Nghị định 133/2007/NĐ-CP Hướng dẫn Luật sửa đổi Bộ luật lao động về giải quyết tranh chấp lao động

DECREE

PROVIDING DETAILED REGULATIONS AND GUIDELINES ON THE LAWS AMENDING THE LABOUR CODE REGARDING LABOUR DISPUTE RESOLUTION

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated 25 December 2001;
Pursuant to the Labour Code dated 23 June 1994; and to two Laws Amending the Labour Code dated 2 April 2002 and 29 November 2006;
On the proposal of the Minister of Labour, War Invalids and Social Affairs,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1. Governing scope

This Decree provides detailed regulations and guidelines on articles 159; 162; 163; 164; 165a; 170; 170a; 171; 171a and 174d of the Labour Code as amended by two Laws amending the Labour Code dated 2 April 2002 and 29 November 2006 respectively (hereinafter all referred to as the Labour Code) regarding labour dispute resolution.

Article 2. Applicability:

1. Enterprises established and operating pursuant to the Law on Enterprises.

2. Co-operatives and co-operative groups established and operating pursuant to the Law on Co- operatives.

3. State owned companies currently in the period of conversion pursuant to article 166.2 of the Law on Enterprises.

4. Vietnamese organizations, units and individuals operating in accordance with the law of Vietnam and employing Vietnamese employees pursuant to labour contracts.

The enterprises, co-operatives, co-operative groups, organizations, units and individuals stipulated in clauses 1, 2, 3 and 4 of this article are hereinafter all referred to as enterprises.

Article 3. Applicable entities:

1. Employees; the executive committee of the trade union of an enterprise and the provisional executive committee of a trade union (hereinafter both referred to as the executive committee of the trade union of the enterprise); representatives of labour collectives; and employers in enterprises.

2. Vietnamese employees working in international or foreign bodies and organizations; and representative offices and branches of foreign economic institutions in Vietnam. This Decree shall also apply to foreigners working in Vietnam, unless an international treaty of which the Socialist Republic of Vietnam is a member contains a different provision.

3. This Decree shall also apply to bodies and organizations involved in resolution of labour disputes and involved in resolution of strikes held by labour collectives.

Chapter II

LABOUR DISPUTE RESOLUTION

Section 1. LABOUR CONCILIATION COUNCIL OF AN ENTERPRISE, AND LABOUR CONCILIATORS

Article 4. Establishment of the labour conciliation council of an enterprise pursuant to clauses 1 and 2 of article 162 of the Labour Code

1. An employer shall be responsible to co-ordinate with the executive committee of the trade union of the enterprise to establish the labour conciliation council of the enterprise (hereinafter referred to as the conciliation council). Each party shall propose its own representative who must be qualified to debate and ensure agreement with the other representative on selecting membership of the conciliation council.

2. The employer shall issue a decision on establishment of the conciliation council, specifying the full names of each member and of the chairman and secretary of the conciliation council, and specifying the term of office of the chairman and secretary.

3. The decision on establishment of the conciliation council must be publicly notified at the enterprise, and sent to the executive committee of the trade union and to all members of the conciliation council, and also sent to the labour authority of the district, town or provincial city (hereinafter referred to as the district labour body) for monitoring. The following provisions shall apply to persons proposed by the employer and by the employees to sit on the conciliation council:

(a) The party proposed by the employer shall be the legal representative of the enterprise or a person with written authorization from the enterprise;

(b) The party proposed by the employees shall be a person appointed by the executive committee of the trade union or shall be a trade union member at the enterprise.

The two parties may reach agreement on selection of one or more experts outside the enterprise who satisfy the conditions stipulated in article 6.1 of this Decree, to sit on the conciliation council.

4. Membership of the conciliation council shall comprise at least four persons including the chairman and secretary. As from the date of establishment of the conciliation council, once every year the representatives of each party shall take turns in acting as chairman and secretary, so that while the representative of one party acts as chairman the representative of the other party acts as secretary.

5. Members of the conciliation council shall participate in professional training courses on conciliation, and on upgrading knowledge of the law on labour.

Article 5. Conduct of labour dispute resolution by the conciliation council in accordance with clauses 3 and 4 of article 162 and article 165a of the Labour Code

1. The conciliation council shall have the duty of conciliating individual labour disputes which arise at the enterprise and collective labour disputes when so requested.

2. The conciliation council must meet with the parties in dispute in order to hold a conciliation within a time-limit of three (3) working days as from the date of receipt of a request to conciliate.

3. A conciliation session may be held when at least two-thirds of the members of the conciliation council are present. The order and procedures for holding a conciliation session shall be implemented in accordance with clause 2 of article 165A of the Labour Code.

4. Any conciliation held by a conciliation council in order to resolve a labour dispute must comply with the provisions of the Labour Code and the provisions of this Decree.

5. The employer shall be responsible to provide the necessary facilities for the conciliation council to carry out its work during a conciliation, namely by providing meeting rooms and working facilities for members of the conciliation council, by providing data and documents regarding the labour dispute, and by paying salary to members of the conciliation council for the days on which they conciliate or participate in professional training and upgrading courses arranged by any level labour body.

Article 6. Labour conciliator pursuant to article 163 of the Labour Code

1. The chairman of a district people's committee may recognize as a labour conciliator any person who satisfies the following conditions:

(a) Having full capacity for civil acts and good ethics;

(b) Having a good understanding of the law on labour;

(c) Having conciliation skills or experience in holding conciliations to the extent that such person is capable of accepting work as a labour conciliator;

(d) Voluntary participation in a conciliation.

2. The labour federation of the district, town or provincial city (hereinafter referred to as the district labour federation) or the equivalent body (the trade union of an industrial zone or export processing zone) shall prepare a list of people satisfying the conditions stipulated in clause 1 of this article and lodge such list together with application files with the district labour body in order to register such people as labour conciliators.

Any person who satisfies the conditions stipulated in clause 1 of this article may also lodge an application file with the district labour body in order to be registered as a labour conciliator.

3. A labour conciliator shall be relieved of his or her duties in the following circumstances:

(a) He or she acts in breach of law;

(b) He or she acts contrary to social ethics;

(c) He or she has refused to participate in a conciliation on a number of occasions.

4. The district labour body shall have the following responsibilities:

(a) To make submissions to the chairman of the district people's committee to issue a decision recognizing a person as a labour conciliator;

(b) To assist the chairman of the district people's committee to administer the team of labour conciliators;

(c) To appoint senior staff to act as labour conciliators and to assign them to resolve specific labour disputes within the locality.

5. Labour conciliators shall participate in professional training course on conciliation, and on upgrading knowledge of the law on labour.

6. The Minister of Labour, War Invalids and Social Affairs shall provide specific regulations on application files, order and procedures for appointment of labour conciliators and for administration of teams of labour conciliators.

Article 7. Activities of a labour conciliator pursuant to article 163 and article 165a of the Labour Code

1. Labour conciliators shall have the duty of conciliating individual labour disputes at an enterprise which does not yet have a conciliation council, disputes about performance of occupational training contracts and fees for occupational trainers, the disputes stipulated in clause 2 of article 166 of the Labour Code when the parties involved so request, and collective labour disputes on request.

2. A labour conciliator must meet with the parties in dispute in order to hold a conciliation within a time- limit of three (3) working days as from the date of receipt of a request to conciliate.

The employer must arrange a location for the labour conciliator to hold the conciliation session in the case of a labour dispute arising within the enterprise.

The district labour body shall arrange the location at which the labour conciliator will hold the conciliation session in the case of a labour dispute arising outside the enterprise.

3. Labour conciliators shall be entitled to remuneration for the days on which they conduct conciliation of labour disputes, including days on which they research the relevant file, the same as the regime on remuneration for court sessions applicable to people's councils.

4. Funding for activities of labour conciliators shall be paid by the State budget and shall be included as an item in the estimated regular disbursement budget of the district labour body. The Ministry of Finance shall provide specific guidelines on funding for activities of labour conciliators.

Article 8. Selection of a labour council or a labour conciliator to resolve a collective labour dispute pursuant to clause 1 of article 170 of the Labour Code

The executive committee of the trade union of an enterprise or the representatives of the labour collective shall reach a written agreement with the employer on the selection of the conciliation council or a labour conciliator to resolve any collective labour dispute within the enterprise.

Section 2. RESOLUTION OF A COLLECTIVE LABOUR DISPUTE BY THE CHAIRMAN OF THE DISTRICT PEOPLE'S COMMITTEE

Article 9. Authority of the chairman of a district people's committee to resolve a collective labour dispute pursuant to clause 2 of article 170 of the Labour Code

1. The chairman of a district people's committee shall have the duty of resolving a collective labour dispute about rights which arises within the locality, in the following cases:

(a) The conciliation council or a labour conciliator has held a conciliation which failed;

(b) Three (3) working days have expired since the date on which the conciliation council or labour conciliator received a request, but such council or conciliator has failed to hold a conciliation or has failed to arrange a conciliation session.

2. The chairman of a district people's committee must meet with the parties in dispute in order to hold a conciliation within a time-limit of five (5) working days as from the date of receipt of a request to conciliate.

Article 10. Procedures for resolution of a collective labour dispute about rights by the chairman of a district people's committee in accordance with clause 1(b) of article 170a of the Labour Code

1. The chairman of a district people's committee shall preside over co-ordination with the other relevant bodies and organizations to research the issues in the collective labour dispute and shall make a settlement proposal within a time-limit of three (3) working days as from the date of the request to conciliate the labour dispute.

After the other relevant bodies and organizations have submitted their settlement proposals, the chairman of the district people's committee shall convene a conciliation session in accordance with article 9.2 of this Decree.

2. The chairman of the district people's committee may invite a representative of the trade union of the superior level to the trade union of the enterprise and representatives of other bodies and organizations concerned to attend the session conciliating the collective labour dispute.

3. If during the process of resolving a collective labour dispute about rights, the chairman of the district people's committee considers that such dispute has arisen out of a breach of the law on labour, a breach of the registered collective agreement or internal labour rules of the enterprise, or out of a breach of any other legal regime or agreement of the enterprise, then the chairman shall issue a decision on an administrative penalty for such breach in accordance with the law on dealing with administrative breaches.

4. The district labour body shall co-ordinate with the district labour federation or other equivalent body to assist the chairman of the district people's committee to supervise compliance by the parties in dispute with the rules on resolution of labour disputes [stipulated] by such Chairman.

Section 3. RESOLUTION OF A COLLECTIVE LABOUR DISPUTE BY THE LABOUR ARBITRATION COUNCIL

Article 11. Establishment of a labour arbitration council pursuant to article 164 of the Labour Code

1. After reaching agreement with the relevant branches about the proposed chairman and members of the labour arbitration council, the director of a Department of Labour, War Invalids and Social Affairs shall issue a decision establishing a labour arbitration council to conciliate collective labour disputes about benefits and other collective labour disputes at any enterprise which is prohibited from striking, and which occur within the area administered by such Department.

2. The labour arbitration council shall have its headquarters at the Department of Labour, War Invalids and Social Affairs and shall have its own seal.

3. Funding for activities of the labour arbitration council shall be paid by the State budget and shall be included as an item in the estimated regular disbursement budget of the Department of Labour, War Invalids and Social Affairs.

The Department of Labour, War Invalids and Social Affairs shall arrange the working location, working facilities and other necessary conditions for the activities of the labour arbitration council.

4. The number of members of the labour arbitration council shall be an odd number, namely five or seven, as follows:

(a) The chairman of the labour arbitration council shall be a representative of the leaders of the Department of Labour, War Invalids and Social Affairs;

(b) The secretary of the labour arbitration council shall be a senior official of the Department of Labour, War Invalids and Social Affairs;

(c) One member shall be a representative of the provincial labour federation;

(d) One member shall be a representative of local employers;

(dd) One or more members shall be reputable persons with a sense of justice who are lawyers or persons with experience in the labour management sector.

5. The secretary of the labour arbitration council shall act as the full-time permanent member of such council, and shall be entitled to a responsibility allowance the same as that applicable to heads of offices under the Department of Labour, War Invalids and Social Affairs. Other members of the labour arbitration council who concurrently hold other offices shall be entitled to the same regime on remuneration for court sessions as is applicable to people's councils.

6. The Department of Labour, War Invalids and Social Affairs shall provide members of the labour arbitration council with information about regulations of the law on labour, and shall arrange for the members to attend upgrading courses on the law on labour.

Article 12. Holding conciliation of a collective labour dispute by the labour arbitration council pursuant to article 164 and article 171 of the Labour Code

1. The labour arbitration council may hold a meeting in order to conciliate a collective labour dispute when at least two-thirds of the members of the council are present (and this number must include the member from the Department of Labour, War Invalids and Social Affairs, the member from the provincial labour federation, and the representative of local employers).

2. The labour arbitration council must meet with the parties in dispute to hold a conciliation within a time- limit of seven (7) working days as from the date of receipt of a request to conciliate.

3. The labour arbitration council must issue a decision on resolution of a collective labour dispute when such a dispute occurs at an enterprise on the list of enterprises prohibited from striking within such locality. If either of the parties does not agree with the decision of the labour arbitration council, such party shall have the right to petition the competent people's court to resolve the dispute.

Chapter III

APPOINTMENT OF A REPRESENTATIVE OF THE LABOUR COLLECTIVE, DETERMINING WHICH EMPLOYEES ARE NOT PARTICIPATING IN THE STRIKE, AND RESOLUTION OF CESSATION OF WORK WHEN THERE IS A COLLECTIVE LABOUR DISPUTE ABOUT RIGHTS

Article 13. Appointment of representatives of the labour collective in order to organize and lead a strike in accordance with article 172a of the Labour Code

When a collective labour dispute arises at an enterprise which does not yet have an executive committee of the trade union of the enterprise, then the labour collective shall appoint representatives to organize and lead the strike in accordance with the following provisions:

1. Based on the size of the enterprise and the number of employees working in the enterprise or section of the enterprise, the labour collective shall make a decision on the number of representatives of the labour collective on the principle that such number shall be an odd number, a maximum of nine (9) and a minimum of three (3) persons, in order to represent the labour collective in organizing and leading the strike at the enterprise. The appointment of representatives of the labour collective at the enterprise must be notified in writing to the district labour federation or equivalent body within a time- limit of five (5) working days from the date of the appointment.

2. The district labour federation or equivalent body shall co-ordinate with the district labour body to guide the labour collective in appointing representatives of the labour collective at the enterprise.

3. Persons appointed to act as representatives of the labour collective in order to organize and lead a strike shall have the following duties and powers:

(a) To correctly implement the provisions of the law on labour on organizing and leading a strike;

(b) They shall have, throughout the process of organizing and leading the strike, the rights and obligations the same as applicable to members of the executive committee of the trade union of the enterprise;

(c) They shall be entitled, throughout the process of acting as representatives of the labour collective, to the same benefits as officials of the trade union of the enterprise who participate in resolution of a labour dispute;

(d) The period for which they act as representatives of the labour collective shall be calculated from the time when they are appointed by the labour collective up until the time when they complete resolution of the labour dispute.

Article 14. Determining which employees did not participate in the strike pursuant to clause 1 of article 174d of the Labour Code

Employees not participating in a strike but who must cease work because of the strike means people not participating in the strike and people employed in sections of the enterprise which do not strike and who have had to cease work because of the strike.

Article 15. Resolution of temporary cessation of work by the labour collective when there is a collective labour dispute about rights in accordance with clause 3 of article 159 of the Labour Code

1. When a collective labour dispute about rights results in temporary cessation of work by the labour collective, the chairman of the district people's committee must promptly conduct resolution.

2. If the parties in dispute do not agree with the settlement proposal of the chairman of the district people's committee, such chairman shall provide a written report to the chairman of the provincial people's committee; to the Department of Labour, War Invalids and Social Affairs; to the provincial labour federation; and to the representative of employers in the province, for their information and for all such parties to co-ordinate in dealing with the matter.

3. Depending on the contents of the request from the labour collective, the chairman of the district people's committee shall hold a meeting with the executive committee of the trade union of the enterprise or with the representatives appointed by the labour collective (in the case of an enterprise which does not yet have a trade union) and with the employer; and such chairman shall request the parties in dispute to comply with the law on labour, and shall request the labour collective to return to work and to ensure stable production.

4. [The chairman of the district people's committee] shall consider and impose an administrative penalty for any breach of the law on labour, breach of the registered collective labour agreement or internal labour rules of the enterprise, or breach of any other legal regime or agreement of the enterprise.

5. [The chairman of the district people's committee] shall hold a conciliation of any issues in the collective labour dispute which do not arise out of a breach of the law on labour, a breach of the registered collective labour agreement or internal labour rules of the enterprise, or a breach of any other legal regime or agreement of the enterprise. If the conciliation is unsuccessful, [the chairman of the district people's committee] shall guide the parties in dispute to correctly comply with the law on labour regarding resolution of collective labour disputes.

Chapter IV

IMPLEMENTING PROVISIONS

Article 16. Effectiveness

1. This Decree shall be of full force and effect fifteen (15) days from the date of its publication in the Official Gazette.

2. The following are hereby repealed:

- Decree 58-CP of the Government dated 31 May 1997 on payment of salary and resolution of other interests of striking employees during the duration of the strike; and

- Decision 744-TTg of the Prime Minister of the Government dated 8 October 1996 on establishment of a provincial labour arbitration council.

Article 17. Responsibility for implementation

1. The Ministry of Labour, War Invalids and Social Affairs shall be responsible to provide guidelines for implementation of this Decree.

2. Ministers, heads of ministerial equivalent bodies and Government bodies, and chairmen of people's committees of provinces and cities under central authority shall be responsible for the implementation of this Decree.