Chương XIV Bộ Luật lao động 2012: Giải quyết tranh chấp lao động

Chapter XIV

SETTLEMENT OF LABOR DISPUTES

Section 1. GENERAL PROVISIONS ON SETTLEMENT OF LABOR DISPUTES

Article 194. Principles of settlement of labor disputes

1. To respect and guarantee self-negotiation and self-determination by the parties in settling their labor dispute.

2. To ensure conciliation and arbitration on the basis of respect for the rights and interests of both disputing parties, and respect for the common interest of the society and non-violation of the law.

3. To guarantee publicity, transparency, objectiveness, timeliness, quickness and lawfulness.

4. To ensure participation of the representative of each party in the labor dispute settlement process.

5. To settle a labor dispute firstly through direct negotiation by the two parties in order to harmoniously resolve their interests, stabilize production and business and assure social order and safety.

6. The settlement of a labor dispute shall be conducted by a competent agency, organization or person after either party makes a written request due to the fact that the other party refuses to negotiate or the two parties do not negotiate successfully or the two parties negotiate successfully but either party does not implement the agreement.

Article 195. Responsibilities of agencies, organizations and individuals for settling labor disputes

1. The state management agency of labor shall coordinate with the trade union and the employers’ representative organization in providing guidance and assistance to the parties during the labor dispute settlement.

2. The Ministry of Labor, War Invalids and Social Affairs shall organize training to raise professional capacity for labor conciliators and arbitrators in the labor dispute settlement.

3. Competent state agencies shall proactively and promptly settle right- based collective disputes.

Article 196. Rights and obligations of two parties in labor dispute settlement

1. During the labor dispute settlement, the two parties have the following rights:

a/ To participate directly or through a representative in the settlement process;

b/ To withdraw or change the content of their written request;

c/ To request change of the person in charge of settling the labor dispute if they have grounds to believe that such person may not be impartial or objective.

2. During the labor dispute settlement, the two parties have the following obligations:

a/ To promptly and fully provide all documents and evidence to prove their request;

b/ To abide by the reached agreement, the judgment or ruling which has taken legal effect.

Article 197. Powers of agencies, organizations and persons competent to settle labor disputes

Agencies, organizations and persons competent to settle labor disputes may, within the scope of their tasks and powers, request the two disputing parties and relevant agencies, organizations and persons to provide documents and evidence, solicit assessment and invite witnesses and other related people.

Article 198. Labor conciliators

1. Labor conciliators are appointed by the state management agency of labor of a district, town or provincial city to conciliate labor disputes and disputes over vocational training contracts.

2. The Government shall stipulate criteria for and competence to appoint labor conciliators.

Article 199. Labor Arbitration Council

1. The chairperson of a provincial-level People’s Committee may decide to establish the Labor Arbitration Council, which consists of the chairperson who is the head of the state management agency of labor, a secretary and members who are the representatives of the provincial-level trade union and the employers’ representative organization. The number of members of the Labor Arbitration Council must be an odd number and not exceed seven.

In case of necessity, the chairperson of the Labor Arbitration Council may invite representatives of relevant agencies and organizations and persons with experience in local industrial relations.

2. The Labor Arbitration Council may conciliate the following collective labor disputes:

a/ Interest-related collective labor disputes;

b/ Collective labor disputes occurring at employing units where strikes are prohibited on the list stipulated by the Government.

3. The Labor Arbitration Council shall make decision by majority of secret votes.

4. Provincial-level People’s Committees shall provide necessary working conditions for the operation of the Labor Arbitration Council.

Section 2. COMPETENCE AND PROCESS FOR SETTLEMENT OF INDIVIDUAL LABOR DISPUTES

Article 200. Agencies and persons competent to settle individual labor disputes

1. Labor conciliators.

2. People’s Courts.

Article 201. Order and procedures for settlement of individual labor disputes by labor conciliators

1. Individual labor disputes must go through the conciliation conducted by labor conciliators before going to a court for settlement, except the following labor disputes:

a/ Disputes over disciplinary measures of dismissal or unilateral termination of labor contract;

b/ Disputes over compensation for damage and allowance upon termination of labor contract;

c/ Disputes between a domestic employee and his/her employer;

d/ Disputes over social insurance in accordance with the law on social insurance, over health insurance in accordance with the law on health insurance;

e/ Disputes over compensation between employees and enterprises or non-business units sending employees to work abroad under contracts.

2. Within 5 working days from the date of receiving a conciliation request, the labor conciliator shall complete the conciliation.

3. Both disputing parties must be present at the conciliation meeting. The disputing parties may authorize their representatives to attend the conciliation meeting.

The labor conciliator shall instruct the parties to negotiate. In case the two parties can reach an agreement, the labor conciliator shall prepare a record of successful conciliation.

In case the two parties cannot reach any agreement, the labor conciliator shall recommend a solution to the parties for consideration. In case the two parties agree with the recommended solution, the labor conciliator shall prepare a record of successful conciliation.

In case the two parties do not agree with the recommended solution or one of the disputing parties is absent without a plausible reason after having been duly summoned for two times, the labor conciliator shall prepare a record of unsuccessful conciliation.

The record of unsuccessful conciliation must bear the signatures of the present party and the labor conciliator.

Copies of the record of successful or unsuccessful conciliation must be sent to both disputing parties within 1 working day from the date the record is prepared.

4. In case of unsuccessful conciliation or if either party does not implement the agreement written in the record of successful conciliation or the conciliation duration stipulated in Clause 2 of this Article expires but the labor conciliator fails to conduct the conciliation, each disputing party may request settlement by a court.

Article 202. Statute of limitations for requesting settlement of individual labor disputes

1. The statute of limitations for requesting a labor conciliator to settle an individual labor dispute is 6 months, counting from the date of discovering an act which is claimed by each disputing party to infringe upon its rights and legitimate interests.

2. The statute of limitations for bringing an individual labor dispute to a court is 1 year counting from the date of discovering an act which is claimed by each disputing party to infringe its rights and legitimate interests.

Section 3. COMPETENCE AND PROCESS FOR SETTLEMENT OF COLLECTIVE LABOR DISPUTES

Article 203. Agencies, organizations and persons competent to settle collective labor disputes

1. Agencies, organizations and persons competent to settle right-based collective labor disputes include:

a/ Labor conciliators;

b/ Chairpersons of People’s Committees of districts, towns or provincial cities (below referred to as chairperson of district-level People’s Committees);

c/ People’s Courts.

2. Agencies, organizations and persons competent to settle interest-based collective labor disputes:

a/ Labor conciliators;

b/ The Labor Arbitration Council.

Article 204. Procedures for settling collective labor disputes at grassroots level

1. The conciliation procedures for collective labor disputes comply with Article 201 of this Code. A record of conciliation must clearly indicate the type of the collective labor dispute.

2. In case of unsuccessful conciliation or if either party does not implement the agreement written in the record of successful conciliation, the following provisions must be complied with:

a/ For right-based collective labor disputes, any disputing party may request settlement by the chairperson of the district-level People’s Committee;

b/ For interest-based collective labor disputes, any disputing party may request settlement by the Labor Arbitration Council.

3. In case the labor conciliator fails to conduct the conciliation within the time limit specified in Clause 2 of Article 201 of this Code, any disputing party may request settlement by the chairperson of the district-level People’s Committee.

Within 2 working days after receiving a request for settlement, the chairperson of the district-level People’s Committee shall identify whether the dispute is right-based or interest-based.

If it is a right-based collective labor dispute, the chairperson of the district-level People’s Committee shall settle it in accordance with Point a, Clause 2 of this Article and Article 205 of this Code.

If it is an interest-based collective labor dispute, the chairperson of the district-level People’s Committee shall promptly guide the disputing parties to make a request for settlement in accordance with Point b, Clause 2 of this Article.

Article 205. Settlement of right-based collective labor disputes by chairpersons of district-level People’s Committees

1. Within 5 working days after receiving a request for settlement of a right-based collective labor dispute, the chairperson of a district-level People’s Committee shall conduct the labor dispute settlement.

2. Representatives of the two disputing parties must be present at the labor dispute settlement meeting. When finding it necessary, the chairperson of the district-level People’s Committee may invite representatives of other relevant agencies and organizations to the meeting.

The chairperson of the district-level People’s Committee shall base himself/herself on the labor law, collective labor agreement, registered internal working regulations and other lawful regulations and agreements to consider and settle the labor dispute.

3. In case the two parties disagree with the decision of the chairperson of the district-level People’s Committee or the chairperson of the district- level People’s Committee fails to settle the labor dispute within the time limit, any disputing party may request settlement by a court.

Article 206. Settlement of interest-based collective labor disputes by the Labor Arbitration Council

1. Within 7 working days from the date of receiving a request, the Labor Arbitration Council shall complete the conciliation.

2. Representatives of the two disputing parties must be present at the meeting of the Labor Arbitration Council. If finding it necessary, the Labor Arbitration Council may invite representatives of relevant agencies and organizations to the meeting.

The Labor Arbitration Council shall support both parties to self-negotiate; in case the two parties cannot reach an agreement, the Labor Arbitration Council shall recommend a solution to both disputing parties for consideration.

If the two parties can reach an agreement or agree with the recommended solution, the Labor Arbitration Council shall prepare a record of successful conciliation and concurrently issue a decision to recognize the agreement of the two parties.

In case the two parties cannot reach an agreement or either disputing party is absent without a plausible reason after having been duly summoned for two times, the Labor Arbitration Council shall make a record of unsuccessful conciliation.

The record of unsuccessful conciliation must bear the signatures of the present party and the chairperson and the secretary of the Labor Arbitration Council.

Copies of the record of successful or unsuccessful conciliation must be sent to both disputing parties within 1 working day from the date the record is prepared.

3. Five days after the Labor Arbitration Council makes the record of successful conciliation, if either party does not implement the agreement, the employees’ collective may carry out procedures for going on strike.

In case the Labor Arbitration Council makes a record of unsuccessful conciliation, after 3 days, the employees’ collective may carry out procedures for going on strike.

Article 207. Statute of limitations for requesting settlement of right-based collective labor disputes

The statute of limitations for requesting settlement of a right-based collective labor dispute is 1 year counting from the date of discovering an act which is claimed by either party to infringe upon its rights or legitimate interests.

Article 208. Prohibition of unilateral acts pending settlement of collective labor disputes

None of the disputing parties may take unilateral actions against the other party pending the settlement of their collective labor dispute by a competent agency, organization or person in the time limit provided by this Code.

Section 4. STRIKES AND STRIKE SETTLEMENT

Article 209. Strikes

1. Strike is a temporary, voluntary and organized work stoppage of an employees’ collective in order to achieve their demands in the process of labor dispute settlement.

2. A strike can only be carried out for interest-based collective labor disputes and after the expiry of the statute of limitations specified in Clause 3, Article 206 of this Code.

Article 210. Organization and leadership of strikes

1. In a unionized place, a strike must be organized and led by the executive committee of the grassroots-level trade union.

2. In a non-unionized place, a strike must be organized and led by the higher-level trade union at the request of employees.

Article 211. Sequence of going on strike

1. Collecting opinions of the employees’ collective.

2. Issuing a decision to go on strike.

3. Going on strike.

Article 212. Procedures for collecting opinions of the employees’ collective

1. In unionized places, opinions of members of the executive committee of the grassroots-level trade union and heads of production teams must be collected; in non-unionized places, opinions of heads of production teams or employees must be collected.

2. Opinions may be collected by ballot or signatures.

3. Issues put up for opinions on going on a strike include:

a/ The option suggested by the executive committee of the trade union on the contents specified at Points b, c and d, Clause 2, Article 213 of this Code;

b/ The employee’s agreement or disagreement to go on strike.

4. The time and method of collecting opinions on going on a strike must be determined by the executive committee of the trade union and notified to the employer at least 1 day in advance.

Article 213. Notification of the starting time of a strike

1. When over 50% of the consulted employees agree with the option suggested by the executive committee of the trade union, the executive committee of the trade union shall issue a decision to go on strike.

2. A decision to go on strike must include:

a/ The outcome of the collection of opinions on going on strike;

b/ The starting time and place for the strike;

c/ Scope of the strike;

d/ Demands of the employees’ collective;

e/ Full name of the representative of the executive committee of the trade union and contact address for settlement.

3. At least 5 working days prior to the starting date of the strike, the executive committee of the trade union shall send the decision to go on strike to the employer; and simultaneously send its copies to the provincial-level state management agency of labor and the provincial-level Federation of Labor.

4. By the starting time of the strike, if the employer does not accept the demands of the employees’ collective, the executive committee of the trade union may organize and lead the strike.

Article 214. Rights of the parties prior to and during a strike

1. To continue negotiating to settle the collective labor dispute or jointly request conciliation by the provincial-level state management agency of labor, trade union and employers’ representative organization.

2. The executive committee of the trade union has the rights to:

a/ Withdraw the decision to go on strike if the strike has not happened yet or to stop the strike if it is happening;

b/ Request a court to declare the strike is legal.

3. The employer has the rights to:

a/ Accept the demands entirely or in parts, and send a written notice of his/her acceptance to the executive committee of the grassroots-level trade union that organizes and leads the strike;

b/ Temporarily close the workplace during the strike due to shortage of conditions to maintain normal operations or to protect the assets;

c/ Request a court to declare the strike is illegal.

Article 215. Cases in which a strike is illegal

1. A strike does not arise from an interest-based collective dispute.

2. A strike is organized for employees who are not working for the same employer.

3. A strike occurs when the dispute is being settled or has not been settled by an agency, organization or person in accordance with this Code.

4. A strike occurs in a strike-prohibited enterprise listed by the Government.

5. A strike occurs when there is a decision to postpone or stop the strike.

Article 216. Notice of the decision on temporary closure of the workplace

At least 3 working days before the date of temporary closure of the workplace, the decision on temporary closure must be publicly posted up at the workplace and notified by the employer to the following agencies and organizations:

1. The executive committee of the trade union that organizes and leads the strike.

2. The provincial-level trade union.

3. The employers’ representative organization.

4. The provincial-level state management agency of labor.

5. The district-level People’s Committee of the locality where the enterprise is located.

Article 217. Prohibited cases of temporary closure of the workplace

1. Twelve hours prior to the starting time of the strike notified in the decision to go on strike.

2. After the employees’ collective stops striking.

Article 218. Wages and other lawful interests of employees during a strike

1. Employees who do not take part in a strike but have to stop working because of the strike shall be paid with a work suspension allowance under Clause 2, Article 98 of this Code and other benefits stipulated by the labor law.

2. Employees taking part in a strike may not be paid with wages or other benefits stipulated by law, unless otherwise agreed by both parties.

Article 219. Prohibited acts before, during and after a strike

1. Obstructing employees to exercise their right to go on strike or instigating, dragging or forcing employees to go on strike, and preventing non-strikers from going to work.

2. Using violence; sabotaging machines, equipment and assets of the employer.

3. Violating public order and security.

4. Terminating the labor contracts with, imposing labor disciplinary measures on or transferring employees and strike leaders to other jobs or other locations due to their preparation for or involvement in the strike.

5. Taking revenge actions on employees who are on strike or leaders of the strike.

6. Taking advantage of strikes to commit other illegal acts.

Article 220. Cases in which strikes are prohibited

1. Strike is prohibited in units which are essential for the national economy and in which strikes can threaten the national security, defense, health and public order as listed by the Government.

2. State management agencies shall periodically organize meetings to listen to opinions of employees’ collectives and employers in order to timely provide support and respond to the legitimate demands of the employees’ collectives.

Article 221. Decisions to postpone or cancel strikes

When considering that a strike may cause serious damage to the national economy and public interests, the chairperson of the provincial-level People’s Committee may decide to postpone or cancel such strike and assign competent agencies and organizations to deal with such strike.

The Government shall stipulate the postponement and cancellation of strikes and settlement of interests of the employees’ collectives.

Article 222. Handling of strikes that do not follow the prescribed sequence and procedures

1. The chairperson of a provincial-level People’s Committee may issue a decision declaring a strike violates the prescribed sequence and procedures and immediately notify the chairperson of the district-level People’s Committee when the organization and leadership of the strike do not comply with Articles 212 and 213 of this Code.

2. Within 12 hours from the time of receiving the notification of the chairperson of the provincial-level People’s Committee, the chairperson of the district-level People’s Committee shall assume the prime responsibility for, and coordinate with the state management agency of labor and the trade union of the same level and other relevant agencies and organizations in, holding a meeting directly with the employer and the executive committee of the grassroots-level trade union or higher-level trade union for consulting and supporting the parties to find solutions and resume normal production and business operations.

Section 5. COURTS TO CONSIDER THE LEGITIMACY OF A STRIKE

Article 223. Request for a court to consider the legitimacy of a strike

1. During a strike or within 3 months from the date a strike comes to an end, either party may submit a written request to a court for consideration of the legitimacy of the strike.

2. The written request must contain the following principal details:

a/ Date of the request;

b/ Name of the court to receive the request;

c/ Name and address of the requester;

d/ Name and address of the organization that led the strike;

e/ Name and address of the employer of the employees’ collective on strike;

f/ Issues brought to the court for settlement;

g/ Other information that the requester finds necessary for the settlement.

3. The request must be enclosed with copies of the decision to go on strike, decision or conciliation record of a competent agency or organization engaged in the settlement of the collective labor dispute, documents and evidence related to the consideration of the legitimacy of the strike.

Article 224. Procedures for sending a written request to a court for consideration of the legitimacy of a strike

Procedures for sending and receiving a written request and performing the obligation to provide documents and evidences to a court for consideration of and ruling on the legitimacy of a strike are similar to those for submitting and receiving a written request and performing the obligation to provide documents and evidence at a court provided in the Civil Procedures Code.

Article 225. Jurisdiction to consider the legitimacy of a strike

1. The provincial-level People’s Court of the locality in which a strike takes place has jurisdiction to consider the legitimacy of the strike.

2. The Supreme People’s Court has jurisdiction to settle complaints about decisions on the legitimacy of strikes.

Article 226. Composition of the panel to consider the legitimacy of a strike

1. The panel to consider the legitimacy of a strike comprises three judges.

2. The panel to settle a complaint about a decision on the legitimacy of a strike comprises three judges appointed by the President of the Supreme People’s Court.

3. The change of a judge who is a member of the panel to consider the legitimacy of a strike must comply with the Civil Procedures Code.

Article 227. Procedures for processing a written request for consideration of the legitimacy of a strike

1. Upon receipt of a written request, the president of the provincial-level People’s Court shall decide to form a panel to consider the legitimacy of the strike and assign one judge to take main charge of settling the written request.

2. Within 5 working days after receiving a written request, the judge assigned to take main charge of settling such request shall issue a decision to consider the legitimacy of the strike. The decision to hold a hearing to consider the legitimacy of the strike must be immediately sent to the executive committee of the trade union, the employer and relevant agencies and organizations.

3. Within 5 working days after issuing a decision to consider the legitimacy of a strike, the panel to consider the legitimacy of the strike shall open a hearing to consider the legitimacy of the strike.

Article 228. Termination of consideration of the legitimacy of a strike

A court may terminate consideration of the legitimacy of a strike in the following cases:

1. The requester withdraws the written request;

2. The disputing parties have reached an agreement on the settlement of the strike and file a written request for the court to terminate the settlement;

3. The requester does not show up after having been duly summoned for two times.

Article 229. Participants in a hearing to consider the legitimacy of a strike

1. The panel to consider the legitimacy of a strike must be chaired by the assigned judge; the court clerk shall take the minutes of a hearing.

2. Representatives of the employees’ collective and the employer.

3. Representatives of other agencies and organizations as requested by the court.

Article 230. Postponement of a hearing to consider the legitimacy of a strike

1. The judge assigned to chair the hearing to consider the legitimacy of a strike or the panel to consider the legitimacy of a strike may decide to postpone the hearing in a way similar to the postponement of a court hearing provided in the Civil Procedure Code.

2. The postponement of a hearing to consider the legitimacy of a strike must not exceed 3 working days.

Article 231. Process of a hearing to consider the legitimacy of a strike

1. The chairperson of a hearing to consider the legitimacy of a strike announces the decision to hold a hearing to consider the legitimacy of the strike and summarizes the written request.

2. The representatives of the employees’ collective and the employer give their views.

3. The chairperson may request to hear opinions of representatives of other organizations and agencies attending the meeting.

4. The panel considering the legitimacy of the strike discusses and makes decision by majority vote.

Article 232. Ruling on the legitimacy of a strike

1. The ruling of a court on the legitimacy of a strike must clearly state the reason and grounds to conclude on the legitimacy of the strike.

The ruling of a court on the legitimacy of a strike must be publicly announced at the court hearing and immediately sent to the executive committee of the trade union, the employer and the people’s procuracy of the same level. The employees’ collective and the employer shall implement the ruling of the court but may also file complaints according to the procedures provided by this Code.

2. After the ruling of the court on the legitimacy of a strike is announced, if the strike is ruled to be illegal, the employees on strike shall immediately stop going on strike and return to work.

Article 233. Handling of violations

1. In case the employees still continue to go on strike and do not return to work after the strike has been ruled by the court to be illegal, depending on the seriousness of their violation, they may be subject to disciplinary measures in accordance with the labor law.

In case an illegal strike causes damage to the employer, the damage must be compensated in accordance with law by the trade union that leads the strike.

2. Those who take advantage of a strike to cause public disorder, sabotage machines and assets of the employer; those who prevent or instigate, drag or force employees to go on strike, take revenge on strikers and leaders of the strike shall, depending on the seriousness of their violations, be administratively sanctioned or examined for penal liability; and, if causing any damage, shall pay compensations in accordance with law.

Article 234. Order and procedures for settling complaints about rulings on the legitimacy of a strike

1. Within 15 days after receiving the ruling on the legitimacy of a strike, the executive committee of the trade union or the employer may lodge a written complaint with the Supreme People’s Court.

2. Upon receiving a complaint about the ruling on the legitimacy of a strike, the Supreme People’s Court shall request in writing the court that has considered the legitimacy of the strike to forward the whole file of the case to it for consideration.

3. Within 3 working days after receiving the Supreme People’s Court’s written request, the court that has issued the ruling on the legitimacy of the strike shall forward the whole file of the case to the Supreme People’s Court for consideration.

4. Within 5 working days after receiving the file, a panel shall settle the complaint about the ruling on the legitimacy of the strike.

The ruling of the Supreme People’s Court is the final binding decision on the legitimacy of the strike.