Chương XIV Bộ luật Lao động 2019: Giải quyết tranh chấp lao động

Chapter XIV

SETTLEMENT OF LABOR DISPUTES

Section 1. GENERAL PROVISIONS FOR SETTLEMENT OF LABOR DISPUTES

Article 179. Labor disputes

1. A labor dispute means a dispute over rights, obligations and interests among the parties during the establishment, execution or termination of labor relation; a dispute between the representative organizations of employees; a dispute over a relationship that is directly relevant to the labor relation. Types of labor disputes:

a) Labor disputes between the employee and the employer; between the employee and the organization that sends the employee to work overseas under a contract; between the outsourced worker and the client enterprise.

b) Right-based or interest-based collective labor disputes between one or several representative organizations of employees and the employer or one or several representative organizations of employees.

2. A right-based collective labor dispute of rights means a dispute between one or several representative organizations of employees and the employer or one or several representative organizations of employees in case of:

a) Discrepancies in interpretation and implementation of the collective bargaining agreement, internal labor regulations and other lawful agreements;

b) Discrepancies in interpretation and implementation of labor laws; or

c) The employer’s discrimination against the employees or members of the management board of the representative organization of employees for reasons of establishment, operation or participation in the organization; the employer’s interference or influencing the representative organization of employees; the employer’ violations against amicable negotiation.

3. a) Interest-based collective labor disputes include:

a) Labor disputes that arise during the process of collective bargaining;

a) A party refuses to participate in the collective bargaining or the collective bargaining is not held within the time limit prescribed by law.

Article 180. Labor dispute settlement principles

1. Respect the parties’ autonomy through negotiation throughout the process of labor dispute settlement.

2. Prioritize labor dispute settlement through mediation and arbitration on the basis of respect for the rights and interests of the two disputing parties, and respect for the public interest of the society and conformity with the law.

3. The labor dispute shall be settled publicly, transparently, objectively, promptly, and lawfully.

4. Ensure the participation of the representatives of each party in the labor dispute settlement process.

5. Labor dispute settlement shall be initiated by a competent authority or person after it is requested by a disputing party or by another competent authority or person and is agreed by the disputing parties.

Article 181. Responsibilities of organizations and individuals during labor dispute settlement

1. The labor authority shall cooperate with the representative organization of employees and representative organization of employees in giving instructions and assisting the parties during the process of labor dispute settlement.

2. The Ministry of Labor, Invalids and Social Affairs shall organize training to improve the professional capacity of labor mediators and arbitrators for labor dispute settlement.

3. The provincial labor authority, when requested, shall receive and classify the request for labor dispute settlement, provide instructions and assists the parties during the process of labor dispute settlement.

Within 05 working days, the receiving authority shall transfer the request to the labor mediators if mediation is mandatory; to the arbitral tribunal if the dispute has to be settled by arbitration, or instruct the parties to file the petition to the court.

Article 182. Rights and obligations of the two parties in labor dispute settlement

1. During the labor dispute settlement process, the two disputing parties have the rights to:

a) Participate directly or through a representative in the labor dispute settlement process;

b) Withdraw or change the contents of the request;

c) Request for a change of the person in charge of labor dispute settlement where there reasonable grounds for believing that the said person may not be impartial or objective.

2. During the labor dispute settlement process, the two parties have the responsibility to:

a) Promptly and adequately provide documents and evidence to support his/her request;

b) Abide by the agreement reached, decision of the arbitral tribunal, court judgment or decision which when it comes into effect.

Article 183. Rights of competent labor dispute settlement authorities and persons

Competent labor dispute settlement authorities and persons shall, within their mandates, have the rights to request the disputing parties, relevant organizations and individuals to provide documents and evidence; request verification; and invite witnesses and other relevant persons.

Article 184. Labor mediators

1. Labor mediators shall be assigned by the President of the People’s Committee of the province to mediate labor disputes and disputes over vocational training contracts; assist in development of labor relation.

2. The Government shall provide for the standards, procedures for assignments, benefits, working conditions and management of labor mediators; power and procedures for outsourcing labor mediators.

Article 185. Labor Arbitration Council

1. The President of the People’s Committee of the province shall issue the decision to establish the Labor Arbitration Council, designate its chairperson, secretary and labor arbitrators. The tenure of a Labor Arbitration Council is 05 years.

2. The President of the People’s Committee of the province shall decide the number of labor arbitrators which is at least 15. The number of labor arbitrators nominated by each party shall be equal. To be specific:

a) At least 05 labor arbitrators shall be nominated by the provincial labor authority. The chairperson and secretary shall be officials of the provincial labor authority;

b) At least 05 labor arbitrators shall be nominated by the provincial trade union;

c) At least 05 arbitrators shall be nominated the representative organizations of employees in the province.

3. Standards and working conditions of labor arbitrators:

a) A labor arbitrator shall conversant with law, experienced in labor relations, reputable and objective;

b) When nominating labor arbitrators as prescribed in Clause 2 of this Article, the provincial labor authority, provincial trade union and representative organizations of employees may nominate their people or other people that fully satisfy the standards for labor arbitrators.

c) The secretary of the Labor Arbitration Council shall perform its regular duties. Labor arbitrators may work on a full-time or part-time basis.

4. Whenever a request for labor dispute settlement is received as prescribed in Article 189, 193 and 197 of this Labor Code, the Labor Arbitration Council shall establish an arbitral tribunal as follows:

a) The representative of each disputing party shall choose 01 labor arbitrator from the list of labor arbitrators;

b) The labor arbitrators chosen by the parties as prescribed in Point a of this Clause shall choose 01 other labor arbitrator as the chief of the arbitral tribunal;

c) In case a labor arbitrator is selected by more than one disputing party, the arbitral tribunal shall appoint 01 of the chosen arbitrators.

5. The arbitral tribunal shall work on the principle of collectives and make decision under the majority rule, except for the cases specified in Point c Clause 4 of this Article.

6. The Government shall provide for the procedures, requirements, procedures for designation, dismissal, benefits and working conditions of labor arbitrators and Labor Arbitration Councils; organization and operation of Labor Arbitration Councils; establishment and operation of the arbitral tribunals mentioned in this Article.

Article 186. Prohibition of unilateral actions during the process of labor dispute settlement

None of the disputing parties shall take unilateral actions against the other party while the labor dispute is being settled by a competent authority or person within the time limit specified in this Labor Code.

Section 2. COMPETENCE AND PROCEDURES FOR SETTLEMENT OF INDIVIDUAL LABOR DISPUTES

Article 187. Competence to settle individual labor disputes

The following agencies, organizations and individuals have the competence to settle individual labor disputes:

1. Labor mediators;

2. Labor Arbitration Councils;

3. The People’s Court.

Article 188. Procedures for the settlement of individual labor disputes by labor mediators

1. Individual labor disputes shall be settled through mediation by labor mediators before being brought to the Labor Arbitration Council or the Court, except for the following labor disputes for which mediation is not mandatory:

a) Disputes over dismissal for disciplinary reasons; unilateral termination of employment contracts;

b) Disputes over damages and allowances upon termination of employment contracts;

c) Disputes between a domestic worker and his/her employer;

d) Disputes over social insurance in accordance with social insurance laws; disputes over health insurance in accordance with health insurance laws ; disputes over unemployment insurance in accordance with employment laws; disputes over insurance for occupational accidents and occupational disease in accordance with occupational safety and health laws;

dd) Disputes over damages between an employee and organization that dispatches the employee to work overseas under a contract;

e) Disputes between the outsourced worker and the client enterprise.

2. The Labor Arbitration Council shall complete the mediation process within 05 working days from the receipt of the request from the disputing parties or the authority mentioned in Clause 3 Article 181 of this Labor Code.

3. Both disputing parties must be present at the mediation meeting. The disputing parties may authorize another person to attend the mediation meeting.

4. The labor mediator shall instruct and assist the parties to negotiate with each other.

In case the two parties reach an agreement, the labor mediator shall prepare a written record of successful mediation which bears the signatures of the disputing parties and the labor mediator.

In case the two parties do not reach an agreement, the labor mediator shall recommend a mediation option for the disputing parties to consider. In case the parties agree with the recommended mediation option, the labor mediator shall prepare a written record of successful mediation which bears the signatures of the disputing parties and the labor mediator.

Where the two parties do not agree with the recommended mediation option or where one of the disputing parties is absent for the second time without a valid reason after having been legitimately summoned, the labor mediator shall prepare a record of unsuccessful mediation which bears the signatures of the present disputing parties and the labor mediator.

5. Copies of the record of successful mediation or unsuccessful mediation shall be sent to the disputing parties within 01 working day from the date on which it is prepared.

6. In case a disputing party fails to adhere to the agreements specified in the record of successful mediation, the other party may request a Labor Arbitration Council or the Court to settle the case.

7. In case mediation is not mandatory as prescribed in Clause 1 of this Article, the labor mediator fails to initiate the mediation by the deadline specified in Clause 2 of this Article, or the mediation is unsuccessful as prescribed in Clause 4 of this Article, the disputing parties may:

a) request the Labor Arbitration Council to settle the dispute in accordance with Article 189 of this Labor Code; or

b) Request the Court to settle the dispute.

Article 189. Settlement of individual labor disputes by Labor Arbitration Council

1. The parties are entitled to, by consensus, request the Labor Arbitration Council to settle the dispute in any of the cases specified in Clause 7 Article 188 of this Labor Code. After the Labor Arbitration Council has been requested to settle a dispute, the parties must not simultaneously request the Court to settle the same dispute, except for the cases specified in Clause 4 of this Article.

2. Within 07 working days from the receipt of the request mentioned in Clause 1 of this Article, an arbitral tribunal shall be established.

3. Within 30 working days from the establishment of the arbitral tribunal, it shall issue a decision on the settlement of the labor dispute and send it to the disputing parties.

4. In case an arbitral tribunal is not established by the deadline specified in Clause 2 of this Article, or a decision on the settlement of the labor dispute is not issued by the arbitral tribunal by the deadline specified in Clause 3 of this Article, the parties are entitled to bring the case to Court.

5. In case a disputing party fails to comply with the decision of the arbitral tribunal, the parties are entitled to bring the case to court.

Article 190. Time limits for requesting settlement of individual labor disputes

1. The time limit to request a labor mediator to settle an individual labor dispute is 06 months from the date on which a party discovers the act of infringement of their lawful rights and interests.

2. The time limit to request a Labor Arbitration Council to settle an individual labor dispute is 09 months from the date on which a party discovers the act of infringement of their lawful rights and interests.

3. The time limit to bring an individual labor dispute to the Court is 01 year from the day on which a party discovers the act of infringement of their lawful rights and interests.

4. In case the requester is able to prove that the aforementioned time limits cannot be complied with due to a force majeure event or unfortunate event, the duration of such event shall not be included in the time limit for requesting settlement of individual labor dispute.

Section 3. COMPETENCE AND PROCEDURES FOR THE SETTLEMENT OF RIGHT-BASED COLLECTIVE LABOR DISPUTES

Article 191. Competence to settle right-based collective labor disputes

1. The following agencies, organizations and individuals have the competence to settle right-based collective labor disputes:

a) Labor mediators;

b) Labor Arbitration Councils;

c) The People’s Court.

2. Right-based labor disputes shall be settled through mediation by labor mediators before being brought to the Labor Arbitration Council or the Court.

Article 192. Procedures for settlement of right-based collective labor disputes

1. Procedures for the mediation of collective labor disputes are the same as the procedures specified in Clauses 2, 3, 4, 5 and 6 Article 188 of this Labor Code.

If violations of law is found during settlement of the disputes mentioned in Point b and Point c Clause 2 Article 179 of this Labor Code, the labor mediator shall prepare a record and transfer the documents to a competent authority for settlement as prescribed by law.

2. In case the mediation is unsuccessful or the labor mediator fails to initiate the mediation by the deadline specified in Clause 2 Article 188 of this Labor Code, the disputing parties may:

a) request the Labor Arbitration Council to settle the dispute in accordance with Article 193 of this Labor Code; or

b) Request the Court to settle the dispute.

Article 193. Settlement of right-based collective labor disputes by Labor Arbitration Council

1. In case the mediation is unsuccessful, the labor mediator fails to initiate the mediation by the deadline specified in Clause 2 Article 188 of this Labor Code, or a party fails to adhere to the agreements in the successful mediation record, the disputing parties are entitled to, by consensus, request the Labor Arbitration Council to settle the dispute.

2. Within 07 working days from the receipt of the request mentioned in Clause 1 of this Article, an arbitral tribunal shall be established.

3. Within 30 working days from the establishment of the arbitral tribunal, in accordance with labor laws, the registered internal labor regulations and collective bargaining agreement, other lawful agreement and regulations, the arbitral tribunal shall issue a decision on dispute settlement and send it to the disputing parties.

If violations of law is found during settlement of the disputes mentioned in Point b and Point c Clause 2 Article 179 of this Labor Code, the arbitral tribunal shall, instead of making a settlement decision, issue a record and transfer the documents to a competent authority for settlement as prescribed by law.

4. While the Labor Arbitration Council is settling a dispute at the request of the parties as prescribed in this Article, the parties must not bring the same dispute to Court.

5. In case an arbitral tribunal is not established by the deadline specified in Clause 2 of this Article, or a decision on the settlement of the labor dispute is not issued by the arbitral tribunal by the deadline specified in Clause 3 of this Article, the parties are entitled to bring the dispute to Court.

6. In case a disputing party fails to comply with the decision of the arbitral tribunal, the parties are entitled to bring the case to court.

Article 194. Time limits for requesting settlement of right-based collective labor disputes

1. The time limit to request a labor mediator to settle a right-based collective labor dispute is 06 months from the date on which a party discovers the act of infringement of their lawful rights.

2. The time limit to request a Labor Arbitration Council to settle a right-based collective labor dispute is 09 months from the date on which a party discovers the act of infringement of their lawful rights.

3. The time limit to bring a right-based collective labor dispute to the Court is 01 year from the day on which a party discovers the act of infringement of their lawful rights.

Section 4. COMPETENCE AND PROCEDURES FOR THE SETTLEMENT OF INTEREST-BASED COLLECTIVE LABOR DISPUTES

Article 195. Competence to settle interest-based collective labor disputes

1. Agencies, organizations and individuals who have the competence to settle interest-based collective labor disputes include:

a) Labor mediators;

b) Labor Arbitration Councils.

2. An interest-based collective labor dispute shall be settled through mediation by labor mediators before it is brought to the Labor Arbitration Council or a strike is organized.

Article 196. Procedures for settlement of interest-based collective labor disputes

1. Procedures for the mediation of interest-based collective labor disputes are the same as the procedures specified in Clauses 2, 3, 4 and 5 Article 188 of this Labor Code.

2. In case of successful mediation, the labor mediator shall prepare a written record of successful mediation which contains the agreements between the parties and bears the signatures of the disputing parties and the labor mediator. The record of successful mediation shall be as legally binding as the enterprise’s collective bargaining agreement.

3. In case the mediation is unsuccessful, the labor mediator fails to initiate the mediation by the deadline specified in Clause 2 Article 188 of this Labor Code, or a party fails to adhere to the agreements in the successful mediation record:

a)The disputing parties are entitled to, by consensus, request the Labor Arbitration Council to settle the dispute in accordance with Article 197 of this Labor Code; or

b) The representative organization of employees is entitled to organize a strike following the procedures specified in Articles 200, 201 and 202 of this Labor Code.

Article 197. Settlement of interest-based collective labor disputes by Labor Arbitration Council

1. In case the mediation is unsuccessful, the labor mediator fails to initiate the mediation by the deadline specified in Clause 2 Article 188 of this Labor Code, or a party fails to adhere to the agreements in the successful mediation record, the disputing parties are entitled to, by consensus, request the Labor Arbitration Council to settle the dispute.

2. Within 07 working days from the receipt of the request mentioned in Clause 1 of this Article, an arbitral tribunal shall be established.

3. Within 30 working days from the establishment of the arbitral tribunal, in accordance with labor laws, the registered internal labor regulations and collective bargaining agreement, other lawful agreement and regulations, the arbitral tribunal shall issue a decision on dispute settlement and send it to the disputing parties.

4. While the Labor Arbitration Council is settling a dispute at the request of the parties as prescribed in this Article, the representative organization of employees must not call a strike.

In case an arbitral tribunal is not established by the deadline specified in Clause 2 of this Article, or a decision on the settlement of the labor dispute is not issued by the arbitral tribunal by the deadline specified in Clause 3 of this Article, or the employer that is a disputing party fails to implement the settlement decision issued by the arbitral tribunal, the representative organization of employees that is a disputing party is entitled to call a strike following the procedures specified in Articles 200, 201 and 202 of this Labor Code.

Section 5. STRIKES

Article 198. Strikes

A strike is a temporary, voluntary and organized stoppage of work by the employees in order to press demands in the process of the labor dispute settlement. A strike shall be organized and lead by the representative organization of employees that has the right to request collective bargaining and is a disputing party.

Article 199. Cases in which employees are entitled to strike

The representative organization of employees that is a disputing party to an interest-based collective labor dispute is entitled to call a strike following the procedures specified in Articles 200, 201 and 202 in the following cases:

1. The mediation is unsuccessful or the labor mediator fails to initiate the mediation by the deadline specified in Clause 2 Article 188 of this Labor Code;

2. An arbitral tribunal is not established or fails to issue a decision on the settlement of the labor dispute; the employer that is a disputing party fails to implement the settlement decision issued by the arbitral tribunal.

Article 200. Procedures for going on strike

1. Conduct a survey on the strike in accordance with Article 201 of this Labor Code.

2. Issue a strike decision and strike notice in accordance with Article 202 of this Labor Code.

3. Go on strike.

Article 201. Survey on strike

1. Before going on strike, the representative organization of employees that has the right to call the strike as prescribed in Article 198 of this Labor Code shall survey all employees or members of the management board of the representative organization of employees.

2. The survey involves:

a) Whether the employee agrees or disagrees about the strike;

b) The plan of the representative organization of employees according to Point b, c and d Clause 2 Article 202 of this Labor Code.

3. The survey shall be carried out by collecting votes, signatures or in another manner.

4. The time and method of survey shall be decided by the representative organization of employees and notified to the employer at least 01 day in advance. The survey must not affect the employer’s normal business operation. The employers must not obstruct or interfere with the survey conducted by the representative organization of employees.

Article 202. Strike decision and notice of starting time of a strike

1. When over 50% of the surveyed people agree to carry out a strike as prescribed in Clause 2 Article 201 of this Labor Code, the representative organization of employees shall issue a written strike decision.

2. The strike decision shall contain:

a) The survey result;

b) The starting time and the venue for the strike;

c) The scope of the strike;

d) The demands of the employees;

dd) Full name and address of the representative of the representative organization of employees that organizes and leads the strike.

3. At least 05 working days prior to the starting date of the strike, the representative organization of employees shall send the strike decision to the employer, the People’s Committee of the district and the provincial labor authority.

4. At the starting time of the strike, if the employer does not accept the demands of the employees, the strike may take place.

Article 203. Rights of parties prior to and during a strike

1. The parties have the right to continue negotiating settlement of the collective labor dispute or to jointly request settlement of the dispute by mediation or Labor Arbitration Council.

2. The representative organization of employees that is entitled to organize a strike as prescribed in Article 198 of this Labor Code has the rights to:

a) Withdraw the strike decision before the strike; end the strike during the strike.

b) Request the Court to declare the strike as lawful.

3. The employer has the rights to:

a) Accept the entire or part of the demands, and send a written notice to the representative organization of employees which organizes and leads the strike;

b) Temporarily close the workplace during the strike due to the lack of necessary conditions to maintain the normal operations or to protect the employer’s assets.

c) Request the Court to declare the strike as illegal.

Article 204. Cases of illegal strike

A strike shall be considered illegal if:

1. It is not the case specified in Article 199 of this Labor Code.

2. The strike is not organized by a representative organization of employees that is entitled to organize a strike.

3. The strike is organized against the procedures in this Labor Code.

4. The collective labor dispute is being settled by a competent authority or person in accordance with this Labor Code.

5. The strike takes places in the cases in which it is not permitted according to Article 209 of this Labor Code.

6. The strike takes place after a competent authority issues a decision to postpone or cancel the strike according to Article 210 of this Labor Code.

Article 205. Notice of temporary closure the workplace

At least 03 working days before the date of temporary closure of the workplace, the employer shall publicly post the decision on temporary closure of the workplace at the workplace and notify the following organizations:

1. The representative organization of employees that organizes the strike;

2. The People’s Committee of the province where the workplace is located.

3. The People’s Committee of the district where the workplace is located.

Article 206. Temporary closure of the workplace is not prohibited:

1. 12 hours prior to the starting time of the strike as stated in the strike decision.

2. After the strike ends.

Article 207. Salaries and other lawful interest of employees during a strike

1. Employees who do not take part in the strike but have to temporarily stop working due to the strike are entitled to work suspension allowance in accordance with Clause 2, Article 99 of this Code as well as to other benefits as stipulated in the labor laws.

2. Employees who take part in the strike shall not receive salaries and other benefits as prescribed by law, unless agreed otherwise by both parties.

Article 208. Prohibited acts before, during and after a strike

1. Obstructing employees exercising their right to strike; inciting, inducing or forcing employees to go on strike; preventing employee who do not take part in the strike from working.

2. Use of violence; sabotaging equipment or assets of the employer.

3. Disrupting public order and security.

4. Terminating employment contracts, disciplining or reassigning employees or strike leaders to other work or location workplace due to their preparation for or involvement in the strike.

5. Retaliating, inflicting punishment against employees who take part in strike or against strike leaders.

6. Taking advantage of the strike to commit illegal acts.

Article 209. Workplaces where strike is prohibited

1. Strike is prohibited in workplaces where the strike may threaten national security, national defense, public health or public order.

2. The Government shall compile a list of workplaces where strike is prohibited as mentioned in Clause 1 of this Article, and settlements of labor disputes that arise therein.

Article 210. Decisions on postponing or cancelling a strike

1. When deemed that a strike threatens to cause serious damage to the national economy or public interest, threatens national security, national defense, public health or public order, the President of the People’s Committee of the province shall issue a decision to postpone or cancel the strike.

2. The Government shall provide for postponing and cancelling strikes and settlement of employees’ rights.

Article 211. Handling of unlawful strikes

Within 12 hours from the receipt of the notification that a strike is organized against the regulations of Articles 200, 201 and 202 of this Labor Code, the President of the People’s Committee of the district shall request the labor authority to cooperate with the trade union at the same level and relevant organizations in meeting the employer and the representative organization of employees, assisting the parties in finding a solution and returning the normal business operation.

Any violations of law shall be dealt with or reported to a competent authority as prescribed by law.

The parties shall be assisted in following proper procedures for settling the labor dispute.

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