>>Solving disputes: marriage, family and the law
Pham Diem
State and Law Institute of Vietnam
Since Vietnam embarked upon “doi moi dat nuoc” (national renewal), shifting to build a market economy with different forms of ownership and various economic sectors, incrementally democratizing social life and integrating itself into the international community, labor relations have increasingly developed and become diversified, entailing more and more complicated labor disputes. This situation requires better and better legal institutions on dispute settlement.
In Vietnam, labor disputes are understood as disputes over rights and interests, which arise in labor relations between laborers, labor collectives and employers. They include individual labor disputes between employees and employers and collective labor disputes between labor collectives and employers.
Under Vietnamese law, labor disputes will be settled by the following modes:
a/ Conciliations and negotiations: Conciliations can be organized by the following agencies or organizations: Grassroots conciliation councils or conciliators of district labor offices (for localities where the grassroots conciliation councils are not available) and provincial-level labor arbitration councils. Provincial-level labor arbitration councils will reconcile and settle collective labor disputes occurring in provinces, based on the written requests for conciliation, and settle collective labor disputes which were unsuccessfully reconciled at the grassroots level.
b/ Labor strike: If labor collectives disagree with decisions of provincial-level labor arbitration councils on settlement of their collective labor disputes but decline to file lawsuits at courts, they may launch labor strikes.
c/ Lawsuit: For individual labor disputes, the disputing parties may file their labor cases, requesting courts to protect their lawful rights and interests if the disputes were unsuccessfully settled at the grassroots level or must not necessarily go through grassroots conciliations.
For collective labor disputes, labor collectives or employers may file lawsuits requesting courts to settle their disputes if they disagree with decisions of the labor arbitration councils on the settlement of labor disputes.
The procedures for settlement of labor disputes by conciliation or strike are defined mainly in the labor law while the procedures for settlement of labor disputes by lawsuit at courts are prescribed mainly in the civil procedure law and the labor law, namely the labor dispute procedures.
The labor dispute procedures must, comply, on the one hand, with the principles of the civil procedure law and the law on organization of courts, and, on the other hand, with the principles on the settlement of labor disputes in general. These principles include:
- Direct negotiations, settlement and determination by the disputing parties themselves at the places where the disputes arise.
- Via conciliation or arbitration, based on respect for the rights and interests of both disputing parties, respect for public interests, and compliance with law.
- Open, objective, timely, prompt and lawful settlement.
- With the participation of representatives of the employees and employers in the course of dispute settlement.
Though bearing their own traits the labor dispute procedure order and legal precedings must comply with the civil procedures.
Court jurisdiction
The 1989 Ordinance on Settlement of Civil Cases only generally provided that courts were competent to settle labor disputes. Yet, the 2004 Civil Code has specified labor disputes falling under the courts’ jurisdiction, including:
a/ Individual labor disputes between employees and employers, which the grassroots labor conciliation councils or conciliators have failed at the conciliations or have not been settled within the time limits prescribed by law, except for the following disputes which must not necessarily go through grassroots conciliations:
- Disputes over labor discipline of dismissal or over unilateral termination of labor contracts.
- Disputes over damages between employees and employers or over allowances upon termination of labor contracts.
- Disputes between house-maids and employers.
- Disputes over social insurance as provided for by the labor law.
- Disputes over damages between laborers and labor export companies.
b/ Collective labor disputes between labor collectives and employers, which have been settled by provincial-level labor arbitration councils but the labor collectives or the employers disagree with the settlement decisions.
They include disputes over rights and interests related to employment, wages, incomes, working conditions; disputes over performance of collective labor accords, over the establishment and operations of, as well as the joining in, trade unions; and other labor disputes prescribed by law.
So, all collective labor disputes can only be settled at courts if they have already been settled by labor arbitration councils.
Besides, courts are also competent to settle labor requests, including:
- Requests for recognition and enforcement in Vietnam labor judgments and decisions of foreign courts or non-recognition of labor judgments or decisions of foreign courts without requests for enforcement in Vietnam;
- Requests for recognition and enforcement in Vietnam labor awards of foreign arbitrators;
- Other labor requests prescribed by law.
Formerly, almost all labor disputes in Vietnam were settled by conciliations and negotiations organized by local labor bodies, especially by administrative measures.
Yet, to meet the requirements of the process of building a civil society and judicial reform, since 1995 when the Vietnamese National Assembly passed the Law Amending and Supplementing a Number of Articles of the Law on Organization of People’s Courts, labor tribunals have been set up as part of the system of courts in Vietnam.
At the Supreme People’s Court, the labor tribunal is organized together with other courts (criminal court, civil court, economic court, administrative court, central military court and appellate court).
At provincial-level courts, labor tribunals exist alongside administrative courts, economic courts, civil courts and criminal courts.
However, these tribunals and courts have not been organized at district-level courts at which only separate labor judges work.
Filing a lawsuit
The disputing parties may initiate lawsuits at courts. For an individual labor dispute, the statute of limitations for lawsuit initiation is six months (counting from the date when the dispute arises). Particularly for labor disputes which need not go through grassroots conciliation, such time limit is one year.
For a collective labor dispute, the statute of limitations for lawsuit initiation is also one year.
Within seven days after the submission of claims at courts, the plaintiffs shall advance a court fee, except for cases in which they are entitled to the fee exemption.
The courts will deal with the cases after the plaintiffs submit the court fee payment receipts to courts or after the courts receive the claims (in case of court fee exemption).
Courts will return claims in one of the following circumstances:
- The lawsuit initiators are not entitled to file their lawsuits.
- The claims are made not in accordance with the compulsory contents required by law.
- The statute of limitations for lawsuit initiation has expired.
- The disputes have not yet been reconciled at the grassroots level (except for cases in which they need not go through grassroots conciliation).
- The cases have been settled with effective judgments or decisions of courts or decisions of competent state bodies.
- The cases fall beyond the courts’ jurisdiction.
Court proceedings
Within seven days after dealing with the cases, the courts will notify the defendants and the involved parties with relevant rights and obligations of the details of the claims. Also within seven days after receiving the courts’ notifications, these people must send to courts their written opinions on the claims and the relevant written proofs.
Within 30 days or 40 days at most for a complicated collective labor dispute after hearing the case, the court must issue a decision to bring the case to trial, or to suspend or to stop the settlement of the case.
Within 10 or 15 days at most for plausible reasons, after deciding to bring the case to trial, the court must open a hearing. Under Vietnamese law, before opening a hearing, the court must organize conciliation (called pre-court session conciliation) between the disputing parties. If the conciliation succeeds, the court will issue a decision to recognize the agreements between the parties and this decision is as valid as a judgment. If the conciliation fails, the court will issue a decision to bring the case to trial.
The trial at labor tribunals is also conducted at two levels: first-instance and appellate trial. The involved parties or their representatives, or the trade unions initiating the lawsuits may lodge appeals against judgments or decisions of the first-instance courts, requesting appellate trials. People’s Procuracies of the same or immediate higher level may protest against judgments or decisions of the first-instance courts.
Formerly, district-level courts settled through first-instance trial individual labor disputes, except for cases falling under the jurisdiction of provincial-level courts. Provincial-level courts con-ducted first-instance trials of collective labor disputes; labor disputes involving foreign elements or a number of cases which fell under the jurisdiction of district-level courts and were deemed necessary to be settled by provincial-level courts.
At present, in the process of judicial reform and given the situation that labor disputes in Vietnam are on a constant rise, the district-level courts’ jurisdiction has been broadened for the first-instance trial of almost all labor cases while provincial-level courts will conduct appellate trials.
Reviewing legality of strikes
During a labor strike or within three months after the termination of such strike, either disputing party may file its claim at a court, requesting the examination of the legality of the strike.
The provincial-level courts of the localities where labor strikes occur are competent to examine the legality of labor strikes. The appellate court of the Supreme People’s Court is competent to settle complaints about provincial-level courts’ decisions on the legality of labor strike. Court decisions on examination of the legality of labor strikes must clearly state whether the strikes are legal. If strikes are declared illegal by courts, the labor collectives must stop the strikes and return to work.
In a nutshell, the judicial procedures for labor disputes constitute a new institution in Vietnamese law, demonstrating a novelty in the process of judicial reform in Vietnam. Recently in Vietnam, labor disputes were on a constant rise and most of which were settled via conciliations and negotiations. The number of cases brought to courts was few partly due to laborers’ and employers’ habitual and customary reluctance and partly due to a number of impractical and cumbersome procedures and slow adjudication by courts.
However, the settlement of labor disputes via judicial procedures is considered an important channel to protect the lawful rights and interests of employees and employers, contributing to the development of labor the market and investment environment in Vietnam.-