Lawyer Tran Phi Dai - Ho Chi Minh City Bar Association - said that there are cases where labor contracts are declared partially invalid, or completely invalid because the contractor does not have proper authority or violates the principles of labor contract conclusion, or completely invalid because the entire content of the labor contract violates the law or the work concluded in the contract is prohibited by law. Each form of invalidity has different handling methods.
According to lawyer Dai, when a labor contract is declared partially invalid, the employer (NSDLĐ) and the employee (NLĐ) will amend and supplement the declared invalid part to be consistent with the collective labor agreement and the law. The rights, obligations and benefits of both parties during the period from the start of work to the time of amendment and supplementation are resolved according to the collective labor agreement (TƯLĐTT) being applied, in case there is no TƯLĐTT, it shall be implemented according to the provisions of law.
In case the invalidated labor contract has a salary lower than the provisions of law, collective labor agreements are being applied, the two parties must renegotiate the salary level in accordance with regulations and the employer is responsible for determining the difference between the renegotiated salary and the salary in the invalidated labor contract to return to the employee.
In case the two parties do not agree to amend or supplement the part that has been declared invalid, the labor contract shall be terminated, the employer is responsible for resolving the severance allowance regime according to regulations for the employee and the working time of the employee is used as a basis for implementing the regime according to regulations.
In case the labor contract is completely invalid due to the contractor's improper authority or violation of the principles of labor contract conclusion, the employee and the employer re-sign the labor contract in accordance with regulations. In case the labor contract is not re-signed, the termination of the labor contract, the rights, obligations, and interests of the employee are implemented according to the provisions of law.
In case the labor contract is completely invalid due to the entire content violating the law or the contracted work is prohibited by law, the two parties also conclude a new labor contract in accordance with regulations. In case the two parties do not conclude a new labor contract, the labor contract shall be terminated. The rights, obligations, and benefits of employees from the time of starting work to the termination of the labor contract are implemented according to regulations. The employer is obliged to pay employees a sum of money agreed upon by the two parties, but for each working year, it is at least equal to one month's regional minimum wage at the time the labor contract is invalid.
Other issues related to the handling of incomplete labor contracts due to the entire content violating the law or the assigned work being prohibited by law are under the jurisdiction of the Court according to the provisions of the Civil Procedure Code," lawyer Dai added.
