the most effective source of labor, to achieve the goals

of economic - social development the country's set in each period of development

Second, the object of the administrative management of foreign labor has its own characteristics, related to foreign elements It is the employers

who use foreign workers Therefore, the subject of the administrative management of foreign workers not only labor organization, but also in collaboration with other ministries such as the Ministry of Public Security, Ministry of Health, Ministry of Justice

Third, the goal of the administration of foreign labor is the most efficient use of foreign labor resources in order to achieve the goals of economic – social development the country's set in each period of development In the Vietnam one of the objectives is to strengthen the capacity of domestic labor

Fourth, the administrative management operations of foreign workers was conducted according to the rules and procedures closely In order this to operate high efficiency is not only based on the system of strict law, full management capabilities of Labor agencies at all levels, but also based on research, analysis and objective value of the managed object

Finally, the implementation of the administrative management of foreign workers not only take place in the conditions, the specific context in which the country is influenced by socio-economic situation in the world Therefore, it should be calculated in accordance with the conditions and context, to ensure achieving the ultimate goal, and minimize the negative impact to the immediate social stability and long term

Foreign Labor

As stated in terms of the dissertation, a foreign labor who is not a

national of Vietnam, at least 18 years of age, whose health is consistent with job requirements; as a manager, executive or experts; no criminal records on

guilty of violating national security; not being prosecuted for criminal liability, are criminal penalties as prescribed by the law of Vietnam and foreign laws, having a work permit issued by the State competent authorities of Vietnam, except for cases that do not require a work permit in accordance with the laws

of Vietnam

Thus foreign labor in Vietnam is working employees are not citizens of Vietnam From this concept, we can see, foreign workers have some of these signs: First, the foreign worker nationality other than employees of the host country; Second, they have legal status in accordance with the host country laws; Third, foreign workers at a time dominated by the two legal systems - the host country laws and labor laws where nationality

The employers

The employers are enterprise, agencies, organizations, individuals,

local contractors are hired, employers in labor contracts, an individual must have the capacity for civil acts enough The employer only hired labor are foreign citizens working in the management, executives, professionals and technical workers that labor Vietnam did not meet the needs of production, trade business In addition, the employer before employment is a foreign citizen to work in the territory of Vietnam must explain the need for employers and approved in writing by the state agency competent

Basic contents of the administrative management of foreign laborers working in Vietnam, including:

a Formulate and promulgate legal documents on the administrative management of foreign laborers

Tools administration of foreign labor by law Therefore, the promulgation and implementation of the guiding legal documents is a very important part in this field The legal documents in the field of administration of foreign workers to focus stipulates conditions of foreign workers to work, recruitment procedures, the procedures for granting work permits, re-work permit, the competent authority management, content management, forms handling for illegal foreign workers

Legal documents on administration of foreign labor is the basis for the inspection and supervision of the activities of agencies, organizations and businesses that use foreign labor Administrative process for foreign workers including issuing legal documents on management of foreign workers, implementation, testing to detect deviations for timely adjustments and supplements as needed

For administrative management of foreign labor is an effective system

of legal documents must be issued a uniform and strict adherence to the procedures to ensure coverage of the content key, important accordance with practice

The policy / legislation for administrative management of foreign workers to focus on the issues:

To recruit employees: This is the process of finding, attracting

candidates from various sources to participate in the recruitment of vacant positions in the organization and selection of them meet the requirements workplace

The recruitment of foreign laborers working in Vietnam shall comply with the following process:

Step 1: Determine the demand for foreign labors

Every year, the employer has the responsibility to build demand for labor on the job under the guidance of the Ministry of Labor, Invalids and Social Affairs, which defines each job that Vietnamese labor did not meet the labor and the need to recruit foreign labors; explanatory report in writing to the Department of labor, Invalids and social Affairs

in the province, city where the employer is head office

Department of Labor Invalids and Social Affairs is responsible for the general demand for foreign labors on the job locally and report

to the President of the People's Committees of provinces and cities directly under the Central Governmentconsider and decide the job is using foreign labors

Department of Labor, Invalids and Social Affairs approved in writing by the demand for foreign labors for each user and each job according to the Decision of the Chairman of the Provincial People's Committee, cities directly under the Central Government

If demand changes need to recruit foreign labors, the employer must report additional explanation in writing to the Department of

Labor, Invalids and Social Affairs, the central city where the useremployers headquartered

Department of Labor, Invalids and Social Affairs shall report to the Ministry of Labor, War Invalids and Social Affairs on the need to use foreign labors; acceptance demand for foreign labors and theforeign laborers working in enterprises, agencies and organizations

in the area of management

Step 2: Sending the applying for a work permit

Before a period of at least 20 (twenty) days from the date the foreign labor is expected to begin work at enterprises, agencies and organizations in Vietnam, the employer shall pay directly or sendby mail dossiers for granting work permits to the Department of labor, Invalids and Social Affairs where foreign labors working full-time for the user to work in a province, citycentrally

In case of foreign labors who do not have full-time work for the employer in a province or city directly under the Central Government dossier applying for work permits submitted to the Department of Labor, Invalids Social and where the head office of the employer

Step 3: Labor permit issued

Within 10 (ten) working days calculated from the date of receipt

of a complete application for a work permit valid, Department of Labor, Invalids and Social Affairs shall issue work permits for foreign labors in the form prescribed by the Ministry of Labor, Invalids and Social

Affairs The case of a not work permit shall reply in writing, clearly stating the reasons therefore

Contracting of foreign labor: Worldwide, the labor contract is a regulatory

tradition, the born and development associated with the birth and development of labor law Contract labor is the most important institutions in the labor law, is an indispensable content of labor law In other words, the labor contract is the backbone of the labor law

In order to sign of labor contract Employees are foreign citizens to work

in Vietnam must fully the following conditions:

- Having full civil act capacity;

- Qualifications, skills and health in accordance with job requirements;

- Is not the offender or subject to criminal prosecution under the provisions of Vietnamese law and foreign law

- Work permits by the competent agencies of Vietnam, except for the following cases:

o As limited partners or owners of limited liability companies

o As a Board member of the company's shares

o As the head of the representative office, project of international organizations, non-governmental organizations in Vietnam

o In Vietnam for less than 03 months to carry out the service offering

o In Vietnam for less than 03 months to process failures, technical situations, complex technologies arise which affect or threaten

to affect production and business professionals in Vietnam and the foreign experts currently in Vietnam can not be handled

o Foreign lawyer licensed to practice law in Vietnam in accordance with the Law on Lawyers

o Under the provisions of international treaties to which the Socialist Republic of Vietnam is a member

o Pupils, students studying in Vietnam working in Vietnam, but the employer must notify 07 days with state management agencies provincial labor

Types of labor contracts and labor contracts for foreign labors:

Under the provisions of the Vietnamese labor law, the labor contract must be made in one of the following forms:

- Contract without definite term;

Contract without definite term is contract in which two parties can not determine the duration, the time of termination of the contract

- Contract of definite term;

Contract of definite term is a contract in which two parties determine the duration, the time of termination of the contract during the period from 12 months to 36 months

- Contract for a seasonal job or specific job to be carried out in for less than 12 months

Pursuant to the provisions of law for the duration of the work permit, foreign labors are only applicable labor contract with a term

of 24 months, does not apply to indefinite terms of labor contracts and type of labor contract with a term of 24 months to 36 months

Form of labor contract

o Contract without definite term

o Contract of definite term from 12 months to 36 months

o Labor contract for a period of 3 months to 12 months

o Contract employees look after the family property

o Labor contract work as a dancer, waitress, service employees in establishments such as hotels, restaurants, discos irrespective of the duration of the labor contract