|
THE
GOVERNMENT
---------
|
SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
----------
|
|
No.
133/2007/ND-CP
|
Hanoi,
August 8, 2007
|
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
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
(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;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
- 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.
ON BEHALF OF THE
GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung