Chương 2 Nghị định 55/2013/NĐ-CP: Điều kiện, thủ tục, thẩm quyền cấp giấy phép hoạt động cho thuê lại lao động

Chapter 2.

CONDITIONS, PROCEDURES FOR AND COMPETENCE OF LICENSE FOR OUTSOURCING SERVICES

SECTION I. CONDITIONS TO LICENSE FOR THE OUTSOURCING SERVICES

Article 5. Conditions to license for the outsourcing services

Enterprises shall be licensed for the outsourcing services 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 outsourcing services

1. The legal capital for the business line of outsourcing services is VND 2.000.000.000.

The outsourcers 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 outsourcing 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 outsourcing 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 outsourcers locate head offices, branches, representative offices

The locations of head offices, branches and representative offices of the outsourcers 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 outsourcing services 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 outsourcers, branches and representative offices

1. Having full civil act capacity, clear biography;

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

3. During three consecutive years before requesting for license of the outsourcing services, 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 outsourcing services.

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

Upon replacement of their managers or key position holders or change of their charter capital, the outsourcers 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 outsourcers

1. Within 10 working days before commencing the outsourcing activities, the outsourcers 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 outsourcing services and lists of their managers, key position holders.

2. In case of relocation of headquarters, branches or representative offices of the outsourcers, 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 outsourced employees and the outsourcing parties of the new locations.

SECTION II. PROCEDURES FOR AND COMPETENCE OF GRANT AND WITHDRAWAL OF LICENSE FOR OUTSOURCING SERVICES

Article 11. Dossier requesting for grant, re-grant or extension of license for the outsourcing services

1. Dossier requesting for grant of license for the outsourcing services includes:

a. Written request for grant of license for the outsourcing services 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 outsourcing services include documents specified in points a, b, c, dd and e of clause 1 this Article.

Article 12. Term of license for the outsourcing services

1. Term of license for the outsourcing services maximally does not exceed 36 months.

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

Term of license for the outsourcing services 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 outsourcing services

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

The outsourcers 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 outsourcing services.

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 outsourcing services 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 outsourcing services, the Minister of Labor, Invalids and Social Affairs must reply in writing and clearly state reason thereof.

Article 14. Withdrawal of license for the outsourcing services

1. The outsourcers may be withdrawn license for the outsourcing 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 outsourcing services;

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 outsourcing services;

h. Being withdrawn enterprise registration certificate.

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