Foreign workers who have been granted a work permit and are still in force can be sent, transferred or dispatched to work in another province or city that is differentfrom province or city where the employee is working with the same job position for a period of 10 consecutive days or more, he/she will be not required a new work permit. JW Homemade Korean Restaurant Catering Co., Ltd. (in Vinh Phuc Province) has 2 foreign workers who are working in the company. Before October 25, 2018, the company's headquarters in Thai Nguyen Province completed procedures to apply for work permits for the two above foreign workers in accordance with regulations. After moving to Vinh Phuc Province, an expert from the Department of Labor, War Invalids and Social Affairs of Vinh Phuc Province requested the company to carry out procedures for a new work permit.
Through the receiving and responding system to businesses’ recommendations, is the company would like to ask, is the request from experts of the Department of Labor, War Invalids and Social Affairs of Vinh Phuc Province correct in accordance with regulations?
Currently the Company also has 1 foreign worker in the position of manager with the title of Deputy Director. Proof of occupation of the employee is the business registration with the employee's name as the legal representative for the company established abroad. The legal representative will be the direct manager of the business. This proving document has been submitted by the Company and accepted by the Department of Labor, War Invalids and Social Affairs of Thai Nguyen Province as a proof of occupation suitable for a manager position. However, the Department of Labor, Invalids and Social Affairs of Vinh Phuc Province did not accept it due to the reason that it is not appropriate.
The implementation of the current work permit procedures is based on the provisions of the 2012 Labor Code and its guiding documents, but the Departments have different application methods, leading to difficulties for businesses and workers.
JW Homemade Korean Restaurant Catering Co., Ltd.asked the competent authority to guide how to deal with the above cases.
Regarding this issue, Department of Employment, Ministry of Labor - Invalids and Social Affairs responded as follows:
Under Clause 2, Article 18 of Circular No. 40/2016 / TT-BLDTBXH dated October 25, 2016 of the Ministry of Labor, War Invalids and Social Affairs guiding Decree No. 11/2016 / ND-CP dated February 3 / 2016 of the Government detailing the implementation of a number of articles of the Labor Code regarding foreign workers working in Vietnam, In case a foreign worker already granted a work permit which has yet to expire is designated and dispatched to take up the same job position in anotherprovince that be different from the province where (s)he is now working for at least 10 consecutive days, (s)he shall be exempted from application for a new work permit. However, that foreign worker’s employer shall submit a certified true copy of the existing work permit and inform the Department of Labor, War Invalids and Social Affairs of the province where the foreign worker’s new workplace is located in writing which specifies the enterprise name, address of the new workplace, job position, title and working period.
Regarding foreign employees who are managers, as stipulated inClause 4, Article 3 of Decree No. 11/2016 / ND-CP, for the positions of General Director; Deputy General Manager; Manager; Deputy Directors of enterprises that satisfy the provisions of Clause 18, Article 4 of the Law on Enterprises are managers.