Draft Decree detailing the implementation of certain provisions of the Labor Code regarding labor management, labor contracts, wages, labor discipline, and material responsibility is being put out for public consultation online.
Article table of contents
Regulations on handling partially invalid labor contracts from January 1, 2021
This Decree stipulates the handling of partially invalid labor contracts as prescribed in Clause 1, Article 51 of the Labor Code as follows:
Within 03 working days from the date the decision declaring the labor contract partially invalid takes effect, the employer and the employee shall amend and supplement the part of the labor contract declared invalid. The rights, obligations, and benefits of both parties during the period from when the labor contract was declared partially invalid until the labor contract is amended and supplemented shall be resolved according to the applicable collective labor agreement and provisions of labor laws.
In case the partially invalid labor contract has a lower salary than that prescribed by labor laws and the applicable collective labor agreement, the employer shall determine the difference between the salary re-agreed upon during the amendment and supplementation of the labor contract and the salary in the partially invalid labor contract to reimburse the employee based on the actual working time, but not more than 12 months.
In reality, this content is currently regulated in Decree 44/2013/ND-CP. This Draft Decree continues to inherit the regulations of Decree 44 and additionally includes the handling in case both parties do not amend and supplement but agree to terminate the partially invalid labor contract, specifically:
2. In case both parties do not amend and supplement but agree to terminate the partially invalid labor contract, the employer shall have the following responsibilities:
- Pay severance allowance as stipulated in Article 8 of this Decree;
- Determine the difference between the agreed salary and the salary in the partially invalid labor contract to reimburse the employee based on the actual working time under the partially invalid labor contract but not more than 12 months for cases where the partially invalid labor contract has a lower salary than that prescribed by labor laws and the applicable collective labor agreement;
- Resolve other benefits for the employee as stipulated by law.
For more details, see Draft Decree which stipulates in detail the implementation of several articles of the Labor Code on labor management, labor contracts, salaries, labor discipline, and material responsibilities, expected to take effect from January 1, 2021.
Nguyen Trinh
