Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Labour Inspection Convention, 1947 (No. 81) - Viet Nam (Ratification: 1994)

Other comments on C081

Observation

Direct Request

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Article 3 of the Convention. Labour Inspection in Industrial Processing Zones (IPZs). Supervision and monitoring by the central authority. The Committee previously requested information on the delegation of tasks in the field of labour and labour inspection to IPZ management boards and whether they are subject to binding guidance from the Ministry of Labour, War Invalids and Social Affairs (MOLISA). In this respect, the Committee notes the Government’s statement in its report that no authorization has been given to IPZ management boards regarding labour inspection. The Committee also notes the information provided by the Government regarding the tasks delegated to IPZ management boards in the field of labour, such as receiving declarations of employment or issuing, re-issuing and revoking work permits for migrant workers working in enterprises in IPZs. The Committee notes that, according to the Government, IPZ management boards must report every six months to the authorized agencies on the performance of all authorized tasks, and that Provincial-level People’s Committees shall sum up and report on such authorizations in their respective provinces, for submission to the MOLISA, which may itself request reports from IPZ management boards. The Committee requests the Government to provide further information on the undertaking of labour inspections in IPZs, including the number of inspection visits, the nature of these visits (regular or ad hoc; inspections responding to complaints or accidents; inspections announced in advance versus unannounced), the number of enterprises and workers in each IPZ, the number and nature of violations detected and the number and nature of penalties imposed.

Article 5(b). Collaboration between officials of the labour inspectorate and employers and workers or their organizations. Further to its previous comments on collaboration between the labour inspection services and employers’ and workers’ organizations, the Committee notes the Government’s indication regarding the setting up of an information portal by the Inspectorate of the MOLISA (Ministry Inspectorate), which is accessible to employers’ and workers’ organizations. The Government also indicates that there is close collaboration between the Ministry Inspectorate and the Viet Nam General Confederation of Labour, the Viet Nam Chamber of Commerce and Industry and the Viet Nam Cooperative Alliance, in the formulation of mechanisms and policies related to employers and employees; in the implementation of labour inspection campaigns; and during inspections. The Committee requests the Government to provide information on any impact of these collaboration mechanisms on improving conditions of work and the level of protection of workers while engaged in their work, including further information on the impact of such collaboration mechanisms in the implementation of labour inspection campaigns.

Article 12(1)(a). Inspection visits and powers of labour inspectors. The Committee previously noted that the MOLISA prepares annual inspection plans, and that inspection activities shall be conducted only when inspection decisions are issued. In this respect, the Committee also notes that, pursuant to section 22 of Decree No. 110/2017/ND-CP, the process for conducting labour inspection is regulated by Decree No. 86/2011/ND-CP and Decree No. 07/2012/ND-CP.

The Committee notes that the Government indicates that inspection activities are divided between inspection plans, regular inspections or ad-hoc inspections. In this respect, the Committee notes that, while Chief Inspectors are empowered under section 20 of Decree No. 86/2011/ND-CP and section 15 of Decree No. 07/2012/ND-CP to issue ad-hoc inspection decisions, such decisions have to be announced to the subjects of inspections within 15 days of their issuance (section 26 of Decree No. 86/2011/ND-CP and section 22 of Decree No. 07/2012/ND-CP). The Committee observes that such a requirement could limit the ability of labour inspectors provided with proper credentials to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection, in accordance with Article 12(1)(a) of the Convention. The Committee also notes, however, the Government’s indication that, pursuant to section 216 of the Labour Code 2019, which enters into force on 1 January 2021, an advance notice shall not be required if there is an ad-hoc inspection decision issued by a competent authority, in case of an emergency that threatens the safety, life, health, honour, and dignity of the employees at the workplace. Pursuant to section 22 of the Decree No. 110/2017/ND-CP, prior notice may not be necessary in certain situations related to OSH. While recognizing that certain provisions of national legislation, such as section 216 of the Labour Code, provide some scope for unannounced inspections, the Committee requests the Government to take the necessary measures to bring its legislation in line with the Convention to ensure that labour inspectors are empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection. It requests further information on the manner in which the exceptions in section 216 of the Labour Code and section 22 of Decree No. 110/2017/ND-CP are applied in practice, including the number of inspections undertaken without previous notice and the results of such inspections, once the Labour Code comes into force.

Article 14. Notification of industrial accidents and cases of occupational disease. The Committee notes that the Government reiterates that enterprises only report accidents ranging from serious to fatal ones and serious technical incidents to local labour inspectors. In this regard, the Committee notes that section 34 of the Law on Occupational Safety and Health (OSH Law) requires that employers provide immediate notice to the provincial-level labour state management agency for accidents causing death or serious injuries to at least two employees. Section 10 of Decree No. 39/2016/ND-CP of 15 May 2016, stipulating detailed guidelines for the implementation of several articles of the OSH Law, also requires employers to notify the labour inspectorate of occupational accidents causing death or injuries to two employees or more. The Committee requests once again that the Government take the necessary measures to ensure that the labour inspectorate is notified of cases of occupational disease. In addition, in the absence of information in this regard, the Committee once again requests the Government to provide statistics available to the labour inspectorate on cases of industrial accidents and of occupational disease, including the nature of these accidents or diseases and the sectors in which they occur.

Articles 17 and 18. Adequate penalties. Further to its previous request in this regard, the Committee notes the information provided by the Government concerning the different provisions in national legislation, setting out sanctions available to labour inspectors and sanctions applicable for obstruction of labour inspectors in the performance of their duties. The Committee also notes the statistics provided by the Government, indicating that the number of sanctions on administrative violations in 2018 and 2019 increased from 648 to 756, while the total amount of fines imposed decreased from 39,658,000,000 Vietnamese dong (US$1,708,441) to 25,411,000,000 dong (US$1,096,036). The Government nevertheless indicates that there are currently no statistics available on: (i) penalties applied for hindering labour inspectors; (ii) forms of violations reported; or (iii) on legal proceedings instituted or recommended by labour inspectors. The Committee requests the Government to provide further information on the application in practice of Articles 17 and 18 of the Convention, including any challenges and difficulties faced by labour inspectors in relation to the application of penalties or the institution of legal proceedings, and with the application of penalties for obstructing labour inspectors in the performance of their duties. It requests the Government to continue to provide information on the number and types of violations detected and sanctions imposed, including the total amount of fines imposed and collected, any other civil sanctions imposed, the number and nature of instances where signs of crime are detected, and the results of any suspected law violations transferred to the appropriate prosecutorial authorities.