Chính sách và những khuyến nghị về quản lý hành chính đối với lao động nước ngoài trên cơ sở xây dựng năng lực cho lao động trong nước

khóa luận, luận văn, thạc sĩ, tiến sĩ, cao học, đề tài

ThAi nguyen University Southern luzon STATE University

Socialist Republic of Vietnam Republic of Philippines

Policy and Recommendations on Administrative Management of Foreign Labor: Bases for Capability Building of Domestic Labor

Advisor: Associate Professor Dr DINH NGOC LAN

Name of Student: NGUYEN THI TUYET VAN

English Name: HELEN

Date of Birth: 27/9/1972

Acknowledgments

I would like to express our most sincere thanks to the Management Board of the Southern Luzon State University, Thai Nguyen University, the teacher, the teacher

of the school has helped me facilitate the learning process throughout

I would like to express sincere gratitude and profound Associate Professor

Dr Dinh Ngoc Lan, enthusiastic teacher who have dedicated guidance, encouragement, spends time and exchange orientation 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 has helped me research material, through a questionnaire survey

I sincerely thank the Board of the University of Labor and Social affair (ulsa), colleagues in ULSA, classmates DBA1 facilitated enthusiastic help and share my experience to help complete the dissertation

Finally, I would like to send the gift to the heart of my family has passed enthusiasm and encouragement to complete my dissertation

LỜI CẢM ƠN

Tôi xin gửi lời cảm ơn chân thành nhất tới Ban Giám hiệu Southern Luzon State University, Đại học Thái Nguyên, các thầy giáo, cô giáo của Trường đã tạo điều kiện giúp đỡ tôi trong suốt quá trình học tập

Tôi xin bày tỏ lòng biết ơn chân thành và sâu sắc tới PGS TS Đinh Ngọc Lan, giáo viên tâm huyết đã tận tình hướng dẫn, động viên khích lệ, dành nhiều thời gian trao đổi và định hướng cho tôi trong quá trình thực hiện luận án

Tôi xin bày tỏ lời cảm ơn chân thành tới Cục Việc làm – Bộ Lao động – Thương binh và Xã hội; các Sở Lao động – Thương binh và Xã hội: Hà Nội, Lạng Sơn, Ninh Bình, Quảng Ninh, Phú Thọ, Nghệ An, Thanh Hóa, Quảng Nam, Đà Nẵng, Bà Rịa – Vũng Tàu, Bình Dương, thành phố Hồ Chí Minh và Đồng Nai đã giúp tôi về tài liệu nghiên cứu, khảo sát qua bảng hỏi

Tôi xin chân thành cảm ơn tới Ban Giám hiệu , các bạn đồng nghiệp trường Đại học Lao động – Xã hội, các bạn cùng lớp DBA1 đã tạo điều kiện, nhiệt tình giúp đỡ

và chia sẻ kinh nghiệm giúp tôi hoàn thành luận án

Cuối cùng, tôi xin gửi tấm lòng ân tình tới gia đình của tôi đã động viên và truyền nhiệt huyết để tôi hoàn thành luận án

DEED OF DECLARATION

I, Nguyen Thi Tuyet Van (English name: Helen), hereby submit my

dissertation for oral examination, entitled “Policy and Recommendations on

Administrative Management of Foreign Labor: Bases for Capability Building of Domestic Labor” truthfully declare that the said paper is a product of

my original research investigation

Signed this ……… 2013 at Thai Nguyen University

-

Nguyen Thi Tuyet Van

DBA Candidate

TABLE OF CONTENTS

CHAPTER I: .1

INTRODUCTION 1

1.1 Background of the Study 1

1.2 Statement of the problem 7

1.3 Significance of the study 8

1.4 Scope and limitation of the study: 9

1.5 Definition of terms 10

CHAPTER II 13

REVIEW OF RELATED LITERATURE AND STUDIES 13

2.1 Review of related studies 13

2.1.1 Local of studies 13

2.1.2 Foreign of studies 16

2.2 Theoretical and conceptual framework 18

2.2.1 Administrative management of foreign labor 26

2.2.2 A foreign labor Error! Bookmark not defined. 2.2.3 The employer .32

2.2.4 Basic contents of the administrative management of foreign labor 21

2.2.5 The reasons and the existing conditions that led to enterprises of hiring foreign labor in term of: 39

2.2.6 The reasons sustain the hiring of foreign labor as perceived 42

2.2.7 The results and limitations in the management of State for foreign laborers working in Vietnam 46

CHAPTER III: METHODOLOGY 52

3.1 Methods of collecting information 52

3.1.1 Methods of collecting secondary data 52

3.1.2 Methods of collecting primary date 52

3.2 Data processing method 56

CHAPTER IV: PRESENTATION, ANALYSIS AND INTERPRETATION OF DATA 58

4.1 Characteristics and understanding of foreign labors on the policy, legal documents relating to the management of foreign labors in Vietnam 58

4.1.1 General characteristics of foreign laborers working in Vietnam 58

4.1.2 Understanding of foreign labors on policies, laws relating to foreign labors .60

4.1.3 Find out the information channel transmiss legal document to foreign labors 62

4.2 The granting of labor license for foreigners working under labor contracts 63 4.2.1 Period of labor license 63

4.2.2 Regarding the term of the labor license 64

4.2.3 Promulgating the Act on foreign labors 64

4.3 Management of foreign labors in Vietnam 65

4.3.1 Foreign labors is need to manage information 65

4.3.2 The information of foreign labors have to register 66

4.3.3 Appropriate forms to manage foreign labors 67

4.3.4 The difficulties for enterprises / organizations on the implementation of the recruitment provisions to foreign labors 68

4.3.5 Additional provisions of the law in buying compulsory insurance for two types foreign labor 69

4.3.6 Additional provisions of the law of the place and work which is not allow

to use of foreign labors 69

4.3.7 The necessity to promulgate the Act on foreign labor 70

CHAPTER V: FINDINGS, CONCLUSIONS AND RECOMMENDATIONS 71

5.1 Findings 71

5.2 Conclusion 74

5.3 Recommendations 74

ACT ON FOREIGN LABORS 81

Chapter I 81

GENERAL PROVISION 81

Article 1: Scope 81

Article 2: Application objects 81

Article 3: Definitions 83

Article 4: The principle of the use of foreign labor 84

Article 5: Responsibilities of state management of foreign labors: 84

Article 6: Responsibilities of Employers 85

Article 7: Responsibilities of foreign labors 85

Article 8: Prohibited Acts 86

Chapter II 86

GRANTING WORK PERMITS, REISSUE OF LABOR LICENSE, EXPULSION OF FOREIGN LABORS WITHOUT LABOR LICENSE 86

Article 9: The case of foreign labors who are not eligible for a work permit granted 86

Article 10: Conditions for granting labor license for foreign labors 88

Article 11: Demand for foreign labors 88

Article 12: Profile granting labor license 89

Article 13: The term of the labor license 91

Article 14: The procedures for the labor license 91

Article 15: The cases reissue of the work permit 92

Article 16: Profile of the proposed reissue labor license 92

Article 17: Order of reissue of labor license 93

Article 18: The term of reissue of the labor license 94

Article 19: Revoke of work permit 95

Article 20: Expulsion of foreign labors 96

Chapter III PROTECTION OF FOREIGN LABORS 96

Article 21: Prohibition of Discrimination 96

Article 22: Wages payments and insurance 96

Article 23: Support for Organizations, etc., Related to Foreign labors 97

Article 24: Allows changing business, workplace 97

Chapter IV STATE MANAGEMENT OF FOREIGN LABORS 97

Article 25: Contents of state management for foreign labors 97

Article 26: State management authority for foreign labors 98

Chapter V INSPECT AND HANDLE VIOLATIONS OF 98

LAW RELATED OF TO FOREIGN LABORS 98

Article 27: Inspection of foreign labors 98

Article 28: Complaints and settlement of complaints and violations of the law on foreign labors 99

Article 29: Accusations and resolved accusations violations of the law on foreign labors 99

Article 30: Principles for handling violations of the law on foreign labors 99

Article 31: The form of illegal handling of foreign labors 99

Chapter VI TERMS OF ENFORCEMENT 100

Article 32: Entry into force of the Law on foreign laborers working in Vietnam .100

Article 33: Detailing and guiding 100

REFERENCES 101

CURRICULUM VITAE 108

Abstract

Administrative management of foreign labor in Vietnam is not new topics, but always topical Administrative management of foreign labors how to effectively, while enhancing the capacity of domestic labor is the topic that interest the dissertation author In this dissertation, the author analyzes the legal status administrative management of foreign labor, the actual use of foreign labor, and the authors also survey to find out more about the inadequacies of policy, law to make recommendations as appropriate Specifically, in the dissertation, the author has given data of foreign labors working in Vietnam and analysis of the current legislation on labor contracts for foreign labors, employment conditions use, recruitment procedures, workplace safety, compensation for foreign labors Thus, the policies and regulations on foreign labor management basically refer deeper, wider Of course,

if the regulations governing foreign labor tight fit will enhance the capacity of domestic labor Finally, the authors make conclusions and recommendations of the special products specifically with the Draft Law on foreign labors

List of tables

Table 1.1: The cities/provinces of Vietnam using foreign labors 2 Table 2.1: Number of foreign labors in Vietnam 41

Table 3.1: Distribution of the questionnaire for foreign

workers in the provinces

the implementation of the recruitment provisions to foreign

labors

80

Table 4.11: Additional provisions of the law on compulsory

insurance are 2 types foreign labor to buy

81

Table 4.12: Additional provisions of the law of the place and

work banned the use of foreign labors

APPROVAL SHEET

This dissertation, entitled “Policy and Recommendations on Administrative Management of Foreign Labor: Bases for Capability Building of Domestic Labor”, prepared and submitted by Nguyen Thi Tuyet Van

in partial fulfillment of the requirements for the degree of Doctor in Business Administration has been examined and recommended for acceptance and approval for ORAL EXAMINATION

Associate Professor Dr Dinh Ngoc Lan Adviser

Approved by the Committee on Oral Examination with a grade of PASSED on

CHAPTER I

INTRODUCTION

1.1 Background of the Study

In the context of international integration today, labors from this country to work for other countries are indispensable objective Vietnam as well as many other countries around the world, the reception of foreign laborers working in Vietnam country was inevitable Together, the open-door policy to attract foreign investment into Vietnam and the economic development in the country, foreigners entering Vietnam to work for enterprises and organizations of all economic sectors is inevitable In fact, many enterprises and organizations wishing to recruit foreign labors as enterprises of all economic sectors and the contractor is an organization with legal economics of Vietnam or foreign contractors in Vietnam, 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 business units of the state project office of foreign or international in Vietnam, foreign law firm 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 to use foreign labors

Number Provinces /Cities Notes Number Provinces /Cities Notes

Table 1.1: The cities/provinces of Vietnam using foreign labors

The use of foreign labors in enterprises and organizations in Vietnam has certain positive effects:

- Foreign labors are qualified, highly technical, creating conditions for enterprises and organizations in Vietnam to implement and develop the sectors requiring high technology, high technology;

- The use of foreign labors will create conditions for employees Vietnam to study and improve the professional qualifications, professional, fast absorbing new techniques and new technologies, while working for Vietnamese workers behavior and attitudes advanced work;

- The use of foreign labors will help improve productivity, labor quality, business performance and reputation of the enterprise or organization

In addition, foreign labors working in Vietnam and there are also negative effects such as creating heavy pressure with the creation of jobs for domestic labor even in conflict with domestic labor in the context of unemployment remain high For some fields, if using foreign labors will be vulnerable to reveal secrets and technology Use of foreign labors, the enterprises will have higher costs partly to affect production costs of enterprises and especially if using a large percentage of foreign labors is the difficulty in administrative management and problems will arise problem of social order and security The phenomenon of foreign laborers working illegally in our country tends to increase, beyond the control of the state management agencies This fact poses serious questions about the effectiveness of management the use of foreign labor in organizations, enterprises and concurrently set urgency required for the state management agency on the increase strengthen inspection and control this force

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 relevant labor management (University of Labor and Social affair under the Ministry of Labor - Invalids and Social Affairs of Vietnam), so the study topic

“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 to cater directly to teaching

In recent years, legislation to adjust the field of administrative management of foreign labors in Vietnam has been focused building by state, issue and continuous improvement 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, 1994 (amended and supplemented in 2002, 2006 and 2007) was a major step forward, 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 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

1st of May, 2013, the new Labor Code of Vietnam officially take effect, 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

foreign labors in the of Public Security department as follows: Please be 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 2012 Parliamentary socialist republic Vietnam ratified 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 of the labor conditions

of foreign citizens working in Vietnam; labor conditions of employment of foreign citizens; 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 labor regulations are foreign citizens working

in Vietnam must 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

1.2 Statement of the problem

The administrative management of foreign labor in Vietnam in recent times has achieved some remarkable results as: state management agencies have actively building legislation, propaganda and urge out For state management agencies in local organized labor inspection, inspection companies use foreign labor in the area of their management; business requires regular reports on foreign labor In addition, the administrative management of foreign labors to capability building of domestic labor has some limitations:

- No Act on foreign labor, these regulations is still part of the Labor code

- Several outstanding provisions of the law led to the administrative management of foreign labor are not tight; certain regulations are inappropriate and should be modified

- The foreign labor administrative management policy to strengthen the capacity of domestic labor at the macro level is not really synchronized

The estimated number of foreign laborers working in Vietnam is the 77.087 persons Meanwhile, the labor force in Vietnam up to the date 01.10.2012 is 53.1 million people 15 years and over (including the 52.1 million people employed, and

nearly 1 million people unemployment1) The labor force of the region is mostly rural and accounting 69.4%

For these reasons, this research will analyze the clarified“Policy and

Recommendations on Administrative Management of Foreign Labor: Bases for

Capability Building of Domestic Labor”

The questions need to clarify in this study are:

1 What is the policy/regulation of Vietnam on administrative management of foreign labor?

2 What are the reasons led to enterprises of hiring foreign labor?

3 What reasonable policy/regulation should be reasonable to effectively administrative management of foreign labor?

4 Which of the government policy/regulation that unreasonable to recommends on the administrative management of foreign labor?

The above problem, the author will analyze, citing clarified in this dissertation

1.3 Significance of the study

The research topic of this dissertation makes sense both in terms of theory and practice, as follows:

- For the state:

The results of the dissertation is the basis for the state (policy makers, agencies

of state management of foreign labors) to review and consider the issuance of

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

policies, law in the future Since then contribute to the effective administrative management of foreign labors in enterprises and organizations in Vietnam

- For employers and foreign labors:

The dissertation research 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 are used as references in research, teaching concern administrative management of foreign labor in particular higher education, postgraduate and use this as documentation study for staff working in administrative management agencies, it also contributes to providing justifications refer to civil servants working in state management on foreign labors

1.4 Scope and limitation of the study:

- Scope of the study: Vietnam

Vietnam’s territory is divided into 63 provinces/cities The research scope of this dissertation is the 13 provinces of 63 provinces, as follows: 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

- Limitation study:

Vietnamese laborers to work overseas contract workers are not included in this study

- Objects of study:

In general, this dissertation study policies/ regulations and make recommendations on administrative management of foreign labor: bases for capability building of domestic labor Specifically, the dissertation will focus on the following objectives:

1 To describe the policy/regulation of Vietnam on administrative management

of foreign labor

2 Analysis of the main reasons leading to Vietnam to hire foreign workers

3 Analysis of the reasonable policy/regulation should be improved to effectively administrative management of foreign labor

4 To analyze of the government policy/regulation that unreasonable and to recommends on the administrativemanagement of foreign labor

1.5 Definition of terms

For the purpose of dissertation, the terms are interpreted as follows:

- Administrative management of foreign labor:

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 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

- Employment: All work activities generate income, not prohibited by law are

recognized as employment

- Employee shall mean a person who is at least 15 years of age, has the ability

to work, works under an employment contract, is paid and is managed and controlled

by the employer

- Employer shall mean 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

- Enterprises and organizations that use foreign labors as enterprises

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

- Expert foreign who have 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

- Foreigners who have no nationality Vietnam under the Law on Nationality

of Vietnam

- 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

- Labor Management is 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 offoreign laborers in agiven organization, including managers (competent authorities) subject to influencemanagement (workers the foreigners working in enterprises and organizations in Vietnam) aims to createcommon interestsof the organization

- Managers, executives are foreign labors directly manage 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 specialized training techniques over a

period of 01 (one) year or more, with a diploma or certificate and worked from 03 (three) years or more specialized technical training

CHAPTER II

REVIEW OF RELATED LITERATURE AND STUDIES

2.1 Review of related studies

is essential for applied research into the theoretical framework of this dissertation

- 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 hire enough workers in Vietnam, hired foreign labors"

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

2.1.2 Foreign of studies

- 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

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

2.2 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:

- Policy/law need to renew

- Good policy/law

Unreasonablepolicy/law

2.2.1 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

2.2.2 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

2.2.3 The employer 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

2.2.4 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

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:

+ As limited partners or owners of limited liability companies

+ As a Board member of the company's shares

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

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

+ 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

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

+ Under the provisions of international treaties to which the Socialist Republic

of Vietnam is a member

+ 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

A written contract must be made in two copies, each party retaining one copy

The labor contract in writing must be applied to the following categories: + Contract without definite term

+ Contract of definite term from 12 months to 36 months

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

+ Contract employees look after the family property

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

Where a party to a contract foreign labor is, the contents of the contract must

be in English and then English can add foreign language agreed upon by both parties Content in English legal value

Labor contract can write with a pen color (other than red) or typed

- Oral contract:

Oral contract labor is a contract agreed upon by the parties only through negotiations mouth but not documented Contracting process may or may not be a witness at the request of the parties The parties must comply with to the provisions of law when signed and must comply with the content already entered

Labor contracts by mouth apply for a number of the following:

+ The work of a temporary nature which lasts less than 3 months

+ Labor contract to help the family

However, for this work, the parties may enter into a contract in writing

Although it is not in writing but oral contract labor to ensure the contents in accordance with the law

* The content of labor contracts

The content of the labor contract must include the following main points:

- Name and address of the employer or of the legal representative;

- Full name, date of birth, sex, residence address, identity card number or other legal papers of workers;

- Work and locations;

- The term of the labor contract;

- Salary, form of payment, the time limit for payment of wages, allowances and other supplements;

- The salary;

- The working time and the rest time;

- The conditions on labor safety and labor sanitation;

- Social insurance and health insurance;

- Training, retraining and improving professional skills

When employees work directly related to trade secrets, technological secrets

as prescribed by law, the employer has the right to a written agreement with the employee for the content, timeterm protection of business secrets, secret technology, benefits and compensation in case workers violation

For employees working in the field of agriculture, forestry, fisheries, salt, depending on the type of work that both parties can reduce some of the main contents

of the labor contract and agreement supplemented about addressing modes in the case

of performance of the contract affected by natural disasters, fires, weather

* The case of termination of the labor contract

- End of the contract term, unless otherwise specified in paragraph 6 of Article

192 of Labor Code

- The job under contract has been finished

- The two parties agree to terminate the labor contract

- Employees are eligible for paid social insurance and pension age stipulated

in Article 187 of Labor Code

- The employee was sentenced to prison, the death penalty or prohibited to do the work specified in the labor contract pursuant to a judgment or decision legal effect

of the Court