Chương VI Nghị định 05/2015/NĐ-CP hướng dẫn bộ luật lao động: Giải quyết tranh chấp lao động

Chapter VI

SETTLEMENT OF LABOR DISPUTES

Article 34. Labor arbitration council

1. Labor arbitration council in article 199 of the Labor Code shall include:

a) A chairperson who is the head of the state management agency of labor

b) A secretary

c) Members who are the representatives of the provincial-level trade union and the employers’ representative organization

2. The Chairman and members of the arbitration council shall hold part-time office with 05-year tenure.

3. The Secretary of the council shall be on the payroll of the Services of Labor, War Invalids and Social Affairs and work full time and be entitled to the responsibility allowance equivalent to the position-based allowance paid to the Head of the Department.

4. Chairperson of the labor arbitration council shall define working regulations of the council

Article 35. Handling of labor strikes that does not follow the regulatory procedures

Handling of strikes that does not follow the regulatory procedures in Article 222 of the Labor Code shall be prescribed as follows

1. Declaring that a strike violates the regulatory procedures permitted by the provincial People’s Committee shall be carried out as follows :

a) Whereas organizing and leading the strike do not comply with the provisions of Articles 212 and 213 of the Labor Code, the employer shall immediately gives notification to the Chairman of the district-level People's Committee and provincial Confederation of Labor or Trade Union of industrial zones, processing and exporting zones, economic zones, hi-tech zones at the places where the strike takes place;

 b) Immediately after receiving the notice of the employer, the Chairman of the district People's Committee shall direct the Division of Labor - Invalids and Social Affairs in collaboration with the provincial Confederation of Labor or Trade Union of industrial zones, processing and exporting zones, economic zones, hi-tech zones at the place of the strike, within 24 hours after receiving the direction, The Division of Labor - Invalids and Social Affairs Committee Chairman shall report the Presidents of People’s Committees of districts on test results;

c) If the strike does not follow the prescribed procedures, within 12 hours after receiving the report of the Department of Labor - Invalids and Social Affairs, the Chairman of the district –level People's Committee shall request in writing the Chairman of the provincial People's Committee to make decision on declaring that the strike violates the prescribed procedures;

d) Within 12 hours after receiving the request of the Chairman of the district-level People's Committee, the Chairman of the provincial People's Committee shall issue a decision on declaring that the strike violates the prescribed procedures and immediately inform the Chairman of the district-level People's Committee.

2. Within 12 hours after receiving the decision to declare the strike violates the prescribed procedures of the Chairman of the provincial People's Committee, Chairman of the district-level People's Committee shall direct the Division of Labor - Invalids and Social Affairs to take charge and cooperate with the provincial Confederation of Labor or Trade Union of industrial zones, processing and exporting zones, economic zones, hi-tech zones at the place of the strike, involved agencies and organizations shall directly meet the employer, the Executive board of The primary trade unions or the Trade Union as the immediate superior to the grassroots level where the trade unions at grassroots level have not been established to get the opinions from and give support to parties for the purpose of strike settlement.

3. Participants in strikes that do not follow the prescribed procedures shall not be paid salary and other benefits under the provisions of the law in the time of participating in the strike. Employees who do not participate in the strike but have to stop working because of the strike shall be paid salary for such stop in accordance with clause 2 of Article 98 of the Labor Code and other benefits under the provisions of legislation on labor.

Article 36. Compensation for damage caused by illegal strikes

Compensation for damage in case of illegal strikes in clause 1 of Article 233 of the Labor Code shall be prescribed as follows:

1. The employer shall determine the value of the damage caused by the illegal strike, including:

a) Damage to machinery, equipment, raw materials, fuel, semi-finished products and finished products damaged after deducting the residual value due to liquidation and recycling (if any);

b) Remedial costs due to illegal strike including: Operation of machinery used to meet technology demand ; repair and replacement of damaged machinery and equipment ; recycling of damaged raw materials, fuel, semi-finished products and finished products; preservation of natural materials, fuel, semi-finished products, finished products during the strike; sanitation; customer compensation or handling of contract violations that arise from the strike.

2. The employer shall request in writing the trade union organization leading the illegal strike to pay damage. A written request shall have some main contents as follows:

a) Value of damage due to illegal strike specified in clause 1 of this Article;

b) The value of compensation claims;

c) The deadline for compensation

3. Based on the content of the written request for damage compensation from the employer, trade union representatives directly leading the strike shall compensate for damage as prescribed.

In case of disagreement with the value of damage, compensation value, compensation duration at the request of the employer, within 05 working days from receipt of the written request, the representative of the trade union directly leading the strike shall send a written request to the employer to negotiate the disagreed contents.

After negotiation, if agreement is reached, both parties shall have the responsibility to implement the agreed content. If disagreement arises, either of two parties shall in accordance with the law.