If labor mediators fail to initiate the mediation, am I entitled to strike in Vietnam?

1. If labor mediators fail to initiate the mediation, am I entitled to strike in Vietnam?

Pursuant to Article 199 of the 2019 Labor Code, there are provisions on cases in which employees are entitled to strike as follows:

The representative organization of employees that is a disputing party to an interest-based collective labor dispute is entitled to call a strike following the procedures specified in Articles 200, 201 and 202 in the following cases:

1. The mediation is unsuccessful or the labor mediator fails to initiate the mediation by the deadline specified in Clause 2 Article 188 of this Labor Code;

2. An arbitral tribunal is not established or fails to issue a decision on the settlement of the labor dispute; the employer that is a disputing party fails to implement the settlement decision issued by the arbitral tribunal.

Thus, according to the above provisions, in case the representative organization of employees has requested the labor mediator to settle the dispute but the labor mediator does not conduct the mediation, the employee is entitled to organize a strike in Vietnam.

2. Who has right to survey on strike in Vietnam?

Article 201 of the Labor Code 2019 has the following provisions:

1. Before going on strike, the representative organization of employees that has the right to call the strike as prescribed in Article 198 of this Labor Code shall survey all employees or members of the management board of the representative organization of employees.

2. The survey involves:

a) Whether the employee agrees or disagrees about the strike;

b) The plan of the representative organization of employees according to Point b, c and d Clause 2 Article 202 of this Labor Code.

3. The survey shall be carried out by collecting votes, signatures or in another manner.

4. The time and method of survey shall be decided by the representative organization of employees and notified to the employer at least 01 day in advance. The survey must not affect the employer’s normal business operation. The employers must not obstruct or interfere with the survey conducted by the representative organization of employees.

According to this Article, the representative organization of employees is the agency competent to collect opinions and organize the strike in Vietnam. 

3. How many surveyed people that agree to strike can carry out a strike in Vietnam? 

Article 202 of the Labor Code 2019 provides for strike decision and notice of starting time of a strike as follows:

1. When over 50% of the surveyed people agree to carry out a strike as prescribed in Clause 2 Article 201 of this Labor Code, the representative organization of employees shall issue a written strike decision.

2. The strike decision shall contain:

a) The survey result;

b) The starting time and the venue for the strike;

c) The scope of the strike;

d) The demands of the employees;

dd) Full name and address of the representative of the representative organization of employees that organizes and leads the strike.

3. At least 05 working days prior to the starting date of the strike, the representative organization of employees shall send the strike decision to the employer, the People’s Committee of the district and the provincial labor authority.

4. At the starting time of the strike, if the employer does not accept the demands of the employees, the strike may take place.

Thus, if more than 50% of surveyed people agree to carry out a strike, the representative organization of employees shall issue a strike decision in Vietnam.

Best Regards!