Must a subsidiary company apply for work permit for a foreign employee who is the legal representative of both the subsidiary company and the parent company?

Legal situation:

Greetings, I would like to be advised on whether a subsidiary company is required to apply for work permit for a foreign employee who is the legal representative of both the subsidiary and the parent company? I sincerely thank Lawyer.

Response:

Thank you for trusting and sending your questions to FDVN Law Firm (“FDVN”), after studying the legal regulations, FDVN would like to provide you with some information as follows:

According to Point d, Clause 1, Article 151 of the Labor Code 2019 on the conditions for foreign employees to work in Vietnam: “has a work permit granted by a competent authority of Vietnam, except in the cases stipulated in Article 154 of this Labor Code”.

Article 154 of the 2019 Labor Code also regulates cases of work permit exemption, accordingly, the legal representatives of enterprises do not fall into one of these cases. Therefore, in case the foreign employee has been granted a work permit obtained by the Parent Company but he also acts as the legal representative of the Subsidiary, the Subsidiary company must apply for a work permit under the category of implementing the Labor Contract for that foreign employee.

Note that, regarding the application for work permit for a foreign employee working under 02 labor contracts, Point a, Clause 9, Article 9 of Decree 152/2020/ND-CP provides as follows:

“9. Application for issuance of work permit in special cases:

a) If a foreign worker who has been issued with a work permit which remains valid wishes to work for another employer at the same job position and job title in the work permit, an application for a new work permit shall include: a document issued by the former employer certifying that he/she has been working there, documents mentioned in clauses 1, 5, 6, 7 and 8 of this Article and a certified true copy of the current work permit;”

Regarding social insurance for foreign employees working under 02 or more labor contracts: According to Clause 1, Article 42, Decision No. 595/QD-BHXH on the management of social insurance participants: ” An employee who signs at least 2 labor contracts with different employers shall pay social insurance contributions and unemployment insurance premiums according to the first labor contract, pay health insurance premiums according to the labor contract with highest salary and pay premiums of occupational accident and occupational disease according to each labor contract. Therefore, according to the law, if an employee signs 02 or more labor contracts, he/she must pay social insurance contributions and unemployment insurance premiums according to the first labor contract.

Above is FDVN’s legal advice regarding your consulting request based on relevant regulations. Hopefully FDVN’s advice will be useful to you.

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