Thông tư 40/2014/TT-NHNN quản lý tiền ký quỹ của doanh nghiệp cho thuê lại lao động

THE STATE BANK OF VIETNAM

Circular No. 40/2014/TT-NHNN dated December 11, 2014 of the State Bank of Vietnam guiding the payment and management of outsourcer’s deposits

Pursuant to the Civil Code dated in 2005;

Pursuant to the Labor Code dated in 2012;

Pursuant to the Law on the State bank of Vietnam No. 46/2010/QH12 dated June 16, 2010;

Pursuant to the Law on credit institutions No. 47/2010/QH12 dated June 16, 2010;

Pursuant to Decree No. 55/2013/ND-CP dated May 22, 2013 of the Government on providing guidance on Clause 3 Article 54 of the Labor Code on License for the outsourcing services, payment of deposit and List of jobs entitled to provide outsourcing services (hereinafter referred to as Decree No. 55/2013/ND-CP);

Pursuant to Decree No. 156/2013/NĐ-CP dated November 11, 2013 of the Government on functions, tasks, entitlements and structural organization of the State bank of Vietnam (hereinafter referred to as the State bank);

At the request of  Director of Department of payment;

The Governor of the State bank issues the Circular on providing guidance on payment and management of deposit made by outsourcers

Chapter I

GENERAL PROVISIONS

Article 1. Scope of adjustment

This Circular shall provide guidance on payment and management of deposit made by outsourcers at commercial banks where their main transactional accounts are opened (hereinafter referred to as the depositary bank).

Article 2. Subject of application

1. Outsourcers.

2. Depositary banks.

3. Any organizations and individuals involved in payment of deposit for outsourcing services.

Chapter II

SPECIFIC PROVISIONS

Article 3. Payment of deposit and issuance of Certificate of deposit

1. When an outsourcer wishes to pay a deposit into its account at a bank, the depositary bank and the outsourcer shall conclude an agreement on deposit payment in accordance with regulations of this Circular and corresponding regulations of law.

2. An agreement on deposit payment shall contain:

a) Names, addresses, representatives of the outsourcer and the depositary bank;

b) Amount of the deposit;

c) Deposit interest rate;

d) Payment of the deposit interest;

dd) Use of the deposit;

e) Withdrawal of the deposit;

g) Refund of the deposit;

h) Liability of related entities.

3. After receiving the deposit in full as prescribed in Clause 1 Article 16 of Decree No. 55/2013/ND-CP, the depositary bank shall grant the outsourcer a Certificate of deposit used for outsourcing services (using form as prescribed in Appendix III issued together with Decree 55/2013/ND-CP).

Article 4. Deposit management

1. The depositary must freeze the deposit and manage it in accordance with regulations of Decree No. 55/2013/ND-CP and regulations of law on deposit.

2. The depositary bank shall deduct payments and damages from the deposit in the cases prescribed in Clause 4 Article 22 of Decree 55/2013/ND-CP.

3. The depositary bank shall monitor the use of the deposit made by the outsourcer in accordance with regulations of law. In case the balance of deposit account is lower than regulated rate, the depositary bank shall request the outsourcer to make additional payment of deposit as prescribed. Within 30 days from the day on which the deposit account is withdrawn, if the outsourcer fails to pay additional deposit, the depositary bank shall promptly notify the Ministry of Labor, War Invalids and Social Affairs.

4. Every quarter, not later than the 15thof the first month of next quarter, the depositary bank shall send a report to the Ministry of Labor, War Invalids and Social Affairs and the State bank on receipt of deposit from outsourcers within their banking system using the form in Appendix IV issued together with Decree No. 55/2013/ND-CP.

Article 5. Deposit interest rate and payment of deposit interest rate

1.The outsourcer shall be paid a deposit interest by the depositary bank according to interest rate agreed by both parties in accordance with regulations on deposit interest rate in VND provided by the State bank during each period.

2. According to the agreement on deposit interest rate stated in the agreement signed between the outsourcer and the depositary bank, the bank shall determine and pay the interest on the deposit account balance to the outsourcer as agreed.

Article 6. Procedures for deposit withdrawal

1. An outsourcer which requests to withdraw a deposit in the cases prescribed in Article 20 of Decree No. 55/2013/ND-CP shall follow the procedures below:

a) Send an application for deposit withdrawal using forms provided by the depositary bank together with documentary evidence;

b) Present permission to withdraw the deposit issued by the Minister of Labor, War Invalids and Social Affairs ;

c) Present identification documents (ID number or valid passport) of the lawful representative appointed by the outsourcer who makes the deposit withdrawal. In case the person who makes the deposit withdrawal is an authorized representative, he must present the letter of authorization .

2. The depositary bank must verify documentary evidence on deposit withdrawal and the above documents, and permit the outsourcer to withdraw deposit if such documents are satisfactory.

Article 7. Procedures for deposit refund

1. When an outsourcer requests a depositary bank to make a refund of deposit, it must follow the procedures below:

a) Send an application for deposit refund using forms provided by the depositary bank together with documentary evidence;

b) Present permission to withdraw the deposit issued by the Minister of Labor, War Invalids and Social Affairs as prescribed in Article 19 of Decree No. 55/2013/ND-CP;

c) Present identification documents (ID number or valid passport) of the lawful representative of the outsourcer.In case the person who claims deposit refund is an authorized representative,  he must present the letter of authorization.

2. The depositary bank must verify documentary evidence on deposit withdrawal and the above documents, the bank shall refund the deposit to the outsourcer if such documents are satisfactory.

Chapter III

IMPLEMENTATION PROVISIONS

Article 8. Responsibility of the State bank-affiliated agencies

1. Department of payment must inspect, receives reports on deposit for outsourcing services provided by depositary banks then periodically send a report to the Governor of the State bank.

2. Banking supervision and inspection agencies and Branches of the State bank of provinces must cooperate in inspection of management of outsourcer s deposit at banks prescribed in this Circular and corresponding regulations of law.

Article 9. Implementation effect

This Circular takes effect from February 1, 2015.

Article 10. Implementation organization

Chiefs of Office, Directors of Payment Department, Chiefs of banking supervision and inspection agencies, Heads of the State Bank-affiliated agencies, Directors of the State Bank branches of provinces; Chairmen of the Board of Directors, Chairmen of the Board members, the General directors (Directors) of commercial banks; General Directors (Directors) of outsourcers shall implement this Circular. /.

For the Governor of the State Bank of Vietnam

The Deputy Governor

Nguyen Toan Thang