law on employers right to labour management in vietnam

Besides, although the employer is a party in labor relations which plays an important role in creating material wealth for society as well as creating more jobs for employee, in comparis

MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE

HANOI LAW UNIVERSITY

Training instituation:

HANOI LAW UNIVERSITY

Supervisor: 1 Assoc Prof Dr Nguyen Huu Chi

2 Dr Tran Thi Thuy Lam

Opponent 1: Assoc Prof Dr Hoang The Lien

Opponent 2: Assoc Prof Nguyen Huu Vien

Opponent 3: Assoc Prof Dr Pham Cong Tru

This thesis will be defended before the University Thesis Evaluation Board at

Hanoi Law University on , dated / /2014

This thesis can be studied more at:

1) National Library of Vietnam;

2) Library of Hanoi Law University;

INTRODUCTION

1 Rationale of the study

Labor management is an objective indispensable demand of

production in a society with class polarization because in order to achieve the target of a production process, there must be a subject to manage general activities of people and orient such activities towards certain objectives to achieve the set goals The more a society develops, the higher labor assignment and organization level are, and the more important labor management is

For labor relations in a market economy, on macroeconomic scale, labor management is regarded as the power of the state - the largest owner in society On microeconomic scale, in units using employees, the state

“shares” this power with employers in scope stipulated by law Accordingly, employers are entitled to perform direct activities in organization and control

of employees to make general rules and orders in such units, thus, contribute

to improvement in labor productivity, quality and effectiveness

In Vietnam, labor management right of employers has been stipulated

in labor legislation after the power was seized to the people in August, 1945 After several amendments and supplementations, law on labor management right of employer has been more and more complete and specified clearly of the Labor Code passed by The XIIIth National Assembly, the third session

on June 18th, 2012 and taking effect from May 1st, 2013

Based on inheritance and development of the Labor Code in 1994 (amendments and supplementations in 2002, 2006 and 2007), Labor Code in

2012 keeps on institutionalizing renewal line of the Communist Party of Vietnam and concretizes the provisions of the 1992 Constitution of the Socialist Republic of Vietnam on labor and on the use and management of labor Accordingly, labor management right of employer has been expanded ensuring more self-mastery and self-responsibility right of employer in business operation of market economy

However, in recent years, business activities of the units using employees in Vietnam have faced a lot of difficulties Such difficulties are involved in low labor productivity and effectiveness, weak development, poor competitiveness in domestic and international market This results from many causes However, it cannot be denied that in comparison with other laws, some provisions of law on labor management right of employer are not really appropriate and feasible The State still performs too much interference in labor relation which partly restrains self-mastery and self-responsibility right of the employers in labor relations of the market economy

Besides, although the employer is a party in labor relations which plays an important role in creating material wealth for society as well as creating more jobs for employee, in comparison with employees, employers’ rights related to labor management have not been guaranteed on the basis of fairness and mutual benefits by labor legislation

Whereas, some provisions on employers' right to labor management are considered to be quite open and ensure self-determination of employers

in recruitment, use and termination of labor use, some employers tend to abuse their power Discrimination of areas, training modes of employees violates rights, benefits of employees and receives strong objection from society Cases that employers terminate labor contracts, fire employees, decrease employees’ salary without just causes occur frequently and affect income and jobs of employees and general social order

From the above reasons, I decide to choose the issue of “Law on

employers' right to labor management in Vietnam” as the topic of my

doctoral thesis

2 Aims and objectives of the study

Objectives of this thesis are to perform a comprehensive, in-depth and

systematic study on some theoretical issues on employers' right to labor management Based on studied theoretical basis, the thesis focuses on analyzing actual state of current law on employers' right to labor management By evaluation of inadequate points in current laws, the thesis proposes amendments and supplementations of some provisions on employers' right to labor management in Vietnam appropriate to labor market development in the context of regional and international integration

From the above objectives, the thesis focuses on main duties as follows:

Firstly, overview of studies related to the thesis topic

Secondly, studying and clarifying some theoretical issues on

employers' right to labor management and law on employers' right to labor management

Thirdly, analyzing and evaluating actual state of legal provisions and

actual application of legal provisions on employers' right to labor management in Vietnam, then providing comments on pros and cons, shortcomings in legal provisions on current labor legislation

Fourthly, interpreting the need and objective requirements on

completion of the law on employer’s labor management right in the context

of market economy and international integration nowadays

Fifthly, proposing amendments and supplementations of current legal

provisions on employers' right to labor management to ensure more

completion and appropriateness of law with actual state of labor management in units using employees in Vietnam

3 Objects and scope of the study

The thesis studies employers' right to labor management performed in units using employees under provisions of Labor Code in 2012 and documents on implementation guidance Accordingly, contents of law on employers' right to labor management in units using employees include:

- Right to establish labor management tools;

- Right to organize and perform labor management

In order to study issues more deeply, depending on each set content and requirement, the thesis performs reference and comparison with provisions of international conventions and recommendations of International Labor Organization (ILO) and labor legislations of other countries related to the above contents

4 Methods of the study

The thesis is studied based on Marxism and Leninism methodology,

including dialectical and historical materialism methodology Accordingly, legal issues on employers' right to labor management are studied in motion and development state in an integral relation with political and socio-economic elements The thesis is also based on viewpoints and direction of the Communist Party and the State on labor relations in Vietnamese market economy

Specific methods used include retrospective method of documents, analysis, proof, comparison, summary and scientific forecast

5 New scientific contributions of the thesis

- The thesis studies more deeply and clearly definitions, nature,

determination basis and role of law on employers' right to labor management, enriching academic aspects of labor legislation science

- The thesis covers legal contents on employers' right to labor management and systematically analyses such contents based on provisions

of ILO and laws of other countries

- The thesis comprehensively analyses and evaluates existing law as well as actual situation of application of provisions on employers' right to labor management in Vietnam, especially labor management right in labor leasing activities; points out pros and cons of current law, then shows issues that need amending and supplementing

- The thesis interprets requirements on completion of the employers’ labor management right law in Vietnam

- The thesis makes 22 proposes amendments and supplementations of provisions of Labor Code in 2012 on labor management right of employer to complete provisions of Labor Code as well as improve performance effectiveness of employers' right to labor management in units using employees in Vietnam nowadays

6 Theoretical and practical significance of the thesis

Study result of the thesis contributes to enrich fundamental theoretical

system on employers' right to labor management and law on employers' right

to labor management in labor legislation science

The thesis is essential to employers in improving their legal knowledge to apply labor management right in their units using employees properly, flexibly and effectively

The thesis is a helpful reference document for agencies and organizations during performance, amendment and supplementation of labor legislation; for scientific research establishments, teaching and learning institutions on labor legislation; for laborers and other objects desiring to study labor legislation on general and law on employers' right to labor management in particular

7 Conclusion of the thesis

Besides introduction, conclusion, published works related to thesis

topic, list of reference documents, appendices, the thesis contains four chapters and nine sections

Chapter 1 OVERVIEW OF TOPIC STUDY SITUATION

1.1 Domestic and foreign topic study situation

1.1.1 Domestic study situation

Issues on labor management, employers' right to labor management in general and law on employers' right to labor management in particular have been mentioned in textbooks, reference books, grassroots level scientific topics, thesis, dissertations, articles on journal and reports of scientific conference In details:

Textbooks: Issues related to law on employers' right to labor

management have been introduced in two textbook groups: Human resources management and labor legislation, in which, such issues have been mainly mentioned in Vietnam labor legislation textbooks of the education establishments that train laws

Reference books: “Studying provisions of Labor Code of Socialist

Republic of Vietnam” of Legal Science Research Institute - Ministry of Justice, Ho Chi Minh city Publishing House, 1995; “Studying Labor Code of Vietnam” by Pham Cong Bay, National Political Publishing House, Hanoi, 2002; “Labor contract law in Vietnam - actual state and development” by

Dr Nguyen Huu Chi, Labor and Society Publishing House, 2003; “Research documents on labor leasing” of Department of Labor Affairs, Ministry of Labor, Invalids and Social Affairs, Labor and Society Publishing House,

2011

Besides, there are books about: Questions and answers about the Labor Code, Legal handbook, Law studying, Dictionary of legal terms, etc which mention terms or provisions of labor legislation related to the thesis

Scientific topics: Scientific topics related to the thesis are mainly

grassroots level scientific research projects They are: “Actual state of suing settlement on unilateral termination of labor contract, disciplinary measure with regards to labor dismissals in recent years and recommendations” in

2001 of Supreme People’s Court of Vietnam which is managed by Master Nguyen Viet Cuong; “Research for amendments and supplementations of Labor Code in current stage” in 2010 of Hanoi Law University which is managed by Dr Tran Thi Thuy Lam; “Application of labor legislation in human resources management in enterprises” in 2011 of Hanoi Law University by Dr Do Ngan Binh…

Thesis and dissertation: Among published theses and dissertations, the

following works are related to the thesis topic: Thesis of “Labor contracts in the market economy of Vietnam” in 2002 by Nguyen Huu Chi; Thesis of

“Law on labor disciplines in Vietnam- the actual situation and suggestive direction of completion” in 2007 by Tran Thi Thuy Lam; Thesis of

“Collective agreements - A comparative study of Vietnamese and Swedish labor law systems” in 2011 by Hoang Thi Minh; Thesis of “Law on unilateral termination of labor contract - Theoretical and practical issues” in

2013 by Nguyen Thi Hoa Tam Besides, there are other published theses related to the thesis topic

Articles on journals: Articles on journals are mainly researches

discussing labor disciplines, labor contracts, and collective agreements under provisions of previous Labor Code The similarities of such articles are that the authors mainly analyze and evaluate provisions of Labor Code in 1994 (the amended and supplemented Labor Code) and propose completion of provisions the Labor Code based on shortcomings

Scientific reports: Scientific reports include result reports, research

reports, impact evaluation reports or summary reports on issues of labor relation and labor legislation of Ministry of Labor, Invalids and Social Affairs, ILO and VCCI which mention some issues related to the thesis

Scientific conferences: Scientific conferences on labor relations,

amendment and supplementation of Labor Code containing some issues related to the thesis are held by agencies, departments and training establishments specializing law

It can be seen that in different levels, domestic research works have mentioned some aspects in contents of some institutions related to employers' right to labor management However, there is no works studying deeply and independently employer’s labor management right in Vietnamese labor legislation

1.1.2 Foreign study situation

Law on employers' right to labor management is studied in various aspects in some documents on foreign labor legislation including books and articles on journals

Reference books: There are a lot of reference books on labor legislation

in foreign countries which do not show employers' right to labor management

as an independent content but show the right alternately in studying other contents of labor legislation such as labor hiring, labor contract, rights and obligations of employees and employers, labor dismissals They are

“Employment law for business” (2005), Dawn D Bennett-Alexander, Laura B Pincus, McGraw-Hill Companies; “Employment law” (2006), Andrew C Bell, Sweet & Maxwell; Employment & Labor legislation” (2008), Patrick J Cihon, James Ottavio, Castagnera, Cengage Learning; “Q & A Employment Law” (2008), Richard Benny, Malcolm Sargeant & Michael Jefferson, Oxford University Press; “Labor & Employment Law: Text and Cases” (2009), David

P Twomey, Cengage Learning (USA); “Employment Law” (2010), Hugh

Collins, Oxford University Press…

Besides, there are some books studying employers' right to labor management more specifically They are “Management Prerogatives and Employee Participation” (2004), Atty Juris Bernadette M Tomboc-Commercial Law, Department of De La Salle University - Manila, Philippines; “Labour Laws of the Philippines” (2006), Joselito Guianan Chan, http://www.chanrobles.com/PART3.pdf; “Labour and Employment Law in Sweden” (2009), Reinhold Fahlbeck, Bernard Johann Mulder, Lund: Juristförl; “The Employer's Legal Handbook: Manage Your Employees & Workplace Effectively” (2011), Fred Steingold, Nolo…

Articles on journals: Such articles include: “The Managerial

Prerogative and the Employee’s Obligation to Work: Comparative Perspectives on Functional Flexibility” (2006), Mia Rönnmar, Industrial Law Journal, Vol.35, No.1; “Workplace collective bargaining and managerial prerogatives” (2007), John Storey, Industrial Relations Journal, 4-7; “The managerial prerogative and the right and duty to collective bargaining in Greece” (2009), Kostas D Papadimitriou (Associate Professor

in University of Athens, Greece), Comp Labor legislation & Pol’y Journal, Vol 30:273; “The Concept of Mangerial prerogative in South African Labour Law” (2009), John Kinamugire…

In such books and articles, in major aspects, the authors have mentioned some theoretical aspects or/and contents of employers' right to labor management on labor legislation side However, new research works mainly generalize and introduce theoretical and practical issues without analyzing and interpreting them as requirements of the thesis

1.2 Studies issues related to the thesis topic and some comments, evaluation

Based on generalizing issues studied by research works the thesis gives some comments and evaluations as follows:

Firstly, definition of employers' right to labor management There are

some research works giving understanding of the rights to labor management in general and the employers' right to labor management in particular However, such documents have not defined labor management rights of employers as well as law on labor management rights of employers, employers and units using employees Simultaneously, such works have not deeply explained differences the right to labor management of employers in general and the right to labor management of the state

Secondly, bases stipulating labor management rights of employers

Domestic and foreign research works discuss establishments stipulating labor management rights of employers Accordingly, labor management rights of employers come from two bases: right on economic properties and effectiveness that employers wish to achieve However, such works have not deeply and systematically analyzed theoretical and practical basis of determination of employers' right to labor management

Thirdly, legal contents on labor management rights of employers In

studied contents, the works mentioned two aspects of employers' right to

labor management: Firstly, employers are entitled to issue work rules,

collective labor agreements, labor contract, etc to be basis for labor

management; Secondly, employers' right to labor management is shown in

specific rights such as labor recruitment, work assignment, labor transfer, commendations, disciplinary measures, labor contract termination, etc However, there is no works mentioning specifically and systematically contents of the employers' right to labor management Moreover, some contents on employers' right to labor management in labor leasing activities, grievant settlement have not been mentioned properly by the works

Fourthly, actual state of law on employers' right to labor management

in Vietnam By studying some fundamental institutions of labor legislation such as labor contract, collective labor agreements, work rules, etc, the works mainly analyze and evaluate such institutions in general research aspect without deeply studying and considering employers' right to labor management Proposals suggested by such works for amendments and supplementations are mainly legal provisions in previous statutes, which have partly become outdated There is no works specifically and systematically analyzing actual state of law on employers' right to labor management based on provisions of the Labor Code 2012

Fifthly, completion of law on employers' right to labor management in

Vietnam This content is mentioned specifically in domestic research works Such research works have proposed main opinions on completion of provisions in the Labor Code issued in 1994 which is amended and supplemented Besides, some works propose completion of law on unilateral labor contract termination right of employers of the Labor Code in 2012 Appropriate opinions and viewpoints of such research works will be referred

by the thesis during additional study and completion on side of employers' right to labor management

1.3 Fundamental issues to be settled in the thesis

1.3.1 Some theoretical issues

- Theoretical issues on employers' right to labor management

- Theoretical issues on law on employers' right to labor management

1.3.2 Actual state of current labor legislation on employers' right to

labor management in Vietnam

- Actual state of law on the right to establish labor management tools

- Actual state of law on the right to organize and perform labor management

1.3.3 Completion of law on right to establish employers' right to

labor management in Vietnam

- Completion direction of law on employers' right to labor management must ensure theoretical and practical requirements

-To propose amendments and supplementations of some provisions on employers' right to labor management In detail, to propose amendment and

supplementation of provisions on right to establish labor management tools and right to organize and perform labor management of employer of the Labor Code in 2012

Chapter 2 SOME THEORETICAL ISSUES ON LABOR MANAGEMENT RIGHT AND LAW ON EMPLOYERS' RIGHT TO LABOR

MANAGEMENT

2.1 Employers' right to labor management

2.1.1 Definition of labor management and law on employers' right

to labor management

2.1.1.1 Labor management

Based on management definition, labor management can be understood as impact of competent subjects on objects when participating in labor relations to boost labor productivity, quality and effectiveness From this perspective, competent subjects for labor management include the state and the employers The labor management of employers can be understood

as organizational and intended impact of employers on employees in units using employees to gain the highest effectiveness during business operation

2.1.1.2 Employers' right to labor management

“Employers” can be understood as units using employees (agencies,

organizations, companies and cooperatives, or persons using employees (households and individuals) In the units using employees, the employers have “supreme” right in making decisions on business operation and process

of labor management To get this right, the employers must be qualified under legal provisions

Concepts of employers' right to labor management by foreign countries are mainly shown in two theories: 1) Institutional theory; 2) Contractual theory Although two theories give different viewpoints of employers' right to labor management, the similarity is that labor management right is recognized as privilege of employers to the employees

in the workplace

In Vietnam, there has been no definition of employers' right to labor management From legal provisions, it can be seen that employers' right to labor management is considered on flexible basis of the above theories The most general definition of employers' right to labor management can be given as follows: Employers' right to labor management is the right of an employer in directing, managing the employees in the unit based on

establishing labor management tool as well as organizing the implementation of labor management under legal requirements in order to boost labor productivity, quality and effectiveness

2.1.2 Nature of employers' right to labor management

Employers' right to labor management has social, economic and legal nature This natures are proved in fundamental characteristics: 1) Employers' right to labor management reflects unilateral will of employers; 2) Employers' right to labor management is always affected by subject’s will in labor relation; 3) Employers' right to labor management is governed by the legal limits; 4) Employers' right to labor management is administrative

2.1.3 Basis for determination of employers' right to labor management

Employers' right to labor management is determined on the basis of:

1) Objective requirements of labor management activities; 2) Right for properties of employers; 3) Benefits of parties in labor relation

2.2 Law on employers' right to labor management

2.2.1 Definition of law on employers' right to labor management

From studies on employers' right to labor management and international legal provisions on this right, law on employers' right to labor management can be understood as all state provisions on right of employers

in directing, managing employees of the unit based on labor management tool establishment as well as labor management organization and performance for improvement in labor productivity, quality and effectiveness

2.2.2 Contents of law on employers' right to labor management

2.2.2.1 Right to establish labor management tool

* Issuing work rules, internal regulations and decisions

- Work rules

Issuing work rules is the activity showing employers' right to labor management in the clearest manner By the work rules, the employers define general and long term conduct requirements for all employees In law of some countries such as France, Japan, Cambodia, Korea, Vietnam, etc, work rules are compulsorily established in units using numerous employees whereas in other countries such as India, England, Canada, USA, etc work rule are not mandatory Regardless of the issuance is compulsory or not, work rules have two main content groups including provisions forcing employees to perform their duties at work and disciplinary measures for employees violating the provisions However, to avoid misuse and violation

of employers on employees’ right and benefits, law of the countries also stipulate procedures for labor regulation issue

- Internal regulations

Internal regulations are documents issued by employers which include provisions and modes applied to employees in their labor employment unit Labor legislations of some countries such as Japan, Russia, Cambodia, and Vietnam stipulate that employers are entitled to issue regulations to direct labor process However, to ensure democracy of parties in labor relations, laws of many countries, similar to those applied for work rules, also stipulate that before issuing of internal regulations, the employers shall consult opinions of organizations representing employees

- Decisions

Decisions are documents showing employers’ will in cases of definitely issuing measures to settle problems arising when they use employees Laws of many countries allow employers to make decisions for labor process management, however, besides stipulated procedures, such laws also limit this employers’ right by stipulating mechanisms to protect employees’ benefits

* Signing collective labor agreements, labor contract and other agreements

- Collective labor argreements

Through collective labor agreements, employers' right to labor

management is shown in two aspects Firsly, the rights of the employers to perform certain acts to their employees, and secondly duties and obligations

of the employees Laws of some countries consider collective labor agreements as an important basis to bind employees to perform their obligations under employers’ direction Because collective labor agreements aim at effectiveness of business operation, employers used collective labor agreements as a tool for enhancing labor effectiveness

employees’ benefits, labor legislations of most countries in the world limit employers' right to labor management by listing employers’ obligations

- Other agreements

Besides labor contract, in labor relation, parties also have other agreements such as labor leasing contract, vocational contract, and probation contract Signing such contracts is to create legal basis for employers to perform labor management during labor leasing, vocational training or probation period

2.2.2.2 Right to organize and perform labor management

* Right to recruit employees

Derived from importance and benefits of values brought by labor recruitment, ILO as well as some countries such as France, Poland, Indonesia, China, etc recognizes and respects this right of employers However, laws of many countries only indirectly stipulates responsibilities

of related subjects (such as employment services or organizations) as well as stipulates acts that employers are not allowed to perform when recruiting, instead of specifically stipulating labor recruitment contents Such undetailed stipulation in laws is the way that lawmakers grant this right to employers to make decisions on recruitment for existence and development

of their unit

* Right to labor use

- Right to assign and arrange works for employees

Laws of some countries in the world such as Japan, China, Vietnam, Korea, South Africa, etc take this employers’ right as granted However, for some special types of employees, because of their typical characteristics, employers are not allowed to assign certain works to them

- Right to transfer, change and suspend works of employees

For the right to transfer employees to perform other works: Laws of some countries such as Sweden, Greece, England, Philippines, etc allow employers to assign employees to perform other works Plausible reason for this abnormal asignment mainly comes from the demand of the employment circumstance, or the employee's capacity However, to protect the employees’ rights, the laws also limit this right of employers by specifically stipulating assignment duration and procedures, employees’ rights, especially by forcing employers to arrange original works for employees when assignment duration expires

For right to change employees’ works: Laws of countries such as Sweden, Japan, Vietnam, etc indicate unlimited right of employers in changing employees’ works However, because change in works can affect