Chương XIV Luật Lao động 1994: Giải quyết tranh chấp lao động

Chapter XIV

SETTLEMENT OF LABOR DISPUTES

Article 157.-

1- A labor dispute is a dispute involving rights and interests related to employment, salaries, incomes and other labor conditions, the implementation of the labor contract, collective accord and questions arising during the process of apprenticeship.

2- Labor disputes include both individual disputes between the employee and the employer as well as collective disputes arising between the labor collective and the employer.

Article 158.- Labor disputes are settled on the following principles:

1- Direct negotiation and arrangement between the two parties to the dispute, at the place where the dispute arises;

2- Reconciliation and arbitration based on respect for the rights and interests of both parties, respect for the common interests of society and observance of law;

3- Openness, objectivity, timeliness, expeditiousness and in conformity with law; and

4- With the participation of the representative of the trade union and of the employer in the process of settling the dispute.

Article 159.- A labor dispute may be brought to the agency or organization in charge of settling labor disputes when one party refuses to negotiate or the two parties have failed in their negotiations, or when one or both parties apply for a settlement of their dispute.

Article 160.-

1- In the process of settling a labor dispute, the parties to the dispute have the right to:

a/ Participate in the process directly or through their representatives;

b/ Withdraw their demands or change the contents of their dispute; or

c/ Request the replacement of the person directly in charge of the settlement if they can produce plausible reasons to prove that this person cannot ensure objectivity and equity in the settlement of the dispute.

2- In the process of settling the labor dispute, the parties to the dispute are obliged to:

a/ Supply all necessary documents and evidences as requested by the agency or organization in charge of settling the dispute; and

b/ Implement in good faith that upon which agreement has been reached, the reconciliation, the effective decision of the agency or organization in charge of settling the labor dispute, and the verdict or the effective decision of the People's Court.

Article 161.- The office or organization in charge of settling a labor dispute has, within the scope of their task and powers, the right to request the disputing parties, the agencies, organizations and individuals concerned to supply documents and evidences, to ask for expert testimony, to invite the participation of witnesses and other persons concerned in the process of settling the labor dispute.

SECTION I.- COMPETENCE AND PROCEDURE FOR SETTLING INDIVIDUAL LABOR DISPUTES

Article 162.- The agencies and organizations having the competence to settle individual labor disputes are:

1- The local Labor Reconciliation Council or the Labor Reconciliator from the labor office in the district, town or city in a province (hereunder referred to as the district level) in the places where no local Labor Reconciliation Council exists; and

2- The People's Court.

Article 163.-

1- The local Labor Reconciliation Council, set up for a business with 10 or more employees, shall be composed of an equal number of representatives of the employees and of the employer. The number of members of the Council shall be decided by mutual agreement.

2- The term of the local Labor Reconciliation Council is two years. The positions of the Chairman and Secretary of the Council shall be rotated between the two sides. The Council operates according to the principle of agreement and consensus.

3- The employer must provide the necessary conditions for the local Labor Reconciliation Council to operate.

Article 164.-

The procedure for settlement of an individual labor dispute is prescribed as follows:

1- The local Labor Reconciliation Council shall meet within seven days after receiving the request for reconciliation. This meeting must be attended by the two disputing parties or their mandated representatives.

2- The local Labor Reconciliation Council shall propose a reconciliation plan for the parties to consider. If the two parties accept this plan, an agreement on reconciliation shall be drafted and signed by the two disputing parties, along with the President and the Secretary of the local Labor Reconciliation Council. The two parties are obliged to fulfill the agreements written in the record of reconciliation; and

3- If reconciliation fails, the local Labor Reconciliation Council shall draft a report on the failure which describes the positions of the two disputing parties and the Council, and which shall bear the signatures of the two parties, the President and the Secretary of the Council. Copies of this report shall be sent to the two parties not later than three days after the failure of the reconciliation. Each party to the dispute has the right to ask the district People's Court to settle the dispute. The dossier for the reconciliation shall be sent to the People's Court along with the report on the unsuccessful reconciliation.

Article 165.-

1- The Labor Reconciliator shall proceed, in the order defined at Article 164 of this Code, in regard to the individual labor disputes at businesses employing fewer and employer, or disputes regarding the execution of an apprenticeship contract and a job training tuition.

2- The Labor Reconciliator must begin the reconciliation not later than seven days after receiving the request for reconciliation.

Article 166.-

1- The district People's Court shall settle individual labor disputes, upon request of at least one of the two disputing parties, after the local Labor Reconciliation Council or Labor Reconciliator has been unable to facilitate a reconciliation.

2- The following labor disputes can be settled by the district People's Court, without having to go through the local Labor Reconciliation Council or Labor Reconciliator:

a/ Disputes concerning the disciplinary measure by dismiss all or the unilateral termination of the labor contract; and

b/ Disputes concerning the compensation for damages to the employer.

3- The employee is exempt from court fees for litigation concerning the demand for salary, social insurance, compensation for consequences of a labor accident, occupational diseases, compensation for damage, or indemnities for dismissal and unlawful termination of the labor contract.

Article 167.- The time-limit for settling individual labor disputes, which shall be determined to arise on the date when each of the two disputing parties claims that its rights and interests have been violated, is defined as follows:

1- One year for the labor disputes described at Item 1, Article 166, of this Code; and

2- Six months for all other labor disputes.

SECTION II.- COMPETENCE AND PROCEDURE IN SETTLEMENT OF COLLECTIVE LABOR DISPUTES

Article 168.- The agencies and organizations having the competence to settle collective labor disputes comprise:

1- The local Labor Reconciliation Council or the Labor Reconciliator of the district-level labor office where no local Labor Reconciliation Council exists;

2- The provincial-level Labor Arbitration Council.

3- The People's Court.

Article 169.-

1- The local Labor Reconciliation Council, as defined at Article 163 of this Code, has the jurisdiction to act as reconciliator also in the collective labor disputes.

2- The Labor Arbitration Council at the provincial level is composed of full-time or part-time members who are representatives of the labor office, trade union, employers, lawyers, managers and prestigious social workers in the locality. The Labor Arbitration Council at the provincial level comprises an uneven number of members, with a maximum of nine members, over which a representative of the provincial Labor Office presides.

The term of the Labor Arbitration Council shall be three years.

The Labor Arbitration Council shall act by majority vote and secret ballots.

The Labor Office at the provincial level shall provide the necessary conditions for the labor arbitration council to operate.

Article 170.- The procedure in the settlement of collective labor disputes is defined as follows:

1- The local Labor Reconciliation Council or the Labor Reconciliator shall commence the reconciliation within seven days after receiving a request for reconciliation. The two disputing parties or their mandated representatives must be present at the reconciliation meeting;

2- The local Labor Reconciliation Council or the Labor Reconciliator shall present a reconciliation plan for the two parties to consider. If the parties accept the plan, a report on the agreement shall be drafted and signed by the parties to the dispute, along with the President and the Secretary of the local Labor Reconciliation Council or the Labor Reconciliator. The two parties are obliged to implement the reconciliation agreement;

3- When the reconciliation fails, the local Labor Reconciliation Council or the Labor Reconciliator shall draft a report on the unsuccessful reconciliation, with opinions and the signatures of the two disputing parties as well as of the President of the Council or the Labor Reconciliator. Both parties to the dispute have the right to request the Labor Arbitration Council at provincial level for a settlement.

Article 171.-

1- The Labor Arbitration Council shall commence the reconciliation and settle the collective labor dispute within 10 days after receiving the request.

The lawful representatives of the two parties to the dispute must be present at the meeting to settle the collective labor dispute. When necessary, the Labor Arbitration council may invite higher levels of the local Trade Union and the representative of the concerned State agency to attend the meeting.

2- The Labor Arbitration Council shall present a reconciliation plan for the two parties to consider. If the parties agree, a report on the agreement shall be drafted with the signatures of the disputing parties, along with that of the President of the Arbitration Council. The two parties are obliged to comply with the provisions of the reconciliation agreement.

3- If the reconciliation fails, the Labor Arbitration Council shall settle the dispute and immediately inform the two disputing parties of its decision. If neither party to the dispute objects, the decision shall automatically take effect.

Article 172.-

1- If the labor collective does not agree with the decision of the Labor Arbitration Council, it may request the People's Committee to settle the dispute or may stage a work strike.

2- If the employer does not agree with the decision of the Labor Arbitration Council, he/she may request the People's Court to reconsider the decision. The request of the employer for the reconsideration of the Labor Arbitration Council's decision shall not preempt the right to strike by the labor collective.

Article 173.-

1- While the Labor Reconciliation Council or the Labor Arbitration Council is settling the labor dispute, neither party to the dispute is allowed to take unilateral action against the other.

2- The work strike shall be decided by the Executive Committee of the local Trade Union after the majority of the labor collective approve it by a secret ballot or by signatures.

The Executive Committee of the local Trade Union shall send a delegation, composed of no more than three persons to present a list of demands to the employer and, at the same time, send a notice to the labor office at the provincial level and notice of such demands to the provincial chapter of the Vietnam General Confederation of Labor. The list of demands and the notice must specify the questions in dispute, the contents of the demands, the result of the vote or the signing in favor of the work strike and the point of time when the strike shall begin.

3- It is strictly forbidden to engage in acts of violence or acts which damage the machinery, equipment and other property of the business or any violations of public order and safety during the strike.

Article 174.- Strikes are forbidden at businesses of public service or businesses essential to the national economy or national security and defense, as specified by the Government.

The State managerial agencies must periodically collect the opinions of the representatives of the labor collectives and the employers at these businesses in order to help settle in time the legitimate demands of the labor collectives. When a collective labor dispute occurs, it shall be settled by the provincial Labor Arbitration Council. If one of the two parties disagrees with the decision of the Labor Arbitration Council, it may ask the People's Court to settle the dispute.

Article 175.- If the strike is judged to constitute a serious danger to the national economy or to public safety, the Prime Minister is entitled to order the postponement or cessation of the strike.

Article 176.-

1- The following strikes are unlawful:

a/ The strike does not proceed from a collective labor dispute, or which exceeds the scope of labor relations;

b/ The strike exceeds the domain of the business; and

c/ The strike violates the provisions of Items 1 and 2, Article 173, and Article 174, of this Code.

2- The determination of whether a strike is lawful or unlawful comes under the jurisdiction of the People's Court.

Article 177.- The decision of the People's Court on the strikes and collective labor disputes shall be final.

Article 178.-

1- If is strictly forbidden to engage in acts of harassment or retaliation against the participants or leaders of strikes.

2- Any person who prevents the exercise of the right to strike, who forces others to strike, who takes unlawful acts during the strike, who refuses to comply with the decision of the Prime Minister or of the People's Court, shall, depending on the extent of the offense, indemnify any damages, be subject to administrative sanctions or be investigated for penal liability.

Article 179.- The settlement of strikes and court rulings concerning labor shall be conducted by the Standing Committee of the National Assembly.