New highlights of Decree No. 148 providing guidance on 2012 Labor Code available in full

1. Person authorized to conclude an employment contract within a family household and organization without legal personality

As provided by the new regulation, the person authorized to act as the legal representative of a family household or an entity will be entitled to sign an employment contract on the employer side, instead of the householder or the head of that entity who usually signs the employment contract in most cases. 

2. Contractual terms and conditions

- With regard to the pay grade promotion or the pay raise, the Decree adds cases in which both contracting parties may negotiate about whether the employer’s statutes or the collective bargaining agreement are applied.

- With regard to the working and rest time, the Decree adds cases in which both contracting parties may negotiate about compliance with labor rules, statutes of the employer, the collective bargaining agreement and/or legislative regulations.

(It is not necessary to specify the working time in an employment contract). 

3. Regulations on employment contracts with elderly employees

If an employer has no demand or the elderly employee does not meet required health standards, both parties will negotiate for (instead of “carry out”) termination of the employment contract.

4. Employer’s obligations arising in case of any changes in the organizational structure, technologies or any change made for economic reasons 

The Decree sets out the new regulation under which the employer is bound to inform in writing the provincial-level regulatory authority in charge of labor affairs of the abovementioned changes (including guidance on details of the notification form). 

5. Regulation on the working period used as a basis for calculation of resignation or dismissal allowances

- The period of probation or internship is not assumed as an employee's total actual working time upon calculation of these allowances. 

- The period of paid leave from work for performing a citizen’s obligations as provided by regulations in force is the time length of an employee’s actual working for an employer.

- For the purpose of calculation of these allowances, the allowed period is the time length of payment of unemployment insurance contributions which is the period of an employee’s participation in the unemployment insurance (currently, there is none of regulations on this matter). 

- The Decree adds cases in which the employer is permitted to extend the time of processing of an employee’s claim for their interests upon termination of an employment contract to the maximum duration of 30 days, including the followings:

Merger, amalgamation, splitting and separation of an enterprise or cooperative, transfer of the property rights under Article 45 of the Labor Code.

6. Base pay rate serving as a basis for calculation of salary or wage paid an employee on leave

Base pay rate serving as a basis for calculation of salary or wage paid an employee on annual leaves, public or national holidays or paid personal business leaves is the pay agreed upon in an employment contract (instead of the pay specified in the employment contract in the preceding month) divided by the number of normal working days in a month as per the employer's regulations, and multiplied by the number of annual days-off, national, public holidays or paid personal business leaves. 

7. The Decree adds the regulation on the base pay rate serving as a basis for calculation of compensation in case of unilateral termination of employment contract in breach of laws

8. Registration of labor rules

Provincial-level regulatory authorities in charge of labor affairs are not bound to inform in writing (simply inform) the employer in case of any rules in violation of laws.

9. Procedures for imposition of labor disciplinary actions

- The employer only has to ensure that the notification of invitation to the meeting about disciplinary actions is received by participants before the meeting takes place (unlike existing regulations, the Decree does not require that the notification of invitation must be sent at least 5 working days before the meeting). 

- In the absence of any participant without good and sufficient reasons, the employer may hold that meeting at their discretion and does not have to obey the existing regulation under which at least 3 times of invitation to the meeting are required.

The Decree No. 148/2018/ND-CP is going to be in force on December 15, 2018.

Source: Thuvienphapluat

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Application requirements for permission for founding of branches of foreign cultural establishments in Vietnam

This content is newly prescribed in the Decree No. 126/2018/ND-CP on founding and operation of foreign cultural establishments in Vietnam.

Under this Decree, foreign cultural establishments operating within the territory of Vietnam that meet requirements for eligibility for permission to found their branches need to prepare a set of documents submitted to the Ministry of Culture, Sports and Tourism, including:

illustrating images

- Application form for permission to found branches, using the Form 06 appended to this Decree;

- Copy of the Certificate of registration or the License for founding and operation of foreign cultural establishments in Vietnam;

- Performance review report on operations of foreign cultural establishments from the date of issue of the registration certificate or license till the date of establishment of a branch;

- Criminal record (or equivalent document) of the person recommended to be appointed as the branch’s head, which is issued by a competent authority and obtains consular authentication. 

If any document included in the set of application documents is written in any foreign language, a Vietnamese version of such document must be enclosed.

The Decree No. 18/2001/ND-CP will enter into force from the entry into force of the Decree No. 126/2018/ND-CP (November 5, 2018).

Source: Thuvienphapluat

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To set up branch office in Vietnam, please contact our lawyers in Vietnam for advice via email ant@antlawyers.vn or call our office at +84 28 730 86 529 

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Decision No. 3877 On Investigation into Imposition of Anti-Dumping Measures For Products of Chinese and Korean origins(case No. AD04)

The Ministry of Trade and Industry has issued Decision no. 3877 to proceed the investigation on imposition of anti-dumping measure for some products from China and Korea under the case AD04.  The first step for related party to participate into the investigation process is to register with Vietnam Competition Authority directly or through the assistance of a law firm with experience in anti-dumping procedures in Vietnam.

Pursuant to Article 70 of the Law on Foreign Trade Management on procedure for investigating the trade remedies case and Article 79 of Law on Foreign Trade Management on the basis of proceeding the anti-dumping investigation, the Vietnam Minister of Industry and Trade decided to conduct the anti-dumping measures imposition investigation according to the request of Investigation Authority relating to some flat-rolled alloy or non-alloy steel products, varnish painted or scanned or coated with plastics or other covers originated from China and Korea (case No. AD04).

The details of investigation are conducted pursuant to Article 80 of the Law on Foreign Trade Management on contents of an anti-dumping measures imposition investigation and Article 32 of the Decree No. 10/2018/ND-CP on deciding to conduct anti-dumping measures imposition investigation.

Imported goods subject to investigation:

The imported goods subject to investigation are some flat-rolled alloy or non-alloy steel products, varnish painted or scanned or coated with plastics or other covers which are classified by HS Codes 7210.70.11, 7210.70.19, 7210.70.91, 7210.70.99, 7212.40.11, 7212.40.12, 7210.40.19, 7212.40.91, 7212.40.92, 7212.40.99 (the case No. AD04)

Origins of imported goods:China and South Korea

Domestic industry:

No.	Trade name	Opinion	Market share/ total market share (%)
1	Nam Kim Steel Joint Stock Company	The requesting party	29,35%
2	Southern Steel Sheet Co., LTD
3	TVP Steel Joint Stock Company
4	Dai Thien Loc Corporation
5	Ton Dong A Corporation	Agreed the investigation and application of the anti-dumping measures	61,31%
6	Maruichi Sun Steel Joint Stock Company
7	Hoa Sen Group
8	VNSteel Thang Long Coated Sheets Joint Stock Company
9	Blue Scope Steel	No opinion	9,34%

Pursuant to the results of examination of request dossier and the sources of available information in pre-initiation stage, the Investigation Authority found out the evidence of: i) the dumping conducts relating to the goods originated from China and Korea; ii) the significant damages to the domestic industry; iii) the causal relationship between the dumping conducts and the significant damages to the domestic industry.

Consequently, the Investigation Authority recommended the Minister of Industry and Trade to proceed the investigation. The conclusion of preliminary conclusion and/or final conclusion investigation is basis of the Investigation Authority’s recommendation to the Minister of Industry and Trade on imposition or non-imposition of provisional and/or official anti-dumping measures.

Investigation period:The investigation period for determining of dumping: from 01 June, 2017 to 31 May, 2018.The investigation period for local industry’s damages determination includes:The first year: from 01 June, 2014 to 31 May, 2015.The second year: from 01 June, 2015 to 31 May, 2016.The third year: from 01 June, 2016 to 31 May, 2017.The fourth year: from 01 June, 2017 to 31 May, 2018.

Proposal for tax duty of Requester:

The Requester proposed for investigating and imposing the provisional anti-dumping duty with 25.5% relating to the investigated import products from China and 19.25% relating to the investigated import products from Korea before the time the Ministry of Industry and Trade issues the official decision.

The individuals and organizations as stipulated in Article 74 of Law on Foreign Trade Management may register as a related party to Investigation Authority  to access the public information during the investigation, and to send the opinions, comments, information and evidences related to the investigation as mentioned herein.

Organizations and individuals shall prepare applications using the application form for registration as interested parties stated in the Appendix 01 attached to the Circular 06 and send to Investigation Authority no later than 30 (thirty) days from the date issuing the investigating decision.

Upon the receipt of applications for registration as related parties, the investigation authority shall consider whether a party is accepted as a related party or not within a period of 07 working days. If an application for registration as related party is refused, the Investigation Authority is required to explain such refusal in writing to the applicant.

The related parties under regulations of Article 79 the Law on Foreign Trade Management shall implement their rights and obligations under Article 9 of the Decree No. 10/2018/ND-CP.

In order to ensure its lawful rights and benefits, the Investigation Authority recommends the individuals and organizations manufacturing, importing, using the investigated goods to register as a related party to perform information accessing right, to provide information and express opinions during the investigation procedure.

Questionnaire: Within 15 days since the issuance of the decision on investigation, the Investigation Authority shall send the questionnaire to seek answer to various subjects.

On-site Investigation: Pursuant to Article 75.3 of Law on Foreign Trade Management, the Investigation Authority shall be entitled to proceed the on-site investigation (if necessary), including overseas investigation to certify the information, dossiers provided by related party or to collect more information, dossiers for settlement of trade remedies case.

Confidential information: The Investigation Authority shall keep the investigation information confidential as stipulated in Article 75.2 of Law on Foreign Trade Management and Article 11 of Decree No. 10/2018/ND-CP.

Cooperation during the investigation: In case any related party refuses to participate in the case or fails to provide necessary evidences or significantly disturbs the completion of the investigation, the preliminary conclusion and final conclusion relating to such related party shall be based on available information.

In case a related party provides provides false or misleading evidences, such evidences shall not be reviewed and the preliminary conclusion and final conclusion regarding such related party shall be based on available information.

Non-cooperating related parties shall not be exempted from trade remedies measures as prescribed in Article 7 of Decree No. 10/2018/ND-CP.

The Investigation Authority recommends the related parties to comprehensively cooperate during the investigation to protect its legitimate rights and benefits.

Duration of investigation: Anti-dumping measures imposition investigation shall be completed within 12 months from the date on which the decision on anti-dumping measures imposition investigation is issued. In some special cases, the Minister of Industry and Trade may extent the duration for anti-dumping measures imposition investigation but the total duration shall not exceed 18 months.

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New regulations on trade, import and export coming into force from the end of October, 2018

1. Procedures for issuance of C/O certifying origin of a number of special goods

On September 14, 2018, the Ministry of Industry and Trade has promulgated the Circular No. 26/2018/TT-BCT amending and supplementing the Appendix IV of the Circular No. 20/2014/TT-BCT on implementation of rules of origin in the Asean-Korea Free Trade Agreement.

According to this Circular, C/O certifying origin of special goods prescribed in Article 6 of the Appendix I of the Circular No. 20/2014/TT-BCT must comply with the following provisions:

- C/O must be issued by the C/O issuing authority designated by the exporting country as regulated in the Appendix V of the Circular No. 20/2014/TT-BCT.

- The C/O certifying the origin of a specific good issued by the C/O issuing authority designated by the exporting country must be noted that the good is conformable with provisions of Article 6 Appendix I of the Circular No. 20/2014/TT-BCT.

- Unless otherwise provided for in this Appendix, relevant rules set out in the Appendix V enclosed with the Circular No. 20/2014/TT-BCT must be applied with modifications suitable for the special goods applying provisions of Article 6 Appendix I of the Circular No. 20/2014/TT-BCT prescribed in the list enclosed with this Appendix.

The Circular No. 26/2018/TT-BTC comes into force from October 29, 2018.

2. Registration of standard form contract for issuance of domestic debt cards is not mandatory

This regulation is provided in the Decision No. 38/2018/QD-TTg dated September 05, 2018 amending the Decision No. 35/2015/QD-TTg on amendments and supplements to the Decision No. 02/2012/QD-TTg promulgating the list of essential goods and services for which standard form contracts or contracts containing general terms and conditions must be registered.

According to this Decision, when issuing domestic debit cards, opening and using payment accounts (for individual customers) or applying for personal loans (for consumption purpose), the registration of standard form contracts or contracts containing general terms and conditions is not mandatory.

The Decision No. 38/2018/QD-TTg comes into force from October 22, 2018.

3. Promulgation of 06 national technical regulations on environment

On September 14, 2018, the Ministry of Natural Resources and Environment promulgates the Circular No. 08/2018/TT-BTNMT and the Circular No. 09/2018/TT-BTNMT on promulgation of national technical regulations on environment, including:

- QCVN 31:2018/BTNMT - National technical regulation on environment for imported steel scraps for production;

- QCVN 32:2018/BTNMT - National technical regulation on environment for imported plastic scraps for production;

- QCVN 33:2018/BTNMT - National technical regulation on environment for imported paper scraps for production;

- QCVN 65:2018/BTNMT - National technical regulation on environment for imported glass scrap for production;

- QCVN 66:2018/BTNMT - National technical regulation on environment for imported non-ferrous metal scraps for production;

- QCVN 67:2018/BTNMT - National technical regulation on environment for imported slag from iron or steel industry for production.

The Circular No. 08/2018/TT-BTNMT and the Circular No. 09/2018/TT-BTNMT come into force from October 29, 2018.

4. Amendments to the Circular No. 28/2014/TT-BVHTTDL on international trade in goods

The Ministry of Culture, Sports and Tourism has promulgated the Circular No. 26/2018/TT-BVHTTDL on September 11, 2018 to amend the Circular No. 28/2014/TT-BVHTTDL on management of international trade in goods under the management of the Ministry of Culture, Sports and Tourism.

According to this Circular, the following are the most noticeable contents:

- The phrase “National treasures” is removed from the list of goods banned from export.

- A component of the application documentation for approval for contents of imported works of plastic arts, fine arts and photography is abrogated.

- The regulation “The certified copy of the investment certificate or the certificate of enterprise registration or the business registration certificate” on procedures for approval for contents of imported cinema works is abrogated.

The Circular No.26/2018/TT-BVHTTDL comes into force from October 30, 2018.

Source Thuvienphapluat

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