Chương 3 Nghị định 109/2008/NĐ-CP: Giao doanh nghiệp cho tập thể người lao động

Chapter III

ASSIGNMENT OF ENTERPRISES TO THEIR LABOR COLLECTIVES

Article 21.- Conditions on labor collectives to be assigned their enterprises

The labor collective in an enterprise may be considered for assignment of the enterprise when fully satisfying the following conditions:

1. They voluntarily register to accept the enterprise assignment.

2. They pledge to maintain and develop production and business, ensure minimum jobs for three years or more from the date of acceptance of the enterprise, and fully pay insurance premiums for laborers who continue working in the enterprise under law.

3. They inherit debts and property obligations of the enterprise after these debts and obligations are handled under this Decree; and inherit rights and obligations towards laborers as provided for in the labor law.

4. They may not sell, lease or dissolve the enterprise at their own will within a minimum period of three years after the assignment, except when the enterprise goes bankrupt.

Article 22.- Principles for handling of assets, finance and debts upon enterprise assignment

1. The Renewal Board at the enterprise shall inventory and determine the quantity and actual conditions of all assets; long-term and short-term investments; assets which are rented, borrowed, kept or sold for others, consigned, appropriated, leased or lent; compare and classify debts; draw up a list of creditors and payable debts and a list of debtors and receivable debts divided into recoverable debts and irrecoverable debts; classify assets, handle assets and debts.

2. Principles for asset handling:

a/ For assets contributed or received as joint-venture capital; assets rented from outside or financially leased; assets borrowed, kept for others or other assets not belonging to the enterprise: the enterprise assignor and assignee and the asset owners shall negotiate on inheritance or liquidation of previously signed contracts or signing of new contracts;

b/ For appropriated assets, the enterprise shall identify their owners for returning them or entering into contracts to rent or borrow them. In case asset owners are unidentifiable, the enterprise shall account the actual value of these assets as an increase in its state capital;

c/ Assets being welfare facilities, including creches, kindergartens, infirmaries and other welfare assets formed from reward or welfare funds, shall be transferred to the new enterprise for management and use in service of the labor collective in the enterprise. Residential houses of employees, including those invested with state budget allocations, shall be transferred to the local house and land management agency for management or sale to current users under current regulations;

d/ Assets used in production and business which are invested with reward or welfare funds of the enterprise shall be transferred to the enterprise for further use in production and business;

el Cash balances of reward and welfare funds shall be divided to laborers currently working in the enterprise according to the number of working years at the enterprise before the enterprise assignment.

3. Principles for debt handling:

a/ Tax debts, other remittances into the state budget and debts borrowed by the enterprise from state-run commercial banks or the Development Bank of Vietnam, which cannot be fully paid though the enterprise has mobilized all capital sources, shall be handled under the Finance Ministry's guidance;

b/ Social insurance premium debts payable by the enterprise and social insurance premiums of laborers which were already collected by the enterprise shall, before the enterprise assignment, be paid from the value of its suite capital amount. In case no state capital amount is left, payment supports will be provided from the enterprise reorganization support fund under the Finance Ministry's guidance;

c/ The enterprise assignee shall take over receivable and payable debts of the enterprise after they are handled.

4. The remaining asset value, after payment of necessary expenses for enterprise assignment, shall be fully transferred to the labor collective in the enterprise as its owner.

5. In case the director, deputy directors and chief accountant of an enterprise do not take part in the enterprise handover acceptance, they may be considered on a case-by-case basis by the authority that has decided on enterprise assignment to be arranged to other jobs or handled under the Government's payroll streamlining policy.

Article 23.- Order of and procedures for enterprise assignment

1. Based on the approved general scheme on reorganization of enterprises with 100 % state capital, the agency or organization having decided on the assignment of an enterprise shall notify the assignment to the enterprise and publicize the enterprise assignment on the mass media.

2. The Trade Union Executive Committee or the Provisional Trade Union Executive Committee shall join the enterprise director in organizing a General Meeting of Employees to vote by majority on the voluntary acceptance of the enterprise assignment; elaborating and adopting plans on the acceptance of the enterprise assignment, including a production and business plan and a plan on labor rearrangement; complying with the conditions on the acceptance of the enterprise assignment, including the commitment to employ all laborers in the enterprise (excluding those who voluntarily terminate their labor contracts); nominating representatives to carry out procedures for acceptance of the enterprise assignment. For enterprises without trade unions, the Renewal Board at the enterprise shall coordinate with the enterprise director in organizing a General Meeting of Employees.

3. The Renewal Board at an enterprise shall classify assets; determine and classify debts; make financial statements; and estimate expenses for organizing the enterprise assignment. Based on figures on accounting books and results of inventory, classification and handling of assets, finance and debts on the principles for handling assets, finance and debts specified in Article 22 of this Decree, the enterprise director and the Renewal Board at the enterprise shall work out a plan on determination of the value of the enterprise to be assigned to the labor collective. In case estimated expenses for organizing the assignment of an enterprise are higher than the value of the remaining state capital amount in the enterprise, the enterprise shall be subjected to dissolution or bankruptcy instead of assignment.

4. The Trade Union Executive Committee of the enterprise or the Provisional Trade Union Executive Committee or a person elected by the

General Meeting of Employees as their representative shall list and classify laborers and compile their dossiers; and work out a production and business plan and the commitments to accept the enterprise assignment.

5. The representative of the labor collective shall send to the Enterprise Renewal and Development Board a dossier of application for acceptance of enterprise assignment, which comprises:

a/An application for acceptance of enterprise assignment;

b/ A production and business plan;

c/ A plan on employment and retraining of laborers;

d/ Projected form of organization of the new enterprise;

e/ Commitments of the labor collective.

6. The competent authority shall approve the dossier of application for acceptance of enterprise assignment and issue a decision to assign the enterprise to the labor collective. This decision shall be sent to the following agencies: Enterprise Finance Office; Tax Department; Business Registration Office; Planning and Investment Service; Labor, War Invalids and Social Affairs Service; and Statistics Office of the province or centrally run city where the enterprise is headquartered; and the Enterprise Renewal and Development Steering Committee.

7. To organize the conclusion of the contract for enterprise assignment and acceptance between a representative of the labor collective and a person authorized by the minister or the president of the provinciai-level People's Committee: the director general of the state corporation or the parent company. This contract shall be notified to the enterprise and published on a printed or online newspaper for three consecutive issues and contains the following principal details:

a/Name and address of the enterprise assigned to the labor collective;

b/Full name and address of the representative of the labor collective;

c/ Value of the assigned enterprise, and mode of assignment and acceptance;

d/ Commitments of the labor collective at the enterprise;

e/ Rights and obligations of the labor collective accepting the enterprise assignment.

Enclosed with the contract are a list of assigned assets already valued and a list of laborers in the collective receiving the assigned enterprise.

8. The Enterprise Renewal and Development Board shall join the enterprise director in organizing the enterprise handover according to the approved plan to the labor collective represented by the Trade Union president or by a person elected by the General Meeting of Employees to receive and manage the enterprise, to the witness of representatives of the agency or organization having decided on the enterprise assignment and the enterprise finance office.

9. After accepting the assignment, the labor collective's representative shall organize a General Meeting of Shareholders or Cooperative Members, and make business registration for the enterprise in the form of joint-stock company, limited liability company or cooperative as selected by the labor collective under the business registration law. The business registration dossier must comprise the enterprise assignment decision, the assignment and acceptance contract and the written record of handover of the enterprise to the labor collective.

10. Within 30 days after being granted a business registration certificate, the enterprise's representative shall publicize the enterprise assignment and change in the legal form of the enterprise on the mass media under law.

Article 24.- Ownership of enterprises after assignment

The whole remaining asset value of the enterprise, after being handled under Article 22 of this Decree, shall come under the ownership of the labor collective and divided into shares or contributed capital portions to be assigned to each laborer participating in the acceptance of the enterprise assignment.

Each laborer participating in the acceptance of the enterprise assignment may be given the right to own a part of the remaining asset value in Shares or contributed capital portions corresponding to the number of years working in the state sector; enjoy dividends and profits; may bequeath but may not transfer his/her assigned shares or capital portion within three years after the acceptance of the enterprise assignment.

Article 25.- Rights and obligations of the enterprise assignee

1. To make business registration in the selected legal form.

2. To use assigned assets, organize production and business, and distribute incomes according to the organization and operation charter of the enterprise.

3. To inherit lawful rights and interests of the former enterprise as agreed upon in the enterprise assignment and acceptance contract; inherit contracts on land rent, power and water supply of the former enterprise under law. The enterprise may choose to continue die current form of land rent or shift to land allocation under the land law.

4. To be provided with financial assistance from the Enterprise Reorganization Support Fund for organizing the retraining of laborers in order to employ them under the guidance of the Ministry of Finance.

5. To be responsible for fulfilling the commitments in the enterprise assignment and acceptance contract and obligations towards the State under law.