Circular No. 01/2014/TT-BLDTBXH dated January 08, 2014

CIRCULAR

DETAILING AND GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF DECREE NO. 55/2013/ND-CP OF 22/5/2013 OF THE GOVERNMENT DETAILING THE IMPLEMENTATION OF CLAUSE 3, ARTICLE 54 OF THE LABOR CODE ON LICENSING OF LABOR SUBLEASE, PAYMENT OF DEPOSITS AND LIST OF JOBS ALLOWED FOR LABOR SUBLEASE

Pursuant to the Labor Code of June 18, 2012;
Pursuant to the Decree No. 55/2013/ND-CP of May 22, 2013 of the Government detailing the implementation of Clause 3, Article 54 of the Labor Code on licensing of labor sublease, payment of deposits and list of jobs allowed for labor sublease;
Pursuant to Decree No.106/2012/ND-CP of 20 December 2012 of the Government stipulating functions, tasks, power and organizational structure of the Ministry of Labor-War Invalid and Social Affairs;
At the Proposal of the Director of Legal Affair Department;
The Minister of Labor-Invalids and Social Affairs promulgates Circular detailing and guiding the implementation of a number of articles of Decree No. 55/2013/ND-CP of May 22, 2013 of the Government detailing the implementation of Clause 3, Article 54 of the Labor Code on the licensing of labor sublease, payment of deposits and list of jobs allowed for labor sublease.
Chapter 1.

GENERAL PROVISIONS

Article 1. Scope of regulation
This Circular provides procedures on issuance, re-issuance, extension and withdrawal of Operating Licenses for labor sublease, reporting regime of labor sublease under Decree No.55/2013/ND-CP of May 22, 2013 of the Government detailing the implementation of Clause 3, Article 54 of the Labor Code on the licensing of labor sublease, payment of deposits and list of jobs allowed for labor sublease (below collectively referred to as Decree No.55/2013/ND-CP)
Article 2. Subjects of application
This Circular applies for Labor sub-leasing enterprises (below referred to as “sub-leasing enterprises”), Labor hiring parties, sub-leased employees and other agencies, organizations and individuals related to labor sublease.
Article 3. Dossiers for confirmation of foreign enterprises operating in labor sublease
1. Foreign enterprises specialized in labor sublease as prescribed in Point a, Clause 3, Article 6 of Decree No.55/2013/ND-CP are enterprises having main production or trade activities are labor sublease.
A dossier for determination of an enterprise operating in labor sublease will include one of following documents:
a) The business registration certificate of the enterprise, in which labor sublease is a licensed content;
b) The License of labor sublease issued by a competent state agency of the host country;
c) Other documents issued by competent state agencies of the host country to the enterprise for conducting Labor sub-leasing activities.
2. Document that proves experiences in labor sub-leasing activities as prescribed in Point b, Clause 3, Article 6 of Decree No. 55/2013/ND-CP is the contract that the enterprise conducted labor sub-leasing activities, in which reflected the duration of the licensed labor sub-leasing activities in accordance with legal provisions of the host country and other relevant documents (if any).
Article 4. Dossiers for determination of locations where headquarters, branches, representative offices of leasing enterprises are located
Valid documents for cases that locations of headquarters, branches or representative offices of enterprises are houses owned by persons whose names are in business registration certificates according to Article 7 of Decree No. 55/2013/ND-CP include one of following documents such as the certificates of land use rights and house ownership of the registrants.
Article 5. The heads of leasing enterprises, branches and representative offices, managers and persons who hold key positions of leasing enterprises
1. Heads of leasing enterprises, branches and representative offices of leasing enterprises as prescribed in Article 8 of Decree No.55/2013/ND-CP are owners of private enterprises, enterprises or authorized persons of owners of one-member liability limited companies, members or authorized persons of members of liability limited companies with two members or more, shareholders or authorized persons of shareholders of joint stock companies, members of partnerships.
2. Heads of leasing enterprises will have to prove that they have experience in labor sublease according to Clause 2, Article 8 of Decree No. 55/2013/ND-CP through contracts on management, administration of labor sub-leasing activities or contracts on management, administration of Labor supplying activities.
Contents in curriculum vitae (CV) of the leasing enterprise are set in a form under Annex II promulgated together with this Circular.
3. Managers, persons who hold key positions of leasing enterprises under Article 9 of Decree No.55/2013/ND-CP are Directors or General Directors, Chief Accountants and other managers as provided in Charters of enterprises or positions appointed by competent persons of enterprises for titles in management boards of leasing enterprises.
Article 6. Cases of changing locations of headquarters, branches, representative offices of leasing enterprises
1. Leasing enterprises are entitled to change their locations of headquarters, branches or representative offices before the time limit provided in Clause 2, Article 10 of Decree No.55/2013/ND-CP in cases as follows:
a) Fire;
b) Collapse, damages or landslides causing damages;
c) Site clearance according to decisions of competent state agencies;
d) Other cases of force majeure.
2. The written notice sending to Departments of Labor-Invalids and Social Affairs regarding changes in locations of headquarters, branches or representative offices of leasing enterprises will have to enclose with verifying documents of People’s Committees of communes, wards or towns for cases provided in Point a, Point b of Clause 1 of this Article or accredited documents of the above-mentioned competent state agencies for cases provided in Point d, Clause 1 of this Article.
Chapter 2.

PROCEDURES FOR ISSUANCE, RE-ISSUANCE, EXTENSION AND WITHDRAWAL OF OPERATING LICENSES OF LABOR SUBLEASE

Article 7. Order in issuance, re-issuance, and extension of operating licenses of labor sublease
1. The enterprise is responsible for sending directly, fully 01 set of Dossier for issuance, re-issuance or extension of Operating License of labor sublease as prescribed in Article 11 of Decree No.55/2013/ND-CP to Department of Labor-Invalids and Social Affairs of province or city where headquarter of the enterprise is located to propose an assessment of Dossier for issuance, re-issuance, and extension of Operating License of labor sublease (below collectively referred to as “the License”), concurrently send 01 set of the above Dossier to the Ministry of Labor-Invalids and Social Affairs (its Legal Affair Department) to conduct a proposal of issuance, re-issuance or extension of the License.
In case where the Dossier proposed to have an assessment of the enterprise does not have sufficient documents as prescribed in the Dossier for issuance, re-issuance or extension of the License, then within 03 working days since the date of receiving the Dossier proposed to have an assessment, the Department of Labor-Invalids and Social Affairs is responsible for notifying in writing to the enterprise on the supplementation of missing documents.
2. When receiving a Dossier for request of issuance, re-issuance or extension of the License, the Department of Labor-Invalids and Social Affairs will be responsible for recording in tracking book and issuing a receipt to the enterprise, in the receipt must clearly state date, month, year of receiving the dossier, documents enclosed in the dossier and the time limit for response.
The Department of Labor-Invalids and Social Affairs will be responsible for assessment of authenticity of contents in the Dossier within 30 working days, since the date of receiving a full and valid Dossier and sends result of the assessment enclosed with 01 copy of the Dossier for request of issuance, re-issuance or extension of the License of the enterprise to the Ministry of Labor-Invalids and Social Affairs (its Legal Affair Department).
3. The Minister of Labor-Invalids and Social Affairs will base on the Dossier for request of issuance, re-issuance or extension of the enterprise and the assessment result of the Dossier of the Department of Labor-Invalids and Social Affairs, as well as other relevant legal provisions to issue, re-issue, extend or not to issue, re-issue or extend the License according to the time limit provided in Clause 2, Article 13 of Decree No.55/2013/ND-CP and concurrently send its response in writing about that decision to the enterprise and the Department of Labor-Invalids and Social Affairs that conducted the assessment of the Dossier for request of issuance, re-issuance or extension of the License.
Article 8. Dossiers for suggests of issuance, re-issuance or extension of Licenses
1. A dossier for request of issuance, re-issuance or extension of the License will comprise of documents provided in Article 11 of Decree No.55/2013/ND-CP
2. For case of extending the License or suggesting issuance of a new License, the leasing enterprise will have to send a Dossier for suggest of extension or issuance of a new License in accordance with Article 7 of this Circular, not later than 90 working days before the expiry date of the License.
3. For case of suggesting a re-issuance of the License due to a fire or a loss, then beside those documents prescribed in Clause 1 of this Article, the leasing enterprise will have to enclose with a verifying document of the People’s Committee of commune, ward or town regarding such loss or fire of license.
In case of suggesting re-issuance of the License due to a damage, the leasing enterprise will have to send a copy of the License enclosed with the Dossier for request of re-issuance to the Department of Labor-Invalids and Social Affairs to request an assessment and submit again its License to the Ministry of Labor-Invalids and Social Affairs (its Legal Affair Department) when conducting a request for re-issuance of the License.
Article 9. The operating licenses for labor sublease
1. An operating license of labor sublease as prescribed in Clause 1, Article 12 of Decree No.55/2013/ND-CP will comprise of 01 page printed on cardboard white paper, blue pattern, imprinted with the national emblem, black frame and full of contents in the set form prescribed in Annex I enclosed with Decree No.55/2013/ND-CP
2. In case where the License have been extended 02 times as provided in Clause 2, Article 12 of Decree No.55/2013/ND-CP but the leasing enterprise still continue having demand in labor sublease after the expiry date of the above License, then the enterprise will need to conduct procedures to request an issuance of a new License in order to continue its labor sub-leasing activities.
3. For case where the enterprise operating in production or trade activities under form of supplying services, that their recruited employees, then transferred to enterprises of another employers to do jobs and are not subject to management or administration of this employer directly or indirectly such as observation with provisions of: working regulation; collective Labor agreement; working hours; rest hours; Labor safety-Labor hygiene; Labor discipline and material liability of the employer during the implementation of their service supply, then it is not required to issue License for implementation of such business activity.
Article 10. Cases of re-issuance or change of the License
1. The licensing enterprise will be re-issued with the License when the License is lost, fired or damaged.
2. The licensing enterprise is entitled to change the License when being re-issued with the Business Registration License due to a change in content of its business registration in case of satisfying sufficient condition involving legal capital prescribed in Article 5 of Decree No.55/2013/ND-CP within 20 working days, after sending the Dossier for request of changing the License to the Ministry of Labor-Invalids and Social Affairs (its Legal Affair Department) enclosed with a document proving sufficient conditions of the legal capital as prescribed in Article 6 of Decree No.55/2013/ND-CP
Article 11. Notification of Licenses
1. Within 10 days, since the date of having issued or extended License, the leasing enterprise must have a notification enclosed with a copy of the License sent to the Department of Labor-Invalids and Social Affairs of province or city where the enterprise located its headquarter and list publicly a copy of the License at the headquarter of the enterprise.
2. Within 30 days, since the date of being issued or changed with the License, the enterprise must post contents of the License on an e-media within 05 consecutive days.
Article 12. Assessment of dossiers for issuance, re-issuance or extension of Licenses
1. The Department of Labor-Invalids and Social Affairs of the province or the city where the enterprise located its headquarter will base on provisions under Decree No.55/2013/ND-CP and Articles 3, 4, 5, 6 and 7 of this Circular as well as other relevant provisions to conduct assessment on the authenticity of the dossier for issuance, re-issuance or extension of the License.
During the assessment process if detect the enterprise declared false or forged contents of the Dossier for request of issuance, re-issuance or extension of the License, the Department of Labor – Invalids and Social Affairs of the province or the centrally-run city where the dossier was received will be responsible for sending a proposal to the Minister of Labor-Invalids and Social Affairs to revoke the License for cases of new issuance, re-issuance or extension within 05 working days, since the date of detecting above-mentioned behavior.
2. In necessary case, the Department of Labor-Invalids and Social Affairs will request the enterprise to report problems pertaining to contents of the Dossier; request relevant state agencies to give their opinions in writing on problems pertaining to contents of the Dossier for request of issuance, re-issuance or extension of the License. The enterprise will be responsible for providing information, materials to serve assessment of the Dossier.
Article 13. Order of withdrawal of operating licenses for labor sublease
1. Department of Labor-Invalids and Social Affairs will be responsible for sending a proposal to the Minister of Labor-Invalids and Social Affairs to withdraw the License of the leasing enterprise when this enterprise falls under one of cases as prescribed in Clause 1, Article 14 of Decree55/2013/ND-CP or this enterprise will not permitted to conduct procedure for new issuance, re-issuance or extension of the License or not be newly issued or extended with the License.
2. Minister of Labor-Invalids and Social Affairs will decide to withdraw the License in accordance with Article 13 of Decree 55/2013/ND-CP concurrently notify the withdrawal of the License to the People’s Committee of the province or the centrally-run city where the enterprise located its headquarter.
3. Within 15 days since the Minister of Labor-Invalids and Social Affairs had the decision on withdrawal of the License, the leasing enterprise have to return the granted License to Ministry of Labor-Invalids and Social Affairs (its Legal Affair Department).
Article 14. Obligations of leasing enterprises when their Licenses withdrawn
1. Within 30 working days, since the date of having the Decision on withdrawal of the License of the Minister of Labor-Invalids and Social Affairs, the leasing enterprise will have to report in writing to the Department of Labor-Invalids and Social Affairs regarding termination of labor sub-leasing activities, including main contents as follows:
a) The labor sub-leasing contract which is still valid;
b) Number of leased employees working for the Labor hiring party;
c) Number of leased employees recruited in valid contracts;
d) Plan for performing obligation of employer in valid contracts.
In case that the enterprise does not conduct labor sub-leasing activities after 6 months, since the date of being issued with the License as prescribed in Point g, Clause 1, Article 14 of Decree No.55/2013/ND-CP then the enterprise will be considered to refund with the amount of deposit without reporting contents as prescribed in Clause 1 of this Article after fulfilling its obligation in accordance with Clause 3 of this Article.
2. Within 20 days, since the date of having the Decision on withdrawal of the License of the Minister of Labor-Invalids and Social Affairs, the leasing enterprise will have to post publicly on an e-media within 07 consecutive days regarding termination of labor sub-leasing activities.
3. After fulfilling obligation with the Government in accordance with provisions under Article 15 of this Circular, obligations towards the leased employees under signed contracts, the leasing enterprise will report in writing to the Department of Labor-Invalids and Social Affairs of the province or the centrally-run city where the leasing enterprise located its headquarter regarding the completion of its obligations, enclosed with materials proving the completion of such obligations.
Department of Labor-Invalids and Social Affairs will consider and send a written proposal to the Minister of Labor-Invalids and Social Affairs to return the amount of deposit to the enterprise in accordance with provisions under Article 19 of Decree No.55/2013/ND-CP
Article 15. Order, procedure for confirmation of legal capital in labor sub-leasing activities
Order and procedure for confirmation of legal capital when setting up the leasing enterprise or supplementing labor sub-leasing trade of the enterprise according to Article 6 of Decree No.55/2013/ND-CP then beside those prescribed Dossiers on business registration procedure, it is required to have a document verifying the capital sent to the state agency that issues business registration certificate to conduct procedure for issuance of the business registration certificate or to supplement the business of labor sublease according to provisions as follows:
1. For newly-established enterprise, then the dossier for confirmation of legal capital will comprise of documents as provided in Clause 2, Article 6 of Decree No.55/2013/ND-CP.
In case that capital is contributed in money, it is required to have a document verified by a licensed commercial bank in Vietnam regarding the amount of deposit of founding members. The amount of deposit must be at least equal to contributed capital in money of founding members and will only be disbursed after the enterprise is issued with its Business Registration Certificate.
2. For the enterprise which is in operation and has demand in supplementing its business of labor sub-leasing activities, then the dossier for confirmation of legal capital must have a document verified by an independent audit organization regarding existing capital under ownership of such enterprise and recorded in the financial statement of the enterprise at the latest time (year of registration or the year preceding the year of registration), ensured greater or equal to the legal capital in accordance with Decree 55/2013/ND-CP (Vietnam Dong 2 billions).
3. Organization and individual that directly verified the legal capital will jointly bear responsibilitiesfor the accuracy and truthfulness of capital at the time of certification.
Article 16. Obligations of the enterprise
The leasing enterprise will have basic obligations as follows:
1. To operate its business activities in compliance with trades recorded in its Business Registration Certificate; to ensure business conditions in accordance with legal provisions when conducting business activities conditional trades.
2. To organize accounting work, prepare and submit financial reports truthfully, accurately and on time in accordance with the law on accounting.
3. To register tax code, declare taxes, pay taxes and perform other financial obligations in accordance with legal provisions.
4. To ensure rights and interests of employees in accordance with labor law; implement social insurance, health insurance and other insurance for employees under legal provisions on insurance.
5. To ensure and take responsibility on quality of goods or services in accordance with standards registered or notified.
6. To perform statistical regime prescribed by law on statistics; report periodically and fully information about the enterprise, the financial situation of the enterprises with competent state agencies in prescribed form; when discover the declared or reported information is inaccurate and incomplete, it is required to promptly amend or supplement such information.
7. To comply with legal provisions on defense, security, social order and security, protection of natural resources, environment, historical monuments, culture and scenic beauty.
8. Other obligations prescribed by law.
Chapter 3.

REPORT REGIME IN LABOR SUBLEASE

Article 17. Report on situation of labor sublease
1. Report on situation of labor sublease is a document that summarizes situation, result of the implementation of labor sub-leasing activities of the leasing enterprise and of relevant state agencies, organizations and units in accordance with legal provisions.
2. The reporting is required to ensure the principle of sufficient, accurate, objective and timely.
3. The reporting of the leasing enterprise will comprise:
a) Periodic reports on 6-month and annual basis in accordance with the prescribed form in Annex I promulgated with this Circular. Report must be sent to the Ministry of Labor-Invalids and Social Affairs (its Legal Affair Department), concurrently sent to the provincial-level People’s Committee (Department of Labor-Invalids and Social Affairs) where the leasing enterprise located its headquarter before June 20 and December 20 every year;
b) Extraordinary reports as requested by the Ministry of Labor-Invalids and Social Affairs or the People’s Committee of provinces or centrally-run cities;
In case that the leasing enterprise falls in one of cases prescribed in Clauses 2, 3 and 4 of Article 18 of this Circular, it is required to send reports to the People’s Committee of the province or the centrally-run cities and other state agencies or units as prescribed by law.
Article 18. Cases of extraordinary reports
The leasing enterprise is responsible for sending extraordinary reports on situation of labor sublease, in cases as follows:
1. At the request of Minister of Labor-Invalids and Social Affairs or Chairman of the People’s Committee of the province or the centrally-run city where the enterprise located its headquarter;
2. Having serious Labor accidents or deadly Labor accidents for leased employees during the process of labor sublease;
3. The leasing enterprise or the hiring party has Labor disputes; strike or the leasing enterprise falls in one of cases as prescribed in Clause 1 of Article 14 of Decree No.55/2013/ND-CP
4. Arising problems which are new, extraordinary, serious, complicated or directly related to legitimate rights and interests of parties in labor sub-leasing activities.
Article 19. Form of reports, way of sending reports
1. Report on situation of labor sub-leasing activities must be shown in writing, with signature and seal of the head of the leasing enterprise and be enclosed with electronic file.
In case that the head of the enterprise authorized for a manager or a person who holds a key position, it is required to sign on the authorization of the head of the enterprise, concurrently enclose with the authorized letter.
2. Report on situation of labor sub-leasing activities will be sent to the receiving places of reports by one of ways as follows:
a) To send via post offices;
b) To send directly.
Article 20. Reports on changes of managers or persons who hold key positions
When there is a change of manager or person who holds a key position in the leasing enterprise as prescribed in Article 9 of Decree No. 55/2013/ND-CP then the leasing enterprise must report to the Department of Labor-Invalids and Social Affairs in writing enclosed with the curriculum vitae of the new person who is tasked to executive leadership of labor sub-leasing activities and documents proving sufficient conditions as prescribed in Article 8 of Decree No. 55/2013/ND-CP
Chapter 4.

IMPLEMENTATION PROVISIONS

Article 21. Obligations of the Ministry of Labor-Invalids and Social Affairs
1. To receive dossier and issue, re-issue or extend operating licenses to enterprises in accordance with legal provisions.
2. To keep dossiers on issuance, re-issuance and extension of licenses for labor sublease.
3. To notify enterprises granted with operating licenses of labor sublease.
Article 22. Obligations of Departments of Labor-Invalids and Social Affairs
1. To organize propagandas and dissemination of Vietnamese labor legislations regarding labor sublease to the labor leasing enterprises, hiring parties and leased employees in localities.
2. To evaluate Dossiers on request of issuance, re-issuance or extension of Licenses of enterprises.
3. To conduct supervision on payments of salary or compensation to leased employees when enterprises conduct their withdrawal of deposits to perform above works.
4. To organize, guide, check and inspect the implementation of legal provisions on labor sublease of enterprises, state agencies, organizations and individuals in the localities;
5. To propose the Minister of Labor-Invalids and Social Affairs withdrawing deposits of leasing enterprises to pay salary or compensate to leased employees.
For case that enterprises are returned with deposits, it is responsible for sending proposals to the Ministry of Labor-Invalids and Social Affairs to allow enterprises to be returned with deposits after completing obligations in compliance with provisions of this Circular and relevant legal documents.
6. To propose the Minister of Labor-Invalids and Social Affairs withdrawing Licenses of leasing enterprises when discovered that those enterprises had acts of violations of legal provisions which are provided for withdrawal of their Licenses.
7. To sum up and report situation of labor sub-leasing activities on their management areas to the Ministry of Labor-Invalids and Social Affairs (its Legal Affair Department) before July 20 and January 20 every year.
Article 23. Effect
This Circular takes effect on March 01, 2014.
Any problems arising in the course of implementation of this Circular, state agencies, organizations or individuals should report timely to the Ministry of Labor-Invalids and Social Affairs for guidance.