Law No. 74/2006/QH11 of November 29, 2006, amending and supplementing a number of articles of the Labor Code

LAW

AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF THE LABOR CODE

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, the 10th session;
This Law amends and supplements a number of articles of Chapter XIV of the June 23, 1994 Labor Code, which was amended and supplemented under the April 2, 2002 Law Amending and Supplementing a Number of Articles of the Labor Code.
Article 1.- To amend and supplement the Labor Code’s Chapter XIV on Settlement of Labor Disputes as follows:
Chapter XIV

SETTLEMENT OF LABOR DISPUTES

SECTION I. GENERAL PROVISIONS

Article 157.-
1. Labor disputes are disputes over rights and interests emerging from labor relations between a laborer or a labor collective and the labor user.
Labor disputes include individual labor dispute between an individual laborer and the labor user and collective labor dispute between a labor collective and the labor user.
2. Right-related collective labor dispute is a dispute over violations in the implementation of the provisions of labor law, collective labor agreements or labor rules that have been registered with a competent state agency, or other regulations and lawful agreements in an enterprise by the labor user as claimed by the labor collective.
3. Interest-related collective labor dispute is a dispute over the labor collective’s claim for the establishment of new labor conditions not yet prescribed by the labor law, collective labor agreements or labor rules already registered with a competent state agency or other regulations and lawful agreements in an enterprise emerging from the process of negotiation between the labor collective and the labor user.
4. A labor collective consists of laborers working in an enterprise or a part of an enterprise.
5. New labor conditions are amendments and supplements to collective labor agreements, wages, bonus, incomes, labor norms, work time, rest time and other benefits in an enterprise.
Article 158.- Labor disputes shall be settled on the following principles:
1. Direct negotiation, self-arrangement and self-determination by the two parties to the dispute at the place where the dispute arises;
2. Conciliation or arbitration on the basis of respect for the rights and interests of the two parties to the dispute, respect for common interests of the society and observance of law;
3. Publicity, objectivity, timeliness, quickness and lawfulness;
4. Participation of the laborers’ and labor user’s representatives in the dispute settlement process.
Article 159.-
1. Agencies and organizations shall create favorable conditions for the two parties to settle their disputes through negotiation and conciliation to ensure their interests, production and business stability and social safety and order.
The competent agency or organization in charge of labor dispute settlement shall get involved in settling a dispute when one party refuses to negotiate or both parties can not reach a settlement despite negotiation and either or both of the parties makes or make a written request for labor dispute settlement.
2. The superior trade union of the grassroots trade union shall guide, support and assist the grassroots union executive committee or the labor collective representative defined in Article 172a of this Code in settling labor disputes in accordance with law.
3. Upon the occurrence of a right-related collective labor dispute resulting in the temporary industrial action of the labor collective, the competent state agency shall take the initiative in settling the dispute in time.
Article 160.-
1. During the process of labor dispute settlement, the two parties to the dispute have the following rights:
a/ To participate in the settlement process directly or through a representative;
b/ To withdraw their written request or change the content of dispute;
c/ To request change of the person directly in charge of settling the dispute if they can present plausible reasons that the person is unable to ensure the objectivity and fairness in dealing with the dispute.
2. During the process of labor dispute settlement, the two parties to the dispute have the following obligations:
a/ To provide all documents and evidence as requested by the agency or organization in charge of labor dispute settlement;
b/ To strictly abide by agreements reached, written successful conciliation records, effective decisions of the agency or organization in charge of dispute settlement or effective judgments or decisions of People’s Courts.
Article 161.-
The agency or organization in charge of labor dispute settlement has, within the ambit of its tasks and powers, the right to request the two parties to the dispute and concerned agencies, organizations and individuals to provide documents and evidence; to request expert assessment and invite witnesses and related persons in the process of labor dispute settlement.
Article 162.-
1. In enterprises with grassroots trade unions or provisional trade union executive committees, grassroots labor conciliation councils shall be set up.
A grassroots labor conciliation council consists of equal numbers of representatives of laborers and the labor user. The two parties may reach agreement to elect more members to the council.
2. Each tenure of a grassroots labor conciliation council is two years.
The representatives of each party take turn to act as chairman and secretary of the council. The grassroots labor conciliation council works on the principles of agreement and consensus.
3. The labor user shall create necessary conditions for the operation of the grassroots labor conciliation council.
4. The grassroots labor conciliation council shall conciliate labor disputes specified in Article 157 of this Code.
Article 163.-
Labor conciliators shall be appointed by labor agencies of districts, towns or provincial cities to conciliate labor disputes specified in Article 157 of this Code or disputes over the performance of apprenticeship contracts and job training expenses.
Article 164.-
1. The labor arbitration council is established by the People’s Committee of a province or centrally run city (hereinafter collectively referred to as provincial-level People’s Committee). It consists of full-time members and part-time members who are representatives of the labor agency, the trade union, the labor user and a representative of the local lawyers association or a person with experience in local labor relation issues.
2. The number of members of a labor arbitration council must be an odd number and not exceed seven. The chairman and secretary of the council are representatives of the provincial-level labor agency.
3. Each tenure of a labor arbitration council is three years.
4. The labor arbitration council shall conciliate interest-related collective labor disputes specified in Clause 3, Article 157, and collective labor disputes specified in Article 175 of this Code.
5. The labor arbitration council shall decide on conciliation plans by majority vote.
6. Provincial-level People’s Committees shall ensure necessary conditions for the operation of labor arbitration councils.
Section II. COMPETENCE AND PROCESS OF SETTLEMENT OF INDIVIDUAL LABOR DISPUTES
Article 165.-
Agencies or organizations in charge of settling individual labor disputes are:
1. Grassroots conciliation councils or labor conciliators;
2. People’s courts.
Article 165a.-
The grassroots labor conciliation council or labor conciliators shall conciliate individual labor disputes according to the following provisions:
1. The conciliation time limit is three working days at most, counting from the date of receipt of a written request for conciliation;
2. Both parties to the dispute must be present at conciliation meetings. They may send their authorized representatives to attend these meetings.
The grassroots labor conciliation council or the labor conciliator shall suggest conciliation solutions for the two parties to the dispute to consider.
If the two parties to the dispute agree to the suggested solution, the grassroots labor conciliation council or the labor conciliator shall make a written record on successful conciliation to be signed by the two parties and the chairman and secretary of the council or the labor conciliator. The two parties to the dispute are obliged to abide by the agreements stated in the written successful conciliation record.
If the two parties to the dispute disagree to the conciliation solution or either of them does not show up at the second proper request for meeting without a plausible reason, the grassroots labor conciliation council or the labor conciliator shall make a written record of unsuccessful conciliation to be signed by the party to the dispute present at the meeting and the chairman and secretary of the council or the labor conciliator.
A copy of the written record of successful conciliation or unsuccessful conciliation shall be sent to each party to the dispute within one working day after the date of its making.
3. In case of unsuccessful conciliation or at the expiration of the settlement time limit specified in Clause 1 of this Article the grassroots labor conciliation council or the labor conciliator still fails to conciliate the dispute, any party to the dispute is entitled to request settlement by a People’s Court.
Article 166.-
1. The People’s Court shall settle individual labor disputes that have been unsuccessfully conciliated by grassroots labor conciliation councils or labor conciliators or that have not been settled by grassroots labor conciliation council or labor conciliator within the time limit specified in Clause 1, Article 165a of this Code.
2. The following individual labor disputes can be settled by the People’s Court without having to go through grassroots conciliation:
a/ Disputes over disciplinary action in the form of dismissal or unilateral termination of labor contract;
b/ Disputes over compensation and allowance upon termination of labor contract;
c/ Disputes between a housemaid and her/his employer;
d/ Disputes over social insurance as stipulated at Point b, Clause 2, Article 151 of this Code;
e/ Disputes over compensation between laborers and enterprises or non-business organizations sending laborers to work abroad under contracts.
3. Laborers are exempt from court fees in cases where they lodge claims for wages, job loss allowance, severance allowance, social insurance, compensation for labor accidents or occupational diseases, settlement of compensation-related matters, or claims about dismissal or illegal termination of labor contract.
4. During trial, the People’s Court shall declare an individual labor contract, a collective labor agreement, labor rules, regulations or other agreements partially or entirely invalid if it finds any contradictions in the individual labor contract to the collective labor agreement and the labor law or any contradictions in the collective labor agreement, labor rules, regulations or other agreements to the labor law.
5. The Government shall provide specific regulations on overcoming consequences that arise from the individual labor contracts, collective labor agreements, labor rules, regulations or other agreements that are declared invalid under Clause 3, Article 29, or Clause 3, Article 48 of this Code, and Clause 4 of this Article.
Article 167.-
The statute of limitations for request for settlement of individual labor disputes is as follows:
1. One year since the occurrence of the act whereby each party to the dispute claims that its rights and benefits are infringed upon, for disputes specified at Points a, b and c, Clause 2, Article 166 of this Code;
2. One year since the detection of the act whereby each party to the dispute claims that its rights and benefits are infringed upon, for disputes specified at Point d, Clause 2, Article 166 of this Code;
3. Three years since the occurrence of the act whereby each party to the dispute claims that its rights and benefits are infringed upon, for disputes specified at Point e, Clause 2, Article 166 of this Code;
4. Six months since the occurrence of the act whereby each party to the dispute claims that its rights and benefits are infringed upon, for other types of disputes;
Section III. COMPETENCE AND PROCESS OF SETTLEMENT OF COLLECTIVE LABOR DISPUTES
Article 168.-
Agencies or organizations in charge of settling right-related collective labor disputes are:
1. Grassroots conciliation councils or labor conciliators;
2. Presidents of People’s Committees of districts, towns or provincial cities (hereinafter collectively referred to as district-level People’s Committee presidents);
3. People’s Courts.
Article 169.-
Agencies and organizations competent to settle interest-related collective labor disputes are:
1. Grassroots conciliation councils or labor conciliators;
2. Labor arbitration councils.
Article 170.-
1. The labor collective and labor user shall decide to select a grassroots labor conciliation council or a labor conciliator to settle their collective labor dispute.
The process of conciliation of collective labor disputes is as stipulated in Clause 1 and Clause 2, Article 165a of this Code.
In case of unsuccessful conciliation, the written record must clearly state the type of collective labor dispute.
2. In case of unsuccessful conciliation or at the expiration of the settlement time limit specified in Clause 1, Article 165a of this Code the grassroots labor conciliation council or the labor conciliator still fails to conciliate the dispute, any party to the dispute is entitled to request the district-level People’s Committee president to settle the dispute if it is a right-related collective labor one or the labor arbitration council to settle the dispute if it is an interest-related collective labor dispute.
Article 170a.-
1. District-level People’s Committee presidents are entitled to settle right-related collective labor disputes according to the following provisions:
a/ The settlement time limit is five working days from the date of receipt of a written request for settlement.
b/ Authorized representatives of the two parties to the dispute must be present at the meeting on settling their right-related collective labor dispute. In case of necessity, the district-level People’s Committee president may invite representatives of the superior trade union of the grassroots trade union and concerned agencies and organizations to the meeting.
The district-level People’s Committee president shall base himself/herself on the labor law, the registered collective labor agreement and labor rules and other regulations and lawful agreements to consider and handle law-breaking acts of the parties.
2. If the two parties still have a dispute after the settlement by the district-level People’s Committee president or at the expiration of the settlement time limit specified at Point a, Clause 1 of this Article the district-level People’s Committee president still fails to settle their dispute, any party may request the People’s Court to settle the dispute or the labor collective may carry out procedures for industrial action.
Article 170b.-
People’s Courts of provinces or centrally run cities (hereinafter collectively referred to as provincial-level People’s Courts) have jurisdiction to settle right-related collective labor disputes. The order and process of settlement of right-related collective labor disputes at these courts are as provided for by the Civil Procedure Code.
Article 171.
– The labor arbitration council shall conciliate interest-related collective labor disputes according to the following provisions:
1. The conciliation time limit is seven working days, counting from the date of receipt of a written request for conciliation;
2. Authorized representatives of both parties to the dispute must be present at meetings on conciliation of their interest-related collective labor dispute. In case of necessity, the labor arbitration council may invite representatives of the superior trade union of the grassroots trade union and related agencies and organizations to attend these meetings.
The labor arbitration council shall suggest conciliation solutions for the two parties to the dispute to consider.
If the two parties to the dispute agree to the suggested solution, the labor arbitration council shall make a written record of successful conciliation to be signed by the two parties and the chairman and secretary of the labor arbitration council. The two parties are obliged to abide by the agreements stated in the written record of successful conciliation.
If the two parties to the dispute disagree to the conciliation plan or either of them does not show up at the second proper request for meeting without a plausible reason, the labor arbitration council shall make a written record of unsuccessful conciliation to be signed by the party to the dispute present at the meeting and by the chairman and secretary of the council.
A copy of the written record of successful conciliation or unsuccessful conciliation shall be sent to each party to the dispute within one working day after the date of its making.
3. In case of unsuccessful conciliation by the labor arbitration council or at the expiration of the settlement time limit specified in Clause 1 of this Article the grassroots labor conciliation council still fails to conduct conciliation, the labor collective is entitled to carry out procedures for industrial action.
Article 171a.-
The statute of limitations for request for settlement of collective labor disputes is one year since the date of occurrence of the act whereby each party to the dispute claims that its rights and interests are infringed upon.
Article 171b.-
Neither party may take unilateral action against the other while the competent agency or organization is settling their labor dispute.
Section IV. STRIKES AND STRIKE SETTLEMENT
Article 172.-
Strike is temporary, voluntary and organized work stoppage by a labor collective in an attempt to settle collective labor disputes.
Article 172a.-
A strike shall be organized and led by the grassroots trade union executive committee or the provisional trade union executive committee (hereinafter collectively referred to as grassroots trade union executive committee). In an enterprise without a grassroots trade union executive committee, a strike shall be organized and led by the representative appointed by the labor collective and this appointment shall have been notified to the trade union of the concerned district, town or provincial city or an equivalent level (hereinafter collectively referred to as representative of the labor collective).
Article 173.-
A strike is considered illegal if conducted in the following cases:
1. It does not arise from an interest-related dispute;
2. It is not organized by laborers in one enterprise;
3. It occurs when the collective labor dispute is not or is being dealt with by an agency or organization prescribed in this Code;
4. Laborers are not consulted on the strike as required in Article 174a or the strike violates the procedure provisions of Clauses 1 and 3, Article 174b of this Code;
5. It is organized and led in contravention of Article 172a of this Code;
6. It is conducted in an enterprise where strikes are banned by the Government;
7. When a decision to delay or stop a strike has been made.
Article 174.-
The grassroots trade union executive committee or the representative of the labor collective is entitled to conduct procedures specified in Article 174a and Article 174b of this Code for organizing a strike in the case specified in Clause 2, Article 170a of this Code when the labor collective does not request settlement by a People’s Court or in the cases specified in Clause 3, Article 171 of this Code.
Article 174a.-
1. The grassroots trade union executive committee or the representative of the labor collective shall consult laborers on a strike according to the following provisions:
a/ For an enterprise or a section of an enterprise with under 300 laborers, laborers shall be directly consulted;
b/ For an enterprise or a section of an enterprise with 300 laborers or more, members of the grassroots trade union executive committee, heads of trade union groups and heads of production groups shall be consulted; if an enterprise has no grassroots trade union, heads and deputy heads of production groups shall be consulted.
2. Consultation may be made through voting or collection of signatures.
The grassroots trade union executive committee or representative of the labor collective shall decide on the timing and form of consultation on a strike and inform the labor user thereof at least one day in advance.
3. The contents needs to be consulted include:
a/ The contents listed at Points a, c and d, Clause 3, Article 174b of this Code;
b/ Agreement or disagreement to go on strike.
Article 174b.-
1. The grassroots trade union executive committee or the representative of the labor collective shall issue a written decision on strike and make a written petition when over 50% of total laborers in an enterprise or a section of an enterprise with under 300 laborers agree to go on strike or over 75% of the number of consulted persons in an enterprise or a section of an enterprise with 300 laborers or more.
2. A strike decision must clearly state the starting time and place for the strike and bears the signature of the representative of the grassroots trade union executive committee or of the labor collective; if it bears the signature of the representative of the grassroots trade union executive committee, it shall be appended with a seal of the trade union.
3. A written petition must contain the following principal details:
a/ The collective labor disputes that have been dealt with by a competent agency or organization but the labor collective do not agree with the suggested solution;
b/ The outcome of the consultation on strike;
c/ Starting time of strike;
d/ Place of strike;
e/ Names and addresses of contact persons.
4. At least five days before the strike, the grassroots trade union executive committee or the representative of the labor collective shall send three representatives at most to hand over the strike decision and the petition to the labor user, and at the same time send their copies to the provincial-level labor agency and the provincial-level labor federation.
5. By the starting time of strike already notified under the provisions of Point c, Clause 3 of this Article, if the labor user does not accept the petition, the grassroots trade union executive committee or the representative of the labor collective will organize and lead the strike.
Article 174c.-
Before and during a strike, the grassroots trade union executive committee or the representative of the labor collective or the labor user has the following rights:
1. To conduct negotiations or jointly request the labor agency, the labor federation and the representative of the labor user in the locality or other agencies or organizations to conduct conciliation;
2. The grassroots trade union executive committee or the representative of the labor collective has the right to decide:
a/ To organize the strike involving all laborers in the enterprise or the section of the enterprise;
b/ To amend or withdraw the strike decision and/or the petition;
c/ To end the strike;
d/ To request a People’s Court to examine the legality of the strike or settle the right-related collective labor dispute.
3. The labor user has the right to decide:
a/ To agree to all or part of the petition and notify in writing its agreement to the grassroots trade union executive committee or the representative of the labor collective;
b/ To request a People’s Court to examine the legality of the strike or settle the right-related collective labor dispute.
Article 174d.-
During a strike, laborers have the following benefits:
1. Laborers who do not take part in the strike but have to stop working because of strike are paid work stoppage wages under Clause 2, Article 62 of this Code and other benefits as provided for by the labor law.
2. Laborers who take part in the strike are not paid salaries and other benefits as provided for by law, unless otherwise agreed by the two parties.
3. Trade union cadres, apart from the time spent under Clause 2, Article 155 of this Code on trade union work, are entitled to take a paid leave of at least three days for taking part in settling the collective labor dispute in the enterprise.
Article 174e.-
The following acts are prohibited prior to, during and after strikes:
1. Preventing laborers from exercising their right to go on strike, provoking, inciting or forcing laborers to go on strike; preventing non-strikers from going to work;
2. Resorting to violence; damaging machines, equipment and property of the enterprise;
3. Violating public order and safety;
4. Terminating labor contracts or imposing labor discipline on laborers or strike leaders or transferring laborers or strike leaders to other jobs or other locations for their preparation for waging a strike or involvement in a strike;
5. Revenging laborers for going on strike or leading strikes;
6. Unilaterally terminating the enterprise’s operation in order to resist the strike;
7. Taking advantage of strikes for committing illegal acts.
Article 175.-
Strikes are not allowed in enterprises providing public services and products and enterprises that are essential for the national economy or national security and defense as stipulated by the Government. State management agencies shall organize periodical dialogues with representatives of labor collectives and labor users of these enterprises in order to provide timely assistance and deal with their legitimate concerns and deman