Should I sign a collaborator contract with a foreigner? Is the collaborator contract an employment contract? Let us learn about this topic with LSX law firm as follow:
My company plans to hire a foreigner for three months; but my company does not want to sign a labor contract. Can I ask if the company you choose to sign a partnership contract with?
Legal grounds
– Civil Code 2015
– Labor Code 2019
– Law on social insurance 2014
Should you sign a collaborator contract with a foreigner?
According to the provisions of Article 13 of the Labor Code 2019; a labor contract is an agreement between the employee and the employer; on paid employment, working conditions, rights, and obligations of each party in the labor relationship. Accordingly, the employer and the employee can sign a fixed-term labor contract, a contract of indefinite duration.
In your company’s case, because the company only wants to hire foreigners to perform specific jobs for three months; they can choose to sign a fixed-term labor contract if the two parties can reach an agreement. However, in this labor contract, your company and the foreigner will have to agree on the conditions of foreign workers who meet the qualifications; Professionalism of the job or not? The two parties will have to agree with each other on the salary regime… and especially; According to the provisions of the Law on Social Insurance 2014; your company will have to pay compulsory social insurance for employees.
If your company only wants to hire foreign workers for a short time; and foreigners do not want to pay social insurance in Vietnam, then the company can sign a cooperation contract with this foreigner.
The reason why you can sign a collaborator contract is that the nature of a collaborator is work; an individual who contracts with an entity to perform a job for a certain period; and this individual is not on the payroll of this unit (meaning he is not bound by the minimum wage as prescribed by the Labor Code; is not required to enter into a contract, does not belong to the arrangement of payment of compulsory social insurance in Vietnam in which the two parties are entitled to reach an agreement on this issue).
Collaborator contract is a service contract with foreigner
On the other hand, according to the provisions of Article 513 of the Civil Code 2015; the collaborator contract is considered a service contract between two parties. Specifically:
Article 513. Service contract
A service contract is an agreement between parties whereby the service provider performs work for the service user. The service user must pay for the service provider.
Thus, according to the above provisions, your company can sign a cooperation contract with a foreigner. The two parties agree on the services that the foreigner provides to you and the other party. You will have to pay expenses for foreigners according to the agreement of the two parties.
Is the collaborator contract an employment contract with foreigner?
Article 13 of the Labor Code 2019 stipulates:
A labor contract is an agreement between an employee and an employer on paid employment; working conditions, rights, and obligations of each party in the labor relationship.
Thus, if the collaborator and the employer have the above terms, the collaborator’s contract can be identified as an employment contract.
According to the provisions of Article 20 of the Labor Code 2019, there are two types of labor contracts:
– Labor contract with the indefinite term;
– Fixed-term labor contract;
Suppose the company signs a labor contract with a collaborator. In that case, an employment relationship will arise. The parties will be bound by many rules such as (Labor rules, company working time in a day, holiday time, etc.), the recruited person is considered to be working under the labor contract regime; and depending on the term of the contract, determine which labor contract it is.
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Related questions
Collaborating is a profession where the person working is a freelancer, not the main employee of the company.
A labor contract is an agreement between an employee and an employer on paid employment, working conditions, rights, and obligations of each party in the labor relationship.
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