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THE
MINISTRY OF LABOR, WAR INVALIDS AND SOCIAL AFFAIRS
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom Happiness
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No:
10/LDTBXH-TT
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Hanoi,
March 25, 1997
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CIRCULAR
PROVIDING
GUIDANCE ON THE ORGANIZATION AND OPERATION OF THE GRASSROOTS RECONCILIATION
COUNCIL AND THE LABOR RECONCILIATORS OF THE LABOR OFFICES OF DISTRICTS, CITIES,
TOWNS AND TOWNSHIPS OF THE PROVINCES AND CITIES DIRECTLY UNDER THE CENTRAL
GOVERNMENT
Proceeding from Chapter XIV of
the Labor Code of June 23, 1994, the Ministry of Labor, War Invalids and Social
Affairs now provides the following guidance on the organization, operation and
procedure for handling labor disputes of the Grassroots Reconciliation Council
and the Labor Reconciliators of districts, cities, towns and townships of the
provinces and cities directly under the Central Government (hereafter referred
to as the district level):
I. SUBJECTS AND SCOPE OF
APPLICATION:
1. Subjects of application:
The enterprises irrespective of
their economic sectors, including the enterprises which are independent or
dependent accounting members of Union of Enterprises or State Corporations,
which employ 10 or more laborers, shall set up Grassroots Labor Reconciliation
Councils.
2. The following units
shall not have to set up Grassroots Labor Reconciliation Councils:
- The enterprises irrespective
of their economic sectors which employ less than 10 laborers;
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- The foreign agencies and
organizations and international organizations; the representative offices of
foreign and international organizations; the foreign and international economic
and other organizations which employ Vietnamese laborers.
When labor disputes occur at the
above-said units, Reconciliators of the district-level Labor Office are
authorized to handle them.
II. ORGANIZATION OF THE
GRASSROOTS RECONCILIATION COUNCIL:
1. The Reconciliation Council
shall comprise an equal number of representatives of the employer and laborer
parties:
- The employing party is the
employer or other managing personnel of the enterprise who is designated as
representative of the employer.
- The representative of the
laborers designated by the Executive Committee of the Grassroots Trade Union or
the provisional Trade Union,
- The membership of the
Grassroots Reconciliation Council shall comprise at least four people,
including a president and a secretary. The term of the Grassroots
Reconciliation Council is two years with representatives of each party to
alternate the positions of president and secretary every six months from the
date of establishment. The Reconciliation Council operates on the principle of
agreement and consensus.
2. The establishing procedure:
- The employer or the President
of the Grassroots Trade Union shall take initiative to recommend the
establishment of the Grassroots Reconciliation Council and the number of its
membership on the basis of the number of laborers, organization and production
scale of the enterprise, and on the basis of this recommendation, the employer
shall decide the establishment of the Grassroots Reconciliation Council. The
Decision shall clearly describe the names of each member, the president and the
secretary of the Council.
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- During the term of the
Reconciliation Council, the concerned parties have the right to change or add
members who are their representatives. The change or addition of members shall
be agreed upon by the two parties and decided by the employer. This decision
shall also be sent immediately to the above-mentioned recipients as prescribed
for the decision on the establishment of the Reconciliation Council.
III. THE TASKS AND POWERS OF
THE GRASSROOTS RECONCILIATION COUNCIL:
1. The Reconciliation Council
has the tasks: to settle all collective and individual labor disputes
(including those on sacking, unilateral termination of labor contract and the
damage compensation requested by involved persons) at the enterprise.
2. The Reconciliation Council
has the powers:
- To study the dispute, meet
with the parties to the dispute and the concerned people and witnesses;
- To gather evidences, request
the involved parties and applicants to provide in full documents and papers
related to the dispute that is to be settled;
- To request the presence of the
involved parties and applicants at the reconciliation meeting of the Council;
- To recommend reconciliation
solutions for the two concerned parties to consider and negotiate.
3. The President of the
Reconciliation Council has the tasks: to conduct all the operations of the Reconciliation
Council, to chair the reconciliation sessions and to report the situation of
its labor reconciliation operation to the Bureau and Service of Labor, War
Invalids and Social Affairs at the end of every June and December.
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5. The employer shall provide
the necessary conditions for the operation of the Reconciliation
Council: providing room and work facilities for reconciliation sessions.
6. The members of the
Reconciliation Council who are representatives of the laborers
shall, during their attendance at reconciliation sessions to settle labor
disputes and their participation in other activities related to their tasks at
the Reconciliation Council, have the time they spend counted as work time and
be entitled to full salary and other regimes and privileges as provided for by
labor laws.
IV. THE PROCEDURE FOR
RECONCILING LABOR DISPUTES
1. The processing of the
dispute:
When a member of the
Reconciliation Council receives a request for settlement of a dispute, he or
she shall relay the request immediately to the President of the Council; the
Secretary shall register the request and clearly note down the date of
reception. The President of the Reconciliation Council has the responsibility
to inform it to the Council members and assign people to study the alleged
dispute. Within seven days after the reception, the Reconciliation Council
shall hold the labor dispute reconciliation session.
- After studying the dispute,
the President of the Reconciliation Council shall hold a meeting of the Council
to work out a reconciliation solution to the dispute, set the date for the
reconciliation session and notify the disputing parties and the witnesses (when
necessary). The reconciliation solution must be agreed upon by the members. It
can be:
a) To accept the request of the
complaining party if its complaint proves to be right;
b) To convince the complaining
party to drop the charge if it is proven wrong;
c) To recommend a neutral
solution for both parties to consider and negotiate.
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a) At the reconciliation
session, the Council shall check the presence of the disputing parties and the
invitees. In case a disputing party fails to be present and mandates a
representative, the written mandate shall be checked. If the disputing parties
fail to be present and do not mandate their representatives, or their
representatives do not have a written mandate, the Council shall guide the
parties to follow the procedure strictly or postpone the session to another
date. If the seven days time limit is over without the parties showing up at,
or dispatching their representatives to, the session of the Reconciliation
Council as convened, the Council shall file a minute to the effect that the
reconciliation is a failure.
b) When the parties are present
in full, the reconciliation session of the Council shall be conducted in the
following procedure:
+ Declaring the reason for the
reconciliation session for the labor dispute;
+ Reading the letter of request
of the complainant;
+ The complainant explains the
case;
+ The complained explains the
case;
+ The Reconciliation Council
questions the concerned parties, cites the evidences and requests witnesses (if
any) to testify;
+ The defenders of the
complained (if any) comments.
c) The Reconciliation Council
shall base itself on labor laws and regulations, documents, evidences and
comments from the concerned parties, to analyze the dispute, indicate the right
and wrong points of the concerned parties so as to let them reconcile among
themselves or recommend a solution to the dispute for the concerned parties to
consider, negotiate upon and accept.
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+ In case the disputing parties
cannot reconcile among themselves or cannot accept the reconciliation solution,
the Reconciliation Council shall file the minutes of unsuccessful
reconciliation which records the opinions of each party; the minutes shall bear
the signatures of the President and the Secretary of the Reconciliation Council
and the representatives of the disputing parties and shall be duplicated for
the disputing parties within three days from the date of the unsuccessful
reconciliation, and the concerned parties shall have the right to file a law
suit (in case of a personal labor dispute) or request the provincial Arbitrary
Council to handle the case (if it is a collective labor dispute).
+ The Reconciliation Council has
the responsibility to transfer the dossier to the authorized agencies or
organizations as requested by these agencies and organizations. The dossier is
to be composed of: a letter of request for settlement of the dispute filed by
the accusing party, the minutes of unsuccessful reconciliation, the documents
and evidences related to the dispute.
d) The spoken and written
language used in the process of the labor dispute reconciliation is Vietnamese.
If a party to the reconciliation of a labor dispute is not able to use
Vietnamese, the employer has to appoint a translator to take part in the
reconciliation and settlement of the dispute.
V. THE LABOR RECONCILIATOR
1. The district Bureau of Labor,
War Invalid and Social Affairs has the tasks:
a) To appoint personnel of
appropriate competence, quality, knowledge and prestige who can carry out the
work of a labor reconciliator at district level in keeping with the level of
development of the enterprises located in the district.
b) To provide the work
facilities and venues for the reconciliators to carry out their work in
reconciling labor disputes; in case the reconciliation is to be carried out at
the enterprise, the employer is to provide the venue and work facilities for
the reconciliator.
c) To firmly grasp the
organization and operation of the Grassroots Reconciliation Council, the
situation of labor disputes and the reconciliation of labor disputes at
enterprises in the district and file periodical and irregular reports on the
situation of labor disputes and their reconciliation, and promptly recommend
solutions to problems arising in the course of labor dispute settlement to the
provincial Service of Labor, War Invalids and Social Affairs for consideration
and settlement.
2. The tasks and powers of the
labor dispute reconciliator:
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During the participation in
meetings for labor dispute reconciliation, a reconciliator is entitled to an
allowance of 15,000 (fifteen thousand) VND which is to be drawn from the State
Budget and included in the annual budgetary plan of the Bureau of Labor, War
Invalids and Social Affairs (in line with Decision No.154-TTg of March 12,
1996, of the Prime Minister on allowance regime for court trials).
3. The procedure for
reconciliation and settlement of labor disputes:
The reconciliator who takes part
in reconciling labor disputes must comply with the procedure provided for in
Part IV of this Circular. Before putting forward a reconciliation solution, the
reconciliator may consult the Chief of the district Bureau of Labor, War
Invalids and Social Affairs.
VI. IMPLEMENTATION
1. The provincial Service of
Labor, War Invalids and Social Affairs is responsible for:
a) Coordinating with the
provincial Confederation of Labor to provide guidance for the organization,
training, establishment and operation of the Grassroots Reconciliation Council
and the Reconciliators of the district labor agency to solve labor disputes in
accordance with the provisions of the Labor Code and this Circular.
b) Firmly grasping the situation
of labor disputes and their reconciliation; periodically twice every year at
the end of June and December and on irregular occasions to report the situation
of labor disputes and their reconciliation in the province to the Ministry of
Labor, War Invalids and Social Affairs.
2. Within a period of three
months, starting from the effective date of this Circular, all enterprises
shall set up their Grassroots Reconciliation Councils; as for the enterprises
which are set up after the issuing date of this Circular, they shall within six
months at the latest from the date of operation establish their Grassroots
Reconciliation Councils; the district Bureau of Labor, War Invalids and Social
Affairs shall appoint personnel to work full time or part time as
reconciliators.
3. This Circular shall be
circulated to all enterprises and laborers for implementation.
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If any problems arise in the
course of its implementation, they should be reported promptly to the Ministry
of Labor, War Invalids and Social Affairs for consideration and solutions.
THE
MINISTER OF LABOR, WAR INVALIDS AND SOCIAL AFFAIRS
Tran Dinh Hoan