|
NATIONAL ASSEMBLY |
|
|
|
The National Assembly promulgates
the Labor Code.
Chapter I
GENERAL PROVISIONS
Article 1. Scope of regulation
The
Labor Code specifies the labor standards; the rights, obligations and
responsibilities of the employees, the employers, the labor representative
organizations, the employer representative organizations in the labor relation
and other relations directly related to the labor relation, the State
management of labor.
Article 2. Subjects of
application
1. The Vietnamese
employees, apprentices, interns and other employees specified in this Code.
2.
The employers.
3.
Foreign employees working in
4.
Other individuals, agencies and organizations directly related to the labor
relation.
Article 3. Interpretation of terms
In
this Code, the following terms are construed as follows:
1.
Employees are people from 15 years old and above, capable of working, working
under labor contracts, receiving salaries and subject to the management of the
employers.
2.
The employers are enterprises, agencies, organizations, cooperatives,
households and individuals hiring, employing employees under labor contracts.
The individuals must be sufficiently capable of civil acts.
3.
The labor collectives are organized collectives of the employees working for
one employer or in one division under the organizational structure of the
employer.
4.
The internal labor representative organizations are the executive board of the
internal Union or the executive board of the direct superior Union if the
internal
5.
The employer representative organizations are organizations legally established
to represent and protect the lawful rights and interests of the employers in
the labor relation.
6.
Labor relation is the social relation occurring while hiring or employing,
paying.......
http://lawfirm.vn/?a=doc&id=2500
--
Chapter XI: EXCLUSIVE PROVISIONS FOR UNDER AGE
EMPLOYEE AND A NUMBER OF TYPES OF EMPLOYEE
Section 1. UNDERAGE EMPLOYEE
Article 161. Underage employee
The underage
employee is the employee under 18 years old
Article 162. Employment of underage employee
1. The employer
only employs the underage employee in the jobs appropriate with his health to
ensure the physical, intellectual development and personality development and
is responsible for paying attention and taking care of the underage employee in
terms of labor, salary, health and education in the labor process.
2. When employing
underage employee, the employer must make a separate monitoring book, recording
the full name, birth date, current job, the results of the periodical health
examination and produce it upon the requirement of the competent state agency.
Article 163. Principle to employ the underage
employee
1. Do not employ
the underage employee to perform heavy, hazardous and dangerous jobs or the
jobs negatively affecting his personality under the list issued by the Ministry
of Labour - Invalids and Social Affairs in coordination with the Ministry of
Health
2. The working
hours of the underage employee from full 15 years of age to under 18 years must
not exceed 08 hours in 01 days and 40 hours in 01 week
The working hours
of person under 15 years must not exceed 4 hours in 01 days and 20 hours in 01
week without working overtime and at night.
3. The person from
full15 years of age and under 18 years is entitled to work overtime and at
night in some occupations and jobs in accordance with the Ministry of Labour -
Invalids and Social Affairs.
4. Do not employ
the underage employee to produce and trade in alcohol, wine, beer, tobacco,
substances affecting mind and other drugs;
5. The employer
must provide opportunities for the underage employee and person under 15 years
old to take part in labor and cultural learning.
Article 164. Employing employee under 15 years old
1. The employer is
only entitled to employ the person from full 13 years and under 15 years to
perform light job under the list prescribed by the Ministry of Labour -
Invalids and Social Affairs.
2. When employing
the person from full 13 years and under 15 years, the employer must comply with
the following provisions:
a) Must sign the labor
contracts in writing with the legal representative and must be agreed by the
full 13 year and under 15 year old person;
b) To arrange the
working hours in order not to affect the class hour of the children;
c) To ensure the
working conditions, labor safety and hygiene appropriate with the age of the
underage employee;
3. Do not employ
the employee under age 13 except for some specific work regulated by the
Ministry of Labour - Invalids and Social Affairs.
When employing
people under age 13 to work, the employer must comply with the provisions of
Clause 2 of this Article.
Article 165. The work and workplace prohibiting
employment of underage employee
1. Prohibiting the
employment of underage employee to perform the following jobs:
a) Wearing,
carrying and lifting heavy objects beyond the physical condition of the
underage person;
b) Producing and
using or transporting the chemicals, gases, explosives;
c) Maitaining the
equipment and machinery;
d) Demolishing
constructional building;
dd) Cooking,
blowing, casting, rolling, stamping, welding metals;
e) Diving, offshore
fishing;
g) Other work
harming the health, safety or the ethics of the underage person.
2. Prohibiting the
underage person to work at the following places
a) Underwater, underground,
in caves and in the tunnel;
b) Constructional
site;
c) Slaughter
facility;
d) Casinos, bars,
discos, karaoke rooms, hotels, motels, saunas and massage rooms;
dd) Other workplace
harming the health, safety or the ethics of the underage person.
3. The Ministry of
Labour - Invalids and Social Affairs specifies the list at Point g, Clause 1
and Point d, Clause 2 of this Article.
Section 2.
ELDERLY EMPLOYEE
Article 166. Elderly employee
1. The elderly
employee is the person who continues working after age as prescribed in Article
187 of this Code.
2. The elderly
employee is entitled to shorten daily working hours or apply the regime of
shorter hour working.
3. The final year
before retirement, the employee is entitled to reduce the normal working hours
or apply the regime of shorter hour working.
Article 167. Employment of elderly employee
1. When required,
the employer may agree with healthy elder employee to prolong the term of labor
contract or sign the new labor contract under the provisions of Chapter III of
this Code.
2. Once retired, if
working under a new labor contract, in addition to the interests under pension
regime, the elderly employee still enjoys the interests agreed upon in labor
contracts.
3. Do not employ
the elderly employee to do the hard, hazardous and dangerous job adversely
affecting the health of the elderly employee, except for the special cases as
prescribed by the Government.
4. The employer is
responsible to pay attention to and take care of the health of the elderly
employee at the workplace.
Section 3. VIETNAMESE EMPLOYEE WORKING ABROAD, WORKING FOR FOREIGN
ORGANIZATION AND INDIVIDUAL IN
Article 168. Vietnamese employee
working abroad, working for foreign organization and individual in Vietnam,
foreign employee working in
1. The State
encourages the enterprises, agencies, organizations and individuals to seek and
expand the labor market to send Vietnamese to work abroad.
Vietnamese employee
working overseas must comply with the provisions of the law of
2. Vietnamese
citizens working in foreign enterprises in
Article 169. Conditions of employee being the
foreign citizen working in
1. The employee who
is the foreign citizen working in Vietnam must have the following conditions:
a) Having capacity
for civil acts in full;
b) Having
qualification, skills and health in accordance with the job requirements;
c) Not being the
criminal or prosecuted for criminal liability in accordance with the law of
Vietnam and foreign law;
d) Having working
permit granted by the Vietnamese competent state authorities, except for the
cases as prescribed in the Article 172 of this Code.
2. The employee who
is a foreign citizen working in Vietnam must comply with Vietnam's labor law,
international agreement in which Vietnam is a member contains different
provisions and protected by the law of Vietnam.
Article 170. Conditions for labor recruitment of
foreign citizen
1. The enterprises,
agencies, organizations, individuals and contractors in the country are only
entitled to recruit foreign citizen to work as manager, operating director,
specialist and technical employee while Vietnamese employee has not meet
the production and business demand.
2. The foreing
enterprises, agencies, organizations, individuals and contractors before
recruiting employees who are foreign citizens to work in the territory of
Vietnam must explain the demand for labor employment and be approved in writing
from the competent state agency.
Article 171. Work permit for the employee being
the foreign citizen to work in
1. The employee who
is a foreign citizen must present a work permit when carrying out the
procedures related to the exit, entry and present as required from the
competent state agency.
2. The foreign
citizen coming to work in
3. The employer who
employs foreign citizen without a work permit to work for him, shall be handled
as prescribed by law.
Article 172. Foreign citizen working in
1. As contributing
member, or owners of limited liability company.
2. As a member of
the Board of Directors of the Joint Stock Company
3. As a Head of
Representative Office, project of international organization, non-governmental
organizations in
4. Coming to
5. Coming to
Vietnam with a period of less than 03 months to handle the problem, technical
situation and complex technology arising that affect or threaten to affect the
production and business that the Vietnamese and foreign experts currently in
Vietnam can not be handled.
6. As a foreign
lawyer who has been licensed to practice law in
7. Under the
provisions of international agreement in which the Socialist Republic of
Vietnam is a member.
8. As students who
are studying and working in
9. Other cases as
prescribed by the Government
Article 173. Time limit of the work permit
The time limit of
the work permit is 02 maximally.
Article 174. Cases of expriration of work permit
1. Work permit has
expired
2. Termination of
labor contract
3. The content of
the labor contract is not consitent with that of the issued work permit.
4. Contract in the
area of economy, trade, finance, banking, insurance, technical science,
culture, sports, education and health has been expired or terminated.
5. There is a
written notice from the foreign countries on stopping sending foreign employees
to work in
6. The work permit
is revoked
7. Enterprises,
organizations and partners from
8. The employee is
a foreign citizen who is imprisoned, dead or declared dead or missing by the
court
Article 175. Grant, re-grant and revocation of
work permit
The Government has
specified the conditions for grant, re-grant and revocation of work permit for
employee as foreign citizen working in
Section 4. DISABLE EMPLOYEES
Article 176. State policies for disabled employee
1. The State shall
protect the right of work and self-employment of the disabled employee, having
the policies of encouragement and incentives to the employer to create job and
receive the disabled person to work as prescribed by the Law on disabled persons
2. The Government
has stipulated the policies for preferential loans from the national Fund for
the employer to employ disabled employee.
Article 177. Employing disabled employee
1. The employer
must ensure that the working conditions, labor tools, labor safety and hygiene
are in accordance with the disabled employee and regularly take care of their
health.
2. The employer
must gather the disabled employee upon making decisions on the issues related
to their interests.
Article 178. Prohibited acts upon employment of
disabled employee
1. Employing
disabled employee with the working capacity reduced from 51% or more to work
overtime or work at night.
2. Employing
disabled employee to do heavy, hazardous or dangerous work, or exposure to
toxic substances under the list issued by the Ministry of Labour - Invalids and
Social Affairs in coordination with the Ministry of Health.
Section 5. EMPLOYEE AS HOUSEMAID
Article 179. Employee as housemaid
1. Employee working
as housemaid is the employee regularly performs work in a household or many
household
The house work
including the housework, housekeeping, child care, patient care, elder care,
driving, gardening and other work but not related to the commercial activities.
2. The person
performing housework in the form of piecework is not subject to the application
of this Code.
Article 180. Labor contract for employee as a
housemaid
1. The employer
must sign a labor contract in writing with the housemaid.
2. The time limit
of the labor contract for the employee as a housemaid shall be agreed by both parties.
One party has the right to unilaterally terminate the labor contract at any
time but has to give a notice 15 days in advance.
3. Both parties
shall agree and specify in the labor contract on the form of salary payment,
term of payment, daily working hours, accommodation…
Article 181. Employer’s obligations
1. Fully
implementing all agreements already signed in the labor contract.
2. Paying the
housemaid an amount of social insurance, health insurance as prescribed by law
for employee to buy insurance herself.
3. Respecting the
honor and dignity of the housemaid
4. Arranging the
clean and hygienic accommodation for the housemaid if agreed.
5. Creating
opportunities for the housemaid to participate in education, vocational
training.
6. Paying fares
when the housemaid terminates work and get home except for the case the
housemaid terminates the labor contract ahead of time.
Article 182. Housemaid’s obligations
1. Fully executing
all agreements signed by both parties in the labor contract.
2. Having to
compensate as agreed or as prescribed by the regulations of law if causing
damage and loss of property of the employer.
3. Giving timely
notice to the employer about the possibility, the risk of accidents and threat
to the safety, health, life and property of employer’s family and themselves.
4. Denouncing to
the competent authorities if the employer has the acts of maltreatment, sexual
harassment, forced labor or other acts of law violation.
Article 183. Prohibited acts for the employer
1. Maltreatment,
sexual harassement, forced labor, force using for the employee as a housemaid.
2. Assigning the
housemaid the work not specified in the labor contract
3. Keeping the
housemaid’s personal papers
Section 6.
OTHER LABOUR ACTIVITIES
Article 184. Employee working in area of art and
sports
Person who performs
trade or work in the area of art and sports is entitled to apply a number of
appropriate regimes about the age of trade learning; about the labor contract
signing, working and break time; the salary, salary allowance, bonus, labor
safety and hygiene as prescribed by the Government.
Article 185. Employee receiving work to do at home
1. The employee can
agree with the employer to receive work to do at home regularly.
2. The employee who
works at home in the form of processing is not subject to the application of
this Code
Chapter XII: SOCIAL
INSURANCE
Article 186. Participation in social insurance
and health insurance
1. The employer and
the employee must participate in the mandatory social insurance and health
insurance and unemployment insurance and shall enjoy the regimes as prescribed
by the law on the social insurance and health insurance
Encouraging the
employer and employee to perform other forms of social insurance for the
employees.
2. During the leave
with the enjoyment of the social insurance, the employer shall not pay salary
to employees.
3. For employees
not subject to participation in mandatory social insurance, mandatory health
insurance, unemployment insurance, in addition to payment by the work, the
employer shall pay at the same time of the employee’s payment period an
addtional amount equivalent to the rate of mandatory social insurance premium
and mandatory health insurance, unemployment insurance and the amount of annual
leave as prescribed.
Article 187. Pension age
1. The employee
must satisfy the conditions of the social insurance payment in accordance with
the law on social insurance to enjoy the pension salary when female is full
60-year-old and female is full 55 years old.
2. The employee has
been reduced the working capacity; doing extremely hard, harmful or dangerous
work; doing hard, harmful or dangerous work in upland and remote areas, border
islands under the list stipulated by the Government shall be able to retire at
younger age than specified in paragraph 1 of this Article.
3. The
employee has high technical qualification, the employee working management task
and some other special cases can retire at higher age but not more than 05
years compared with the provisions of Clause 1 of this Article.
4. The Government
has stipulate the clause 2 and 3 of this Article.
Chapter XIII: TRADE
UNION
Article 188. Role of trade union organization in
labor relationship
1. The grassroots
trade union performing the representatives role, protecting the legitimate and
proper rights and interests of the trade union members, employee, participating,
negotiating, signing and supervising the implementation of collective labor
agreement, salary scale, payroll, labor norms and salary payment regulation,
bonus regulation, labor rule and democracy regulation at enterprises, agencies
and organizations, participating and supporting to settle labor dispute;
dialogue and cooperation with employers to build harmonious, harmonious and
progressive labor relations at the enterprises, agencies and organizations.
2. The direct
superior grassroots trade union shall support the grassroots trade union to
perform the functions and duties as prescribed in Clause 1 of this Article;
propagating and educating, raising the awareness about labor law, law on trade
unions for the employees
3. In areas where
there is no trade union organization established at the grassroots level, the
direct superior grassroots trade union shall fulfill the responsibilities as
specified in clause 1 of this Article.
4. The Trade union
organizations at all levels shall participate with the state management
agencies at same level and the representative organization of the employer to
exchange and settle the labor issues.
Article 189. Establishing and joining and
operating trade union at enterprises, agencies and organizations
1. The employee
working at the enterprises, agencies and organizations has the right to
establish, join and operate the trade union in accordance with the Law on Trade
unions.
2. The superior
grassroots trade union has the right to mobilize the employee to join the trade
union, establish the grassroots trade union at the enterprises, agencies and
organizations and has the right to require the employer and the state
management agency on labor to create conditions and support the establishment
of the grassroots trade union.
3. When the
grassroots trade union is established under the provisions of the Law on Trade
union, the employer must recognize and create favorable conditions for the
grassroots trade union to operate.
Article 190. Prohibited acts for the employer
related to the establishment, joining and operation of trade union
1. Hindering or
causing difficulties for the establishment, joining and operation of the trade
union of the employee.
2. Coercing the
employee to establish, join and operate the trade union.
3. Requiring the
employees not to participate in or leave the trade union organization.
4. Discriminating
on salry, working hours and the rights and obligations in the labor
relationship to prevent the establishment, joining and operation of trade union
of the employee.
Article 191. Rights of the grassroots trade union
official in the labor
relationship
1. Meet employers
for dialogue, exchange, negotiate on issues of labor and employers.
2. Coming to
workplace in order to meet the employee within the scope of liability they
represent
3. The places where
the grassroots trade union has not been established, the direct superior
grassroots trade union official is enttiled to execute the rights provided in
this Article.
Article 192. Responsibilities of employers to trade union
1. Creating
favorable conditions for the employee to establish, join and operate the trade
union.
2. Coordinating and
creating favorable conditions for the superior grassroots trade union to propagate,
mobilize and develop trade union member, establish grassroots trade union and
arrange specialized trade union official at the enterprises, agencies and
organizations.
3. Guaranteeing the
conditions for the grassroots trade union to operate under provisions in
Article 193 of this Code.
4. Coordinating
with the grassroots trade union to build and implement the democratic
regulations, the operation coordination regulation in conformity with the
functions and duties of each party.
5. Consulting with
the grassroots trade union executive committee before issuing the provisions
relating to the rights, obligations, regulations and policies for employees.
6. When the
employee as a non-specialized trade union official is in the trade union term
but his labor contract has expired, he shall be renewed the labor contracts
already signed to the end of his trade union term.
7. When the
employer unilaterally terminates the labor contract and perform another job,
disciplines and dismisses employee who is the non-specialized trade union
official, the employer must agree in writing with the grassroots trade union
executive committee or the direct superior grassroots trade union executive
committee.
In case failing to
reach an agreement, both parties must report to the competent agency and
organization. After 30 days from the date of giving notice to the local State
management agencies, the employer has the right to make a decision and to take
responsibility for his decisions.
In case of
disagreement with the decision of the employer, the grassroots trade union
executive committee and employee have the right to settle the labor disputes
according to the procedures and order prescribed by law.
Article 193.
Ensuring trade union operation condition at enterprises, agencies and
organizations
1. The grassroots
trade union is arranged the workplace and provided with information to ensure
the necessary conditions for trade union operation.
2. The
non-specialized trade union official is entitled to use the time in his working
hourse for trade union operation as prescribed by the Law on Trade union and
shall be paid by the employer.
3. The specialized
trade union official at enterprises, agencies and organizations paid by the
Trade union and is guaranteed by the employer the collective welfare as the
employees working at the enterprises, agencies and organizations as agreed in
the collective labor agreement or regulations of the employer.
Chapter XIV: SETTLEMENT
OF LABOR DISPUTES
Section 1.
GENERAL PROVISIONS ON SETTLEMENT OF LABOR DISPUTES
Article 194. Principles of settlement of labor
disputes
1. Respecting and
ensuring to let the parties negotiate and decide in the settlement of labor disputes
by themselves
2. Ensuring the
implementation of conciliation and arbitration on the basis of respect for the
rights and interests of both parties, respect for the common good of society
and not contrary to law.
3. Being public,
transparent, objective, timely, rapid and lawful.
4. Ensuring the
participation of representatives of the parties during the process of settlment
of labor disputes.
5. The settlement
of labor disputes must be directly negotiated by the two parties firstly to
settle the harmonious interests of the two parties, stabilize the production
and business and to ensure the social order and safety.
6. The settlement
of labor disputes by the agencies, organizations and individuals having the
competence to settle the labor disputes is conducted after either party files a
requesting application due to the refusal of negotiation by either party,
negotiation done but failed or successful negotiation but either party fails to
perform the agreement.
Article 195. Responsibilities of agencies,
organizations and individuals in settlement of labor disputes
1. The State
management agencies on labor shall be responsible for coordianting with the
trade union organization, the representative organization of the employer to
make guidance and support and assist the parties in the settleement of labor
disputes.
2. The Ministry of
Labour - Invalids and Social Affairs shall organize the training to improve the
professional capacity of the labor mediator, labor arbitrator in the settlement
of labor disputes.
3. The State
competent agency must actively and promptly settle the collective labor
disputes on the rights.
Article 196. Rights and obligations of both
parties in the settlement of labor disputes
1. In the
settlement of labor disputes, both paties have the following rights
a) Directly or
through the representatives to participate in the process of settlement;
b) Withdrawing
application or changing the requested content;
c) Requesting the
change of the person who settles the labor dispute if there is reason to
believe that such person is not impartial or objective.
2. In settlement of
labor disputes, both parties have the obligations:
a) Providing
adequate and timely documentation and evidence to prove their claims;
b) Executing the
agreements both parties have reached, the judgment or decision that has taken
the legal effect.
Article 197. Rights of agencies, organizations and individuals with the
comptence to settle labor disputes
The agencies,
organizations and individuals having the competence to settle the labor
disputes within the scope of their duties and powers may request the disputing
parties, the agencies, organizations and individuals concerned to provide
financial data, evidence, solicit expertise, witnesses and the persons
concerned.
Article 198. Labor mediator,
1. The labor
conciliator is appointed by the State management agency on labor at district,
town and provincial city level to settle the labor disputes and disputes on
vocational training contracts.
2. The Government
regulates the standard and authority for appoitment of labor mediator.
Article 199. Labor arbitration Council
1. The Chairman of
provincial People's Committee shall decide to establish the labor arbitration
Council. The labor arbitration Council includes the Head of the state
management on labor, secretary of the Council and members who are the
provincial trade union representatives, representative organizations of the
employer. The number of members of the labor arbitration Council is an odd
numbe and not execeeding 07 people.
In necessary case,
the Chairman of the Labor Arbitration Council may invite the representatives of
agencies and organizations concerned and the person who has experience in the
area of labor relations at the locality.
2. The Labor
Arbitration Council conducts the reconciliation of the collective labor
disputes as follows:
a) Collective labor
disputes on interests;
b) Collective labor
dispute occurs at the labor employment units that are not entitled to go on
strike under the list regulated by the Government.
3. The labor
arbitration Council makes a decision by majority in the form of secret ballot
voting.
4. The provincial
People's Committee shall ensure the necessary conditions for the activities of
the labor arbitration Council.
Section 2. AUTHORITY AND ORDER OF PERSONAL LABOR DISPUTE SETTLEMENT
Article 200. Agencies and individuals with the
competence to settle individual labor disputes
1. The labor
mediator
2..The People's
Court
Article 201. Mediation order and procedures for
labor dispute of the labor mediator
1. The personal
labor dispute must be through the mediation procedures of the labor mediator
before requiring the Court to settle except for the following labor disputes
without having to go through the mediation procedures:
a) On the labor
discipline in the form of dismissal or disputes over the case of unilateral
termination of labor contract;
b) Regarding the
compensation and allowance upon termination of labor contract;
c) Between the
housemaid with the employer;
d) On the social
insurance in conformity with the law on social insurance and health insurance
as prescribed by the law on health insurance.
dd) Regarding the
compensation between the employee and the enterprise, non-business units that
send the employee to work overseas under contracts.
2. Within 05
working days after receiving the request for mediation, the labor mediator must
end the mediation.
3. At the mediation
meeting, there must be the presence of both disputing parties. The disputing
parties may authorize the others to join the mediation meeting.
The labor mediator
shall guide the parties to negotiate. Where the two parties reach agreement,
the labor mediator shall make a record of successful mediation.
Where the two
parties can not reach agreement, the labor mediator shall give out a mediatory
plan for both parties to consider. Where the two parties accept the mediatory
plan, the labor mediator shall make a record of successful mediation.
Where the two
parties do not accept the mediatory plan or a disputing party has been duly
summoned twice but still absent without plausible reasons, the mediator shall
make a record of unsuccessful mediation.
The record shall
bear the signatures of both disputing parties and the labor mediator.
Copy of the record
of successful mediation or unsuccessful mediation must be sent to both
disputing parties within 01 working day from the date of making the record
4. In case of
unsuccessful mediation or either party does not perform the agreements in the
record of successful mediation or the time limit for settlement is over as
prescribed in clause 2 of this Article but the labor mediator does not conduct
the mediation, each disputing party has the right to request the settlement
from the Court.
Article 202. Limitation for request of settlement
of personal labor disputes
1. The limitation
to request the labor mediator to perform the mediation of personal labor
disputes is 06 months from the date of discovery of the acts whereby the
disputing parties thinks that their rights and legitimate interests have been
breached.
2. The limitation
to request the court to settle individual labor disputes is 01 years from the
date of discovery of the act whereby the disputing parties thinks that their
rights and legitimate interests have been breached.
Section 3. COMPETENCE AND ORDER FOR
SETTLEMENT OF COLLECTIVE LABOUR DISPUTES
Article 203. Agencies, organizations and
individuals with the competence to settle thecollective labour disputes
1. The agencies,
organizations and individuals with the competence to settle the collective
labour disputes including:
a) Labor mediator;
b) Chairman of the
People's Committees of districts, towns and provincial cities (hereinafter
referred to as chairman of the district-level People’s Committee).
c) People’s Court.
2. The agencies,
organizations and individuals with the competence to settle the the collective
labour disputes with respect to interests including:
a) Labor mediator;
b) Labor
arbitration Council.
Article 204. Order of settlement of collective
labor dispute at the grassroots level
1. The order of
settlement of collective labor dispute at the grassroots level is executed as
prescribed in the Article 201 of this Code. The record of mediation must
specify the type of collective labor dispute.
2. In case of
unsuccessful mediation or either party fails to perform the agreements in the
record of mediation, the following provisions shall apply:
a) For the
collective labor disputes on the rights, the parties have the right to request
the Chairman of district-level People’s Committee for settlement;
b) For the
collective labor disputes on the interests, the parties have the right to
request the labor arbitration Council for settlement;
3. In case the time
limit of the settlement is over as stipulated in Clause 2 of Article 201 of
this Code but the labor mediator does not conduct the mediation, the parties
have the right to submit petition to the district-level People’s Committee
Chairman for settlement.
Within 02 working
days after receiving the request for settlement of collective labor disputes,
the Chairman of district-level People’s Committee shall determine the type of
dispute of about the rights or interests
In case of
collective labor dispute on the rights, the settlement shall be performed as
stipulated in clause 2 of this Article and Article 205 of this Code.
In case of
collective labor dispute on the interests, the parties requesting the
settlement of dispute shall be guided immediately under the provisions in point
b, clause 2 of this Article.
Article 206. Settlement of collective labor
disputes on the rights of the Chairman of district Peoples’ Committee.
1. Within 05
working days after receipt of request application for settlement of collective
labor disputes on the rights, the chairman district-level People's Committees
shall have to settle the labor disputes.
2. At the meeting
to settle the labor disputes, there must be the representatives of both
disputing parties. In necessary cases, the Chairman of district-level People's
Committee shall invite the representatives of the agencies and organizations
concerned to attend the meeting.
The Chairman of
district-level People's Committee shall rely on the law on labor, collective
labor agreement and the labor rule registered and the other legal regulations
and agreements for consideration and settlement of labor disputes.
3. In the event the
parties do not agree with the decision of Chairman of district-level People's
Committee or if the deadline is over but the Chairman of district-level
People's Committee does not settle, the parties have the right request the
settlement from the Court.
Article 206. Settlement of collective labor
disputes on the interests of the labor arbitration Council
1. Within 07
working days after receiving the application for settlement request, the labor
arbitration council must finish the mediation.
2. At the meeting
of the labor arbitration council, there must be the representatives of both
parties. In necessary case, the Labor Arbitration Council shall invite the
representatives of agencies, organizations and individuals concerned to attend
the meeting.
The Labor
Arbitration Council shall assist the parties to negotiate themselves, where the
two parties fail to negotiate; the labor arbitration council shall offer a plan
for both parties to consider.
In case the two
parties reach agreement or accept the mediation plan, the labor arbitration
Council shall make a record of successful mediation at the same time make a decision
on recognizing the agreement of the parties.
In case the two
parties fail to reach agreement or a disputing party has been duly summoned for
the second time but still absent without plausible reason, the labor
arbitration Council shall make a record of unsuccessful mediation
The record has the
signatures of the present parties, the Chairman and secretary of the labor
arbitration council.
The copy of record
of successful mediation or unsuccessful mediation must be sent to both
disputing parties within 01 working day from the date of making record.
3. After a period
of 05 days from the date the Labor Arbitration Council sets up the record of
successful mediation but one of the parties does not execute the agreement that
has been reached, the labor collective has the right to conduct the procedures
to go on strike.
In case the Labor
Arbitration Council sets up the record of unsuccessful mediation, after a
period of 03 days, the labor collective has the right to conduct the procedures
to go on strike.
Article 207. Limitation of request for the
settlement of collective labor dispute on the rights
The limitation of
request for the settlement of collective labor dispute on the rights is 01 year
from the date of discovery of the acts that the disputing parties think that
their rights and interests are breached.
Article 208. Prohibiting unilateral
action while the collective labor disputes under settlement
When the collective
labor disputes are being settled by the competent agencies, organizations and
individuals within the time limit prescribed by this Code, neither party has
the right to take unilateral action against the other.
Section 4. STRIKE AND SETTLEMENT OF STRIKE
Article 209. Strike
1. The strike is
the temporary, voluntary and organizational stopping of work of the labor
collective in order to meet the requirements in the process of settlment of
labor disputes.
2. The strike is
only conducted for the collective labor disputes on the interests and after the
time limit prescribed in Clause 3, Article 206 of this Code.
Article 210. Organization and leadership of strike
1. Where there is
not grassroots trade union, strike must be orgnized and led by the the
grassroots trade union executive committee.
2. Where
there is not grassroots trade union, strike must be orgnized and led by the the
superior trade union organization at the request of the employee.
Article 211. Strike order
1. Gathering
opinion of the labor collective
2. Making a
decision on strike
3. Conducting strike
Article 212. Procedures for gathering opinion of the labor collective
1. For a labor
collective with the grassroots trade union organization, gather the opnions
from the member of the grassroots trade union executive committee and the heads
of production teams. Where there is not grassroots trade union, gather the
opnions of the heads of production teams or of the employee.
2. The organization
of opinion gathering may be made by card or signature.
3. Content of
opinion gathering for strike including:
a) The plan of the
trade union executive committee on the contents prescribed at Points b, c and
d, Clause 2 of Article 213 of this Code;
b) Opinions of
employees on the agreement or disagreement with the strike.
4. The time and
form of opinion gathering for strike shall be decided by the trade union
executive committee and must be announced to the employer thereof at least 01
days.
Article 213. Notice the starting time for the strike
1. When there is
more than 50% of the people gathered their opnions agree with the plan of the
union executive Committee, the trade union executive committee shall make a
decision on strike in writing.
2. The decision on
strike must have the following contents:
a) Result of opnion
gathering on strike;
b) Starting time
and place for the strike;
c) Scope of strike
conducting;
d) Request of labor
collective;
dd)ull name of the
representative of the union executive Committee.
3. At least 05
working days prior to the starting day of the strike, the trade union executive
committee shall send the strike decision to the employer, at the same time send
01 copy to the provincial State management agencies on labor, 01 copy to the
provincial trade union.
4. At the time the
strike starts, if the employer does not accept to settle the requirements of
the labor collective, the trade union executive committee shall organize and
lead the strike.
Article 214. Rights of the parties before and in
the course of strike
1. To keep on
agreement to settle the contents of collective labor disputes or jointly
request the State management agency on labor, trade union organization and
representative organization of the employer at provincial level to conduct the
mediation.
2. The trade union
executive committee has the following rights:
a) To withdraw the
decision on strike if strike has not conducted yet or stop the strike if it is
underway;
b) To require the
Court to declare the strike is legitimate
3. The employer has
the following rights
a) To accept the
whole or a part of the requirements and give notice in writing to the Trade
Union Executive Committee of union organizing, leading strikes;
b) To temporarily
close the workplace during the strike due to ineligible to maintain the normal
operation or to protect property;
c) To request the
Court to declare the strike illegal.
Article 215. Cases of illegal strike
1. Not to arise
from the collective labor disputes on the interests
2. To organize for
the employees who donot work for the same employer to go on strike.
3. When the
collective labor disputes have not been or are being settled by the agencies,
organization and individual as prescribed by this Code
4. To be conducted
at enterprises that are not entitled to go on strike under the list prescribed
by the Government.
5. When there is a
decision to delay or stop going on strike.
Article 216. Announcing decision on temporary
closure of the workplace
At least 03 working
days before the temporary closure of the workplace, the employer shall publicly
posted the decision on temporary closure of the workplace and announce to the
following agencies and organization:
1. The trade union
executive committee organizing and leading the strike;
2. Provicial-level
trade union;
3. The
representative organization of the employer;
4. The State
management agency on labor;
5. The
district-level People’s Committee where the head office located.
Article 217. Cases of prohibiting the temporary
closure at the workplace
1. Before 12 hours
from the time of the strike specfied in the decision on strike.
2. After the labor
collective stop the strike.
Article 218. Salary and other legal interests of
the employee during the strike.
1. The employee who
does not participate in the strike but has to stop working because of strike is
paid for the stop of working as prescribed in Clause 2, Article 98 of this Code
and other interests under the provisions of labor law.
2. The employee who
takes part in the strike shall not be paid and other interests as prescribed by
the law, unless otherwise agreed by both parties.
Article 219. Acts prohibited before, during and after the
strike
1. To hinder the
implementation of the right to strike or incite, induce or coerce the employee
to go on strike; prevent the employee who does not take part in the strike from
going to work.
2. To use violence;
destroy machinery, equipment and property of the employer.
3. To infringe the public order and safety
4. To terminate the
labor contract or handle the labor discipline to the employee, the strike
leader, or appoint the employee and the strike leader to perform another job or
go to work at other places because of strike preparation or strike
participation.
5. To retaliate and
revenge the employee for participating in the strike and the person leading the
strike.
6. To take
advantage of the strike to commit other acts of violations of the law.
Article 220. Prohibited cases of strike
1. Strikes are
prohibited at the units using employee and essentially operating to the
national economy because the strike may threaten the security, national
defense, health and public order under the list issued by the Government.
2. The State
management agencies must periodically listen the opinions of the labor
collective and the employer to assist and resolve the legitimate requirements
of the labor collective in a timely manner.
Article 221. Decision on postponement and stop of
strike
When considering
that the strike may cause serious damage to the national economy and the public
interest, the Chairman of the provincial People's Committee shall decide to
postpone or stop the strike and ask for settlement from the competent state
agencies and authorities
The Government
stipulates the postponement and stop of strike and settlement of interest of
the labor collective
Article 222. Handling the strike with improper
order and procedures
1. The Chairman of
provincial People's Committee shall make a decision on declaring the strike has
breached the order and procedures and immediately notify the Chairman of
district-level People's Committee as the organization and leading of the strike
do not comply with the Article 212 and Article 213 of this Code.
2. Within 12 hours
after receiving notice of the Chairman of provincial People's Committee, the
Chairman of district-level People's Committees shall preside over and
coordinate with the State management agency on labor and trade union at the
same level and other agencies and organizations directly concerned to meet with
the employer and the grassroots trade union executive committee or the superior
trade union to hear the parties’ opinions and support them to find the measures
for settlement and put the operation of production and business back to normal
condition.
Section 5.
COURT’S CONSIDERATION OF LEGALITY OF THE STRIKE
Article 223. Requesting the Court to consider the
legality of the strike
1. During the
strike or in the period of 03 months, from the date of termination of the
strike, each party has the right to submit petitions to the Court to request
the consideration of legality of the strike.
2. The petition
must have the following main contents:
a) Date, month,
year of the petition;
b) Name of the
Court receiving petition;
c) Name and address
of the requesting party;
d) Name and address
of the organization leading the strike;
dd) Name and
address of the employer where the labor collective go on strike;
e) Content to
request the Court’s settlement;
g) Other
information that the requesting party deem necessary for the settlement.
3. The requesting
party must send together with the petition the copies of strike decision,
decision or the record of mediation of the competent agencies and organizations
to settle the collective labor dispute, materials and evidence related to the
consideration of the legality of the strike.
Article 224. Procedures for submitting petition
to request the Court’s consideration of the legality of the strike
Procedures for
petition submission, receipt, obligation to provide materials and evidence for
the consideration and decision on the legality of the strike at the Court are
made similarly
to the procedures for petition submission, receipt; obligation to provide
materials under the provisions of the Code of civil procedure.
Article 225. Competence to consider the legality
of the strike
1. The provincial
People's Court where the strike takes place has jurisdiction to consider the
legality of the strike
2. The Supreme
People's Court has jurisdiction to settle the complaints about the legality of
the strike.
Article 226. Members of the legality
consideration Council of the strike
1. The legality
consideration Council of the strike consists of three judges
2. The Council to
settle complaints against the decisions on the legality of the strike,
including three judges appointed by the Chief Justice Supreme People's Court.
3. The change of
judge as a member of the legality consideration Council of the strike is
carried out under the provisions of the Code of civil procedure.
Article 227. Procedures for settlement of the
petition to request the consideration of the strike.
1. Immediately
after receiving the petition, the Tribunal President of the provincial People's
Court shall decide to establish a Council to consider the legality or
illegality of the strike and assign a judge to preside over the resolution of
the petition.
2. Within 05
working days from the date of receiving the petition, the judge assigned to
preside over the resolution of the petition must make a decision to put the
legality of the strike into consideration. The decision to open a meeting to
consider the legality of the strike must be sent to the Trade Union Executive
Committee, the employer, agencies and organizations concerned.
3. Within 05
working days from the date of making the decision to consider the legality of
the strike, the legality consideration Council of the strike must open the
meeting to consider the legality of the strike.
Article 228. Suspending the consideration of the
legality of the strike
The Court shall
suspend the consideration of the legality of the strike in the following cases:
1. The requesting
party has withdrawn its petition;
2. Both parties
have agreed with each other on the settlement of the strike and submitted
petition to request the Court not to carry out the settlement.
3. Person who
submits the requesting petition has been duly summoned twice but is still
absent.
Article 229. Persons taking part in the meeting
for consideration of the legality of the strike.
1. The legality
consideration Council of the strike shall be chaired by the presiding Judge;
the Court’s clerk shall record the minutes of the meeting.
2. The
representative of the labor collective and the employer
3. The representative
of the agencies and organizations on the requirement of the Court
Article 230. Meeting postponement of the legality
consideration of the strike
1. The judge
assigned to preside over a meeting to consider the legality of the strike or
the legality consideration Council has decided to postpone a meeting to
consider the legality of a strike similarly to the regulations on adjournment
in accordance with the law on civil procedure.
2. The time limit
for the meeting postponement of the legality consideration of the strike shall
not exceed 03 working days.
Article 231. Order of the meeting of the legality
consideration of the strike
1. The person
presiding over the meeting of the legality consideration of the strike
announces the decision on opening the meeting of the legality consideration of
the strike and summarize the content of the petition.
2. The
representative of the labor collective and the employer shall present their
opinions.
3. The person
presiding over the meeting of the legality consideration of the strike may
request representatives of the agencies and organizations attending the meeting
to express their opinions.
4. The legality
consideration Council of the strike shall discuss and make a decision by
majority.
Article 232. Decision on the legality of the
strike
1. The Court’s
decision on the legality of the strike must specify the reason and the grounds
for the conclusion of the legality of the strike.
The Court’s
decision on the legality of the strike must be announced publicly at the court
and sent to the union executive Committee and the employer, the People's
Procuracy of the same level. The labor collective and the employer shall
execute the decision of the court but may lodge a complaint under the
procedures prescribed by this Code.
2. After the
court's decision on the legality of the strike is announced, if the strike is
illegal, the employee on strike must stop the strike and get back to work.
Article 233. Violation handling
1. When the court
has decided that the strike was illegal, but the employee does not end the
strike and get back to work, depending on the seriousness of the violation,
they may be disciplined in accordance with the regulation on labor law.
In case the strike
is illegal, which causes damage to the employer, the union organization leading
the strike must make compensation as prescribed by law.
2. The person who
take advantage of a strike to disrupt public order, damaging machinery,
equipment and property of the employer; the person who commit acts of
obstructing the exercise of the right to strike, agitating, inducing, coercing
the employee to strike; the person who has acts of retaliation and revenge of
the employee taking part in the strike and the person leading the strike,
depending on the seriousness of their violations, they can be handled for
administrative violations or prosecuted for criminal liability, if causing
damage, they must make compensation as prescribed by law.
Article 234. Order and procedures for settlement
of complaint about the decision on the legality of the strike
1. Within 15 days
from the date of receipt of the decision on the legality of the strike, the
trade union executive committee and the employer may send a complaint to the
Supreme People's Court.
2. Immediately
after receiving the complaint about the decision on the legality of the strike,
the Supreme People's Court must send a written request to the Court that has
considered the legality of the strike to transfer the case dossier for review
and settlement.
3. Within 03
working days after receipt of the written request, the Court that issued a
decision on the legality of the strike must transfer the case dossier to the
Supreme People's Court for review and settlement.
4. Within 05
working days after receipt of the dossier for the legality consideration of the
strike, the Council shall resolve the complaint about the decision on the
legality of the strike.
The decision of the
Supreme People's Court is the final decision on the legality of the strike
Chapter XV: LABOR STATE MANAGEMENT
Article 235. Content of labor state management
The labor state
management includes the following contents:
1. Issuing and
organizing the implementation of the legal normative documents on labor;
2. Monitoring,
making statistics and providing information about supply and demand and labor
supply and demand volatility; making decision on policies, planning, human
resource planning, job training, skills development, building of the frame of
the national vocational level, distribution and use of social employees.
Specifying the list of the trades that only employ the employees who have been
trained the trade or have the certificate of national vocational skills;
3. Organizing and
conducting scientific research on labor, statistics, information on labor and
labor market, living standards and incomes of the employees;
4. Developing the
mechanisms and institutions to support the development of the harmonious,
stable and progressive labor relations;
5. Inspecting,
examining and settling complaints and denunciations and handling legal
violations on labor; settling labor disputes in accordance with the law;
6. Implementing the
nternational cooperation on labor
Article 236. State management competence on labor
1. The Government
has unified the State management over the labor in the country.
2. The Ministry of
Labour - Invalids and Social Affairs is responsible before the Government
for implementation of the State management over labor.
The Ministries,
ministerial-level agencies to the extent of their duties and power shall
implement and coordinate with the Ministry of Labour - Invalids and Social
Affairs in the State management over the labor.
3. The People's
Committees at all levels shall implement the State management over the labor in
their respective localities.
Article
237. Responsibilities of the state inspector on labor
The inspector Ministry of Labour - Invalids and Social Affairs and the
inspector of Service of Labour - Invalids and Social Affairs have the following
main tasks:
1. Inspecting the compliance of provisions of the law on labor;
2. Investigating occupational accidents and violations on labor safety and
hygiene;
3. Making guidance on the application of the the system of technical standards
and regulations on labor conditions, labor safety and hygiene;
4. Settling complaints and denunciation on labor as prescribed by the law;
5. Handling under the competence and requesting the competent agencies to
handle violations of labor laws.
Article
238. Labor inspection
1. The inspector Ministry of Labour - Invalids and Social Affairs and the
inspector of Service of Labour - Invalids and Social Affairs shall execute the
specialised inspection function on labor.
2. The inspection of labor safety and hygiene in the area of radioactivity, exploration,
oil and gas extraction, means of railway, waterway, road and air transportion
and other units of the armed forces shall be implemented by the state
management agency in that area in cooperation with the specialized inspection
on labor.
Article
239. Handling violations in the area of labor
Those who have acts of violation of the provisions of this Code, depending on
the nature and seriousness of their violations, they shall be disciplined, and
administratively sanctioned or prosecuted for criminal liability; if causing
damage they must make compensation as prescribed by law.
Chapter XVII: IMPLEMENTATION PROVISION
Article 240. Effect of the Labor Code
1. This Code shall
take effect from 01 May 2013.
The Labour Code
dated 23 June 1994, the Law amending and supplementing a number of articles of
the Labor Code No. 35/2002/QH10, the Law amending and supplementing a number of
the Labour Code No. 74/2006 / QH11 and the Law amending and supplementing a
number of articles of the Labor Code No.84/2007/QH11 that shall be expired from
the date this Code takes effect.
2. From the date
this Code takes effect:
a) The labor
contracts, collective labor agreements, other legal agreements already
concluded and the agreements more favorable to the employee than the provisions
of this Code shall continue to be performed; the agreements inconsistent with
the provisions of the Code must be amended and supplemented;
b) The stipulation
on the time of enjoyment of the policies when giving birth in the Social
Insurance Law No. 71/2006/QH11 shall comply with the provisions of this Code.
The female employee
on maternity leave before the effective date of this Code, is still in the time
of maternity leave to May 1, 2013 as prescribed in the Law on social insurance
No. 71/2006/QH11, the time of enjoyment of the policies when giving birth complies with the provisions of
this Code.
3. The labor regime
for cadres, civil servants, officer and the person in the armed forces of the
People's Army, People’s public security and other social organizations and
cooperative members stipulated by the other legal documents but depending on
the object, a number of provisions in this Code shall be applied. The
Government has issued the specific salary policies applicable to cadres, civil
servants, officer and the person in the armed forces of the People's Army and
People’s public security.
Article 241. Effect for areas where less than 10
employees employed
The employer who
employs less than 10 employees must implement the provisions of this Code, but
is reduced and exempted a number of standards and procedures prescribed by the
Government.
Article 242. Detailed regulations and guidance of execution
The Government and
the competent authorities shall stipulate in detail and make guidance of the
implementation of articles and clauses in the Code.
This Code is adopted by the National Assembly of the Socialist
Republic of