On May 31, 2022, the Ministry of Labour, Invalids and Social Affairs issued Official Letter No. 176/LĐTBXH-BHXH to provinces, centrally-administered cities, and Vietnam Social Security regarding the current situation where many workers borrow other people's documents to sign labor contracts and participate in social insurance.
1. The current situation of using borrowed documents to conclude labor contracts.
Recently, the Ministry of Labour, Invalids and Social Affairs has received feedback from several localities regarding the situation of workers borrowing other people's documents to enter into labor contracts, and has assessed this as the following behavior:
- This violates the principle of "honesty" as stipulated in Clause 1, Article 15 of the Labor Code.
- Violation of the obligation to provide accurate information when concluding a labor contract, as stipulated in Clause 2, Article 16 of the Labor Code.
The consequences of this behavior affect the accuracy of information regarding labor resources and many other related factors. Therefore, based on the provisions of point b, clause 1, Article 49 of the Labor Code, this is a case where the entire labor contract will be invalidated.
2. The competent authority to declare and handle invalid labor contracts.
Official document 176/LĐTBXH-BHXH also clarifies that the authority to declare labor contracts invalid and to handle invalid contracts is carried out according to the provisions of the Labor Code in Articles 50 and 51 and according to Section 3, Chapter III of Decree No. 145/2020/NĐ-CP dated December 14, 2020, issued by the Government detailing and guiding the implementation of some articles of the Labor Code on working conditions and labor relations.
Accordingly, People's Courts at all levels have the right to declare labor contracts invalid. The handling of invalid labor contracts due to the contracting party lacking proper authority or violating the principles of labor contract conclusion shall be carried out in accordance with the provisions of the Labor Code, specifically as stated in Clause 2, Article 51 and Clause 4, Article 10 of Decree No. 145/2000/ND-CP.
The Ministry of Labour, Invalids and Social Affairs requests that the People's Committees of provinces and centrally-administered cities direct the Departments of Labour, Invalids and Social Affairs, social insurance agencies, and other relevant functional agencies to strengthen information dissemination to raise awareness among workers and employers about complying with the law; tighten management, regularly inspect and audit to promptly detect, correct, and strictly handle cases of deliberate violations to set an example.
The Vietnam Social Security also directed the Social Security branches in provinces and cities to actively and promptly coordinate with local authorities to review, detect, and handle violations in accordance with labor laws and social insurance laws.
3. Measures to be taken regarding invalid employment contracts.
A labor contract that is invalid due to the contracting party lacking the proper authority or violating the principles of labor contract formation will be handled according to the provisions of Clause 2, Article 51 of the Labor Code and Decree No. 145/2020/ND-CP, specifically:
- Employees and employers proceed to re-sign the employment contract in accordance with the law.
- If the employee and employer do not proceed to re-sign the invalid labor contract, the following steps should be taken:
- Termination of employment contract;
- The rights, obligations, and benefits of employees from the time they begin working under a labor contract that is declared invalid until the termination of the labor contract shall be implemented in accordance with the provisions of Clause 2, Article 10 of Decree No. 145/2020/ND-CP;
- Settlement of severance pay benefits in accordance with Article 8 of Decree 145/2020/ND-CP.