Use of Contract Labor to Replace Employees During Labor Dispute Resolution: Penalty Implications?
Can employees authorize representatives to participate in resolving labor disputes?
Based on the provisions of Article 182 of the Labor Code 2019 on the rights and obligations of both parties in resolving labor disputes as follows:
Rights and obligations of both parties in resolving labor disputes
1. In resolving labor disputes, the parties have the following rights:
a) Participate directly or through representatives in the resolution process;
b) Withdraw or alter the content of the request;
c) Request to change the person resolving the labor dispute if there are reasons to believe that person may not be neutral or objective.
2. In resolving labor disputes, the parties have the following obligations:
a) Provide full and prompt documentation and evidence to substantiate their claims;
b) Comply with the agreements reached, the decisions of the Labor Arbitration Council, and the judgments and decisions of the Court that have legal effect.
Thus, employees can participate directly or authorize representatives to participate in resolving labor disputes.
Using leased labor to replace workers who are in the process of resolving labor disputes, how are they penalized?
What are the principles for resolving labor disputes?
Based on the provisions of Article 180 of the Labor Code 2019 on the principles for resolving labor disputes as follows:
The resolution of labor disputes is carried out according to the following principles:
- Respect the right of self-determination through negotiation of the parties throughout the resolution process.
- Emphasize resolving labor disputes through mediation and arbitration based on respecting the rights and interests of the disputing parties, respecting the common interests of society, and not violating the law.
- Public, transparent, objective, prompt, quick, and in accordance with the law.
- Ensure the participation of representatives of the parties in the process of resolving labor disputes.
- The resolution of labor disputes is conducted by competent agencies, organizations, or individuals upon request of the disputing party or at the suggestion of competent agencies, organizations, or individuals, and with the consent of the disputing parties.
How are penalties imposed for using leased labor to replace workers who are in the process of resolving labor disputes?
Based on the provisions of Clause 2, Article 13 of Decree 12/2022/ND-CP on administrative penalties for violations regarding labor leasing.
Violations regarding labor leasing
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2. A fine ranging from VND 40,000,000 to VND 50,000,000 shall be imposed on the lessee for any of the following acts:
a) Using leased labor for jobs not listed in the categories of jobs allowed for labor leasing;
b) Using leased labor provided by an enterprise without a Labor Leasing Permit or with an expired Labor Leasing Permit;
c) Using leased labor to replace workers who are exercising their right to strike or resolving labor disputes;
d) Using leased labor to replace workers who have been dismissed due to organizational restructuring, technology changes, economic reasons, or due to division, segregation, merger, consolidation;
e) Assigning leased labor to another employer;
f) Using leased labor without a specific agreement on compensation for work accidents and occupational diseases between the leasing enterprise and the employer;
g) Using leased labor not for one of the following purposes: temporarily addressing a sudden increase in labor demand within a specific period; replacing workers during maternity leave, work accidents, occupational diseases, or compulsory civic duties; or having a demand for highly specialized or technical labor.
Thus, anyone who uses leased labor to replace workers who are in the process of resolving labor disputes may be subject to an administrative penalty ranging from VND 40,000,000 to VND 50,000,000.
Note: The fines specified for the above violations are the fines for individuals. Fines for organizations are double the fines for individuals (Clause 1, Article 6 of Decree 12/2022/ND-CP).
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