Which conditions should be met for a labor contract to be valid?
1. Legal grounds.
- Labor Code 2012
- Decree No.05/2015/ND-CP detailing and guiding the implementation of several contents of the Labor Code
- Decree No.27/2014/ND-CP stipulating the signing of labor contracts
2. Definition of the labor contract:
- Pursuant to Article 15 of the 2012 Labor Code with specific provisions on labor contracts as follows:
“A labor contract is an agreement between the employee and the employer on the paid job, the work conditions, the rights and obligations of each party in the labor relation.”
3. Conditions
For an employment contract to take effect, the following conditions must be met:
Firstly, about subject to enter into a contract:
Employer:
- Article 3, paragraph 2 of the Labor Code 2012 regulated: “The employers are enterprises, agencies, organizations, cooperatives, households and individuals hiring, employing employees under labor contracts. The individuals must be sufficiently capable of civil acts.”
- The person concluding employment contracts on the employer side (hereinafter referred to as the employer’s authorized signatory) is either:
+ The legal representative specified in the regulations of the enterprise or cooperative.
+ The head of the agency, unit or organization as prescribed in law.
+ The family householder.
+ The individual directly using the employee If the persons specified at Points a, b and c, Clause 1 of this Article do not directly conclude contracts, they shall legally authorize in writing others to conclude the contracts using the form issued by the Ministry of Labor, War Invalids and Social Affairs.
Employees:
- Article 3, Paragraph 1 of the Labor Code 2012 stipulates: “Employees are people from 15 years old and above, capable of working, working under labor contracts, receiving salaries and subject to the management of the employers.”
- The person concluding employment contracts on the employee side (hereinafter referred to as the employee’s authorized signatory) is one of the followings:
+ The employee from 18 years of age or older;
+ The underage employee from 15 to under 18 years of age obtaining the written consent from their legal representatives;
+ The legal representative of persons under 15 years of age obtaining written consent from those persons.
+ The employee is legally authorized to conclude employment contracts by other employees of the same group.
+ The person authorized to conclude employment contracts as prescribed in Clauses 1 and 2 of this Article shall not be allowed to proceed to authorize others to conclude contracts.
Secondly, principles of entering into labor contracts:
When entering into a contract, the two parties should base on the following principles:
- Voluntary, equality, goodwill, cooperation, and honesty.
- Freely enter into a labor contract but must not be contrary to the law, collective labor agreement, and social ethics.
Thirdly, contents of the labor contract:
For a contract to take legal effect, first of all, the contents of the labor contract must include the contents that are not contrary to law provisions. The main contents of the labor contract should satisfy the following criteria:
- Name and address of employer or legal representative.
- Full name, date of birth, gender, residential address, identity card number, or other legal papers of the employee.
- Work and work location. (Note: The work must be work that is not prohibited by law).
- Term of the labor contract.
- Salary, salary payment method, pay period, salary allowance, and other additional payments. The salary clause is quite important in the employment contract; Accordingly, the two parties must fully agree on the above issues related to salary; and other employee sums; to avoid unnecessary disputes.
- A regime of leveling and salary increase.
- Working time, rest time. This is also a content to note in an employment contract. Accordingly, normal working hours must not exceed 8 hours a day and 48 hours a week; the break between hours when doing normal work is at least 30 minutes; If working at night, take a break between hours at least 45 minutes.
- Labor protective equipment for employees.
- Social insurance and health insurance.
- Training, fostering, and improving occupational skills qualifications.
In addition to the contents mentioned above, the employee and the employer can agree on several other terms; however, the labor content must not contain a clause that restricts or prevents the right of establishment; join and work unions of workers.
Fourthly, form of labor contract:
Labor contract has two forms: written and verbal; Depending on the type of contract, the employment contract may be expressed under either of these two forms. The Labor Code 2012 provides for the form of the labor contract as follows:
- For temporary jobs with terms under 03 months, the parties may conclude verbal contracts. (Article 16, 2012 Labor Code)
- The remaining contracts with a term of full 03 months or more must be made in writing; the labor contract will be made into 02 copies; the employee keeps 01 copy; The employer keeps 01 copy. (Article 5 of Decree 27/2014 / ND-CP stipulates the signing of a labor contract)
- For housework under the law, the employee and the employer must sign a written labor contract (Article 180 of the Labor Code 2012).
Fifthly, types of labor contracts:
Depending on the purpose and nature of the work and the agreement of the parties, a labor contract is concluded in one of the following categories:
- Labor contracts without fixed term;
The labor contract without a fixed term is a contract in which both parties do not specify the term and the expiry date of the contract.
- Fixed-term labor contracts;
A fixed-term labor contract is a contract in which both parties specify the term and the expiry date of the contract within 12 to 36 months.
- Casual labor contracts or regular labor contracts with terms under 12 months.
