Demande directe (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Viet Nam (Ratification: 2019)

Autre commentaire sur C098

Demande directe

2022
2021

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The Committee takes note of the Government’s first report.

The Committee notes the Government’s indication that the Convention is applied in its entirety in the country and is implemented mainly through the Labour Code, 2019 and the Trade Union Act, 2012 (TUA), as well as their guiding documents, including Decree No. 145/ND-CP, 2020, Decree No. 28/2020/ND-CP, 2020 and Circular No. 10/2020/TT-BLĐTBXH, 2020. The Committee further notes the Government’s statement that the comments of the Viet Nam General Confederation of Labour, the Viet Nam Chamber of Commerce and Industry and the Viet Nam Cooperative Alliance were considered and incorporated into its report.

Scope of application of the Convention. The Committee notes that: (i) pursuant to sections 1 and 5 of the TUA, trade unions represent cadres and civil servants, public employees, workers and other labourers, where labourers are Vietnamese persons; and (ii) the Labour Code is applicable to workers, apprentices, trainees, persons working without an employment relationship, employers and foreign workers, as well as other agencies, organizations and individuals directly involved in labour relations (section 2 of the Labour Code). The Committee observes, however, that section 220(3) of the Labour Code stipulates that the regime for cadres, civil servants, public employees, personnel belonging to the armed forces and the police, social organizations, members of cooperatives and persons working without an employment relationship shall be regulated in different legal documents but that, depending on the particular category, a number of provisions of the Labour Code may apply. It also notes the Government’s indication that the provisions of the Labour Code relating to the application of the principles of the right to organize and collective bargaining are not applicable to civil servants. Recalling that the Convention covers all workers, whether nationals or foreigners, in both the private and public sectors, with the only authorized exceptions of the armed forces, the police and public servants engaged in the administration of the State (Articles 5 and 6), the Committee requests the Government to provide information on any legal provisions, apart from the relevant sections of the TUA, that provide all the rights guaranteed by the Convention to the categories of workers excluded from the application of the Labour Code under section 220(3), in particular public employees and public servants not engaged in the administration of the State, workers in a managerial position and workers without an employment contract, and to indicate what provisions of the Labour Code, if any, are applicable to them. Given the reference to Vietnamese nationals in section 5 of the TUA, the Committee requests the Government to clarify whether the TUA would also apply to foreign workers.

Types of workers’ and employers’ organizations covered by the legislation. The Committee notes that the TUA applies to trade unions at all levels (section 3) but observes that the provisions of the Labour Code giving effect to the rights guaranteed by the Convention mainly refer to workers’ representative organizations at the grassroots level (established at agencies, organizations, units and enterprises (section 171(1))). Observing that the Labour Code does not make reference to protection of workers who are members of higher-level workers’ organizations (at the sectoral or national levels), the Committee requests the Government to provide clarification in this regard and to take the necessary measures to ensure that the rights provided by the Convention are guaranteed to workers’ and employers’ organizations at all levels, as well as their members.

Government regulations. The Committee notes that numerous provisions throughout the Labour Code are drafted in a broad language, leaving extensive powers to the Government to stipulate further details on specific matters, including among others, on the required minimum threshold for collective bargaining (section 68), the functions, duties and operations of the collective bargaining council (section 73(4)), details as to obtaining opinions of workers before concluding a collective agreement (section 76(7)) and the criteria, procedures, conditions and formalities for the appointment and management of labour mediators and arbitrators (sections 184(2) and 185(6)), as well as for the organization and operations of the Labour Arbitration Council and the Labour Arbitration Panel (section 185(6)). Observing from the above that certain matters of the Labour Code which fall within the scope of the Convention are to be determined through Government regulations, the Committee requests the Government to indicate whether it has already provided guidance on the above matters, and if so, to clarify in what form, as well as the legal value of such guidance, and to provide relevant copies.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. The Committee notes the Government’s indication that the TUA and the Labour Code prohibit acts of discrimination by reason of forming, joining and undertaking activities of trade unions or workers’ organizations at the enterprise level, including at the stage of recruitment and extension of employment contract, during employment (discipline, transfer, working conditions) and in relation to termination of employment (section 9(2) of the TUA and sections 3(8), 5, 8(1) and 175(1) of the Labour Code). The Committee further observes that additional protection against anti-union discrimination is provided to officials of workers’ representative organizations at the grassroots level (section 25 of the TUA and section 177(3)–(4) of the Labour Code). Welcoming the above provisions prohibiting various forms of anti-union discrimination but observing that the language used in the Labour Code mainly refers to workers’ representative organizations at the grassroots level, the Committee requests the Government to clarify whether the protection against anti-union discrimination provided by the above provisions of the Labour Code also applies to members of higher-level organizations (at the sectoral and national levels).

Article 2. Adequate protection against acts of interference. The Committee notes the Government’s indication that: (i) section 9(1) of the TUA prohibits the hindrance and causing of difficulties in the implementation of trade union rights and section 9(3) proscribes the application of economic measures or other measures causing disadvantages to trade union organization and operation; (ii) section 175(1)(d) of the Labour Code prohibits the employer to impede or obstruct employment in order to undermine the activities of workers’ representative organizations at the grassroots level; (iii) section 175(2) proscribes interference in or manipulating of the processes for the establishment, elections and development of work plans or implementation of the activities of workers’ representative organizations at the grassroots level, including using financial support or other economic measures to neutralize or undermine the representative function of workers’ representative organizations at the grassroots level or discriminating among them; and (iv) section 177(1) stipulates an obligation on the employer to refrain from creating obstructions or difficulties when workers conduct lawful activities to establish, join and participate in the activities of workers’ representative organizations at the grassroots level. Welcoming the above provisions prohibiting various forms of interference, the Committee requests the Government to clarify whether they apply to higher-level trade unions.

Equal access to the guarantees of the Convention. The Committee observes that the TUA, in a number of its provisions, places trade unions under the direction or authority of higher-level trade unions, other organizations or political parties and that section 172(3) of the Labour Code specifies that, where a workers’ organization at an enterprise joins the Viet Nam Trade Union, the provisions of the TUA will apply to it. Observing that there are currently two different but partially overlapping laws giving effect to the provisions of the Convention, the Committee recalls the importance of ensuring that all workers’ organizations are given the same access to the guarantees of the Convention in order to be ensured effective protection for carrying out their activities on an equal footing. It also wishes to emphasize that it is essential for workers’ and employers’ organizations to maintain their independence from public authorities and political parties, and to be able to freely choose to affiliate with higher-level organizations, so that they can defend the interests of their members effectively. In line with the above, the Committee trusts that the Government will endeavour to ensure that all workers’ organizations, whether governed by the TUA or the Labour Code, have equal access to the guarantees of the Convention and to ensure the independence of workers’ and employers’ organizations at all levels in the exercise of their rights under the Convention.

Articles 1, 2 and 3. Effective and sufficiently dissuasive sanctions and remedies for acts of anti-union discrimination and interference. The Committee notes that: (i) section 30(1)-(2) of the TUA stipulates that the authority, order and procedures to settle disputes on trade union rights shall comply with the law on the settlement of labour disputes and other relevant laws; (ii) disputes relating to anti-union discrimination against workers or members of leadership committees of workers’ representative organizations, as well as those relating to intervention or manipulation of a workers’ representative organization are considered as collective rights-based disputes, which can be solved through mediation, arbitration or judicial proceedings (section 179(2) of the Labour Code); (iii) agencies, organizations, enterprises or individuals who violate provisions of the law or other provisions relating to trade union rights shall, depending on the nature and the extent of the violation, be sanctioned through a disciplinary measure, administrative sanction or prosecution for criminal liability, and must compensate for damages, if any (section 31(1) of the TUA and section 217(1) of the Labour Code); and (iv) it is upon the Government to detail sanctions for violations of the law (section 31(2) of the TUA). The Committee further notes the Government’s indication that administrative penalties for labour violations are stipulated in Decree No. 28/2020/ND-CP and observes that the fines imposable on employers for acts of anti-union discrimination and interference in trade union affairs range from Vietnamese Dong (VND) 3,000,000 to 20,000,000 (equals to US$133 to 883) (sections 11(2)(a), 34(2), 35 and 36 of the Decree). The Committee also notes the Government’s statement that the amount of the above fines concerns individuals responsible for the violations and that the amount of monetary penalty imposed on entities is two times higher (section 5(1) of the Decree). While taking due note of the above, the Committee recalls that the effectiveness of legal provisions prohibiting acts of anti-union discrimination depends not only on the effectiveness of the remedies envisaged, but also on the sanctions provided for, which should be effective and sufficiently dissuasive. Observing that the level of fines set out in the above provisions may not be sufficiently dissuasive, especially in large enterprises, the Committee requests the Government to consider raising the level of fines, in consultation with the social partners, so as to achieve their sufficiently dissuasive character.

The Committee further notes with interest that: (i) in addition to the prescribed pecuniary sanctions, section 4 of Decree No. 28/2020/ND-CP also provides for other mitigation measures and remedies to address labour violations, including reinstatement and payment of full wages and salaries, extension of labour contracts with part-time trade union officers and ensuring equal rights and benefits to trade union officers as to other workers at the organization; and (ii) section 41(1) of the Labour Code provides for an obligation on the employer who unlawfully terminates an employment contract to reinstate the worker in his or her original position and to pay full wages and benefits, as well as additional monetary compensation equivalent to at least two months’ wages.

Taking due note of the available procedures, sanctions and remedies provided by the legislation to address allegations of anti-union discrimination and interference, the Committee requests the Government to provide information on the practical application of these provisions, in particular to indicate the number of instances of alleged acts of anti-union discrimination and interference filed to the competent authorities (mediation, arbitration and judicial proceedings), as well as the average duration of the procedures and the type of sanctions and remedies applied as a result thereof.

The Committee further notes that the timeframe for individual and collective labour disputes to be completed through mediation is five working days (sections 188(2), 192(1) and 196(1) of the Labour Code) which may prove to be insufficient, taking into account the different elements of the mediation process, such as the provision of documents and evidence, verification and the invitation of witnesses or other relevant individuals (section 183). The Committee invites the Government to consider slightly extending the period for the resolution of individual and collective labour dispute through mediation, while at the same time ensuring efficient and responsive mediation services.

Article 4. Promotion of collective bargaining. The Committee notes with interest that one aspect of state policies on labour is to encourage agreements that provide conditions for workers that are more favourable than those provided in labour law (section 4(1) of the Labour Code), as well as to encourage workers and employers to engage in dialogue and collective bargaining and to develop progressive, harmonious and stable labour relations (section 4(6) of the Labour Code). It further observes that employers have an obligation to establish a mechanism for and engage in dialogue and discussion with workers and workers’ representative organizations (section 6(2)(b) of the Labour Code), that labour relations are established and developed through dialogue, negotiation and agreement based on the principles of voluntariness, good faith, equality, cooperation, and respect for mutual lawful and legitimate rights and interests (section 7(1)) and that sections 65-89 of the Labour Code regulate the collective bargaining process. While further noting that section 15(2) of Decree No. 28/2020/ND-CP provides for sanctions on employers who fail to carry out collective bargaining to conclude, amend or supplement collective labour agreements upon receipt of the request from the demanding party, as well as fines for other violations relating to collective bargaining, the Committee observes that the envisaged fines range from VND3,000,000 to 5,000,000 (equals to US$132 to 221) which may not be sufficiently dissuasive to prevent violations of the above provisions. The Committee requests the Government to provide information on the practical application of the above provisions stipulating fines for violations of employers’ obligations relating to collective bargaining.

Collective bargaining levels. The Committee notes that section 75 of the Labour Code stipulates that collective bargaining agreements include collective bargaining agreements at the enterprise level, sectoral level, multi-enterprise collective bargaining agreements and other types of collective bargaining agreements but observes that no explicit reference is made in the labour legislation to collective bargaining at the national level. Recalling the need to ensure that collective bargaining may take place at all levels, including at the national level, the Committee requests the Government to clarify whether such collective bargaining is permitted.

Collective bargaining at the level of the enterprise. Minimum threshold of representativity. The Committee notes that pursuant to section 68 of the Labour Code, collective bargaining at the level of the enterprise is granted to: (i) the workers’ representative organization at the grassroots level that meets the required minimum membership to bargain collectively; (ii) if there are several workers’ representative organizations that meet this threshold, collective bargaining can be initiated by the organization with the largest membership at the enterprise and other organizations can participate with its consent; and (iii) if none of the workers’ representative organizations meet the threshold, they can voluntarily join together to reach the minimum requirement. The Committee observes that the Labour Code does not elaborate on the required threshold but provides for the Government to stipulate the minimum membership requirement to be able to bargain collectively. The Committee recalls in this regard that the representativity threshold must be assessed on the basis of the specific characteristics of the industrial relations system and emphasizes that the imposition of a high percentage requirement for the recognition of a collective bargaining agent, may impair the promotion and development of free and voluntary collective bargaining within the meaning of the Convention. The Committee also recalls that if no union represents the required percentage of workers to be declared the exclusive bargaining agent, collective bargaining rights should be granted to all the unions in the unit, at least on behalf of their own members. In these circumstances, the Committee requests the Government to indicate the minimum membership threshold established to allow workers’ organizations to participate in collective bargaining at the enterprise level and trusts that its determination was done in line with the above.

Sectoral bargaining. Minimum threshold of representativity. The Committee requests the Government to indicate whether any minimum requirements apply to workers’ organizations to be able to participate in collective bargaining at the sectoral level.

Adoption of collective agreements. Requirement to obtain opinions from workers. The Committee notes that prior to signing an enterprise-level collective bargaining agreement, opinions must be obtained from all workers in the enterprise on the draft text negotiated by the parties and the agreement shall only be signed when more than 50 per cent of the workers in the enterprise vote in favour (section 76(1) of the Labour Code). Similar conditions are in place for sectoral collective agreements and multi-enterprise collective agreements (opinions must be obtained, depending on the type of agreement, from all members of the leadership committees of workers’ representative organizations in the enterprises that participated in the negotiations or from all employees at the enterprises participating in the negotiations, and the agreement can be signed if it receives support from 50 per cent of those whose opinions are obtained – section 76(2)), as well as in situations where the parties want to extend the duration of a collective agreement (section 83). The Committee requests the Government to provide information on the practical application of these provisions, in particular, to indicate the number of collective agreements approved and signed, as well as the overall support and votes obtained, especially in large enterprises and at the sectoral level.

Sectoral and multi-enterprise bargaining. Collective Bargaining Council. Powers of the Provincial People’s Committee. The Committee notes that in case of sectoral or multi-enterprise collective bargaining, the parties may agree to conduct negotiations through a collective bargaining council, composed of representatives from each party, a chairperson and representatives of the Provincial People’s Committee (section 73 of the Labour Code), which is the administrative entity at the provincial level. The Committee notes that the Provincial People’s Committee has the following powers: to reject a request to establish a collective bargaining council (section 6(3) of Circular No. 10/2020/TT-BLDTBXH, 2020; this is also the prerogative of the Department of Labour, Invalids and Social Affairs); to decide on any request to change the chairperson, functions, tasks and performance duration of the council (section 6(5) of the Circular); to support and provide information deemed necessary for the parties to carry out negotiations (section 9(4) of the Circular); and to assist in the process of collective bargaining, either upon the request of both parties or proactively with the agreement of the parties (section 74 of the Labour Code). The Committee recalls in this regard that under the terms of Article 4 of the Convention, collective bargaining must be free and voluntary and respect the principle of the autonomy of the parties and that while it is permissible for public authorities to promote and support collective bargaining, they should not intervene in the conclusions of collective agreements, as this may infringe the principle of the autonomy of the parties. In view of the above, the Committee requests the Government to indicate on what grounds a request to create a collective bargaining council can be rejected by the Department of Labour and the Provincial People’s Committee and to take the necessary measures to ensure that any assistance or participation of State authorities in collective bargaining of sectoral or multi-enterprise collective agreements does not infringe the principle of the autonomy of the parties.

Procedures for the settlement of collective labour disputes. The Committee notes that: (i) the Labour Code contains provisions on mediation, arbitration and judicial resolution of individual and collective labour disputes (sections 179-197) and clarifies that the resolution of labour disputes shall be carried out upon the request of the disputing parties, or upon the request of the competent agencies, with the agreement of the disputing parties (section 180(5)); (ii) the specialized labour agency of the People’s Provincial Committee (local State authority) is the focal point to receive requests for resolving labour disputes (section 181(3) of the Labour Code); (iii) interest-based collective labour disputes, including labour disputes that arise during the collective bargaining process, must be addressed through mediation by a labour mediator prior to requesting resolution by the Labour Arbitration Council or going on strike (section 195(2) of the Labour Code); and (iv) labour mediators as well as the Chairperson, the Secretary and other members of the Labour Arbitration Council are appointed by the Chairperson of the Provincial People’s Committee (sections 184(1) and 185(1)), upon nomination of an equal number of persons by the specialized labour agency of the Provincial People’s Committee, the provincial trade union and the employers’ representative organization (section 185(2)). Taking due note of the above, the Committee recalls that the bodies entrusted with resolving disputes should be independent and enjoy the confidence of the parties and that problems would arise in the case of compulsory arbitration which the authorities may impose in an interest dispute at the request of one party, or at their own initiative (see the 2012 General Survey on the fundamental Conventions, paragraphs 243 and 246). Considering that the Labour Code does not refer to requirements for ensuring the independence of the Labour Arbitration Council from the State authorities and that one third of its members are nominated by the provincial State authority, the Committee requests the Government to indicate whether any measures were taken or are envisaged to ensure that the Labour Arbitration Council is fully independent from the Government, and if not, to take the necessary measures to this effect. The Committee further requests the Government to indicate whether, as an exception to the general rule of voluntary recourse to arbitration, there are any instances of compulsory arbitration in interest disputes, that is, arbitration imposed at the request of one party or at the initiative of the competent authority with compulsory effect on the parties. The Committee also requests the Government to provide details as to the nature of the awards, orders or remedies that may be issued by an arbitration panel.

Workers’ and employers’ organizations cited in the labour legislation. The Committee observes that a number of provisions of the TUA, the Labour Code and Decree No. 145/2020/ND-CP provide specific rights, including the right to participate in national tripartite bodies, to enumerated workers’ and employers’ organizations – the Vietnam General Confederation of Labour, the Vietnam Cooperative Alliance and the Vietnam Chamber of Commerce and Industry. The Committee recalls in this regard that systems which cite by name in the legislation the organizations which have preferential rights in terms of participation in dialogue bodies, rather than referring to the most representative workers’ and employers’ organizations, may give rise to risks of partiality or abuse and are not compatible with the Convention. The Committee therefore requests the Government to take the necessary measures to review the labour legislation in order to ensure that, when granting rights and obligations to workers’ and employers’ organizations, the legislation does not cite specific organizations but rather uses a more general language, for example based on the level of representativity of the organizations concerned.

Collective bargaining in practice. The Committee welcomes the Government’s indication that: (i) between 2018 and 2020, 6,113 new collective bargaining agreements were signed at the enterprise level (4.6 times higher than the period 2013–18); (ii) by the end of 2020, there were 25,020 collective bargaining agreements newly signed or amended, bringing the total number of signed collective bargaining agreements at the enterprise level to 34,989, covering 68.31 per cent of enterprises with established grassroots trade unions; and (iii) between 2018 and 2020, 11 multi-enterprise collective bargaining agreements were signed in 8 localities in the field of tourism, electronics, textile, wood processing and preschool, covering 112 enterprises and business units and 53,750 workers. It also notes the Government’s initiative to encourage collective bargaining, as stated in Resolution No. 02-NQ/TW, which aims at reaching collective bargaining coverage of 70 per cent of enterprises with trade unions by 2023, 80 per cent by 2025, 85 per cent by 2030 and 99 per cent by 2045. The Committee requests the Government to continue to provide information on the number of collective agreements concluded and in force, the sectors concerned, the number of workers covered and the scope of these agreements, as well as on any measures undertaken to promote the full development and utilization of collective bargaining under the Convention.

Promotion of the Convention. The Committee welcomes the Government’s indication on the measures taken by the Ministry of Labour, Invalids and Social Affairs and the provincial departments of labour to promote the application of the Convention and disseminate relevant information to workers, employers and relevant agencies and organizations, including on discrimination, manipulative intervention and collective bargaining, such as the development of guiding manuals and communication materials, the conduct of training and communication activities, inspections on the implementation of the Convention, registration of collective agreements and the development of cooperation programmes with national social partners. The Government adds that it will continue to focus on further promoting a number of specific activities in relation to the application of the Convention.

The Committee further notes the Government’s indication that the outbreak of the COVID-19 pandemic has had an impact on the implementation of the Convention, with the Government issuing policies to support workers and businesses, and that despite difficulties, dialogue was maintained and promoted in enterprises. According to the Government, dialogue helps workers and employers to exchange their perspectives, consult with each other and agree on issues of industrial relations, especially in the context of the pandemic, thereby contributing to maintaining stable industrial relations and minimizing negative impacts of the pandemic on employment and on workers’ lives. Emphasizing the importance of social dialogue in crisis situations, including during the COVID-19 pandemic, the Committee trusts that the Government will continue to promote co-operation and dialogue among the social partners, as an effective means to maintaining harmonious labour relations and to facilitating the application of the rights enshrined in the Convention.