Conditions for Labor Subleasing Enterprises to Withdraw Deposits in Vietnam

1. How are deposits managed for labor subleasing enterprises?

Under Clause 2, Article 15 of Decree No. 145/2020/ND-CP, deposit funds are used for the payment of salaries, social insurance, health insurance, unemployment insurance, occupational accident and disease insurance, and other regimes for subleased workers as agreed in the labor contract, collective labor agreement, and the internal rules and regulations of the subleasing enterprise, or for compensation to subleased workers where the subleasing enterprise breaches the labor contract with the subleased workers or causes damage to the subleased workers by failing to ensure their lawful rights and interests.

And under Article 17 of Decree No. 145/2020/ND-CP on deposit management:

“Article 17. Deposit management

1. The deposit-receiving bank is responsible for freezing the entire deposit amount of the subleasing enterprise and managing the deposit in accordance with legislation on deposits.

2. The deposit-receiving bank carries out the withdrawal and deduction of deposits for the subleasing enterprise and requires the subleasing enterprise to supplement deposits in accordance with Articles 18, 19 and 20 of this Decree.

3. The deposit-receiving bank must not allow the subleasing enterprise to withdraw deposits without the written consent of the Chair of the provincial-level People’s Committee.”

Thus, deposit funds are used to ensure the interests of subleased workers; the deposit-receiving bank is the party managing the deposit and is responsible for freezing the entire deposit amount of the subleasing enterprise and managing the deposit in accordance with legislation on deposits.

2. What are the conditions for a labor subleasing enterprise to withdraw deposits?

Under Clause 1, Article 18 of Decree No. 145/2020/ND-CP, the Chair of the provincial-level People’s Committee where the subleasing enterprise’s head office is located consents to the subleasing enterprise withdrawing deposits when the enterprise falls into one of the following cases:

• The subleasing enterprise faces difficulties and lacks sufficient financial resources to fully pay salaries, social insurance, health insurance, unemployment insurance, occupational accident and disease insurance, and other regimes for subleased workers as agreed in the labor contract, collective labor agreement, and internal rules and regulations of the subleasing enterprise, after 30 days from the payment due date as prescribed by law;
• The subleasing enterprise faces difficulties and is unable to compensate subleased workers for breach of the labor contract with the subleased workers or for causing damage to the subleased workers by failing to ensure their lawful rights and interests, after 60 days from the compensation due date as prescribed by law;
• The enterprise is not issued a license;
• The subleasing enterprise’s license is revoked, or the license is not extended or re-issued;
• The subleasing enterprise has made a deposit at another Vietnamese commercial bank or branch of a foreign commercial bank in Vietnam.

Thus, when one of the above cases is satisfied, the subleasing enterprise may withdraw its deposit.

3. Is the consent of the deposit-receiving bank sufficient to withdraw deposits?

Under Clause 4, Article 18 of Decree No. 145/2020/ND-CP, the order and procedure for deposit withdrawal are carried out as follows:

• The subleasing enterprise submits one set of documents prescribed at Clause 2 of this Article to the Department of Home Affairs where the enterprise’s head office is located;
• The Department of Home Affairs receives the dossier, checks it, and issues a receipt clearly stating the date of receipt of the complete dossier. Within 05 working days from receipt of the complete dossier requesting deposit withdrawal from the subleasing enterprise, the Department of Home Affairs checks and verifies the enterprise’s dossier and its completion of obligations to subleased workers in the case prescribed at Point d, Clause 1 of this Article, and submits it to the Chair of the provincial-level People’s Committee for consent to the subleasing enterprise’s deposit withdrawal;
• Within 05 working days from receipt of the submission from the Department of Home Affairs, the Chair of the provincial-level People’s Committee issues a written consent on the deposit withdrawal and the plan for using the deposit (if any) to the subleasing enterprise and the deposit-receiving bank. Where consent is not given, the Chair of the provincial-level People’s Committee issues a written reply to the subleasing enterprise clearly stating the reasons;
• After obtaining the written consent on deposit withdrawal from the Chair of the provincial-level People’s Committee, the subleasing enterprise submits the dossier prescribed at Clause 3 of this Article to the deposit-receiving bank;
• The deposit-receiving bank receives and checks the subleasing enterprise’s deposit withdrawal dossier; if in compliance, the deposit-receiving bank allows the subleasing enterprise to withdraw the deposit within 01 working day from receipt of the withdrawal dossier.

For deposit withdrawals under Points a and b, Clause 1 of this Article, payment and compensation to subleased workers are made directly by the deposit-receiving bank in accordance with the plan consented to by the Chair of the provincial-level People’s Committee, after deducting banking service fees.

And under Clause 3, Article 17 of Decree No. 145/2020/ND-CP, the deposit-receiving bank must not allow the subleasing enterprise to withdraw deposits without the written consent of the Chair of the provincial-level People’s Committee.