11 New points about labor disputes in Vietnam from January 01, 2021

11 New points about labor disputes in Vietnam from January 01, 2021 (Illustration)

1. Amending the concept of labor dispute in Vietnam

According to Clause 1, Article 179 of the Labor Code 2019, a labor dispute is defined as a dispute over rights and obligations, and interests arising between parties in the process of establishing, implementing, or terminating labor relations; disputes between representative organizations of employees; disputes arising from relationships directly related to labor relations (previously within labor relations).

Types of labor disputes include:

- Individual labor disputes between employees and employers; between employees and businesses or organizations sending employees to work abroad under contracts; between leased employees and leasing employers (new regulation);

- Collective labor disputes over rights or interests between one or more representative organizations of employees and employers or one or more organizations of employers (previously collective labor disputes between the labor collective and employers).

Additionally, Clause 2, Article 179 of the Labor Code 2019 states that collective labor disputes over rights are disputes between one or more representative organizations of employees and employers or one or more organizations of employers (previously between the labor collective and employers) arising in the following cases:

- There are differences in the interpretation (previously explanation) and implementation of the provisions of the collective labor agreement, labor regulations, rules, and other legal agreements;

- There are differences in the interpretation (previously explanation) and implementation of the provisions of labor law;

- When the employer discriminates against employees or members of the leadership board of the representative organization of employees for reasons of establishing, joining, or operating within the representative organization of employees; interferes, manipulates the representative organization of employees; violates obligations regarding good-faith bargaining (new regulation).

In addition, Clause 3, Article 179 of the Labor Code 2019 states that collective labor disputes over interests include:

- Labor disputes arising in the process of collective bargaining;- When a party refuses to bargain or does not conduct bargaining within the period required by law.

(Previously, the dispute arose from the labor collective's demand to establish new working conditions compared to the provisions of labor law, collective labor agreements, labor regulations, or other legal agreements during negotiations between the labor collective and employers)

The new regulations have detailed circumstances leading to the occurrence of labor disputes and collective labor disputes over rights. They also add specific types of labor contract disputes. This change aligns with the current reality, thereby better protecting the legitimate rights of employees.

2. Resolving labor disputes without mandatory prior negotiation under the law in Vietnam

According to Clause 5, Article 180 of the Labor Code 2019, one of the principles in resolving labor disputes is that dispute resolution is conducted by the authority, organization, or individual authorized to resolve labor disputes after receiving a request from the disputing party or at the suggestion of the competent authority, organization, or individual, and with the agreement of the disputing parties (previously, the regulations required that labor disputes be resolved primarily through direct negotiation between the two parties to harmonize the benefits of both disputing parties, stabilize production, ensure order and social safety; conducted after one of the parties makes a request due to refusal to negotiate, failed negotiation, or successful negotiation but one party does not implement it).

From January 01, 2021, labor disputes will be resolved immediately upon request or at the suggestion of the related parties without requiring prior negotiation as before.

3. People's Committee is the focal point for receiving requests to resolve labor disputes in Vietnam

According to Article 181 of the Labor Code 2019, when there is a request, the specialized labor agency of the People's Committee is the focal point for receiving requests to resolve labor disputes and is responsible for classifying, guiding, supporting, and assisting parties in resolving labor disputes. Within 05 working days, the agency receiving the request for dispute resolution is responsible for transferring the request to the labor conciliator in the case of compulsory labor conciliation, to the Arbitration Council in cases requesting the Arbitration Council to resolve, or guiding them to send it to the Court for resolution (previously the regulations required that the competent state agency should proactively and promptly resolve collective labor disputes over rights).

The new regulation specifically recognizes the People's Committee's responsibility as the focal point for receiving requests to resolve labor disputes. This regulation facilitates the parties in requesting the competent state agency to resolve labor disputes for them.

4. Adding the responsibility of the conciliator in Vietnam

According to Clause 1, Article 184 of the Labor Code 2019, labor conciliators are individuals appointed by the Chairman of the Provincial People's Committee (previously appointed by the state management agency on labor in the district, urban district, district-level town, city belonging to the province) to mediate labor disputes, disputes over vocational training contracts; support the development of labor relations (new regulation).

At the same time, the Government will detail the standards, processes, procedures for appointment, policies, conditions for activity, and management (previously the Government only regulated standards and the authority to appoint) of labor conciliators; the authority, processes, procedures to appoint labor conciliators.

5. Changing the number of members and operating principles of the Arbitration Council in Vietnam

Article 185 of the Labor Code 2019 stipulates the Labor Arbitration Council as follows:

- The Chairman of the Provincial People's Committee decides to establish the Labor Arbitration Council, appointing the Chairman, secretary, and labor arbitrators of the Labor Arbitration Council (previously members included representatives of the provincial labor union, the representative organization of employers). The term of the Labor Arbitration Council is 05 years.

- The number of labor arbitrators in the Labor Arbitration Council is determined by the Chairman of the Provincial People's Committee, at least 15 people (previously, the number of members of the Council was odd and not more than 07 people), with equal numbers nominated by the parties. Specifically:

- At least 05 members nominated by the specialized labor agency of the Provincial People's Committee, including the Chairman of the Council as the representative of the leadership and the secretary of the Council as an official of the specialized labor agency of the Provincial People's Committee;- At least 05 members nominated by the provincial labor union;- At least 05 members nominated by the representative organizations of the employers in the province.

Moreover, the Labor Arbitration Board will work collectively and make decisions by majority, except when the disputing parties jointly choose one arbitrator to resolve the labor dispute, in which case the Labor Arbitration Board consists of only the selected labor arbitrator and operates independently (previously decisions were made by majority through a secret ballot).

From January 01, 2021, conciliators not only resolve labor disputes but also support the development of labor relations. Additionally, the number of members of the Labor Arbitration Council increases from 07 to at least 15, and it can operate independently in special cases.

6. Arbitration Council will have jurisdiction to resolve individual labor disputes

Article 187 of the Labor Code 2019 states that the authorities, organizations, and individuals authorized to resolve individual labor disputes include:

- Labor conciliators

;- Labor Arbitration Council (new regulation);

- People's Court.

From January 01, 2021, not only labor conciliators and People's Court will have the authority to resolve individual labor disputes as before, but the Labor Arbitration Council will also have this authority.

7. Adding cases where disputes do not need conciliation

Clause 1, Article 188 of the Labor Code 2019 states that one of the labor disputes not required to go through conciliation procedures includes disputes over unemployment insurance under the law on employment, over occupational accident, and disease insurance under the law on occupational safety and health, and disputes between leased employees and leasing employers (new regulation).

The Labor Code 2019 acknowledges additional cases where disputes over unemployment insurance, occupational accident insurance, and disease insurance, especially disputes between leased employees and leasing employers, do not require conciliation procedures. This regulation aligns with the current reality, maximally protecting employees' rights and saving time in resolving these disputes.

8. Right to request the Labor Arbitration Council to resolve when parties fail to implement agreements in individual disputes

Clause 6, Article 188 of the Labor Code 2019 states that if one party fails to implement the agreements in the conciliation record, the other party has the right to request the Labor Arbitration Council or the Court to resolve. In cases not required to go through conciliation, or when the conciliation period expires and the conciliator does not conduct conciliation, or conciliation fails, the disputing parties have the right to choose one of the following methods to resolve the dispute:

- Request the Labor Arbitration Council to resolve (new regulation);- Request the Court to resolve.

9. Force majeure events will not be counted in the statute of limitations for requesting labor dispute resolution

Clauses 2 and 4, Article 190 of the Labor Code 2019 state the statute of limitations for requesting the Labor Arbitration Council to resolve individual labor disputes is 09 months from the date the disputing party discovers the act which they believe violated their legitimate rights and interests. If the requester proves that due to force majeure events, objective obstacles, or other reasons as prescribed by law, they cannot make the request within the stipulated time, the time of the force majeure event, objective obstacle, or other reasons will not be counted in the statute of limitations for requesting resolution of individual labor disputes (new regulation).

From January 01, 2021, the statute of limitations for requesting the Labor Arbitration Council to resolve is 09 months, and force majeure events will not be counted within this period. This regulation is consistent with reality and aligns with the legal system by also considering force majeure events, obstacles, or other reasons as not being counted within the statute of limitations.

10. Labor Arbitration Council will have jurisdiction to resolve collective labor disputes over rights

Clause 1, Article 191 of the Labor Code 2019 states that the authorities, organizations, and individuals authorized to resolve collective labor disputes over rights include:

- Labor conciliators;

- Labor Arbitration Council (new regulation);

- People's Court.

(Previously, this authority belonged to labor conciliators; the Chairman of the District People's Committee, and the People's Court)

Additionally, Article 194 of the Labor Code 2019 states the statute of limitations for requesting labor conciliators to conduct conciliation for collective labor disputes over rights is 06 months from the date the disputing party discovers the act which they believe violated their legitimate rights (previously 01 year). The statute of limitations for requesting the Labor Arbitration Council to resolve collective labor disputes over rights is 09 months from the date the disputing party discovers the act which they believe violated their legitimate rights. The statute of limitations for requesting the Court to resolve collective labor disputes over rights is 01 year from the date the disputing party discovers the act which they believe violated their legitimate rights.

From January 01, 2021, the Chairman of the District People's Committee will no longer have the authority to resolve collective labor disputes over rights as before; this authority will instead be held by the Labor Arbitration Council.

11. Collective labor disputes over interests must be resolved through conciliation procedures

Clause 2, Article 195 of the Labor Code 2019 states that collective labor disputes over interests must be resolved through conciliation procedures by labor conciliators before requesting the Labor Arbitration Council to resolve or initiating a strike (new regulation).

Additionally, Clause 3, Article 196 of the Labor Code 2019 states that if conciliation fails, expires, or if the labor conciliator does not conduct conciliation, or if one of the parties does not implement the agreements in the conciliation record, the disputing parties have the right to choose one of the following methods to resolve the dispute:

- Request the Labor Arbitration Council to resolve;

- The representative organization of employees has the right to initiate a strike.

(Previously, the parties could request the Chairman of the District People's Committee to resolve).

From January 01, 2021, collective labor disputes over interests must be resolved through conciliation procedures before requesting the Labor Arbitration Council to resolve or initiating a strike. This regulation also removes the Chairman of the District People's Committee's authority to resolve this type of dispute.

Le Vy

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