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MINISTRY OF EDUCATION AND MINSTRY OF JUSTICE TRAINING HANOI LAW UNIVERSITY TRAN THUY HANG THE LAW REGULATING LABOR RELATIONS OF FOREIGN WORKERS IN VIETNAM IN THE INTERNATIONAL ECONOMIC INTERGRATION PERIOD Major : International Law Code : 38 01 08 THE SUMMARY OF THE PhD THESIS HA NOI – 2019 The PhD Thesis was accomplished at: HANOI LAW UNIVERSITY Supervisors : Assoc Prof Nong Quoc Binh Doctor of Law Do Ngan Binh Critique 1: Critique 2: Critique 3: The PhD Thesis is defended at the Thesis Examining Board Meeting held at Hanoi Law University at on / / The PhD Thesis can be studied at: National Library Hanoi Law University's Library THE LIST OF AUTHOR’S PUBLISHED ARTICLES Hang Tran Thuy (2017), “Report on Vietnam’s Rules Regulating Foreign Workers”, Japan Labor Issues, Volume Number November-December 2-17, p 77-83 Trần Thúy Hằng (2018), “Policy attracting foreign workers to operate in science and technology in Vietnam”, Journal of Law, Number 5/2018, p 38-54 PREAMBLE Reason for choosing the topic Vietnam has advocated receiving foreign workers since 1985 to meet the demand for domestic production and business (Article 16 of Vietnam Foreign Investment Law 1987) Regulations on the recruitment and hiring foreign workers in the Labor Code 1994 have been inherited and supplemented, together with the provisions of the previous period For the professions that Vietnamese workers have not been able to do, enterprises may recruit a certain number of foreign workers for a certain period The Labor Code 2012, effective from January 1, 2013, has separated regulations on the labor activities of foreign workers in Vietnam in Section Chapter XI, from Article 169 to 175 and supplemented by Decrees and Circulars detailing and implementing several articles of the Labor Code on foreign workers in Vietnam Also, in the context of international economic integration, Vietnam has signed a series of labor cooperation agreements, free trade agreements, joined 21 conventions of the World Labor Organization Accordingly, the issue of protection of rights and basic labor conditions is receiving increasing concern Since 2016, Vietnam has continued to implement the commitments in the ASEAN Framework Agreement on Services to fulfill the objective of movement freedom for skilled workers These international treaties create an international legal basis to regulate labor relations of the Vietnamese workers and foreign workers working in Vietnam Through a process of development, the law regulating labor activities of foreign workers has been increasingly improved to adapt to the diverse economic growth of the country The legal provisions are quite detailed, which focus primarily on the employing requirements and work permit for foreign workers working in Vietnam However, the number of regulations in Vietnam is quite small; the content is simple, overlapping and low enforceability Meanwhile, since the need for skilled labor is increasing due to the impact of the technological revolution 4.0, the reception of foreign workers is a practical solution to offset the domestic shortage of labor But to formulate a system of the legal norm to meet the needs and the development of the economy, comprehensive and extensive research on the law regulating labor relations of foreign workers in Vietnam is required Therefore, the research on the law regulating labor relations of foreign workers in Vietnam is necessary for the current period Research objective and scope of the thesis The thesis focuses on studying the current provisions of Vietnamese law, the provisions of international treaties to which Vietnam is a member, and the judgments of Vietnamese courts dealing with disputes on individual labor relations of foreign workers With the research objective as mentioned above, the scope of the thesis includes basic theoretical issues about labor relations and the law regulating labor relations of foreign workers; current provisions of international law and the bill of foreign countries regulating labor relations of foreign workers; current provisions of Vietnamese legislation regulating labor relations of foreign workers Research aims and mission of the thesis The aim of the thesis includes more in-depth analysis of fundamental theoretical issues of the law regulating labor relations of foreign workers; analysis and evaluation of the current practice of legislation regulating labor relations of foreign workers in Vietnam Based on these analyses, the thesis proposes some specific recommendations and solutions to improve the legal regulations and improve the effectiveness in implementing legislation regulating labor relations of foreign workers To achieve this purpose, the author must fulfill the specific tasks as follows: (i) Formulate the concept of foreign workers in Vietnam (ii) Develop a concept of labor relations and identify the characteristics of labor relations of foreign workers (iii) Clarify the fundamental theoretical issues of the law regulating labor relations of foreign workers (iv) Assess the comprehensive legal basis regulating labor relations of foreign workers (v) Propose several specific solutions to improve the legislation and enhance the effectiveness of implementation to create a stable and favorable legal environment for the development of labor relations with foreign elements, to protect the constitutional rights and interests of foreign workers in Vietnam Methodology and research methods In studying the law regulating labor relations of foreign workers in Vietnam, the thesis uses the theoretical basis, including The doctrine of Marxism – Leninism and Ho Chi Minh's Thoughts on State and Law, knowledge systems, perspectives on law and legal implementation of the Communist Party and the State of Vietnam The thesis mostly focuses on the following research methods: Legal, scientific research method, Comparative law method, Analytical method, Proving method, Synthesis method, Scientific forecasting method Scientific meaning and novelty of the thesis This thesis provides new scientific contributions as follows: First, the dissertation has systematically analysed fundamental theoretical issues of the law regulating labour relations of foreign workers It has developed the concepts of foreign workers and labour relations of foreign workers, thereby, identifying the characteristics of labour relations of foreign workers in Vietnam Second, the dissertation has comprehensively analysed fundamental legal issues on adjustment of labour relations of foreign workers in accordance with the law of Vietnam and international treaties to which Vietnam is a member and offered comments on judgments of Vietnamese courts dealing with individual labour disputes arising from labour relations of foreign workers, and thereby indicating the inadequacies of the implementation and interpretation of legal provisions on labour relations of foreign workers in Vietnam Third, the dissertation has identified experiences of some developed countries in regulating labour relations of foreign workers On that basis, the dissertation offers some proposals for improving the law of Vietnam regulating labour relations of foreign workers consistently with Vietnam's socio-economic conditions in the period of international economic integration The theoretical and practical meanings of the thesis The thesis contributes to formulating and perfecting the theoretical basis and perfecting the law regulating labor relations of foreign workers in the context of international economic integration; At the same time, to a certain degree, this thesis will be a valuable source of information to aid policymakers, legislators, and managers in making and implementing provisions of legislation regulating labor relations of foreign workers in Vietnam The thesis is also a reference for research and teaching of labor law, private international law Faculties, and Universities specialized in law or labor and social affairs Structure of the thesis With the aims mentioned above and tasks, the thesis is presented in chapters Also, the thesis includes Introduction, List of Abbreviations, Conclusion, List of other works published by the author, References, and Appendices Chapter 1: Overview of the studies related to the thesis topic Chapter 2: Theoretical issues in labor relations of foreign workers and the law regulating labor relations of foreign workers Chapter 3: Current practice of the law regulating labor relations of foreign workers in Vietnam Chapter 4: Perfecting the law and improving the effectiveness of implementing the law regulating labor relations of foreign workers in Vietnam Chapter OVERVIEW OF THE STUDIES RELATED TO THE THESIS TOPIC The studies on the law regulating labor relations of foreign workers are diverse and are carried out under many different aspects Regarding foreign workers as the research topic, there are many authors conducting research, with many studies from different perspectives The studies presented the general theoretical issues of foreign worker management, such as scientific bases, legal bases and practical bases of foreign workers for socio-economic development of our country systematically Regarding the law regulating labor relations of foreign workers as the research topic, there are no intensive and comprehensive studies about the law regulating labor relations of foreign workers in Vietnam The existing studies only focus on some different issues, such as managing foreign workers, protecting the rights of foreign workers, labor contracts of foreign workers Analyses on the inadequacy of legislation and recommendations to perfect the legislation are generic, without comparing and absorbing the experiences on this topic of countries in the world From the existing studies as well as the aim and research tasks of the thesis, within its research scope, the thesis focuses on clarifying the following issues: First, theoretical matters Based on existing studies related to the thesis topic, the thesis will explain some issues such as the legal basis of legislation regulating labor relations of foreign workers, conflict of laws Second, practical legal issues The emergence and development of statutory provisions for foreign workers working in Vietnam have been generally presented, analyzed and commented by many studies The thesis will absorb this knowledge to clarify the legal framework regulating labor relations of foreign workers in Vietnam Third, issues of practical implementation of the law regulating labor relations of foreign workers in Vietnam and the issues on orientation and solutions The thesis studies the experience in management and solutions in each country, especially countries with developed labor markets which use international human resources effectively Chapter THEORETICAL ISSUES IN LABOR RELATIONS OF FOREIGN WORKERS AND THE LAW REGULATING LABOR RELATIONS OF FOREIGN WORKERS 2.1 The concept of foreign workers and labor relations of foreign workers 2.1.1 The concept of foreign workers 2.1.1.1 Definition The author proposed the concept of foreign workers in Vietnam as follows: "Foreign workers are foreigners who come to Vietnam to work under labor contracts, are paid and subject to the management and administration of employers.” 2.1.1.2 Classification of foreign workers First, based on skills, foreign workers are divided into two categories: skilled workers and unskilled workers Second, based on legal status, foreign workers are divided into two categories: legal foreign workers and illegal foreign workers Third, based on nationality, foreign workers are divided into different categories depending on the laws of the country and international treaties on the reception of foreign workers of which the country is a member Fourth, based on allowing the duration of residence in the host country, foreign workers are divided into two categories: foreign workers with permanent residence and foreign workers with temporary residence 2.1.2 Concepts and characteristics of labor relations of foreign workers 1.2.1 Definition The author proposes to formulate the concept “labor relations of foreign workers in Vietnam” as follows: “labor relations of foreign workers in Vietnam are labor relations arising between foreign workers and employers where foreign workers are hired and perform the work under the management and administration of employers for wages.” 2.1.2.2 Characteristics of labor relations of foreign workers The distinguishing features between labor relations of foreign workers and normal labor relations are that the subjects have foreign elements; one of the subjects is a foreigner This characteristic makes labor relations of foreign workers the subject matter of both labor law and private international law 2.2 The basic theoretical issues on the law regulating labor relations of foreign workers 2.2.1 The role of the law regulating labor relations of foreign workers in the context of international economic integration First, the law regulating labor relations of foreign workers creates a legal basis for the parties to establish and execute legal labor relations 10 relations of foreign workers in countries around the world 2.2.4 Establishment of labor relations of foreign workers Unlike the establishment of labor relations with domestic workers, employing foreign workers is an activity limited by employment conditions, which are requirements to limit the number of foreign workers in a country, that done in two ways: (i) quotas (United States, South Korea, Singapore) and (ii) employment standards 2.2.4.2 Executing labor relations of foreign workers When foreign workers meet the employment requirements, they will participate in labor relations and become workers with full rights and obligations under the law Therefore, labor relations are executed based on the mutual agreement of labor rights and obligations reflected from labor contracts of foreign workers, and at the same time shall comply with specific legal provisions of each country (Japan, Malaysia) 2.2.4.3 Termination of labor relations of foreign workers The termination of labor relations of foreign workers is executed in accordance with the general provisions of termination of labor contracts of foreign workers However, since workers are foreigners, legislation of some countries have several additional obligations for employers of foreign workers in case of premature unilateral termination 2.2.4.4 State management of labor relations of foreign workers The most common method of management is work permits Moreover, some countries even adopt regulations on the obligations of employers in managing foreign workers 2.2.5 Conflict of laws and methods to resolve conflicts of law in labor relations of foreign workers 2.2.5.1 Conflict of laws in labor relations of foreign workers 11 Arising from the characteristics of labor relations of foreign workers and the characteristics of conflict of laws, conflict of laws in labor relations of foreign workers may be defined as follows: Conflict of laws in labor relations of foreign workers is a legal phenomenon that occurs when labor relations of foreign workers can be regulated by two or more legal systems of different countries 2.2.5.2 Methods of resolving the conflict of laws in labor relations of foreign workers Conflict of laws method The conflict of laws method is the method in which countries formulate and use conflict of laws norm to regulate labor relations of foreign workers Conflict of laws norm is a special type of legal norm, which does not contain the rights and obligations of subjects, but contains the principle on choosing the applicable law for existing labor relations of foreign workers Substantive law method The substantive law method is the method in which countries formulate and use substantive legal norm to regulate labor relations of foreign workers The substantive legal norm is a traditional legal norm, containing the specific rights or obligations of the subjects The substantive legal norm in labor relations of foreign workers is often used to regulate the conditions, standards, rights, and responsibilities of foreign workers and employers in labor relations Chapter CURRENT PRACTICE OF THE LAW REGULATING LABOR RELATIONS OF FOREIGN LABORERS IN VIETNAM 3.1 Provisions in international treaties to which Vietnam is a member 3.1.1 Provisions on basic labor rights and protection of foreign 12 workers Provisions on basic labor rights in international treaties to which Vietnam is a member is regulated by the International Labor Organization (ILO) Conventions, legal documents within the framework of the Association of Southeast Asian Nations (ASEAN), and in new generation free trade agreements (FTAs) Accordingly, the basic labor rights of foreign workers are protected in the same way as the basic labor rights of Vietnamese workers, including the right against forced labor, right against discrimination in employment, right to equal pay 3.1.2 Provisions of the applicable law regulating labor relations in mutual legal assistance treaties Conflict of laws provisions in the treaties on mutual legal assistance allows the parties of the labor relations to choose applicable law of labor contracts if the chosen law does not prohibit this choice 3.1.3 Provisions on the working form of foreign workers Protocol on the Accession into WTO of Vietnam, in commitments on trade in services, there are two modes of supply under which foreign workers can come to Vietnam to work: commercial presence and presence of a natural person For foreign workers who come to Vietnam to work, workers who are internally reassigned in the enterprises which engage in 11 service industries in the Vietnam’s WTO commitments on services, including: business, communication, construction, distribution, education, environment, finance, health, tourism, culture, entertainment and transportation not have to apply for work permits 3.1.4 Provisions on the right to recognize diplomas and qualifications of foreign workers having the nationality of ASEAN countries Currently, ASEAN has signed 08 mutual recognition arrangements 13 (MRAs) in services including accountancy services, medical services, dental services, engineering services, nursing services, architectural services, surveying services, tourism services According to the MRA on tourism services, foreign workers who have training and certification of skills would be recognized as qualified to practice tourism services in Vietnam without any further requirements As a result, except for the tourism services, in the remaining MRAs, foreign workers having the nationality of ASEAN countries coming to Vietnam for work and looking to be recognized qualifications as "ASEAN experts" shall comply with the additional regulations and requirements of Vietnamese law 3.1.5 Provisions regulating the rights and obligations of employers and foreign workers in labor cooperation agreements The content of labor cooperation agreements is diverse, include basic contents such as commitment to create favorable conditions for Vietnamese workers to work in other countries and vice versa, determination of legal mechanisms to ensure that employment was executed in accordance with the regulations of the two parties, from the recruitment phase, implementation of labor contracts and termination, repatriation of workers to home country 3.2 Provisions of the Vietnamese law 3.2.1 Provisions regulating the establishment of labor relations of foreign workers 3.2.1.1 Requirements for foreign workers Foreign workers working in Vietnam are primarily foreign nationals, satisfying the legal conditions required to be allowed to work in Vietnam for Vietnamese or foreign organizations and individuals in Vietnam Conditions for foreign workers working in Vietnam is defined in Article 169.1 Labor Code 2012 14 3.2.1.2 Requirements for employers of foreign workers Subjects allowed to employ foreign workers under labor contracts are limited subjects (conditioned subjects) according to Article 2.2 of Decree No 11/2016/ND-CP 3.2.1.3 Working form of foreign workers Requirements on working form are regulated in Decree No 11/2016/ND-CP dated 3/2/2016, which is a general provision for all forms of foreigners working in Vietnam, included foreign workers and other subjects such as volunteers, contractors (performing work under service contracts), people establishing the commercial presence (performing work related to the establishment of a commercial presence in Vietnam, not directly providing services) 3.2.1.4 Procedures for recruitment of foreign workers The procedures for recruiting foreign workers is regulated by the provisions of the Labor Code 2012, Decree 11/2016/ND-CP and Circular 40/2016/TT-BLĐTBXH by three steps: Step 1, employers determine the need to use foreign workers Step 2, employers apply for work permits for foreign workers Step 3, foreign workers and employers abroad sign a labor contract 3.2.2 Provisions regulating the implementation of labor relations of foreign workers 3.2.2.1 The validity of labor contracts of foreign workers The Vietnamese law does not have a separate provision on the validity of the labor contract of foreign workers According to the general provisions of the labor law on the validity of labor contracts, the points that can be determined as a basis for labor contracts to be valid are: (i) labor contracts are valid from the date the parties form the contract; (ii) labor contracts are valid from the date 15 of agreement; (iii) labor contracts are valid from the day workers to start working 3.2.2.2 Invalid labor contract of foreign workers Labor contracts of foreign workers are totally invalid when they fall into one of the following four cases: The entire content of labor contracts is illegal; labor contracts are signed by unauthorized persons; the work that two parties have agreed in labor contracts is prohibited by law; content of labor contracts restricts or prevents workers’ right to establish, join and operate labor union Labor contracts of foreign workers are partially invalid when the content of that section violates the law but does not affect the remaining of the contract 3.2.2.3 Rights and obligations of subjects in labor relations of foreign workers The rights and obligations of the subjects in labor relations of foreign workers are determined according to the content of the labor contract and the provisions of law The contents of the contract are agreed by the parties, but shall not be contrary to the law, contrary to the collective labor agreement Labor contracts with foreign workers shall conform to the main contents as stipulated in Article 23 of Labor Code 2012 and Article of Decree 05/2015/ND-CP 3.2.2.4 Form and language of labor contracts with foreign workers Labor contracts of foreign workers, even if labor contracts are for temporary or short term work, foreign workers and employers still have to make contracts in writing 3.2.3 Provisions regulating the modification, suspension, termination of labor relations of foreign workers 3.2.3.1 Modification of labor relations of foreign workers 16 In the case of the subject of labor contracts is modified: the modification of foreign workers or employers is regarded as a new labor contract In the case of the content of labor contracts is modified: the modification of the contents of labor contracts with foreign workers shall not be contrary to the provisions of work permit 3.2.3.2 Suspension of labor contracts with foreign workers In case that labor contracts are governed by the labor law of Vietnam, the suspension of labor contracts with foreign workers is regulated the same as normal labor contracts 3.2.2.3 Termination of labor relations of foreign workers Vietnamese legislation does not have specific provisions regulating the termination of labor relations of foreign workers, then the termination labor relations of foreign workers shall be conducted according to general procedures of the Labor Code 2012 regarding cases of termination of labor contracts (Labor Code 2012 contains no provisions on termination of labor relations) 3.2.4 Provisions on determining the applicable law of labor relations of foreign workers According to Article 683.1 of Civil Code 2015, workers and employers have the right to agree with the applicable law of labor contracts between the parties 3.2.4.2 Determining applicable law of labor relations of foreign workers without the agreement of the parties in the labor contract According to Article 683.1 and 683.2 of Civil Code 2015, in case that the parties not have an agreement on the choice of the applicable law of labor contracts, law of the country in the closest relation to labor contracts shall be applied 17 3.2.4.3 Restricting the agreement of the parties to choose applicable law for labor relations of foreign workers to protect workers According to Article 683.5 of Civil Code 2015, the restriction of free will be applied if the parties to the contracts choose to apply foreign law and that foreign law affects minimum interests of workers under Vietnamese law, then Vietnamese law will apply 3.2.3 Settlement of individual labor dispute in labor relations of foreign workers 3.2.5.1 Jurisdiction to resolve individual labor disputes in labor relations of foreign workers i) Labor mediator Labor mediator is the authorized subject to resolve the dispute and nominated by the district-level labor management agency Types of disputes for which the labor mediator has jurisdiction to resolve are all labor disputes and disputes on vocational training contracts ii) People’s Court Since individual labor disputes in labor relations of foreign workers fall into labor dispute involving foreign elements, the jurisdiction of the Court shall be determined in two steps: Step 1: Determining the general jurisdiction of Vietnamese courts for such labor disputes in accordance with Chapter 38 of the Civil Procedure Code and Step 2: Determining the specific jurisdiction of the Court according to the provisions of Chapter of the Civil Procedure Code (Article 469.2 Civil Procedure Code 2015) 3.2.5.2 Dispute settlement procedures of individual labor disputes in labor relations of foreign workers 18 For individual labor disputes, the dispute settlement procedures include the following procedures: (i) Negotiation, (ii) Individual labor dispute mediation by labor mediator, (iii) litigation in the People's Courts 3.2.5 Provisions on the management of labor relations of foreign workers 3.2.5.1 Work permits Obligations of applying for work permits for foreign workers belong to the employers To apply for a work permit for foreign workers, employers would follow the procedures as provided by Article 10 of Decree No 11/2016/ND-CP and guidance in Article of Circular 40/2016/TTBLĐTBXH 3.2.5.2 Responsibilities of state authorities in managing foreign workers The authorities in managing foreign workers include the Ministry of Labor, Invalids and Social Affairs, Ministry of Finance, Ministry of Industry and Trade, Ministry of Public Security, Provincial People's Committee Chapter PERFECTING THE LAW AND IMPROVING THE EFFECTIVENESS OF IMPLEMENTING THE LAW REGULATING LABOR RELATIONS OF FOREIGN WORKERS IN VIETNAM 4.1 The current practice of implementation of the law regulating labor relations of foreign workers in Vietnam 4.1.1 Comments about some shortcomings in the provisions of Vietnamese legislation regulating labor relations of foreign workers First, some provisions of Vietnamese law are not compatible with the provisions of the international treaties to which Vietnam is a member Second, the definitions and terminologies have not been unified 19 Third, the provisions on the establishment, execution, modification, and termination of labor relations of foreign workers are quite generic Some regulations are inconsistent with the current practical use of foreign workers in Viet Nam Fourth, the provisions of the law regulating labor relations of foreign workers in the Civil Code 2015 on determining the applicable law to labor relations of foreign workers are still generic, without detailed guidelines to assess agreement of the parties and law of the country that has the closest relation to labor contracts 4.1.2 Current practice in the implementation of the provisions regulating labor relations of foreign workers in Vietnam 4.1.2.1 Granting work permits According to the latest local statistics in January 2017 of the Bureau of Employment - Ministry of Labor, Invalids and Social Affairs: Vietnam has a total of 79,786 foreign workers working, of which 69,378 people were granted work permits (accounting for 94.6% of workers eligible to be granted work permits); the remaining 3,942 people (accounting for 5.4%) consist of workers who have submitted the application for work permits and workers who are completing dossiers to apply for work permits There are large numbers of foreign workers, in Vietnam, still working illegally without work permits This issue occurs because the network of the managing authorities of foreign workers is still too thin The inspection, examination, and handling of violations are still minimal 4.1.2.2 Quantity and quality of foreign workers in Vietnam Foreign workers come to Vietnam from 110 countries, of which the highest number are workers with Chinese nationality at 25,274 people (30.9%); workers with Korean nationality at 14,968 people (18.3%); workers with 20 Taiwanese nationality (China) at 10,551 people (12.9%); workers with Japanese nationality at 7,770 people (9.5%); The remaining workers from other countries are 23,229 people (28.4%) Regarding the skills of foreign workers, foreign workers often work in positions requiring high technical and professional qualifications: 38% are employed as technical professionals; 26% are employed due to the lack of local candidates for these positions, the rest are for other reasons such as credibility, new product development, etc 4.1.2.3 Signing and execution of labor contracts with foreign workers The majority of employers strictly conduct the signing of labor contracts with foreign workers Most have labor contracts with the duration from 12 to under 36 months (61,6%), a minority has labor contracts with the duration under six months (3,2%) 4.2 Recommendations to improve the law regulating labor relations of foreign workers in Vietnam and to improve the efficiency of implementation 4.2.1 Orientation and solutions to improve the law 4.2.1.1 Orientation to improve the law First, the improvement of the law regulating labor relations of foreign workers must be consistent with the guidelines and the path of the Communist Party and the State of Vietnam Second, the completion of the law regulating labor relations of foreign workers must be consistent with the standards and conditions of labor international treaties 4.2.1.2 Solution to complete the law The first solution, some recommendations on research and reasoning 21 First, study experiences of countries in the world in developing policies and laws regulating labor relations of foreign workers Second, study the selected model of recruiting foreign workers in Vietnam Third, study the model of restricting illegal unskilled workers in Vietnam The second solution, some proposals to improve the provisions of Vietnamese law on labor relations of foreign workers First, unify the concepts related to labor contracts of foreign workers Second, supplement the regulations on conditions for foreign workers in accordance with the policy of attracting skilled foreign workers of Vietnam Third, supplement the provisions by determining the validity of labor contracts with foreign workers Fourth, supplement the provisions for foreign workers working in specific jobs Fifth, unify the provisions on determining the applicable law of labor contracts of the Civil Code 2015 and Labor Code 2012 Sixth, amend and supplement the provisions on the procedures of granting work permits to foreign workers Seventh, consider and issue provisions on the right to join labor unions/or the right to establish a representative organization of foreign workers Eighth, complete the provisions on the handling of violations in the recruitment and use of illegal foreign workers 4.2.2 Solutions to improve the efficiency of implementing the law on labor relations of foreign workers in Vietnam First, improve the effectiveness of the formulation and issuance of legal documents in accordance with the provisions of international treaties on migrant workers Second, improve the state management capacity for foreign workers Third, improve the effectiveness of propaganda and dissemination of legal regulations CONCLUSION Labor relations of foreign workers are social relations formed 22 during the employment process according to the agreement between foreign workers and employers Accordingly, the party as foreign workers commit to completing work, fully following the internal labor rules and other regulations in the working process and the other side as the employer are obliged to delegate work for foreign workers as committed, pay in proportion to productivity, quality, and work efficiency The laws of the countries in the world are similar in characteristics: the level of management of employers to workers and the degree of dependence of workers to employers Also, to manage foreign workers, the law of certain countries also provides for specific conditions to select or regulate the number of foreign workers by using conditions on qualifications, work permits If foreign workers fully meet the conditions of entry, residence and work for local nationals and organizations, it is considered that foreign workers are legally working If foreign workers not meet these conditions, it is considered that foreign workers are working illegally However, meeting or failing the conditions for obtaining a work permit is not a basis to determine whether or not labor relations between the parties exist In the case of illegal foreign workers, the relations between the parties is the trade of labor force for wages; then it is still considered as labor relations Solutions to illegal labor relations vary, depending on the legal system of each country The economic integration and international cooperation in the labor sector of each country play a significant role in formulating a regulatory system that regulates labor relations of foreign workers to operate efficiently, creating a positive impact on attracting foreign investment flows The burden for policymakers and lawmakers in the context of globalization and international economic integration is how to control and formulate legislation regulating labor relations of foreign workers appropriately without affecting international 23 investment and business in that country The law regulating labor relations of foreign workers plays a vital role in regulating labor relations between workers and employer, creating a legal basis for the implementation of the rights and obligations of the parties and at the same time protecting constitutional rights and benefits of foreign workers The use of foreign workers is a conditional activity, which is managed and supervised by competent authorities based on the legal system issued or developed by the state from the international treaties to which that country is a member The law regulating labor relations of foreign workers of the country is complex and related to multiple legal fields, many managing authorities with diverse subject matters, including legal foreign workers and illegal foreign workers, employers of foreign nationality and employers of domestic citizenship In Vietnam, current laws in labor relations of foreign workers are being gradually improved, which minimizes the administrative procedures, and encourages employers to hire workers out of the need for production and business Foreign workers have more opportunities to work legally in Vietnam Modifications of the legislation are made following the provisions of ILO and UN conventions on this issue Foreign workers are legally treated according to the minimum labor principles and standards in the same manner with Vietnamese workers Besides the progressive and positive points, the law regulating labor relations for foreign workers cannot avoid shortcomings and limitations because the legal documents system is still incomplete and inconsistent These shortcomings, at different levels, still affect the interests of the parties in labor relations Besides, there are still regulations inconsistent with the labor market practice as well as the development of a market economy, which are not 24 compatible with Vietnam's commitments in international treaties which Vietnam has signed or acceded In light of the aforesaid issues, it is urgent that the law regulating labor relations of foreign workers shall be improved on the basis of fulfilling the theoretical and practical requirements It is necessary to overcome the shortcomings of the current law, ensuring the feasibility of implementation of legal documents; continue the reform of administrative procedures to provide the efficient management from the state authorities; attract skilled foreign workers to Vietnam to conduct scientific and technological research; revise and synchronize legal regulations and proceed to develop a uniformed code on foreign workers working in Vietnam under labor contracts; in the process of issuing and implementing laws regulating labor relations of foreign workers, learn from the experiences of developed countries around the world and the provisions of national treaties on migrant workers ... required to be allowed to work in Vietnam for Vietnamese or foreign organizations and individuals in Vietnam Conditions for foreign workers working in Vietnam is defined in Article 169.1 Labor... on studying the current provisions of Vietnamese law, the provisions of international treaties to which Vietnam is a member, and the judgments of Vietnamese courts dealing with disputes on individual... law and that foreign law affects minimum interests of workers under Vietnamese law, then Vietnamese law will apply 3.2.3 Settlement of individual labor dispute in labor relations of foreign workers
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