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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence Freedom Happiness
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No.
11/2008/ND-CP
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Hanoi,
January 30, 2008
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DECREE
PROVIDING
FOR COMPENSATION FOR DAMAGE CAUSED BY UNLAWFUL STRIKES TO EMPLOYERS
THE GOVERNMENT
Pursuant to the December 25,
2001 Law on Organization of the Government;
Pursuant to the June 23, 1994 Labor Code; the November 29, 2006 Law Amending
and Supplementing a Number of Articles of the Labor Code;
At the proposal of the Minister of Labor; War Invalids and Social Affairs,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1- Scope of
governing
This Decree provides for
responsibilities, levels and forms of compensation for organizations and
individuals invoked in strikes which are declared unlawful by People's Courts
under Clause 1, Article 179 of the Labor Code, which was amended under the
November 29, 2006 Law Amending and Supplementing a Number of Articles of the
Labor Code (below referred to as the Labor Code for short).
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Article 2.- Subjects of
application
1. Trade union organizations,
labor collective representatives and laborers involved in strikes declared
unlawful by People's Courts and causing damage to employers.
2. Employers.
Article 3. Compensation
principles
1. Damage must be compensated
fully and promptly at request.
2. Levels of compensation shall
be determined based on actual material damage.
3. To respect and encourage the
right to self-decision of parties.
4. To ensure the lawful rights
and interests of employers and employees to maintain and develop labor
relations in enterprises.
5. Compensation can be made in cash,
in kind or by performance of a work.
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PROVISIONS ON COMPENSATION
Article 4.-Compensation
responsibilities
Grassroots trade unions leading
strikes declared unlawful by a People's Court and causing damage to employers
shall compensate for such damage.
When a strike led by labor
collective representatives is declared unlawful by a People's Court and causes
damage, representatives designated by labor collectives and employees
participating in the strike shall take personal responsibility for sharing the
obligation of compensating employers for damage.
Article 5.- Compensation
request
1. Employers may request trade
union organizations prescribed in Clause 1, Article 4 of this Decree or labor
collective representatives and employees participating in strikes specified in
Clause 2, Article 4 of this Decree to compensate for damage caused by unlawful
strikes. The time limit for request is one year from the effective date of a court's
decision on the unlawfulness of a strike.
2. A compensation request shall
be made in writing, covering the following major contents:
a/ Value of damage and proof of
this value;
b/ Level of compensation;
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d/ Time for compensation.
3. The written compensation
request and related documents shall be sent to the trade union organization or
labor collective representatives that lead the strike, and simultaneously to
the Labor, War Invalid and Social Affair Service and the Labor Federation of
the province or centrally run city where the strike takes place.
Article 6.- Determination
of damage for compensation
Damage caused by an unlawful
strike includes corporate assets which are lost directly due to suspension of
production and business caused by the strike. When the two parties fail to
reach agreement on the value of damage, they may request an intermediary
organization to value the damage. Valuation expenses shall be paid by the party
requesting the valuation.
Article 7.- Requested level
of compensation
The requested level of
compensation shall be determined based on the determination of damage
prescribed in Article 6 of this Decree. The maximum level of compensation must
not exceed three (03) consecutive months wage or pay received by employees
going on strike under labor contracts before the date of a strike.
Article 8.- Negotiation
on levels of compensation at enterprises
1 .Within 10 days from the date
of receiving a compensation request, representatives of grassroots trace union
standing committees or labor collective representatives may request employers
to negotiate on compensation.
2. A negotiation request shall
be made in writing, clearly specifying the time and venue for negotiation and
shall be sent to the employer, provincial-level Labor, War Invalid and Social
Affair Service and Labor Federation.
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4. The two parties may invite
representatives of the labor state management agency, local trade union
organization and local employers to attend a negotiation meeting. All contents
of this meeting shall be recorded in minutes.
5. When reaching agreement on
the level and mode of compensation, the two parties shall observe them, unless
otherwise agreed upon. The negotiation meeting minutes serve as a legal basis
for determining rights and obligations of involved parties responsible for
compensation.
Article 9.- Suing for
damages
An employer may initiate a lawsuit
for damages at the district-level People's Court of the locality where a strike
takes place in the following cases:
1. Employee representatives
refuse to negotiate:
2. Negotiation fails:
3. The party liable to pay
compensation fails to fulfill its commitments.
Article 10. Compensation
1. When the grassroots trade
union organization having led a strike declared unlawful by a People's Court is
obliged to compensate the employer for damage, the funds for compensation shall
be taken from assets of the trade union organization under the guidance of the
Ministry of Finance.
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Employees going on strike shall
compensate for damage by having their monthly salary or pay deducted. The
maximum deduction each time must not exceed 30% of employees' monthly wage or
pay under labor contracts.
When an employee terminates the
labor relation before fulfilling his/her compensation obligation, the remaining
amount to be compensated shall be considered a debt of the employee to the
employer.
Chapter II
IMPLEMENTATION-PROVISIONS
Article 11.- Implementation
effect
This Decree takes effect 15 days
after its publication in "CONG BAO."
Article 12.- Guidance and
implementation responsibilities
1. The Ministry of Labor, War
Invalids and Social Affairs shall coordinate with concerned agencies and
organizations in guiding the implementation of this Decree.
2. Ministers, heads of
ministerial-level agencies, heads of government-attached agencies, presidents
of provincial/municipal People's Committees, and concerned agencies,
organizations and individuals shall implement this Decree.
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ON
BEHALF OF THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung