settlement of a strikes by collective bargaining and mediation under vietnamese law- in comparision with the swedish system

Basing itself on Swedish labourlaw, Vietnamese labour law should acknowledge that a strike is a voluntary complete stoppage ofwork organized by a labour collective to force the settlemen

Table of Contents

Table of contents ……….……… ……… 1

Abbreviations……….……… ……… 2

Executive Summary……….……… 3

1 Introduction……… ……… 4

2 Overview strike and settlement of strike……… 8

2.1 Background of labour market and labour law developments in Vietnam and Sweden….………8

2.1.1 Background of labour market and labour law developments in Vietnam……… 8

2.1.2 Background of labour market and labour law developments Sweden……… 9

2.2 The Concept of strike……… ……… 12

2.2.1 Strike seen from socia-economic angle and international law……… 13

2.2.2 THe Strike in the Labour Code of Vietnam……… ……… 14

2.2.3 Strike as stipulated in the law of Sweden ……… ……… 17

2.2.4 Lesson learned from the improvement of the concept of the strike in Swedish law 20

2.3 Introducing some viewpoints on the settlement of a strike and overview of a strike's resolution under Vietnamese and Swedish labour law… ……… ……….….……… 23

2.3.1 Some viewpoints on the settlement of a strike.… ……… ……… 23

2.3.2 Overview of the settlement of strike under Vietnamese and Swedish labour law ………… 26

3 The Settlement strikes by way of collective bargaining…… ……….… 30

3.1 Issues to be improved in Vietnamese labour law in respect of settlement of a strike by collective bargaining…… 30

3.2 Lessons learned from Swedish law to improve Vietnamese labour law in respect of settlement of a strike by collective bargaining……….… 31

3.2.1 Introduction of settlement of a strike by collective bargaining in Swedish law… 31

3.2.2 Investigation of Swedish law with a view to improving Vietnamese legislation on the settlement of strike by collective bargaining… ……… ……… 37

4 Settlement of strike by mediation… ……… 41

4.1 Introduction of settlement of a strike by mediation in Vietnamese Labour Law.……… … 41

4.2 Issues to be improved in Vietnamese labour law in respect of settlement strike by mediation ……… 42

4.3 Survey of Swedish law system with a view to improvements in legislation regarding settlement of a strike by mediation in Vietnam……… ……… 48

4.3.1 Introduction to settlement of a strike by mediation in Swedish law……… 48

4.3.2 Investigation of Swedish law in order to improve Vietnamese legislation on settlement of strike by mediation……… ……… … 52

5 Conclusion… ……… 61

Bibliography.……… 62

ILO: International Labour Organization.

MBL: The Co-Determination Act.

Vietnamese Labour Code: conclusion of Vietnamese Labour Code 1994 and Amendments of

Vietnamese Labour Code 1994 in 2002, 2006 and 20007

LO: The Trade Union Confederation (Lands-Organisation).

SAF: The Employers Confederation (Svenska Arbetstgivaveforeningen) Nowaday, SAF has

amalgamated and changed name to SN Cofederation of Swedish Enterprise

OECD: Organisation for Economic Cooperation and Development.

Executive Summary

My thesis studies the settlement of strikes under Vietnamese labour law using some ideas drawnfrom Swedish labour law It will deal with the concept of strike, issues of collective bargaining

and mediation in a settlement of a strike

First, on concept of a strike, beside an overview drawn from the perspectives of economics

and social thought, the writer presents the concept of strike laid down in Vietnamese Labour

Code “Strike means a temporary and voluntary cession of work organized by a labour collective

to resolve a collective labour dispute” (article 172 of Vietnamese Labour Code) The writer also

compares Vietnamese and Swedish Law on the issue From the Swedish point of view, a strike isone manifestation of industrial action They distinguish between strikes and other expression of

industrial action such as lockout, go-slow, boycott…in Sweden Basing itself on Swedish labourlaw, Vietnamese labour law should acknowledge that a strike is a voluntary complete stoppage ofwork organized by a labour collective to force the settlement of a collective labour dispute

Secondly, on the settlement by collective bargaining, Vietnamese Labour Code, like Swedishlaw, provides that before and during a strike, the parties have the right of collective bargaining toresolve it However, Vietnamese Labour law is short of legal grounds to create and strengthen

the chances of a settlement of a strike by collective bargaining Based on ideas from Swedish

labour law, the writer proposes improvement to the provisions in Vietnamese labour law on

negotiation; appearances of third party; the process of collective bargaining and the mechanism toensure it will be carried out; guaranteeing the validity of collective agreements which derive fromthe process of collective bargaining

Finally, on a settlement of a strike by mediation, the writer describe some issues which should

be improved in this part of Vietnamese labour law As with collective bargaining, the

participation of mediators and guarantees for the validity of proposals and agreements achieved

in mediation raise issues which Vietnamese labour law should improve In addition, the writer isconcerned with issues of a strike’s postponement as part of a settlement As is the case with

Swedish labour law, Vietnamese labour law should reinforce the competence of mediators to

ensure the success of mediation This is linked to issues of postponing strikes and the mediator

should be able to suggest postponement to the provincial labour office When the issue related topostponement exceeds the competence of the provincial labour office, this agency can request thecompetent authority at provincial level decide

1 1

INTRODUCTION

Identification

One of the forms of industrial action is the strike It is regarded as a basic employees’ right and

one of the most important ways of protecting their rights and interests before the employers A

strike is also considered a delicate matter because its appearance can have an adverse impact on

the economy, society and the relationship between employer and employee in the labour market.Therefore, a key issue to research is how to settle strikes as soon as possible, how to reduce to a

minimum the negative effect of a strike when it occurs Based on the law of the labour market,

the parties involved in the strike issue can solve it by various means such as collective bargainingand mediation and appeal to the Court Collective bargaining and mediation are favourable

methods because of they save time, the procedure is easy and the matter is dealt with by the

parties (employer and employee) in comparison with a settlement by the Court

Vietnamese labour law provides that collective labour disputes in the strike can be settled

by collective bargaining and mediation though a settlement through collective bargaining will berestricted in its effect That are many problems such as who participates in the collective

bargaining, the level of bargaining and the legislative mechanism supporting collective

bargaining Moreover, under Vietnamese labour mediation lacks the “power” to force a

settlement This results from Vietnamese law on the mediator’s role, implementing the

mediator’s decision and competence regarding postponement These problems can be resolved

with the help of lessons learned from the law of Sweden- a leader in achieving settlements by

collective bargaining and mediation To show the necessity of improving the law on the

settlement of strikes through collective bargaining and mediation, I examine the issue

“Settlement of a strikes by collective bargaining and mediation under Vietnamese law- in

comparision with the Swedish system” It is the subject of my thesis.

1 2 Research question and aim of thesis:

The research question shall be how to improve the legislation on the settlement of strikes through

collective bargaining and mediation under Vietnamese labour law so that this legislation will

become more “powerful” and effective in perspective of strike

The aim of thesis:

By comparing Vietnamese and Swedish labour law, the writer will try to solve problems relating

to the settlement of strikes by collective bargaining and mediation under Vietnamese labour law.The lessons to be learned from Swedish labour law on the topic will be brought out

The thesis will concentrate on examining:

-The concept of a strike

-The general idea of the settlement of a strike

-The settlement of a strike by collective bargaining and mediation

The thesis will not focus on such issues as:

-Strikes for political purposes

My thesis looks at strikes in the context of the labour relationship Political strikes extend

beyond the sphere occupied by employees and employer and may be studied elsewhere

-Strikes in the public sector

Sweden is one of countries treat public sector employees There are very few differences in

Sweden between private and public sector labour law Although the writer deals the

Co-Determination Act (SFS 1976:580), in limitation of pages number in thesis, the writer only focusrelationship between employer and employees in private sector Moreover, the writer has not aim

to study Public Employment Act (SFS 1994:260) That is reason strike in public sector is outsidescope of thesis

-Consideration legal characteristic of strike (lawful or unlawful) at the Court

In Sweden, the court does not settle strike One of its essenstial roles is judgement whether

unlawful or lawful strike In other words, the court only handle illegal strike Meanwhile, the

thesis only focuses on settlement of strike by collective bargaining and mediation Specifically,

manner and procedure to resolve collective labour disputes inside strike by collective bargaining,mediation are main content which the writer deals Therefore, settlement by the court will not beconsidered in the thesis

-Comparative method:

+Present the issue which I shall deal to analyse under Vietnamese and Swedish labour law

+ Figure out and analyse differences and similarities between Vietnamese and Swedish labourlaw in aspect of strike’s settlement by collective bargaining and mediation

+Consider whether provisions of Swedish labour law in strike’s settlement perspective can

accord with economic and social condition of Vietnamese labour market

+Pick up and explain about capable to take some legal experiences for “transplantation” into

Vietnam and how to impose these experiences of Swedish labour law into Vietnamese system

-Traditional legal method:

+Mention issues which are related to thesis’s content

+Bring out legal grounds supporting such issues

+Analysis legal grounds to demonstrate they do indeed support the issues

+Draw conclusion.

-Logical analysis:

+Bring out viewpoint

+Explain and analyse viewpoint

+Mention other viewpoints (similar and different)

+Explain and analysis these viewpoints

Reference from Magazine “TheState and Law” N 0 6/2007 and “Some viewpoints on amendment and supplement

Article 174, Chapter 8 of Decree 29/SL dated 12 March 1947.

2.

2.1

Sweden

2.1.1

OVERVIEW OF STRIKES AND THEIR SETTLEMENT

Background of labour market and labour law developments in Vietnam and

Background of labour market and labour law developments in Vietnam 1

Under Vietnamese democratic government, industrial actions was mentioned in statute law

Decree 29/SL of President Ho Chi Minh dated 12 March 1947 providing regulations on

employment between Vietnamese employers or foreigner employers and Vietnamese employees

at industrial factories, mines, commercial firm regulated: “Workers have right freedom of

association and to take industrial action” 2

The years later, because of basic “shift” in labour relationship and request of political

purpose, labour law in Vietnam had not recognized industrial action in aspect of state-owned

trade In 1986, when Vietnam has changed from mechanism of economic management by mode

of concentrated planilisation to structure of market economy, labour relationship was diversified

by diversification of ecomomic composition in market economy This set up request of

recognization of industrial action in Labour law again

In 1994, the National Assembly adopted Vietnamese Labour Code Chapter XIV (from

article 157 to article 179) in this version of Labour Code provided regulation on labour dispute

and strike-one of forms of industrial action In addtion, Standing Committee of the National

Assembly promulgated the Ordinance on the Procedure for the Settlement of Labour Disputes in

1996 This ordinance comprises two main sets of rules One regulated procedure for the

settlement of labour disputes The second of set of rules concerned procedure for the settlement

of strike The year of 2002, although Vietnamese Labour Code was modified and supplemented,there is no any “shift” in provisions of labour dispute and strike In practice, regulations on

1

Vietnamese Labour Code on Labour Dispute and strike”, Dr Do Ngan Binh, Magazine “Democracy and Law N 0

7(136) July 2003.

2

labour dispute and strike in labour law shown inadequacy For instance, these regulations have

not basic definitation such as type of labour dispute, strike… It leaded out different understanding

or opposite interpretation about such definitation

August 2005, Ministry of Labour, War Invalids and Social Affairs presented GovernmentBill of Ordinance on the Procedure for the Settlement of Strike However, a lot of legislatiors

considered that provisions in this Bill had yet accorded with current Vietnamese Labour Code (atthat time) Therefore, instead of adopting the Bill of Ordinance on the Procedure for the

Settlement of Strike, the National Assembly decided amendment and supplement provisions of

labour dispute and strike in Vietnamese Labour Code (Chapter XIV)

29 October 2006, the National Assembly adopted the Law Amending and Supplementing

a number of Articles of the Labour Code on the procedure for the settlement of Labour Disputes.Beginning at July 01 2007, the Ordinance on the Procedure for the Settlement of Labour Disputeswas been no longer valid In the Law Amending and Supplementing a number of Articles of the

Labour Code 2006, almost basic rules which regulated labour disputes, settlement of labour

dispute such as concept of labour dispute, competent, prescription, procedure of settlement of

labour dispute were amended and supplemented Moreover, the concept of strike and type of

dispute was stipulated first

On the whole, nowadays, in Vietnam, there is no such thing as a set of different statutes

on disparate issues along with labour dispute, industrial relation, strike, but only a general LabourCode The law on industrial relation has been just developed in recent years Regulations on thisperspective have been recognized in the Amending and Supplement of the Labour Code in 2006

2.1.2 Background of labour market and labour law developments in Sweden 3

At present, the main statute in the field of collective labour law or law of industrial relations,

collective bargaining and mediation is the Act on Co-Determination at work (SFS 1976:580) ,

commonly referred to as the Co-Determination Act (The MBL) This Act covers the relationship

3Reference from “Labour Law”, Ann Numhauser-Henning, page 343-373, in book “Swedish law in the new

Millennium”, Editor: Prof Dr Micheal Bogdan, 2006; “The evolving structure of collective bargaining in Sweden

(1990-2003) Report 2004-09-16”, Prof, Dr Birgitta Nystrom, University of Lund, Sweden.

between employer and employee or any person who occupies a position of essentially the same

kind as an employee The MBL contains two main sets of rules One includes what might be callthe basic rules of collective bargaining, which have been transferred, with minor addtions or

amendments, to the 1976 Act from earlier legislation on peaceful industrial relations The secondset of rules concerns co-determination at work, first introduced as a result of Act itself The Co-

Determination Act applies to both private and public employees

Thus, the basics of current Swedish labour law, including the MBL and Acts which

regulate in labour market can be dated back nineteenth century, more than one hundred years ago

It was then still dominant social partners were found: the Trade Union Confederation (LO) in

1898 and the Employers Confederation (SAF) in 1902.4 At that time, when industrial actions

were frequent, it set up issue that social partners back then had began a social dialogue Throughthis negotiation, SAF (SN) and LO established an early agreement of special importance: the

“December Compromise of 1906” which was known as “The Swedish Model” to start a great

autonomy for the social partners and their social responsiblility By this compromise, the

employees’ side was protected against dismissals that violated the right of association In

addition, the employyers’side retained “employer prerogatives” which maintained the right to

direct and allocate work freely and also “to hire anf fire at will” This agreement was followed

later on by the important Saltsjobaden Agreement in 1938 Regulatory developments took place

mainly in the form of collective bargaining and signing of subsequent collective agreement on

different issues The first legislative measure in the field of industrial law was the 1906

Mediation Act (replaced in 1920) It was based on vonluntary compliance

The principle rules of labour law in Sweden were articulated by the social partners

themselves Also, subsequent legislation was a mere codification of the social practice made

genarally applicable to parts of the labour market, such as the wage of employee, where unisationdeveloped only later Early regulation by statutes comprised an Act on Collective Agreements

and Industrial Action 1928 and an Act on Collective Bargaining and right of association 1936

Moereover, the Labour Court, a special tribunal was established in 1928 Employment

4 Nowaday, SAF has amalgamated and changed name to SN Cofederation of Swedish Enterprise.

conditions-including employment protection-were first regulated in collective agreement throughcollective bargaining.

In the 1970, this period was considered as a “shift” in union strategies took place It

leaded out a consequence of industrial restructuring, increased labour market participation on

behalf of women and a fast-growing public sector Unions turned to the legislator to guarantee

both industrial democracy and important labour-market conditions After “shift” period took

place, a certain decentralisation of industrial relations was entailed Current Swedish labour law

reflected these historical developments A consequence is that Sweden has not a Labour Code

Labour aspect only contain a set of different statutes on disparate issues along with numberous

collective agreements

During the 1980s, the employers who are in SAF of private sector changed their strategyfrom cooperation with their counterparts towards opinion making measures In this period, it wasrosen opposition and competition between defferent groups of employees such as “blue-collar

workers” and “white-collar workers” Industrial action also took place in almost every wage

round which was a new phenomenon on Swedish labour market and the social partners found it

exceedingly difficult to conclude agreements in during 1980s

Then, the period of the 1990s was considered an interest phase on Swedish labour

aspect The role of the social partners (LO and SAF) was declined The highly centralised

bargaining system has started a decentralisation Meanwhile, the Swedish bargaining system stillcould be characterised as centralised Also beginning of the 1990s, industrial actions were

extended Unemployment increased sharply so that since 1930s, the Swedish labour market has

faced first In this period, a Government Bill which has a suggested prohibition on strike was

rejected by the Parliament As a consequense of, the Social Democrats had to leave office The

Social Democrats was immediately reinstalled in order to get some control over increasing

unemployment, inflation and salary Under leadership of a very experienced mediator, a tripartitenational commision consisting of experienced, retired representative for the labour market partieswas appointed by the Social Democrats in 1995 This tripartite national commision as well as an

attempt to force the social partners to agree on new rule about bargaining Notwithstanding

leadership of experienced mediators, tripartite national commision failed After that, in 1997, the

Government invited the social partners to suggest reforms in Swedish wage formation system.

However, it was quite obvious that the parties were very far from each other in their opinions of

how to resolve issues

A Committee was suggested finally by the Government to review wage formation

throughout the Swedish labour market It examined the principles governing salary negotiation,

the rules of mediation and regulations on industrial action When a number of the committee’s

recommendations were adopted, the Nation Mediation Office was established in 2000 This

office replaced the old state mediation system Nowadays, although the National Mediation

Office is known as the central authority responsible for mediation in labour disputes, this agencyalso got a new task: to promote an efficient salary formation process

In short, historical developments of current Swedish labour law is long-term prcoess

This process reflected the role of socia partners, collective bargaining, collective agreement

There is no thing as a Labour Code, but only a set of different statutes on disparate issues along

with numberous collective agreements Collective labour law or the law of industrial relations

and collective bargaining is regulated mainly in the Act on Co-Determination at Work (SFS

1976: 580)

The concept of the strike contained in the Vietnamese Labour Code5 has been argued about fromvarious viewpoints6 In this research, in addition to the study of strikes as determined by legal

considerations, we also review them from the point of views of socio-economic life and the

approach of the International Labour Organization (ILO) On that basis, the term “strike” can be

viewed more comprehensively as a phenomenon existing in market economies

5

6 Article 172 Vietnamese Labour Code.

“Law on strike and settlement of a strike in Vietnam”, Dr Đỗ NGân Bình, PublisherTư Pháp, 2006, pages 216-219;

“Goals, viewpoints and issues which are considered are brought out on establishment Decree of strike and settlement

of a strike”, Lê Duy Đồng, state in Seminar of law of strike at Ho Chi Minh city, September 2004.

Article 69 of the 1992 Constitution of Vietnam.

Clause 4, Article 7 of the Labour Code of Vietnam specifies: “The employee has the right to strike as prescribed by

International Convention 1966 about economic, social, culture rights of Genaral Assembly of the United Nations.

From the socio-economic viewpoint, a strike is a measure of the workers’ struggle to enforce

demands relating to economic or professional interests It manifests itself through the social

factor of voluntary work stoppages effected by one or more groups of workers A strike makes

production come to a standstill, upsets the order of business management, reduces productivity

and product quality, and negatively affects and destabilizes society While a strike is not the onlyway for the workers to achieve their ends, it is usually considered the most effective measure to

protect their rights and interests due to the pressure it imposes

Studying the regulations of the International Labour Organization (ILO) on strikes, we

learn that the ILO also defines the strike as one of the measures used by workers to defend and

extend their socio-economic interests This is reflected in the Report of the Vietnamese General

Labour Federation on the ILO’s consideration on strikes that: "Strikes are a fundamental means

by which workers and their organizations may defend their social and economic interests not

only for better conditions or collective occupational requirements but also for settlements of

socio-economic policies and other labour issues of workers directly concerned"7

Moreover, pursuant to Article 8 of the International Covenant on Economic, Social and

Cultural Rights of the United Nations, the strike is also stipulated as a right of workers

Accordingly, the right to strike is the right of workers to conduct a temporary work stoppage

voluntarily and lawfully with the aim of compelling an employer or other person to accede to

certain demands regarding their rights and interests8 The recognition of the right to strike of

workers can be found in national constitutions (of France, Germany ) or in Labour Codes (of

Thailand, the Philippines, and Vietnam9 ) Unlike other actions, the right to strike cannot be

performed through an individual’s suspension of work A strike is only recognized as such if the

work stoppage is organized by a labour collective towards common goals In other words, to

strike is an individual right of workers, but it has to be performed by a collective

On the other hand, politically speaking, there has been the suggestion that the right to

demonstrate10 is also the right to strike In fact, the right to strike as found in labour law is

7 “Trade Union protects lawful rights, benefits of employees before the Court”, Vietnamese General Labour

completely different from the right to demonstrate mentioned in such places as the Vietnamese

Constitution Pursuant to the International Covenant on Economic, Social and Cultural rights of

the United Nations and the views of the ILO which were presented above, a strike is one of the

socio-economic rights of workers The right to demonstrate is considered as one of the basic

political rights of a citizen who, irrespective of being an employee, employer or other, fully

qualifies as a citizen of a nation Furthermore, workers can only use the right to strike as

stipulated by the law covering the labour relations that have been established between them and

their employer Thus, the scope of the right to strike is narrower than the right to demonstrate

stipulated by the Constitution In addition, one more reason to affirm the distinction between the

right to strike and the right to demonstrate is that settlement of strikes have to comply with the

processes and procedures prescribed by labour laws while the settlements of demonstrations willdepend on each specific case for the appropriate measures

In general, seen from whatever angle, a strike is recognized as a right of workers

Exercise of the right to strike will have a certain impact on society and the economy Therefore, it

is essential to establish a full legal basis for identifying a strike by way of a specific conception

posed by the law in force, coupled with the socio-economic context where strikes arise and exist

At the same time, we can review the legislation on settlement of strikes

Strikes were first mentioned in the Law Amending And Supplementing A Number Of Articles Ofthe Vietnamese Labour Code in 2006 Article 172 of the Labour Code stipulated:

"A strike means a temporary and voluntary cessation of work organized by a labour collective

to resolve a collective labour dispute".

A strike can thus be identified by the basic signs mentioned in the law

First, a strike is the response of a labour collective conveyed by a cessation of work

Normally, in the relationship between workers and employer, the workers perform their

contractual assignments and obligations as stated in their labour contracts Workers seek

employer approval when they want to suspend the assigned job However, if the cessation of

work is carried out by a group of employees, for the purpose of enforcing demands relating to

their rights and interests, this is considered as the first sign and the basic attribute of a strike as

defined in law

Thus, the aforesaid "cessation of work" is the reaction of workers expressed by their execution of labour obligations without the agreement of their employer In reality, there may betwo possibilities First, the employer is informed of the workers’ intention prior to the work

non-stoppage but refuses to make concession to their demands This is a typical case of a legal strike.Second, the employer is not pre-informed of a sudden voluntary cessation of work In both

circumstances, the work stoppage derives from the subjective will of a labour collective It showsthe workers’ intention of not performing their labour obligations as agreed for the purpose of

enforcing demands relating to their rights and interests

Following the legislative trend in some nations, only a complete and voluntary work stopconstitutes a “work stoppage” for the purposes of a strike Accordingly, after officially

proclaiming a strike, workers are united in refusing to execute any labour obligations until their

demands are met or until there is an order of the trade union leading the strike or a decision of therelevant authorities In other words, when workers stop working, all work being undertaken will

cease The seriousness of the situation depends on the scope and time of the strike and the

specific circumstances

In addition, the Labour Code of Vietnam provides that only a voluntary cessation of workfor the purpose of protesting against the employer is still considered as a strike while a thorough

work stoppage as such is not Specifically, the Labour Code states "A strike means a temporary

and voluntary cessation of work organized by labour collective"11 However, this definition can

lead to confusion with other concepts such as go-slow, reaction of a labour collective, etc; certainbasic concepts in the Labour Code need to be specified more precisely Within chapter I, as

suggested by the above definition of strike, the writer mainly focuses on analysis and clarification

of the signs of a strike, of which “cessation of work” does appear first

One more point is that cessation of work within the context of the definition of strike is

not the same as a work stoppage constituting termination of a labour contract Striking workers

do not intend to terminate their contracts and show their willingness to go back to work if their

demands are met The temporary work stoppage is a sign of a strike while the act of unilateral

termination of a labour contract, puts an end to all labour obligations previously agreed

Moreover, a strike is conducted by a labour collective This is the basis for distinguishingbetween a strike and individual work suspension An individual voluntary work stoppage is

11 Article 172 Vietnamese Labour Code.

considered as an offence against labour discipline with compensation (if any) being paid to the

employer, while a work stoppage carried out by a labour collective with coordination of the

workers is defined as a lawful strike This participation of the labour collective is one of the

expressions and also the basic sign of a strike

Another mark of a strike is that it is characteristically organized This “organized

characteristic” is guaranteed by the fact that a strike will be led by an individual or a group

deputizing for the will of a labour collective with a common action plan and collective rules Anorganized strike is one with a leader although this can be a delegation of workers such as a

Labour Union, Trade Union or Industrial Union Subject to variations on the impact of strikes onvarious aspects of the economy, the leadership status of such person or group is admitted and

recognised in the laws of most countries Previously, the Labour Code of Vietnam only

recognized a strike as legal if it was led by the executive committee of the trade union of the

enterprise or by the provisional executive committee of a trade union12 In reality the, leadership

of a strike is diversified subject to the objective and de facto requirements of the circumstances

leading to strike With the Law Amending And Supplementing A Number Of Articles Of The

Labour Code in 2006, the leadership status is now broader than the executive committee of the

trade union of the enterprise or the provisional executive committee of a trade union The

leadership and organization of a strike can now be undertaken by any representative of the labourcollective, who is elected13 by the workers and accepted by the law

Based on the signs contained in the concept of a strike, there is no doubt that the

“organized” attribute of a strike is in close coordination with its “collective” aspect In other

words, without the unity manifested through the leadership of an individual or a group, striking

workers will not act in common, thus maximizing the strength of a labour collective

Basing ourselves on the definition of strike in the Article 172 of the Law Amending AndSupplementing A Number Of Articles Of The Labour Code in 2006, we can find at least 3 basic

signs of a strike: (i) being a temporary cessation of work, (ii) organized by a labour collective and(iii) in order to resolve a collective dispute These are fundamental factors which affect settlement

of strikes

12

13 Article 172a of the Labour Code in 1994, amended & supplemented in 2002.

The Article 172a of the Law Amending And Supplementing A Number Of Articles Of The Labour Code in 2006.

“The effect of industrial action on the status of the individual employee”, Xavier Blanc-Hounvan, para 2, page 176

See The MBL sec 41,41b.

See The MBL sec 41,41b.

These sections list unlawful industrial actionsbased.

Chapter 2, Article 17 The Instrument of Government of Sweden in 1974.

First of all, when studying the concept of the strike in the laws of Sweden, the writer found that astrike is just one component of the broader term “industrial action” This notion include work

stoppage such as clockout, strike, blockade, boycott or other industrial action which may be

recognized by the Court This means that industrial actions were treated as collective activities or,

to speak more exactly, a collective abstaining from work, or refusal of payment for collective

non-working14 The concept of industrial action in the labour laws of Sweden thus has a broader

connotation than the concept of strike now to be found in the Labour Code of Vietnam Pursuant

to the Swedish Constitution, the right to industrial action is part of the rights of labour Both

employees and employers are entitled to exercise their rights and we read: “A trade union or an

employer or employers' association shall be entitled to take industrial action…”15. Similarly, the

Co-Determination Act 1976 (“the MBL”) as amended and supplemented in 1991 and 2000 statesthat only industrial action which violates its sections 41 and 41b16 is unlawful This means that

unless expressly unlawful,17 industrial actions by employer or employees are permitted

The writer also recognized that this provision is quite open and can be understood very

broadly since industrial actions are defined by the “excluded” method Differing from the

Vietnamese Labour Code, Swedish law does not give a specific definition of industrial action

The MBL only enumerates cases of unlawful industrial action.18 Collective actions which are notunlawful industrial action are accepted by the law Secondly, the MBL does not give details of

industrial actions other than to say that they contain work stoppages All forms of industrial

action involving a stoppage of work-whether it is at the initiative of employees (strike) or of

employer (clockout)-impair the normal execution of the contract of employment.19 Moreover, theAct does not define actions which could be said to be comparable to work stoppages action Thisissue will be handed over the Court to explain in each case; it will determine which actions are

similar to a work stoppage Commonly, ceasing to perform unfair labour obligations, e.g.

refusing overtime working, is also considered as a work stoppage under the law of Sweden

14“The legality of industrial actions and the methods of settlement procedure”, Thilo Ramm, Page 294 in book

“Industrial Conflict – a Comparative Legal Survey”, Editors: Bejamin Aaron and K.W Wedderburn, Publisher:

According to the citation of the writer Do Ngan Binh in the book « The law on strikes and settlements of a strike »

Therefore, to distinguish between a strike and comparable collective actions, the stoppage

of work involved in a strike is the key Subject always to what the Court says, comparable actionsare likely to be seen as incomplete work stoppages In this case, we have other forms of lawful

industrial actions such as a partial strike, a go-slow or a boycott

A second issue, differing again from the Labour Code of Vietnam, relates to the Swedenprinciple of “equality of arms” (principle of equality of employees and employers in labour

relation) which says that not only are employees entitled to stop work, but also employers If

employers act, this is defined as a lockout Therefore, stoppage of work – the prerequisite for a

strike – can come from either party to the labour relation, i.e employees or employers Therefore,all forms of clockout are lawful, both offensive and defensive (ie retaliatory) Offensive clockoutsare rare, but a retaliatory clockout is fairly common as a response to primary industrial action

from the employee side.20 This differs greatly from the law of Vietnam With the aim of

maximizing the protection of employees – the subject at a disadvantageous position in labour

relations - the Labour Code of Vietnam requires a strike to be organized by a labour collective

Offensive or defensive clockouts by employers are not permitted However, this research focuses

on the strike and the concrete sign that it is a stoppage of work conducted by employees The

writer does not tend to study lockouts carried out by employers

The third issue relates to the link between strike and labour relations All industrial

actions as defined in the law of Sweden aim to effect labour relations between employers and

employees but, differing again from the Labour Code of Vietnam, a strike in Sweden is not tied

to the settlement of a collective labour dispute A lawful strike or industrial action in Sweden usesforce to acquire advantages in the relations between each of two parties On the contrary, a strike

in Vietnam is not “a work stoppage to insist on demands that an employer does not want to

satisfy” or “a work stoppage to guarantee success for demands that employees lodge with an

employer”. 21 In other words, the Labour Code of Vietnam does not allow a strike with the aim ofputting economic pressure on the other party so as to achieve demands relating to the rights and

interests of a labour collective On the contrary, the Labour Code of Vietnam recognizes the

strike as a measure to resolve a collective labour dispute aiming to satisfy rights and obligations

relating directly to the employees

20“European employment and industrial relations glossary: Sweden”, Reinhold Fahlbeck and Tore Sigeman, Sweet

and Maxwell Office for Official Publications of the European Communities, 2001, page 30.

21

from Judicial Publisher, 2006, page 27 ; that writer consulted Helene Siney, Que sais-je, Presses Universitaire de

France, 1981, page 35.

Dagsposten Case (1945/62).

, “Industrial action, the State and the public interest”, KW Weddern, Page 332- 333, in book “Industrial Conflict

Fourth, a strike not only originates from but can also go beyond labour relations as

happens with some political strikes This type of strike can be described as “a work stoppage

work stoppage in a political strike may be acceptable if the court finds that it is comparable to

industrial action.23 Professor Folke Schmidt’s study gave reasons for concluding that a political

strike as so defined, was not unlawful Some reasons are:

“(…)The assumption on which the Swedish Act on Collective Agreements (essentially

replacing those given in the former by 1976 Co-Determination (the MBL) is based is that

collective industrial action is permitted unless enumerated as wrongful (…)

No Swedish statute regulates political strikes; and on the introduction of the 1962 Penal Code it was made clear that peaceful political strikes were not an offence against the State

(…)” 24

In fact, the Social Democratic Party and Labour Union mounted a political strike in 1928against the draft of the Collective Bargaining Agreement and Labour Code. 25

Accordingly, the scope of Swedish labour law extends beyond the scope of the labour

relations between employer and employees This is one of the differences in the concept of strike

as defined respectively in the labour laws of Vietnam and Sweden In Vietnam, a strike is only

allowed if it is within the bounds of the labour relations between employer and employees

Political strikes going beyond this will not be allowed by the labour code

We could say that the strike is a sensitive issue affecting the whole socio-economy of

Vietnam and has only just entered the labour code We need to experience of the results of this

acquisition before making further improvements So, a concept of strike going beyond labour

relations has not yet entered the labour code of Vietnam and there is no governance of political orsympathy strike as is to be found in the law of Sweden The analysis of lawful and unlawful

strikes as found in the law of Sweden and the way that the law allows the court to consider a

22“Industrial action, the State and the public interest”, KW Weddern, Page 332, in book “Industrial Conflict – a

Comparative Legal Survey”, Editors: Bejamin Aaron and K.W Wedderburn, Publisher: Longman-London, 1972; in

this article, that writer cited viewpoint of Prof Folke Schmidt in “ Politiska strejker och Fackliga Sympatiatgarder

(Political Strikes and Trade Union Sympathetic Actions, Stockholm 1969).

23

24 21

– a Comparative Legal Survey”, Editors: Bejamin Aaron and K.W Wedderburn, Publisher: Longman-London, 1972.

The 1974 Instrument of Government, Chapter 2, Article 17 “Every trade Union (…) shall have the right to take

stoppage of work or other industrial action comparable make the concept of strike very flexible

and broaden its connotations in terms of forms, expressions and signs; this is all well beyond thescope of the definition of strike in Vietnam

Fifth, studying strikes as the right of the workers, (apart from lockouts), the writer foundsimilarities in the “organized” and “collective” features of the laws of both Sweden and Vietnam

The employees in Sweden can exercise their right to strike through the organizations they join

and this is governed by the Constitutional provisions on the right to strike.26 The Constitution

allows every trade union, but not an individual or a group of employees, to take industrial action.Industrial action effected by a group of employees without involvement of a trade union will be

unlawful Therefore, in Sweden, as in Vietnam, an employee can only exercise the right to strikethrough a trade union On the basis that a trade union is the most obvious type of organized

labour collective, the strike in the law of Sweden has an organized and collective nature

2.2.4 Lessons learned from the improvement of the concept of the strike in Swedish law

Analyzing strikes under the law of Sweden allows one to see the need for improvements in the

Vietnamese Labour Code in order to reflect more exactly how a cessation of work currently takesplace in Vietnam

As mentioned above, a strike can be recognized by their being a stoppage of work

organized by a labour collective Moreover, a strike is also defined as a measure to resolve a

collective labour dispute Such basic signs can not only help identify a strike but also distinguish

it from other industrial actions Generally, the signs of a strike mentioned in the labour code of

Vietnam are relatively sufficient and comprehensive Among these signs, the temporary cessation

of work showing that a strike is a measure to resolve a collective labour dispute should be studiedwith a view to improvement

The, “temporary cessation of work” in a strike can be confused with work stoppages in

other industrial actions (such as a go-slow, collective reaction, boycott, etc which the

Co-Determination Law of Sweden allows to be used by parties to the labour relation) The law of

Sweden accepts the sign of work stoppage but does not clarify if this is a complete or temporary

stop However, the law mentions both the work stoppage in a strike and other lawful industrial

actions comparable therewith such as boycott, lockout and go-slow strike) Any actions

26

industrial action, failing any provision to the contrary laid down by law or agreement”.

determined by the court to be similar to a stoppage of work is admitted as a strike In Vietnam,

besides the cessation of work as stipulated in the labour code, the workers can indeed conduct

such similar actions as temporary work stoppages or work suspensions, refusal of overtime

working, slow working progress, etc The question here is whether such action effected by a

labour collective is a strike or similar to a strike or what In fact, in such circumstances, the law

of Vietnam is unclear Bearing in mind the possibility of a temporary cessation of work, the

labour code of Vietnam should regulate the term “strike” more comprehensively

More specifically, we have no legal basis to distinguish a strike from a go-slow

A strike is not identical to a go-slow A go-slow strike is a failure to comply with labour

obligations which does not stop labour relations completely A go-slow strike can be subject to

sanctions

Besides, to see a strike as different from just any collective reaction needs a standardizedconcept At the present time, there are debates about the concepts of the strike and of a labour

collective reaction It is said that in Vietnam, there are no real strikes but just responsive

cessations of the work of the labour collective What is the nature of this issue?

In the broad sense, reactions of the labour collective against their employer regarding

problems is always arising at work A collective work stoppage is just one form of workers’

reaction, usually used to apply force on the employer Thus, in this context, a strike is indeed a

form of reaction of the labour collective Nevertheless, these two concepts are not identical sincethe connotation of “labour collective reaction” is broader and covers the concept of strike

In a narrow sense, the reaction of a labour collective can be an instantaneous response ofrandom groups of workers when an employer violates a collective agreement.27 From this point

of view, a labour collective reaction is different from a strike in that it is instantaneous, sudden

and not organized Factually, however, there is no clear distinction between a strike and a labourcollective reaction in both a narrow and a broad sense It is essential to standardize the basic

concepts in the law to ensure a consistent practical application

With lessons learned from the law of Sweden and the actuality of labour relations in

Vietnam, the Labour Code should supplement the legal basis for the identification of industrial

27 “Law on strike and settlement of a strike in Vietnamese”, PhD Đỗ NGân Bình, Publisher Tư Pháp, 2006, page 48.

actions This is also the basis for differentiating strikes and other industrial actions such as

go-slows or labour collective reactions The Labour Code can determine industrial actions and

sanctions together

Secondly, it is also necessary to consider the mark of a strike as a measure to resolve a

collective labour dispute The law of Sweden does not defines a strike as the settlement of

collective labour dispute but just accepts that strikes and other industrial actions are the right of

all parties in labour relations We can recognize this issue as follows:

It should be acknowledged that a strike is always in close connection with a labour

dispute Practically, strikes mainly derive from labour disputes Whenever a strike is called, the

collective labour dispute it relates to (the cause of the strike) will be dealt by direct collective

bargaining and mediation or judicial formalities The strike itself should not be considered as a

measure to resolve a labour dispute.

On the other hand, strike and collective labour disputes are different phenomena A strike

is a struggle to assert economic pressure and force settlement of a labour dispute When a labourdispute arises among parties in labour relations, the workers can call a strike if the divergence ofrights and interests is large enough The advantage of the striking workers is their ability to put

economic pressure on the employer to consider their demands, rights and interests Therefore, it

is more precise to say that a strike derives from a dispute among the parties in labour relations

and is a measure to force the settlement of a lawful collective labour dispute

In brief, based on selected lessons learned from the Swedish legislation, the concept of

strike in the Labour Code of Vietnam should be: A strike means a voluntary cessation of work

organized by a labour collective to impulse settlement of collective labour dispute A strike is a

special method used by employees to impose pressure on the other party in a labour question

With such a definition of strike, workers have the right to strike provided that: First, the

strike should be carried out by workers engaged in a labour contract not a mere individual

stoppage of work The “collective” nature is recognized by the number of striking workers and

their association for a common goal Second, a strike should be expressed through a complete

stoppage of work of an “organized” nature Third, a strike is a measure to force a settlement of a

labour dispute regarding the rights and interests of involved parties

Article 173 Vietnamese Labour Code.

In addition, in order to precisely determine the strike, the law should also define other

phenomena related to the strike such as the go-slow, collective labour reaction, etc Legal

foundations would then be established not only to identify such phenomena whenever they occur,but also to specify whether employees are using their rights to perform lawful or unlawful

actions

This study of the strike in the laws of Vietnam and Sweden is a background to issues

relating to the settlement of strikes and the establishing of legislation relating to this – an open

issue in the Labour Code of Vietnam

2 3 Introducing some viewpoints on the settlement of a strike and overview of a strike’s

resolution under Vietnamese and Swedish labour law

2.3.1 Some viewpoints on the settlement of a strike

Since a strike effects both labour relations and the economy, it needs to be resolved quickly and

effectively The settlement of a strike has to be based on the fundamental principle that a strike is

a right of labour However, implementing the right to strike must within the framework of the

law A strike can be lawful or unlawful The distinction between lawful and unlawful strikes is

closely connected to the definition of the rights and obligations of employers and employees

Depending on the specific laws of each nation on the right of strike, labour law will provide cases

of unlawful strikes According to general principles, the public interest and the stability of the

economy and society are key elements for distinguishing lawful and unlawful strikes Should a

strike adversely effect the public interest or seriously damage economic and social activities, it

will be considered unlawful However, a strike always influences the economic and social aspects

of public life When a strike happens, it may threaten certain public benefits Forms of industrial

actions which threaten important public interests are not as such per se unlawful It depends on

the purpose of the strike and the way it is carried out The distinction between unlawful or lawfulstrikes is also based on how the government views “public interests”.28 In some cases, if a strike

is beyond the scope of the labour relationship between employer and employees, it may not be

accepted as lawful In Vietnam, these issues are covered by provisions that the following forms ofstrike will be unlawful,29 namely:

28“The evolving structure of collective bargaining in Sweden (1990-2003) Report 2004-09-16”, Prof, Dr Birgitta

Nystrom, University of Lund, Sweden, page 3 Para “1.2.1 disputes rights and interest”

29

First, a strike which does not arise from a collective labour dispute or one not held by

employees jointly working within the one enterprise A strike which is not within the scope of

the labour relationship will be not accepted under Vietnamese labour law

Second, a strike held when a collective labour disputes remain unresolved by, or is

currently being resolved by a body or organisation pursuant to the provisions of the Vietnamese

Labour Code Also, a strike which did not first seek the opinions of the employees30 or of any

organisation or leadership of the strike.31

Third, a strike carried out at an enterprise where strikes are prohibited pursuant to the listissued by the Government and a strike taking place when there is a decision staying or

suspending it

Under Swedish law, cases of unlawful strike are usually related to collective agreements.One example of an unlawful strike is one without an officially sanctioned decision by the

organisation (on the side taking action) that is a party to the collective agreement If industrial

action may violated an existing collective agreement which was contracted by parties, industrial

action is not taken Should industrial action have the purpose of bringing pressure to bear in a

legal dispute concerning a collective agreement of the BML, with a view to bringing about a

change in it, industrial action is also unlawful If industrial action takes place to introduce a rule

that is to apply once the collective agreement has expired or to take sympathetic action when theparty being supported is not permitted to carry out industrial action itself, such industrial actions

are considered unlawful Further, the BML bans industrial action aimed at concluding a collectiveagreement with companies that have no employees or where the entrepreneur and members of hisfamily are the sole employees.32

Therefore, issues of industrial action link closely to the distinction between lawful and

unlawful industrial actions Due to this distinction, the rights and duties of employer and

employees will be defined in different ways Because of these requirements the settlement of a

strike in each situation can be understood from various points of view

30

31

32

Article 174a, article 174b clauses 1 and 3 Vietnamese Labour Code.

Article 172a Vietnamese Labour Code.

The MBL sec 41, 42 and “The Swedish rules on Negotiation and mediation – a brief summary”, Kurt Eriksson,

Senoir Legal Adviser of the National Mediation Office.

In the first, the settlement of a strike is the process of determining the lawful element ofthe strike The court, ordinarily, has jurisdiction to determine the legality of a strike Accordingly,the settlement of a strike includes a process of verifying the legality of the collective labour

dispute The content of the strike, the conflict of rights and interests between the parties, must beresolved later by the parties themselves or by a third party entrusted with the task

A strike, from this point of view, will be resolved by way of issues linked to its form andcontent The settlement of a strike is a judicial judgment whether there is a legal or illegal strike.For the content of the strike, it involves the settlement of the labour dispute between employees

and employers Legal proceedings are not needed, but rather negotiation or mediation with the

involvement of a third party This settlement cannot be considered as the settlement of a strike

By contrast, the second outlook supposes that it is not essential to verify the legality of astrike before settling it Settlement of a strike is the settlement of the collective labour dispute

contained in each strike Therefore, the settlement of a strike has the nature of repairing the

relationship between group of employees and their employer by solving the conflicts between therights and interests of each party This viewpoint derives from identification of the term “strike”

with “collective labour dispute” Based on that, the settlement of a strike is identical to the

settlement of a collective labour dispute However, according to this viewpoint, what the court

will determine when reviewing the strike needs to be thought about Moreover, if the legality of

the strike is not considered, settlement of a strike can face difficulties in practice since the

determination of the legality of a strike is a precondition for the identification of the rights and

obligations of the parties involved in the labour dispute associated with the strike

Besides, there is an outlook according to which the settlement of a strike should be

comprehended in a broader sense than either of the two previous viewpoints That is, the

settlement of a strike has to both assume the right to strike of the parties is being exercised

lawfully and prevent or put an end to the strike On that basis, the labour relationship between theparties will be re-established A strike is thus resolved both in form and in content A settlement

under this viewpoint will include consideration of the legal issues raised by the strike and a

settlement of the labour dispute contained in it The point here is the delimitation of the

involvement of various persons in the process of resolving a strike in both form and content Such

a delimitation should both show the right of the parties to solve a dispute and acknowledge the

requirements of labour law regarding a strike Accordingly, the court will engage in settlement of

a strike by judging the legality of the strike as determined by labour law The content of strike, inits close connection with direct rights and interests of the parties, will be resolved in one of

various ways Beside the employer and employees, third parties may be involved in the

settlement of a strike’s content Such persons may play the same role as a mediator in supervisingthe successful settlement of a strike

In short, the settlement of a strike can be viewed from various angles From the writer’s

viewpoint, the resolution of strike should resolve two issues: the settlement of a strike in form (todetermine whether a strike is lawful or unlawful) and the settlement of a strike in content (to

resolve the collective labour disputes within the strike) In later chapters, the writer will focus onmethods which are related to the issue of the settlement of a strike’s content To help guide this, aprior overview and comparison of the resolution of a strike under Vietnamese and Swedish

labour law is important and necessary

2.3.2 Overview of the settlement of a strike under Vietnamese and Swedish labour law

Settlement of a strike under the labour law of Vietnam and Sweden can be by such measures as

collective bargaining and mediation or judicial proceedings; the selection depends on the aim of

the parties in each specific case Further, the settlement of a strike involves two parts or aspects

The first is the settlement of a strike with regard to the content which is a collective labourdispute Collective bargaining or mediation is usually applied in these cases

The second is determination of the legality of a strike Only the court has jurisdiction

over the legality of a strike and this is done in judicial proceedings

Settlement of a strike by collective bargaining is one of the traditional measures recognized in thelabour law of many countries including Vietnam and Sweden

It is fair to say that the settlement of a strike by collective bargaining has the nature of a

self-solving mechanism This measure only relates to the content of a strike without consideration

of its legality The purpose of collective bargaining is to end the collective stoppage of work Thesettlement of a strike by collective bargaining is the settlement of issues relating to the rights andinterests of employees as against their employer and vice versa

When a collective labour dispute happens and can lead to strike, the parties will first

discuss the conflicts arising They can look for agreement on the settlement of conflicts relating

to their rights and interests This process is carried out under the principle that the parties are free

to express their viewpoint on the dispute and any proposed settlement Therefore, by comparisonwith other measures to resolve a strike, the advantage of collective bargaining is its flexibility

Moreover, originating as it does from the right of parties to enter into collective bargaining, if

they can reach an agreement in this way, the chances of its being executed are very high

However, it should acknowledge that any agreement between parties resulting from collective

bargaining depends on their goodwill In reality, without this element, collective bargaining

between parties is unlikely to reach agreement on the settlement of a collective labour dispute

that is the main cause of the strike In other words, collective bargaining can easily come to a

deadlock since each party tends to insist on its own interests

In general, the labour law of both Vietnam and Sweden admits collective bargaining as

one of the methods for the settlement of strikes as to their content This means that, by collectivebargaining, the parties aim to resolve the collective labour dispute associated with the strike

However, the law of Sweden has covered collective bargaining more closely to reduce most of itsdisadvantages when it is used to resolve a strike After a study of collective bargaining in the law

of Sweden, in Chapter II, the writer will suggest some ways of improving the regulations on

collective bargaining in the labour law of Vietnam

Besides collective bargaining, parties can engage in mediation to resolve a strike’s content In theevent parties can not settle the conflict on their own in collective bargaining, mediation will

follows Thus, it is continue period of collective bargaining-stage has assistance of mediator

The advantages of mediation are that it is simple, convenient, economical and quick Mediation isalso considered as a friendly way to settle a strike

Mediation involves a meeting in which the parties will discuss and agree on matters in

respect of a strike with the assistance of a third party acting as intermediary During mediation,

the intermediary will help to analyze the respective parties’ strong and weak points based on

provisions of the law Relying on that, the parties will consider an appropriate settlement of the

disputes contained in the strike Although the opinions of the intermediary, however, are only

suggestions rather than any kind of decision, the participation of the intermediary may ensure thesuccess of mediation in resolve the content of a strike

The MBL sec 51.

“European employment and industrial relations glossary: Sweden”, Reinhold Fahlbeck and Tore Sigeman, Sweet

The labour law of Vietnam and Sweden admit mediation as one of the ways to settle a

strike’s Nevertheless, their regulations on mediation are both similar and different This

influences the effectiveness of mediation in resolving strikes For more effective mediation in

Vietnam, legislators should apply lessons to be learned from Swedish law and practice This issuewill be analyzed more deeply in Chapter III

In Sweden, settlement procedures are sharply distinguished from court or arbitration procedures

because the former concern disputes over interests and the latter disputes over right The latter aredisputes in which existing legal provisions have to be applied and that is all.33 Resolution of

industrial action by arbitration can be linked to mediation The appointment of arbitrators may besupported by the mediator Should industrial action have been commenced, the mediator may

urge the parties to submit the dispute for determination by arbitration However, a mediator may

not be appointed as an arbitrator in an industrial dispute, except in some specific cases where it ispermitted.34 Therefore, Swedish law provides for the “suggestion” of the conciliator that the

parties will accept on arbitration There are also other forms of arbitration: panels and industrial

tribunals In fact, arbitration is rarely applied in disputes regarding rights between individual

employees and employer It is mainly confined to certain sectors such as banking.35 In fact,

arbitration is almost never suggested by mediator Therefore, the MBL section 51-section deals

arbitration issues through mediator- is considered as “dead” rule

In Vietnam, a labour arbitration council may hold a conciliation by arbitration of a collective

labour dispute about benefits, all under strict time-limits Within seven working days of the date

of the receipt of a request for conciliation, the labour arbitration council must hold a conciliatorysession The authorized representatives of the disputing parties cannot be absent from this

session If necessary, the labour arbitration council may invite a high level representative of the

trade union of the enterprise and representatives of other bodies and organisations concerned to

attend the session The labour arbitration council will put forward a settlement proposal for

consideration by the parties The conciliation by the labour arbitration council will be

unsuccessful if the parties do not agree to the settlement proposal or one of parties was absent

33“The legality of industrial actions and the methods of settlement procedure”, Thilo Ramm, page 296 in book

“Industrial Conflict – a Comparative Legal Survey”, Editors: Bejamin Aaron and K.W Wedderburn, Publisher:

Article 179 Vietnamese Labour Code; the Decree No 11/NĐ-CP (dated 30 th January 2008) providing regulations

without proper reason after being validly summonsed for a second time In that event, the

employees have the right to conduct procedures with a view to a strike.36

The most importance issue to go to court is when one seeks a judicial determination of the

legality of a strike During or after the strike, the parties can petition a court for consideration

legal characteristic of strike (lawful or unlawful) The labour law of Vietnam stipulates

specifically:

“Either party shall have the right to petition a court to consider the legality of a strike

during the process of a strike or within a period of three months from the date of ending a

strike”.37

Similarly, the law of Sweden also states:

“The Labour Court is always competent as a court of first instance to deal with and

determine disputes concerning industrial action as referred to in section 41 and 41b 38 of the

Following the procedures set forth in law, the court will rule on the legality of a strike

Determination of the legality of strike is linked to the determination of the striking parties’

obligations Based on the adjudication, the parties will resolve the strike as stipulated in the

labour law If the industrial action is ruled unlawful, the employees must stop striking and return

to work If they do not, depending on the seriousness of their breach, such employees may be

subject to a labour disciplinary penalty in accordance with the law on labour In the event that anunlawful strike causes loss and damage to the employer, the organisation and individuals

participating in the strike who were at fault may have to pay compensation for this.40 Further, thedecision of the court backed by the State and mandatory Settlement of a strike by a court will befollowed This is one of the advantages of a settlement at court by comparison with collective

bargaining and mediation

36

37

38

39

Article 196, 171 Vietnamese Labour Code.

Clause 1, Article 176a, Vietnamese Labour Code.

These articles stipulate forms of induatrial actions which are unlawful according to Swedish law.

Section 1.2 para 4 of chapter 2 “Courts in labour disputes” in The Labour Disputes (Judicial Procedure) Act

(1974:371).

40

on compensation payable for illegal strikes causing loss to employers; and The MBL sec 59, 60.

However, the writer will not study court settlements but rather collective bargaining andmediation, after taking into account the lessons to be learned from Swedish legislation.

3 THE SETTLEMENT OF STRIKES BY WAY OF COLLECTIVE

BARGAINING

3.1 Issues to be improved in the labour law of Vietnam in respect of the settlement of a strike by collective bargaining

The labour law of Vietnam regulates that prior to and during the process of a strike, the parties

have the right to negotiate to resolve the strike.41 Employees can authorize their representatives

to take charge of the collective bargaining and the executive board of the local labour union or

other employees’ representative will have authority to represent the employees The law

acknowledges the direct role of employer in collective bargaining In other words, there is no

provision whereby anyone can represent the employer in collective bargaining with employee

representatives This leads to an imbalance between the parties involved though an important

factor in a successful settlement of a strike by collective bargaining is equality between and

agreement of the parties In practice, the employer may more easily defend and respond to the

proposals and demands of employees As a result, the parties may find it difficult to reach an

agreement to prevent and end the strike

Moreover, the common tendency worldwide is to obtain sectoral collective agreementswhich are considered the most important basis for acknowledging the parties’ self-determination

in setting out their rights and interests within the employment relationship Such an agreement isalso an effective tool to prevent strikes

Attainment of a sectoral collective agreement requires a wider range of participants in

collective bargaining than the employer and employees in enterprises and industries The level ofcollective bargaining should also be higher than direct collective bargaining between the two

parties in labour relationship Al this means that any agreement should be between

representatives of both the labour collective and employer groups Bearing in mind the

requirements of this new tendency in the prevention and settlement of strikes, labour law should

establish a legal basis for employer’s representatives being able to carry out collective bargaining

as well as employees’ representatives

41 Article 174c of the Labour Code of Vietnam.

Although the parties are authorized to conduct collective bargaining to resolve strikes,

the labour law of Vietnam does not give any legal basis for controlling such settlements The

Labour Code just states: “Prior to and during the process of a strike, the executive committee of

the trade union of the enterprise or the labour collective representative and the employer shall

have the following rights to conduct collective bargaining (…)”.42 This derives from the principle

of self-determination of the parties to a settlement The law does not directly govern issues

relating to collective bargaining between parties who have the right to collective bargaining at

their disposal This means that the successful settlement of a strike by collective bargaining is

subject to the goodwill of the parties In fact, it is difficult to resolve a strike by the participation

in the collective bargaining of an employer and labour collective representative only This is

based on the nature of a settlement of a strike’s content A strike commonly comes from a

collective labour dispute between employees and employer involving conflicts relating to the

rights or interests of the parties In order to increase the likelihood of success in collective

bargaining, the labour law of Vietnam should use lessons derived from other developed labour

law systems to provide more effective collective bargaining mechanisms

Moreover, as stated by the law, collective bargaining in settlement of a strike is a right,not an obligation If one of the parties requests collective bargaining, the other can refuse to

participate The labour law of Vietnam does not bind the parties by any principles or sanctions incase collective bargaining is so rejected by one of them In most nations, including Sweden,

collective bargaining may be mandatory

Generally, the settlement of a strike by collective bargaining has been recognized by thelabour law of Vietnam but without any legal basis increasing the likelihood of its success If it

wishes to improve this, Vietnam should look at regulations on collective bargaining in other

developed labour law systems, such as the law of Sweden

3.2 Lessons learned from Swedish law to improve Vietnamese labour law in

respect of the settlement of strikes by collective bargaining

3.2.1 Introduction of settlement of a strike by collective bargaining in Swedish law

One of the principles entered in the Co-Determination Act (SFS 1976:580) of measure against

disputes is that any matter relating to the relationship between the employer and employees,

42 See current article 174c of Vietnamese Labour Code.

The MBL sec 10.

OECD Guidelines for Multinational Enterprises 1976, ILO Tripartite Declaration of Principles concerning

Chapter 22: Collective bargaining in “Industrial Relation”, G.Bamber and E Cordova, pages 210-219 in book

including collective labour dispute of them, should be resolve by negotiation.43 The employees,

by way of an employees’ organisation (such as a Trade Union) will negotiate with an employer orany member of an organisation that has been employed by that employer This means that

individual employees may not negotiate directly with employer because they are not granted the

right of negotiation by Swedish labour law Only the union organisation (employees’

organisation) has a statutory right to negotiate with employer and vice versa In addition, an

organisation is entitled to negotiate with an organisation on the opposing side.44 During

negotiations, the parties have equivalent rights.45 This equivalence relates, among other matters,

to the giving of information, and this specifically mentioned with regard to collective labour

disputes their resolution Similarly, it is also affirmed by OECD Guidelines for Multinational

Enterprises and Declaration of ILO:

“Public and private employers should, at the request of workers’ organisation, make

available such information as is necessary on the economic and social situation of the

There are contrasting views of collective bargaining, including a broad and a narrow

one In its broad sense, collective bargaining is a process of interest accommodation This processincludes all sorts of bipartite or tripartite discussions relating to employment and industrial

relations that may effect a group of employees directly or indirectly The notion of “bargaining”

implies that parties are aiming to reach agreement, if necessary by competitive negotiation

“Consultation” is less competitive and more of an “integrative” process Therefore, parties will

exchange views but not necessarily reach a formal agreement (i.e before making a decision,

employers listen to employees’ views) Nevertheless, consultation processes may also be

included in a broad view of collective bargaining A narrower but more precise meaning of

collective bargaining implies that the two parties who are involved in a collective labour dispute

directly participate in negotiations leading to agreement.47

43

44 The MBL sec 10-13.

“The evolving structure of collective bargaining in Sweden (1990-2003) Report 2004-09-16”, Prof.Dr.Birgitta

Nystrom, University of Lund, page 4, para 2.

“Comparative Labour Law and Industrial Relations in Industrialized Market Econimes”, Editors: R Blanpain and

C.Englels, Publisher: Kluwer Law International the Hague-London Boston, VIIth and revised edition 2001.