Does the absence of mandatory statutory provisions mean that the labor contract is invalid?

Case facts:

In April 2010, a Shanghai technology company established an R&D department and recruited an R&D manager. Since the company did not have this position before, the company's salary system did not have regulations on the salary of the R&D manager. When the HR manager signed a labor contract with the R&D manager on behalf of the company, he did not specifically agree on salary. He only verbally stated that it would be determined based on work performance. However, the two parties finally signed a three-year labor contract. Thereafter, his salary will be paid based on the specific benefits of the R&D department’s monthly business to the company. Six months later, the company was dissatisfied with the performance of the R&D manager and wanted to terminate the R&D manager's labor contract. When soliciting his opinion, the R&D manager expressed his unwillingness to negotiate with the company to terminate the contract and hoped to continue working. until the labor contract expires. The general manager of the company asked the HR manager for his opinions. The HR manager suddenly realized that the labor contract between the two parties did not stipulate salary, and salary was a legally required clause of the labor contract. A labor contract without statutory provisions is invalid, so the two parties have a de facto labor relationship. To terminate the de facto labor relationship, the company only needs to notify 30 days in advance without finding other reasons.

Legal provisions:

Article 18 of the "Labor Contract Law" states that if the labor contract stipulates unclear standards such as labor remuneration and labor conditions, causing disputes, the employer and the employee may Re-negotiate; if negotiation fails, the provisions of the collective contract shall apply; if there is no collective contract or the collective contract does not stipulate labor remuneration, equal pay for equal work shall be implemented; if there is no collective contract or the collective contract does not stipulate labor conditions and other standards, the relevant national regulations shall apply.

Article 81 of the "Labor Contract Law", if the labor contract text provided by the employer does not specify the necessary terms of the labor contract stipulated in this law or the employer fails to deliver the labor contract text to the employee, the labor contract shall be The administrative department shall order corrections; if any damage is caused to workers, they shall be liable for compensation.

Analysis:

The "Labor Contract Law" stipulates the terms that a labor contract should have, especially the terms of job position and salary and benefits. They are not only necessary terms, but also extremely important terms. . However, is an employment contract that lacks necessary clauses invalid?

The law does not clearly stipulate that the lack of necessary provisions is an invalid labor contract, so the company's personnel manager's claim has no legal basis. The basis for the establishment and validity of a labor contract is that both parties to the labor contract have consistent intentions and do not violate the provisions of laws and regulations. The lack of certain clauses in the labor contract does not affect the validity of the labor contract. In the cases in this section, if there is no agreement on salary matters in the labor contract, it can be regarded as unclear, and it will not affect the validity of the labor contract. As for the handling of unclear salary matters, it is usually carried out according to the method of further negotiation between the two parties; if the negotiation fails, the provisions of the collective contract shall apply; if there is no collective contract or the collective contract does not stipulate labor remuneration, equal pay for equal work shall be implemented. In the case in this section, the fair treatment of the R&D manager’s salary should be reasonably presumed based on the salary level in the previous six months. As for the human resources manager's statement that the two parties formed a de facto labor relationship, this statement has no legal basis.

Practical Guide In practice, when entering into labor contracts, enterprises should pay attention to the complete and complete statutory provisions. In particular, terms such as salary, working location, job title, etc. should be determined after careful consideration. It cannot be considered that there is room for agreement, and the company will have more room for mediation when disputes arise in the future. In fact, the lack of statutory mandatory provisions not only hinders enterprises from being more proactive when disputes occur in the future, but also causes enterprises to bear more responsibilities in the settlement of labor disputes.