Nghị định 12/2008/NĐ-CP Hướng dẫn Điều 176 Bộ luật Lao động về hoãn hoặc ngừng đình công và giải quyết quyền lợi của tập thể lao động

DECREE

DETAILING AND GLIDING THE IMPLEMENTATION OF ARTICLE 176 OF THE LABOR CODE ON POSTPONEMENT OR SUSPENSION OF STRIKES AND SETTLEMENT OF LABOR COLLECTIVE INTERESTS

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government:
Pursuant to the June 23, 1994 Latbor Code; the April 2, 2002 Law Amending and Supplementing a Number of Articles of the Labor Code; and the November 29, 2006 Law Amending and Supplementing a Number of A nicies of the Labor Code:
At the proposal of the Minister of Labor, War Invalids and Social Affairs,

DECREES:

Chapter 1

GENERAL PROVISIONS

Article 1. Scope and subjects of application

This Decree details and guides the implementation of Article 176 of LaborCode, which was amended and supplemented in 2006, on postponement or suspension of strikes and settlement of labor collective interests.

This Decree applies to all laborers working under labor contracts; enterprises, organizations and individuals employing laborers under labor contracts in the territory of the Socialist Republic of Vietnam.

Enterprises which are not allowed to go on strike under government regulations are not governed by this Decree.

Article 2. Interpretation of terms

In this Decree, the terms below are construed as follows:

1. Postponement of a strike means delaying the time to start a strike set by trade union executive committees or labor collective representatives in their written request to employers and provincial-level labor agencies and Labor Federations under Article 174b of the Labor Code, which was amended and supplemented in 2006, to another later time under the Prime Ministers decision.

2. Suspension of a strike means temporary stoppage of an ongoing strike for a certain time until this strike no longer poses risks of causing serious damage to the national economy and/or public interests under the Prime Ministers decision.

Article 3. A strike shall be postponed or suspended when it poses risks of causing serious damage to the national economy and/or public interests in the following cases:

1. A strike which is scheduled to be held on national holidays prescribed by the Labor Code or in urban and rural districts, towns or provincial cities where an international conference hosted by the Vietnamese Suite is taking piace

2. A strike at an enterprise supplying public service products for 3 days or more which threatens to cause unsafely to the health and life of inhabitants in urban and rural districts, towns or provincial cities.

3. A strike at a key national work under construction.

4. A strike at a time a state of emersencv is imposed due to natural disaster or epidemic on the locality where it takes place.

5. A strike not for the purpose of labor dispute as stated in the written request by a labor collective which is sent by a grassroots trade union executive committee or labor collective representatives (where exists no trade union organization) to employers, and provincial-level labor agencies and Labor Federations.

Chapter 2

PROCEDURES FOR STRIKE POSTPONEMENT AND SUSPENSION AND SETTLEMENT OF LABOR COLLECTIVE INTERESTS

Section 1. PROCEDURES FOR STRIKE POSTPONEMENT AND SUSPENSION

Article 4. Procedures for strike postponement

1. Within 24 hours from the time of receiving a notice of a strike prescribed in Clause 1, Article 3 of this Decree from a grassroots trade union executive committee or labor collective representatives (where exists no trade union organization), directors of provincial/municipal Labor. War Invalids and Social Affairs Services shall report it to presidents of provincial/municipal PeopIes Committees (below referred to as provincial-level Peoples Committee presidents).

2. Within 24 hours irom the time of receiving a report from directors of provincial/municipal Labor. War Invalids and Social Affairs Services, provincial-level Peoples Committee presidents shall submit a report to the Prime Minister and simultaneously to the Minister of Labor. War Invalids and Social Affairs and the president of the Vietnam General Confederation of Labor if considering that the strike threatens to cause serious damage to the national economy and/or public interests.

The report of a provincial-level Peoples Committee president must include the following major contents:

a/ Name of the enterprise where the labor collective plans to go on strike and the tentative venue for the strike;

b/ Time of starting the strike (date... month... year...);

c/ Requests of the labor collective;

d/ Causes of the strike;

e/ Right- or interest-related labor dispute;

f/ Number of laborers registering to go on strike;

g/ Risks of causing serious damage to the national economy and/or public interests:

h/ Proposal on the strike postponement, the postponement time and measures to implement the Prime Ministers strike postponement decision.

3. The Prime Ministers decision on. or his opinion disapproving, the strike postponement shall be notified to provincial-level Peoples Committee presidents and sent to the Minister of Labor. War Invalids and Social Affairs and the president of the Vietnam General Confederation of Labor.

4. The strike postponement time under the Prime Ministers decision depends on the risks of causing serious damage to the national economy and/or public interests, but must not exceed 50 days.

5. Within one (01) hour from receiving the Prime Ministers strike postponement decision, provincial-level Peoples Committee presidents shall promptly notify grassroots trade union executive committees or labor collective representatives (where exists no trade union organization) and employers, and postpone the strike according to the Prime Ministers decision.

6. Within 48 hours from the time of receiving a strike postponement decision, provincial-level Peoples Committee presidents shall report to the Prime Minister on strike postponement results.

A report on the implementation of a strike postponement decision from a provincial-level Peoples Committee president to the Prime Minister must include the following major contents:

a/ Strike postponement results;

b/ Measures which have been and are being taken to respond to the labor collectives requests.

7. Within the strike postponement time limit specified in the Prime Ministers decision, labor collectives may not go on strike from the date of announcing this decision.

Article 5. Procedures for strike suspension

1. When considering that an ongoing strike threatens to cause serious damage to the national economy and/or public interests in one of the cases specified in Clause 2, 3, 4 or 5, Article 3 of this Decree, presidents of Peoples Committees of urban and rural districts, towns or provincial cities (below referred to as district-level Peoples Committees) shall report on that strike to provincial-level Peoples Committee presidents within 24 hours.

2. Within 24 hours from the time of receiving a report on a strike from district-level Peoples Committee presidents, provincial-level Peoples Committee presidents shall submit a report to the Prime Minister and simultaneously to the Minister of Labor. War Invalids and Social Affairs and the president of the Vietnam General Confederation of Labor if considering that the strike threatens to cause serious damage to the national economy and/or public interests.

A report on the strike suspension from a provincial-level Peoples Committee president must include the following major contents:

a/ Name of the enterprise where the strike is taking place and venue of the strike;

b/ Time of starting the strike (date... month... year...):

c/ Scope of the strike;

d/ Causes of the strike;

e/ Number of laborers going on strike;

f/ Requests of the labor collective;

g/ Right- or interest-related labor dispute:

h/ Risks of causing serious damage to the national economy and/or public interests;

i/ Proposal on the strike suspension, the suspension time and measure; to implement the Prime Ministers strike suspension decision.

3. The Prime Ministers strike suspension decision or his opinion disproving the strike suspension shall be promptly notified to provincial-level Peoples Commmittee presidents and sent to the Minister of Labor, War Invalids and Social Affairs and the president of the Vietnam General Confederation of Labor.

4. The suike suspension time specified in the Prime Ministers decision depends on the risks of causing serious damage to the national economy and/or public interests, but must not exceed 60 days.

5. Within one (01) hour from receiving the Prime Ministers strike suspension decision, provincial-level Peoples Committee presidents shall promptly notify it to grassroots trade union executive committees or labor collective representatives (where exists no trade union organization) and employers.

6. Within 48 hours from the time of receiving the Prime Ministers strike suspension decision, provincial-level Peoples Committee presidents shall report to the Prime Minister on strike suspension results.

A report on results of the strike suspension decision implementation from a provincial-level Peoples Committee president to the Prime Minister must include the following major contents:

a/ Strike suspension results;

b/ State of security and order at the enterprise and in the area;

c/ Measures which have been and are being taken to respond to the labor collectives requests according to the labor law.

7. Within the strike suspension time limitspecified in the Prime Ministers decision, labor collectives may not go on strike from the date of announcing this decision.

Article 6. Implementation of the Prime Ministers decisions

Trade union organizations, labor collective representatives and employers shall seriously observe the Prime Ministers decisions on strike postponement or suspension. Those who incite, embroil or force laborers to go on strike: and those going on strike in contravention of the Prime Ministers decisions shall, depending on the severity of their violation, be administratively sanctioned or examined for penal liability according to law.

Section 2. SETTLEMENT OF LABOR COLLECTIVE INTERESTS

Article 7. Settlement of labor collective interests

1. When the Prime Minister decides to postpone or suspend a strike, he shall assign provincial-level Peoples Committee presidents to settle it according to law if the strike is prompted by a right-related dispute. If the strike is prompted by an interest-related dispute, the Prime Minister shall assign provincial-level Peoples Committee presidents to request parties to conduct negotiation or conciliation with the participation of provincial- level labor agencies and Labor Federations in order to satisfactorily respond to lawful requests of labor collectives.

2. When the time limit for strike postponement or suspension under the Prime Ministers decision ends, labor collectives may continue going on strike if employers fail to satisfactorily respond to their lawful requests.

Article 8. Settlement of labor collective interests during strike postponement or suspension lime

Laborers interests during the strike suspension shall be handled under Article 174d of the Labor Code, which was amended and supplemented in 2006.

Chapter 3

IMPLEMENTATION PROVISIONS

Article 9. This Decree takes effect 15 days after its publication in CONG BAO.

Article 10. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, and presidents of provincial/municipal Peoples Committees shall implement this Decree.