Demande directe (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Repetition

Articles 1(1) and 2(1) of the Convention. Work exacted in drug rehabilitation centres. The Committee previously noted the Government’s statement that persons staying at drug rehabilitation centres are involved in production. The Government stated that this work is not forced labour and that it helps drug addicts to realize the value of their labour and to recover their work skills. Moreover, no sanction would be applied to those who did not wish to work. However, the Government also stated that those who are healthy enough are allocated a certain amount of products to produce, and that persons with low labour discipline would be criticized or reprimanded. The Committee further noted the Government’s indication that section 28 of the Law on Drug Prevention regarding post-rehabilitation management (No. 94/2009/ND-CP) states that the sending of drug addicts into compulsory drug rehabilitation establishments shall be implemented by a decision of the President of the People’s Committees in districts, towns and cities.

The Committee notes the Government’s information that, according to section 104 of the Law on Handling Administrative Violations of 2013, the district-level People’s Court shall examine and decide to send drug addicts above the age of 18, on whom measures of education have been applied in communes, wards and towns, but are still addicted, into compulsory rehabilitation centres for treatment, work, education, vocational training and community reintegration. The Government also indicates that Decree No. 221/2013/ND-CP was adopted to implement the Law on Handling of Administrative Violations. Section 27 of the Decree provides that work in rehabilitation establishments is an occupational therapy to help addicts to recover and practise labour skills which have been impaired due to drug addiction, and that the addicts shall not work more than three hours per day. The Committee notes that Decree No. 221/2013/ND-CP was amended by Decree No. 136/2016/ND CP in 2016. As amended, section 27 provides that the addicts shall not work more than four hours per day and that drug addicts are not required to work during the detoxification session. Moreover, concerned persons may voluntarily participate in labour for an additional income, for which labour legislation applies. The Government further indicates that those who complete their drug detoxification treatment in the rehabilitation establishments will go back to the community where they reside. The Committee requests the Government to provide information on the application of section 27 of Decree No. 136/2016/ND-CP in practice, including the number of persons who are sent to the drug rehabilitation centres and the types of work performed by these persons.

Articles 1(1), 2(1) and 25. Trafficking in persons. In its previous comments, the Committee noted that section 119 of the Penal Code prohibits trafficking in persons, and that the adoption of the Law on the Prevention and Suppression of Human Trafficking strengthened the definition of trafficking in persons provided for in this section. The majority of persons sentenced received between three and 15 years’ imprisonment. Regarding the enforcement of the Law on the Prevention and Suppression of Human Trafficking, the Government indicated that the Ministry of Public Security and the Ministry of Defence were working closely to strengthen their operations in order to investigate and identify perpetrators of human trafficking.

The Committee notes the Government’s information that several circulars were adopted with regard to the prevention and suppression of human trafficking, including: Circular No. 78/2013/TT-MOD of 25 June 2013 providing for measures to be taken by the border guard and coastguard to prevent and combat human trafficking; Joint Circular No. 01/2013/TTLT/SPC-SPP-BCA-BQP-BTP of 23 July 2013 providing guidance on the criminal procedure for persons who commit acts of human trafficking; and Joint Circular No. 01/2014/BCA BNG MOD MOLISA of 10 February 2014 providing guidance on the procedures, formalities and cooperation relations in the verification, receipt and return of victims of trafficking. The Government also indicates that the Action Programme to Prevent and Combat Human Trafficking was implemented for the period 2011–15. Several projects were implemented within its framework, regarding law enforcement, international cooperation, information sharing and communication, as well as victim identification and protection. Moreover, the Action Programme for the period of 2016–20 was adopted. The Committee further notes the Government’s information that, from 2011 to 2015, the police force cooperated with the border guards to investigate 1,947 cases and arrested 3,055 persons. The People’s Courts have adjudicated 1,032 cases involving 2,084 defendants, of which three perpetrators were sentenced to life imprisonment, 152 perpetrators were sentenced to imprisonment of between 15 and 20 years, 667 perpetrators were sentenced to imprisonment of between seven and 15 years, and 1,050 perpetrators were sentenced to imprisonment of less than seven years. The Committee requests the Government to continue its efforts to prevent and combat trafficking in persons, and to provide information on the application in practice of section 119 of the Penal Code as well as the Law on the Prevention and Suppression of Human Trafficking, including the number of prosecutions, convictions and the specific penalties imposed. It also requests the Government to provide detailed information on the measures taken to ensure that victims of trafficking are provided with appropriate protection and services, as well as on the number of persons benefiting from these services. Lastly, the Committee requests the Government to provide information on the implementation of the Action Programme to Prevent and Combat Human Trafficking for 2016–20, including the measures undertaken and the results achieved.

Articles 1(1) and 2(1). Freedom of civil servants to terminate their employment contract. The Committee previously noted that, under section 3 of the Decree on job discontinuation and retirement procedures applicable to civil servants (Decree No. 46/2010), civil servants are entitled to terminate their employment contracts at their own will, subject to the consent of the competent agencies, organizations or units. Pursuant to section 4(1) of the Decree, in order to terminate employment, civil servants must submit written applications to the competent agencies, organizations or units, which have 30 days to accept it or not. In the latter case, the competent authority shall state the grounds for refusal, which may include, inter alia, the workers’ non-fulfilment of “an obligation to pay money or assets under their personal liability towards their agencies, organizations or units” or task requirements of the workers’ agencies, organizations or units. In this regard, the Committee noted the Government’s indication that national law does not restrict the rights of civil servants to resign, but purports to avoid arbitrary job discontinuation and difficulties for management agencies. Civil servants are not allowed to resign if they still owe money to the management agency and, in exceptional cases, civil servants are required to pay back fees for sponsored training courses and higher education before being entitled to resign. In order to ensure that a refusal to grant termination of employment is not of indefinite duration and that civil servants are allowed to resign within a reasonable period of time, the Committee requested information on the application of the Decree in practice.

The Committee notes the Government’s information that section 36 of Decree No. 29/2012/ND-CP provides for situations where staff shall compensate for the training costs, including leaving the school voluntarily, unilaterally terminate the labour contract during the training, not completing the course, not obtaining the diploma or not completing the serving time as committed. The Government also states that no information is available regarding the cases in which resignations were refused under the provisions of Decree No. 46/2010/ND CP. The Committee therefore requests the Government to provide, when available, information on the application of section 4(1) of Decree No. 46/2010 and section 36 of Decree No 29/2012/ND-CP in practice, indicating the cases in which resignations were refused.

Article 2(2)(c). 1. Prison labour. The Committee previously noted that section 3(4) of the Penal Code establishes that persons sentenced to imprisonment must be “compelled to serve their sentences in detention camps, to labour and study so as to become persons useful to society”. It noted that the Law on the Execution of Criminal Judgments was adopted in June 2010. Section 29 of this Law specifies that labour shall be organized for inmates to suit their age and health, and should meet management, education and community integration requirements. The Government stated that this Law does not stipulate that the use of prison labour for private or individual enterprises is prohibited. However, the Government indicated that, in practice, there are no prisoners working in enterprises. The Committee had requested the Government to provide information on any changes to the indicated practice in its future reports.

The Committee notes the Government’s information that Joint Circular No. 12/2013/TTLT BCA-BQP-BTC of 2 December 2013 provides guidance on work policies and vocational training regarding inmates. The Committee also notes that a draft amendment of the Law on Execution of Penal Judgement was developed in 2018. The draft amendments to its section 29 are mainly related to working conditions. The Committee further notes the Government’s statement that prisoners’ work is placed under the close supervision of prison officers, not under the supervision of private enterprises.

2. Other work imposed as a consequence of a conviction in a court of law. The Committee previously noted that section 65(2) of the Law on the Execution of Criminal Judgments states that, during a probation term, a person subject to a suspended sentence shall be assisted by the commune-level People’s Committee in finding a job. With regard to persons serving non-custodial reform sentences, section 76(3) of the Law provides that a sentenced person who is not a civil servant or other government employee shall be assisted by the commune-level People’s Committee in seeking employment. The Committee requested the Government to indicate if persons serving non-custodial reform sentences, or persons subject to suspended sentences, are under an obligation to perform work and, if so, to indicate the type of organizations and enterprises for which such work may be performed.

The Committee notes the Government’s information that persons subject to a suspended sentence may be obliged to work in organizations and enterprises during their probation term, which aims at creating conditions for them to work, live and be accepted in the normal social environment. They work under the supervision of agencies, organizations, military units, educational establishments or People’s Committees of communes, wards and townships where they reside. The Committee also notes the Government’s indication that persons subject to a suspended sentence often perform work at commune-level People’s Committees, such as office clerks, accountants or statisticians. They may also perform work in other sectors such as agriculture or construction. The Committee therefore requests the Government to provide information on the types of organizations and enterprises, other than commune-level People’s Committees, where persons subject to suspended sentences work, as well as on the number of persons who work in such organizations or enterprises. The Committee also once again requests the Government to indicate if persons serving non-custodial reform sentences are under an obligation to perform work and, if so, to indicate the type of organizations and enterprises for which such work may be performed.

Article 2(2)(d). Cases of emergency. The Committee previously noted that section 107 of the Labour Code of 2012 states that the employer has the right to require the employees to work overtime on any day, and the employees shall not be entitled to decline such work, if the work is: to implement a conscription order for the purpose of national security or national defence in emergency situations; to implement tasks to protect human life, or the assets of agencies, organizations or individuals; or in the prevention and recovery of natural calamities, fires, epidemics and disasters. It accordingly requested the Government to provide information on the application in practice of section 107 of the Labour Code.

The Committee notes the Government’s information on the adoption of Decree No. 45/2013/ND-CP, which provides for detailed provisions on overtime work (section 4). However, the Committee notes the Government’s indication that there is no information available on the mobilization of employees to work overtime in accordance with section 107 of the Labour Code. In this regard, the Committee once again recalls that Article 2(2)(d) of the Convention permits compulsory labour to be exacted only in cases of emergency, in the strict sense of the term, particularly events of war or of a calamity or threatened calamity, and in general to any circumstances that would endanger the existence or the well-being of the whole or part of the population. The Committee observes that the compulsory overtime work to protect the assets of agencies, organizations or individuals go beyond the limits indicated above. The Committee therefore once again requests the Government to provide information on the application in practice of section 107 of the Labour Code.

Article 2(2)(e). Minor communal services. The Committee previously noted that section 29(5) and (6) of the Law on the Powers and Responsibilities of Commune-level People’s Committees allows them to make decisions on measures to: manage, use and protect water resources and irrigation projects; prevent, combat and overcome natural disasters and floods; protect forests; repair and protect local dykes; and to develop and repair roads, bridges and culverts in communes, as well as other local infrastructure. The Government stated, in this respect, that it could be understood that a commune-level People’s Committee could mobilize persons to participate in the prevention and overcoming of natural disasters and floods, the protection of forests and the restoration of local dykes.

The Committee notes the Government’s information that, according to section 7 of the Government’s Decree No. 79/2003/ND-CP of July 2003 (the Regulation on the practice of democracy in communes), residents in the commune can decide the work within the village community, in accordance with the provisions of the law. The Government also indicates that there is currently no information on mandatory commune services in practice, including the duration of work and the number of people involved. With reference to the 2012 General Survey on the fundamental Conventions, paragraph 281, the Committee once again recalls that minor communal services may be allowed under the Convention only if certain specific criteria are met: (i) the services must be “minor services”, that is relating primarily to maintenance work and, in exceptional cases, to the erection of certain buildings intended to improve the social conditions of the population of the community itself; (ii) the services must be performed in the direct interest of the community and not relate to the execution of works intended to benefit a wider group; and (iii) the members of the community itself, that is the community which has to perform the services, or their “direct” representative (for example, the village council) must have the right to be consulted in regard to the need for such services. The Committee therefore once again requests the Government to provide further information on the exaction of minor communal services in practice, including the duration of the work carried out and the number of persons concerned, as well as on the consultations of the members of the community concerning the need for such services.