Labor rights in the 2013 constitution of Vietnam and implementation prospects

Together with human rights, labor rights are also recognized by the 2013 Constitution of Vietnam, in particular the right to work, the freedom to choose employment and place of work, th[r]

LABOR RIGHTS IN THE 2013 CONSTITUTION

OF VIETNAM AND IMPLEMENTATION PROSPECTS

A/Prof.Le Thi Hoai Thu

School of Law, Vietnam National University, Hanoi

A/Prof Tran Thi Thuy Lam

Hanoi Law University

Abstract

In Vietnam, human rights, basic rights and duties of citizens are always respected and guaranteed Together with human rights, labor rights are also recognized by the 2013 Constitution of Vietnam, in particular the right to work, the freedom to choose employment and place of work, the right to social security, the right to equal and safe working conditions for workers The 2013 Constitution prohibits acts of discrimination, forced labor, use of workers under the labor age stipulated by the law Besides recognizing these rights, the 2013 Constitution continues to affirm the Government’s duties to protect workers’ legitimate rights and interests, including measures to guarantee the implementation

of workers’ rights.

Many new rights of workers are recognized for the first time in the constitutional history of Vietnam, providing an important legal foundation for these rights to be institutionalized in specialized laws and under-law documents and to be complied with, as well as for proposing measures to protect and ensure the implementation of these rights in practice.

However, internationalization, global integration and the fourth industrial revolution have been posing many challenges to guarantee workers’ rights in Vietnam This requires the policies and laws on labor rights in Vietnam to be adjusted The labor law needs to be amended to guarantee compatibility with fundamental international labor standards acknowledged in the international conventions and ratified by Vietnam Furthermore, Vietnam needs to continue to review, ratify, and internalize ILO’s Conventions of which it has not been a member so as to guarantee and implement more effectively the labor rights of workers In addition, the approach towards labor rights also needs to be changed in the direction of protecting legitimate rights and interests of both employers and employees Regarding women workers, instead of protection, the labor law should be approached from the perspective of gender equality, promoting gender equality to guarantee women worker’s labor rights.

With a human rights-based approach and mechanism for implementation, it will be increasingly promising for the future of labor rights recognized in the 2013 Constitution in Vietnam.

Keywords: Labor rights; international labor standards; 2013 Constitution; Vietnam

1 Labor rights - a new human rights development in the 2013 Constitution of Vietnam

Human rights are natural rights of human beings and cannot be taken away by anyone nor any regimes Therefore, human rights and striving towards the protection of human rights have always been the goal pursued by many countries as well as the international community The United States

Declaration of Independence in 1776 states that “We hold these truths to be self-evident, that all men

are created equal, that they are endowed by their Creator with certain unalienable Rights, among

which are the rights to Life, Freedom and the pursuit of Happiness”

The purpose and obligation of the United Nations to protect and promote respect for fundamental human rights are also set out in various provisions and sections of the United Nations Charter Especially in 1948, the United Nations promulgated the Universal Declaration of Human Rights

It is considered one of the greatest achievements of the United Nations with historical significance since it provided common standards on human rights for all peoples and all nations According to the

Declaration, “everyone are created equal and are endowed by the Creator with certain unalienable

rights allowed by the law such as: the right to life, freedom and personal security, the right to pursue happiness, freedom of speech, freedom of association, freedom of religion, the right to equal protection

by the law” 1

With the 1948 Universal Declaration of Human Rights as the foundation, human rights have been elaborated in various international conventions There are up to 24 international conventions on human rights; among them the most important ones are the International Convention on Civil and Political Rights and the International Convention on Economic, Social and Cultural Rights Civil rights are considered the most important human rights because they are inherently connected to everyday life as well as the identity of people Civil rights cover different specific rights and one of these fundamental rights is labor rights, because to survive and prosper we have to take part in labor activities Labor not only helps people

to survive but also helps developing our awareness of the world around us

Labor right is a term used to describe a set of human rights arising from labor relations

“Labor rights” is sometimes used interchangeable with the terms “workers’ rights” and “the rights

at work” However, “labor rights” is a much broader concept, containing both these two types of rights and another type, “the rights to work”2 Labor rights include: the right to choose employment and occupation freely; the right to receive equal remuneration for work of equal value; the right to decent and safe working conditions; the right to establish and join trade unions; the right to collective bargaining; the right to go on a strike, to name a few Nonetheless, in a broad sense, labor rights also include issues such as equality in labor relations, social security and unemployment benefits, the elimination of forced labor, child labor, etc

In Vietnam, joining international conventions, including conventions on human rights has been

a regular and consistent policy of the Communist Party and of the Vietnamese Government In the

8th National Congress’ Resolution, the Communist Party of Vietnam had stated that “Human rights

are the result of the long struggle of working people and oppressed nations in the world and also the human struggle to triumph over nature, thus human rights have become the common values of

1 Le Thi Hoai Thu, The protection of human rights in the labor law of Vietnam (VNU Publisher 2013) 47.

2 Vu Cong Giao, Nguyen Anh Duc, ‘Labor rights: Some theory and practical issues’ (Labor rights: The law and situation

in the world and in Vietnam, April 25th, 2019).

humanity” Together with the Communist Party’s Resolution, Vietnam’s Constitutions (such as the

1946 Constitution, the 1980 Constitution, the 1992 Constitution and the 2013 Constitution) have all

recognized, respected and protected human rights values that are recognized worldwide, especially labor rights Labor rights have expanded throughout the constitutions of Vietnam and have undergone

a remarkable development Particularly, in the 2013 Constitution, there is a new development in labor rights - recognizing labor rights under the human rights perspective This is a new approach in order to ensure the implementation of international conventions on human rights Many new rights

of workers are recognized for the first time in the constitutional history of Vietnam, providing an important legal foundation for these rights to be institutionalized in specialized laws and under-law documents and to be complied with, as well as for proposing measures to protect and ensure the implementation of these rights in practice The development of labor rights in the 2013 Constitution

of Vietnam is reflected in the following aspects:

First, in both the 1992 Constitution and the one before it (the 1980 Constitution), labor rights are

stipulated in the chapter on basic rights and duties of citizens Accordingly, labor is both a right and a duty of citizens Both the State and the society should plan to create more and more jobs for workers1 In the 2013 Constitution, labor rights are located right in the second chapter (instead of chapter 5 as in the

1992 Constitution), entitled “Human rights, fundamental rights and duties of citizens” This means that human rights in general and labor rights in particular are seen as important rights Above all, for the first time in the constitutional history of Vietnam, the duties of the Government to protect legitimate rights and interests of workers are recognized This provides an important legal framework for specialized laws and under-law documents to institutionalize, to ensure labor rights are implemented in practice

Second, the 2013 Constitution has also acknowledged and affirmed that citizens’ right to work,

right to choose employment and occupation freely (Paragraph 1, Article 35 of the 2013 Constitution) are natural rights of human beings, which are guaranteed by the Government This completely aligns with the general spirit of the Convention No 122 - Employment Policy Convention that Vietnam is preparing to join

Third, the right to social security is also a new and progressive feature of the 2013 Constitution

compared to the 1992 Constitution Compared to the 1992 Constitution, the 2013 Constitution has expanded the subjects of the right to social security Specifically, those are “Citizens” and they are not just limited to government officials and wage laborers as stipulated in the 1992 Constitution Furthermore, the term “Social security” has also been officially acknowledged in the Constitution This indicates a development in the constitutional technique where the rights are no longer listed like in the 1992 Constitution: working hours, remuneration, holidays and social insurance, to name a few, but are instead generalized into the concept of the rights to social security This will also be an important legal basis in order to establish a comprehensive and cohesive social security law so that people in general and workers in particular can implement their rights to social security, which will

in turn promote equality and social progress

Fourth, gender equality and equitable working conditions for wage laborers is also a subject of

interest of the 2013 Constitution Before, the provision on gender equality and a part of the provisions

on equitable working conditions for men and women workers were put together in Article 63 of the

1 See Article 55, 1992 Constitution.

1992 Constitution However, these two issues have been separated into two distinct articles in the 2013 Constitution In particular, Article 26 stipulates gender equality and Article 35 stipulates workers’ rights

to equitable, safe working conditions, rights to receive remuneration, right to have holidays (Paragraph 2) Any workers, men or women, regardless of nationalities, beliefs, and religions shall receive equitable, bias-free working conditions when performing the same work The subjects to these rights according

to the 2013 Constitution are very broad, not limited to workers of different genders (men or women workers) nor workers from different nationalities or different religions and beliefs, etc

Fifth, the 2013 Constitution has provisions which indicates the internalization of international

conventions on labor rights that Vietnam had signed and ratified Specifically, the 2013 Constitution prohibits acts of discrimination, forced labor and employment of workers under the minimum labor age determined by the law (Paragraph 3, Article 35) Which means, there are three main categories of prohibited acts in implementing labor rights, namely: discrimination, forced labor and employment

of workers under the minimum labor age stipulated by the law This will be an important legal basis

to adjust, amend specified laws to include these groups of prohibited acts and sanction measures to ensure labor rights are implemented in practice1

2 The implementation of labor rights in the 2013 Constitution of Vietnam in practice

To institutionalize the 2013 Constitution, laws and under-law documents have specified the Constitution to ensure that labor rights recognized in the Constitution are implemented in practice

2.1 Right to work, right to choose employment, occupation and workplaces freely (Paragraph 1, Article

35 of the 2013 Constitution)

One of the fundamental labor rights of people is the freedom to choose one’s employment, occupation and workplaces Among all the labor rights, this is also the first right recognized by the

2013 Constitution To institutionalize the Constitution, specialized laws, especially laws related to labor such as the Labor Code and the Law on Employment, all have recognized workers’ rights to work, creating a favorable legal environment for labor rights to be implemented In particular, Point

a Paragraph 1, Article 5 of the 2012 Labor Code stipulates that: “Workers have the rights to work,

the freedom to choose their employment, occupation, to participate in vocational training and to improve their occupational skills without discrimination” Next, Article 10 of the 2012 Labor Code

also stipulates that “(1) A worker shall have the rights to work for any employer in any location that is

not prohibited by law (2) A worker may directly contact an employer or through employment service institutions in order to find a job which meets their expectations, capacity, occupational qualification, and health” Furthermore, Article 21 of the Labor Code stipulates that “A worker may enter into employment contracts with more than one employer” Together with the 2012 Labor Code, the 2013

Law on Employment also has provisions to ensure workers’ rights to work Paragraph 6 Article 9 of

the Law on Employment prohibits the act of “Obstructing, causing difficulties or damages to the

legitimate rights and interests of workers or employers” Apart from acknowledging workers’ right

to work, the Labor Code also has provisions to guarantee that their jobs and working terms are in

1 See Organizational capacity development and management institute, ‘Rights of Workers in the 2013 Constitution’ (March 4th, 2014) <http://www.domi.org.vn/tin-nghien-cuu/quyen-cua-nguoi-lao-dong-trong-hien-phap-nam-2013.2920 html> accessed 12 October 2018

accordance with their agreements with the employers and that they can have long-term employment Contract length depends on the nature of the work Employers are not allowed to enter short-term employment contracts for long-term, regular jobs1 Workers are also guaranteed that their performance

is in agreement with their contracts In case the employer does not assign the employee to the work

or workplaces as agreed in the employment contract, the employee can unilaterally terminate the employment contract (Article 37 of the Labor Code) Especially, workers’ rights to work is also guaranteed even when companies make changes in order to adapt to the conditions of a market economy When there are changes in a company’s structure, technology or due to economic reasons,

or when there are mergers or divisions of companies, employers must have resolutions in place so that their employees can continue working Only when they are unable to continue employing the existing employees can they dismiss them and they have the duty to pay unemployment benefits for employees who have worked for them for over 12 months2

Labor law also has provisions to guarantee the rights to work for specific groups of workers For instance, employers cannot dismiss women workers or unilaterally terminate the employment contract with women workers due to her marriage, pregnancy, maternity leave, or her nursing of a child under 12 months of age During the time of pregnancy, maternity leave, or care of a child under

12 months of age, labor disciplinary measures shall not be applied to women employees3 These provisions guaranteed employment and income for women workers during difficult times when they have to carry out their gendered tasks

Furthermore, to encourage and create favorable conditions for domestic and foreign individuals and organizations to invest in business and production and create more employment, the Government has promulgated a set of open policies and laws for them This helps create more jobs, ensuring that people in the working age can exercise their labor rights Many multinational companies, joint ventures have been established in Vietnam, generating more jobs for millions of workers According

to the reports by the General Statistics Office, until the 1st quarter of 2019, there were approximately 54.3 million people (over 15 years of age) with a job in Vietnam Among these, employment in urban areas accounts for 33.01% and women’s employment accounts for 47.7% Employment in the 1st

quarter of 2019 tended to rise in foreign direct investment and non-state sectors4

Nevertheless, there still exists a tremendous number of unemployed people at the working age in Vietnam today According to the General Statistics Office, the number of unemployed people at the working age in the 1st quarter of 2019 is nearly 1.1 million, a decrease of 3.5 million compared to the prior quarter and 8.2 million compared to the same period of the prior year The unemployment rate

of people in the working age in the 1st quarter of 2019 was estimated to be 2.17%, almost unchanged compared to the prior quarter and declined by 0.03% compared to the same period of the prior year5 This requires Vietnam to make more efforts in creating employment

1 See Article 22 2012 Labor Code.

2 See Article 44, 45 2012 Labor Code.

3 See paragraph 3,4 Article 155 2012 Labor Code

4 General Statistics Office, ‘Press release on employment situation in the first quarter of 2019’ (Hanoi, March 29th 2019) <https://www.gso.gov.vn/default.aspx?tabid=382&idmid=2&ItemID=19136> accessed April 3rd 2019

5 General Statistics Office, ‘Press release on employment situation in the first quarter of 2019’ (Hanoi, March 29th 2019) <https://www.gso.gov.vn/default.aspx?tabid=382&idmid=2&ItemID=19136> accessed April 3rd 2019

2.2 Right to social security

Right to social security is one of the fundamental human rights, including workers Social security

is a broad term and an open concept The term has been used widely in the society recently In a broad sense, social security covers many facets of human life, regulating relationships in many fields such as employment, social insurance, social aids, healthcare, basic social services, etc In the labor perspective, social security means the social protection in case of income reduction due to risks such as sickness, maternity, labor accident, retirement, unemployment, etc The 2013 Constitution, while recognizing the rights to social security (Article 34), has created a legal basis for Law on Social Insurance, Law on Employment, Law on Occupational Safety and Health to provide social insurance regimes so that workers’ welfare is ensured and favorable conditions for workers to exercise their labor rights are created Thus, social insurance targets at all workers, including those working in both the formal sector (structured) and the informal sector (non-structured)

In particular, workers from the formal sector are subject to compulsory social insurance, whereas workers from informal sector are subject to voluntary social insurance According to the 2014 Law on Social Insurance, workers under an employment contract of 1 month or more are compulsorily subject

to social insurance in forms of sickness; maternity; labor accidents, occupational diseases; retirement and death According to the 2013 Employment Law, workers under an employment contract of 3 months or more are compulsorily subject to unemployment insurance A worker is subject to social insurance regimes for sickness, maternity, labor accident, occupational disease, retirement, death and unemployment when corresponding social insurance conditions are fulfilled Workers participating in voluntary social insurance are entitled to retirement and death insurance benefits Together with social insurance regimes for the purpose of ensuring incomes for workers suffering from incidents during their labor activities, there is also an insurance regime for healthcare so that when exercising their labor rights, workers’ health is also ensured through participation in health insurance that will pay for medical expenses when they have medical check-ups and treatments

Therefore, by 2018, in Vietnam, in policy, social insurance and health insurance have covered all members of the labor force This proves that all workers have the rights to social security In practice

we have achieved certain results In 2018, the total number of people joining social insurance in Vietnam reached over 14.7 million, accounting for approximately 30.4% of the labor force; the number

of people joining unemployment insurance reached over 12.6 million, accounting for approximately 26.2% of the labor force Especially, the rate of people joining health insurance continued to rise and has reached 88.5% of the population over 83.5 million people, 3.3% more than the target assigned

by the Prime Minister1 However, the results also showed that the number of people joining social insurance in Vietnam has only reached a moderate level, the coverage of social insurance is still very low compared to the standard of the International Labor Organization (ILO), other countries

in the world as well as the development potential of Vietnam’s socio-economy On the other hand, concerning the annual growth rate of the number of people joining voluntary social insurance, there was a surge in 2009 (6.7% compared to 2008 - the early years of implementation of provisions on voluntary social insurance) However, this growth has been slowing down, especially since 2013

1 Lac Nhan, ‘Over 14.7 million people participating in social insurance in Vietnam in 2018’ Vietnam Investment Review (Ho Chi Minh city, January 14th 2019) <https://tinnhanhchungkhoan.vn/bao-hiem-xa-hoi/nam-2018-ca-nuoc-co-tren-147-trieu-nguoi-tham-gia-bao-hiem-xa-hoi-254795.html> accessed January 15th 2019.

there has been only over 200.000 people participating in voluntary social insurance, accounting for 0.42% of the labor force1

Moreover, the increase of one-time social insurance lowers the opportunity to receive retirement pension In recent years, instead of waiting until retirement age, people are more likely to apply for one-time social insurance This will lead to the situation where more and more people will not be covered by social security and lose a source of aid to rely on when they are old Thus, the desirable result of social security via ensuring income for workers through social insurance will not be met

It will be hard for Vietnam to achieve the goal of approximately 50% of the labor force joining

social insurance as set out in the Resolution no 15-NQ/TW on November 22th 2012 on certain

social policies in the period 2012-2020 According to reports by the Ministry of Labor, Invalids

and Social Affairs, until the end of 2015, among the total of 11.5 million of elderly people, there is only approximately 5.5 million (equivalent to 47.11%) received monthly benefits, in which nearly 3 million (equivalent 24.55%) received pensions and other kinds of monthly social security benefits Thus, nearly 53% of the elderly in Vietnam are still in need of monthly income benefits2 This is also

an alarming situation for Vietnamese social security system

2.3 Right to equitable and safe working conditions for workers

This right requires the law to guarantee an equitable and safe working environment for workers

It is considered as the minimum working conditions and fundamental labor standards guaranteed for workers when they exercise their labor rights Equal and safe working conditions comprise of different aspects but notable ones to be considered relate to discrimination, forced labor and child labor issues These are also issues mentioned in the fundamental labor standards of ILO

- In terms of discrimination, with the 2013 Constitution as the foundation, workers’ right to

equitable and safe working conditions has been institutionalized in many specialized laws, notably the Labor Code In addition to provisions on equality in recruitment, working conditions, remuneration regime, vocational training and promotion opportunities, Vietnamese labor law also has provisions to eliminate discrimination in employment The 2012 Labor Code stipulates that the State has policies

in place to ensure gender equality principles; to protect women workers, disabled workers, elderly workers and juvenile workers (Article 4 of the Labor Code) Also, there are provisions to prohibit discrimination on the basis of gender, race, color, social class, marital status, belief, religion, HIV status, disabilities or for the reason of establishing, joining trade union and participating in trade union activities (Article 8 of the Labor Code) The Code also stipulates that workers have the rights

to work, to freely choose their employment and occupation, to participate in vocational training and

to improve their occupational skills without discrimination (Article 5 of the Labor Code) Concerning equal remuneration between men and women workers, it is stipulated in paragraph 3 Article 90 of

the 2012 Labor Code as follows: “Employers shall ensure that wage is paid equally without

gender-based discrimination against employees performing work of equal value”.

1 Ministry of Labor, Invalids and Social Affairs of Vietnam, ‘Draft report on measures to expand the coverage of social insurances’ (Hanoi, 2017)

2 Ministry of Labor, Invalids and Social Affairs of Vietnam, ‘Draft report on measures to expand the coverage of social insurances’ (Hanoi, 2017)

Together with the provisions in the Labor Code, Article 13 of the 2006 Law on Gender equality

also stipulates that: “(1) Men and women are equal in terms of qualifications and age in recruitment,

are treated equally in workplaces regarding work, wages, pay and bonus, social insurance, working conditions and other conditions (2) Men and women are equal in terms of qualifications and age when they are promoted or appointed to hold titles in the title-standardized professions”.

By implementing policies and programs to eliminate discrimination in employment and occupation, Vietnam has had notable achievements According to the Global Gender Gap Report

2016 of the World Economic Forum, on the magnitude of gender-based disparities in 144 countries, Vietnam ranked at 65/144; in terms of closing the overall gender gap, Vietnam ranked 7 in the Asia region In another report based on the statistics of the Department of Employment (the Ministry of Labor, Invalids and Social Affairs), in 2016, there were 1.641 million employed people in Vietnam, in which the number of women workers accounted for 48%, attaining the target set out in the National Strategy on Gender Equality for the period 2011 - 20201

Despite remarkable efforts and early achievements in eliminating discrimination in employment and occupation, gender discrimination still occurs rather commonly in the recruitment process

in the private sector According to a report by ILO and Navigos Search, among the recruitment advertisements on VietnamWorks, JobStreet, CareerBuilder and CareerLink - the four biggest job websites in Vietnam, from mid-November 2014 to January 2015, up to one fifth of the total of 12,300 posted advertisements mentioned the gender requirement2 Among these advertisements, 70% were

‘men only’ while only 30% were expected for female applicants3

There is also a great progress in the 2012 Labor Code, which is the prohibition of sexual harassment and abuse at the workplaces because “harassment” constitutes a form of discrimination at the workplaces However, the Labor Code has not provided a definition of sexual harassment at the workplaces and still lacks preventive and sanction measures when there are violations Furthermore, Vietnam is currently among the minority of countries that still differentiates the retirement age between men and women workers (with a 5-year age difference) This requires Vietnam to make changes in the law so as to be more compatible with the laws of other countries in the world

- In terms of forced labor, paragraph 10 Article 3 of the 2012 Labor Code defines: “’forced

labor’ shall mean to use force or to threaten to use force or a similar practice to force a person to work against his or her will” With respect to preventive measures against forced labor, the 2012

Labor Code has provisions to, for example, prohibit employers from keeping original identification documents, degrees and certificates of employees, or requesting employees to make a deposit in cash

or asset to guarantee compliance with the employment contract (Article 20, Article 183); employers must comply with payment principles and wage deduction is only allowed in certain cases according

to law (Article 95, Article 96, Article 101) In addition, the 2012 Labor Code also gives workers the right to unilaterally terminate the employment contract in case of forced labor (Article 37)

1 http://www.molisa.gov.vn/vi/Pages/chitiettin.aspx?IDNews=26202.

2 ILO, ‘Degrading gender discrimination in recruitment and the working environment in aim with businesses succeed’(Hanoi, March 5th, 2015) <http://www.ilo.org/hanoi/Informationresources/Publicinformation/Pressreleases/ WCMS_348643/lang vi/index.htm> accessed September 9th, 2018.

3 ILO, Navigos Search, ‘Gender equality in recruitment and promotion in Vietnam’ (Hanoi, March 2015).

Despite considerable achievements in addressing human trafficking in order to eliminate forced labor,1 human trafficking is on the rise and is getting more and more serious In the period 2011

- 2015, competent authorities discovered over 2,200 human trafficking cases, arrested over 3,300 offenders; organized rescue missions, and saved nearly 4.500 victims of human trafficking On average, Vietnam has approximately 500 human trafficking cases with over 1,000 victims every year According to the statistics provided by the Government’s Steering Committee on Preventing and Combating Criminals, only in the first six months of 2016, there were 174 human trafficking cases with 232 offenders and 351 victims2 The majority of these human trafficking cases related to sexual exploitation for commercial reasons Currently there have not been any forced labor cases being prosecuted criminally However, according to Ms Marja Paavilainen, Chief Technical Adviser of ILO’s project in forced labor and human trafficking, it is not yet possible for criminal prosecution of forced labor cases in Vietnam Instead, criminal prosecution of other crimes is often resorted to, for example, obtaining property by fraud, illegally holding a person in detention or custody, trafficking

of women and children3

Regarding forced labor, prison labor in Vietnam today is also a controversial issue due to non-conformance with ILO’s standards Accordingly, Point c paragraph 2 Article 2 of the Convention No

29 stipulates that although work or a service done by a prisoner as a consequence of a court conviction

is considered an allowed exception of forced labor, it is only allowed when the said work or service

is carried out under the supervision and control of a public authority (prison) However, in Vietnam, there are recently cases where prisons signed contracts with private companies or facilities to bring work into prisons for prisoners to do (under the supervision and control of the prisons) or where prisons sent prisoners to companies, private facilities to work (under the supervision and control

of prisons, companies, and private facilities) Thus, prisoner labor in the second case could be seen

as a violation of ILO’s standards Meanwhile, the 2010 Law on Execution of Criminal Judgments currently does not have any provisions stipulating that the use of prisoner labor at private facilities

is illegal This issue is even more serious concerning provisions related to reformatory schools, detoxification facilities coercing students and patients to work since it is considered as an exceptional case of forced labor by administrative agencies not belonged to the judicial branch This issue is also

mentioned by ILO’s Committee of Experts on the Application of Conventions and Recommendations

(CEACR) in its General Observation report, adopted in 2018, published at the 108th session (2019) of the International Labor Conference (ILC)4 Vietnam also needs to consider amending labor provisions

to conform to international standards

- In terms of child labor, the 2012 Labor Code prohibits the use of workers under 15 years old

and stipulates that the working hours for workers from the age of 15 to under 18 must not exceed 8 per day and 40 per week Employers are only allowed to use workers under 15 years old in certain jobs according to the list promulgated by Circular no 11/2013/TT-BLĐTBXH of the Ministry of

1 Nguyen Tien Dung, ‘Vietnam’s labor law on forced labor, actual situation and some recommendations’ (Master, Hanoi Law University 2015).

2 http://www.sggp.org.vn/phongsudieutra/2016/7/428803/.

3 Duy Quoc, ‘It is difficult to judge the forced labor’ Nguoi Lao Dong (Ho Chi Minh city, September 26th, 2015) <http:// nld.com.vn/cong-doan/kho-xu-toi-cuong-buc-lao-dong-20150926213628152.htm> accessed October 16th 2018.

4 ILO, ‘Comments adopted by the CEACR: Viet Nam’ <https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:13 202:0::NO::P13202_COUNTRY_ID:103004> accessed May 9th, 2019.

Labor, Invalids and Social Affairs, and the working hours must not exceed 4 per day and 20 per week; working at night or overtime are not allowed Furthermore, when using workers under 15 years of age, employers must sign a written employment contract with their legal representative and must have the consent from the persons under 15 years of age; employers must arrange the working time so that

it will not interfere with the child’s school schedule; must guarantee safe and sanitary, age-friendly working conditions for workers

In general, Vietnam’s laws and policies related to child labor are relatively adequate and conform

to international labor standards Nevertheless, in some working fields and in the family economic sector, especially in rural areas, child labor is still quite common According to a report based on the statistics acquired from a survey of the Government of Vietnam and ILO, there are approximately

6049 child workers in the garment and textile industry, mostly in the manufacturing and finishing process Approximately 42.9% (2595 child workers) are under 15 years old - the minimum labor age

in Vietnam1 One of the main causes that lead to inadequacies in the implementation is inadequacies

in the law, including provisions which do not comply with international labor standards such as: the definition of “child” The provisions of the Labor Code have not yet clearly expressed the prohibition

of three out of four worst forms of child labor as defined at points a, b, c of Article 3 of the Convention

No 182 as follows: slavery or practices similar to slavery (forced labor, debt bondage, serfdom, sale and trafficking of children); sexual abuse (prostitution, pornography); illicit activities (production and trafficking of drugs) As for the forth form, work which is likely to harm the health, safety or morals

of children, the current law only provides a list of banned work and has not determined the factors for identification, which creates a loophole in the law where legal provisions, especially lists of work, could not keep up with the newly emerging working conditions Moreover, the scope of regulation

of the current 2012 Labor Code only covers labor relations established by employment contracts between workers and employers, and excludes the non-formal sector - where most of the violations

of child labor occur, thus creating a tremendous gap in protecting the rights of children workers One report shows that, among 1.75 million of children in the child labor group, the majority, which is nearly 1.18 million child workers (accounting for 67%), work in the agriculture sector; 0.267 million work in the industrial sector (accounting for 15.8%) and approximately 0.293 million work in the service sector (accounting for 16.6%) In rural areas, there is a very high rate of children workers in the agriculture sector with about 74% whereas in urban areas, there are equal rates of child labor in all

3 economic sectors with 32.5% working in the industrial - construction sector, 38.3% in the service sector and the rest 28.5% in the agriculture sector2

- In terms of measures to guarantee the implementation of labor rights, apart from recognizing

labor rights, the 2013 Constitution also affirms State’s duty in protecting the legal rights and interests

of workers (paragraph 2 Article 57), which means having measures to guarantee the implementation

of worker’s rights These measures are stipulated in specialized laws To institutionalize the Constitution, The Labor Code and related laws have acknowledged the duties of organizations, individuals, employers as well as workers in guaranteeing the implementation of workers’ labor

1 Investment and trade promotion center, ‘The United States added Vietnam textile and footwear industry to its official list of products made with forced and child labor’ (October 4th, 2016) <http://itpc.hochiminhcity.gov.vn/exporters/news/ tintrongnuoc/2016-01-25.194728/thang_10/2016-10-04.556051/view?b_start:int=40> accessed 12 October 2018.

2 Ministry of Labor, Invalids and Social Affairs of Vietnam, ‘Draft report on measures to expand the coverage of social insurances’ (Hanoi, 2017).