Chương V Bộ Luật lao động 2012: Đối thoại tại nơi làm việc, thương lượng tập thể, thỏa ước lao động tập thể

Chapter V

DIALOGUE AT WORKPLACE, COLLECTIVE BARGAINING, COLLECTIVE LABOR AGREEMENTS

Section 1. DIALOGUE AT WORKPLACE

Article 63. Purposes and forms of dialogue at workplace

1. Dialogue at workplace aims at sharing information and strengthening understanding between employers and employees for the building of industrial relations at workplace.

2. Dialogue at workplace is conducted through direct communication between employees and employers or between the representatives of the employees’ collectives and employers, ensuring the implementation of the regulations on grassroots-level democracy.

3. Employers and employees are obliged to implement the regulations on grassroots-level democracy at workplace in accordance with the Government’s regulations.

Article 64. Issues of dialogue at workplace

1. Production and business situation of the employer.

2. Performance of labor contracts, collective labor agreement, internal regulations and other commitments and agreements at workplace.

3. Working conditions.

4. Requests of individual employees and the employees’ collective to the employer.

5. Requests of the employer to individual employees and the employees’ collective.

6. Other issues which concern the two parties.

Article 65. Conducting of dialogue at workplace

1. Dialogue at workplace must be conducted once every 3 months or at the request of either party.

2. Employers are obliged to arrange venue and other physical conditions for dialogue at workplace.

Section 2. COLLECTIVE BARGAINING

Article 66. Purposes of collective bargaining

Collective bargaining is the discussion and negotiation between the employees’ collective and the employer in order to:

1. Build harmonious, stable and progressive industrial relations;

2. Establish new working conditions as a basis for the signing of the collective labor agreement;

3. Resolve problems and difficulties in the exercise of rights and performance of obligations by each party in industrial relations.

Article 67. Principles of collective bargaining

1. Collective bargaining must be carried out on the principles of good faith, equality, cooperativeness, publicity and transparency.

2. Collective bargaining must be carried out on a periodical or unexpected basis.

3. Collective bargaining must be carried out at a place agreed upon by two parties.

Article 68. The right to request collective bargaining

1. Each party may request collective bargaining and the requested party may not refuse the bargaining. Within 7 working days from the date the request is received, the parties shall agree on the time for opening a bargaining meeting.

2. In case either party cannot participate in the bargaining meeting at the time as agreed upon, it may request to postpone the bargaining for a maximum of 30 days counted from the date of receipt of the request for collective bargaining.

3. In case one party refuses the bargaining or does not conduct the bargaining within the time limit stated in this Article, the other party may carry out the procedures to request labor dispute settlement in accordance with law.

Article 69. Representatives for collective bargaining

1. Representatives for collective bargaining are provided as follows:

a/ The representative for the employees’ collective in collective bargaining at the enterprise level is the representative organization of the grassroots- level employees’ collective; the representative for the employees’ collective in collective bargaining at sectoral level is the representative of the executive committee of the sectoral trade union;

b/ The representative of the employer in collective bargaining at the enterprise level is the employer or a representative of the employer; the representative on the employer’s side in collective bargaining at the sectoral level is the representative of the sectoral employers’ representative organization.

2. The number of persons of each party to attend a bargaining meeting must be agreed by the two parties.

Article 70. Issues for collective bargaining

1. Wages, bonuses, allowances and pay rise.

2. Working time, rest time, overtime work, mid-shift breaks.

3. Ensuring employment for employees.

4. Ensuring occupational safety and hygiene; implementation of the internal working regulations.

5. Other issues that concern the two parties.

Article 71. Process of collective bargaining

1. The process of preparation for collective bargaining is provided as follows:

a/ At least 10 days before a collective bargaining meeting, at the request of the employees’ collective, the employer shall provide information about the production and business situation, except business and technology secrets of the employer;

b/ Collection of comments of the employees’ collective.

The bargaining representative of the employees’ collective shall directly collect comments of the employees’ collective or indirectly through a conference of employees’ delegates on the employees’ proposals to the employer and the employer’s proposals to the employees’ collective;

c/ Notification of issues for collective bargaining.

At least 5 working days before the commencement of the bargaining meeting, the party that requests collective bargaining shall notify the other party of the proposed issues for collective bargaining.

2. The process of conducting collective bargaining is provided as follows:

a/ Organization of a collective bargaining meeting.

The employer shall hold a collective bargaining meeting at the time and venue agreed by the two parties.

Collective bargaining meetings must be recorded in minutes which must specify issues that have been agreed upon by the two parties, the tentative time for signing an agreement on the agreed issues; and issues on which opinions remain divergent.

b/ Minutes of collective bargaining meetings must be signed by the representative of the employees’ collective, the employer and the preparer of the minutes.

3. Within 15 days after the end of a collective bargaining meeting, the bargaining representative of the employees’ collective shall publicly announce the minutes of the meeting to the employees’ collective for information and collect votes of the employees’ collective on the agreed issues.

4. In case the negotiation does not succeed, either party may continue requesting bargaining or carry out the procedures for labor dispute settlement in accordance with this Code.

Article 72. Responsibilities of the trade union, the employer’s representative organization and the state management agency of labor in collective bargaining

1. To organize training in collective bargaining skills for persons to participate in collective bargaining.

2. To participate in collective bargaining meetings if requested by either party to the collective bargaining.

3. To provide and exchange information relating to the collective bargaining.

Section 3. COLLECTIVE LABOR AGREEMENTS

Article 73. Collective labor agreements

1. Collective labor agreement is a written agreement between the employees’ collective and the employer on working conditions which have been agreed upon by the two sides through collective bargaining.

Collective labor agreements include enterprise-level collective labor agreement, sectoral-level collective labor agreement and other types of collective labor agreement as stipulated by the Government.

2. The content of a collective labor agreement must not be against the labor law and must be more favorable for the employees than what is provided by law.

Article 74. Signing of a collective labor agreement

1. A collective labor agreement is signed by the representative of the employees’ collective and the employer or the representative of the employer.

2. A collective labor agreement may be signed only when the parties have reached the agreement at the collective bargaining meetings and:

a/ Over 50% of the members of the employees’ collective vote for the issues for collective bargaining, in case of signing an enterprise-level collective labor agreement;

b/ Over 50% of the representatives of the executive committee of the grassroots-level trade union or the immediate higher-level trade union vote for the issues for collective bargaining, in case of signing a sectoral-level collective labor agreement;

c/ For other types of collective labor agreement, the Government’s regulations must be complied with.

3. Once the collective labor agreement is signed, the employer shall inform it to all of his/her employees.

Article 75. Sending of the collective labor agreement to state management agencies

Within 10 working days from the date of signing, the employer or the employer’s representative shall send a copy of the collective labor agreement to:

1. The provincial-level state management agency of labor, for enterprise- level collective labor agreements.

2. The Ministry of Labor, War Invalids and Social Affairs, for sectoral- level collective labor agreements and other types of collective labor agreement.

Article 76. Effective date of a collective labor agreement

The effective date of a collective labor agreement must be indicated in the agreement. In case the effective date is not indicated in the agreement, the effective date is the date of its signing.

Article 77. Modification and supplementation of a collective labor agreement

1. The parties may modify and supplement the collective labor agreement within the following time limit:

a/ After 3 months of implementation, if the collective labor agreement has an effective duration of under 1 year;

b/ After 6 months of implementation, if the collective labor agreement has an effective duration of between 1 year and 3 years.

2. In case there are changes in legal provisions that make the collective labor agreement no longer conform to the law, the two parties shall modify and supplement the collective labor agreement within 15 days after the changed legal provisions take effect.

Pending the modification and supplementation of the collective labor agreement, the rights and interests of the employees comply with the provisions of law.

3. The modification and supplementation of a collective labor agreement must be made as for the signing of a collective labor agreement.

Article 78. Invalid collective labor agreement

1. A collective labor agreement is partially invalid if one or more of its contents is/are contrary to law.

2. A collective labor agreement is wholly invalid in any of the following cases:

a/ The whole content of the agreement is contrary to law;

b/ The agreement is signed by an incompetent person;

c/ The signing of the agreement did not follow the prescribed collective bargaining process.

Article 79. Competence to declare a collective labor agreement to be invalid

People’s courts have competence to declare collective labor agreements to be invalid.

Article 80. Handling of an invalid collective labor agreement

When a collective labor agreement is declared to be invalid, the rights, obligations and interests of the parties in the invalid part(s) must be addressed in accordance with law and lawful agreements in labor contracts.

Article 81. Expiry of a collective labor agreement

Within 3 months before the expiry of a collective labor agreement, the two parties may bargain an extension of the duration of the collective labor agreement or enter into a new one.

In case the collective labor agreement expires during the bargaining process, it must continue to be implemented for maximum 60 days.

Article 82. Expenses for collective bargaining and signing of collective labor agreements

All expenses for bargaining, signing, modification, supplementation, sending and announcement of a collective labor agreement must be covered by the employer.

Section 4. ENTERPRISE-LEVEL COLLECTIVE LABOR AGREEMENTS

Article 83. Signing of an enterprise-level collective labor agreement

1. Persons to sign an enterprise-level collective labor agreement are provided as follows:

a/ A representative of the grassroots-level employees’ collective, for the employees’ collective’s side;

b/ The employer or a representative of the employer, for the employer’s side.

2. An enterprise-level collective labor agreement must be made in 5 copies, of which:

a/ Two copies must be kept by the two sides;

b/ One copy must be sent to the state agency specified in Article 75 of this Code;

c/ One copy must be sent to the intermediate higher-level trade union, and one copy to the employers’ representative organization in which the employer is a member.

Article 84. Implementation of an enterprise-level collective labor agreement

1. The employer and employees, including new employees who are employed after the collective labor agreement takes effect, shall fully implement the agreement.

2. In case the rights, obligations and interests of the parties stipulated in a labor contract signed before a collective labor agreement takes effect are less favorable than those provided in the collective labor agreement, the provisions of the collective labor agreement apply. Labor regulations of the employer which do not comply with the collective labor agreement must be amended to be consistent with the collective labor agreement within 15 days after the collective labor agreement takes effect.

3. In case a party considers that the other party does not perform fully or violates the collective labor agreement, the former may request full compliance with the agreement by the latter, and both parties shall jointly consider and resolve the issue. In case of failure to resolve the issue, either party may request settlement of the collective labor dispute in accordance with law.

Article 85. Validity duration of an enterprise-level collective labor agreement

An enterprise-level collective labor agreement has a validity duration of between 1 year and 3 years. For an enterprise which signs a collective labor agreement for the first time, the validity duration of this agreement can be under 1 year.

Article 86. Implementation of a collective labor agreement in case of transfer of ownership, right of management, right of use of an enterprise, merger, consolidation, split or separation of an enterprise

1. In case of transfer of ownership, the right to manage, or the right to use an enterprise or merger, consolidation, split or separation of an enterprise, the succeeding employer and the representative of the employees’ collective shall base on the labor utilization plan to consider choosing whether to continue the implementation of or modify and supplement the old collective labor agreement, or enter into a new one.

2. In case the validity of a collective labor agreement is terminated because the employer ceases its operation, the interests of employees must be settled in accordance with the labor law.

Section 5. SECTORAL-LEVEL COLLECTIVE LABOR AGREEMENTS

Article 87. Signing of a sectoral-level collective labor agreement

1. Representatives to sign a sectoral-level collective labor agreement are provided as follows:

a/ The representative of the employees’ collective is the chairperson of the sectoral-level trade union;

b/ The representative of the employer is the representative of the employers’ representative organization who has participated in the sectoral-level collective bargaining.

2. A sectoral-level collective labor agreement must be made in 4 copies, of which:

a/ Two copies must be kept by the two parties;

b/ One copy must be sent to the state agency specified in Article 75 of this Code;

c/ One copy must be sent to the intermediate higher-level trade union.

Article 88. Relationship between enterprise-level and sectoral-level collective labor agreements

1. In case the contents of the enterprise-level collective labor agreement or other regulations of the employer on rights, obligations and lawful interests of employees in the enterprise are less favorable than the relevant provisions of the sectoral-level collective labor agreement, the enterprise-level collective labor agreement must be modified and supplemented accordingly within 3 months after the sectoral-level collective labor agreement takes effect.

2. An enterprise subject to a sectoral-level collective labor agreement which has not yet elaborated its own collective labor agreement may elaborate its own collective labor agreement with terms more favorable for employees than those of the sectoral-level collective labor agreement.

3. Enterprises within a sector which have not acceded to the sectoral-level collective labor agreement are encouraged to implement the sectoral-level collective labor agreement.

Article 89. Validity duration of a sectoral-level collective labor agreement

A sectoral-level collective labor agreement has a validity duration of between 1 year and 3 years.