55/2013/ND-CP - LABOR LEASING OPERATION

DETAILING THE IMPLEMENTATION OF CLAUSE 3 ARTICLE 54 OF THE LABOR CODE ON LICENSE FOR THE LABOR LEASING OPERATION, PAYMENT OF DEPOSITS AND LIST OF JOBS ENTITLED TO IMPLEMENT LABOR LEASE

DECREE

DETAILING THE IMPLEMENTATION OF CLAUSE 3 ARTICLE 54 OF THE LABOR CODE ON LICENSE FOR THE LABOR LEASING OPERATION, PAYMENT OF DEPOSITS AND LIST OF JOBS ENTITLED TO IMPLEMENT LABOR LEASE

Pursuant to the Law on Government organization dated December 25, 2001;

Pursuant to the Law on Enterprise dated November 29, 2005;

Pursuant to the Labor Code dated June 18, 2012;

At the proposal of Minister of Labor, Invalids and Social Affairs;

The Government promulgates the Decree detailing the implementation of Clause 3 Article 54 of the Labor Code on license for the labor leasing operation, payment of deposits and List of jobs entitled to implement labor lease,

Chapter 1.

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree provides the license for the labor leasing operation, payment of deposits of the labor leasing enterprises and List of jobs entitled to implement labor lease.

Article 2. Subjects of application

1. The labor leasing enterprises.

2. The labor hiring party.

3. The leased employees.

4. Other agencies, organizations, individuals relating to the labor leasing operation.

Article 3. Interpretation of terms

In this Decree, the following terms are construed as follows:

1. The labor leasing enterprises mean enterprises established and operating in accordance with law, hiring employees under labor contracts but not directly use their employees; however supply for other employers their employees in order to temporarily work (hereinafter abbreviated to the leasing enterprises).

2. The labor hiring party means enterprises, agencies, organizations, cooperatives, households, individuals in need of labor use for a definite term and hiring labrers of the leasing enterprises so as to compensate for the employment of lack employees.

3. The leased employee means employee with full civil act capacity, signed labor contract with the leasing enterprise, being leased by the leasing enterprise in order to work under control of the hiring party for a definite term.

Article 4. Prohibited acts for the labor leasing operation

1. For the leasing enterprises:

a. To pay wage and other regimes to the leased employees lower than content agreed with the labor hiring party;

b. To let other enterprise borrow or borrow license of labor leasing operation of other enterprise to operate the labor lease;

c. To collect charge with the leased employees or lease without consent of employees;

d. To conduct the labor lease but the leased jobs are not in List of jobs entitled to implement labor lease specified in Annex V promulgated together with this Decree or conduct the labor lease exceeding the term of labor leasing as prescribed in Article 26 of this Decree;

e. To conduct the labor lease between the leasing enterprise and other enterprises in Mother Company - subsidiary companies, Economy Group of which this leasing enterprise is member.

2. For the labor hiring parties:

a. To collect charge from the leased employees;

b. To let other employer hire the employees already hired by them;

c. To use the leased employees to work jobs that are not in List of jobs entitled to implement labor lease specified in Annex V promulgated together with this Decree or use the leased employees exceeding the term of labor lease as prescribed in Article 26 of this Decree;

Chapter 2.

CONDITIONS, PROCEDURES FOR AND COMPETENCE OF LICENSE FOR LABOR LEASING OPERATIONS

SECTION I. CONDITIONS TO LICENSE FOR THE LABOR LEASING OPERATIONS

Article 5. Conditions to license for the labor leasing operations

Enterprises shall be licensed for the labor leasing operations when they have full the following conditions:

1. Having conducted payment of deposit of VND 2,000,000,000;

2. Ensuring the legal capital as prescribed in Article 6 of this Decree;

3. Having head office as prescribed in Article 7 of this Decree;

4. The head of enterprise ensuring conditions as prescribed in Article 8 of this Decree;

Article 6. Conditions of legal capital for the labor leasing operation

1. The legal capital for the business line of labor leasing operation is VND 2.000.000.000.

The leasing enterprises must maintain the charter capital not lower than the legal capital during their operation.

2. Dosiser proving condition of legal capital specified in clause 1 this Article includes:

a. The capital-contributing minutes of founding shareholders for joint-stock companies or of founding members for limited liability companies with from two members or more; the capital allocation decision of owner for one-member limited liability companies; the investment capital register of owner of enterprises for private enterprises and for one-member limited liability companies of which owners are individuals;

b. For capital amounts contributed in cash, there must be written certification by commercial banks licensed to operate in Vietnam where enterprises send capital amounts contributed in cash of the sent capital level;

c. For capital amounts contributed in assets, there must be certificates of organizations with valuation function in Vietnam, regarding the results of valuation of assets contributed as capital. The certificates must be valid until the date of submission of dossiers at competent business registration agencies.

3. For foreign enterprises conducting joint-venture with domestic enterprises, they must ensure the following conditions:

a. They must be enterprises specialized in the labor leasing business, possessing capital and total value of assets of VND 10,000,000,000 or more;

b. Having had operational experiences in the field of labor lease of from 05 years or more;

c. Having certification by competent agencies of the host countries that the enterprises and the persons representing the contributed capital amounts of the enterprises in the joint ventures with Vietnamese enterprises have not yet committed acts of violating the laws of the host or relevant countries.

The about documents must be translated into Vietnamese and authenticated by overseas diplomatic missions, consular agencies of Vietnam and consular legalized in accordance with law of Vietnam.

Article 7. Conditions of places which the leasing enterprises locate head offices, branches, representative offices

The locations of head offices, branches and representative offices of the leasing enterprises must be stable for at least 02 years; if they are houses owned by the business registrants, the dossiers requesting for grant, re-grant or extension of license of labor leasing operation must contain valid papers; if they are rented houses, there must be house-renting contracts of 02 year or longer terms.

Article 8. Conditions for heads of the leasing enterprises, branches and representative offices

1. Having full civil act capacity, clear biography;

2. Having working experiences in the field of labor lease of from 03 years or more;

3. During three consecutive years before requesting for license of the labor leasing operation, they were not heads of the enterprises whose business registration certificates were withdrawn or they did not commit again acts of forging dossiers applying for grant, re-grant of Enterprise registration certificate, dossiers applying for grant, re-grant or extension of license for the labor leasing operation.

Article 9. Replacement of managers, key position holders or change of charter capital of the leasing enterprises

Upon replacement of their managers or key position holders or change of their charter capital, the leasing enterprises shall comply with provisions of law on enterprises and concerned documents, satisfy the conditions provided for in Article 5 of this Decree and notify such in writing to the provincial Departments of Labor-Invalids and Social affairs within ten working days before the date such change is effected.

Article 10. Notices on the locations, time of commencement of operations and the managers, key position holders of the leasing enterprises

1. Within 10 working days before commencing the labor leasing activities, the leasing enterprises must send written notices to provincial-level Departments of Labor-Invalids and Social affairs on the locations of their headquarters, branches of locations of offices, operational geographical areas and time for commencement of operations, together with copies of their licenses of labor leasing operation and lists of their managers, key position holders.

2. In case of relocation of headquarters, branches or representative offices of the leasing enterprises, at least 15 working days before starting the relocation, the enterprise heads must send written notices to provincial-level Departments of Labor-Invalids and Social affairs, the leased employees and the labor hiring parties of the new locations.

SECTION II. PROCEDURES FOR AND COMPETENCE OF GRANT AND WITHDRAWAL OF LICENSE FOR LABOR LEASING OPERATION

Article 11. Dossier requesting for grant, re-grant or extension of license for the labor leasing operations

1. Dossier requesting for grant of license for the labor leasing operations includes:

a. Written request for grant of license for the labor leasing operations made according to the form in Annex II promulgated together with this Decree;

b. Documents proving eligibility on legal capital as prescribed in Article 6 of this Decree;

c. Certificate of having conducted payment of deposit as prescribed in Article 16 of this Decree;

d. Enterprise registration certificate as prescribed in the Law on enterprises;

dd. The resume of enterprise head in accordance with law;

e. Documents proving eligibility on locations as prescribed in Article 7 of this Decree;

2. Dossiers requesting for re-grant, extension of license for the labor leasing operations include documents specified in points a, b, c, dd and e of clause 1 this Article.

Article 12. Term of license for the labor leasing operations

1. Term of license for the labor leasing operations maximally does not exceed 36 months.

2. In case of extension of license for the labor leasing operations, the term shall not exceed 24 months; and number of extension times shall not exceed twice.

Term of license for the labor leasing operations that is re-granted shall not exceed term of the license granted preceding.

Article 13. Competence of grant, re-grant, extension or withdrawal of license for the labor leasing operations

1. The Minister of Labor, Invalids and Social Affairs shall grant, re-grant, extend or withdraw licenses for the labor leasing operations.

The leasing enterprises shall send dossiers as prescribed in Article 11 of this Decree to the Ministry of Labor, Invalids and Social Affairs to request for grant, re-grant or extension of license for the labor leasing operations.

2. The Minister of Labor, Invalids and Social Affairs shall, based on contents specified in section I chapter 2 of this Decree and other relevant provisions, decide the grant, re-grant or extension of license for the labor leasing operations within 30 working days for cases of new grant, 20 working days for cases of re-grant and extension, as from fully receiving the valid dossiers.

In case of refusal for grant, re-grant orr extension of license for the labor leasing operations, the Minister of Labor, Invalids and Social Affairs must reply in writing and clearly state reason thereof.

Article 14. Withdrawal of license for the labor leasing operations

1. The leasing enterprises may be withdrawn license for the labor lease in the following cases:

a. Failing to implement obligations of enterprises as prescribed by law and this Decree;

b. Declaring untruthfully on conditions as prescribed in Article 5 of this Decree or forging the documents as prescribed in Article 11 of this Decree; repairing content of license for the labor leasing operations;

c. Violating one of provisions in clause 1 Article 4 of this Decree;

d. Being administratively sanctioned due to violation of labor law 03 times in 12 months;

dd. Failing to implement addition of deposit after time limit specified in Article 18 of this Decree;

e. Termination of operation;

g. No operation after 06 months, from the day of being licensed for the labor leasing operations;

h. Being withdrawn enterprise registration certificate.

2. If the leasing enterprises are withdrawn, refused for re-grant or extension of license for labor leasing operations, labor contracts signed between the leased employees and the leasing enterprises shall be continued for implementation, except case specified in Article 36 of the Labor Code.

Chapter 3.

PAYMENT OF DEPOSITS AND MANAGEMENT OF DEPOSITS OF THE LABOR LEASING ENTERPRISES

Article 15. Use of deposits

Deposits shall be used for payment of wage or compensation for the leased employees in case the leasing enterprises violate labor contract with the leased employees or cause damages because enterprises fail to ensure lawful rights and interests of the leased employees.

Article 16. Payment of deposits and procedures for payment of deposits

1. The leasing enterprises must pay deposits of VND 2,000,000,000 at commercial banks where they open main transaction account (hereinafter abbreviated to banks).

2. The leasing enterprises shall implement procedures for payment of deposits in accordance with regulations of banks and compliance with provisions of law. After the leasing enterprises finished procedures and remitted money, banks shall issue written certifications of deposits for doing business in labor lease operations to enterprises.

Article 17. Interests from deposits

The leasing enterprises are entitled to enjoy interests from deposits under agreement with banks.

Article 18. Additional payment of deposits

1. Within 30 days, after money is withdrawn from the deposit account, the leasing enterprises must remit to add full deposits as prescribed in Article 16 of this Decree.

2. After time limit specified in clause 1 of this Article, if the leasing enterprises fail to add full deposits, banks shall notify to the Ministry of Labor, Invalids and Social Affairs.

Article 19. Refund of deposits

The leasing enterprises shall be refunded deposits in the following cases:

1. Having notification on enterprises failing to be granted, re-granted or being withdrawn of license for labor leasing operations from the Minister of Labor, Invalids and Social Affairs.

2. Having decisions on withdrawal of licenses for the labor leasing operations issued by the Minister of Labor, Invalids and Social Affairs.

Article 20. Drawing of deposits

1. Deposits are drawn in the following cases:

a. The leasing enterprises fail to have sufficient capacity for payment of wage to the leased employees after time limit of 60 days, from the due day of paying wage;

b. The leasing enterprises fail to have sufficient capacity for compensation or fail to pay compensation to the leased employees as prescribed in Article 15 of this Decree within 60 days after receiving decision of the Labor Inspectorate;

c. The leasing enterprises have failed to implement payment or delay payment of social insurance, medical insurance, unemployment insurance premiums for 03 consecutive months.

2. Procedures for the drawing or refund of deposits of the leasing enterprises shall comply with regulations of banks and relevant laws.

3. Banks are not entitled to let the leasing enterprises to draw their deposits without written opinion of the Minister of Labor, Invalids and Social Affairs as prescribed in Article 21 of this Decree.

Article 21. Competence and responsibilities of state management agencies of labor for use of deposits

1. The Minister of Labor, Invalids and Social Affairs shall allow the leasing enterprises to draw deposits with the aim to implement provisions in Article 15 of this Decree.

2. The provincial People’s Committees shall direct specialized agencies in supervising payment, compensation to the leased employees of the leasing enterprises as prescribed in Article 15 of this Decree.

Article 22. Responsibilities of banks

1. Implementing properly with regulations on opening the deposit accounts, payment of deposits, use of deposits by the leasing enterprises and regulations related to these accounts.

2. Blockading deposits and implementing calculation and payment of interest of deposit balance at the deposit interest rate agreed with the leasing enterprises. At the end of every month, calculating interest payable to enterprises and accounting into the deposit accounts or paying in cash for enterprises.

3. Issuing written certifications of deposits for labor leasing business activities to enterprises according to the form in Annex III promulgated together with this Decree.

4. In case where the leasing enterprises violate labor contract with the leased employees or cause damages because enterprises fail to ensure lawful rights and interests of the leased employees and there are decisions of the Minister of Labor, Invalids and Social Affairs forcing enterprises to pay, make compensation for damages, banks shall deduct deposits for payment and compensation for damages to be performed, after deducting expenses for bank’s services.

5. Requiring the leasing enterprises to pay additionally deposits as prescribed in clause 1 Article 18 of this Decree within 30 days, after money is withdrawn from the deposit account so as to pay, make compensation for damages. After the above time limit, if the leasing enterprises fail to add full deposits, banks must notify such to the Ministry of Labor, Invalids and Social Affairs.

6. Quarterly, not later than the 15th of first month of the following quarter, banks receiving deposits for labor leasing business must report the Ministry of Labor, Invalids and Social Affairs, the State bank of Vietnam about situation of receipt of deposits for labor leasing business of their bank system according to the form in Annex IV promulgated together with this Decree.

Chapter 4.

JOBS ENTITLED TO IMPLEMENT THE LABOR LEASE

Article 23. Purposes of the labor lease

1. Timely meeting the sudden increase on human resource in a defined duration.

2. Replacing employees during maternity leave, suffering occupational accidents, occupational illness or having to implement citizen’s obligations or reducing working time.

3. Having demand on use of laborers with high technical and professional qualification.

Article 24. Cases not entitled to conduct the labor lease

1. Enterprises happening labor disputes, strikes or for replacement of employees during of implementing right of strike, settlement of labor disputes.

2. The leasing enterprises failed to reach a specific agreement on responsibility for compensation of occupational accidents, occupational illness for the leased employees with the labor hiring party.

3. Replacement of employees who are dismissed due to restructure, changes of technologies or merger, consolidation, division, separation of enterprises or due to economical reasons.

4. Leasing employees to work in places with harsh living conditions according to list issued by the Minister of Labor, Invalids and Social Affairs and the Minister of Health, unless those employees have been lived in those above areas for sufficient 03 years or more; jobs of labor lease are in List of heavy, hazardous and dangerous and special heavy, hazardous and dangerous jobs promulgated by the Minister of Labor, Invalids and Social Affairs.

Article 25. List of jobs entitled to implement the labor lease

1. Jobs entitled to implement the labor lease are provided in Annex V promulgated together with this Decree.

2. The labor lease is conducted for only jobs in the List and ensures provisions in Article 23 and Article 24 of this Decree.

3. The Ministry of Labor, War Invalids and Social Affairs shall assume the prime responsibility for, and coordinate with relevant agencies in reviewing, submitting to the Prime Minister for amending and supplementing the List specified in Annex V promulgated together with this Decree.

Article 26. Duration of the labor lease

1. Duration of the labor leasemaximally does not exceed 12 months.

2. When ending duration specified in clause 1 this Article, the leasing enterprises are not permitted to continue leasing the employee with respect to the hiring party which such employee has just ended the lease duration.

Chapter 5.

IMPLEMENTATION PROVISIONS

Article 27. Responsibilities of the Ministry of Labor, Invalids and Social Affairs

1. To implement state management on field of labor lease nationwide.

2. To inspect the compliance with labor law at the leasing enterprises and the labor hiring parties.

3. To grant, re-grant, extend or withdraw licenses for the labor leasing operations.

4. To provide, guide provisions on the annually and irregularly reporting regime of the leasing enterprises.

Article 28. Responsibilities of the provincial People’s Committees

1. To guide implementation of provisions in this Decree on license for the labor leasing operation, payment of deposits and jobs entitled to implement labor lease.

2. To train, guide implementation of this Decree and relevant regulations.

3. To monitor, sum up and biannually or annually report to the Ministry of Labor, War Invalids and Social Affairs about situation of labor lease at enterprises, individuals, organizations in their management areas.

Article 29. Effect

1. This Decree takes effect on July 15, 2013.

2. In case of refusal for grant, re-grant or extension of license for labor lease operations, the leasing enterprises operating must ensure lawful rights and interests of the leased employees in accordance with law on labor.

Article 30. Responsibilities for implementation

1. The Minister of Labor, Invalids and Social Affairs shall guide implementation of this Decree.

2. The Governor of the State bank of Vietnam shall guide payment of deposits and management of deposits of the leasing enterprises.

3. Ministers, Heads of ministerial-level agencies, Heads of Governmental agencies, the Presidents of the People’s Committee in central-affiliated cities and provinces shall implement this Decree.

 (Except Annex V, the other Annexes are not translated herein)

ANNEX V

LIST OF JOBS ENTITLED TO IMPLEMENT LABOR LEASE
Promulgated to gether with the Government’s Decree No. 55/2013/ND-CP dated June 22, 2013)

Nghị định 73/2014/NĐ-CP sửa đổi Điều 29 Nghị định 55/2013/NĐ-CP

Nghị định 73/2014/NĐ-CP sửa đổi Điều 29 Nghị định 55/2013/NĐ-CP hướng dẫn Khoản 3 Điều 54 của Bộ luật Lao động về cấp phép hoạt động cho thuê lại lao động, việc ký quỹ và Danh mục công việc được thực hiện cho thuê lại lao động