Decree No. 55/2013/ND-CP dated May 22, 2013 of the Government detailing the implementation of Clause 3, Article 54 of the Labor Code regarding licensing of labor lease, payment of deposits and the list of jobs allowed for labor lease

THE GOVERNMENT

Decree No. 55/2013/ND-CP of May 22, 2013, detailing the implementation of Clause 3, Article 54 of the Labor Code regarding licensing of labor lease, payment of deposits and the list of jobs allowed for labor lease

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the November 29, 2005 Law on Enterprises;

Pursuant to the June 18, 2012 Labor Code;

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

The Government promulgates the Decree detailing the implementation of Clause 3, Article 54 of the Labor Code regarding licensing of labor lease, payment of deposits and the list of jobs allowed for labor lease.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree provides the licensing of labor lease, payment of deposits of labor leasing enterprises and the list of jobs allowed for labor lease.

Article 2. Subjects of application

1. Labor leasing enterprises.

2. Labor hiring parties.

3. Leased employees.

4. Other agencies, organizations and individuals related to labor lease.

Article 3. Interpretation of terms

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

1. Labor leasing enterprise means an enterprise established and operating in accordance with law, hiring employees under labor contracts but not directly using them, and supplying them to another employer for temporary employment (below referred to as leasing enterprise).

2. Labor hiring party means an enterprise, agency, organization, cooperative, household or individual that needs labor for a given period and hire employees of a leasing enterprise so as to make up for the lack of employees.

3. Leased employee means an employee with full civil act capacity who has signed a labor contract with a leasing enterprise and is leased by the leasing enterprise in order to work under the management of the labor hiring party for a given period.

Article 4. Prohibited acts in labor lease

1. For leasing enterprises:

a/ Paying wages and other benefits to leased employees lower than those already agreed with the labor hiring party;

b/ Lending the license for labor lease to another enterprise or borrowing it from another enterprise for conducting labor lease;

c/ Collecting charges from leased employees or leasing employees without the latter’s consent;

d/ Leasing employees for jobs which are not in the list of jobs allowed for labor lease provided in Appendix V to this Decree, or leasing employees after the expiration of the labor lease duration prescribed in Article 26 of this Decree;

dd/ Leasing employees to other enterprises in the parent company-subsidiary companies or economy group of which the leasing enterprise is a member.

2. For labor hiring parties:

a/ Collecting charges from leased employees;

b/ Sub-leasing the employees already hired by them to another employer;

c/ Assigning the leased employees to perform jobs that are not in the list of jobs allowed for labor lease provided in Appendix V to this Decree, or using the leased employees after the expiration of the labor lease duration prescribed in Article 26 of this Decree.

Chapter II

CONDITIONS, PROCEDURES AND COMPETENCE FOR LICENSING LABOR LEASE

Section I

CONDITIONS FOR LICENSING LABOR LEASE

Article 5. Conditions for licensing labor lease

An enterprise may be licensed for labor lease when fully satisfying the following conditions:

1. Having paid a deposit of VND 2,000,000,000;

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

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

4. The head of the enterprise ensures the conditions prescribed in Article 8 of this Decree.

Article 6. Condition on legal capital for labor lease

1. The legal capital for the business line of labor lease is VND 2,000,000,000.

A leasing enterprise shall maintain the charter capital not lower than the legal capital during its operation.

2. A dosiser proving the legal capital specified in Clause 1 of this Article comprises:

a/ The capital contribution minutes of founding shareholders, for joint-stock companies, or of founding members, for limited liability companies with two or more members; the capital allocation decision of the owner, for single-member limited liability companies; the investment capital registration of the enterprise owner, for private enterprises and single-member limited liability companies with their owners being individuals;

b/ For capital amounts contributed in cash, a written certification of the deposited cash amount by the commercial bank licensed to operate in Vietnam where the enterprise deposits its contributed capital;

c/ For capital amounts contributed in assets, a certificate of the organization having the valuation function in Vietnam of the result of valuation of assets contributed as capital. The certificate must be still valid by the date of submission of the dossiers to the competent business registration agency.

3. Foreign enterprises having entered into joint ventures with local enterprises must ensure the following conditions:

a/ Being specialized in labor lease, possessing capital and total value of assets worth VND 10,000,000,000 or more;

b/ Having operated in the field of labor lease for at least 5 years;

c/ Having a certificate by a competent agency of the host country that the enterprise and the person representing the contributed capital amount of the enterprise have not committed any acts in violation of the laws of the host or relevant countries.

The above documents must be translated into Vietnamese, certified by an overseas Vietnamese diplomatic mission or consulate, and consularly legalized in accordance with Vietnamese law.

Article 7. Conditions on places of head offices, branches and representative offices of leasing enterprises

The locations of head offices, branches and representative offices of leasing enterprises must be stable for at least 2 years; if they are buildings owned by the business registrants, the dossiers of application for grant, re-grant or extension of licenses for labor lease must contain valid papers; if they are rented, there must be house renting contracts with a term of at least 2 years.

Article 8. Conditions on heads of leasing enterprises and their branches and representative offices

1. Having full civil act capacity and clear personal records.

2. Having worked in the field of labor lease for at least 3 years.

3. During 3 consecutive years before applying for a license for labor lease, they were not heads of enterprises that have their business registration certificates revoked or they did not re-commit acts of forging dossiers of application for grant or re-grant of enterprise registration certificates or dossiers of application for grant, re-grant or extension of licenses for labor lease.

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

Upon replacement of their managers or holders of key positions or change of their charter capital, leasing enterprises shall comply with the Law on Enterprises and relevant documents, ensuring the conditions specified in Article 5 of this Decree; and concurrently notify in writing such replacement or change to provincial-level Departments of Labor, War Invalids and Social Affairs within 10 working days before the date such change or replacement is effected.

Article 10. Notices of locations, time of commencement of operation, and managers and holders of key positions of leasing enterprises

1. Within 10 working days before commencing labor leasing activities, leasing enterprises shall send written notices to provincial-level Departments of Labor, War Invalids and Social Affairs of the localities where their head offices and branches are located of the locations of their offices and geographical areas of operation and time of commencement of operation, together with copies of their licenses for labor lease and lists of their managers and holders of key positions.

2. In case of relocation of their head offices, branches or representative offices, at least 15 working days before effecting the relocation, heads of leasing enterprises shall send written notices of the new locations to provincial-level Departments of Labor, War Invalids and Social Affairs, leased employees and the labor hiring parties.

Section II

PROCEDURES AND COMPETENCE FOR GRANT AND WITHDRAWAL OF LICENSES FOR LABOR LEASE

Article 11. Dossiers of request for grant, re-grant or extension of licenses for labor lease

1. A dossier of application for a license for labor lease comprises:

a/ A written application for a license for labor lease, made according to the form provided in Appendix II to this Decree;

b/ Documents proving the satisfaction of the condition on legal capital as prescribed in Article 6 of this Decree;

c/ The certificate of deposit payment as prescribed in Article 16 of this Decree;

d/ The enterprise registration certificate as prescribed in the Law on Enterprises;

dd/ The resume of the enterprise head as prescribed by law;

e/ Documents proving the satisfaction of the condition on location as prescribed in Article 7 of this Decree.

2. Dossiers of request for re-grant or extension of licenses for labor lease comprise documents specified at Points a, b, c, dd and e, Clause 1 of this Article.

Article 12. Validity term of licenses for labor lease

1. A license for labor lease has a validity term not exceeding 36 months.

2. In case of extension of a license for labor lease, the extended duration must not exceed 24 months and the number of extensions must not exceed twice.

The validity term of a re-granted license for labor lease must not exceed that of the previously granted one.

Article 13. Competence to grant, re-grant, extend or withdraw licenses for labor lease

1. The Minister of Labor, War Invalids and Social Affairs may grant, re-grant, extend or withdraw licenses for labor lease.

Leasing enterprises shall send dossiers of request for grant, re-grant or extension of licenses for labor lease as prescribed in Article 11 of this Decree to the Ministry of Labor, War Invalids and Social Affairs.

2. The Minister of Labor, War Invalids and Social Affairs shall, based on contents specified in Section I, Chapter II of this Decree and other relevant provisions, decide on the grant, re-grant or extension of licenses for labor lease within 30 working days, for cases of first-time grant, or 20 working days, for cases of re-grant and extension, as from the date of receiving the complete and valid dossiers.

In case of refusal to grant, re-grant or extend a license for labor lease, the Minister of Labor, War Invalids and Social Affairs shall reply in writing, clearly stating the reason.

Article 14. Withdrawal of licenses for labor lease

1. A leasing enterprise may have its license for labor lease withdrawn in the following cases:

a/ Failing to fulfill its obligations as prescribed by law and this Decree;

b/ Declaring untruthfully the conditions prescribed in Article 5 of this Decree or forging the documents prescribed in Article 11 of this Decree; tampering with the license for labor leasing;

c/ Violating one of provisions of Clause 1, Article 4 of this Decree;

d/ Being administratively sanctioned due to violation of the labor law 3 times within 12 months;

dd/ Failing to add its deposit after the time limit specified in Article 18 of this Decree;

e/ Terminating its operation;

g/ Failing to operate after 6 months from the day of being licensed for labor lease;

h/ Having its enterprise registration certificate withdrawn.

2. If a leasing enterprise has its license for labor lease withdrawn or its application for re-grant or extension of its license is rejected, the labor contracts signed between the leased employees and the leasing enterprise continue to be performed, except the cases specified in Article 36 of the Labor Code.

Chapter III

PAYMENT OF DEPOSITS AND MANAGEMENT OF DEPOSITS OF LABOR LEASING ENTERPRISES

Article 15. Use of deposits

Deposits must be used for payment of wages or compensations to leased employees in case the leasing enterprises violate labor contracts with leased employees or cause damage because the enterprises fail to ensure the rights and legitimate interests of leased employees.

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

1. Leasing enterprises shall each pay a deposit of VND 2,000,000,000 at commercial banks where they open main transaction accounts (below referred to as banks).

2. Leasing enterprises shall pay deposits according to regulations of banks and relevant law. After leasing enterprises complete procedures and pay the deposit, banks shall issue a deposit certificate to the enterprises for doing the labor lease business.

Article 17. Deposit interests

Leasing enterprises may enjoy interests from deposits as agreed with banks.

Article 18. Additional payment of deposits

1. Within 30 days, after money is withdrawn from the deposit account, a leasing enterprise shall pay additional money to its deposit up to the level prescribed in Article 16 of this Decree.

2. After the time limit specified in Clause 1 of this Article, if a leasing enterprise fails to pay additional money to its deposit, the bank concerned shall notify such the Ministry of Labor, War Invalids and Social Affairs.

Article 19. Refund of deposits

A leasing enterprise may have its deposit refunded in the following cases:

1. Having a notification of refusal to grant or re-grant or withdrawal of a license for labor lease from the Minister of Labor, War Invalids and Social Affairs.

2. Having a decision on withdrawal of the license for labor lease, issued by the Minister of War Labor, Invalids and Social Affairs.

Article 20. Drawing of deposits

1. Deposits are drawn in the following cases:

a/ The leasing enterprise is unable to pay wages to leased employees after 60 days from the due date of wage payment;

b/ The leasing enterprise is unable to pay compensations or fails to pay compensations to leased employees as prescribed in Article 15 of this Decree within 60 days after receiving decisions of the Labor Inspectorate;

c/ The leasing enterprise has failed to pay, or delayed payment of, social insurance, health insurance and unemployment insurance premiums for 3 consecutive months.

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

3. Banks may not allow leasing enterprises to draw their deposits without written consent of the Minister of Labor, War Invalids and Social Affairs as prescribed in Article 21 of this Decree.

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

1. The Minister of Labor, War Invalids and Social Affairs may permit leasing enterprises to draw deposits for implementing the provisions of Article 15 of this Decree.

2. Provincial-level People’s Committees shall direct specialized agencies in supervising the payment and compensation by leasing enterprises to their leased employees as prescribed in Article 15 of this Decree.

Article 22. Responsibilities of banks

1. To properly implement regulations on opening of deposit accounts, payment and use of deposits by leasing enterprises, and regulations concerning these accounts.

2. To blockade deposits and calculate and pay interests on the deposit balances at the deposit interest rates as agreed with leasing enterprises. At the end of every month, to calculate interests payable to the enterprises and account them in the deposit accounts or pay them in cash to the enterprises.

3. To grant certificates of deposits for labor lease business to enterprises according to the form provided in Appendix III to this Decree.

4. In case a leasing enterprise violates labor contracts with leased employees or causes damage because it fails to ensure the rights and legitimate interests of leased employees and there is a decision of the Minister of Labor, War Invalids and Social Affairs forcing the enterprise to pay and compensate for damage, to deduct the enterprise’s deposit for payment and compensation for damage, after subtracting banking service charges.

5. To require leasing enterprises to additionally pay money to their deposits as prescribed in Clause 1, Article 18 of this Decree within 30 days, after money is deducted from their deposit accounts to pay and compensate for damage. After the above time limit, if the leasing enterprises fail to additionally pay money to their deposits, to notify such to the Ministry of Labor, War Invalids and Social Affairs.

6. Quarterly, not later than the 15^th of the first month of the following quarter, banks receiving deposits for labor leasing business shall report to the Ministry of Labor, War Invalids and Social Affairs and the State Bank of Vietnam on the receipt of these deposits within their bank system according to the form provided in Appendix IV to this Decree.

Chapter IV

JOBS ALLOWED FOR LABOR LEASE

Article 23. Purposes of labor lease

1. To temporarily meet sudden increases in the demand for human resources in a given duration.

2. To replace employees who take maternity leave, suffer labor accidents, occupational diseases or have to perform citizen’s obligations, or reduce working time.

3. To meet the demand for employees with high technical and professional qualifications.

Article 24. Cases in which labor lease is banned

1. Enterprises currently have labor disputes or strikes or enterprises want to replace employees who are exercising the right of strike and during the settlement of labor disputes.

2. The leasing enterprises fail to reach specific agreements with the labor hiring parties on the responsibility to pay compensation for labor accidents or occupational diseases for leased employees.

3. Replacement of employees who are laid off due to restructuring, change of technology or merger, consolidation, division or splitting of enterprises, or due to economic reasons.

4. Leasing of employees to work in places with harsh living conditions according to the list promulgated by the Minister of Labor, War Invalids and Social Affairs and the Minister of Health, except those employees who have lived in these areas for full 3 years or more; jobs for labor lease in the list of heavy, hazardous and dangerous and specially heavy, hazardous and dangerous jobs promulgated by the Minister of Labor, War Invalids and Social Affairs.

Article 25. List of jobs allowed for labor lease

1. Jobs allowed for labor lease are provided in Appendix V to this Decree.

2. Labor lease is allowed for only jobs in the list and complies with provisions of Articles 23 and 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 the list provided in Appendix V to this Decree, and submit its modifications to the Prime Minister.

Article 26. Labor lease duration

1. The labor lease duration must not exceed 12 months.

2. Upon the expiration of the duration specified in Clause 1 of this Article, leasing enterprises may not continue leasing their employees to the hiring parties with which such employees have just completed the lease duration.

Chapter V

IMPLEMENTATION PROVISIONS

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

1. To perform the state management of labor lease nationwide.

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

3. To grant, re-grant, extend or withdraw licenses for labor lease.

4. To provide and guide the annual and irregular reporting regime of leasing enterprises.

Article 28. Responsibilities of provincial-level People’s Committees

1. To guide the implementation of this Decree on licensing of labor lease, payment of deposits and jobs allowed for labor lease.

2. To organize training in and guidance on the implementation of this Decree and relevant regulations.

3. To monitor, review and biannually and annually report to the Ministry of Labor, War Invalids and Social Affairs on the labor lease at enterprises, agencies and organizations in the localities under their management.

Article 29. Effect

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

2. In case their applications for the grant, re-grant or extension of their licenses for labor lease are rejected, operating leasing enterprises shall ensure the rights and legitimate interests of leased employees in accordance with the labor law.

Article 30. Implementation responsibilities

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

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

3. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, and chairpersons of provincial-level People’s Committees shall implement this Decree.-

On behalf of the Government
Prime Minister
NGUYEN TAN DUNG

Appendix V

LIST OF JOBS ALLOWED FOR LABOR LEASE
(Promulgated together with the Government’s Decree No. 55/2013/ND-CP of June 22, 2013)

* Other appendices to this Decree are not translated.