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Decree No.46 complained as putting difficulties to FIEs
The Foreign Invested Enterprises’ Association has lodged a complaint to the Prime Minister, saying that the newly issued Decree 46 contains the provision that imposes unreasonable conditions on recruitment and work permit extension for foreign workers.
The Decree 46, which amends some regulations stipulated in the Decree 34 released in 2008 on foreign worker recruitment and management, takes effect today, August 1, 2011.
In the document sent to the Prime Minister, the association pointed out that there are three unreasonable articles.
The decree stipulates that 30 days before recruiting foreign workers for some posts, employers must notify the needs of recruiting Vietnamese workers for the same posts on local and central newspapers. When applying for granting work permits to foreigners, enterprises have to present the documents to prove the job information publishing.
Meanwhile, FIEs believe that the required formality will prolong the recruitment process, because this will be applied to all foreign workers, including managing directors and leading technical experts.
They have also pointed out that they may be sued by Vietnamese candidates, if they do not recruit them after they advertise the recruitment, which would badly affect the enterprises’ reputation.
It is clear that the provision will not help bring more jobs to Vietnamese workers, but will only encourage enterprises to post the pieces of recruitment news for the form’s sake.
The provision also violates the Vietnam-US Bilateral Trade Agreement (BTA), which says that US companies have the right to select top management personnel, regardless of nationality, while this is not covered by the Vietnamese Labor Code.
The currently applied Enterprise Law and the charters of foreign invested enterprises in Vietnam (FIEs) say that the appointment or hiring of chief executive officers of subsidiaries in Vietnam will be decided by the parent groups.
Therefore, the newly released decree will hinder the self-determination rights of US companies in choosing top management personnel for their subsidiaries or branches in Vietnam.
Regarding the procedures to extend work permits for foreigners, the decree requires employers to show the copy version of the contracts on vocational training signed between the FIEs and Vietnamese workers, which aim to train Vietnamese for the posts currently being undertaken by foreigners.
Meanwhile, the Article No 132 of the Labor Code stipulates that FIEs in Vietnam can recruit foreign workers for the posts that require high qualifications for certain periods, provided that the enterprises have plans on training Vietnamese workers who can replace the foreign workers.
This means that FIEs have the duty of drawing up the training plans for Vietnamese laborers, but they do not have to sign any contracts with Vietnamese workers. The requirement has been described as imposing an unreasonable duty on enterprises.
A company can only sign training contracts with apprentices if they receive the laborers after the probation time.
The thing can only be applied to the workers who take the jobs that do not require high qualifications (Garment workers, coal mine workers…), while FIEs cannot train Vietnamese workers to become managing directors, finance directors or chief engineers. Only the candidates who finish from leading prestigious universities and have deep experiences can be recruited for the high posts.
FIEs believe that the work permit extension is the prerequisite condition for foreign workers to continue working in Vietnam. Therefore, the strict regulation should be seen as a kind of prohibiting the extension at the companies which do not sign the contracts on vocational training with Vietnamese workers.
In reality, for the last many years, FIEs have been trying to localize their staff by selecting Vietnamese high qualified people for the high posts. However, since Vietnam is seriously lacking the personnel who have high management and technique qualifications, the only thing FIEs can do is to create favorable conditions for Vietnamese to work together with experienced foreign experts and access training opportunities.
vietnamnet
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