Chương III Nghị định 23/2021/NĐ-CP: Điều kiện cấp, gia hạn, cấp lại, thu hồi giấy phép và hoạt động của doanh nghiệp hoạt động dịch vụ việc làm

Chapter III

CONDITIONS FOR ISSUANCE, RENEWAL, REISSUANCE AND REVOCATION OF LICENSES AND OPERATION OF EMPLOYMENT SERVICE BUSINESSES

Section 1. CONDITIONS, AUTHORITY, PROCESSES AND PROCEDURES FOR ISSUANCE, RENEWAL, REISSUANCE AND REVOCATION OF EMPLOYMENT SERVICE BUSINESS LICENSES

Article 14. Issuance conditions

1. Having premises for an employment service business’s main office or branches to organize employment service activities which are owned or rented permanently by the business under a contract having the term of 3 years (36 months) or more.

2. The business has already pledged 300,000,000 dong (Three hundred million dong) as a security deposit.

3. The business’s legal representative must meet the following conditions:

a) He/she is the business’s executive in accordance with regulations of the Law on Enterprises;

b) He/she is not falling into the following situations: prosecuted for criminal liability; detained; serving imprisonment penalties; serving administrative penalties at compulsory detoxification establishments or compulsory education centers; fleeing from his/her place of residence; having restricted or lost capacity of performing civil acts; facing cognitive difficulties, problems in awareness and behavior control; banned by courts from holding certain posts or practicing certain occupations or doing certain jobs relating to employment services;

c) Having a university degree or higher qualification or having directly involved in professional or administrative tasks related to employment services, or rendering of employment services, for 02 years (24 months) or more within 05 consecutive years before applying for the license.

Article 15. Authority to issue, renew, reissue and revoke licenses

Provincial-level People's Committees or Departments of Labor, War Invalids and Social Affairs authorized by the People's Committees of the provinces where head offices of employment service businesses are located (hereinafter referred to as competent state authorities) shall grant or renew, re-issue and revoke licenses of employment service businesses.

Article 16. Employment service business licenses

1. Each license must be created by using the Form No. 01 of Appendix II hereto.

2. The term of a license shall be regulated as follows:

a) The maximum term is 60 months;

b) A license may be renewed multiple times and the maximum extended period is 60 months;

c) The term of the reissued license must be the remaining term of the previous license.

Article 17. Application documentation requirements

1. Written request for issuance of the license made by using the Form No. 02 of the Appendix II to this Decree.

2. 01 certified true copy of the primary copy or the duplicate with the original presented for comparison purposes of the certificate of ownership or the office lease contract as prescribed in Clause 1, Article 14 of this Decree.

3. Certificate of security deposit for rendering of employment services by using the Form No. 03 of Appendix II hereto.

4. Biographical statement of the business’s legal representative that is made by using the Form No. 04 of the Appendix II to this Decree.

5. Criminal record check No. 1 that is made in accordance with laws on criminal records of legal representatives of businesses. In case where the representative is a foreigner who is not eligible for the criminal record check No. 1, the criminal record check or the written document confirming that he/she is not a person who is currently serving a penalty or has not yet been issued with criminal record expungement, or is criminally prosecuted in foreign countries, may be used as a replacement.

Written documents stated in this clause must be issued for less than 06 months before the date of submission. Written documents in foreign languages ​​must be translated into Vietnamese, authenticated and consularly legalized in accordance with law.

6. 01 certified true copy of the primary copy or the copy with the original presented for comparison purposes of professional qualifications prescribed at point c, clause 3, Article 14, or one of the written documents proving the time during which he/she directly involves in rendering of employment services or management of employment services or supply of employees as follows:

a) Certified true copy of the primary copy or the copy with the original presented for comparison purposes of the labor contract or the employment contract or the decision on recruitment, appointment or assignment of duties of the business’s legal representative;

a) Certified true copy of the primary copy or the copy with the original presented for comparison purposes of the appointment decision (if he/she works under appointment rules and regulations), or the written document stating recognition of election results (if he/she works under election rules and regulations), of the business’s legal representative, or the copy of the business registration certificate (if he/she is the legal representative of the employment service provider).

If written documents stated in point a and b of this clause are those made in foreign countries, they ​​must be translated into Vietnamese, authenticated and consularly legalized in accordance with law.

Article 18. Processes and procedures for issuance of licenses

1. The applicant business sends 01 set of application documents prescribed in Article 17 herein to the Department of Labor, War Invalids and Social Affairs of the place where its main office is located to apply for the license.

2. Upon determining that all documents referred to in Article 17 herein are submitted, the receiving Department of Labor, War Invalids and Social Affairs issues a note of acknowledgement clarifying the date on which application documents are received.

3. Within the maximum duration of 07 working days of receipt of application documents meeting regulations, the competent state authority considers issuing the license to the applicant business; in case of refusal to grant the license, a written response clarifying reasons for such refusal must be sent.

Article 19. Renewal of licenses

1. A business may be granted renewal of their license if they meet the following regulations:

a) Satisfying conditions specified in Article 14 herein;

b) Not falling into the cases of revocation of the license as stipulated in Article 21 herein;

c) Fully complying with reporting rules and regulations set forth herein;

d) Application documents for renewal of the license are filed to the Department of Labor, War Invalids and Social Affairs at least 20 working days before the expiry date of the existing license.   

2. Application documents for renewal, including:

a) Written request for renewal of the license made by using the Form No. 02 of the Appendix II to this Decree.

b) Written document stated clause 2 of Article 17 hereof;

c) Those written documents prescribed in clause 4, 5 and 6 of Article 17 herein. This is required if the business applies for both renewal and change of their legal representative.

3. Processes and procedures for renewal

a) The applicant business sends 01 set of application documents prescribed in Article 2 herein to the Department of Labor, War Invalids and Social Affairs of the place where its main office is located to apply for renewal;

b) Upon determining that all documents referred to in clause 2 herein are submitted, the receiving Department of Labor, War Invalids and Social Affairs issues a note of acknowledgement clarifying the date on which application documents are received;

c) Within the maximum duration of 05 working days of receipt of application documents meeting regulations, the competent state authority considers granting the renewal of the license to the applicant business; in case of refusal to grant the renewed license, a written response clarifying reasons for such refusal must be sent.

Article 20. Reissuance of licenses

1. A business may apply for reissuance of their license in the following cases:

a) Changing one of the information shown in the license, including: business name; the main office’s address, if it is still located in the province where the license is granted; the business’s legal representative;

b) The existing license has gone missing;

c) The license is damaged to the extent that there is missing information in the license;

d) Changing the main office’s address to another province different from the province where the license is granted.

2. Application documents for reissuance of the license, including:

a) Written request for reissuance of the license made by using the Form No. 02 of the Appendix II to this Decree;

b) Written document stipulated in clause 2 of Article 17 herein. This document is required if the business changes their main office's address to another one in the province where the preexisting license was granted;

c) Those written documents prescribed in clause 4, 5 and 6 of Article 17 herein. This is required if the business applies for change of their legal representative;

d) Preexisting license. This is required in the cases specified in point a and c of clause 1 of this Article.

3. Processes and procedures for reissuance of the license are applicable in the cases specified in point a, b and c of clause 1 of this Article as follows:

a) The applicant business sends 01 set of application documents prescribed in Article 2 herein to the Department of Labor, War Invalids and Social Affairs of the place where its main office is located to apply for reissuance;

b) Upon determining that all documents referred to in clause 2 herein are submitted, the receiving Department of Labor, War Invalids and Social Affairs issues a note of acknowledgement clarifying the date on which application documents for reissuance are received;

c) Within the maximum duration of 05 working days of receipt of application documents meeting regulations, the competent state authority considers reissuing the license to the applicant business; in case of refusal to reissue the license, a written response clarifying reasons for such refusal must be sent.

4. Processes and procedures for reissuance of the license are applicable in the cases specified in point d of clause 1 of this Article as follows:

a) Application documents for reissuance of the license, including: a written request for re-issuance of the license made according to the Form No. 02, Appendix II to this Decree; the written documents specified in Clause 2, Article 17 of this Decree; the license that has been issued at the place where the business’s main office was previously located;

b) The applicant business sends 01 set of application documents prescribed in point a of this clause to the Department of Labor, War Invalids and Social Affairs of the place where its new main office is located to apply for reissuance;

c) Upon determining that all documents referred to in point a of this clause are submitted, the receiving Department of Labor, War Invalids and Social Affairs issues a note of acknowledgement clarifying the date on which application documents for reissuance are received;

d) Within 02 working days of receipt of application documents meeting regulations, the Department of Labor, War Invalids and Social Affairs of the place where the business’s new main office is located request to the Department of Labor - Invalids and Social Affairs of the place where the business has obtained the license in writing to provide a copy of the application for the license and confirm the business's conditions for not having its license revoked;

dd) Within 03 working days of receipt of the written request from the Department of Labor, War Invalids and Social Affairs of the place where the business’s new main office, the Department of Labor, War Invalids and Social Affairs of the place where the business has been granted the license has its reply regarding the business’s operation during the operational period within this place and sends the copy of the application for issuance of the license received from the business to the Department of Labor, War Invalids and Social Affairs of the place where the business’s new main office is located.

If the applicant business’s license is revoked according to clause 1 of Article 21 herein, the competent state authority shall issue the revocation decision and notify the Department of Labor, War Invalids and Social Affairs of the place where its new main office is located;

e) Within the maximum duration of 03 working days of receipt of the written document from the Department of Labor, War Invalids and Social Affairs of the place where the business has been granted the license, the competent state authority shall consider reissuing the license to the applicant business; in case of refusal to reissue the license, a written response clarifying reasons for such refusal must be sent.

Article 21. Revocation of licenses

1. A business's license may be revoked in the following cases:

a) Terminating employment services upon the business’s request;

b) The business is dissolved or is declared bankrupt under the Court’s decision;

c) Its Business Registration Certificate is revoked;

d) Letting other businesses, organizations or individuals use its license;

dd) Being sanctioned for an administrative violation arising from employment services at least 3 times within a maximum period of 36 months from the date of the first sanction, or deliberately failing to comply with the sanctioning decision;

e) The business commit the act of forging documents included in the application for issuance, renewal or reissuance of the license, or erasing or correcting the contents of the license already granted;

g) Failing to satisfy the conditions specified in Article 14 herein;

h) The business’s legal representative is a foreigner who is not eligible to work in Vietnam as prescribed in Article 151 of the 2019 Labor Code.

2. Application documents for revocation of the license are required in the cases stated in point a, b and c of clause 1 of this Article, including:

a) Written request for revocation of the license made by using the Form No. 05 of the Appendix II to this Decree;

b) Issued license or written commitment to bearing legal responsibility made by the employment service business. This is required if the license has gone missing;

c) Review report on employment services made by using the Form No. 08 of Appendix II hereto.

3. Processes and procedures for revocation of the license are applicable in the cases specified in point a, b and c of clause 1 of this Article as follows:

a) The business sends 01 set of application documents prescribed in Article 2 herein to the Department of Labor, War Invalids and Social Affairs of the place where its main office is located;

b) The Department of Labor, War Invalids and Social Affairs receives these documents, checks and issues the note of acknowledgement clearly stating the date of receipt. Within the maximum duration of 03 working days of receipt of application documents meeting regulations, the competent state authority issues the decision on revocation of the business’s license. The decision on revocation of the license must be made by using the Form No. 06 of the Appendix II hereto;

4. Processes and procedures for revocation of the license are applicable in the cases specified in point d, dd, e, g and h of clause 1 of this Article as follows:

a) Upon discovering or according to inspection, examination and audit recommendations of the competent state authority on enterprises falling into the cases specified at points d, dd, e and g of clause 1 of this Article, the Department of Labor, War Invalids and Social Affairs of the place where the business's main office is located inspects and collects associated evidences or examines the documents transferred by the sending competent authority, and submits them to competent state authorities for the purposes of revocation of the license;

b) Within 03 working days of receipt of the decision on revocation of the license, the employment service business returns the license to the Department of Labor, War Invalids and Social Affairs.

5. The business shall not be granted any license within 3 years from the date of revocation of its license if they commit violations against points d, dd, e, g and h of clause 1 of this Article.

Article 22. Responsibilities of businesses in case of revocation, refusal of renewal or reissuance of licenses

Within the maximum duration of 15 working days of receipt of the written document stating refusal of renewal or reissuance or revocation of the license, the business shall perform the following duties:

1. Closing employment service contracts in progress; performing obligations and responsibilities in employment service activities to agencies, organizations and individuals in accordance with law.

2. Publishing the termination of employment service activities on at least 01 authorized online newspaper in accordance with law for 07 consecutive days.

Section 2. SECURITY DEPOSITS OF EMPLOYMENT SERVICE BUSINESSES

Article 23. Pledging and use of security deposits

1. A business must place an amount of security deposit prescribed in clause 2 of Article 14 herein at a Vietnamese commercial bank or a foreign bank branch established and operated legally in Vietnam (hereinafter referred to as custodian bank).

2. A business’s security deposit is used in case the business fails to perform or incompletely perform obligations arising from employment services upon the competent state authority’s request.

3. Within 30 working days from the date of withdrawal of security deposit for payment in the cases specified in point d of clause 1 of Article 26 herein, the business must offer a top-up to the security deposit as per clause 2 of Article 14 herein.

4. Within the maximum duration of 30 days from the expiry date prescribed in clause 3 of this Article, if the business fails to offer a top-up to the security deposit, the custodian bank shall notify this failure in writing to the Department of Labor, War Invalids and Social Affairs of the place where its main office is located. Within the maximum duration of 15 working days of receipt of the notification from the custodian bank, the Department of Labor, War Invalids and Social Affairs shall request the competent state authority to revoke its license as per point g of clause 1 of Article 21 herein.

Article 24. Placement of security deposits

1. Employment service businesses must leave security deposits according to regulations of custodian banks and laws. They are offered interest on these security deposits in agreement with custodian banks and in compliance with regulations of laws.

2. Custodian banks shall grant certificates of security deposit for rendering of employment services by using the Form No. 03 of Appendix II hereto after businesses meet documentation requirements.

In case where there is any change in information shown in the certificate of security deposit for rendering of employment services, such as the business’s name, main office, the business must inform the bank of such change.

Article 25. Management of security deposits

1. The custodian bank shall block all security deposit of a business, manage it in accordance with regulations of this Decree and laws on pledging.

2. The custodian bank must allow the business leaving security deposit to withdraw such sum in accordance with regulations of Article 26 herein and request them to offer a top-up to the security deposit as per clause 3 of Article 23 herein.

3. The custodian bank shall not allow the business leaving security deposit to withdraw such sum without written consent from the state authority having competence in issuing, renewing, reissuing and revoking the license at the place where its main office is located.

Article 26. Withdrawal of security deposits

1. The state authority having competence in issuing, renewing, reissuing and revoking the license at the place where its main office is located can issue the decision to allow the business to withdraw security deposit in the following cases:

a) The business is not allowed the license;

b) The business has their license revoked or is not granted renewal or reissuance of their license;

c) The business has left security deposit at another custodian bank;

d) The business faces difficulties, is incapable of indemnifying employees or employers due to their commission of violations against regulations on employment services within 60 days after the due date of payment of indemnity as per law.    

2. Application documents for withdrawal of security deposit filed to the Department of Labor, War Invalids and Social Affairs, including:

a) Written request for withdrawal made by the business;

b) Certificate of security deposit for rendering of employment services issued by another custodian bank in case of withdrawal of security deposit as prescribed in point c of clause 1 of this Article;

c) Report on fulfillment of obligations and written document evidencing fulfillment of obligations in case of withdrawal of security deposit as stipulated in point b of clause 1 of this Article;

d) Plan for use of the sum withdrawn from the escrow account, including information about withdrawal reasons and purposes; list of employees, employers, amount, time and method of payment in case of withdrawal of security deposit as per point d of clause 1 of this Article.

3. Application documents for withdrawal of security deposit submitted to the custodian bank, including:

a) Written request for withdrawal made by the business as per point a of clause 2 of this Article;

b) Written document stating consent to withdrawal of security deposit from the competent state authority according to the Form No. 07 of Appendix II hereto;

c) Documents evidencing withdrawal of security deposit that are required by the custodian bank (if any).

4. Processes and procedures for withdrawal of security deposits:

a) The business sends 01 set of application documents prescribed in Article 2 herein to the Department of Labor, War Invalids and Social Affairs of the place where its main office is located;

b) The Department of Labor, War Invalids and Social Affairs receives these documents, checks and issues the note of acknowledgement clearly stating the date of receipt.

Within the maximum duration of 07 working days of receipt of the application documents from the business, the Department of Labor, War Invalids and Social Affairs checks and verifies submitted documents and their fulfillment of employment service obligations in the cases specified in point b of clause 1 of this Article, and requests the relevant competent state authority to issue the written consent to withdrawal of security deposit, the plan for use of security deposit (if any) and sends such written consent to the business and the custodian bank. In case of refusal to allow withdrawal of security deposit, a written response clearly stating reasons for such refusal must be sent to the business;

c) After receipt of the written consent to withdrawal of security deposit from the competent state authority, the business submits documents required in clause 3 of this Article to the custodian bank;

d) The custodian bank receives and examines submitted documents. If it is established that the documents meet regulations, the custodian bank must allow the business to withdraw security deposit within 01 working day of receipt of the documents submitted to request withdrawal.

In case of withdrawal of security deposit subject to point d of clause 1 of this Article, payment or payment of indemnities to employees or employers shall be directly made by the custodian bank according to the plan approved by the competent state authority after the bank's service fees are taken away.

Article 27. Custodian bank’s responsibilities

1. Complying with regulations on opening of escrow accounts, placement of security deposits, withdrawal of security deposits and use of escrow accounts of employment service businesses and other regulations related to these accounts.

2. Fully implementing responsibilities of custodian banks as per this Decree.

Section 3. ORGANIZATION AND OPERATION OF EMPLOYMENT SERVICE BUSINESSES

Article 28. Employment services

1. Counseling activities, including:

a) Providing counsel and orientation regarding career and national occupational skill qualification framework for employees choosing professions and training plans suitable to their capabilities and aspirations;

b) Providing job counsels in order for employees to choose job positions suitable to their capabilities and aspirations; counsels on job application skills; self-employment and domestic and foreign job search;

c) Providing employers with counsels on recruitment, placement and management of employees; on administration and development of jobs, and human resource development;

d) Providing employees and employers with counsels on labor and employment policies.

2. Job recommendation to employees.

3. Labor outsourcing and recruitment upon employer’s request, including:

a) Recruiting employees through pre-employment tests to select qualified employees meeting the requirements of employers;

b) Supplying employees at the employer’s request;

c) Introducing employees to enterprises licensed to send Vietnamese workers abroad under contracts, organizations and individuals investing in foreign countries or public service units under the control of ministries, ministerial-level agencies and Governmental bodies that are assigned the tasks of sending Vietnamese workers to work abroad under contracts according to the provisions of the Law on Vietnamese Laborers under Contracts.

4. Collecting and providing labor market information.

5. Analyzing and forecasting the labor market.

6. Providing training in interview, job search and other skills; vocational education in accordance with law.

7. Implementing employment-related programs and projects.

Article 29. Branches of employment service businesses

1. Each business may set up their domestic employment service branch in accordance with regulations of the Law on Enterprises and the requirements set out in clause 1 of Article 14 herein.

2. Within 10 working days from the date of decision to assign tasks to a branch, the business must notify the Department of Labor, War Invalids and Social Affairs of the place where the business's main office is located and the Department of Labor - Invalids and Social Affairs of the place where their branch’s office is located (in case the branch’s office is located in a province different from the one where the business has been licensed) together with documents proving the conditions specified in clause 1 of Article 14 herein.

3. Obligations of a branch of an employment service business

a) Publicly posting the business's decision to assign tasks to the branch to provide employment services and a certified true copy of the employment service license at the branch’s office;

b) Reporting on results of employment service activities of the branch using the Form No. 08 of Appendix II to this Decree to the Department of Labor, War Invalids and Social Affairs on a 6-month, annual or ad-hoc basis.

4. The validity period of employment services rendered by a branch shall not exceed the term of the employment service business's license.

Article 30. Notification of employment services

1. Within 20 working days from the date of issuance of the license, the business must publish their license, location, scope of activities, name of their actual legal representative carrying out employment services, phone number, e-mail and website on mass media.

2. Less than 10 working days from the date of commencement of employment service activities, the business shall advise the Department of Labor, War Invalids and Social Affairs where their main office is located in writing of the business commencement date.

3. In case of relocating the branch’s office, the business must send a written notification of the new office, enclosing written documents evidencing conditions prescribed in clause 1 of Article 14 herein to the Department of Labor, War Invalids and Social Affairs of the place where their main office or branch’s office is located within 10 working days before the date of relocation.

Article 31. Responsibilities of employment service businesses

1. Publicly posting the certified true copy of the license or the decision on revocation of the license at the business’s main office.

2. Keeping track of the employment status for introduced or provided employees for at least 03 months or during the period of performance of labor contracts (in case of under-three-month labor contracts).

3. Designing, updating and managing data on employees registering for job counseling and introduction; employers registering for recruitment of workers, and connecting and sharing these data as required by competent state authorities.

4. The business that performs part or the whole of the process of providing employment services by electronic means connected to the Internet, mobile telecommunications networks or other open networks must comply with the provisions of this Decree and other Governmental regulations on e-commerce.

5. Providing employment service price quotation and publicly posting employment service prices for employees at the business's main office in accordance with law.

6. Every 6 months and annually, reporting on employment service activities using the Form No. 08 of Appendix II to this Decree, and sending reports to the Departments of Labor, War Invalids and Social Affairs of the places where their main offices are located. 6-month reports must be sent before June 20 while annual reports must be sent before December 20.

7. Making timely reports in case of emergencies related to employment services to local competent state authorities or at the request of state labor regulatory authorities.

8. Fully implementing responsibilities of employment service businesses as per regulations of this Decree.