Strike is the right of employees and is acknowledged by the 2019 Labor Code. However, employees must comply with the provisions of the law when initiating a strike. If the employee's strike falls under one of the following 05 cases, it will be considered illegal, and employees need to be aware.
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6 cases considered illegal strikes in Vietnam (Labor Code 2019)
pursuant to Article 198 Labor Code 2019 stipulates:
A strike is a temporary, voluntary, and organized cessation of work by employees to achieve demands during the process of resolving labor disputes and is organized and led by the representative organization of employees which has the right to conduct collective bargaining as a party to collective labor disputes.
According to labor law regulations, a legal strike must meet the following conditions:
- Occurs during a collective labor dispute over benefits;
- Is organized and led by the representative organization of employees which has the right to conduct collective bargaining as a party to the collective labor dispute;
- Mediation fails or the mediation time limit expires without the labor mediator conducting mediation;
- The labor arbitration council is not established or is established but does not issue a dispute resolution decision, or the employer as a party to the dispute does not implement the dispute resolution decision of the labor arbitration council.
Specifically, according to Article 204 Labor Code 2019, 6 cases are considered illegal strikes, including:
- Not within the cases allowed for strikes as stipulated in Article 199 of the Labor Code 2019.
- Not organized and led by the representative organization of employees which has the right to conduct strikes.
- Violates the procedures and order for conducting strikes as stipulated by the Labor Code 2019.
- When the collective labor dispute is being resolved by the competent agency, organization, or individual according to the Labor Code 2019.
- Conducting strikes in cases prohibited from striking as stipulated in Article 209 of the Labor Code 2019.
- When there is a decision to delay or stop the strike by the competent authority as stipulated in Article 210 of the Labor Code 2019.
Regarding cases of illegal strikes, the Labor Code 2019 has added 2 new cases considered illegal strikes as follows:
- Not organized and led by the representative organization of employees which has the right to conduct strikes;
- Violates the procedures and order for conducting strikes as stipulated by the Labor Code 2019.
This is a new point of the Labor Code 2019 regarding cases considered illegal strikes. The condition for a strike to be considered legal is that it must be organized and led by the representative organization of employees which has the right to conduct collective bargaining as a party to the collective labor dispute. If this condition is not met, the strike is considered illegal. Additionally, if the strike is conducted without complying with the procedures and order as stipulated by the Labor Code 2019, it is also considered illegal.
What are the consequences of illegal strikes in Vietnam?
In reality, most employee strikes occur spontaneously, so the majority of these strikes are illegal mainly due to non-compliance with the specified procedures and order for conducting strikes.
When there is a decision of the court declaring the strike illegal, employees participating in the strike must immediately stop striking and return to work.
If the employees do not stop striking, do not return to work, then depending on the level of violation, they may be subject to labor disciplinary action according to labor law regulations.
In the case of an illegal strike causing damage to the employer, the representative organization of the employees organizing and leading the strike must compensate for the damages according to legal regulations.
Individuals exploiting the strike causing disorder, public safety hazards, damaging the employer's machinery, equipment, and assets; individuals obstructing the right to strike, inciting, persuading, or forcing employees to strike; individuals retaliating against, or punishing strike participants and strike leaders will be subject to administrative penalties or criminal prosecution depending on the seriousness of the violation, and if losses are caused, they must compensate as prescribed by law.
In summary, striking is a right of employees to use when their legitimate interests are infringed upon. However, when exercising this right, employees must be truly "rational." Because if not "careful," and not complying with the law, not only will they not achieve their rights, but they will also face disciplinary action, compensation for damages, and even criminal prosecution.
Thuy Tram
