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1. Situation of Borrowing Documents by Workers to Establish Employment Contracts
According to information from Bao Nguoi Lao Dong on June 19/2023, the number of workers who borrowed documents from others to establish employment contracts and participate in social insurance (over 3,700 cases). The reasons leading to this situation are these workers as follow:
• Do not meet the recruitment requirements.
• Do not meet the age requirements for employment.
• Do not meet the professional qualifications, territorial qualifications, etc.
In the face of this situation, workers only benefit in the short term. In the future, they will encounter difficulties as they are unable to enjoy the social insurance benefits they have contributed. At that time, workers are usually instructed to file labor disputes for the Court to declare the employment contracts void. After a decision on the void employment contracts has been made, the company and the worker must re-sign the employment contracts with accurate personal information to ensure the worker can enjoy social insurance policies.
2. Establishing employment contracts through borrowed documents is a violation of labor laws.
According to official dispatch No. 1767/LDTBXH-BHXH dated May 31/ 2022, cases where workers borrow documents from others to establish employment contracts are:
• Violations of the “honesty” principle under Clause 1,Article 15 of the Labor Code 2019.
• Violations of the obligation to provide information when establishing employment contracts .
Therefore, the employment contracts signed between the workers and the company will be completely void.
In reality, it is not as simple as that, as there are still many unresolved issues concerning social insurance agencies. For example, there are currently no regulations to address cases where workers have already enjoyed previous social insurance benefits. In addition, the data of lawsuits between document borrowers and document lenders has not been accurately compiled. Workers may suffer losses in terms of their rights and benefits.
3. Proposed Resolution of Issues and Support for Workers
In light of the above situation, the Vietnam Social Insurance agency proposes the Ministry of Labor, War Invalids and Social Affairs to take the following actions:
Assign the Provincial Department of Labor, War Invalids and Social Affairs to coordinate in reviewing and concluding the borrowing of documents in each specific case, including:
• Adjusting the personal information of workers who are currently participating in or reserving participation in social insurance according to the Court’s decision to invalidate the employment contracts. This will serve as a basis for resolving the eligibility to enjoy social insurance benefits when workers meet the requirements.
• In cases where short-term social insurance benefits, no recovery of the amount previously granted to the worker.
• In cases where workers have already enjoyed pensions, Survivor allowances, and other allowances, the Provincial Department of Labor, War Invalids and Social Affairs must adjust the personal information of workers. In addition, they should consider adjusting or canceling the decision on social insurance benefits for workers based on incorrect personal information. Or, recover the overpayments made due to the resolution based on incorrect personal information.
(Reference: Bao Nguoi Lao Dong on June 19/2023)
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