Nghị định 46/2013/NĐ-CP hướng dẫn Bộ luật lao động tranh chấp lao động

DECREE

DETAILING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LABOR CODE REGARDING LABOR DISPUTE

Pursuant to the Law on Government organization, of December 25, 2001;

Pursuant to the Labor Code, of June 18, 2012;

At the proposal of Minister of Labor, Invalids and Social Affairs;

The Government promulgates the Decree detailing the implementation of a number of articles of the Labor Code regarding labor dispute,

Chapter 1.

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree provides standards, competences to appoint labor conciliators; postponement, suspension of strike and resolving rights and benefits of labor collectives in cases of postponement, suspension of strike.

Article 2. Subjects of application

1. Labor conciliators who are appointed by competent agencies.

2. Employees as prescribed in clause 1 Article 3 of the Labor Code.

3. Employers as prescribed in clause 2 Article 3 of the Labor Code.

4. Organizations as representatives of labor collectives at grassroots as prescribed in clause 4 Article 3 of the Labor Code.

5. Agencies, organizations and individuals relating to implementation of standards, competences to appoint labor conciliators; postponement, suspension of strike and resolving rights and benefits of labor collectives in cases of postponement, suspension of strike.

Article 3. Interpretation of terms

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

1. Labor conciliators mean persons appointed by the President of the provincial People’s Committee with 5-year term to conciliate labor disputes and disputes on contract of vocational training in accordance with law.

2. Strike postponement means the issuance of decision of the President of the provincial People’s Committee in order to change the beginning time of strike already defined by the Trade Union Executive Committee in the strike decision sent to employers, the provincial-level labor state management agencies and the provincial-level trade union into another time. 

3. Suspension of strike means the issuance of decision of the President of the provincial People’s Committee in order to suspend a strike that is happening until there is no more risk of trespassing seriously the national economy and public benefits.

Chapter 2.

LABOR CONCILIATORS

Article 4. Standards of labor conciliators

1. Being Vietnamese citizens, having full capacity for civil acts, good health and ethics.

2. Not being persons who are being examined for penal liability or serving sentence.

3. Being well-informed about labor law and related laws.

4. Having 03 years working in areas relating to labor relation, having skills in conciliation of labor disputes.

Article 5. Competences, orders of and procedures for appointment, re-appointment of labor conciliators

1. The President of the provincial People’s Committee shall appoint, re-appoint labor conciliators.

2. The orders of and procedures for appointment of labor conciliators:

a. Self-registering or the distric Divisions of Labor - Invalids and Social Affairs, the district-level Trade Unions, Trade Unions of industrial zones, processing and exporting zones introduce labor conciliators for participation in recruitment; 

b. A recruiting dossier for labor conciliators includes:

- Application for labor conciliators;

- Resumes;

- Certificate of health;

- Copies of diplomas, certificates (if any);

- Written introduction for participation in recruitment of agencies, organizations specified in point a this clause.

c. Within 20 working days, after ending time limit of receiving dossier, the district division of Labor-Invalids and Social affairs shall make list of persons satisfying standards and report it to the President of the district-level People’s Committee;

d. Within 05 working days, after receiving report of the district division of Labor-Invalids and Social affairs, the President of the district-level People’s Committee shall have written proposal the President of the provincial People’s Committee for appointment of labor conciliators, and send Director of the provincial Department of Labor-Invalids and Social affairs for verification and submission to the President of the provincial People’s Committee;

dd. Within 10 working days, after receiving written proposal for appointment of labor conciliators of the President of the district-level People’s Committee, the Director of the provincial Department of Labor-Invalids and Social affairs shall verify and submit it to the President of the provincial People’s Committee for consideration and decision, and send to the President of the district-level People’s Committee, who proposed for appointment of labor conciliators;

e. Within 05 working days, after receiving written proposal of the Director of the provincial Department of Labor-Invalids and Social affairs, the President of the provincial People’s Committee shall issue decision on appointment of labor conciliators;

g. Within 05 working days, after receiving decision on appointment of labor conciliators of the President of the provincial People’s Committee, the Director of the provincial Department of Labor-Invalids and Social affairs and to the President of the district-level People’s Committee shall publicize the list of labor conciliators to inform for employers, organizations representing for labor collectives at grassroots and employees.

3. The orders of and procedures for re-appointment of labor conciliators:

a. In 03 month, before ending the term of labor conciliators, the district-level Division of Labor-Invalids and Social affairs shall assess the extent of task completion of labor conciliators, demand of conciliation in locality and report on re-appointment of labor conciliators to the President of the district-level People’s Committee. 

b. The orders of and procedures for re-appointment of labor conciliators shall comply with point d, point dd, point e and point g clause 2 of this Article.

Article 6. Removal from office with respect to labor conciliator

1. A labor conciliator may be removed from office if fall in one of following cases:

a. Having application for relieve from conciliation participation; 

b. Failing to finish the conciliation task;

c. Committing acts in breach of law, misusing prestige, competence, responsibilities to cause harm to benefits of parties or benefits of State during conciliation or refusing the conciliation task for twice or more when be assigned to participate in solving labor dispute or dispute on contract of vocational training without legitimate reason.

2. The competences, orders of and procedures for removal from office with respect to labor conciliators:

a. The President of the provincial People’s Committee shall decide removal from office with respect to labor conciliators at the request of the President of the district-level People’s Committee and Director of the provincial Department of Labor-Invalids and Social affairs;

b. The district-level Division of Labor-Invalids and Social affairs shall base on application for removal from conciliation participation or extent of failing to complete task or acts of law violations of labor conciliators to report to the President of the district-level People’s Committee about the removal from office with respect to labor conciliators;

c. The orders of and procedures for the removal from office with respect to labor conciliators shall comply with point d, point dd, point e and point d clause 2 article 5 of this Decree.

Article 7. Assurance on operational conditions for labor conciliator

1. Labour conciliators shall be entitled to allowance regime for the days on which they are assigned to conduct conciliation of labour disputes, contracts of vocational training in the manner same as jurors according to regulation on the allowance regime for persons participating in court sessions, sessions of meeting to solve civil cases; be entitled to be paid working-trip allowances for the days on which they conduct conciliation in accordance with the existing regime on working-trip allowances and be ensured necessary conditions on meeting room, documents, stationery servicing conciliation of labor disputes.  

2. Funds for activities of labor conciliators shall be ensured by the State budget in accordance with the existing regulation on decentralization in budget management.  The making of estimation, management and finalization of funds ensuring for activities of labor conciliators shall comply with regulations of law on the State budget.

Chapter 3.

POSTPONEMENT, SUSPENSION OF STRIKES

Article 8. Cases of postponed, suspend strike

1. Strikes expected to organize at units providing services of electricity, water, public transport and other services directly serving for demonstrations to celebrate the Victory Day, International Labor Day and National Day.

2. Strikes expected to organize at localities where are happening activities aiming to prevent, remedy consequences of calamities, fires, epidemics or emergency cases in accordance with law.

3. Strikes happen at localities where appear calamities, fires, epidemics or emergency cases in accordance with law.

4. Strikes happen to the third day at units providing services of electricity, water, public sanitation causing affect to the environment, living conditions and health of people in cities of provinces.

5. Strikes happen together with acts of violence, disturbing, affecting to assets, life of investors, causing insecurity, public disorder, affecting to activities of communities at place happening strikes.

Article 9. Procedures for postponing strikes

1. Procedures for postponing strikes are provided as follows:

a. When receiving decision on strike of the Trade Union Executive Committee, Director of the provincial Department of Labor – Invalids and Social Affairs shall consider, if the strike falls in cases specified in clause 1 and clause 2 Article 8 of this Decree, he/she shall discuss with the President of the district-level People’s Committee and report to the President of the provincial People’s Committee for decision on postponing the strike.

A request for postponement of strike sent to the President of the provincial People’s Committee includes: Name of enterprise where labor collectives make strike; tentative location for strike; tentative time for beginning strike; requirement of labor collectives; necessary reason for postponement of strike; proposals for postponement of strike, time limit for postponement of strike and measures to implement decision on postponement of strike of the President of the provincial People’s Committee; 

b. Based on proposals of Director of the provincial Department of Labor – Invalids and Social Affairs, the President of the provincial People’s Committee shall issue decision on postponement of strike and immediately report to the President of the district-level People’s Committee, chairperson of the provincial Confederation of Labour, chairperson of Labor arbitration Council and the grassroots Trade Union Executive Committee or the direct superior Trade Union for grassroots where the grassroots Trade Union has not been established and the employer at the place where strike is expected to happen.

2. Within 48 hours, after the Director of the provincial Department of Labor – Invalids and Social Affairs receives decision on strike of the grassroots Trade Union Executive Committee, the President of the provincial People’s Committee must issue decision on postponing the strike.

3. Within 24 hours, after receiving decision on postponing the strike of the President of the provincial People’s Committee, relevant agencies and organizations must implement the postponement of strike.

Article 10. Procedures for suspending strikes

1. Procedures for suspending strikes shall comply with the following provisions:

a. When considering that the strike happening falls in one of cases specified in clause 3, clause 4 and clause 5 Article 8 of this Decree, the district Division of Labor – Invalids and Social Affairs shall report the suspension of strike to the President of the district-level People’s Committee;

b. After receiving report of the district Division of Labor-Invalids and Social affairs, the President of the district-level People’s Committee shall consider to propose the President of the provincial People’s Committee for decision on suspending strike, and send to the Director of the provincial Department of Labor-Invalids and Social affairs.

A request for suspension of strike sent to the President of the provincial People’s Committee includes: Name of enterprise happening strike; location of strike; time of beginning strike; scope happening strike; quantity of employee participating in strike; requirement of labor collectives; reason for suspension of strike; proposals for  suspension of strike and measures to implement decision on  suspension of strike of the President of the provincial People’s Committee;

c. When receiving proposal for suspension of strike of the President of the district-level People’s Committee, the Director of the provincial Department of Labor-Invalids and Social affairs must send opinion to the President of the provincial People’s Committee for consideration and decision.

d. Based on proposal for suspension of strike of the President of the district-level People’s Committee, opinion of the Director of the provincial Department of Labor-Invalids and Social affairs, the President of the provincial People’s Committee shall consider and decide on suspension of strike.

Decide on suspension of strike of the President of the provincial People’s Committee must be informed immediately to the President of the district-level People’s Committee, Director of the provincial Department of Labor – Invalids and Social Affairs, chairperson of the provincial Confederation of Labour, chairperson of Labor arbitration Council and the grassroots Trade Union Executive Committee or the direct superior Trade Union for grassroots where the grassroots Trade Union has not been established and the employer at the place where strike is happening for implementation.

2. Within 12 hours, after the President of the district-level People’s Committee receives report of the district Division of Labor-Invalids and Social affairs, the President of the provincial People’s Committee must issue decision on suspending strike.

3. Within 12 hours, after receiving decision on suspending the strike of the President of the provincial People’s Committee, relevant agencies, organizations and individuals must implement the suspension of strike.

4. Within 48 hours, after receiving decision on suspending the strike of the President of the provincial People’s Committee, the President of the district-level People’s Committee must report on result of suspension of strike to the President of the provincial People’s Committee.

Article 11. Resolving requirement of labor collectives when postponing, suspending strike

In time of implementing the decision on postponing or suspending strike of the President of the provincial People’s Committee, Labor arbitration Council implement conciliation of labor disputes in accordance with labor laws. 

If conciliation is not sucessful, and time limit for postponing or suspending strike is expired according to decision of the President of the provincial People’s Committee, the Trade Union Executive Committee may further organize the strike but it must notify in writing for the employer, the provincial labor state management agencies and the provincial Trade Union at least 05 working days before beginning the continuing of strike.

Article 12. Rights and responsibilities of the employees when suspend strike

1. After the Trade Union Executive Committee requests the employees for suspension of strike in accordance with the decision of the President of the provincial People’s Committee, the employees must return to work and be paid salary.

2. After the Trade Union Executive Committee requests the employees for suspension of strike in accordance with the decision of the President of the provincial People’s Committee, the employees who are fail to return for working shall not be paid salary and depend on seriousness of violations, they may be disciplined in accordance with labor regulations and other regulations of law.

Chapter 4.

IMPLEMENTATION PROVISIONS

Article 13. Effect

1. This Decree takes effect on July 01, 2013.

2. The Government’s Decree No. 133/2007/ND-CP, of August 08, 2007 detailing regulations and guidelines on the Laws amending the Labour Code regarding labour dispute resolution, the Government’s Decree No. 12/2008/ND-CP, of January 30, 2008, detailing and guiding the implementation of article 176 of the Labor Code on postponement or suspension of strikes and settlement of labor collective interests cease to be effective on the effective date of this Decree.

Article 14. Responsibilities for implementation

1. The Minister of Labor, Invalids and Social Affairs shall guide inplementation of this Decree.

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