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THE
NATIONAL ASSEMBLY
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
35/2002/QH10
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Hanoi,
April 02, 2002
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LAW
AMENDING AND
SUPPLEMENTING A NUMBER OF ARTICLES OF THE LABOR CODE
(No. 35/2002/QH10 of April 2, 2002)
Pursuant to the 1992 Constitution of the
Socialist Republic of Vietnam, which was amended and supplemented under
Resolution No. 51/2001/QH10 of December 25, 2001 of the Xth National Assembly,
at its 10th session;
This Law amends and supplements a number of articles of the Labor Code which
was passed on June 23, 1994 of the IXth National Assembly at its 5th session.
Article 1.- To amend and
supplement the Preamble and a number of articles of the Labor Code:
1. The last paragraph of the Preamble is amended
and supplemented as follows:
" The Labor Code protects the right to
work, the interests and other rights of laborers, at the same time to protect
the legitimate rights and interests of employers, creates conditions for the
establishment of harmonious and stable labor relations, contributing to
promoting the creativeness and talents of intellectual and manual laborers as
well as of labor managers, in order to achieve high productivity, quality and
social progress in labor, production, service, and efficient use and management
of labor, thus contributing to the national industrialization and
modernization, to attain the objective of a prosperous people, a strong country
and an equitable, democratic and civilized society."
2. Article 18 is amended and supplemented as
follows:
"Article 18.-
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The Government shall stipulate the conditions
and procedures for the establishment and operation of job-recommending
organizations.
2. Job-recommending organizations shall be
entitled to collect charges, be considered by the State for tax reduction or
exemption, and be entitled to organize job training according to the provisions
in Chapter III of this Code.
3. The Ministry of Labor, War Invalids and
Social Affairs shall perform the State management over the job-recommending
organizations."
3. Article 27 is amended and supplemented as
follows:
"Article 27.-
1. Labor contracts must be made in one of the
following forms:
a/ Labor contracts with indefinite terms.
A labor contract with an indefinite term is a
contract whereby the two parties do not determine the contract’s term and the
time for its termination;
b/ Labor contracts with definite terms.
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c/ Labor contracts for seasonal jobs or specific
jobs with a term of under 12 months.
2. When labor contracts stipulated at Points b
and c, Clause 1 of this Article expire but the laborers still continue working,
within 30 days after their expiry, the two parties must sign new contracts; if
new labor contracts are not signed, the old contracts shall become labor
contracts with indefinite terms. Where the two parties sign new labor contracts
which have a definite term, such labor contracts shall last for only one more
term, then if the laborers continue working, the two parties must sign labor
contracts with indefinite terms.
3. Labor contracts for seasonal jobs or specific
jobs for terms of under 12 months must not be signed for regular jobs lasting
for 12 months or more, except for the cases of temporary substitution of the
laborers who are called up for military service, take maternity leave or other
temporary leaves."
4. Clause 3 of Article 29 is amended and
supplemented as follows:
"3. In cases where labor contracts are
detected with the contents prescribed in Clause 2 of this Article, the labor
inspectors shall guide and request the involved parties to revise and/or
supplement them appropriately. If they fail to do so, the labor inspectors
shall be entitled to force them to cancel such contents; the rights,
obligations and interests of the involved parties shall be dealt with according
to the provisions of law."
5. Article 31 is amended and supplemented as
follows:
"Article 31.- In cases of enterprise
merger, consolidation, separation or splitting, transfer of the right to own,
manage or use assets, of enterprises, the succeeding employers must continue
performing the labor contracts with the laborers. Where they cannot employ all
the existing number of laborers, they must work out employment plans as
prescribed by law.
Those laborers who are subject to the labor
contract termination under the provisions of this Article shall be provided
with job-loss allowances as prescribed in Clause 1, Article 17 of this
Code."
6. Article 33 is amended and supplemented as
follows:
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1. Labor contracts shall take effect as from the
date of signing or as from the date agreed upon by the two involved parties or
from the date the laborers start working.
2. In the course of performing the labor
contracts, if either party requests alterations of the contractual contents, it
must inform the other party thereof at least three days in advance. Alterations
of the labor contract contents shall be effected by amending and/or
supplementing the concluded labor contracts or by concluding new ones. Where
the two involved parties fail to reach agreement on amendments and/or
supplements to their labor contracts or on the conclusion of new ones, they
shall continue performing the already concluded labor contracts or terminate
such contracts according to the provisions in Clause 3, Article 36 of this
Code."
7. Article 37 is amended and supplemented as
follows:
"Article 37.-
1. The laborers working under labor contracts
with definite terms of between full 12 months and 36 months or under labor
contracts for seasonal or specific jobs for definite terms of under 12 months
shall be entitled to unilaterally terminate the contracts ahead of time in the
following cases:
a/ They are not assigned the right jobs, not
arranged to work in the right working places, or not provided with working
conditions as agreed upon in the contracts;
b/ They are not fully paid or are paid not
according to the time limits agreed upon in the contracts;
c/ They are ill-treated; are forced to work;
d/ They themselves or their families actually
meet with difficulties so that they cannot continue performing the contracts;
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f/ Pregnant female laborers must take leave
according to physicians�
prescriptions;
g/ The laborers got sick or accidents and have
been undergone medical treatment for three consecutive months, for those who
work under labor contracts with definite terms of between full 12 months and 36
months, or for one-quarter of the contractual term, for those who work under
under-12 month labor contracts for seasonal or specific jobs, but their labor
capacity has not yet been recovered.
2. When unilaterally terminating their labor
contracts under the provisions in Clause 1 of this Article, the laborers must inform
their employers thereof in advance:
a/ For cases specified at Points a, b, c and g,
at least three days;
b/ For cases specified at Points d and e, at
least 30 days if the contracts have a definite term of between full 12 months
and 36 months; at least three days if the contracts are for seasonal or
specific jobs and have a term of less than 12 months;
c/ For the case specified at Point f, according
to the time limit prescribed in Article 112 of this Code.
3. The laborers who work under labor contracts
with indefinite terms shall be entitled to unilaterally terminate their labor
contracts but must inform their employers thereof at least 45 days in advance;
the laborers who got sick or accidents and have undergone medical treatment for
six consecutive months, must inform their employers thereof at least three days
in advance."
8. Article 38 is amended and supplemented as
follows:
"Article 38.-
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a/ The laborers regularly fail to finish the
contractual jobs;
b/ The laborers are disciplinarily dismissed
under the provisions in Article 85 of this Code;
c/ The laborers working under labor contracts
with indefinite terms got sick and have undergone medical treatment for 12
consecutive months, the laborers working under labor contracts with definite
terms of between full 12 months and 36 months got sick and have undergone
medical treatment for six consecutive months, and laborers working under
under-12 month labor contracts for seasonal or specific jobs got sick and have
undergone medical treatment for over half of their labor contracts term, but
their labor capacity has not yet been recovered. When the laborers health has
fully recovered, they shall be considered for the conclusion of new labor
contracts.
d/ If due to natural calamities, fires or other
force majeure reasons as stipulated by the Government and the employers have
applied every measure to overcome their consequences but they are still forced
to downscale production and cut jobs;
e/ The enterprises, agencies or organizations
terminate their operation.
2. Before unilaterally terminating the labor
contracts according to Points a, b and c, Clause 1 of this Article, the
employers must exchange opinions and reach agreements with the grassroots trade
unions executive committees. If failing to reach any agreements, they must
report such to competent agencies or organizations. Only 30 days after
informing the local agencies in charge of the State management over labor shall
the employers be entitled to make decisions and must be answerable for their
decisions. If disagreeing with the employers decisions, the grassroots trade
unions executive committees and the laborers may request the settlement of
labor disputes according to the procedures prescribed by law.
3. When unilaterally terminating the labor
contracts, except for cases prescribed at Point b, Clause 1 of this Article,
the employers must inform such to the laborers in advance:
a/ At least 45 days, for labor contracts with
indefinite terms;
b/ At least 30 days, for labor contracts with
definite terms of between full 12 months and 36 months;
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9. Article 41 is amended and supplemented as
follows:
"Article 41.-
1. Where the employers unilaterally terminate
labor contracts in contravention of law, they must reinstate the laborers under
the signed contracts and pay compensations equal to the salaries and allowances
(if any) for the days the laborers were not allowed to work plus at least two
months salary and salary allowances (if any).
Where the laborers do not want to return to
work, apart from receiving the compensation amounts prescribed in paragraph 1
of this Clause, they shall also be entitled to allowances as prescribed in
Article 42 of this Code.
Where the employers do not want to reinstate the
laborers and the laborers so agree, apart from the compensation amounts
prescribed in paragraph 1 of this Clause and allowances prescribed in Article
42 of this Code, the two parties shall agree on additional amounts of
compensation for the laborers to terminate the contracts.
2. Where the laborers unilaterally terminate
labor contracts in contravention of law, they shall not be provided with
severance allowances and must compensate the employers half a month’s salary
and salary allowances (if any).
3. Where the laborers unilaterally terminate
labor contracts, they must reimburse the training costs (if any) according to
the Government’s regulations.
4. In cases of unilateral termination of labor
contracts, if breaching the provisions on advance notice, the breaching party
must compensate the other party a money amount equal to the salaries the
laborers should have earned in the days required for advance notice."
10.- Clause 1 of Article 45 is amended and
supplemented as follows:
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a/ The grassroots trade unions executive committees
or the provisional trade union organizations, for the labor collectives side;
b/ The enterprise directors or the persons who
are authorized under the enterprises organizational charters or have a proxy of
the enterprise directors, for the employers side.
The numbers of the parties representatives in
negotiating the collective agreements shall be agreed upon by the two
parties."
11. Article 47 is amended and supplemented as
follows:
"Article 47.-
1. The signed collective agreements must be made
in four copies, of which:
a/ One copy to be kept by the employer;
b/ One copy to be kept by the grassroots trade
union’s executive committee;
c/ One copy to be sent by the grassroots trade
union’s executive committee to the superior trade union;
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2. Collective agreements shall come into force
as from the date agreed upon by the two parties and inscribed therein; where
the two parties have no agreement thereon, the collective agreements shall come
into force as from the date of signing."
12. Article 48 is amended and supplemented as
follows:
"Article 48.-
1. Collective agreements shall be deemed
partially invalid when one or a number of articles thereof contravene the
provisions of law.
2. The agreements shall be deemed wholly invalid
in one of the following cases:
a/ All contents of the agreements contravene
law;
b/ The signers of the agreements are not duly
authorized;
c/ The signing procedures have not yet been
fully complied with.
3. The provincial/municipal agencies in charge
of the State management over labor shall be entitled to declare collective
agreements partially or wholly invalid under the provisions in Clauses 1 and 2
of this Article. For collective agreements in the cases specified at Points b
and c, Clause 2 of this Article, if the signed contents are in favor of the
laborers, the provincial/municipal agencies in charge of the State management
over labor shall guide the involved parties to make them comply with
regulations within 10 days after receiving such guidance; if they fail to do
so, the collective agreements shall be declared invalid. The rights,
obligations and interests of the involved parties inscribed in such invalid
agreements shall be dealt with according to the provisions of law."
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"1. In cases of enterprise merger,
consolidation, separation or splitting, transfer of the right to own, manage,
or the right use assets of, enterprises, the employers and the grassroots trade
unions executive committees shall base themselves on the employment plans to
consider the continued implementation, revision, supplementation of the
collective agreements or signing new ones."
14. Article 57 is amended and supplemented as
follows:
"Article 57.- After consulting with Vietnam
Confederation of Labor and the employers representatives, the Government shall
prescribe the principles for formulating the salary levels and scales as well
as labor norms so that the employers can formulate and apply them in a way
suitable to their enterprises production and business conditions; and prescribe
the salary levels and tables for State enterprises.
When formulating salary levels and scales as
well as labor norms, the employers must consult with the grassroots trade
unions executive committees; the salary levels and scales must be registered
with the agencies in charge of the State management over labor in the provinces
or centrally-run cities where the employers head offices are based, and be
publicized within the enterprises."
15. Article 61 is amended and supplemented as
follows:
"Article 61.-
1. The laborers working overtime shall be paid
according to the unit salary or salaries of the jobs they are doing as follows:
a/ On weekdays, an amount at least equal to
150%;
b/ On weekends, an amount at least equal to
200%;
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If overtime work is performed at night, an
additional amount shall be paid as prescribed in Clause 2 of this Article.
If the laborers are granted compensatory
days-off for the hours they worked overtime, the employers shall only have to
pay the amounts in excess of the salaries calculated according to the unit
salary or the remuneration of the jobs being done on weekdays.
2. The laborers working at night as prescribed
in Article 70 of this Code shall be paid an additional amount at least equal to
30% of the salaries calculated according to the unit salary or the salaries of
the jobs being done at daytime."
16. Article 64 is amended and supplemented as
follows:
"Article 64.- On the basis of the annual
production and business results of the enterprises and the laborers work
performance levels, the employers shall give rewards to the laborers working at
their enterprises.
The reward regulations shall be decided by the
employers after consulting with the grassroots trade unions executive
committees."
17. Article 66 is amended and supplemented as
follows:
"Article 66.- In cases of enterprise
merger, consolidation, separation or splitting, transfer of the right to own,
manage, or the right to use assets of, enterprises, the succeeding employers
must be responsible for paying salaries and other interests to the laborers
transferred from the old enterprises. Where the enterprises go bankrupt, the
salaries, severance allowances, social insurance premiums and other interests
of the laborers under the signed collective agreements and labor contracts
shall be the debts payable first in the payment priority order."
18. Article 69 is amended and supplemented as
follows:
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19. Clause 1 of Article 84 is amended and
supplemented as follows:
"1. Those who breach labor disciplines
shall, depending on the seriousness of their breaches, be handled in one of the
following forms:
a/ Reprimand;
b/ Prolongation of the salary-raise time limit
for up to six months or transfer to lower paid jobs for a period of up to six
months, or demotion;
c/ Dismissal."
20. Article 85 is amended and supplemented as
follows:
"Article 85.-
1. Dismissal shall be applied as a disciplinary
measure only in one of the following cases:
a/ The laborers commit acts of theft,
embezzlement, disclosure of technological and business secrets or other acts
causing severe losses to the enterprises assets and/or benefits;
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c/ The laborers abandon their jobs at their own
will for an aggregate number of five days in a month or an aggregate number of
20 days in a year without plausible reasons.
2. After dismissing the laborers, the employers
must inform such to the provincial/municipal agencies in charge of the State
management over labor."
21. Article 88 is amended and supplemented as
follows:
"Article 88.-
1. Those who have been reprimanded or have been
disciplined with the prolongation of salary-raise time limit or the transfer to
other jobs shall automatically have their disciplinary records wiped off if
they do not relapse into the previous violations after three months or six
months from the date of being reprimanded or disciplined.
2. Those who have been disciplined with the
prolongation of salary-raise time limit or the transfer to other jobs shall be
considered by the employers for reduction of their disciplinary duration if
they have served the imposed disciplines for half of such duration and showed
rectification and progress."
22. Clause 2 of Article 96 is amended and
supplemented as follows:
"2. The production, use, preservation and
transportation of assorted machinery, equipment, supplies, energies,
electricity, chemicals, plant protection drugs, and the technological changes
or importation of new technologies must be effected according to the labor
safety and hygiene criteria. All types of machinery, equipment, supplies or
substances with strict labor safety and/or hygiene requirements must be
registered and inspected according to the Government’s regulations."
23. Clause 3 of Article 107 is amended and
supplemented as follows:
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The Government shall prescribe the
responsibility of the employers and the levels of compensation for labor
accidents or occupational diseases to the laborers who suffer from a reduction
of between 5% and under 81% of their working capacity."
24. Clause 3 of Article 111 is amended and
supplemented as follows:
"3. The employers must not dismiss or
unilaterally terminate the labor contracts with female laborers for reasons of
marriage, pregnancy, maternity leave or nursing of their children of under 12
months, except where the enterprises terminate their operation.
During the time of pregnancy, maternity leave or
nursing of their under 12-month children, the female laborers may postpone the
unilateral termination of their labor contracts or prolong the statute of
limitations for examination and handling of breaches of labor disciplines,
except where the enterprises terminate their operation."
25. Article 121 is amended and supplemented as
follows:
"Article 121.- The employers may employ
minor laborers only for jobs suitable to their health so as to ensure their
physical, intellectual and personality development and shall have the
responsibility to render due attention and care for minor laborers in terms of
labor, salary, health and study in the course of their labor.
It is forbidden to employ minor laborers for
heavy or hazardous jobs or jobs requiring exposure to noxious substances or in
working places or jobs badly affecting their personality, which are on the
lists promulgated by the Ministry of Labor, War Invalids and Social Affairs and
the Ministry of Health."
26. Clause 2 of Article 129 is amended and
supplemented as follows:
"2. The laborers shall be entitled to the
interests and obligations related to inventions, utility solutions, industrial
designs and other industrial property objects created either by themselves or
jointly in the course of performing their labor contracts according to the
industrial property legislation as well as the signed contracts."
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"Article 132.-
1. Foreign-invested enterprises may directly
recruit Vietnamese laborers or through job-recommending organizations and must
notify the lists of recruited laborers to the local agencies in charge of the
State management over labor.
For jobs requiring high techniques or managerial
jobs for which Vietnamese laborers have not yet been qualified, the enterprises
may recruit a proportion of foreign laborers for a certain period but must work
out programs and plans to train Vietnamese laborers so that they can take over
such jobs from the foreign laborers according to the Government’s regulations.
2. International or foreign agencies and
organizations, foreign individuals in Vietnam may recruit Vietnamese and
foreign laborers according to the Government’s regulations.
3. The minimum salary payable to Vietnamese
laborers working in the cases specified in Article 131 of this Code shall be
prescribed and announced by the Government after consulting with Vietnam
Confederation of Labor and the employers representatives.
4. The work time, rest time, labor safety, labor
hygiene, social insurance, settlement of labor disputes in enterprises and
organizations and other cases specified in Article 131 shall comply with the
provisions of this Code and of other relevant legal documents."
28. Clause 1 of Article 133 is amended and
supplemented as follows:
"1. Foreigners working for three months or
more for enterprises, organizations or for individuals in Vietnam must have
work permits granted by the provincial/municipal agencies in charge of the
State management over labor; such work permits shall be valid for a period of
time corresponding to the labor contract’s term but for no more than 36 months
and may be extended upon the employers requests."
29. Article 134 is amended and supplemented as
follows:
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1. The State encourages enterprises, agencies,
organizations and individuals to seek and expand labor markets in order to
generate jobs in foreign countries for Vietnamese laborers according to the
provisions of Vietnamese laws, the laws of the host countries and international
agreements which Vietnam has signed or acceded to.
2. Vietnamese citizens who are aged full 18
years or older, able to work, volunteer, and meet all other criteria and
conditions prescribed by the laws of Vietnam, the laws and requirements of
foreign employers may go to work abroad."
30. The following Article 134a is added:
"Article 134a.-
The forms of sending Vietnamese laborers to work
abroad include:
1. Supply of labor under contracts signed with
foreign parties;
2. Sending of laborers to work at contracted
projects abroad.
3. Sending of laborers to work at projects of
investment overseas;
4. Other forms as prescribed by law."
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"Article 135.-
1. Enterprises engaged in labor export must have
licenses granted by competent agencies in charge of State management over labor.
2. Enterprises engaged in labor export have the
following rights and obligations:
a/ To register labor export contracts with the
competent agencies in charge of the State management over labor;
b/ To exploit markets and sign contracts with
foreign parties;
c/ To publicize the recruitment criteria and
conditions, interests and obligations of laborers;
d/ To directly recruit laborers without
collecting any recruitment charge;
e/ To organize orientation training and
education for laborers before they go to work abroad according to the
provisions of law;
f/ To sign contracts for going to work abroad
with laborers; to organize the laborers outbound and homebound trips strictly
according to the signed contracts and the provisions of law;
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h/ To manage, and protect the interests of, the
laborers working abroad under contracts according to the laws of Vietnam and
the host countries;
i/ To pay compensations to laborers for losses
caused by the enterprises breaches of contracts;
j/ To initiate lawsuits to claim compensations
for losses caused by the laborers breaches of contracts;
k/ To complain with competent State agencies about
law-breaking acts in the domain of labor export.
3. The enterprises sending Vietnamese laborers
to work abroad for the performance of contracts on investment projects abroad
or projects invested abroad must register the contracts with the competent agencies
in charge of the State management over labor and implement the provisions at
Points c, d, e, f, h, i, j and k, Clause 2 of this Article.
4. The Government shall promulgate concrete
provisions regarding laborers going to work abroad under contracts not through
enterprises."
32. The following Article 135a is added:
"Article 135a.-
1. The laborers working abroad shall have the
following rights and obligations:
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b/ To be provided with orientation training and
education before going to work abroad;
c/ To sign and strictly perform the contracts;
d/ To be assured to enjoy their interests under
the signed contracts according to the provisions of the laws of Vietnam and the
host countries;
e/ To observe the laws of Vietnam and the host
countries, and respect the customs and practices of the host countries;
f/ To be protected consularly and judicially;
g/ To pay labor export charges;
h/ To complain, denounce to or initiate lawsuits
at competent agencies of the State of Vietnam or of the host countries against
violations committed by labor export enterprises and/or foreign employers;
i/ To compensate losses caused by their breaches
of contracts;
j/ To be compensated for losses caused by the
enterprises breaches of contracts.
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33. The following Article 135b is added:
"Article 135b.- The Government shall
promulgate concrete provisions on the export labor training; organization and
management of laborers working abroad; and the setting up, management and use
of the labor export support fund."
34. The following Article 135c is added:
"Article 135c.-
1. It is strictly forbidden to illegally recruit
and send laborers to work abroad.
2. Enterprises, organizations or individuals
that capitalize on labor export to recruit, train laborers and organize the
sending of laborers to work abroad in contravention of law shall be handled
according to the provisions of law; if causing any damage, they shall have to
pay compensation therefor to the laborers.
3. Laborers who capitalize on working abroad for
other purposes shall be handled according to the provisions of law; if causing
damage, they must pay compensation therefor."
35. Clause 1 of Article 140 is amended and
supplemented as follows:
"1. The State shall prescribe social
insurance policies to step by step expand and raise the quality of the material
life, health care and recovery, contributing to stabilize the lives of laborers
and their families in cases where the laborers get sick, pregnant, pass the
working age, die, get labor accidents, suffer from occupational diseases, are
unemployed or hit by risks or other difficulties.
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36. Article 141 is amended and supplemented as
follows:
"Article 141.-
1. The compulsory social insurance form shall
apply to enterprises, agencies and organizations employing laborers under labor
contracts with definite terms of full three months or more and labor contracts
with indefinite terms. At these enterprises, agencies and organizations, the
employers and laborers must pay social insurance premiums according to the
provisions in Article 149 of this Code and the laborers shall enjoy the social
insurance allowances when they get sick, suffer from labor accidents or
occupational diseases, get pregnant, retire or die.
2. For laborers working under labor contracts
with terms of under three months, social insurance premiums shall be included
in the salaries paid by the employers according to the Government�s regulations so that the
laborers can participate in voluntary social insurance and care for their own
insurance. Upon the expiry of the labor contracts if the laborers continue
working or sign new contracts, the compulsory social insurance regime shall
apply according to the provisions in Clause 1 of this Article."
37. Article 144 is amended and supplemented as
follows:
"Article 144.-
1. During their maternity leave as prescribed in
Article 114 of this Code, the female laborers who have paid social insurance
premiums shall be granted a social insurance allowance equal to 100% of their
salary and an additional allowance equal to one month�s salary.
2. Other regimes for female laborers shall
comply with the provisions in Article 117 of this Code."
38. The following Clause 1a is added to Article
145:
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39. Article 148 is amended and supplemented as
follows:
"Article 148.- Enterprises operating in the
fields of agriculture, forestry, fishery and salt production shall have to
participate in various forms of social insurance, suitable to the production
and employment characteristics of each branch as prescribed by the
Government."
40. Article 149 is amended and supplemented as
follows:
"Article 149.-
1. The social insurance fund shall be formed
from the following sources:
a/ 15% of the total salary fund, contributed by
the employers;
b/ 5% of salary, contributed by the laborers;
c/ Additional contributions and supports of the
State to ensure the implementation of social insurance regimes towards
laborers;
d/ The fund’s yields;
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2. The social insurance fund shall be managed in
a uniform, democratic and public manner according to the State’s financial
regulations, be accounted independently, and protected by the State. It may
take measures to preserve its value and ensure its growth according to the
Government’s regulations."
41. Clause 2 of Article 151 is amended and
supplemented as follows:
"2. Disputes over social insurance:
a/ Disputes between laborers and employers shall
be settled according to the provisions in Chapter XIV of this Code;
b/ Disputes between laborers who have retired
according to regimes and employers or social insurance agencies, between
employers and social insurance agencies shall be settled according to their
agreements; if the involved parties fail to reach agreements, the disputes
shall be settled by the people’s courts."
42. Article 153 is amended and supplemented as
follows:
"Article 153.-
1. At operating enterprises where trade unions
have not yet been organized, within six months after the Law Amending and
Supplementing a Number of Articles of the Labor Code takes effect and at
newly-founded enterprises, within six months after they commence operation,
local trade unions or branch trade unions shall have to organize the trade
unions therein to represent and protect the legitimate rights and interests of
individuals laborers and labor collectives.
The employers shall have to create favorable
conditions for the trade unions to be set up as soon as possible. Pending the
setting up of the trade unions, the local or branch trade unions shall appoint
the provisional trade union organizations to represent and protect the
legitimate rights and interests of laborers and labor collectives.
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2. The Government shall guide the implementation
of Clause 1 of this Article after reaching agreement thereon with Vietnam
Confederation of Labor."
43. Article 163 is amended and supplemented as
follows:
"Article 163.-
1. The grassroots labor reconciliation councils
must be set up at enterprises where exist grassroots trade unions or
provisional trade union organizations, which are composed of equal numbers of
representatives of the laborers and the employees. The numbers of members of
such councils shall be agreed upon by the two parties.
2. The office term of a grassroots labor
reconciliation council shall be two years. The representatives of each party
shall act in turn as chairman and secretary of the council. The grassroots
labor reconciliation councils shall work on the principle of negotiation and
consensus.
3. The employers shall ensure necessary
conditions for the operation of the grassroots labor reconciliation
councils."
44. Clause 3 of Article 164 is amended and
supplemented as follows:
"3. Where reconciliation fails or one
disputing party is absent for the second time without plausible reasons despite
of valid summons, the labor reconciliation councils shall make reports on
reconciliation failure. The copies of such reports must be sent to the two
disputing parties within three days after the date of reconciliation failure.
Each disputing party shall be entitled to request the people’s courts to settle
their disputes. The dossiers sent to the people’s courts must be attached with
the reports on reconciliation failure."
45. Clause 1 of Article 165 is amended and
supplemented as follows:
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46. Article 166 is amended and supplemented as
follows:
"Article 166.-
1. The people’s courts shall settle individual
labor disputes which the grassroots labor reconciliation councils or labor reconciliators
have failed to reconciliate or failed to settle them within the prescribed time
limits.
2. The people’s courts shall settle the
following individual labor disputes which must not necessarily go through
grassroots reconciliation:
a/ Disputes over the imposition of labor
disciplines in the form of dismissal or cases of unilateral termination of
labor contracts;
b/ Disputes over loss compensation, allowances
granted upon termination of labor contracts;
c/ Disputes between house workers and their employers;
d/ Disputes over social insurance prescribed at
Point b, Clause 2, Article 151 of this Code;
e/ Disputes over loss compensation between
laborers and labor export enterprises.
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4. In the adjudicating process, if the people’s
courts detect that labor contracts contravene collective agreements and/or
labor legislation; collective agreements contravene the labor legislation, they
shall declare such labor contracts or collective agreements partially or wholly
invalid.
The rights, obligations and interests of the
involved parties inscribed in the labor contracts or collective agreements,
which are declared partially or wholly invalid, shall be dealt with according
to the provisions of law.
5. The Government shall stipulate in detail the
settlement of consequences in cases where labor contracts and collective
agreements are declared invalid as prescribed in Clause 3 of Article 29, Clause
3 of Article 48 and Clause 4 of this Article."
47. Article 167 is amended and supplemented as
follows:
"Article 167.-
1. The statute of limitations for settling
individual labor disputes, as from the date each disputing party deems that its
rights and interests are infringed upon, shall be prescribed as follows:
a/ One year, for labor disputes prescribed at
Points a, b and c, Clause 2 of Article 166;
b/ One year, for disputes prescribed at Point d,
Clause 2 of Article 166;
c/ Three years, for disputes prescribed at Point
e, Clause 2 of Article 166;
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2. The statute of limitations for settling
collective labor disputes shall be one year from the date each party deems that
its rights and interests are infringed upon."
48. Article 181 is amended and supplemented as
follows:
"Article 181.-
1. The Government performs the uniform State
management over labor throughout the country.
The Ministry of Labor, War Invalids and Social
Affairs shall be responsible to the Government for performing the State
management over labor.
The ministries and the ministerial-level
agencies shall have to coordinate with the Ministry of Labor, War Invalids and
Social Affairs in performing the uniform State management over labor.
2. The People’s Committees at all levels shall
perform the State management over labor within their respective localities. The
local agencies in charge of the State mana-gement over labor shall assist the
People’s Committees of the same level in performing the State management over
labor according to the responsibility assignment of the Ministry of Labor, War
Invalids and Social Affairs.
3. Vietnam Confederation of Labor and trade
unions at all levels shall participate in supervising the State management over
labor according to the provisions of law.
4. The representatives of employers and laborers
shall give comments to the State agencies on policies, laws and matters related
to labor relations according to the Government’s regulations."
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"Article 182.- Within 30 days after the
enterprises commence operation, the employers must declare their labor
employment and report changes in the labor forces in the course of operation to
the local agencies in charge of the State management over labor according to
the regulations of the Ministry of Labor, War Invalids and Social Affairs.
Within 30 days after the enterprises terminate operation, the employers must
report to the local agencies in charge of the State management over labor on
the cessation of employment.
The employers must make labor books, salary
books and social insurance books."
50. Article 183 is amended and supplemented as
follows:
"Article 183.- The laborers shall be
granted labor books and social insurance books according to the provisions of
law."
51. Article 184 is amended and supplemented as
follows:
"Article 184.-
1. The Ministry of Labor, War Invalids and
Social Affairs shall perform the uniform State management over labor export.
2. The People’s Committees of the provinces and centrally-run
cities shall perform the State management over labor export within their
respective localities.
3. The provincial/municipal agencies in charge
of the State management over labor shall grant work permits to foreigners to
work in Vietnam according to the provisions in Clause 1, Article 133 of this
Code."
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"Article 185.- The labor State inspectorate
shall have the function of inspecting labor policies, labor safety and labor
hygiene.
The Ministry of Labor, War Invalids and Social
Affairs and the local agencies in charge of the State management over labor
shall perform the State inspection of labor."
53. Article 186 is amended and supplemented as
follows:
"Article 186.-
The labor State inspectorate shall have the
following major tasks:
1. To inspect the observance of the regulations
on labor, labor safety and labor hygiene;
2. To investigate labor accidents and violations
of the labor hygiene standards;
3. To participate in formulating, and guiding
the application of, the system of criteria, processes and norms on labor safety
and labor hygiene;
4 To settle labor-related complaints and
denunciations according to the provisions of law;
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54. Clause 2 of Article 191 is amended and
supplemented as follows:
"2. The Ministry of Labor, War Invalids and
Social Affairs shall have the responsibility to set up a system of the labor
State inspection organizations; stipulate the criteria for recruitment,
appointment, transfer, removal from office and demotion of inspectors; grant
inspector’s cards; prescribe the regular and irregular reporting regimes and
other necessary regimes and procedures."
55. Section Va is added to Chapter XI:
"Vietnamese laborers working abroad",
consisting of Articles 134, 134a, 135, 135a, 135b and 135c.
56. The following words and phrases in a number
of articles are amended and supplemented as follows:
a/ The word phrase "employment
service" in Articles 10, 15, 16 is changed to
"job-recommending";
b/ The word phrase "one year or over"
in Article 17 and Article 42 is changed to "full 12 months or over";
c/ The word phrase "job-training fee"
in Clause 3 of Article 24 is changed to "job-training costs";
d/ To change the title of Section V of Chapter
XI to "Labor for foreign organizations and individuals in Vietnam,
foreigners working in Vietnam";
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f/ The word phrases "local labor
agencies" and "provincial-level labor agencies" in Articles 17,
82, 162 and 169 are changed to "local agencies in charge of the State
management over labor" and the "provincial/municipal agencies in
charge of the State management over labor".
Article 2.- This Law takes
effect as from January 1, 2003.
Article 3.- The Government
shall detail the implementation of this Law.
This Law was passed on April 2, 2002 by the Xth
National Assembly of the Socialist Republic of Vietnam at its 11th session.
CHAIRMAN OF THE NATIONAL
ASSEMBLY
Nguyen Van An