PHAM DIEM
State and Law Institute of Vietnam
The labor law has developed through Vietnam’s historical ups and downs. During the feudal and colonial times when Vietnam was largely an agrarian country with over 90% of the population subsisting on agriculture, it did not exist as a separate branch of law. After the French colonialists were ousted in 1954, the country was divided into two zones and embarked upon the war of resistance against US imperialists. Hence, not a single labor law appeared during this period. Things quickly changed, however, after the country was reunified, especially in the period of “doi moi” (renewal) initiated by the Communist Party of Vietnam in 1986, when the country’s first ever Labor Code and various legal documents regulating labor relations emerged.
Pre - ‘doi moi’ period
Throughout a long period in which Vietnam fell into circumstances of war and a centrally-planned economy with state subsidies, employment did not become a burning issue in social life and labor relations heavily bore an administrative and mandatory nature.
With the absence of a labor code in this period, such labor matters as recruitment, wage regimes, social insurance regimes, and labor discipline were provided in various government documents and the Law on Trade Unions. Basically, labor relations were governed by administrative law, with documents being promulgated largely by executive bodies (the government, ministries). Only some essential matters in labor relations such as wages, work time and break time, labor discipline, labor safety and sanitation, and social insurance, were provided for by law.
Post - ‘doi moi’ period
Since Vietnam initiated the national cause of “doi moi” (renewal) and actively integrated into the world economy, a labor market has been incrementally established and labor relations have been diverse, dynamic and complex. Employers are no longer only state-owned enterprises and organizations but also include private and foreign-invested enterprises.
All these require better labor relations so as to contribute to creating new human resources for national development and international integration. Hence, the quantitative and qualitative betterment of labor law becomes more urgent and important than ever.
In such a context, the country’s first-ever Labor Code was passed by the National Assembly of the Socialist Republic of Vietnam on June 23, 1994, promulgated by the State President on July 5, 1994 and came into force on January 1, 1995. With 198 articles arranged in 12 chapters, it has prescribed in a comprehensive and systematic manner the following key labor relations:
- Employment (Chapter II with 7 articles);
- Apprenticeship (Chapter III with 6 articles);
- Labor contract (Chapter IV with 18 articles);
- Collective labor accord (Chapter V with 11 articles);
- Salary (Chapter VI with 13 articles);
- Work and break time (Chapter VII with 10 articles);
- Labor discipline and material liability (Chapter VIII with 12 articles);
- Labor safety and labor sanitation (Chapter IX with 14 articles);
- Female laborers (Chapter X with 10 articles), minor laborers and other types of laborers (Chapter XI with 21 articles);
- Social insurance (Chapter XII with 13 articles);
- Trade Union’s role in labor relations (Chapter XIII with 4 articles);
- Settlement of labor disputes (Chapter XIV with 11 articles);
- State management of labor (Chapter XV with 5 articles); and,
- State inspection on labor, sanctions against violations of labor legislation (Chapter XVI with 11 articles).
The emergence of the 1994 Labor Code marked a substantial development in labor law, creating a new branch of law in Vietnam.
In addition to the Labor Code and its guiding documents, a number of other legal documents more or less regulate labor relations, including the Constitution which has clearly stated citizens’ rights and obligations to labor as well as basic principles of labor relations; the Trade Unions Law; the Enterprise Law; the Investment Law; the Law on Bankruptcy of Enterprises; the Law on Procedures for Settlement of Labor Disputes; and the Law on Settlement of Complaints and Denunciations.
In the course of its development, the labor market in Vietnam has been enhanced both quantitatively and qualitatively and expanded extensively and intensively at home and abroad. Labor relations have become increasingly diverse and complex, involving more foreign elements.
For these reasons, many provisions of the 1994 Labor Code proved to be no longer suitable and need to be amended. Revision of the Labor Code needed to do away with contradiction and overlap between its provisions and those of other laws as well as meet the requirements of intensified international integration and international practice.
Consequently, a law amending and supplementing a number of articles of the 1994 Labor Code was passed by the National Assembly on April 2, 2002 and took effect on January 1, 2003 (hereinafter referred to as the 2002 Labor Code (revised). Of the 198 articles in the 1994 Labor Code, 56 were amended, accounting for more than 25% of the total number of articles.
The amendments concentrated on the following key and essential matters in labor relations:
- The role, function, competence and responsibilities of job recruitment organizations.
- Labor contracts;
- Collective labor accords;
- The role of trade unions;
- Rights, interests and obligations of employees and employers;
- Labor discipline and material liability;
- Labor relations involving foreign elements;
- Labor export;
- Labor relations in cases of merger, consolidation, division or dissolution of enterprises;
- Social insurance;
- Settlement of labor disputes; and,
- State administration of labor.
Nearly all key issues in labor relations were overhauled comprehensively in the course of development of the labor market and labor relations.
In recent years, labor disputes have appeared more frequently in Vietnam and become more complex. Strikes have increased in number though most were spontaneous. These phenomena have caused troubles in the labor market and no little impact on the interests of employers and the investment environment. This is attributable to many things, but legal provisions on labor disputes and strikes remain incomprehensive, unspecific and unsuited to practical realities.
As a result, on November 29, 2006, the National Assembly adopted another law amending a number of articles of the Labor Code, which took effect on July 1, 2007. This second revision only dwelt on Chapter XIV - Settlement of Labor Disputes.
In the course of its development, labor law in Vietnam has always identified its subjects of application and governing scope as labor relations between wage earners and employers as well as social relations directly related to labor relations. Vietnam’s Labor Code applies to all laborers and all organizations and individuals employing laborers under labor contracts. It also applies to apprentices, house servants and some other types of laborers. Vietnamese citizens working in foreign-invested enterprises in Vietnam, in foreign agencies or organizations based within Vietnamese territory and foreigners working in Vietnamese territory for Vietnamese enterprises, organizations or individuals are all governed by the Labor Code, except as otherwise provided for by international treaties to which Vietnam has signed or acceded. The working regimes applicable to state employees, personnel of the armed forces and police forces, socio-political organizations, and cooperative members are prescribed by other legal documents but governed by a number of provisions of the Labor Code, depending on the subjects of application.
Panoramically, the formulation and revision of Vietnamese labor law has always adhered to the following three basic principles:
First, protecting laborers. Laborers are free to choose their jobs, not suffer discrimination, receive remuneration based on their labor, and are entitled to protection, rest and social insurance.
Second, protecting the legitimate rights and interests of employers.
Third, harmonizing economic and social policies, contributing to promoting the talents of laborers and employers for higher productivity in production and business and contributing to national industrialization and modernization for the objective of a prosperous population, a strong country and an equal, democratic and civil society.-