Repository of Practices

Primary GCM Objectives

GCM Guiding Principles*

*All practices are to uphold the ten guiding principles of the GCM. This practice particularly exemplifies these listed principles.

Sustainable Development Goals (SDGs)

Dates

2020

Type of practice

Policy (including law, public measure)

Geographic scope

Summary

Following an ILO-supported assessment of the 2006 version of the Law on Contract-Based Vietnamese Overseas Workers (Law 72), the ILO put forth recommendations for revisions to the legal framework for labour migration in Viet Nam in 2017. In 2020, Law 72 was revised by the National Assembly. A series of broad-based consultations ensued, involving amongst others employers’ and workers’ organizations and, significantly, migrant workers. Furthermore, the engagement of anti-human trafficking stakeholders helped to create clarity on the nexus between effective rights-based labour migration legislation – including attention to fair recruitment – and prevention of human trafficking. Along with these consultations, drafts of a new Law were prepared to which ILO provided inputs based on requests by the National Assembly Social Affairs Committee.

On 8 December 2020, the Vietnamese President’s Office announced the Law on Contract-Based Vietnamese Overseas Workers 69/2020/QH14 (Law 69), which was adopted by the 14th National Assembly of Viet Nam on 13 November 2020 and will come into force in January 2022. Several of the ILO’s key recommendations have been incorporated into the final version of the Law, including:

• The removal of the obligation for migrant workers to pay brokerage commissions and an explicit prohibition on recruitment agencies passing these costs on to workers;

• The removal of the obligation for migrant workers to pay service fees in addition to brokerage commission to public employment services in line with Convention No. 88;

• If part or all of the service fee is covered by employers or overseas-worker receiving parties, then workers will only pay for any remaining amount required under Law;

• The ability for migrant workers to unilaterally liquidate contracts in situations of threats, sexual harassment, maltreatment or forced labour;

• The inclusion of definitions for discrimination and forced labour in line with ILO Conventions No. 111 and Protocol P029;

• A provision for legal aid in cases of abuse, violence or discrimination whilst working abroad;

• Specific wording about gender equality in the state goals;

• Prohibition on deceitful advertising for the purpose of organizing trafficking in persons, abusing recruitment activities to illegally collect fees, and charging brokerage fees – breaching these prohibitions results in recruitment agency license revocation;

• Pre-departure training must include information on: forced labour, trafficking in persons prevention, gender equality, sexual abuse, gender-based violence and prevention skills.

Organizations

Main Implementing Organization(s)

Government of Viet Nam

Detailed Information

Ministry of Labour, War Invalids, and Social Affairs Viet Nam

Partner/Donor Organizations

International Labour Organization - ILO

Benefit and Impact

As the Law did not come into force until 1 January 2022, there has been no impact assessment of the legal reform pertaining to migrant worker recruitment, but the normative relevance and impact of removing one of the cost categories for payment by migrant workers is an important step forward, as is the possibility of unilateral contract liquidation in case of maltreatment.

The magnitude of the number of migrant workers in previous years may provide an indication of future benefits: In 2019, over 152,530 (54,700 women) migrant workers went to work abroad through regular migration channels, including 82,703 workers to Japan and 54,480 workers to Taiwan (China). In March 2020, around 560,000 Vietnamese people were working in more than 40 countries and territories worldwide.

In 2019, migrant workers travelling to Taiwan (China) alone cumulatively paid over USD 81 million to recruitment agencies for brokerage commission (USD 1,500 per migrant worker under Law 72), which will be saved under the new Law.

Key Lessons

Many of the issues affecting Vietnamese migrant workers relate to recruitment procedures set in Vietnamese legislation. The legislated high recruitment fees and related costs charged to migrant workers means that they often have to take out high interest loans and provide family property as surety to obtain a job. The lack of effective oversight and sanctions against poorly performing recruitment agencies contributes to a culture of impunity where exploitative and/or illegal behaviour goes unpunished and, in turn, contributes to establishing negative norms within labour migration. The time, cost and complexity of regular migration processes pushes migrant workers into irregular channels where they are less able to access support. The lack of quality pre-departure training and an effective complaints mechanism means that when migrant workers do face problems, they do not know who to contact for support and do not have any available recourse for harm suffered.

The revision of Law 72 presents a key opportunity to align legislation with relevant international labour migration standards and ensure ethical and responsible recruitment.

The ILO provided technical presentations, technical inputs and issues papers grounded on international labour standards, fair recruitment best practices and evidence from research and studies which support changes that decrease the likelihood of migrant workers vulnerability to abuse, exploitation, debt bondage, falling into irregular status, forced labour and human trafficking. ILO particularly focused on addressing the root causes of debt bondage and vulnerability to human trafficking; worker-paid recruitment fees and predatory recruitment practices for workers migrating abroad. The ILO through its tripartite structure and calling on multilateral and civil society partners, provide ongoing technical advice and support to tripartite actors and strengthen social dialogue at provincial, regional and national levels during the drafting and revision process.

Recommendations(if the practice is to be replicated)

- Providing legal analysis on draft revisions of the revised Law including a compatibility assessment of drafts with ILO's international labour standards (Conventions 181, 88, 29, and others) and comparative jurisdiction analysis with other countries of origin and destinations on recruitment costs and fees were considered useful for law makers to align legislation with relevant international labour migration standards and ensure ethical and responsible recruitment.
- Migrant workers’ voice on risks during migration process as well as impact of high cost charge through engaging them in consultations with Drafting teams and National Assembly Deputies should be promoted.
- Ensuring best practices of zero fees/employer paid to migrant workers by recruitment agencies and employers where both migrant workers and business benefit (more productive migrant workers, low turnover rates and higher income for migrant workers) are shared;
- The strong commitment from an increasing number of multinational companies, suppliers and recruitment agencies to responsible recruitment should be demonstrated.

Innovation

This experience demonstrated the crucial role of a technically adept and rights-driven partner, trusted by Government, but that also hold them accountable. At each draft of the revised Law 72, ILO was successful in working with Government and National Assembly’s Office to have positive provisions re-introduced to Law. The ILO supported the process of development of legislation through social dialogue and consultation which involved relevant Ministries, the Viet Nam Association of Manpower Supply (VAMAS), VCCI, VGCL, VWU, DOLISAs, representative missions in countries of destination, NGOs, migrant workers, international development agencies, private sector stakeholders (International Organization of Employers, Institute for Human Rights and Business, Consumer Goods Forum, Responsible Business Alliance, Caux Roundtable, CGF Japan Social Sustainability Group, Global Business Network on Forced Labour, global brands and suppliers including Samsung, Hewlett Packard Enterprise, Walmart and Nike), counter-trafficking stakeholders (the Bali Process, Mindaroo, ASEAN ACT, UN-ACT), country of destination stakeholders (embassy staff in Viet Nam and ILO colleagues in country of destination offices) and media stakeholders (journalists, Thomson Reuters Foundation, the Academy of Journalism and Communication). The ILO conducted awareness-building and training activities to increase understanding and realization of international labor migration standards among key stakeholders.
The Vietnamese Government’s commitment to protection of migrant workers and prevention of forced labour in labour migration is evident in the passing of this revised Law. Improved regulatory labour migration framework through reform of Law 72 legislation decreases migrant workers’ vulnerability to human trafficking, including forced labour and debt bondage. The Law takes the critical first step towards reducing recruitment fees and related costs charged to migrant worker.

Additional Resources

Promising practices for fair recruitment - Viet Nam – Revision of the Law on Contract-Based Overseas Workers

Date submitted:

30 March 2022

Disclaimer: The content of this practice reflects the views of the implementers and does not necessarily reflect the views of the United Nations, the United Nations Network on Migration, and its members.