A reader with email duyvux@xx sent an email to the Lao Dong Newspaper Legal Counseling Office to ask: My company has a need to recruit foreign workers for the position of technical workers, but wants to sign a probationary contract before signing a labor contract. However, the foreign worker does not have a work permit. Can my company sign a probationary contract with this person?

Lawyer Nguyen Thi Trang, YouMe Law Firm replied:

Point d, Clause 1, Article 169 of the 2012 Labor Code stipulates that one of the conditions for foreign citizens to work in Vietnam as follows:

d/ Possessing a work permit granted by a competent Vietnamese state agency, except the cases specified in Article 172 of this Code.

Article 172 of the 2012 Labor Code provides for foreign citizens working in Vietnam who are exempt from work permits as follows:

1. Capital-contributing members or owners of limited liability companies.

2. Members of the Board of Directors of joint-stock companies.

3. Chiefs of representative offices and directors of projects of international organizations or non-governmental organizations in Vietnam.

4. Those who stay in Vietnam for under 3 months to offer services for sale.

5. Those who stay in Vietnam for under 3 months to deal with complicated technical or technological problems that adversely impact or are at risk of exerting adverse impacts on production and business activities and these problems cannot be handled by Vietnamese and foreign experts who are currently in Vietnam.

6. Foreign lawyers possessing a professional practice license in Vietnam under the Law on Lawyers.

7. It is in accordance with a treaty to which Vietnam is a contracting party.

8. Those who are studying and working in Vietnam, provided that the employer shall notify their employment to the provincial-level state management agency of labor 7 days in advance.

9. Other cases as stipulated by the Government.

Point e, Clause 2, Article 7 of Decree No. 11/2016/ND-CP detailing regulations on implementing some articles of the Labor Code regarding foreign workers in Vietnam provides for one of the cases in which the foreign workers are exempt from applying for the work permits as follows:

e) The workers enter Vietnam to hold the positions of experts, managers, chief executive officers, or technicians for a period of under 30 days and an accumulated working period of under 90 days per year;

Thus, if the foreign worker is a technical worker who is eligible to work in Vietnam, and the company is eligible to recruit foreign citizens, the two parties can sign a probationary contract in which the probationary period must be under 30 days and the accumulated working period must be under 90 days per year as prescribed above.