The Code not only protected the right of workers to form and join unions, but it required a union to be formed within 1 Historical development of labour regulations are divided into f[r]
Trang 1LABOUR RELATIONS IN VIETNAMESE LAW:
HISTORICAL DEVELOPMENT AND PERSPECTIVES
Nguyen Hoang Ha
PhD Candidate, School of Law, Vietnam National University, Hanoi
Abstract
Vietnam has undergone many changes leading to the acceptance of a relatively pluralistic perspective on labour management relationships, a typical inspiration for a market economy in transition However, the country is still facing the increasing incidence of the so-called “wildcat” strikes and other labour unrest, which are of considerable concern to the Government and investors Various efforts are being made to address the causes of strikes, but not much progress
is being made Vietnam has been actively revising the Labour Code, the fifth time being in 1994, but it still faces a number of fundamental questions:
(a) What does social justice mean to a fast-growing and developing economy like Vietnam? (b) How could it learn from the past?
(c) What is the vital key to enable the country to make a solid legal framework for progressive, stable and harmonious labour relations?
As one of the quickly growing economies in Asia, Vietnam is facing fierce competition from other countries for export markets and foreign investment; because of this it could risk eroding work conditions, but paradoxically, liberalization and integration also exposed the export-oriented sectors to more scrutiny by overseas consumers and to pressures for better labour standards Workers and enterprises increasingly lie outside strict purview of the Labour Code and beyond the reach of labour administration
This paper examines the historical development of labour law, draws lessons from that experience and helps plan for future development perspectives of labour relations in the country The author looks closely into the current situation and discusses how Vietnamese constituents envision the development of labour relations in the next twenty-five years As argued by the author, there are still many unreasonable issues in labour relations in Vietnam, which relate to the rights and obligations of workers and employers and their representative organizations, wages, working conditions, collective bargaining and labour dispute resolution, etc The author believes that further reform of the Labour Code is vital for Vietnam to improve its competitiveness in the context
of deepening integration with the global economy for the best interests of all stakeholders.
Key words: Vietnam, labour relations, labour rights, labour obligation, Labour Code
The concept of social justice always lies at the heart of all of the endeavours of the Communist Party, the State and all key Vietnamese actors The Socialist Republic of Vietnam is now at a crossroads of critical, decisive reforms not only on socioeconomic development but also in labour
Trang 2This paper aims at analysing a historical evolution of the Labour Code in general and labour relations
in particular over the years, especially in the context of the National Assembly having recently endorsed the ratification of the ILO Convention No 981 and discussing a newly proposed draft on Labour Code The paper focuses on analysing the labour relations in Vietnamese law and drawing lessons learnt from experience as well as envisioning future perspectives
1 Vietnam’s cause to fight for social justice through the evolution of regulation of labour relations 2 in Vietnamese law:
From the early days of the independent and young Democratic Republic of Vietnam (DRV), one of the remarkable milestones on labour regulations was Decree No 29/SL on the public job transaction3, dated February 13, 1947 and signed by the State President Mr Ho Chi Minh It regulated
“the transactions on paid jobs between Vietnamese employers or foreign employers and Vietnamese workers in the industries, mines, trade points and the freelance workers, except for workers in farms, the agricultural sector, and officials of the Government.” It became the very first Labour Code of DRV, and covered almost all important regulations on working relationships and self-employment, collective agreements, labour hiring, wages, allowances, labour discipline, occupational safety and health, trade unions, rights to association and strikes, sanctions are among others The Decree represented a progressive and modern thought and remains a historically valuable source of inspiration for the legal developments in the country even today
The State President of the DRV also promulgated trade union Law No 108-SL/L10 on 5 November 19574, which regulated clearly the role of the trade union to represent and protect the fundamental rights of the working class5, in which trade unions take part in managing the factory and signing collective contracts with the director of the factory6
1 The Convention on the Right to Organize and Collective Bargaining, 1949 (No 98) is one of the eight fundamental Conventions of the ILO It aims at promoting genuine collective bargaining, enhancing better protection against discrimination by employers for workers and union officials and protecting against interference by the State, employers and other unions At a plenary session on 14 June 2019, Vietnamese National Assembly approved its ratification with
a very high rate (93.39%)
2 ILO defines “labour relations” as “collective relations between employers and employees, between employers and trade unions, or between employers, unions and the government” See ILO Thesaurus: <http://ilo.multites.net/default asp> accessed 1 st October 2019
3 See full text of the Decree No 29/SL in Vietnamese <https://thuvienphapluat.vn/van-ban/lao-dong-tien-luong/Sac- lenh-29-SL-quy-dinh-giao-dich-lam-cong-chu-nhan-nguoi-Viet-nam-ngoai-quoc-cong-nhan-xuong-ky-nghe-ham-mo-thuong-diem-nghe-tu-do-36185.aspx> accessed 09.09.2019.
4 See the Trade Union Law No 108-SL/L10 (1957) in Vietnamese: <https://thuvienphapluat.vn/van-ban/Lao-dong-Tien-luong/Luat-Cong-doan-1957-108-SL-L-10-36821.aspx> accessed 05.10.2019.
5 Article 5 of the trade union law (1957): “Vietnam General Confederation of Labour, trade union federations, sectoral trade unions and grassroots trade unions have the right to represent workers and public employees at meetings of the same level government agencies to discuss the development and implementation of the State plan, and policies related
to the duties and interests of officials and employees”.
6 Ibid, Article 6
Trang 3During the centralized planning periods , labour relations did exist in state-owned enterprises (SOEs), in which the State led and directly intervened in employees’ benefits as the superior body
of the enterprise The State-enterprise-worker relationship was a vertical one Standards on working conditions were not the results of negotiation between the enterprise and the workers In contrast, the State stipulated and applied uniformly specific standards on wage, working hours, insurance, occupational safety and health and labour disciplinary regulations The enterprise’s and workers’ mission were to strictly comply with and implement the standards Accordingly, the State aspired to ensure social equity and harmony of interests between the State and employees Workers in SOEs were, in fact, seen as “comrades” and were able to participate in the enterprises’ important decisions through workers’ congresses
In 1986, the Government introduced a new economic reform programme (known as Doi Moi –
‘renovation policy’) This programme3 aimed at transforming the economy into a “socialist-oriented market economy,” and included a liberalization of the economic system, breaking the monopoly of SOEs and cooperative-owned enterprises over economic life, and instituting a legal regime in which the economic system was able to respond to market forces
The reformist Doi Moi strategy led to the acceptance of a relatively more pluralistic perspective
of labour management relationships It resulted, inter alia, in the promulgation of a new Charter on the role of unions (1990), and a Labour Code (1994) which delineated employee rights and minimum working conditions, and freed unions to engage in bargaining and negotiations with management
on such issues Since then, there has been a proliferation of trade unions and an associated growth
in employee action As the economy has developed, there has been a shift in ideology associated with the emergence of a new class of workers in the community espousing capitalist market ideas However, their influence has been relatively limited, as the Government has sought to protect the traditional (or socialist) ideology, because they have no coherent organizational base
Those SOEs were still able to maintain their position of monopoly in many areas In addition to engaging in many other aspects of the Vietnamese economy and society, foreign-invested enterprises (FIEs) have introduced new types of labour management relationships to Vietnam There is now far greater diversity in the employment market
In 1994, the Labour Code formalized the role of trade unions in Vietnam The Code not only protected the right of workers to form and join unions, but it required a union to be formed within
1 Historical development of labour regulations are divided into four major following periods: (a) early years of the Republic (1945-1954): efforts to set national standards and establish a functioning labour market by the DRV; (b) period of 1955-1975: war time labour regulations with the State played a dominant role in almost all aspects of the labour market (sole employer and labour policy regulator) and (c) period of 1976 -1985: post-war difficult time and the State took strict control of almost every aspect of life, including employment relationship; (d) period of 1986 till now: opening up for regional (ASEAN) and international (WTO and FTAs) integration, market economy principles introduced into law-making process, including the Labour Code in 1994, then its revisions till the most recent Labour Code of 2012
2 In essence, it was the relations between business leadership and employees in the enterprise –who recruited as regular members working permanently and paid based on seniority.
3 See full text of the Communist Party of Vietnam (CPV) resolution at the CPV 6 th Congress in Vietnamese: http:// tulieuvankien.dangcongsan.vn/ban-chap-hanh-trung-uong-dang/dai-hoi-dang/lan-thu-vi/nghi-quyet-dai-hoi-dai-bieu-toan-quoc-lan-thu-vi-cua-dang-1493, accessed on 09.09.2019.
Trang 4six months of its introduction in every enterprise regardless of its own type, and any business that had more than 10 workers had to register a ‘labour regulation’ with a local labour office In the past,
the majority of union members were from SOEs, but since Doi Moi their membership has expanded
substantially into the new sectors One of most important legal implications was that it provided
a system for the resolution of individual and collective labour disputes through conciliation and arbitration On paper, it gave employees the right to strike at the very least in the case of a collective labour dispute, provided the trade union made the strike decision and it was endorsed by the majority
of employees (Collins 2009b)
The role of unions in Vietnam has thus shifted: it is more clearly identified as working in the interests of the workers, at least on paper The main task was the settling of workplace agreements Vietnamese trade unions can, in principle, join international trade union organizations.1 It was also the Government’s decision to allow different trade union activities for different sectors of the economy, but still base said activities in the same trade union law These inconsistencies have caused many problems in practice Non-SOEs firms such as FIEs or domestic private firms have been faced with
an absence of guidelines for their practices, but they cannot apply the current trade union practice of SOEs as it does not fit The mismatch of a unitary trade union approach and the reality of a pluralistic market economy has provided the greatest impetus for labour unrest2 in Vietnam, which in turn has led to the current series of worker actions, none of which were organized and led by trade unions The Government actively introduced the market economy principles during this period of reforms,
in which the private sector started to become more recognized; individual business households and few small workshops emerged Customarily, individuals owned these workshops and hired a few workers, who were usually friends or relatives The employer-employee relationship was not clear and regulated by other social relations or co-ownership relations due to capital contribution Therefore,
in this period, there emerged virtually no labour disputes or legal issues on labour relations The employer-employee relationship was established and self-adjusted in a flexible manner similar to normal civil relations The objectives of open economic development forced Vietnam to renovate its thinking on labour relations as well as the role of the State and the law in labour relations
Albeit relatively elementary in content, the Ordinance on Labour Contract (1990)3 proved the acknowledgement of the labour market and was the first legal framework for the relationship between the employer and employee4
The Ordinance contained no provisions in collective bargaining or collective bargaining agreements, but one provision on the signing of labour contracts between an employer and a group
1 See more Collins and Zhu (2003) Vietnam’s labour policies reform.
2 See VGCL statistics (2019): there were reported 6,955 wildcat strikes during 1995-2018, of which 4,698 strikes took place at the FDIs (67.55%) and 2,138 strikes at private enterprises (30.74%), while only 119 strikes happened at the State own enterprises (1.71%)
3 Source: Website of the Government of Vietnam, <http://vanban.chinhphu.vn/portal/page/portal/chinhphu/ hethongvanban?class_id=1&_page=10&mode=detail&document_id=1250> assessed 06.10.2019.
4 The Ordinance defined: “A labour contract is an agreement between the worker and labour user and hirer (hereinafter referred to as the employer), on the paid work that both parties are committed to each other with respect to labour usage standards and labour standards, on the rights and obligations of each party in the labour relation”; “The labour contract is concluded based on the principles of freedom, voluntarism, equality, not against the law and collective bargaining agreement at the workplaces where the agreement is signed.”
Trang 5of workers: “The labour contract may also be signed between the employer and a worker authorized
to represent a group of workers In this case, the labour contract shall be treated as if signed with
individual workers” In Chapter IV, which governed labour dispute settlement and violation handling,1
the Ordinance stipulated that: “Labour dispute settlement is first conducted by direct negotiations
between both parties in the spirit of conciliation and respect for each other’s interest”
This Ordinance created a solid legal framework for harmonious and stable labour relations in
the early 1990s, and despite the fact that the transition to the market economy was already initiated
in 1986, it was in 1994 that a new Labour Code was promulgated to replace the Ordinance on labour
contract (1990) After that, the Labour Code was then amended four times in 2002, 2006, 2007 and
2012 The current Labour Code (2012) is considered the fundamental transformation that sets the
premise for resolving issues related to the rights and interests of the workers’ collective through bipartite mechanisms in the workplace
The Labour Code (1994) opened a completely new period with respect to legal basis for labour
relations in the market economy2 It also determined the basic principles of labour relations in a market
economy3 It was actually a meaningful breakthrough and a major success thanks to the creation of a
basic legal framework for labour relations given that Vietnam has not had considerable experience in
the development of the market economy
The Labour Code (1994) contained details of the labour contract and collective labour bargaining,
but did not specify processes and procedures for dialogue as well as collective labour bargaining It
established a thorough legal framework for individual labour relations, but did not create a favourable
legal framework for collective labour relations mechanisms, especially with respect to the dialogue,
negotiation and resolution of collective labour disputes
In general, the Labour Code did not establish an effective legal framework to guide and regulate
labour relations between the workers’ collective and employer4 Provisions on individual interaction
mechanisms accounted for a larger proportion than interaction mechanisms concerning the labour
collective and employer The Labour Code established a clear and highly effective legal framework
for individual labour relations based on the labour contract The labour contract was an essential basis
for the establishment of the rights of employees5 and is considered a basis for the establishment of
labour relations6 The employee’s rights in the labour relations were only recognized and protected
upon entering into a labour contract7 However, the Labour Code made a limited contribution to the
1 The Ordinance on Labour Contract (1990) contained five chapters, Chapter I was general provisions and chapter 5 was
the final provision.
2 Article 1 of the Labour Code stipulated that: “The Labour Code regulates labour relations between workers and the
employer and social relations directly related to labour relations.”
3 Article 9, Labour Code 1994: “The labour relations between the employees and the employer are established and
effected through negotiations and agreement on the principles of voluntariness, equality, cooperation, mutual respect
for each other’s legitimate rights and interests and full implementation of the commitments.”
4 See more in the MOLISA report on labour relations in Vietnam, 2016.
5 The collective bargaining agreement hardly promoted its actual role in establishing rights of employee.
6 Ibid, Article 6 defined an employee as: “attained at least 15 years of age, have the capability to work and must work
according to a labour contract” and an employer was defined as: “a business, an office, an organization or an individual
that hires, utilizes labour and pays for that labour”
7 The Labour Code stipulated: “The contents of the labour contract must include the following elements: a description
Trang 6content, form and implementation of the labour contract and did not refer to the procedure and order
of information exchange, negotiation between the employer and employee prior to signing the labour contract
The promulgation of a series of specialized laws1 has been a strategically important step forward
in perfecting the Labour Code system by establishing several chapters of the Labour Law as specialized laws and expanding the broad scope of protection for those who have employment relationships2 The 2012 Labour Code further affirmed the workers’ right to choose jobs and workplaces freely3,
as well as their right to negotiate employment contracts with employers on matters related to their interests Employers who want to employ long-term workers should have appropriate remuneration policies that are highly competitive The Code regulates labour sub-leasing, which is an emerging issue, to adjust and reduce labour relations stress during periods when factories and enterprises face
a large labour shortage
National labour standards be improved to make them more compliant with the international labour standards in the fields of determining minimum wage, further standardizing working and rest time; determining standards on occupational safety and health; regulating social insurance, unemployment insurance These provisions serve as a good foundation for workers and employers to negotiate, agree
on and create harmonious and stable labour relations at their workplace
Another major achievement of the Labour Code 2012 addressed the issue of dialogue at the workplace; collective bargaining when a party requested it became a mandatory issue Collective bargaining at the enterprise level and sectoral level expanded the scope and level of wage negotiations, including collective bargaining by the multiple enterprises Bottom-up unionizing pilots brought in promising and significant outcomes in many enterprises.4
The 2019 Labour Code Drafting Committee on behalf of the Government is in the process
of proposing amendments to the 2012 Labour Code The draft code is expected to establish better foundations of Vietnam’s labour law system, regulating a broad field of extensive labour relations (both individually and collectively), affecting all economic sectors, enterprises, organizations, establishments and mostly salaried workers as well as informal economy workers5 At the time of writing the article, the Social Affairs Committee of the National Assembly is reviewing and appraising
of the duties to be performed the working time, the break time, the salary, the place of work, the duration of the contract, the conditions on labour safety and labour sanitation, along with the social insurance for the employee.”
1 Those laws include the 2013 Employment Law, the 2014 Law on Social Insurance, the 2015 Law on Occupational Safety and Health.
2 Source: An interview with a senior official of the Department of Legal Affairs of MOLISA (September 2019)
3 The right to freely choose jobs and workplace is a key human right defined by the 2013 Constitution.
4 See UN DAO Results Report 2018, page 36: “Results of the multi-employer trade union pilots were used by VGCL
to develop a strategy for organizing and recruiting new trade union members in small and micro enterprises, including
two million union members and unionizing all enterprises employing more than 25 workers and a greater proportion
of those with more than 10 workers by 2023”.
5 Informal economy workers are an area of heated debates over reforms of draft Labour Code 2019 (fifth revision) concerning a key question of whether the revised Labour Code should extend its protection coverage of that target vulnerable workers or not GSO statistics estimated roughly 18 million workers working in the informal economy
Trang 7the draft code, which is setting more legal standards for labour market actors and establishing critical
legal frameworks for sound labour relations The government has gradually revised the regulatory
framework to promote collective bargaining, facilitate the settlement of labour conflicts at the
workplace through negotiation, and enhance social dialogue and tripartism2 at the higher levels
2 Key lessons from the historical development of labour relations:
2.1 Vietnamese policy and lawmakers should continue working towards further simplification
of labour regulations to resolve workplace disputes and enhance sound social dialogues through facilitating labour-management councils:
Vietnam recognized the right to strike3 in the Labour Code in 19944, but there was no definition
of a strike until the code revision in 2006 and strikes could result from both rights-based and
interests-based disputes To be legal, however, a strike had to meet several conditions During 1995-2018, most
of the labour disputes and industrial actions5 took place at the foreign invested enterprises (67.55%)
and a multi-sector task force led by a chairperson of the local People’s Committees dealt with them
In reality, instead of being the last resort, a strike is, in fact, used as the first weapon for workers to
demand their rights and interests before any bargaining process takes place6
The authorities have made efforts to amend Chapter XIV on resolution of labour disputes several
times since then – notably the amendment of the 2006 Labour Code reforms7 – but reality showed that
those reforms had little impact on the situation of wildcat strikes All failed to address the challenges
resulting from complicated procedures to register legal strikes, as well as the weak representation of
grassroots unions, which was evidenced by the fact that all industrial actions by workers were still
“wildcat” strikes In a broader sense, wildcat strikes are interpreted as a symptom of the problems of
the malfunctioning labour relations system in Vietnam
A good labour relations system operating in an emerging market economy like Vietnam should
be based on trade unions, which are truly representative organizations of workers:
1 According to the Government, the final voting by the National Assembly deputies will take place on 20 th November
2019 after a series of both plenary and focused group discussions of the draft amendments of the Labour Code
2 Vietnam has a National Wage Council (an advisory body for the Prime Minister) that has tripartite representatives
as members of the Council, who advise the Government on regional minimum wage setting on a yearly basis There
is another National Labour Relations Committee, which has broader advisory functions on labour relations related
policies, but the Committee does not play an active role in reality
3 The right to strike is fully recognized by the ILO supervisory body (the Committee of Experts on Application of
Conventions and Recommendations, CEACR) as an important human right
4 Strikes arise from a collective labour dispute take place within the scope of an enterprise (article 176) and require
strikes be organized by trade unions (article 173.2) The 1994 Labour Code had procedural restrictions on strike
ballots, prior notice and compulsory use of statutory conciliation and arbitration (articles 173 and 176)
5 See VGCL statistics (2019), rights-based disputes accounted for 42.53% (621) out of the total number of 1,460 labour
disputes during 2014-2018, while interests-based disputes occupied only 20.89% (305), others included mixed rights
and interests-based ones with 506 (or 34.66%)
6 See International Encyclopaedia of Law, Vietnam (2016).
7 Three important reforms of the 2006 amendments include: (a) abolished bipartite conciliatory mechanism within
enterprises providing only for district conciliators; (b) prohibited workers from striking in case of disputes over
interests and (c) not allowed workers to elect strike organizers in non-unionized enterprises, which must be organized
by upper-level unions only
Trang 8Trade unions in Vietnam are organized by administrative areas (at the central, provincial, district and workplace levels), by the industrial sector and state corporations At the central level, Vietnam General Confederation of Labour (VGCL) has played an active role as a strong social and political organization, which makes significant contributions to the law and policymaking process2 and is becoming an active representative of workers in front of the National Wage Council3 as well as the National Labour Relations Committee4 However, the trade unions at lower levels, especially enterprise-based trade union face challenges5; VGCL and its affiliated unions should prohibit enterprise executives and human resource managers from being chairpersons of an enterprise union.6 One of the realities is that wildcat strikes take place more in unionized enterprises than non-union enterprises; this shows weaknesses of the grassroots unions’ representational function and also inadequate protection
of trade union leaders and members against employers’ unfair labour practices
Workers’ representative organizations (WROs) at the enterprise level is one of “revolutionary” proposals in the 2019 draft Labour Code WROs will have to register with the state management agency and will operate independently from the State-subsidized VGCL That is an important step forward towards implementing the Vietnam’s strong political commitment it made after the country became a signatory to the Comprehensive and Progressive Trans-Pacific Partnership Agreement7 and the EU Vietnam Free Trade Agreement8 In other developing countries, there are many workers’ representative organizations operating independently from one another in a variety of industries In Vietnam, this is the very first time such a major breakthrough was proposed since the 1994 Labour Code However, it is important that the newly proposed institution is provided with favourable conditions to work as a defender of the rights and interests of workers, especially those vulnerable workers in labour relations at enterprises That breakthrough together with the recent ratification of the ILO Convention No 98 have helped make the country’s Labour Code more compatible with the ILO Convention on Freedom of Association and Protection of the Right to Organize, 1948 (No 87)
1 Source: VGCL (2018), total members of trade unions reached over 10 million with only 2.6 million were from SOEs, 4.3 million from non-state business, and 0.6 million from the foreign business sector.
2 Source: an interview with a senior official of the Department of Policy and Legal Affairs of VGCL
3 The National Wage Council was established under the Prime Minister’s decision No 1055 / QD-TTg dated July
3, 2013 It is composed of a Minister of MOLISA as the Chairman of the Council, whose members are Vice-Presidents representing the employers (VCCI and VCA) and the workers (VGCL).
4 The Committee was set up under the Prime Minister’s decision No 68/2007/QD-TTg dated on 17 May 2007 and it has
an advisory function for the Prime Minister concerning mechanisms, policies and solutions to establish sound labour relations.
5 Article 10 of the Constitution 2013 defines VGCL as a social and political mass organization, but trade unions are doing many other works outside of the protection of rights and interests of the workers A recent survey results showed that trade union staff spend most of their time on administrative activities and welfare affairs, while protection of workers’ rights accounts for only about one-sixth of total working time.
6 This is an alarming and prevailing reality at enterprises, in which human resource managers and/or enterprise executives have continued playing “dual” roles as chairpersons of the trade union committee as well
7 See more Comprehensive and Progressive Trans-Pacific Partnership Agreement (CP-TPP): <https://en.wikipedia.org/ wiki/Comprehensive_and_Progressive_Agreement_for_Trans-Pacific_Partnership> accessed 25 th October 2019
8 Vietnam has signed a landmark free trade agreement with the European Union on 30 th June 2019 in Hanoi, which still needs approval from the European Parliament in the coming months before it becomes fully operationalized Full text of the EV-FTA is available at: <http://trade.ec.europa.eu/doclib/press/index.cfm?id=1437> accessed 26 th October
2019
Trang 92.3 The Labour Code has to be revised and modernized in full respect of the principles of freedom of association, which can then help make the labour relations system work best for Vietnam:
There is a generally agreed view that the Labour Code is more inclined to offer full protection
of the rights of workers than their employers at the workplace level and there is practically no chapter on the employers’ representative organizations1 in the code2 Since Doi Moi, the Government
actively introduced market economy principles3 into all sectors, but there seems to be an unbalanced
approach to the labour relations system4 The golden “rule of games” in a market economy is that the
Government should have very limited interventions in the labour market and its political support is
only required when there is a failure in the market
As Vietnam is moving toward a labour relations system suited to a mature market economy,
where the interests of workers, employers and the State are properly represented in a true bargaining
process by independent unions5, there is an urgent need to redefine the roles of labour relations and
social partners in respect of the internationally recognized labour standards, especially those key principles of freedom of association
2.4 Strengthening the capacity of the institutions of labour conciliators and labour arbitrators
as well as the labour court system with a focus on building effective and professional labour disputes
prevention and resolution systems:
The role of labour conciliator6 has been gradually gaining importance If the 1994 Labour Code
stipulated that the conciliation institution was decided and managed by the district level, a labour
conciliator in the 2012 Labour Code was appointed, dismissed and managed at the provincial level
The district level is only responsible for specific conditions of each district to propose quantity and
basic criteria for selection and introduce to the province for decision This made the position of labour conciliator more advanced, creating the better conditions for improving the quality of labour
mediation The 2012 Labour Code stipulates that labour conciliators have the power to settle all labour
disputes, including both individual and collective labour disputes concerning both rights-based and
interests-based disputes However, the use of labour conciliators has not been effective in dealing
with labour disputes7
1 Source: an interview with representatives of the employers’ organizations (VCCI and its business associations) at a
recent National Employers’ Conference organized by VCCI in Hanoi.
2 There is an unbalanced approach to promote and protect the rights of employers since the first Labour Code 1994
until the current proposed draft Labour Code 2019 The full text of the current draft Labour Code available at the
Government website in Vietnamese: <http://chinhphu.vn/portal/page/portal/chinhphu/congdan/DuThaoVanBan?_
piref135_27935_135_27927_27927.mode=reply&_piref135_27935_135_27927_27927.id=2910> accessed 21 st
October 2019
3 A market economy functions under the laws of supply and demand It is characterized by private ownership, freedom
of choice, self-interest, optimized buying and selling platforms, competition, and limited government intervention.
4 See more interviews with the employers’ representative organizations
5 MPI and World Bank (2016), Vietnam 2035 toward Prosperity, Creativity, Equity and Democracy, Overview, p.54.
6 Institution of labour conciliators regulated in the Labour Code 2012, Decree No 46/2013 / ND-CP dated 10/05/2013
and Circular No 08/2013 / TT-BLDTBXH dated 10/6/2013 of the Ministry of Labour, Invalids and Social Affairs.
7 According to MOLISA’s 2012 Labour Code review report (2018) p.46: “there are over 1,000 labour conciliators
nationwide, but they could handle very few cases of labour disputes In fact, in provinces and cities had an average of
less than 10 cases per year; even some provinces and cities no case of dispute was assigned to the labour conciliator”
Trang 10Labour arbitration councils were established at provincial levels and members of those councils are decided by the Chairperson of the Provincial People’s Committee, its executive secretary comes from the Department of Labour, Invalids and Social Affairs work full-time towards the selection, appointment, evaluation of operational results to assure funding and other conditions for the council operations In practice, the regulations of the labour arbitration council are still limited There is not much difference between the role of labour arbitrators and that of labour conciliators in mediation, and in practice the former are not effective in resolving labour disputes 1
The Judge Council of the Supreme People’s Court has not yet promulgated a resolution guiding the adjudication of labour disputes, which is a major constraint Judges review cases of labour disputes largely based on their own judgements Another challenge is that judges do not like trials related to labour dispute and they are not actively studying and improving their own knowledge and skills to solve labour problems2 In fact, the court system handled 2,406 labour cases in 2018, the majority of which were individual labour cases; there were no labour law cases dealing with collective labour disputes and strikes Due to the prolonged procedures involved in handling the cases, the actual number of cases brought to court was quite small, mostly individual labour disputes There was a high proportion of cases brought before a court of first instance for rectification and many of them extended for retrials
Institutional and capacity building for labour conciliators, arbitrators and judges becomes increasingly important as Vietnam has joined a new generation of free trade agreements such as CP-TPP and EV-FTA and labour chapters are key in those agreements All those who are working with the judicial system should introduce it to international labour standards and best practices on labour dispute settlement They should be ready for any possible dispute that likely will happen in the near future and should have been capacitated to deal with them in a professional and effective manner.3
3 Future perspectives for developing a progressive, stable and harmonious labour relations system in Vietnam by 2045
The Government of Vietnam expressed aspirations4 to become a successful upper middle-income country by 2030 and a high-income country by 20455 These aspirations have the following related important dimensions6:
a) A prosperous society that will be in the upper reaches of a middle-income status: the market
economy is led by the private sector and is competitive and intensively integrated with the global economy
1 Ibid, Labour Code review report revealed that: “Despite the fact that the labour arbitration councils were established in
60 provinces and cities, there has never been a case in which the parties to the labour dispute proposed the arbitration council to deal with”.
2 Source: a case study of Ho Chi Minh City Court (2018) in support of the 2012 Labour Code review report
3 ILO/Training Centre has offered a relevant course on building effective labour disputes prevention and resolution systems Further details available at: <https://www.itcilo.org/courses/building-effective-labour-disputes-prevention-and-resolution-systems> accessed 28 th October 2019
4 Ministry of Planning and Investment and World Bank Group, Vietnam 2035 Toward Prosperity, Creativity, Equity, and Democracy (first published 2016), p.14.
5 Vietnam marks 100 th anniversary by 2045 since its declaration of independence in 1945, it is quite a significant and historic milestone of the country
6 Ibid, p.14