Chương V Bộ luật Lao động 2019: Đối thoại tại nơi làm việc, thương lượng tập thể, thỏa ước lao động tập thể

Chapter V

DIALOGUE AT WORKPLACE, COLLECTIVE BARGAINING, COLLECTIVE BARGAINING AGREEMENTS

Section 1. DIALOGUE AT WORKPLACE

Article 63. Organization of dialogue at the workplace

1. Dialogue at the workplace means the sharing of information, discussion between the employer and employees or representative organization of employees regarding the issues relevant to the rights and interests of the parties at the work place in order to strengthen the understanding, cooperation and work out mutually beneficial solutions.

2. Dialogue at the workplace shall be held by the employer:

a) at least once a year;

b) whenever requested by one or both party;

c) in any of the events specified in Point a Clause 1 Article 36, Articles 42, 44, 93, 104, 118 and Clause 1 Article 128 of this Labor Code.

3. Employers, employees and representative organizations of employees are encouraged to hold dialogues in occasions other than those specified in Clause 2 of this Article.

4. The Government shall provide for organization of dialogue and implementation of democracy regulations at the workplace.

Article 64. Contents of dialogue at the workplace

1. Mandatory contents are specified in Point c Clause 2 Article 63 of this Labor Code.

2. Apart from the mandatory contents mentioned in Clause 1 of this Article, the parties may include one or some of the following issues in the dialogue:

a) Business performance of the employer;

b) Performance of the employment contracts, collective bargaining agreement, internal labor regulations, other commitments and agreements at the workplace;

c) Working conditions;

d) Requests of employees and representative organization of employees to the employer;

dd) Requests of employer to the employees and the representative organization of employees;

e) Other issues of concern to either or both parties.

Section 2. COLLECTIVE BARGAINING

Article 65. Collective bargaining

Collective bargaining is a process of negotiation between a party that consists of one or several representative organization of employees and another party that consists of one or several employers or employer representative in order to regulate working conditions, relationship between the parties and develop progressive, harmonious and stable labor relations.

Article 66. Principles of collective bargaining

Collective bargaining shall be carried out on the principles of voluntariness, good faith, equality, cooperativeness, openness to the public and transparency.

Article 67. Issues for collective bargaining

The parties may include one or some of the following issues in the collective bargaining:

1. Salary, bonus, allowances, pay rise, means and other benefits;

2. Labor rates, working hours, rest periods, overtime work, rest breaks at work;

3. Employment security for the workers;

4. Occupational safety and health; implementation of the internal labor regulations;

5. Conditions and equipment of the representative organization of employees; the relationship between the employer and the representative organization of employees;

6. Mechanism and methods for prevention and settlement of labor disputes;

7. Assurance of gender equality, maternity protection, annual leaves; actions against violence and sexual harassment in the workplace;

8. Other issues of concern to either or both parties.

Article 68. The right to request collective bargaining of the internal representative organization of employees

1. The representative organization of employees has the right to request collective bargaining whenever it reaches the minimum number of members as prescribed by the Government.

2. In case an enterprise has more than one internal representative organization of employees that satisfies the requirements in Clause 1 of this Article, the one that has the most members will have the right to request the collective bargaining. Other representative organizations of employees may participate in the collective bargaining if agreed by the requesting organization.

3. If none of the employees‘ representative organizations of an enterprise satisfies the requirements in Clause 1 of this Article, they may request collective bargaining if their total number of members reaches the minimum number specified in Clause 1 of this Article.

4. The Government shall provide for settlement of disputes among the parties over the right to request collective bargaining.

Article 69. Representatives of the parties to the collective bargaining

1. The number of representatives of each party participating in the collective bargaining shall be agreed by the two parties.

2. The participants of each party in the collective bargaining shall be decided by the party.

In case more than one representative organization of employees participate in the collective bargaining as prescribed in Clause 2 Article 68 of this Labor Code, they may negotiate the number of representatives of each organization.

In the case specified in Clause 3 Article 68 of this Labor Code, the number of representatives of each organization shall be negotiated by the organizations. If an agreement cannot be reached, each organization shall decide the number of its representative based on the ratio of its members to the total number of members.

3. Each party to the collective bargaining may invite representatives from its superior organization and this has to be accepted by the other parties. The representatives of each party to the collective bargaining must not exceed the agreed quantity mentioned in Clause 1 of this Article, unless otherwise agreed by the other parties.

Article 70. Collective bargaining procedures

1. Whenever collective bargaining is requested by a representative organization of employees in accordance with Article 68 of this Labor Code, the requested party must not refuse to hold the collective bargaining.

Within 07 working days from the day on which the request and the agenda are received, the parties shall agree upon the location and starting time for the bargaining.

The employer shall prepare time, location and other conditions for holding collective bargaining meetings.

The collective bargaining must be held within 30 days from the day on which the request is received.

2. The duration of a collective bargaining must not exceed 90 days from its starting day, unless otherwise agreed by the parties.

The employees’ representatives shall be fully paid for the time spent participating in the collective bargaining meetings. The time a member of the representative organization of employees spends participating in the collective bargaining meetings shall not be included in the time specified in Clause 2 Article 176 of this Labor Code.

3. During the course of collective bargaining, if the employee’s party requests the employer’s party to provide information on the business performance and other information relevant to the collective bargaining issues, with the exception of business secrets, technological know-how of the employer, such information must be provided within 10 days from the day on which such request is received.

4. Other representative organizations of employees may discuss with the employees about the contents, methods and results of the collective bargaining.

The representative organization of employees may decide the time, location and method of discussion or survey as long as it does not affect the enterprise’s normal business operation.

The employer must not obstruct or interfere with the discussion or survey held by the representative organization of employees.

5. Minutes of the bargaining meeting must be taken and it must specify the issues which have been agreed upon by the parties and issues that remain controversial. The minutes shall bear the signatures of the parties and the record maker. The representative organization of employees shall make the minutes of the collective bargaining available to all employees.

Article 71. Failed collective bargaining

1. A collective bargaining is considered failed in any of the following circumstances:

a) A party refuses to participate in the collective bargaining or the collective bargaining is not held within the time limit specified in Clause 1 Article 70 of this Labor Code;

b) An agreement cannot be reached within the time limit specified in Clause 2 Article 70 of this Labor Code;

c) The parties declare that the collective bargaining has failed before expiration of the time limit specified in Clause 2 Article 70 of this Labor Code.

2. In case the bargaining fails, the parties may initiate labor dispute settlement procedures as prescribed in this Labor Code. During the labor dispute settlement, the representative organization of employees must not call a strike.

Article 72. Sectoral collective bargaining, multi-enterprise collective bargaining

1. The principles and contents of sectoral collective bargaining and multi-enterprise collective bargaining shall comply with Article 66 and Article 67 of this Labor Code.

2. The procedures for holding sectoral collective bargaining and multi-enterprise collective bargaining shall be negotiated by the parties, including collective bargaining via a collective bargaining council specified in Article 73 of this Labor Code.

3. In case of a sectoral collective bargaining, the representatives shall be the sectoral trade union and sectoral employer representative organizations.

In case of a multi-enterprise collective bargaining, the representatives shall be decided by the parties.

Article 73. Multi-enterprise collective bargaining via a collective bargaining council

1. By consensus, the parties to a multi-enterprise collective bargaining may request the People’s Committee of the province where they are headquartered (or a province they choose if they are headquartered in different provinces) to establish a collective bargaining council.

2. Upon receipt of the said request, the People’s Committee of the province shall issue a decision to establish a collective bargaining council. A collective bargaining council consists of:

a) A chairperson who is chosen by the parties and has the responsibility to operate the council and assist in the process of collective bargaining.

b) Representatives appointed by each party. The number of representatives of each party who participate in the council shall be agreed upon by the parties;

c) Representatives of the People’s Committee of the province.

3. The collective bargaining council shall hold the collective bargaining at the request of the parties and shall be dismissed when a multi-enterprise collective bargaining agreement is concluded or when the dismissal is agreed upon by the parties.

4. The Minister of Labor, War Invalids and Social Affairs shall provide for the functions, duties and operation of collective bargaining councils.

Article 74. Responsibilities of the People’s Committees of provinces in collective bargaining

1. Provide training in collective bargaining skills for the parties to the collective bargaining.

2. Provide information and data about the economy, society, labor market and labor relation in order to facilitate the process of collective bargaining.

3. Assist the parties in reaching an agreement during the collective bargaining on its own initiative or when requested by the parties. If no request is made by the parties, the assistance shall only be provided if it is accepted by the parties.

4. Establish a collective bargaining council when requested by parties to the multi-enterprise collective bargaining in accordance with Article 73 of this Labor Code.

Section 3. COLLECTIVE BARGAINING AGREEMENTS

Article 75. Collective bargaining agreements

1. A collective bargaining agreement means an agreement that is reached through a collective bargaining and concluded in writing by the parties.

Collective bargaining agreements include enterprise-level collective bargaining agreements, sectoral collective bargaining agreements, multi-enterprise collective bargaining agreements and other types of collective bargaining agreements.

2. The contents of a collective bargaining agreement must not be contrary to the law, and should provide for the terms and conditions that are more favorable to the employees than those provided by law.

Article 76. Survey and conclusion of collective bargaining agreements

1. Before an enterprise-level collective bargaining agreement is concluded, its draft must be made available for comment by all employees of the enterprise. An enterprise-level collective bargaining agreement shall only be concluded if it is voted for by more than 50% of the enterprise’s employees.

2. A sectoral collective bargaining agreement shall be available for comment by all members of the management boards of the representative organizations of employees of the enterprises participating in the bargaining. A sectoral collective bargaining agreement shall only be concluded if it is voted for by more than 50% of the voters.

A multi-enterprise collective bargaining agreement shall be available for comment by all employees of the enterprises participating in the bargaining or members of management boards of the representative organizations of employees thereof. Only an enterprise more than 50% of employees of which vote for the multi-enterprise collective bargaining agreement may participate in its conclusion.

3. The time and location for casting votes on a draft collective bargaining agreement shall be decided by the representative organization of employees as long as it does not affect the participating enterprises’ normal business operation. The employers must not obstruct or interfere with process of voting on the draft agreement by the representative organizations of employees.

4. A collective bargaining agreement shall be concluded by legal representatives of the parties.

In case a multi-enterprise collective bargaining agreement is negotiated via a collective bargaining council, it shall be concluded by the chairperson of the council and legal representatives of the parties.

5. A copy of the collective bargaining agreement shall be sent to every party and the provincial labor authority in accordance with Article 77 of this Labor Code.

In case of a sectoral or multi-enterprise collective bargaining agreement, each employer and representative organization of employees of the participating enterprises shall receive 01 copy.

6. After a collective bargaining agreement is concluded, the employer must make publicly available to their employees.

7. The Government shall elaborate this Article.

Article 77. Sending the collective bargaining agreement

Within 10 days from the day on which a collective bargaining agreement is concluded, the employer shall send 01 copy to the provincial labor authority in the same province where the enterprise is headquartered.

Article 78. Effective date and effective period of collective bargaining agreements

1. The effective date of a collective bargaining agreement shall be agreed upon by the parties and specified in the agreement itself. In case the parties do not agree upon an effective date, the collective bargaining agreement shall be effective on its conclusion date.

An effective collective bargaining agreement shall be upheld by the parties.

2. An enterprise-level effective collective bargaining agreement shall be binding on the employer and all employees of the enterprise. An effective sectoral or multi-level collective bargaining agreement shall be binding on all employers and employees of the participating enterprises.

3. The effective period of a collective bargaining agreement shall 01 – 03 years. The specific effective period shall be agreed upon by the parties and specified in the collective bargaining agreement. The parties may agree upon various effective periods for different parts of a collective bargaining agreement.

Article 79. Implementation of enterprise-level collective bargaining agreements

1. The employer and the employees, including new employees who are employed after the collective bargaining agreement has come into effect, shall be responsible for the full implementation of the effective collective bargaining agreement.

2. Where the rights, responsibilities and interests of the parties stipulated in the employment contract which were concluded before the effective date of the collective bargaining agreement are less favorable than those of respective provisions provided in the collective bargaining agreement, the provisions of the collective bargaining agreement shall prevail. Internal labor regulations of the employer which are not conformable with the collective bargaining agreement shall be revised accordingly. Provisions of the collective bargaining agreement shall apply until such revisions are made.

3. Where a party considers that the other party does not perform fully or violates the provisions of the collective bargaining agreement, the former has the right to request the latter to fully comply with the agreement, and both parties must jointly settle the issue. In case of failure to settle the issue, either party has the right to request settlement of the collective labor dispute in accordance with the law.

Article 80. Implementation of an enterprise-level collective bargaining agreement upon full division, partial division, consolidation, merger of the enterprise; sale, lease, conversion of the enterprise; transfer of the right to ownership or right to enjoyment of assets of the enterprise

1. Upon full division, partial division, consolidation, merger of the enterprise; sale, lease, conversion of the enterprise; transfer of the right to ownership or right to enjoyment of assets of an enterprise, the succeeding employer and representative organization of employees mentioned in Article 68 of this Labor Code shall consider revising the existing enterprise-level collective bargaining agreement or concluding a new one, In consideration of the labor utilization plan.

2. In case a collective bargaining agreement expires because the employer ceases its operation, the rights and interests of the employees shall be settled in accordance with the law.

Article 81. Relationship between enterprise-level collective bargaining agreements, sectoral collective bargaining agreements and multi-enterprise collective bargaining agreements

1. In case an enterprise-level collective bargaining agreement, multi-enterprise collective bargaining agreement and sectoral collective bargaining agreement provide for employees’ rights, obligations and interests differently, the most favorable provisions shall apply.

2. An enterprise which is subject to the governance of a sectoral collective bargaining agreement or multi-enterprise collective bargaining agreement but have not established enterprise-level collective bargaining agreements may establish an enterprise-level collective bargaining agreement with more favorable terms and conditions for employees than those stipulated in the sectoral collective bargaining agreement or multi-enterprise collective bargaining agreement.

3. Enterprises that have not participated in any sectoral collective bargaining agreement or multi-enterprise collective bargaining agreement are encouraged to adopt more favorable provisions of a sectoral collective bargaining agreement or multi-enterprise collective bargaining agreement.

Article 82. Revisions of collective bargaining agreements

1. A collective bargaining agreement may only be amended by the parties through collective bargaining on a voluntary basis.

The process of revising a collective bargaining agreement shall be the same as that of the negotiation and conclusion of a collective bargaining agreement.

2. In case a change in law results in the collective bargaining agreement being unsuitable with the new law, the parties must revise the collective bargaining agreement accordingly within 15 days from the date on which the new legal provisions come into effect. During the process of revising the collective bargaining agreement, the rights and interests of the employees will be ensured in accordance with the law.

Article 83. Expiry of collective bargaining agreements

Within 90 days prior to the expiry date of a collective bargaining agreement, the parties may negotiate extension of the collective bargaining agreement or conclusion of a new collective bargaining agreement. In case the parties agree on an extension, a survey shall be carried out in accordance with Article 76 of this Labor Code.

Where the collective bargaining agreement expires while the negotiation process is still on-going, it shall continue to be effective for a maximum duration of 90 days from the expiry date, unless otherwise agreed by the parties.

Article 84. Extension of scope of sectoral collective bargaining agreements or multi-enterprise collective bargaining agreements

1. When a sectoral collective bargaining agreement or multi-enterprise collective bargaining agreement applies to more than 75% of employees or more than 75% of enterprises in the same field or sector in an industrial park, economic zone, export-processing zone or hi-tech zone, the employers or representative organizations of employees therein shall request a competent authority to issue a decision to extend the scope of part or all of the collective bargaining agreement to other enterprises in the same field or sector in that industrial park, economic zone, export-processing zone or hi-tech zone.

2. The Government shall elaborate Clause 1 of this Article; the procedures and competence to decide the scope of collective bargaining agreements mentioned in Clause 1 of this Article.

Article 85. Joining and withdrawing from a sectoral collective bargaining agreements or multi-enterprise collective bargaining agreement

1. An enterprise may join a sectoral or multi-level collective bargaining agreement when it is agreed by all employers and representative organizations of employees of the participating enterprises, except for the cases specified in Clause 1 Article 84 of this Labor Code.

2. An enterprise that is a member of a sectoral or multi-level collective bargaining agreement may withdraw from it when the withdrawal is agreed by all employers and representative organizations of employees of the participating enterprises, unless it is facing business difficulties.

3. The Government shall elaborate this Article.

Article 86. Invalid collective bargaining agreements

1. A collective bargaining agreement shall be partially invalid if one or some of its contents are contrary to the law.

2. A collective bargaining agreement shall be entirely invalid in any of the following circumstances:

a) The entire contents of the collective bargaining agreement are illegal;

b) The collective bargaining agreement was concluded by a person without due competence;

c) The procedures for negotiation and conclusion of the collective bargaining agreement were not followed.

Article 87. Competence to declare a collective bargaining agreement invalid

People’s Courts shall be entitled to declare a collective bargaining agreement as invalid.

Article 88. Handling of invalid collective bargaining agreements

When a collective bargaining agreement is declared invalid, the rights, obligations and interests of parties specified in the invalid parts shall be handled in accordance with the provisions of the law and other lawful agreements as provided in the employment contract.

Article 89. Costs for negotiation and conclusion of collective bargaining agreements

The costs of negotiation, conclusion revision, sending an announcement of the collective bargaining agreement shall be paid by the employer.