Many readers wonder about the legal provisions related to labor contracts. A lot of problems arise around this issue in life. So about te matter “Is the labor contract invalid in Vietnam?” Let’s find out with LSX in the article below.
Legal grounds
- Labor Code 2019
What is a void contract?
A voidable contract is a contract that does not comply with the validity conditions prescribed by law, so it has no legal value and does not give rise to the rights and obligations of the parties.
Is the labor contract invalid in Vietnam?
Pursuant to Article 49 of the 2019 Labor Code, there are provisions on invalid labor contracts as follows:
1. A labor contract is completely invalidated in the following cases:
a) The entire content of the labor contract violates the law;
b) The person who enters into a labor contract without authority or violates the principles of entering into a labor contract specified in Clause 1, Article 15 of this Code;
c) The work entered into in the labor contract is a job prohibited by law.
2. A labor contract is partially invalidated when the content of that part violates the law but does not affect the remaining parts of the contract.
Thus, according to the above provisions, the labor contract may also be invalidated in the above cases.
When is a labor contract invalid?
A labor contract is partially invalidated when the content of that part violates the law but does not affect the remaining parts of the contract.
In particular, the mandatory contents in the labor contract as prescribed in Article 21 of the Labor Code 2019 include:
+ Name and address of the employer and the full name and title of the person entering into the labor contract on the employer’s side;
+ Full name, date of birth, gender, place of residence, number of citizen’s identity card, identity card or passport of the person entering into the labor contract on the employee’s side;
+ Work and place of work;
+ The term of the labor contract;
+ Salary according to job or title, form of salary payment, time limit for salary payment, salary allowance and other additional payments;
Note: In case a part or all of the content of the labor contract stipulates the employee’s interests lower than that prescribed in the labor law, internal labor regulations, and applicable collective bargaining agreement. application or the content of the labor contract restricts the other rights of the employee, part or all of such content shall be invalidated.
+ Mode for raising grades, raising wages;
+ Working time, rest time;
+ Labor protection equipment for employees;
+ Social insurance, health insurance and unemployment insurance;
+ Training, fostering, improving professional qualifications and skills.
Thus, if only one or a few of the above contents are violated but not the entire contract and does not affect the rest, the breached contract will be void.
What if the labor contract is invalidated?
Pursuant to Article 51 of the 2019 Labor Code, invalid labor contracts shall be handled as follows:
1. When a labor contract is declared partially invalid, the following actions shall be taken:
a) The rights, obligations and interests of the two parties shall be settled according to the applicable collective labor agreement; in case there is no collective bargaining agreement, the provisions of law shall apply;
b) The two parties shall amend and supplement the part of the labor contract which is declared invalid to be consistent with the collective labor agreement or labor law.
2. When the labor contract is declared invalid in its entirety, the rights, obligations and interests of the employee shall be settled according to the provisions of law; In case of improper signing, both parties will sign again.
3. The Government shall detail this Article.
Accordingly, a labor contract that is invalidated depending on the invalid cause will be handled according to the above directions.
How to handle when the labor contract is partially invalidated
When the labor contract is declared partially invalid (Article 9 of Decree 145/2020/ND-CP)
The handling of partially invalidated labor contracts is regulated as follows:
(1) When the labor contract is declared invalid in part, the employer and the employee shall amend and supplement the part of the labor contract which is declared invalid to be consistent with the labor agreement. collective action and the law.
(2) The rights, obligations and interests of both parties during the period from the time they start working under the labor contract are declared partially invalidated until the labor contract is amended or supplemented, they will be resolved according to the applicable collective labor agreement, in case there is no collective labor agreement, the provisions of law shall apply.
In case the labor contract is declared invalid and the salary is lower than the applicable labor law or collective bargaining agreement, the two parties must re-negotiate the salary according to regulations and regulations. The employer is responsible for determining the difference between the renegotiated salary and the salary in the declared invalid labor contract to refund the employee in proportion to the actual working time under the labor contract is declared invalid.
(3) In case the two parties do not agree to amend and supplement the contents declared invalid, then:
– Implement the termination of the labor contract;
– The rights, obligations and interests of the two parties from the time they start working under the labor contract are declared partially invalidated until the termination of the labor contract is implemented in accordance with Clause (2);
– Settlement of severance allowance according to the provisions of Article 8 of Decree 145/2020;
– The working time of an employee under a labor contract that is declared invalid is counted as the time the employee works for the employer to serve as a basis for the implementation of the regime as prescribed by the law on labor contracts.
(4) Other issues related to the handling of partially invalid labor contracts fall under the jurisdiction of the Court in accordance with the Civil Procedure Code.
How to handle when the labor contract is completely invalidated?
* Handling of a labor contract that is completely invalid due to the person entering into it is not authorized or violates the principles of entering into a labor contract
(1) When the labor contract is declared invalid in its entirety, the employee and the employer shall re-sign the labor contract in accordance with the provisions of law.
(2) The rights, obligations and interests of employees from the time they start working under the labor contract are declared invalid until the labor contract is re-signed as follows:
– If the rights and interests of each party in the labor contract are not lower than the provisions of law or the applicable collective bargaining agreement, the rights, obligations and interests of the employees shall be performed according to the contents of the labor contract. the labor contract is declared invalid;
– If the labor contract has contents about the rights, obligations and interests of each party that violate the law but does not affect the other contents of the labor contract, the rights, obligations and interests of the employee are not affected comply with Clause 2, Article 9 of Decree 145/2020
– The time the employee works under the labor contract which is declared invalid is counted as the working time of the employee for the employer to serve as a basis for the implementation of the regime as prescribed by the law on labor contracts.
(3) In case of failure to re-sign a labor contract which is declared invalid in its entirety, then:
– Implement the termination of the labor contract;
– The rights, obligations and interests of the employee from the time he starts working under the labor contract are declared invalid until the termination of the labor contract shall comply with the provisions of Clause (2);
– Settlement of severance allowance according to the provisions of Article 8 of Decree 145/2020.
(4) Other issues related to the handling of a labor contract that is completely invalid due to the person entering into it not within the competence or violating the principle of entering into a labor contract shall fall within the jurisdiction of the Court in accordance with regulations of the Civil Procedure Code.
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Please see more
- Unilaterally terminating labor contract procedure in Vietnam 2022
- Unlawful agreement when signing a Vietnamese labor contract
- Illegal termination of labor contract in Vietnam
Frequently asked questions
Authority to declare the labor contract invalid
Labor inspectors, People’s Courts have the right to declare labor contracts invalid.
The Government shall prescribe the order and procedures for labor inspectors to declare labor contracts invalid.
In case of disagreement with the decision declaring the labor contract invalid, the employer or employee shall initiate a lawsuit at the Court or complain to a competent state agency in accordance with law. .
According to the above provisions, when your labor contract is partially invalidated, you and the employer must make an agreement to amend and supplement the invalid part. The employment contract cannot be terminated immediately.
Conclusion: So the above is Is the labor contract invalid in Vietnam?. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
