Chương II Nghị định 119/2014/NĐ-CP hướng dẫn bộ luật lao động luật dạy nghề lao động đi làm việc ở nước ngoài khiếu nại tố cáo: Khiếu nại và giải quyết khiếu nại

Chapter II

COMPLAINT AND COMPLAINT SETTLEMENT

Section 1: COMPLAINT

Article 5. Order of complaint

1. When there are the grounds that the decisions and behavior of employers, organizations and individuals involved in vocational traning, sending Vietnamese employees working abroad under contract are illegal and directly infringe on the legal rights and interests of the complainants, such complainants shall make sending Vietnamese employees working abroad under contract complaint for the first time to the complaint settlers as stipulated in Clause 1, Article 15, Clause 1, Article 16, Clause 1, Article 17 of this Decree.

2. Where the complainants do not agree with the decision on complaint settlement as stipulated in Clause 1 of this Article or if exceeding the time limit specified in Article 19 of this Decree but the complaints have not settled, such complainants shall make a complaint for the second time under the following provisions:

a) For complaint about labor, the complainant shall make a complaint to the complaint settler specified in Clause 2, Article 15 of this Decree;

b) For complaint about vocational traning, the complainant shall make a complaint to the complaint settler specified in Clause 2, Article 16 of this Decree;

c) For complaint about the activity of sending Vietnamese employees working abroad under contract, the complainant shall make a complaint to the complaint settler specified in Clause 2, Article 17 of this Decree;

3. Where the complainans does not agree with decision on complaint settlement as stipulate in Clause 2 of this Article or exceeding the time limit specified in Article 27 of this Decree, the complainant has the right to make a complaint as stipulated by the Complaint Law and other relevant documents or initiate sending Vietnamese employees working abroad under contract suit a Court as stipulated under Point b, Clause 2, Article 10 of this Decree.

Article 6. Forms of complaint

1. The complaint is made in the form of sending a complaint petition or making a direct complaint as provided for as follows:

a) For form of sending complaint petition, specify the content: date, month, year, name, address of the complainant; name and address of organ, organization or individual to be complained; content, reason for complaint, documents related to the content of complaint (if any) and request the settlement of complaint. The complaint petition must be signed by the complainant or must press his/her finger-print;

b) For form of direct complaint, the person receiving the complainant shall instruct the complainant to write the petition or shall write all contents of complaint as stipulated under Point a of this Clause and the complainant to sign or press his/her finger-print in the document.

2. Where some persons make a complaint about one content, follow these instructions:

a) For form of sending complaint petition, write all contents specified under Point a, Clause of this Article with the signature of complainants and appoint a representative for presentation upon requirement of the complaint settler;

b) For form of direct complaint, the competent authorities shall meet and require the representative to present the content of complaint; the complaint receiver shall record all contents of complaint as stipulated under Point a, Clause 1 of this Article and require the representative to sign or press his/her finger-print in the document.

3. Where the complaint is made through the representative, this representative must have paper to demonstrate the legality of representation and make a complaint under the provisions of this Decree.

Article 7. Statute of limitations of complaint

1. The first statute of limitations is 180 days from the date the complainant receives or knows the decision or behavior of the employer, organization or individual providing vocational training, organization or individual sending Vietnamese employees working abroad under contract complained.

2. The second statute of limitations is 30 days from the end date of time limit specified in Article 19 of this Decree or from the date of receiving the first decision on complaint settlement but the complainant has not agreed with such decision.

3. Where the complainant is unable to exercise the right to complaint in accordance with the statute of limitations specified in Clause 1 and 2 of this Article due to illness, natural disaster, sabotage, business travelling, study in remote area or other objective impediments, the duration of such impediment shall not be included in the statute of limitations.

Article 8. Withdrawal of complaint petition

1. The complainant has the right to withdraw his/her complaint petition at any time during the complaint and complaint settlement.

2. The withdrawal of complaint must be done in petition signed or pressed with finger-print of the complainant. The petition for withdrawal of complaint must be sent to the complaint settler.

3. Within 30 working days after receiving the petition for withdrawal of complaint from the complainant, the complaint settler shall issue sending Vietnamese employees working abroad under contract decision on suspending the complaint settlement and send it to the complainant.

Article 9. Complaint not eligible for handling and settlement under this Decree

1. Decision or behavior is not directly related to the legal rights and interests of the complainant.

2. The complainant has no capacity for civil acts and without legal representative.

3. The representative is not legal.

4. The complaint petition has no signature or finger-print of the complainant.

5. The statute of limitations as stipulated in Clause 1 and 2, Article 7 of this Decree is over without any reason as stipulated un Clause 3, Article 7 of this Decree.

6. There is a document of the competent authorities to notify the suspension of complaint settlement but after 30 days from the date of notice document, the complainant does not continue his/her complaint.

7. The complaint has a decision of settlement with legal effect.

8. The complaint has been handled by the Court or settled by a judgment or decision of the Court, except for decision on suspension of case settlement from the Court.

Section 2. RIGHTS AND OBLIGATIONS OF THE COMPLAINANT, COMPLAINEE, LAWYER, LEGAL AID AND LEGAL ASSISTANT

Article 10. Rights and obligations of the complainant

1. The complainant has the following rights:

a) Makes a complaint by himself/herself or authorizes another person to make a complaint;

b) Joins the dialogue or authorizes a legal representative to joint the dialogue;

c) Knows, reads, duplicates or copies documents or evidences which the complaint settler has collected for complaint settlement except for information and documents of state secret or secret of the complainee as prescribed by law;

d) Requests relevant individuals, organs or organizations that are keeping and managing information and documents related the content of complaint to provide the content of such information and documents except for information and documents of state secret or secret of the complainee as prescribed by law;

dd) Requests the complaint settler to apply urgent measures to prevent potential consequence due to the enforcement of complained decision or bahavior.

e) Presents evidence of complaint and explains his/her opinions about such evidence;

g) Is restored his/her legal rights or interests that have been infringed due to the enforcement of complained decision or bahavior.

h) Is compensated for damages as prescribed by law;

i) Withdraws his/her complaint as stipulated in Article 8 of this Decree;

k) Make a second complaint;

l) Initiates a suit at the Court as stipulated in Clause 2 of this Article.

2. Right to initiate a suit at the Court:

a) The complainant has the right to initiate a suit at the Court as prescribed by the Civil Procedure Law in the following cases:

- When there are the grounds that the decision or behavior of the employer, organization or individual involved in vocational traning; organization or individual sending Vietnamese employees working abroad under contract is illegal and directly infringes to the complainant’s legal rights and interests.

- The complainant does not agree with the first decision on complaint settlement as stipulated in Article 22 of this Decree;

- The time limit specified in Article 19 of this Decree is over but the first complaint has not been settled.

b) The complainant has the right to initiate a suit at the Court under the provisions of the Administrative Procedure Law in the following cases:

The complainant does not agree with the second decision on complaint settlement as stipulated in Article 30 of this Decree;

The time limit specified in Article 27 of this Decree is over but the second complaint has not been settled.

3. The complainant has the following obligations:

a) Makes a complaint as per the order and procedures specified in this Decree;

b) Honestly presents the case and gives evidence of the complaint; provides relevant information and documents to the complaint settler; takes responsibility before law for the presented contents and supply of such information and documents;

c) Strictly comply with the decision on complaint settlement with legal effect.

4. The complainant shall exercise his/her rights and obligations as prescribed by law.

Article 11. Rights and obligations of the complainee

1. The complainee has the following rights:

a) Gives evidence of legality of complained decision or behavior;

b) Knows, reads, duplicates documents or copies evidence which the second complaint settler has collected for complaint settlement except for information and documents of state secret or secret of the complainee as prescribed by law;

c) Requests the relevant individuals, organs and organizations that are storing and managing information and documents related to the content of complaint to provide such information and documents within 05 working days, from the date of request and deliver them to the second complaint settler for complaint settlement except for information and documents of state secret or secret of the complainee as prescribed by law;

d) Receives the second decision on complaint settlement.

2. The complainee has the following obligations:

a) Carries out the first complaint settlement under the authority specified in Clause 1, Article 15, Clause 1, Article 16, Clause 1, Article 17 of this Decree;

b) Joins the dialogue or authorizes a legal representative to joint the dialogue;

c) Abides by the decision on verifying the content of complaint of individual or organ with authority to settle the complaint for the second time;

d) Provides information and documents related to the content of complaint within 05 working days after the request of the person with authority to settle the complaint for the second time.

dd) Makes explanation about the legality and properness of decision or beavior upon requirement from the person with authority to settle the complaint for the second time.

e) Strictly comply with the decision on complaint settlement with legal effect.

3. The complainee shall exercise his/her rights and obligations as prescribed by law.

Article 12. Rights and obligations of the first complaint settler

1. The first complaint settler has the following rights:

a) Requires the complainant and other persons related to the complaint to provide information, documents and evidence within 05 days from the requirement date as basis for complaint settlement;

b) Decides the application and cancellation of urgent measures as stipulated in Article 25 of this Decree.

2. The first complaint settler has the following obligations:

a) Receives the complaint and give a written notice of the handling of complaint settlement to individual, organ or organization under the provisions in Article 18 of this Decree;

b) Settles the complaint related to his/her complained decision or behavior;

c) Organizes dialogue with the complainant and relevant organ, organization and individual;

d) Sends the decision on complaint settlement to the relevant organ, organization and individual as stipulated in Article 23 of this Decree;

dd) Takes responsibility before law for his/her complaint settlement;

e) Provides information, documents and evidence related to the content of complaint upon the complainant’s request;

g) Provides dossier of complaint settlement upon the requirement of the second complaint settler or the Court.

3. The first complaint settler shall exercise other rights and obligations as prescribed by law.

Article 13. Rights and obligations of the second complaint settler

1. The second complaint settler has the following rights:

a) Requires the complainant, complainee and relevant organization, organ and individual to provide information, documents and evidence within 05 working days from the date of requirement as a basis for complaint settlement;

b) Decides the application and cancellation of urgent measures as stipulated in Article 25 of this Decree.

c) Holds an inspection as a basis for complaint settlement.

2. The second complaint settler has the following obligations:

a) Receives, handles and prepares dossier of complaint under his/her settlement authority;

b) Checks and verifies the content of complaint;

c) Organizes dialogue between the complainant, complainee and other relevant organs, organizations and individual;

d) Issues decision and announces decision on complaint settlement;

dd) Provides information and documents related to the content of complaint upon request from the complainant or complainee;

e) Provides information and documents related to the content of complaint and dossier of complaint settlement for the second time upon requirement from the Court.

3. The second complaint settler shall exercise other rights and obligations as prescribed by law.

Article 14. Rights and obligations of lawyer, legal aid and legal assistant

1. The lawyer, legal aid and legal assistant have the following rights:

a) Participate in the course of complaint settlement as requested by the complainant;

b) Exercise the complainant’s rights and obligations upon being authorized.

c) Verify and collect evidence related to the content of complaint as requested by the complainant and provides evidence to the complaint settler;

d) Study dossier of case, duplicate or copy documents and evidence related to the content of complaint to protect the complainant’s legal rights and interests except for information and documents of state secret or secret of the complainee as prescribed by law;

2. The lawyer, legal aid and legal assistant have the following obligations:

a) Present lawyer card, legal aid card and legal assistant card and assignment decision on legal assistance, request for legal assistance or power-of-attorney of the complainant;

b) Properly exercise the content and scope authorized by the complainant.

3. The lawyer, legal aid and legal assistant shall exercise other rights and obligations as prescribed by law.

Section 3: AUTHORITY TO SETTLE COMPLAINT

Article 15. Authority to settle labor complaint

1. The employer has the authority to settle the complaint for the first time for his/her complained decision or behavior.

2. Chief Inspector of Department of Labour - Invalids and Social Affairs where the employer’s head office is located has the authority to settle the complaint for the second time for labor complaint when the complainant does not agree with the first decision on complaint settlement as stipulated in Clause 1 of this Article or at the end of time limit specified in Article 19 of this Decree but the complaint has not been settled.

Article 16. Authority to settle vocational traning complaint

1. The head of vocational training establishment has the authority to settle the complaint for the first time for his/her complained decision or behavior.

2. Director of Department of Labour - Invalids and Social Affairs where the head office of vocational training establishment is located has the authority to settle the complaint for the second time for vocational training complaint when the complainant does not agree with the first decision on complaint settlement as stipulated in Clause 1 of this Article or at the end of time limit specified in Article 19 of this Decree but the complaint has not been settled.

Article 17. Authority to settle complaint about activity of sending Vietnamese employees working abroad under contract

1. The head of organization sending Vietnamese employees working abroad under contract has the authority to settle complaint for the first time for his/her complained decision or behavior.

2. The Director of Department of Overseas Labor has the authority to settle complaint for the second time for complaint about sending Vietnamese employees working abroad under contract when the complainant does not agree with the first decision on complaint settlement as stipulated in Clause 1 of this Article or at the end of time limit specified in Article 19 of this Decree but the complaint has not been settled.

Section 4: ORDER, PROCEDURES AND TIME LIMIT FOR FIRST COMPLAINT SETTLEMENT

Article 18. Handling of first complaint settlement

1. Handling of complaint settlement about labor

a) Within 07 working days after receiving the complaint under the settlement authority, the first complaint settler shall handle the complaint settlement and notify in writing of the handling of complaint settlement to the complainant and the Chief Inspector of Department of Labour - Invalids and Social Affairs where the employer’s head office is located;

b) Where the complaints are transferred from other organizations, organs or individuals, in addition to giving a notice as specified under Point a of this Clause, the first complaint settler must notify in writing of the handling of complaint settlement to the organizations, organs or individuals that have transferred such complaints.

2. Handling of complaint settlement about vocational traning

a) Within 07 working days after receiving the complaint under the settlement authority, the first complaint settler shall handle the complaint settlement and notify in writing of the handling of complaint settlement to the complainant and the Director of Department of Labour - Invalids and Social Affairs where the employer’s head office is located;

b) Where the complaints are transferred from other organizations, organs or individuals, in addition to notice as specified under Point a of this Clause, the first complaint settler must notify in writing of the handling of complaint settlement to the organizations, organs or individuals that have transferred such complaints.

3. Handling of complaint settlement about activity of sending Vietnamese employees working abroad under contract

a) Within 07 working days after receiving the complaint under the settlement authority, the first complaint settler shall handle the complaint settlement and notify in writing of the handling of complaint settlement to the complainant and the Director of Department of Overseas Labor;

b) Where the complaints are transferred from other organizations, organs or individuals, in addition to notice as specified under Point a of this Clause, the first complaint settler must notify in writing of the handling of complaint settlement to the organizations, organs or individuals that have transferred such complaints.

4. When handling the complaint settlement, the person having the authority to settle the complaint must issue a decision on handling of complaint settlement.

Article 19. Time limit for first complaint settlement

1. The time limit for first complaint settlement shall not exceed 30 and 45 days for complex cases days from the handling day.

2. The time limit for first complaint settlement shall not exceed 45 and 60 days for complex cases days from the handling day in remote areas.

Article 20. Checking and verification of content of first complaint

1. Within the time limit specified in Article 19 of this Decree, the first complaint settler shall check and verify the content of complaint by himself/herself or require the professional division to do so.

2. The checking and verification of content of complaint must ensure the objectiveness, accuracy and timeliness.

3. The person responsible for checking and verifying the content of complaint has the following rights and obligations:

a) Requires the complainant and relevant organization, organ and individual to provide information, documents and evidence of content of complaint;

b) Requires the complainant and relevant organization, organ and individual to explain in writing the content of complaint;

c) Summons the complainant and relevant organization, organ and individual;

d) Holds an inspection as a basis for complaint settlement.

dd) Conducts other measures of checking and verification as prescribed by law;

e) Makes a report on result of checking and verification and takes responsibility for the result of verification.

4. The result of checking and verification includes the following main contents:

a) Subject of checking and verification;

b) Time of checking and verification;

c) Person carrying out the checking and verification;

d) Contents of of checking and verification;

dd) Result of of checking and verification;

e) Conclusion and recommendation of complaint settlement;

g) Other contents (if any)

Article 21. Organization of first dialogue

1. During the course of first complaint settlement, if the request of the complainant and the result of checking and verification are still different, the complainant must meet and talk with the complainant, the person having relevant rights and obligations and other organizations, organs and individuals to clarify the contents of complaint and requirement the complainant and solution to complaint settlement. The dialogue must be conducted publicly and democratically.

2. During the dialogue, the complaint settler shall specify the content of dialogue, result of checking and verification of content of complaint. The persons participating in the dialogue have the right to express their opinions and give evidence related to the complaint and their requirements.

3. The dialogue must be recorded. The record must have the opinions of the participants, result of dialogue with signatures and finger-prints of participants. The record of dialogue shall be kept in the dossier of complaint settlement.

4. The result of dialogue is one of the ground for complaint settlement.

Article 22. Decision on the first complaint settlement

1. The first complaint settler must issue a decision on complaint settlement.

2. The decision on the first complaint settlement must have the following main contents:

a) Date, month and year of decision;

b) Name and address of complainant and complainee;

c) Content of complaint;

d) Result of checking and verification of content of complaint;

dd) Result of dialogue (if any);

e) Legal grounds for complaint settlement;

g) Conclusion of content of complaint and specific settlement of problem in the content of complaint;

h) Compensation for damage for the victim (if any);

i) Right to second complaint and right to initiate a suit at the Court.

3. Where some persons make a complaint about the same content, the first complaint settler shall, based on the conclusion of content of complaint, issue a decision on complaint settlement for each person or issue a decision on complaint settlement enclosed with the list of complainants.

Article 23. Sending the decision on the first complaint settlement

1. Within 03 working days from the date of decision on complaint settlement, the first complaint settler is responsible for sending the decision on complaint settlement under the following provisions:

a) For a decision on complaint settlement related to labor: Send it to the complainant, Chief Inspector of Department of Labour - Invalids and Social Affairs where the complained employer’s head office is located;

b) For a decision on complaint settlement related to vocational traning: Send it to the complainant, Director of Department of Labour - Invalids and Social Affairs where the complained vocational traning establishment’s head office is located;

c) For a decision on activitiy of sending Vietnamese employees working abroad under contract : Send it to the complainant and the Director of Department of Overseas Labor.

2. Where the complaints are transferred from other organizations, organs or individuals, in addition to sending the decision on complaint settlement as stipulated in Clause of this Article, the complaint settler must send the decision on complaint settlement to the organizations, organs or individuals that have transferred such complaints.

Article 24. Dossier of first complaint settlement

1. The complaint settlement must be documented. The dossier of complaint settlement includes:

a) Complaint petition or document recording the content of complaint;

b) Notice of handling of complaint settlement;

c) Decision on handling of complaint settlement;

d) Documents and evidence collected during the course of complaint settlement;

dd) Report on result of checking and verification of content of complaint;

e) Result of inspection (if any);

g) Record of dialogue (if any);

h) Decision on complaint settlement;

i) Other relevant documents.

2. The dossier of complaint settlement must be numbered in the order of time and stored in accordance with regulation of law.

3. The dossier of complaint settlement specified in Clause 1 of this Article shall be transferred to the person having the authority to settle the complaint for the second time or a Court upon requirement.

Article 25. Application of urgent measures

During the course of complaint settlement, if seeing that the enforcement of complained decision or behavior shall cause irremediable consequences, the complaint settler shall issue a decision on suspending the enforcement of such decision or behavior. The duration of suspension shall not exceed the remaining time of the time limit for complaint settlement. The suspension decision must be sent to the complainant, the persons having relevant rights and obligations and other persons responsible for execution. When seeing that the reason for suspension is no longer valid, the complaint settler must cancel such suspension decision immediately.

Section 5: ORDER AND PROCEDURES FOR SECOND COMPLAINT SETTLEMENT

Article 26. Handling of second complaint settlement

1. Within 07 working days after receiving the complaint under the settlement authority, the second complaint settler shall handle the complaint settlement and notify in writing of the handling of complaint

2. Where the complaints are transferred from other organizations, organs or individuals, in addition to giving a notice as specified in Clause 1 of this Article, the second complaint settler must notify in writing of the handling of complaint settlement to the organizations, organs or individuals that have transferred such complaints.

3. State the reasons in case of failure to handle the case.

Article 27. Time limit for second complaint settlement

1. The time limit for second complaint settlement shall not exceed 30 and 45 days for complex cases days from the handling day.

2. The time limit for second complaint settlement shall not exceed 45 and 60 days for complex cases days from the handling day in remote areas.

Article 28. Checking and verification of content of second complaint

1. Within the time limit specified in Article 27 of this Decree, the second complaint settler shall check and verify the content of complaint by himself/herself or require the professional division to do so. The checking and verification of content of complaint shall comply with the provisions in Clause 2, 3 and 4, Article 20 of this Decree.

2. In addition to the rights and obligations of the person responsible for checking and verification of contents of complaint specified in Clause 3, Article 20 of this Decree, the person responsible for checking and verification of contents of second complaint has the rights and obligations to require the complainee to provide information, documents and evidence of the content of complaint and explain in writing the content of complaint.

Article 29. Organization of second dialogue

1. During the course of second settlement of complaint, if deemed necessary, the complaint settler shall organize a dialogue between the complainant, complainee, persons having relevant rights and obligations and relevant organizations and individuals.

2. The organization of second dialogue shall comply with the provisions in Article 21 of this Decree.

Article 30. Decision on the second complaint settlement

1. The second complaint settler shall issue a decision on complaint settlement.

2. In addition to the content specified in Clause 2, Article 22 of this Decree, the decision on the second complaint settlement must have the following contents:

a) The result of complaint settlement of the first complaint settler (if any);

b) The right to complaint under the provisions of the Complaint Law and other relevant documents and the right to initiate a suit of administrative cases at the Court.

3. Where some persons make a complaint about the same content, the second complaint settler shall, based on the conclusion of content of complaint, issue a decision on complaint settlement for each person or issue a decision on complaint settlement enclosed with the list of complainants.

Article 31. Sending the decision on the second complaint settlement

Within 03 working days from the date of decision on complaint settlement, the second complaint settler is responsible for sending the decision on complaint settlement to the complainant, complainee, person having relevant rights and obligations, organizations, organs or individuals transferring the complaint.

Article 32. Dossier of second complaint settlement

The dossier of second complaint settlement is prepared as stipulated in Article 24 of this Decree including the dossier of first complaint settlement (if any).

Section 6. DECISION ON COMPLAINT SETTLEMENT WITH LEGAL EFFECT AND ENFORCEMENT

Article 33. Decision on complaint settlement with legal effect

1. The decision on the first complaint settlement takes legal effect with the following provisions:

a) After 30 days from the date of decision but the complainant does not make a second complaint or not initiate a suit at the Court as stipulated under Point a, Clause 2, Article 10 of this Decree;

b) After 45 days for remote areas from the date of decision but the complainant does not make a second complaint or not initiate a suit at the Court as stipulated under Point a, Clause 2, Article 10 of this Decree;

2. The decision on the second complaint settlement takes legal effect with the following provisions:

a) After 30 days from the date of decision but the complainant does not initiate a suit at the Court as stipulated under Point b, Clause 2, Article 10 of this Decree;

b) After 45 days for remote areas from the date of decision but the complainant does not initiate a suit at the Court as stipulated under Point b, Clause 2, Article 10 of this Decree;

3. The decision on complaint settlement must be enforced right after its legal effect.

Article 34. Persons having obligations and responsibilities for implementation of decision on complaint settlement with legal effect

1. Complaint settler.

2. Complainant.

3. Complainee.

4. Persons having relevant rights and obligations.

5. Relevant organs, organizations and individuals.

Article 35. Enforcement of decision on complaint settlement with legal effect

1. The complaint settlers within their duty and power is responsible for directing organs, organizations and individuals under their management to enforce the decision on complaint settlement with legal effect. In case of necessity, the complaint settlers may request the competent authorities to take measures to ensure the enforcement of decision on complaint settlement with legal effect; hold the enforcement or take charge and coordinate with the relevant organizations and organs to take measures in order to restore the complainant’s legal rights and interests; request other organizations and organs to settle the issues related the enforcement of decision on complaint settlement (if any).

2. Within their duties and power, the relevant organs, organizations and individuals must comply with the decision of the competent authorities to enforce the decision on complaint settlement with legal effect; coordinate with the competent organs, organizations and individuals in enforcement of decision on complaint settlement with legal effect.