Female labours rights under vietnamese labour law in comparision with swedish labour law

2 OVERVIEW OF FEMALE LABOUR'S RIGHTS AND THE2.1 Concept of female labour's rights and the meanings of specific 2.1.1 Concept o f female labour's rights 7 2.1.2 The meanings o f specific

NGUYEN' THITUYET VAN

HANOI LAW UNIVERSITY LUND UNIVERSITY

2 OVERVIEW OF FEMALE LABOUR'S RIGHTS AND THE

2.1 Concept of female labour's rights and the meanings of specific

2.1.1 Concept o f female labour's rights 7

2.1.2 The meanings o f specific legal provisions on female labour's

2.2 A brief history of the Vietnamese and Swedish legal regulations on

3 THE ACTUAL SITUATION OF LABOUR LAW ON FEMALE LABOUR’S RIGHTS IN VIETNAM IN COMPARISON WITH

3.1 The rights of female labour in the field of employment 19

3.3.2.1 The allowance when child suffer illness 36 3.3.2.2 Pregnancy allowance 37 3.3.2.3 Retirem ent allowance 38

4 SUGGESTION TO IMPROVE VIETNAMESE LABOUR LAW

ON FEMALE LABOUR’S RIGHTS FOR THE COMING TIME 41

4.2 Some basic strategies to perfect legal regulations on the rights of

4.2.1 Supplem ent, am endm ent and prom ulgation new regulations

related to the rights o f fem ale labour in the fields o f jo b , wages,

4.2.2 R eview and approve International com m item ent related to the

4.3 Some solutions/measures to improve the efficiency of

implementing the rights of female labour in Vietnam 46

Nowadays, in many countries female labour is an im portant part o f labour force Female labour is now taking part in different fields o f national economy Vietnamese and Swedish labour laws always protect the right to equal opportunities between female and male labour They have already set

up m any provisions aiming at abolishing discrimination betw een female and

m ale labour in the fields o f employment, wages, social insurance and others These labour law provisions must be suitable with the International labour standards on female labour and is charaterized by each country's specific

In Vietnam there has been no the Act on Equality betw een men and women but the right o f equality at work has been recognized in C onstitution, in the Labour Code and other guiding regulations

In Sweden, the right o f equality between men and w om en is provided by Constitution and some Acts, especially in Equality O pportunities Act

This Thesis shall examine and compare between V ietnam ese and Swedish labour law provisions on the rights o f female labour (in the field o f employment, wage and social insurance) Then, it shall give some suggestions in order to improve Vietnamese law on female labour's rights in the current international intergration context

1

I hold it as a great honour to participate in The Swedish/Vietnamese Master Programme in International and Comparative Law It is a pleasure to express my gratitude to all the persons who helped me in pursuing my study and research First, I devote my very particular thanks to the Board o f Directors, prof Birgitta.Nystrom o f Lund University, Dr Dao Thi Hang o f The Hanoi Law University and all professors o f the project who helped and gave me invaluable knowledge I would like to extend my words o f appreciation to Librarians o f Lund University, Human Right Librarians, Librarians o f Hanoi Law University, Librarians of Research Center for Female Labour and Gender (M inistry o f Labour Invalid and Social Affairs) and all my friends Finally, I am indebted to Lund University and The Hanoi Law University for supporting my study

To my family whose love and comfort encouraged me to complete this academic pursuit

3

1995, The general secretary announced enhancing for the women's powers means for all.

In fact, we have reached the initial results o f the slruggle for equality betw een male and female Currently, there is no society in the world bringing the absolute equality right to female, especially in the labour market The discrimination o f treatment to female is clearer Says, female employees are difficult to find jobs due to the requirements o f employers Female are paid lower than male employees; in the duration o f employment, the em ployer have an inquiry to rearrange his/her structure o f organization, female employees are always initially ended the labour contract to male employees In addition, at the same professional position, the female employees usually retire earlier than male employees

In the time o f globalization, labour markets have been rising urgent matters such as employment’s, wages, unemployment and social security and others All have strong affect on employee especial female labour Beside their nature features o f bearing and feeding their children, female employees have to take charge o f social duties Therefore the working time o f female employees are often longer than male employees As a result, female employees do not have much opportunity to be thrown in their profession or they have to do poorly paid jobs W ith the above function, female labour have to face with more challenges in employment, wages, working condition, social insurance than male labour In order to protect female labour, Vietnam and Sweden laws have legal regulation on female labour in the institution, rules, acts, doctrines These regulation practically are taken the best use o f their possessiveness, making contribution to the empower, and enhancing the equality between male and female labours, moreover, it encourages to improve their great roles in all social fields o f life In facts, these regulation o f female labour's rights have met some bottlenecks in the implementation and learning experience worldwide is necessary, especially Sweden is one o f the countries having many regulations on female labour's rights that Vietnam should learn and refer to fulfill their law system on

female labour's rights Originating from the above reasons, I choose

"Female labour rights under Vietnamese labour law in comparison with

Sw edish labour law" I hope that the result o f this study will make some contribution to the fulfillment o f the law system o f Vietnam on female labour's rights

In Sweden as well in Vietnam , the m ater o f female labour's right are studied

by some project in gender study or mentioned to female labour in general Say, some o f the M aster themes in Lund university on social security The studies SIDA/ Sweden on policies and employment as well as gender equality In Vietnam there are also studies on female labour such as Master theme on laws on female labour/ some o f the practices and theories by Ly Thi Hoa -2002 RCFLG o f M inistry o f Labour, Invalid and Social Affairs has also studies on female labour but only in general such as Vietnamese female labour industries in the innovation stage Office o f Vietnamese National Assembly and UNICEF have also publication on rights o f female labour and children provided in International and domestic legal documents Here in, "Female labour rights under Vietnamese labour law in comparison with Swedish labour law" will provide the approach to the female labour's rights which is a systematic study o f the legal regulation on female labour's rights from com parative views o f Vietnamese and Swedish labour laws in some fields in employment, wages and social insurance

1.2 Scope and aims of the thesis

Female labour's rights is one o f the expansive and sophisticated field In the frame o f a thesis, I have not m uch chance to deal with all extents related to the female labour's rights but only on the limitation o f study on female labour's rights o f employment, wages, social insurance from comparative views between Vietnam laws and Sweden laws Other rights o f employee in general will be suitably mentioned

The purposes o f this theme is to clarify systematically regulations o f the Vietnam labour law and comparing with those o f Sweden labour laws on female labour's rights in the matters o f employment, wages, social security and thereby specify the sim ilarity and difference as well as the explanation for these Finally, I boldly suggest some solution to complete Vietnamese labour law on female labour's rights in light o f Swedish labour law that keep pace with socio-economic developm ent o f the country

1.3 Method of study

The most important method used in this thesis is comparative analysis method in order to find out the similarity and differences between the two labour law systems on female labour rights o f Vietnam and Sweden Synthetic method is also used to give conclusion and suggest some proposal Besides, I also use disciptive method by diagrams or tables in order to give necessary statistics for reasearching and illustrating the right o f female labour

5

1.4 Disposition

The study begins with a theoretical concep o f female labor's rights;

m eanings o f specific legal provisions o f female labor's rights and brief history o f the Vietnam ese and Swedish legal regulations on the female labor's rights (Chapter 2)

In Chapter 3 compares female labor's rights between Vietnamese and Swedish labour law Focus is female labor's rights in the field o f employment, wage and social security in order to point out similarities and differences

Proposal to complete and effectively implement the provisions in

V ietnam ese labour law on female labor's rights Base on the analyzation and practice o f im plem entation Vietnamese and Swedish labour law on female labor's rights, I hope to put forward proposal to complete the law and ensure that these provisions is not only in law but also practical to implement in order to protect the main labour force o f society - female labor (Chapter 4) Finally, I make conclusion base on above comparison and analyze about female labor's right in Vietnam ese labour law and Swedish labour law

2 Overview of female labour's rights and the regulations of labour law

2.1 Concept of female labour's rights and the meanings of specific legal provisions

on female labour's rights

2.1.1 Concept of female labour's rights

The hum an right expansive concept including the rights individuals, collective, groups o f people, or community in the society W ith the feature

o f gender, female labour is one o f the specific working group needing to be paid special attention to and protected Swedish and Vietnam Labour law do not only provide provisions generally regulated the rights applied to both

m ale labour and female labour but establishing the specific provisions on fem ale labour's rights as well in order to reach the target o f equality o f rights and opportunities between them

Rights are originally a legal concept, which expresses what the law confer

or to be enjoyed, requested, done The rights o f female labour is a com ponent that plays an important role in the system o f human rights and is recognized as the social value-meaning that it is acknowledged and ensured

to im plem ent by law

The rights o f female labour are the ability o f acts that is allowed by law ha other words, the rights o f female labour is measurement o f legal behaviors/acts o f the subjects (female labour) in the labour relations with the purpose o f satisfying theirown interests and secured by legal obligations o f employers and State.1

It is notable that the right o f female labour is not the very act/ behavior but the ability o f acts (called legal capacity) If this ability is practically carried out, it means the implementation o f female labour's rights The female labour's rights have features as follow:

(i) The ability o f female labour acting in the certain ways meeting the legal requirements

(ii) The ability to request other subjects (employers or State) who together take part in this relations to implement their duties, to ask them to respect rights and duties newly arising from the existing rights At the same

1 See Hanoi Law University, Theory o f State and Law, Security Publishing house, 2000,

p.437.

: Id p 438.

7

time, asking other subjects ending their prevention from the implementation

o f rights and duties in general

(iii) The female labour ability to ask competent States authorities to apply necessary com pulsory measures in case their rights and duties o f are violated

In m ost Nations, including both Vietnam and Sweden also have provisions

on fem ale labour's rights that aim at the equality between male labour and female labour and impovement female labour position in the society and labour market The equality between male and female labour is both human rights and initial condition to reach steady development o f socio- economy The right o f equality betw een male and female labour in labour relation is not ju st the im plem entation o f the principle o f equality in working payment, but the m ore im portant things is enable them to be equal with male labour

by im proving their knowledge and skill as well as working condition, concerning the jobs that suitable for their health, sex It is necessary to note that the equality o f female labour should be provided and implemented in every economic sectors So, taking part in labour relations and social activities at what levels is their right to self-decide, whithout any imposed from society, family and the others No laws can compell female labour have to go out for work M oreover, no pressure, even social rumour, that com pell female labour only stay at home to do housework and except them from taking part in social activities The conflict between professional social labour and housework can not be solved by choosing one (female labour only do housework or otherwise), but both and balance between them It

m ust be consider that the right o f working is the right o f equality for every

w om en but now they are still working hard and their income is generaly low er than man Therefore, the need for improving the quality o f

em ployment, upgrading, re-organizing product activities and applying high technology in order to increase productivities, reduce working time, increase relax tim e and imcome for female labour is concern matter o f evey countries

The right o f female labour are considered and regulated to ensure every one

to be treated with respect human dignity and to develop every potential toward improving their living quality It does not mean that male and female labour have the same rights M ale and female labour are different in sex but they needs to be ensured to be equal in rights, duties and opportunities

The right o f female labour is acknowledged by law in the fields o f employment, saraly, labour safety, labour sanitation and social security as well as in the field o f management The quantity and quality o f these right

o f female labour can be changed depending on labour relation in a certain socio-economic condition Such as, female labour in Vietnam was entitled

to take a leave before and after child birth totally sixty days (Decree 218/CP dated December 27,1961), now due to the development socio-economic, they are entitled to take a leave before and after child birth totally from four

to six months according to working condition and place o f work

The rights o f female labour is limited legal ones In a certain labour relations, the female labour has both rights and duties and their rights are

the duties o f employer (and other subjects) vice - verse In Vietnam, the

rights o f female labour is provided in the fundamental law - The

C onstitution 19923; The Labour Code 19944 and guiding implementation documents.

In Sweden, female labor's right is provided in Instrument o f Government and each field o f female labour's rights o f Sweden is provided in various specific Acts: eg M aternity is provided in Parental Leave Act; the rights o f female labour on employment is provided in The Equal Opportunities Act Especially, as a M em ber o f EC/EU, Swedish labour law gets effect from EU law and therefore it has to follow EU's labour law

In conclusion, the rights o f female labour is the ability that’s allowed by law, and by which female labour can choose the ways to act provided com plied w ith labour law The legal basic for their rights is the provision on the law o f the nation and International law Their rights are ensured duty and obligations o f State, employers and other subjects o f working relationship

2.1.2 The meanings of specific legal provisions

on female labour's rights

In the capacity as a labour, female labour o f both Vietnam and Sweden have been taking part in matterial and mental product activities Currently, the roles o f women have been acknowledged by almost countries at various levels Their contribution to the progress o f the nation as well as human could not be denied Their contribution is great and in various fields o f socio-economy life but one field in which female has successfully has shown their ability is the field o f working

Every society's labour force always consists o f a certain amount o f female labour Though in the m odem industrial society, the role o f female labour seems be regarded as o f little value, but their nature characters such as patient dexterous, skillful, painstaking worker are the good ones that

em ployer always needs and even often make full use of On the other hand, female labour has specific bio-psychological features that are different from man Their strength and body is often weaker than man but female does much work such as housework, giving birth and taking care children So, law should protect female labour in the respect o f labour as well as in the respect o f gender and gender equality

So, besides the provisions that regulate and protect both male labour and female labour, the labour law o f two countries Vietnam and Sweden have specific provisions to protect female labour from the above mentioned disadvantages These provisions aim at:

2.1.2.1 For the female labour

To enable female labour to when taking part in labour relations can harmoniously co-operate and balance between working life and family life, utilize all their ability for the development o f socio-economy and therefore increase income for their own and their family as well In fact, female labour is the main labour force in both Vietnam and Sweden The following statistics, to some extent, proves their contributions to the society

‘ Constitution o f Socialist Republic o f Vietnam , 1992, amended 2001.

4 Labour Code o f Socialist Republic o f Vietnam ,1994, amended 2002.

9

The total labour force o f Vietnam in 2002 is approximately 40,69 million, o f

w hich female labour force is 52% The proportion o f female at the age from

16 years old to 55 years old is 70% o f the total.5

The total labour force o f Sweden in 2003 is 4,4 million, o f which female labour force is 47% (from the age o f 16 to 6 1).6

M oreover, the participation and contribution o f female labour to social developm ent are increasing in both quantity and quality They works at

m any fields and sectors o f social life such as industry, agriculture, service, professions o f textile, shoes, finance, banks, traditional, medicine, education, handricraft

Besides that the provisions on female labour rights express the concern o f the State to this specific labour group in order to enable them to join in to com m unity and have opportunities taking part in social activities By these provisions female labour can perfectly do their housework (such as giving birth, taking care o f children/fam ily ) meanwhile taking part in professional social actitivities These provisions have the human values and also harmonizing the socio-economy policies on labour issue

M oreover, these provisions are also legal base by which female labour can protect themselves when taking part in working relationship, meanwhile can ask the competent state authority to protect their right So, the law on female labour establish the legal boundary to protect female labour before the challenge o f labour market

2.1.2.2 For the employer

These provisions contribute to upgrade the awareness and duty o f in employer in respect o f female labour protection In the market economy where labour is considered as commodity, the parties in the working relationship are tittle to negotiate in order to establish labour law relation However, the employee is often at weaker position than the employer due to their position o f selling labour It can be said that they depend on employer, even no negotiation because female labour not be prefered by employer The employer are not ready to recruit female labour since they have to implement priority for female labour Using female labour, from their view

is waste money and danger and their business plan can be broken at anytime

by the sudden leave or illness o f their female employee It should be noted that, these provisions does not aim at favor female labour rather than to bring more equal to them with man

2.1.2.3 For the State

The protection o f female labour rights through the National law helps to improve the position o f the State at International level, at least on the extent

o f implementing the International commitments on labour especially female labour - the weak worker Furthermore, these provisions also help State

5 Research Center for Female Labour and gender (RCFLG), Institute for Labour and Social

Policy, M inistry o f Labour Invalids and Social Affairs and Ms Fiona Howell, Equality on

Labour and Social Guarantee fo r Male and Female in fo rm a l and informal economic sectors: Discoveries supporting policy making, p l 1 (The Labour and Social Publishing

house,2003).

b Statistics Sweden, http://scb.se/tem plates0rchart-28310.asp

A uthorities to investigate and judge the implementation o f enterprise on female labour policy How ever the provisions on the rights o f female labour,

on the one hand to protect female labour themselves and on the other hand

to protect the interests o f society as a whole These interests can be seen through the utilization o f an important labour force - female labour force - to contribute to the progress o f the country and furthermore it will bring more human progress to the society, at least in the extent o f gender equality and gender developm ent

Therefore, to enable female labour prove their role as the main labour force

in the present society, law systems o f every countries, including Vietnam and Sw eden have more and m ore specific provisions that flexibly regulate the rights o f female labour, even extend their rights in order to help them taking part in professional social activities meanwhile do housework

2.2 A brief history of the Vietnamese and Swedish legal regulations on the female labour's rights

2.2.1 Vietnam

Vietnam is among Asian countries which soon recognized and official institutionalized the basic rights for women such as rights o f politics, cultures, society and family The formation and development o f the women's rights in the labour law are divided in to three main stages: 1945 to 1954; 1955 to 1985 and the stage from 1986 up to now

T h e stage fro m 1945 to 1954:

Right after the success o f the August reform, the young administration had

to face w ith internal and external riots But thanks to the intelligent leading

o f V ietnam Communist Party and President Ho Chi Minh, the government paid special attention to the right o f employee especially female labour rights

On the basic o f constitution 1946, the first constitution o f the Democratic Republic o f Vietnam which recognized the equality between male and female The Constitution confirmed: "All Vietnamese citizens are equal in all fields o f politic, economic, culture"7; "Man and women are equal in all fields"8 So, this highest legal document expressed the State policies aiming

at ensuring the equality for women to take part in socio-economic life

For guiding detail implementation o f the Constitutional regulations on equality between man and woman, the President o f Democratic Republic o f

transaction o f waging work between employer (Vietnamese or Foreigners) and Vietnamese citizens working at the fine art factories, mines, businesses and free traders This Decree contains many regulations on the female

7 Constitution o f Democratic Republic o f Vietnam 1946, Art.6.

8 Constitution o f Democratic Republic o f V ietnam l946, Art.9.

labour's rights For instance, prohibiting to use female labour at any age

w orking in fine art factories, mines in the night time or working under

m ines o r dangerous tasks and over their ability.9 In order to protect their

biology features and prevent the violation from employers, the Decree No

29 regulates that the employers could not refuse working contract o f the

fem ale labour, allowing 8 week's leave during their pregnancy Female

labour who suffer illness due to pregnancy or bearing can leave longer but

not longer than 12 weeks and the employers can not, therefore, terminate the

labour contract with th em 10 On the contrary, female labour have right to ask

enclosed the main fine if the employers used female labour to work over

their ability or dangerous one or having no location to feed their b a b ie s'1

It can be said that the Decree No 29 which have advanced regulations on

fem ale labour, not only for the time being but having great influence in the

follow ing stages These regulations has law milestones for the construction

and fulfillm ent the law on female labour Many lawyers currently considers

the D ecree No 29 as the first Labour Code o f Vietnam that regulates the

relation between employees and employers, the relations between

em ployees w ith em ployers12 This is the inheritance o f the labour law,

w hich rem ains its value However, this Decree does not have a special

C hapter on the female labour's rights as the current Labour Code, so the

system atic regulations is not vey high

As m entioned above, the female labour's rights in the stage from 1945 to

1954 was recognized in the Constitution and Decree The labour law in this

stage aim s at the innovate the people democratic regime which remained

young, lim ited the invasion o f employer However, due to the serious war

condition, the scope o f application o f these regulation as well as valid o f

docum ent have certain limitations

T h e stage fro m 1955 to 1985:

This is the stage o f labour law formed to support the construction socialist in

the N orth and struggle for liberation in the South and buiding an

independant country

On D ecem ber 31, 1959, Vietnam National Assembly Democratic Republic

o f V ietnam approved the new constitution - Constitution 1959, which

confirmed:

on the aspect o f life, politic, economic, cultures, society and family

W ith the same work, women have right to enjoy the equal wage to

men The State ensure female employees and civil servants have right to

enjoy leave after and before bearing an child but remain their payment The

State protects the right o f mothers and the children, development the nursery

and kinder gardens.13

9 The Decree No 29/SL o f Dem ocratic Republic o f Vietnam, 1947, A rt.106.

10 The D ecree No 29/SL o f Dem ocratic Republic o f Vietnam, 1947, A rt.121-122.

11 The Decree No 29/SL o f Democratic Republic o f Vietnam, 1947, A rt.175-176.

12 Dang Due San, Do Gia Thu, Nguyen Van Phan, Searching Vietnamese Labour Law,

(N ational Political Publishing house, Hanoi - 1996), p.25.

L Constitution o f Democratic Republic o f Vietnam 1959, Art.24.

- The employee have right to be materialy supported when they are old or suffer illness or labour missing The states gradually expand the social insurance, health organizations so that employees can enjoy.1

On the basic o f the Constitution 1959, an important document regulating the right o f female labour is Decree No 218/CP dated December 27, 1961 provided temporary regulations on social insurance for the government civil servants

This Decree regulated in very detail on the feeding children o f the female civil servants; the most favour for female labour when in pregnancy and bearing The Decree stated:

- Female civil servants are recognized to enjoy leave to take care their ill children and illness allowance by their pharmacians.15

Government civil servants have rights to leave before and after their bearing 60 If they bear twins, 10 days longer, three child bearing, 20 days longer If they have to take charge in specially hard work, 15 days longer leave

- Pregnancy allowance is equal to 100% their salary.16

In addition, the Decree has many regulations on the cases o f early bearing,

or missing their pregnancy, especially in the case o f bearing with breast feeding ability because o f infecting the infected diseases, enjoy the sum for each child until they reach 10 months old.17

Beside the above m aternity allowance, the Decree also provides retirement allowance Accordingly, the common condition for female labour to enjoy their retirement allowances is fully 55 years old and 20 year working time; and for the male employees m ust be 60 years and 25 year working time The maxim um level o f allowance is not over 75% o f their main salary18

The approval o f the new Constitution o f the Socialist Republic o f Vietnam

on December 18, 1980 reconfirmed that female and male have equal rights

on every fields The state and society take responsibility to enhance their knowledge about politic, culture, science and technology and jobs for female, keep improving their female's function in the community

On the basic o f Constitution 1980, some Decisions and Decrees have specified the foundation to carry out the right o f female labour and practical life Says, the Decree No 235/HDBT dated September 18, 1985 on improving the salary mechanism for civil servant and military officers; and

on the same day, the Decree 236/HDBT on suplementment and amendment

o f some policies for invalid and social affairs was also aproved

Therefore, in addition to the regulation o f the Constitution 1959, 1980, legal documents on labour at this time were promulgated by administrative bodies other than by legislative ones and they are mainly regulations (guiding implementation), so generally its legal validity is low Moreover, the regulations on female labour were provided in many different legal documents so it causes obstacles for application and implementation

14 Constitution o f Democratic Republic o f Vietnam 1959, A rt.32.

15 The Decree No 218-CP, dated 27/12/1961, Art 12.

10 T he Decree No 218-CP, dated 27/12/1961, Art 18.

17 The Decree No 218-CP, dated 27/12/1961, A rt.22.

Is T he Decree No 218-CP, dated 27/12/1961, Art.42.

13

Especially in the time being the rights o f female labour were regulated by law for civil servants.

T h e stage fro m 1986 up to now:

This is the stage that Vietnamese labour law is on the ways o f innovation of becom ing mature

W ith the 6th Conference o f Vietnam Communist Party (1986), the innovation (doi m oi) are initiated with the main tasks that are: innovate econom y and build up self - regime in business o f enterprises in the market mechanism Therefore, the important and urgent matter laid out are to build

up and implement the mechanism o f suitable management o f employees and the main targets to create more wealth for the whole society and improve the living standard for employees, enhancing the growth o f nation economy The Constitution 1992 provides the plan and principle to innovate the whole country, creates m any favorable conditions for regulation o f female labour rights The Constitution 1992 regulated that:

Fem ale and male citizens have equal right on every fields o f politic, econom y culture, society and family Entirely prohibit and behavior o f discrim ination for w om en or their human dignity19

The legal documents in the working field in the time being include:

D ecision 217/HDBT on 14/11/1987 assigned the rights to enterprises to self-employ The D ecision also regulated the ways o f recruitment, thereby the labour without any gender descrimination, have rights to choose jobs through their working contract suitable to their ability, profession This is a new decision because the labour are free to choose their job without any administrative imposement from any others

M arket mechanism have increasingly greater influence on working relation Some o f the legal documents issued in this stage in order to regulate labour relations For example, on August 28, 1990 the State Council approved

tem porarily regulated the new wages for civil servant and military force On the same date the Decree No 26/CP was approved regulated the temporary

w age in the enterprises; on June 22,1993 The Decree No 43/CP o f Government temporarily regulated the social insurance These documents had some indirect regulations related to the female labour rights Says, the labourer have rights to enter working contracts with any employees on the basis o f equality and volunteer; the workers are paided but not under the

m inim um wage regulated by the States Especially, the Decree No 43/CP detailed regulates on the social insurances that favour female labour For instance, the Decree clearly provides the duration that the female labour have rights to leave to take care o f their baby and the leave for pregnancy is longer

The above documents when approaching the mechanism o f labour market gradually clarify the new working relation - working relation between employees and employers The time applying these testing documents created many experiences that initiate the legal foundation for making Labour Code On June 23,1994, the first Labour Code o f Vietnam was

w Constitution o f Socialist Republic o f Vietnam, 1992, A rt.63.

approved by the National Assembly The Labour Code birth has marked the progress and developm ent o f labour law, especially this Code has one chapter (chapter 10-Specific provison on female labour) To regualates in detail and conduct to implement items o f the law on female labour,

G ovem em ent issued the Decree 23/CP on April 18, 1996 This Decree

responsibility o f the employers; encouraging the enterprises to use female labour; the prohibitions for employers For conducting the implementation some A rticle o f the Decree No 23, MOLISA issued the Circular 03/LDTBXH on January 13 1997; the Decree No 12 on social insurance; the D ecree No 01 on 09.01.2003 on amendment and supplementation o f some o f Articles o f the Rule on social insurance enclosed with the ecree No

12 Cp o n 26.01.1995

Thanks to the growth o f socio-economic, in order to promptly correct the relation labour law, on April 2, 2002 the amendment and supplimentation o f the Labour Code was approved by the National Assembly

It can be said that it is the most development stage o f the working relation

systematized Rights o f female labour increaingly widened, provide female labour m ore favorable condition to take their best creativeness in the innovation

In conclusion, since after the August reform in 1995, the Vietnamese labour law had m any regulations on female labour's rights suitable to the economic and social condition in different stages These regulations had many changes

in both quantity and quality It shows that the Vietnam Sates paid special attention to protect the female labour‘s right to protect the special employees in the community

2.2.2 Sweden

The right o f female labour is regulated in Constitution (The Instrument o f Government) One basic feature o f Swedish constitutional law is the existence o f not one but four different basic laws (Instrument o f Government; Freedom o f the Press Act; Fundamental Law on the Freedom

o f Exresion and The Act o f Succession), which all have constitutional status

The Instrument o f Government (1974), which contains the most important rules on the organisation o f the Swedish society and the main constitutional principle Such as the Basic Principles o f the Constituion; Fundamental Human Rights and Freedoms; Government and Parliament; The Head o fState 20

In the Instrument o f Government provided that: No statute or other ordinance may entail the discrimination o f any citizen on grounds o f race, skin colour, ethnic origin or sex, unless, in the latter case, the relevant provision forms part o f efforts to bring about equality between men and

20 Michael Bogdan, Swedish law in the new m illennium , (printed in Sweden by Elanders

Gotab, Stockholm, 2000), p.65.

15

women or relates to com pulsory military service or any corresponding compulsory national service.21

However, it is not until 1974, there is regulation on rights o f female labour, but there were some legal documents regulated on these rights

In the 1939, G ainfully empoyed women may not be dismissed on gorunds o f pregnancy, childbirth or marriage; In 1947, Equal pay for the some job is introduced for government employees;

In 1950, Both parents becom e the guardians o f the child; In 1955, Paid leave o f absence (3 month) prescribed by law for gainfully empoyed women

on the birth o f a child;

In 1962, National Insurance Act was promulgated It contains provisions about M edical care, sickness allowance and parent's allowance; Old-age pension, Family pension ;

In 1974, Parental insurance is introduced giving parents giving parents the right to share leave o f absence on the birth o f a child

In 1980 Legislation introduced against sexual discrimination in working life.22

The first Act on Equality between W omen and Men came into force in 1980 The present Equal Opportunities Act dates from 1991.23 It is drafted to confirm with corresponding regulation in the EU (Directive 75/117 on equal pay and Directive 76/207 on equal treatment).24 The Act applies to employees and job seekers alike The Act contains two sets o f provisions against discrimination in individual cases An Ombudsman for Equal Opportunity, together w ith a Commission for Equal Opportunities, initiates, directs and supervises efforts to promote equality.25

In June 1998, the Riskdag (Swedish parliament) appoved a proposal for a new pension scheme based on an agreement between five political parties, the Social Democrats, the Moderates, the Liberal Party, the Centre Party and the Christian Democrats The new provisions came into force on 1 January

1999 The first payment under the reformed system will be made in 20 0 1.26 Sweden became a mem ber o f the EU with Finland and Australia on 1 January 1995 This was the final stage o f a process which had begun in the late 1980s when Sweden sought to establish closer relations with the other European countries This process marked a significant change, or to some a revolution, in Swedish policy towards Europe Turning to the labour market, the EC Treaty and the Social Protocol annexed to the M aastricht Treaty provide the Community with competence to adopt legislative provisions concerning: The health and safety o f workers, working conditions, the information and consultation o f workers, equlity between men and women and the intergration o f persons excluded from the labour market So far,

21 Instrument o f Government, Art 15-16.

~ M arie Grovall, Swedish work and policies on Gender Equality (Raoul W allenberg

Institute University o f Lund, 1998), p 5.

23 This Act amended 1994, 1998, 2000.

24 Fahlbeck, Reihold, Labour and Em ploym ent law in Sweden (The present book is a

com petely rewritten version o f a book published by the same publisher in 1981, Labour Law in Sweden), p 65.

25 Id, p.66.

20 M inistry o f Health and Social Affairs No.4 July 2000, "Fact sheet", Old age pensions in

Sw eden, (The Government's website: www.regeringen.se).

Community provisions comprise mainly a number of minimum rules for the protection of the healthe and safety of workers, including the Working Hours Directive, and some provisions ensuring equal rights for men and women regarding employment and remuneration As regards the information and consultation o f workers, only the Directive on European Works Council has been adopted Due to the high level of protection generally afforded to workers in Sweden, and in view of the relatively advanced provisions on equality it has only been necessary for Sweden to make minor changes in labour market legislation It seem that Sweden will

be able to maintain its tradition of regulating the labour market by way of collective agreements as Sweden was assured by the Commission during the Swedish accession negotiations, that the Social Protocol.27

Equal opportunities, women's rights are regulated in EU law and case law and this has influenced Sweden.

In brieft, Sweden is a Nation with regulation on the female labour's right early These regulations are mainly under the acts, and is included in many acts Especially, Sweden has law on equal gender This is law showing the advanced thought in working with the purpose of enhancing working, especially, for female labour.

Therefore, in comparison to Sweden, the rights of female labour in the labour law in Vienam was later provided and almost regulated in the document with lower legal validity (regulations) But since 1995, legal norms on the right of female labour carefully systematized and specifically legalized in one chapter in the Labour Code.

Generaly speaking, the regulations on the rights of female labour are regulated by both Vietnam and Sweden very early Today in the cause of labour market, most regulation on the rights o f female labour recognized the equality between male and female The implication o f the equality is equal

in rights and responsibility and opportunity, treatment and evaluation between women and men in matters of job, wages, social allowance, and others The equality between right of male and female is both the human rights and initial condition to get the steady growth in economy - society Labour code of the both nations ensure that male and female labour are treated with the human dignity and development all the potential aiming at improving their living quality The evaluation between male and female in the field o f working can not be based gender discrimination.

thi / vienTRUONG DAI HOC LUAT HA NO I

P H O N G e p c ^ ^ ^ J

2/ www eurofound.eu.int Social and Labour market policy in Sweden, Directorate General

for Rescach working Document Social Affairs Series - W 13.

17

3 The actual situation of labour law on female labour's rights in Vietnam in comparison with Swedish labour law

The Constitutions o f both Vietnam and Sweden acknowledged the equality betw een male and female labour The labour laws on female labour right base on the provisions o f Constitutions and generally, they are compliance with the International labour standards

In Vietnam , the detailed provisions on female labour rights are basically in

Sw edish labour law is typically originated from EU law The Directives o f

EC law that regulate fundamental (minimum) rights o f the labour oblige the

EU members have to follow The Treaty o f Amsterdam (1997) -

Em ploym ent contains some capital improvements with the introduction fo f new Titles concerning employment (Title VIII) and social policy (Titile XI, Chapter I), a general principle o f non-discrimination, and references to the Social Charter o f the Council o f Europe The new Chapter on Social Provisions incorporates the Social Agreement o f Maastricht, which is quite important Once the Treaty o f Amsterdam is ratified, the two-track social Europe, brought about by the British opt-out, will come to an en There will

be the possibility to do something more at the European level in the social field The Treaty give a legal basis for action by the appropriate institutions

o f the EU in certain areas, such as regarding non-discrimination or

em ploym ent policies Thus, a dynamic process can be launched, if the political will is there and subsidiarity rules, allowing fully fledged European action The following topics merit special mention29:

(i) Fundamental rights, with reference to the European Convention for the Protection o f Human Rights, the European Social Charter, issues like the principle o f non-discrimination, disability, equlity o f men and women and protection o f data;

(ii) The Employment Title: Coordinating national strategies, since

em ploym ent policies are clearly left to the competence o f the M ember States;

(iii) The Chapter on Social Policy, integrating the Maastricht Agreem ent on Social Policy; and also providing for the possibility o f positive discrimination

2!i G overnm ent Decree No.23/CP dated April, 18, 1996 regulating the detail and the

im plem entation o f the Articles in Labour law about the particular stipulations on female labour; C ircular 03/TT-LDTBXH dated January, 13, 1997 guiding some provisions of Decree 23/CP.

Prof.D r.R.Blanpain, International encyclopaedia fo r labour law and industrial relations,

V o l.l, Kluwer Law International, 2003, p 194

The history o f Swedish labour law shows that "There is no such thing as a Labour Code, but only a set o f different statutes on disparate issues along with numerous collective agreement".30

Both Vietnamese and Swedish labour law provide some rights o f female labour as follow:

3.1 The rights of female labour in the field

of employment

3.1.1 At International level

Policy on employment is one o f the most basic social policies o f every country that contributes to the stability, security and progress o f each country The Summit Conference in Copenhagen in March, 1995 about

W omen stated that: Expanding the employment for female labour is one o f the m ost basic aims every country's plans for developing society from that

up to 2010 Beside that, the International Labour Organization (ILO) given the C onvention on employment policy, No 122, 1964 This Convention requires the Members to disclose and actively implement the employment policy in order to create more jobs and enhance the adequacy, effectiveness

o f jobs The policy aims at ensuring enough jobs for any one who want and need and also ensuring the right to choose job for every body The labour should have opportunity to improve their skill and ability, to get suitable profits from job No discrimination is allowed Recommend No 122 and 169

on the employment policy, with the aims to supplement the said Convention, give the principle for employment policy and some common solutions for employment issue, especially employment for disadvantage women Furthermore ILO gives the Declaration on equality o f opportunity and treatm ent for female labour and Decision on plan for carrying out to enhance the equality o f opportunities and treatment for female labour (1975) The Declaration stated that: "Any gender discrimination or denisation or limitation o f equality o f opportunities and treatment are accepted and should be erased".31 It also warned ILO's M embers that: The discrim ination o f treatment between man and female labour are consistently happening and that are not suitable with the development o f socio-economy progress and o f equality between man and women and also the benefit o f family and society The Declaration states that protecting female labour employment must be a vital part in the exertion enhancing and improving the living and working condition for every labours It urges the ILO

M embers to protect female labour from unavoidable bad luck in working and career bases on the same principles and standards as for men

30 Supra note 20, p.344.

jl Geneva International Labour Office, M ulti-National Project, International Labour

Stanilars f o r fe m a le labour 2 vols.(Communist magazine Printing house, 1998), v o l.l,

p.55.

19

In general, these requirements and notifications in the above documents o f ILO are also dom estically provided in detailed in both V ietnam ese and

Sw edish labour law on female labour rights

3.1.2 In Vietnam

Base on the general provisions in the Constitution 1992 on gender non­discrim ination treatment, the Labour Code 1994 provides in detail that everyone has the right to work, freely choose a job or profession, learn a trade and improve his professional standard without discrim ination o f sex.32 The State has responsibility to ensure that man and w om en are equal in opportunity o f employment The State has policy to encourage and enable the em ployer using female labour, so creating perm anent and sustainable jobs for employee The female labour are applied the flexible tim e-table by reducing quantity o f works or the length o f working time or applying unfull

w orking day/week The State shall adopt policies and m easures to expand

em ploym ent step by step, improve the labouring conditions, upgrade the professional standard, caring for the health, and increasing the m aterial and spiritual welfare o f female labour aimed at helping the female labour to effectively develop their professional capacities and harm oniously com bine

w orking life and family life

Beside the provisions that directly protect female labour rights on employment, the labour law o f Vietnam also indirectly protect female labour in this field through the prior policy for enterprises that

em ployed/using much female labour Such provisions are: Be lended money

or capital w ith low interest from the State's Fund for employment; Be subsidized on time for spenditures without refunding from the State's Fund for em ploym ent in some cases:

- Get priority to use some part o f total annual investm ent capital spending for improving working condition for female labour;

- Be examined to reduce tax (reduce revenues tax to spending more for female labour's profit provide that the level o f tax reduce is not lower than the subspenditure due to employing female labour In case o f no profit

or no revenue, this subspenditure due to employing m ush female labour is considered to be regular.33

H owever, in order to get the above priority, the enterprises have to m eet the conditions for employed much female enterprise

Firstly, frequently using from 10 to 100 female labour and the num ber o f female labour counts at least 50% o f the total num ber o f labour that frequently working for the enterprise

12 Labour Code o f Socialist Republic o f Vietnam, Art.5.

33 G overnm ent Decree N o.23/CP dated April, 18, 1996 regulating the detail and the

im plem entation o f the Articles in Labour law about the particular stipulations on female labour, A rt.6-7.

Secondly, frequently using more than 100 female labour and the num ber o f female labour counts at least 30% o f the total number o f labours that frequently w orking for the enterprise.34

The investigation in 100 enterprises o f various sectors and professional o f econom y that using much female labour, the number o f fem ale labour in those is 57,760.35 The proportion o f female labour in the enterprises that employ much female labour is shown in diagram No 1

D iag ram No 1: E n te rp rise s th a t em ploy m uch fem ale la b o u r

Source: ILO/RCFLG, Investigated data

The investigation shows, the proportion o f female labour work for State

ow n enterprises is largest (74.3%); Secondly, Join) stock enterprises (10.82% ); Foreign Invest enterprises (8.88%); Private enterprise (4.6%) It

is a popular thinking that working in State own enterprise is stable and the

im plem entation labour law is better than others In average, each enterprise has 578 employee o f which female labour is 441 (approximately 76.32%)

So, it is necessary for the labour law to give favor to enterprises that use much female labour and therefore enables female labour on the one hand, easily to find job and on the other hand helps them to avoid o f being in disadvantage due to their employer using much female labour

The Vietnam ese labour law requires that if the enterprise is out the conditions for the above priority (for instance: the number o f female labour

is lesser than the priority required), the enterprise has to negotiate with the presentators o f the enterprise's trade union to ensure find out the way to protect female labour rights This negotiation bases on the State's policy on female labour and special condition o f each enterprise All agreement must

be written in collective agreement

However, the Vietnamese Labour law does not only provides the responsibility o f the State in ensuring employment for female labour, but also the responsibility-and therefore interests o f the employer as follow:

34 G overnm ent Decree N o.23/CP dated April, 18, 1996 regulating the detail and the

im plem entation o f the Articles in Labour law about the particular stipulations on female labour, Art.5.

35 Supra note 5, p 85.

21

- Implementing the principle o f equality between men and women in recruiting, employing and using labour Non- discrimination to female labour G iving prior recruitm ent to women if the work is suitable with both man -wom en and those women are capable to do it.

- According to characteristics, conditions o f the work, the employer actively negotiate with the Trade union to build plan for using female labour with flexible time-table, unfull-working day/week, entrust female labour

w ith a jo b that can be done at home; enable them have frequent job that meet their desire In the process o f applying these above provisions, the

em ployer can negotiable with the female labour on the principle o f reprocity

to ensure female labour rights while ensuring the quest for the running o f enterprise and the employer as well During the negotiation, the employer together with the representatiors o f the labours identify works and suitable

m ethods for working than let the labours have opportunity to discuss to choose their best works and methods The works, methods that have been agree by both employer and labour have to written in collective agreement36 Then, the employer have to help the female labour register for doing the

w orks that written in collective agreement provide that it suitable with the

m ethod o f working and their desire following the priority:

- The female labour who is pregnant o f at least 3 months;

- The female labour who is feeding less 12 months child;

- The female labour who is in delicate health (base on the conclusion

o f doctor) and in difficulty.37

The Labour law requires that the employee have to appoint female labour who is doing the work that is in the list o f prohibiting employing female labour (this list is issued by M OLISA - MOH) to the other work that is suitable with their health and gender The works that the employer are prohibited to employ the female labour work in are the ones or professions

in w hich the working condition can seriously affect the health o f female labour, especially their sex ability such as: giving birth, feeding and take care child In this cases, the employer has to statistic and classify the female labour doing prohibited - employed female labour works in order to build the plan for changing w hile immediately carry out some measures such as: arranging, training, change profession, change work that suitable

' X 8

w ith the health o f female labour W hen temporarily employing female labour to do heavy or harmful poisoning work, the employer have to shorten the w orking time, at least 1-2 hours working day shift without reducing salary In case o f unable to shorten the working time, the said time is counted as the extra working time and the female labour shall be paid for this time (called extra salary 200% o f the normal salary/hour).39

36 G overnm ent Decree No.23/CP dated April, 18, 1996 regulating the detail and the

im plem entation o f the Articles in Labour law about the particular stipulations on female labour, A rt.3; Circular 03/TT-LDTBXH dated January, 13, 1997 guiding some provisions

From the above analyzing, the provisions o f Vietnamese Labour law on

em ploym ent for fem ale labour express some main good points as follow:

Firstly, the concern o f State and enterprise with the rights o f female labour in all fields o f employment from recruiting, employing, using This

is the foundation for female labour to prove their ability and get equality with m ale labour

Secondly, the priority mainly economic priority the enterprise employing m uch fem ale labour has encouraged the enterprise employing female labour in order get priority from the State and also enable employee easily to find job, be recruited

However, som e provisions on employment o f female labour are unpractical Because, the em ploym ent in fact are always in need capital for putting into producing/doing business M oreover, a large part o f their business capital is loan that they have to pay interest So, if the labour law only require that the enterprise have to their own capital or revenue interest to spending on female labour's profit, its is therefore hypothetical (though it is good) Furthermore, there is still now no mechanism for implementing the provision: Priority recruit women if they are equal with men on ability o f working and the w ork can be done either by man or women

The investigation by RCFLG carried out in 100 enterprises shows that: Only one o f every 5 female labours said that they are offered priority in recruitm ent (20.14%) Nearly half o f interviewed female labours said they are priored when they are appointed to suitable works (47.22%) Besides that, 42% interviewed employer said that they have to cope with difficulty when they recruit female labour and that effect their productivity The reasons for their difficulties are given: Female labour have to give birth and take care o f their family so they not fully concentrated on working or their work is interrupted due to giving birth; The spenditure on female labour is higher due to implem enting the policy for female labour such as: Shorten working tim e , female labour is often weak and handicraft labour (untrained labour).40

In fact, the enterprise employing much female labour really can be money or reduced tax as provided by law lended The procedure and guiding

im plementation among the authorities are complicated and some time contrary to each other.41

Though the provisions on employment o f female labour are quite detail as said, especially the provisions on the responsibility o f State and enterprise in ensuring employment for female labour These provisions however can not regulate the case happen in fact, even that, still now no legal provisions on employment direct and indirect discrimination

General speaking the background o f the Act is the fact that the labour market still segregated to a great extent along gender lines and that women are underrepresented in higher positions In addition jobs typically performed by w om en are less well paid than typically male jobs and women also earn less than m en in the same sector o f the economy.42

It contains provisions governing the joint efforts o f the social partners - the

em ployer and the trade uninons - to achieve gender equality and to combat discrim ination on the grounds o f gender In the other words, the Act belongs not to the Equal O pportunities Ombudsman but to the labour market It is true that the O m budsm an is required to monitor compliance with the law and can intervene if the social partner's own efforts do not to promote gender equality in w orking life and to deal with breaches o f the anti- discrim ination laws to the social partners themselves, in line with the

"Swedish model" that prevails in the labour market The purpose o f this Act

is to prom ote equality in w orking life Such as recruitment, development in work This A ct also em phasis is prim arily to improve women's conditions

In order to ensure the equality between women and men, Swedish labour law provided m ore detail and strict about discrimination, and further more, its distinguish betw een direct discrimination and indirect discrimination Accordingly, direct discrim ination is employer may not disfavour a job seeker or employee by treating her or him less favourably than the employer treat or w ould have treated a person o f the opposite sex in a position o f a sim ilar nuature, unless the employer demonstrates that the disfavour is not connected to the sex o f the person disfavoured.45

Indirect discrim ination is employer may not disfavour a job seeker or an employee by applying a provision, a criterion or a method o f procedure that appears to be neutral but which in practice is particularly disadvantageous to persons o f one sex, unless the provision, criterion or method o f procedure is approriate and necessary and can be justified with objective factors that are not connected to the sex o f the persons.46

42 Supra note 24, p 65.

43 Equal Opportunities Ombudsman, What are the duties o f employers, unions and

universities? U nder the Equal Opportunities Act, The Equal Treatment o f Students at

The provisions direct and indirect discrimination aim at preventing the gender discrim ination by the employer in the fields o f employment, wage, working conditions In a labour dispute involving gender discrimination, the employee have no responsibility to prove or give evidence This responsibility only resides in the employer Most countries provide by law that, the responsibility to give eviden or prove reside in plantiff The contrary provisions o f Swedish labour law therefore seem objective and it will warn the responsibility o f employer in gender issue while using employee due to they always bear the responsibility o f giving evidence47 In fact, som e em ployer said that: If they well implemented the equality while using labour, it thereto is not need to set up plan for gender equlity In this case, it will cause tim e w aste for enterprise So, it raises a question that: Is it necessary or not to set up plan for gender equality if the enterprise has well implem ented? The answ er that: Yes The aim o f requirement for setting up plan for gender equality is to increase awareness about sex issue o f employer, even in the case no gender discrimination in their enterprise.

One o f scopes o f the prohibitions against sex discrimination applied when the em ployer decides on an employment issue, selects a job seeker for an

em ploym ent procedure; manages and distribute work

The em ployer w hen using up to ten employee or more have to co-operate trade union to set up the annual plan for gender equality and plan for equal

w orking payment as well as the preparing measures supposed to carry out in the com ing year The Equal Opportunities Ombudsman must first try to persuade employee to obey the Equal Opportunities Act voluntarily But the law also allows for coercive action should they fail to do so Under the Act,

em ployers are obliged to send in their gender equality plans or supply

w hatever other details the Ombudsman may require in order to check compliance The Om budsm an is entitled by law to order employers to present the requisite documents subject to a conditional fine - a sum o f money I f the com pany fails to comply before the prescribed time, the

O m budsm an can ask the District Court to impose such a fine48 This fine can be repeated until such time as the employer supplies the necessary documents Only very rarely do employer refuse to cooperate Ombudsman staff are also entitled to visit workplaces if their supervisory duties require it

In fact Swedish trade union is powerfull and its effect to employee is very great For many years Swedish trade union has taken an important role in protecting the employee The reason for that is the great and stable co­operation and the central negociation at high level and due to the fact that the Democtic Party is leader in almost periods when the Trade Union has been get long well with this Party At present, the a'.lian for employee consists o f 21 national trade union with about 2,000,000 participants in 900 branchs and 11,000 local offices It has its own budget with about 22 billion SEK (44 billion VND).49 The great success o f Swedish Union is result the centralization of power from all its institutional members The trade union

47 Supra note 31, p 140.

45 Supra note 43, p.6

4) w w w bolag.org/english/Sweden/labour e-s-labour-relation.htm

25