With the fast current development of the labor market in
The 1994 Labor Code devoted an entire chapter (Chapter IV) to the settlement of labor disputes. Its 23 articles on settlement of labor disputes were substantially amended or supplemented in 2002 and completely revised in 2006.
The ground rules
Labor disputes are unavoidable in labor relations between employers and employees in a market economy, especially under the conditions of
The 1994 Labor Code provided in Article 157: “Labor disputes are disputes over the rights and interests related to employment, wages, incomes and other labor conditions, over the performance of labor contracts, collective labor accords and apprentices.”
This definition was no longer suitable to labor relations and labor disputes in
The new definition underscored two new points: First, it clearly identified the two disputing parties, laborers or labor collectives and employers; second, the disputes might occur in all labor relations, not only in such domains as employment, wage, income, etc., as stated in the 1994 Labor Code.
Vietnamese law has classified labor disputes, helping to pinpoint accurately types of disputes for appropriate and effective settlement to ensure the rights and interests of parties in labor relations.
Under the 1994 Labor Code, labor disputes were classified in two types:
- Individual labor disputes, which are disputes between individual laborers and employers; and,
- Collective labor disputes, which are disputes between labor collectives and employers.
The revised 2006 Labor Code has further specified collective labor disputes into two types:
- Collective labor disputes over rights, which are disputes over the implementation of provisions of labor law, collective labor accords, labor regulations already registered with competent state bodies or other lawful regulations or agreements in enterprises, which, according to labor collectives, have been violated by employers; and,
- Collective labor disputes over interests, which are disputes over the establishment of new labor conditions demanded by labor collectives under provisions of labor law, collective labor accords, labor regulations already registered with competent state bodies or other lawful regulations or agreements in enterprises in the course of negotiations between labor collectives and employers;
Here, “labor collectives” are understood as laborers working in the same enterprise or the same section of an enterprise and “labor conditions” as the amendment and supplementation of collective labor accords, provisions on wages, bonuses, incomes, labor norms, work hours, break times and employee welfare.
Labor disputes are settled under the following principles:
- Direct negotiation, self-arrangement and self-decision by the disputing parties at places where the disputes arise;
- Via conciliation or arbitration, based on respect for the rights and interests of the disputing parties, the common interests of the society and the observance of law; and,
- Public, objective, timely and lawful settlement, with the participation of representatives of laborers and representatives of employers in the course of dispute settlement.
In the course of settling labor disputes, the disputing parties have the following rights and obligations:
- To participate directly or via their representatives in the settlement of labor disputes;
- To forgo their complaints or alter dispute contents;
- To demand the replacement of mediators or arbitrators if having reasonable belief that such persons cannot ensure objectivity or fairness in the settlement of disputes;
- To supply documents and/or evidence at the requests of dispute settlement bodies or organizations; and,
- To strictly abide by achieved agreements, the minutes of successful conciliation, the effective decisions of dispute settlement bodies or organizations, or the effective judgments or rulings of courts.
The settlement of labor disputes shall be conducted by dispute settlement bodies or organizations when either party rejects negotiations or both parties have conducted negotiations but failed to settle their disputes and either or both parties file the request for settlement of labor disputes.
The following bodies and organizations are competent to settle labor disputes:
- Grassroots conciliation councils set up at enterprises, each comprising an equal number of representatives of laborers and employer representatives and operating for a two-year term;
- Labor conciliators appointed by district-level labor offices;
- Provincial-level arbitration boards set up by provincial-level People’s Committees, each comprising representatives of the labor office, trade union, the employer and the bar association and working for a three-year term;
- Labor tribunals, which directly settle labor cases, including the labor tribunal under the Supreme People’s Court, labor tribunals under the provincial/municipal people’s courts, and district-level people’s courts composed of judges specialized in labor cases; and,
- Presidents of the People’s Committees of urban districts, rural districts, provincial towns or cities (newly specified in the revised 2006 Labor Code).
The competence to settle labor disputes is defined more comprehensively and more specifically in the revised Labor Code, which clearly states that competent to settle individual labor disputes shall be grassroots conciliation councils, labor conciliators or people’s courts. Competent to settle collective labor disputes over rights shall be grassroots conciliation councils, labor conciliators, and presidents of People’s Committees of urban districts, rural districts, provincial towns or cities, as well as people’s courts. Competent to settle collective labor disputes over interests shall be grassroots labor conciliation councils, labor conciliators or labor arbitration boards.
On strike
In labor relations and the labor market, strikes constitute a fundamental right of laborers and their last resort to protect themselves when necessary. Economically, strikes are considered an economic right of laborers in the market economy. Legally, they are considered one of the fundamental rights of laborers, protected by law, aiming to compel employers to satisfy their legitimate demands. Strikes reflect labor disputes between labor collectives and employers and are also the consequences of failure in the settlement of those disputes.
Laborers’ rights to strikes were recognized right after the victorious August 1945 Revolution, which gave birth to the Democratic Republic of Vietnam, as clearly seen in President Ho Chi Minh’s 1947 Order No. 29/SL. Yet, this right was not used for a long time due to centralism and state subsidy and strikes did not occur in reality.
When
In recent years, strikes have occurred more and more at various enterprises of different types, in different localities and on different scales, of which many were spontaneous and unlawful. Such a situation has caused difficulties to production and business activities, greatly harmed the interests of employers and employees, adversely affected the social order in localities as well as the investment environment in
The 1994 Labor Code contained 8 articles on strikes and arranged in the section entitled “Competence and Order for Settlement of Collective Labor Disputes.” Yet, the revised 2006 Labor Code devoted 23 articles to strikes, arranged in a separate section entitled “Labor Strikes and Settlement of Labor Strikes.”
As compared to the 1994 Labor Code, the 2006 Labor Code saw an increase in the number of articles on labor strikes and changes in their contents.
Article 172 of the 2006 Labor Code defined the labor strike as follows: “Labor strikes mean the temporary, voluntary and organized cessation of work by labor collectives for the settlement of collective labor disputes.”
The revised Code also contains comprehensive, specific and strict provisions on the following issues:
- Illegal strikes;
- The role and competence of trade union organizations in labor strikes;
- The laborers’ rights and responsibilities in labor strikes;
- The employers’ rights and responsibilities upon the occurrence of labor strikes;
- Procedures and order for staging labor strikes; and,
- The role and jurisdiction of courts in examination and handling the legality of labor strikes.
All these regulations aim to guarantee the laborers’ right to strike and the rights and interests of laborers and employers while at the same time preventing spontaneous and unlawful strikes in order to protect social order, production and business and create a favorable investment environment in