Labour relation a comparision between vietnamese and swedish labour law

3.2 Maintaining labour relations 223.2.1 Im plem enting em ploym ent contracts 22 3.2.2 O ther activities to m aintain labour relations 23 3.2.2.2 Tem porary suspension of labour contrac

HANOI LAW UNIVERSITY LUND UNIVERSITY

FACULTY OF LAW

LABOUR RELATION- A COMPARISON BETWEEN

VIETNAMESE AND SWEDISH

2 GENERAL KNOWLEDGE ON LABOUR RELATIONS 5

2.1 C oncept of labour relations 5

2.3 The form ation and developm ent of labour relations 11

2.3.1 The form ation an d d evelo p m en t o f lab o u r relations in Vietnam 11

2.3.2 The form ation an d d evelo p m en t o f lab o u r relations in Sw eden 13

3 BASIC LEGAL ISSUES ON THE ESTABLISHMENT,

MAINTENANCE AND TERMINATION OF LABOUR

3.1 E stablishm ent of labour relations (m aking em p lo ym en t contracts) 17

3.1.1 P rinciples g o verning la b o u r co n tract conclution 17

3.1.2 D ifferent categories o f em p lo ym en t contracts 19

3.1.3 Process o f m aking em p lo ym en t contracts 20

3.2 Maintaining labour relations 22

3.2.1 Im plem enting em ploym ent contracts 22 3.2.2 O ther activities to m aintain labour relations 23

3.2.2.2 Tem porary suspension of labour contracts 24

3.3 Term ination of labour relations 25

3.3.1 Circum stances in which labour contracts m ay be term inated 25

3.3.1.1 Unilateral termination of labour contracts 25 3.3.1.2 Labour contract termination agreed by parties 32 3.3.1.3 Natural term ination of labour contracts 33

3.3.2 Legal consequences o f labour contract termination 33

3.3.2.1 Liability for damages as consequences of illegal ending labour

3.3.2.2 Interests of involved parties in case of lawful contract termination 35

4 SOME SOLUTIONS AIMING AT INCREASING THE

EFFECTIVENESS OF LAW REGULATION TO LABOUR

4.1.1.2 Situation of the enactm ent and implementation of the labour law 40

4.1.2 Tendency o f labour relation developm ent and the need o f

increasing effectiveness o f labour law regulation 44

4.2 Some suggestion methods for increasing effectiveness of law on labour relations 45

4.2.1.2 Improving the related econom ic law 48

4.2.2 Strengthening som e relevant institutions 49

4.2.2.1 Increasing the effectiveness of the trade union 49 4.2.2.2 Establishm ent and operation of tripartite mechanism 51 4.2.2.3 Enhancing the operation efficiency of the labour court 52

4.2.3.1 Strengthening labour law popularization 52

Law on labour relations is a very broad subject Though I know that it is difficult for me to have a comprehensive and profound view and study through only this thesis, with great encouragement from my tutors, colleagues and friends, I finally decided to choose this topic as my study It

is really a very interesting topic for me and it gives me a very good opportunity and inspiration for learning Swedish labour law

I am very grateful to my tutors, Prof Birgitta Nystrom and Prof Luu Binh Nhuong for their kind and sincere assistance, encouragement and advice they have rendered to me right from beginning o f my study I would ljke to thank the librarians o f Lund University and Ha Noi Law University for helping me to collect necessary materials My sincere thanks to my colleagues and friends for giving me thoughtful comments on the contents

o f the thesis

1

MOLISA Ministry o f Labour - Invalids and Social

Affairs

Association

Employees

1 Introduction

1.1 Overview

Labour is the mode o f creating riches and different values for social life Labour relation, therefore, can be seen as one o f the most important factors contributing to the economic development To make use o f labour potentials as well as production potentials, the basic requirements are stabilising and harmonising the relationship between employees and employers in enterprises In Vietnam, recently, the number o f labour disputes, which have been solved annually at the labour court, is rather high, some 700 - 800 cases This statistic shows that labour relation quality, in general, is not very good as a result o f labour law regulation, in some cases, seems inadequate In Vietnamese enterprises, breaking labour law is rather common, especially related to working hours, working environment and social insurance etc, that are violations o f employees' rights and interests The causes o f labour law violations are due to different factors In terms o f law, there are two main reasons, as follows:

First, labour laws are not well-designed There remained many shortcomings and loopholes in the legal documents

Second, labour law is not well enough enforced, the violations are not properly corrected

Since we have the new enactment o f Labour Code (2002), labour relations generally have a better law background to develop However, the question o f improving labour laws and promoting labour relations are always the hot issues, because Vietnam must not satisfy with the cuưent labour relation status It needs to continuous changing and promoting favourable conditions in order to help two involved parties in labour relations improve their relationship In the coming time, Vietnam shall join AFTA (Asian Free Trade Area) and continue, step by step, prepare to become WTO member It means that Vietnam needs to boost competition ability o f undertakings and speed up multi-sector economic development to integrate in global economy In thisjjro c e ss, laws, including o f labour law, must be more improved to assume the role o f the law prerequisite for production, business and trade activities

Sweden is a developed country, which has a large and long-termed built labour law system In the field o f labour relations, there are many interesting provisions that can give us a little different thinking on labour relation regulation in Vietnam Through my own research, I very much expect that I could gain some specious experience o f law regulation in Sweden This is also the reason for my subject: “Labour relation - a comparison between Vietnamese and Swedish labour law”

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1.2 Aim

This thesis shall concentrate on comparing between Vietnamese and Swedish labour relation laws In the presentation process, similarities and differences shall be analysed and assessed concretely in attaching to its existing conditions With the experience obtained from the study, some suggestion measures supporting labour relations shall be pointed out

1.3 Limitations

There are different categories o f labour relations However, I intend

to concentrate on the labour relations established upon employment contract Labour contract relation itself is still a very broad subject Once again, I have to limit my subject very strictly In this study, I only refer to the most important aspects, which directly relates to the existence o f labour relations, in particularly, they are the matters o f establishment, maintenance and termination o f employment contract

1.4 Method

The comparative analysis method is very frequently used in order to seek similarities and differences between the two law systems Analysis approach is very useful when I clarify concepts and detail some contents in the main part o f the thesis This method is also necessary to advance the discussion pointing out the legal questions as well as giving suggestion

m easures for increasing regulation effect o f labour relation laws in Vietnam Synthetic methods shall be used to give necessary conclusions

1.5 Previous researches

There are only a few studies on labour relation in Vietnam The last relevant master thesis is about Labour relation in Foreign invested Enterprises, by Vu Thi Thu Ha, which was written in 1999 From comparative aspect, especially between Vietnamese and Swedish labour law, my thesis is the first study

1.6 Disposition

My thesis comprises five parts, which are arranged in following order:

- Introduction

- General knowledge on labour relations

- Basic legal issues on the establishment, maintenance and termination of labour relations

- Some solutions aiming at increasing the effectiveness o f law regulation to labour relations in Vietnam

- Conclusion

2 General knowledge on labour relations

2.1 Concept of labour relations

2.1.1 Definition

In the science o f law, labour relations are understood in different ways At general point o f view, labour relations imply the relationship between individuals performing work to create material riches or other spiritual values for society From this aspect, labour relations consist o f all relations involving "labour" or " work performance" However the nature o f the involved relations may be far different from one another Among the distinctive characteristics such as the aim, the duration o f contract, the subjects involved etc, the most important factor is the degree o f dependency

o f the party performing work on the opposite party In employment relations, employees heavily depend on employers whereas in other cases workers (contract workers, co-operative members) are much less dependent Due to this nature, each group shall be covered by different regulations The relationship between employees - employers belong to the scope o f labour law In Sweden there is practically no distinction between employees o f State (officials) or employees in other sector Two these kinds o f labour relations are regulated by the same documents In Vietnam, on the other hand, two those groups o f employees are separated because officials have special standing State official duties and responsibilities are not similar to those o f employees in other sectors So, Law on state officials shall cover this group

To understand the term "labour relation" in the same way, this thesis shall not refer to labour relation concerning state officials, but only to wage- earning employee and his employer under employment contracts o f all economic sectors and all form o f ownership

2.1.2 Characteristics of labour relations

Labour relations are created by contracts between common individual legal subjects, however labour relations have their own characteristics distinguished from other kind o f contract relations To give reader a multi-aspect portrait o f labour relations in real life, labour relation characteristics shall be presented briefly as follows:

First, labour relations possess both an economic and a social nature Its economic essence is explained by the aims o f two parties with particular economic interests: wage or salary for employees and business profits for employers This is also the reason for the existence o f labour relations As for the social nature, it is demonstrated by two-party behaviour in labour

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relations, which needs to ensure human rights For instance, during employment performance, employees have the right to safe and hygienic

w orking conditions, to integrity and respect, to a proper treatment etc The employers have obligation to ensure those employees' rights

Second, labour relations contain both unity and conflict

Conflicts exist in labour relations due to two parties' opposite interests When employers improve working conditions or apply good payment system in their enterprises, the individual employers' profits can be reduced and vice versa All the gains o f the two parties are only within their enterprise benefits Says, their income distribution is somewhat similar to a cake cutting In order to promote income for both o f them, there is no other way than making the "cake" become bigger It means that, the two parties

m ust be aware o f their interest inteưelation and try to work well together

Third, labour relations includes equality and inequality

Equality is the basic feature o f any contract relations in general Equality in this case is expressed by two parties' freedom to be bound by an employment contract However, real equality can hardly be adequately achieved here Employees often have weaker position due to their financial standing, employment pressure and so on To earn a living, they may have

to accept a low salary or unsatisfactory employment, especially in current circumstances o f job shortage In addition to this, in labour relations employers have right to direct and supervise the work, they are also entitled

to commend and reward or apply correct measures etc By and large employers can often use their authority and so, they have many chances to apply strict working conditions to employees This is also the reason for labour law existence to protect rights and interests o f weaker parties

Fourth, labour relations are not only involved individual employers and employees, but also labour market parties

Each labour contract binds one worker and his employer At this level, labour relations are linked with the performance o f rights and duties

o f two parties as individuals However, employment in enterprises is norm ally performed by not only one worker but by many persons This is the reason why labour relations are still characterized by collectiveness Collective labour relations are first created by individual contracts Each individual, in turn, shall be supported by collective labour relations For exam ple, because o f weaker position, an employee might have to endure som e disadvantages With the labour standards set up by applicable collective agreements, those disadvantages can be limited in some extent Collective bargaining also helps to solve conflict more effectively and help better to protect employees' legitimate rights and interests

Being aware o f this characteristic, in the process o f law making, the labour matters concerning collective activities such as the right to organize, collective bargaining, strike and dispute settlement etc should be properly considered

2.2 Structure of labour relations

2.2.1 Subjects of labour relations

In m ost countries it is legally possible to work from the age o f 14 or

16 in accordance with Convention o f ILO on minimum working age.1 In

V ietnam legal possibility to work is defined from the age o f 15

The real working capacity is the ability o f action with which, a person him self can undertake and fulfill a certain work or task for employer pursuance to the general requirement o f quantity, quality o f product or affectivity o f task etc independently

A bility o f action is assessed upon two factors: physical fitness and mental power Physical fitness is understood a normal physical condition, which can be seen enough for a certain work performance Mental power is reflected by adequate awareness o f all the activities accomplishing the job

Physical and mental conditions for working are not available at birth

In order to collect enough strength, knowledge or qualifications, an individual needs time to grow up, to learn and to gather necessary knowledge or experience So, he/she must reach certain age in normal conditions o f development

If an individual does not obtain a convergence o f both two kinds o f aforem entioned capacities, he can not conclude a contract, e.g in case o f an insane person, a person whose right to a certain job is deprived by an authority as a punishment for his crime relating to employment etc

In som e cases, employees can be accepted earlier than the age o f 15 e.g children in theatre or film etc The specificity o f occupation in this case

is that, it needs aptitude for job more than good health conditions upon normal way o f thoughts Children who are under the age o f 15 can conclude

em ploym ent contract only with their parents consent

There are no regulation defining employee in Sweden Normally a citizen who is at least 18 years old can conclude an agreement independently A person may also start to work from the age o f 15 with his/her parents' permission In some specific occupations (mainly artistic occupations) children are under 15 years old can work but their parents conclude contract on behalf o f their children

In Sweden employing young persons has been restricted for the purpose o f to prevent occupational diseases and labour accident in the course o f employment.2 Similarly, according to Vietnamese law, employers

1 Convention No 138 o f ILO on the minimum working age (adopted in 1973)

2 Section 1 o f C hapter 1; Section 2A, Section 3 o f Chapter 5- Work Environment Act

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must not use minor labours (under 18 years old) for hazardous or harmful works as determined in a list issued by competent authority.3

As for Vietnamese law,4 "employers" includes:

- Enterprises in all forms o f ownership

- State organs employing employees other than State officials

- Cooperatives employing employees other than cooperative members

- Non-public educational, medical, cultural or sport establishments set up under the Government's Decree No 73/1999/ND-CP on policies to encourage the socialization o f activities in the educational, medical and sport domain

- Foreign or international agencies, organizations or individuals, that are base in Vietnamese territory and employ employees being Vietnamese, accept for cases otherwise provided for by international treaties, which Vietnam has signed or aceeded to

- Vietnamese enterprises, agencies, organizations and individuals that employ foreign employee, accept for cases otherwise provided for by international treaties which Vietnam has signed or aceeded to

"Employers" must obtain necessary conditions as follows:

- State organs, social organizations, Co-operative, foreign or international agencies: m ust to be officially recognized as legal subjects

- Enterprises in all economic sectors: must obtain business permit issued by competence authority For foreign investment enterprises: must obtain investment permit and certificate o f internal regulation

- Individuals and households: the person who recruits labour must attain the age o f at least 18, in normal mental condition, has lawful address and has financial capacity to give payment

2.2.2 Objects of labour relations

Object o f labour relations is labour o f employees In market economy, labour is seen goods, but it is a special kind o f goods Due to specificities o f the goods o f abour, the State regulates labour relations as an exception from other relations o f commodity trade in order to maintain, protect, develop and effectively exploit labour in the society and develop the national economy

3 Article 121 o f Labour Code and Circular N o 09/TT-LB dated 13/4/1995

4 According to Article 2 Decree No 44/2003/ND-CP,

2.2.3 Comprehension of labour relations

In labour relations, each party has certain rights and obligations Rights o f one party always entail the other party's obligations and vice versa

According to Vietnamese law (Article 7 and some other articles of Labour Code), employees have following basic rights:

- Being entitled to adequate payment in accordance with the productivity, quality and efficiency o f the work performed In any cases, the salary is not lower than minimum wage

- Being entitled to safe and hygienic working conditions

- Being entitled to social insurance benefits

- Being entitled to stipulated rest break and holidays annual leave with pay

- Being entitled to enterprises' benefits and management in accordance with the internal labour regulations

- Being entitled to participate in stipulated strikes

- Being entitled to stipulated contract termination

In other hand, employees have following duties:

- Implementing labour contract, collective agreement; complying with labour discipline

- Complying with lawful direction o f the employers

Employers have their rights and duties, as follows:

- Right to hire, assign and manage labour to suit requirements of production and business

- Right to appoint representatives to bargain and sign collective agreement at the enterprise or at industry level

- Right to accord praises and rewards and sanction breaches o f labour discipline in accordance with the labour law

- Right to terminate labour contract in certain circumstances given

by labour law

- Obligation to implement contracts, collective agreement and other agreements reached with the employees

- Obligation to ensure safe and hygienic working conditions

- Obligation to keep labour discipline at the workplace (to keep the progress o f production, to limit work accidents and occupational diseases etc.)

- Obligation to respect employees' honour and dignity, to treat employees properly

However, these are only rights and obligations o f employees and employers in labour contracts generally Their specific rights or duties shall

be defined depend on characteristics o f employment, specific working circumstance and internal lawful regulations o f the enterprise

In Sweden's point o f view, the core idea o f labour contract is the exchange o f labour and wages Therefore, law on the internal relationship between employees and employers is based on the principle o f freedom of contract and the two parties are entitled to define all specific obligations themselves There is no statutory regulation either on the employees' duties

to perform work nor on the wage to be paid by the employer These duties

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m ight be provided by applicable collective agreements However, in reality, principal obligations o f employees and employers, which rooted in the pre­industrialization master and servant regulation still prevail.

Employees have some main obligations, as follows:

- Performing assigned tasks This obligation comprises some requirements such as what employees are ordered to do, where, when and how the work is performed

- Performing alternative job duties

If important changes take place in the work situation o f an employee and the employee reasonably agues that it is an entirely new job, then the employment contract has to be renegotiated with general prevailing principle o f contract law If the alterations are still within the boundaries of employment contract, neither employee consent nor renegotiation is required

- W hen and where: transfers

In these matters, employer discretion is rarely pronounced Employees do not have obligations to accept transfers implying geographical moves o f any significant importance, unless contractual provisions to the contrary are provided

- Duty o f Loyalty to the employer (including the duty to look after the employers' interests and to perform work in a careful and diligent way)

- Duty o f confidentiality (keeping secret confidential information obtained during work)

- Duty not to compete with the employer

- Off-the job conduct (any thing that has an injurious effect on the employee's job performance is not permitted)

- Ownership o f work products (only in the intellectual property field)

- Privacy (in some cases where there is an objectively justified need and provided that employees are informed about the tests well in advance)

Rights and duties o f employers

The origin o f labour law in Sweden is a set o f employer prerogatives, which were created at the turn o f 19th and 20th century These prerogatives fall into two main groups

- To hire and fire at will and to employ workers whether unionized

or not

- To direct and distribute the work

During the first part o f the 20th century, the right to hire and fire at will was important prerogative o f employers Labour contracts could be terminated without cause Nowadays, although the right to freedom o f hiring workers still prevails, it has been more or less restricted by some new documents since 1970s For instance, the Act on Equality between M en and

W omen at Work forbids an employer from discriminating against an employee on account o f gender Men and women shall enjoy equal opportunities in employment, training etc This may a little prevent the employer freedom o f worker hiring The employer freedom o f contract termination is now also considerably limited The 1982 Employment Protection Act forbids dismissal at will and replaces it with just cause requirement Employers also have to comply with the regulation on the terms o f labour contract They can only conclude fixed term contracts in few

cases An employer, who has breaches the Employment Protection Act, may

be decided to pay a big amount o f compensation for their violation

The second category o f employer prerogatives is to direct and distribute work These prerogatives are still in force and employers can decide day -by -day duties o f employees, in particular, decide what, when, where and how the work to be performed Coupled with these employers' prerogatives is the employees' duty to obey

Employers have obligations to provide paid work It means that, if

no work is provided, employers are still obliged to provide pay even if employees are free away from the workplace This is only one measure to ensure continuity o f paid employment

2.3 The formation and development of labour relations

In the broadest understanding, employment relations appeared together with the appearance o f human However, if considering waged working relations, this relation is very fledging It appeared together with the appearance o f capitalism some hundred years ago with the model o f workshop production and free labour circulation It is the first time labour is changed into goods and is traded and influenced by law o f value, law o f supply and demand and series o f typical laws o f a market economy However, as mentioned above, labour can not be ordinary goods, because it has its own characteristics and therefore trading o f labour is very different For example, relations between sellers and buyers never be really fair, though the relations are established on basis o f free agreement Because employer is always the stronger party, who owns means o f production, has right to hire employees, to distribute and direct work, as well as, at least in the early period, have right to terminate employment relation at will The side o f sellers, who are employees, have nothing else to sell than their labour, economically depend on employers and become voluntary exploitees However, according to its law o f natural development, the cooperation process between employers and employees is linked with the employees' struggling process in order to get balance o f rights and benefits This explains the appearance o f institutions that have never been known before in society, such as the trade unions and organizations o f employers

2.3.1 The formation and development of labour relations in Vietnam

In Vietnam, the wage employment relation appeared in a special context It is linked with the colonial economy following the occupation o f France since 1858 Together with colonial yoke, French colonists established many plantations, mines, factories etc to make use o f labour It

is one mode to exploit natural resources in order to compensate their failure

in battlefields and overcome consequences o f economic crisis At that time, the employment relationship was not established in a free environment, as

French capitalists and their followers had the right to prescribe every term of employment In this period, labour law did not exist.

After the authority in the hands o f people, the State o f Vietnam established sovereignty on natural resources and national economy In order

to develop economy in service o f national construction, the State has to facilitate the development o f industrial relations The first legal document formulated is Decree N0.29/SL dated 12/3/1947, which referred to very fundamental issues o f labour relations such as labour agreement (labour contract), agreement gathering (collective agreement), practitional regulation, labour dispute settlement and some other documents However,

in the war context, in order to mobilize human and material resources for the battle, the heavily planned economy was established, so the labour relations was also limited in mainly state sector Actually that is relation between State - workers and staffs and a subsidized system, but not waged labour relation in a competitive labour market

After the South was liberated in 1975, the country reunited A new era was opened, because the war times were over The whole country united for Scio-economic constmction and development towards socialism A series o f State-own economic units were established in form of agricultural, forestry enterprises, in which centralized planning characteristics were ever strongly manifested However, this economy seemed not to bring many good results, though it brought into full play its strengths and had made an important prerequisite for the great success o f two long-lasting struggles In all undertakings, labour relations were heavily characterized by subsidy The State was sovereignty responsible for creating jobs and insuring wages There was no real competition among employee using units other than emulation in realizing the objectives o f production set by the State Economic accounting and labour hiring seemed strange to every body Private ownership was prejudiced and not recognized as an important elem ent for economy This was maintained until 1986

So, in a rather long period, Vietnam was in a centrally planned economy based on public ownership o f production means with the dominance o f public and collective economic sectors As being totally subsidized by the State (for jobs, salary, insurance etc.) the performance o f the employee was regarded as having a social, human and spiritual value, but not as a goods for trade etc, the spiritually characterized labour relations had no environment to manifest all its natural characteristics o f money- goods relations After the Sixth Party Congress (198Ố), with the line o f economic mechanism renewal, a comprehensive and profound reform in socio-economic development policies conducted that changed the face of social life following with strong flowering and development o f social relations, especially in economic and labour sectors With a point o f view to form and develop a market economy, many ideological and legal obstacles were demolished paying the way for a period o f production freedom The Decision N0.217/HDBT dated 14/11/87 by the Council o f Ministers issuing policies on socialist planning and accounting renewal in State-own enterprises This could be seen as the first economic legal document o f the renewal period, in which the State own enterprises were to change step by step employment system and full time State staff into contract system

Then, on 30/8/1990, Decree on labour contract was issued by the State Council Right to business freedom was for the first time officially recognized in the Constitution 1992 following by series o f legal documents

in economic and labour sector aimed at creating necessary legal documents for this Right o f employees to job selection and working place, right to selection, arrangement, management o f labour based on the requirements o f

em ployers’ work in various economic sectors are recognized and protected

In 1994, the Labour Law o f the Socialist Republic o f Vietnam was passed It has become a legal basis for labour relations o f goods economy, though it is

a fledging law with many limitations It should be gradually amended For really fair development opportunities for economic sectors, and for more jobs for employees, the State issued new regulations on administrative reform in order to quickly put new enterprises into operation In addition, to help employees change the old way o f thinking and stay at ease working in non State own enterprises, the State also issued the regulations on labour management, salary management, social insurance so that the circulation

o f employees a among economic sectors can go on easily while the benefits

o f employees are protected and maintained After a period o f implementation, the Labour Law was again amended (2002) Other legal documents were reasonably adjusted to meets actual needs So, the legal environment for formation and development o f labour market in Vietnam has been being gradually improved

For the last years, the labour relations in Vietnam have changed more dynamically The concept o f employment is not as narrow as before, and employees have no complexity and prejudices with the jobs o f non­sta te sectors Individual’s right to master o f business is more developed to create num erous new jobs for employees It is possible to say that it is a great progress for the last 15 years However, based on an agricultural economy and due to the remaining psychological impacts o f the subsidized period, labour relations in Vietnam are presently having many limitations,

w hich need to be overcome This issue shall concretely analyzed later in the part 4.1.1.1

2.3.2 The formation and development of labour relations in Sweden

Comparing with Vietnam, the history o f labour relations in Sweden

is over one century longer With their own superiority, Swedish labour relations have been a very important factor contributing to Swedish socio - economic development for the past many years Working life has changed rapidly in recent years, but labour regulations have tended to stay in place For many years, Swedish system o f industrial relations has worked remarkably well

To give an overall picture o f Swedish labour relations and to be able

to explain differences between Vietnamese labour law and Swedish labour law, in this part, the history o f Swedish labour relations, the organizations o f employees and employers, collective agreement information, the labour law enactment etc shall be presented

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Sweden has about 9 million inhabitants More than 48% o f the population belong to the labour force In the mid- 19th century, Sweden was still a rather poor agrarian country After a number o f wise political decisions including the policy o f freedom o f trade, a good business climate developed and a rapid industrialization process began From 1870 to 1970 Sweden had the second fastest economic growth in the world (after Japan) Between 1960 and 1980, Sweden had the largest growth in jobs in the public sector At present, private enterprises accounts for 69% of employment and the public sector for 31%.

Workers in Sweden start to form trade unions in the mid-19th century The first one was established in 1846 (Typographical Union) In the 1880s the first nation-wide unions emerged Later, in 1898, a number of nation-wide unions joined forces to form central body known as the Swedish Trade Union Confederation (LO) A few years later, Swedish Employers' Confederation (SAF) was founded by employers in the private sector In 1906, LO and SAF realized that they had to recognize each other's rights and signed an agreement called December Compromise According to this agreement, SAF recognized the employees' right to form organizations and to bargain collectively LO in turn accepted the right o f employers to hire and fire workers freely and to direct and distribute work

A major general strike occurred in 1909 Then a number o f industrial actions took place during 1920s and labour laws began to be enacted Both Collective Bargaining Act and Labour Court Act were adopted in 1928

During 1930, the co-operation o f labour - management was on the basis o f a greater mutual trust In 1938, SAF and LO concluded the Saltsjobaden Agreement This document was a sort o f "peace treaty" regulating the relation between employers and unions with regard to collective bargaining and procedure and industrial actions

Meanwhile, in the 1930s, white - collar workers had also begun to unite The Swedish Confederation o f Professional Employees (TCO) was created in 1944 and the Swedish Confederation o f Professional Association (SACO) was founded in 1947

In the 1940s, a number o f important agreements (by LO and SAP) were signed, such as agreement on health and safety (1942), vocational training (1944), time -and -motion studies (1948) etc During 1950s, similar agreements were concluded in the white-collar area Due to these agreements and the co-operative "Spirit o f Saltsjobaden" between management and labour that accompanied them, the number o f industrial action in Swedish labour market were very low For about 35 years, virtually no labour legislation was introduced

The mutual trust and the peaceful labour market were very important factors contributing to the growing prosperity in Sweden during the 1950s to 1960s A "Swedish model" known with steadily growing union influence, high union membership, centralized collective bargaining, an active national labour market policy and few labour disputes as crucial elements Many companies such as ASEA, Alfa Laval, Electrolux etc grew strongly

Since early 1970s Sweden has encountered economic setback, particularly due to the rapid growing public sector A large range o f labour legislation was adopted such as Act on Co Determination at Work (1976) In

the 1990s the matters o f unemployment, pay policy and taxes, the public sector and public expenditure, EU/EMU, immigration, pensions and labour laws were much discussed.

The labour market parties

Three main union confederations are LO, TCO and SACO (one for blue-collar workers, one for clerical employees one for and professional employees)

The largest confederation is LO representing blue - collar workers It has about 2.06 m illion members and 21 nation -wide trade unions, more than 900 branches and about 11,000 local sections LO and its unions have

"conflict fund" with an estimated market value o f over SEK 22 billions

TCO represents mainly white -collar or clerical workers, has 1.24

m illion members TCO and its member unions also have SEK 12 billion in their conflict fund

SACO is smaller with some 480,000 members (mainly in publicsector)

For many years, three these confederations, especially LO, have played very important roles The main reasons have been the large membership, the centralized collective bargaining system and the fact that the Social Democratic Party has been in power in most o f the time and LO has always co-operated openly and very closely with this Party

In private sector, employers' side is represented by SAF, with about45,000 enterprises M ost o f them are small undertakings (68% have less than 10 employees) SAP has some SEK 11 billion in its insurance fund

In the public sector, the Swedish Agency for Government Employers (SAGE) represents central government bodies At local government level, the Sw edish Federation o f County Councils and the A ssociation o f Local Authorities represent county councils (21 regional bodies) and primary municipalities (290 municipalities) respectively

Labour law enactment

Sweden has no labour law code The Government gave some proposals in 1910,1911 to introduce such legislation but they were not accepted The last attempt was made in 1930s, but it also failed In fact, nowadays, there is existence o f numerous single statutes regulating this field

National labour law documents were introduced quite late during 1970s as a result o f the radical program calling for greater union participation in company decision-making and many other changes in labour law adopted by LO Congress in 1971 M any new labour laws were introduced mainly from 1972 tol977 These are some o f them:

- The Security o f Employment Act (1974)

- The Trade Union Representatives Act (1974)

- The Labour Dispute Act (1974)

- The Employee's right to Educational Leave Act (1975)

- The Work Environment Act (1978)

- The Vacation Act (1978)

- The Equal Opportunities Act (1980)

A strong collective agreement network is the main feature o f labour regulation in Sweden as a result o f organic labour relations, which have

15

grown at a high level Because o f the shortage o f national legislation, the first collective agreements were nation-wide.

The most important function o f collective agreement is to confirm the labour standards set up by union and management The system of collective agreements institutes a large part o f labour rules Notably, collective agreements regulate certain areas, which have not been covered

by national law, e.g wages Here, the issue o f wages and salary are negotiated and fixed at two stages: at the national union level and company level.5

Labour Court

Labour Court was established in 1928 which comprises the filml­and in most cases the only-forum for setting legal disputes on labour issues Its members include representatives from Government, employers and union The Court hears about 150 cases a year

An important part o f labour rules was established by Labour Court precedents Because the state legislation is not in detail (to create flexibility and to suit any changes o f time or other conditions o f society), Labour Court decisions are used as an essential supplement o f Swedish labour law Labour market customs are also important The Labour Court may more or less base on those to find out a decision to settled cases

Employment situation: Sweden maintained an unemployment rate around 2% or 3% o f the work force throughout the 1980s In the severe crisis (in 1991-1993) the unemployment rate increased to more than 8% In

1996 the government set out a goal o f reducing unemployment to 4% in

2000 During 2000 employment rose by 90,000 persons, the greatest increase in 40 years, and the goal was reached in the autumn o f 2000 The sam e autum n the governm ent set out its new target-that 80% o f the working age population would have a regular job by 2004 However, the target was not met The Swedish government is now hoping that the target will be met

by 2007 The cuưent unemployment rate is about 5.4%.6

The Swedish economy has been developing well after the crisis in the early 1990s Growth has been strong in recent years The inflation rate is low and stable The government budget has improved dramatically-from a record deficit o f more than 12% o f GDP in 1993 to an expected surplus o f 2% o f GDP in 2003 The real wages have steadily been increasing by an average o f about 3% annum (from 1996 to 2003).7 The wage growth shows the improvement o f Swedish enterprises' production Competitiveness has boosted In 1995 Sweden became a member o f EU and since then Swedish labour law has been influenced by EU law Swedish employers and unions have been very active in the EU social dialogue and other working life issues Presently, Sweden could easily qualify for membership in the third phase o f the European M onetary Union However, Sweden still remains outside the Economic and Monetary Union In the referendum on September 15th 2004, Sweden decided against entry at this time

5 Before 1987, this issue was negotiated at three stages: at the national confederation, national union and company level.

7 Swedish N ational M ediation Office -Summary in English -2003

3 Basic legal issues on the

relations

(making employment contracts)

conclution

Vietnamese labour law provides some basic principles o f making

employment contract (Article 9 o f Labour Code) which must be obeyed

sufficiently in process o f employment contract conclusion

All the labour contracts, which violate these principles shall be null

and void

3.1.1.1 Principle of voluntariness

The right to freedom o f employment contract must be respected at

first According to this principle, each party itself decides whether it should

be bound in the employment contract Two parties must ensure that the

statem ents given in contract bring all will, consciousness and real aspiration

o f two sides All the items in the labour contract made under the state o f

reluctance, defraudation, or misconception shall be abolished

However there are several exemptions For example, the case o f

m inor employees, where parents must help their children to conclude

employment contracts, employees' voluntariness more or less is restricte^r, y T p T j Nevertheless, the intervention o f the "third-party" in this case is r ecessary io

Though "equality" is provided in law as an important principle, the

two parties' positions in establishing contract are difficult to be really equal

Real equality may exist only in case where the employee has special

w orking capacity and employer is not easy to find an alternate

There are actually no means to examine the obedience o f two parties

to this principle However, to assist employees, beside the stipulation o f

labour law, there should be different realistic methods to balance supply and

demand o f labour

17

3.1.1.3 Principle of compliance with the laws and collective agreements

Employees and employers are entitled to free negotiation o f employment standards to formulate labour contracts However, they must not fix the working conditions, which are poorer than those provided by labour law and by collective agreement They are not entitled to collaborate for illegal purposes as well

Conforming to the law and collective agreement shall be the first requirement to validate labour contract

The significance o f this principle is reflected in two following aspects:

- Avoiding the fact that employers impose too strict working conditions on employees and violate legitimate rights and interests o f employees In this sense, the principle aims at protecting employees

- Ensuring that labour contracts shall not breach laws The employees and employers can not collaborate to carry out unlawful business activities against society (though they do not breach labour conditions) In this aspect, the principle aims at protecting social interests or social administrative order established by the State

employees with more favourable conditions than those stipulated in the labour legislation.

Labour laws only give the floor standards to protect the weak parties, without taking into consideration the specificity o f employment or

w orking circumstances, e.g the heaviness o f work or the complexity o f tasks, the location, working environment etc as well as different requirements o f working skills or qualifications o f employees Therefore, in making a contract, two parties can not only base their agreement simply on

m inimum standards given by law but also have to sufficiently consider all relevant factors involving entire employment situation The working conditions for employees that are better than normal level in the market shall be accepted and encouraged

Unlike Vietnam, Sweden has no regulations on principles in establishing an employment contract Those principles are understood as inborn requirements generating from the nature o f contracts They are also carried by other regulations in the labour field For example, while law on working hours provides that "Regular working hours may not exceed 40 hours performing work week" (Section 5 o f Working Hours Act), two parties must not agree together and fix working time in the contract o f more than 40 hours However, contrarily, they can decide working time lower Thus, employees' interests are still protected adequately whereas no principles are given

3.1.2 Different categories of employment contracts

Vietnamese labour laws pay much attention to form o f labour contract because under the law, forms o f labour contract link with categories

o f employment

W ritten labour contracts

W ritten contracts must be under the sample provided by MOLISA, attached to the Circular No 21/2003/TT-BLDTBXH dated 9/5/2003 o f MOLISA W ritten form may be used for any employment contracts However, in these cases the written form will be indispensable:

- Indefinite term contracts

- Definite term contracts, which have duration o f more than 3 months These types o f contract comprise: employment contracts with the duration from full 12 months to 36 months, a contract for seasonal work or a specific task with a term o f from full 3 months to under 12 months.8

- Contracts for persons hired to watch over property9

- Contracts for persons who work in these service units: dance hall, Karaoke, massage, hotel, sanatorium, lodging- house, restaurant, coffee and tea shop employing female workers as dancers, waitress, receptionists or staffs 10

Oral contracts

Oral contract is made through bargaining and acceptance o f two parties Oral contract is characterized by unsolidity, therefore it is only applied in few cases, e.g for temporary or a simple employment, which have term s o f less than 3 m onths (Article 28 Labour Code)

W hile Vietnamese labour law is rather interested in form o f contract, Swedish labour law seems not to pay much attention to this From Swedish point o f view, an employment contract does not have to adhere to a formal style It may be oral or written Even in case o f a written contract, it is not important to include detailed regulations concerning the nature o f employment or contain no specifications For Sweden, the core factor is that two parties are willing to join the contract or not

Maybe the main reason for this big gap is the dissimilarity o f collective agreement systems in Sweden and in Vietnam Vietnamese collective agreements remain poor whereas in Sweden this system is very strong Swedish model based on highly centralized negotiation Collective bargaining takes place at different levels and provides regulation in detail Even, according to some researchers, the system is so strong that "Not enough room was left for adapting contracts to the conditions prevailing in specific industries and companies"11 Collective agreements are actually important legal basis for activities o f two parties o f labour relations instead

o f the existence o f individual contracts In addition to this, the way to settle labour disputes in Swedish is also very different from those in Vietnam For

8 These cases are defined in accordance with the Article 28

9 Paragraph 1 o f Article 139 labour Code

10 Part 1, Circular No 04/LDTBXH-TT dated 12/2/1996

11 http://www.sweden.se - Swedish Institute "Labour relations in Sweden" page 6

19

example, collective bargaining is the crucial instrument to solve conflicts and both parties may allege applicable collective agreement when necessary This reflects the important role o f the applicable collective agreements and,

in some extent, it can be used as contract alternates

In Vietnam, on the other hand, the most important regulation in labour field is Labour Code and its guiding documents The State has also been encouraging two parties o f labour relations to create collective agreements in order to concretize the national regulation into their own business conditions However, due to many reasons, building collective agreements still remains weak In many cases, collective agreements are the simple copies o f state regulation (This issue shall be more discussed in the part 4.2.1.1) So, it can be said that, in Vietnam now, labour contracts still play the role o f a basic instrument to concretize law and to confirm obligations o f involved parties during the existence o f labour relation That

is w hy the conformity with the law on form o f contract is also one important requirement

Notably, Vietnamese laws attend to form o f labour contracts mostly because the contract form is linked with the style o f employment Swedish laws, on the other hand, do not say much about form o f contract, however employment categories are also much cared for This can be seen a similarity

Generally, indefinite term contracts is linked with rather more elaborate employment protection devices, therefore, both Swedish and Vietnam ese labour laws restrict applying fixed term contract

The Article 27 o f Vietnam Labour Code provides that: When a fixed term contract or seasonal or specific task contract expires and the employee continues to work, both parties shall conclude a new contract w ithin 30 days from the date o f the signed contract expiration If there is no conclusion o f new contract, the signed contract shall become an indefinite one Where both parties conclude new contract, which is a contract with a definite term again, they shall only be permitted to conclude for such one more time

A fter that, if the employee still continues working, the next contract must be signed with indefinite term

Towards Swedish law, legislators also decided that it is necessary to limit on the permissible use o f temporary employment According to the Section 4 o f Employment Protection Act, "contracts o f employment are valid for an indefinite term" and a contract for a fixed term is seen valid only in a few cases provided in the Section 5 Employers must follow this regulation and determine the type o f employment at hiring

3.1.3 Process of making employment contracts

Both Swedish law and Vietnamese law do not have regulation on the different stages o f concluding an employment contract However, it is necessary to clarify activities o f two parties because in this process, though the contract has not been established or has not come into effect, certain duties or responsibilities o f two parties have already appeared

Normally, this process includes 3 steps:

* Giving suggestions

Suggestions may be given directly or indirectly through agencies o f employment and labour or different media means.

At this step, the person who takes the initiative in giving suggestions has responsibility to ensure that his suggestion generating from a real demand

* Negotiation

This is the central step in which, two parties shall discuss and reach agreements on different issues involving labour contract They also have responsibilities to provide all the necessary information concerning the other side's obligations For instance, the employer has to inform the employee the benefits the employee shall enjoy, prospect o f the enterprise, challenges or difficulties etc The employees can inform the employer his certain privacy concerning work implementation, and, if necessary, he must take some working skill test (e.g language, computer using skill etc.)

Two sides can agree together a probation period The duration of probation is contingent on specificities o f the work According to Vietnamese law ,12 there are 3 levels:

- The probation must not exceed 60 days for jobs requiring professional and technical qualifications o f collegial or higher level

- The probation must not exceed 30 days for jobs requiring the intermediate level, technical workers, professional

- The probation must not exceed 6 days for other jobs

When the probation periods expire, the employers shall notify the probation results to the employees If the requirements are meet, the two sides shall proceed with the conclusion o f labour contracts If the employees are not notified, but still continue working, they shall naturally be officially employed.

In Sweden, The probation duration is provided in the Section 6 of Employment Protection Act, particularly, not exceed 6 moths (regardless o f employment categories)

At this stage, the stage o f negotiation, two sides have not been tied to each other with the contract, they can freely stop the probation prior its expiry However, they must inform the opposite side about this stoppage not later than at the expiry o f the probationary period Where there is no such notification, the probationary shall become indefinite - term employment At this point, Swedish labour law and Vietnamese labour law provide nearly the same

In respect o f probation wage, under Vietnamese law, it is not lower than 70% o f the official wage applied for that work Swedish national regulation has not covered the issue o f minimum wage in general and probation wage in particularly In Sweden, for many years the issue o f payment has been regulated by agreements at national level For example, the 2001 Engineering Industry Agreement specifies that for manual workers aged 18 and over, a minimum hourly rate o f 75 kronor Normally, probation pay can be applied similar to the case o f new entrants or employees who are following a training scheme o f enterprise If so, pursuance to the 2001

12 Article 7 o f Decree No 44/2003/ND-CP dated 9/5/2003

21

Engineering Industry Agreement, this rate is at least 75% o f the applicable pay.

* Completing labour contract

Where the negotiation is successful, two parties shall confirm the contract conclusion Where there is a requirement o f a written contract, a written one must be created with all the main agreements achieved from the bargaining and the two parties' signatures Employment contract is made with two copies Each side keeps one

The main items o f a labour contract is referred to in Section 6A (SFS 1982:80 - Sweden) and in Article 29 (Labour Code-Vietnam) Comparing with the Article 29, the Section 6A provided a little more details

3.2.1 Implementing employment contracts

Labour contract shall come into force upon the date o f its conclusion

or the date agreed upon by the involved parties or the date the employee start his job

In the process o f realizing two parties' agreements in the employment contract, two following principles are introduced:

- First, the principle o f exact and adequate implementation o f duties

- Second, the principle o f mutual benefit cooperation

The first principle aims at satisfaction o f two parties' rights and interests pursuance to their agreements The realization o f rights or interests

o f one party always links with the implementing obligations o f their partner

So, labour law requires two parties to adequately implement their duties

The second principle aims at a higher goal: common interests This principle is generated from the nature of business requiring collaboration and mutual support o f two parties in order to carry out production more effectively, to cope with the different changes o f the market, overcoming difficulties or making use o f business opportunities The support of employees to employer may be the willingness to share a heavy workload or

to accept a temporary change o f work or workplace with certain difficulties etc For the employer side, they should be flexible in management to create good conditions for employees to fulfill their duties, especially in case employees have certain personal difficulties They also accomplish their obligations to employees and to properly reply the employee's effort Generally, both employees and employers should be aware their own responsibilities for enhancing the quality o f their relationship

3.2.2 Other activities to maintain labour relations

3.2.2.1 Alteration of employment contracts

Employment contracts comprise agreements, which are created equally and voluntarily, thus both parties must respect them and comply with it strictly However, during employment contract realization, there may

be certain objective changes, which makes one party or both o f them difficult to fulfill all the agreements Labour contract alteration then becomes a natural requirement re-creating necessary conditions to continue

an employment relationship

As for the labour contract replacement, Article 33 o f Labour Code provide that: During the time o f implementing the labour contract, any party who wishes to modify the contents thereof, shall give o f its intention to the other party at least 3 days in advance The modification o f the labour contract may be effected by way o f amendments to the existing labour contract or by the conclusion o f a new labour contract

In accordance with this provision, there are two cases:

- First, replacing o f one or some contents in the existing labour contract

- Second, concluding o f new labour contract, in case o f having to change many contents or entirety o f the contract

When amending or concluding new contract, two parties still abide

by already signed contract

In cases where the two parties failed to reach agreement, they shall continue with the already concluded labour contract, or agree to terminate the labour contract

Towards Swedish law, the last paragraph o f Section 6 Employment Protection Act provides that: In the event the terms and conditions o f employment are altered pursuant to a decision o f the employers or pursuant

to an agreement between the employer and employee and the alteration affect any o f the particulars referred to in the item 2 ,13 the employer shall provide new written information o f alteration within one months

As can be seen, the labour contract alternation according to Swedish law is conducted in a very simple manner and the employer often takes the initiative in this process Beside this regulation, there are no more provisions thereon If the alterations are between the boundaries o f the labour contract, two parties do not have to renegotiate

In reality, the Labour Court has ruled that, if alterations lead to an important change o f employee' duties that it is seen an entirely a new job, then the employer is authorized to undertake such alteration only for just cause and after having negotiated with the union Further, an aggrieved employee can challenge the employer's decision before a court and the court can issue an order o f specific performance, reinstating the employee to his

or her former position Thus, to sum up, there are few provisions on this issue, however, Labour Court also plays its role o f making law to cover the

13 Item 2 is about the employee's duties, occupational designation or title o f employment

23

situation and to make sure that the alteration shall be conducted for "just cause" only If "just cause" does not exist, the employers must reinstate employee to his previous position.

3.2.2.2 Temporary suspension of labour contracts

Temporary suspension o f labour contract is a postponement of implementing two parties' obligations for a period o f time while the employment contract effect still remains

Temporary suspension regulation aims at protecting employment for employee in some circumstances where the employee has to leave o f absence from work for special duties

According to Vietnamese law, in the following cases the employment contract shall be temporary suspended:

- The employee is call up for military service or for other civic obligations as stipulated by law (e.g for obligation o f layman, obligation to

w ork for public purposes)

- The employee is under temporary arrest or detention

- Other circumstances agreed upon the both sides (e.g a female employee wishes to have some more time to take care her child when parental leave expires, an employee wants to pursue an education program)

In reality, most cases o f temporary suspensions appear on the basis

o f employee's proposal and employer consent Temporary suspension characterized by the maintenance o f labour contract effect, although rights and obligations o f two parties shall not be performed for rather long time

W hen this period expires, the employer must re-employ the employee The labour contract shall be continued

Rights and obligations o f two parties involved in this case as follows:

Upon the expiry o f the period o f contract performance postponem ent in case where the employees have to implement citizen obligations (item 1) or other cases agreed by the employee and employer (item 3), the employee must be present at the workplace The employers shall have to arrange jobs for the employee If the employee comes to work

at the right time as prescribed and have to wait for work, he shall enjoy the salary as the case where the work stoppage is due to the fault o f employers (employee shall be paid salary in full) In cases where past 5 working days

as from the date o f expiry o f the suspension period, the employee fails to come without plausible reasons, they shall be dismissed, pursuance to the Item c, Clause 1 o f Article 85 Labour Code

It is a special situation where an employee is under temporary arrest

or detention Unlike other cases, the employee's rights and interests shall be defined subject to the fact that whether he has committed a crime, the seriousness level o f violation, whether the crime committed links with labour relation etc

- If employee is found guilty and is sentenced to imprisonment: the labour relation is naturally terminated

- If the criminal custody or detention directly relates to labour relation, when the custody or detention expires but it is defined that he is the victim o f injustice, the employee shall be reinstated to his former job with

full pay for the duration he was held in custody or detention This wage

amount is paid by employer (if the employer is at fault) or the legal

proceeding agencies (if it is at fault) as compensation to the employee

Where the employee is found guilty, but adjudicated by courts to

exemption o f prosecution, non-imprisonment or not banned by courts from

doing his former jobs: the employer shall arrange him to his former job or a

Swedish labour law has no provisions on temporary suspension o f

labour contract It is possible to take time o ff where an employee wishes to

leave o f absence to go to the doctor, to take care his /her child to go abroad,

to try a new job with new employer etc However, the contract is still valid

Normally this issue is covered by collective agreements

3.3 Termination of labour relations

3.3.1 Circumstances in which labour contracts

may be terminated

3.3.1.1 Unilateral termination of labour contracts

Generally, labour relations are rather durable In som e extent, it

might be maintained to the end o f one person's working life, suppose that

during employment contract, there are no serious changes and the two

parties keep a good collaboration In reality, labour relations are not always

so successful Objectively, during business process, enterprises are

frequently challenged with difficulties or risks and it is not whenever the

enterprises can overcome and maintain and develop production Similar to

the employee side, there may be certain events impacting his life seriously,

entailing a change o f job etc Meanwhile, subjectively, labour relation itself

is a "day by day dialogue" containing much conflict So, contract unilateral

term ination is not a strange event in working life

Unlike normal cases, unilaterally terminating labour contract often

causes the sense o f serious damage o f employment and may lead to more

labour disputes However, in particular circumstances, it is seen a necessary

measure to release one side from the labour obligations under the existing

labour contract in order to protect its legitimate rights and interests

Reasons for labour contract termination given by each party in the

labour relations are different, due to the differences o f parties' positions or

their roles in the contract In addition, the employment contract forms also

influences in some extent These are the particulars:

A V ietnam ese law

14 According to the Article 10 o f Decree No 44/2003/ND-CP dated 9/5/2003 and Article 13

o f D ecree N o 114/2002/ND-CP dated 31/12/2002

25

* U nilateral term ination o f labou r contracts by em ployers.

The employer is entitled to terminate contracts in any o f these circumstances, irrespective o f indefinite or definite term labour contract:13

a The employee regularly fails to fulfill the task designed by contract

b An employee is disciplined and dismissed according to Article 85

e The enterprises, body or organization ceases activities

Labour contract termination due to structural or technological change pursuant to the Article 17 o f Labour Code is also unilateral repudiation o f a labour contract However this is shall only be used as a final measure after the employer has applied a series o f solutions to re-employ labour such as re-train labour for the new vacancies

To protect employee's employment in special situation, employers are banned from unilateral terminating labour contract in following cases:

- The employee is under the treatment or cares by doctors for sickness, work accident or occupational disease, except the cases stipulated

in the item (a) and (e) mentioned above

- The employee is on the annual leave, personal leave o f absence, or any types o f leave permitted by the employer

The em ployer shall be prohibited from dism issing a female workers

or unilateral terminate labour contract o f a female workers for the reason o f her marriage, pregnancy, maternity leave, or that she is nursing a child

15 This circumstances are provided by Article 38 o f Labour Code

16 Article 85 o f Labour Code:

Dismissal shall be applied in the following circumstances:

- An employee who commit an act o f thef, embezzlement, disclosure o f

technological and business secrets or other acts causing severe losses to the property and interests o f the enterprise

- An employee whose time for prom otion in wage has been prolonger or who has been transferced to another jo b as a disciplinary measure and who again commit the same breach o f labour discipline while the dicipline measure has not been repealed or is a

recidivist while being removed from the position

- An employee who has been absents for a total o f five days during a month or twenty days during a year without legitimate reasons.

17 An employee is ill and no recovery o f working ability is in sight after having received treatm ent for 12 consecutive months, in respect o f labour contract with an indefinite term or for 6 consecutive months, in respect o f labour contract with an definite term o f full 12 to 36 months or for more than half o f the duration o f the contract, in respect o f a conừact for seasonal work or a specific task o f less than 12 months

18 Force majeure reasons mean the cases where due to the request o f competent state bodies

o f the provincial or higher level, to enemy sabotage or epidemics which can not be

overcom e, the production and /or business are subject to change or shrink