Can enterprises without a grassroots trade union in Vietnam handle labor discipline?

Can enterprises without a grassroots trade union in Vietnam handle labor discipline?​ (Illustration)

According to the provisions of Article 123 of the Labor Code 2012, the handling of labor discipline in Vietnam is regulated as follows:

- The enterprise must prove the fault of the employee;

- There must be the participation of the representative organization of the labor collective at the grassroots level; (from 2021, the Labor Code 2019 will replace it with the representative organization of the employee at the grassroots level where the employee undergoing discipline is a member)

- The employee must be present and has the right to defend themselves, seek a lawyer or have the representative organization of the employee defend them; in the case of a person under 18 years old, there must be the participation of the legal representative; (from 2021, the Labor Code 2019 will replace it with persons under 15 years old must have the participation of parents or legal representatives)

- The handling of labor discipline must be recorded in writing.

In addition, Article 30 of Decree 05/2015/ND-CP (amended by Clause 12 of Article 1 of Decree 148/2018/ND-CP) stipulates the procedure for handling labor discipline in Vietnam as follows:

- When an employee is found to have committed a disciplinary violation at the time of the violation, the enterprise proceeds to make a violation record and notify the representative organization of the labor collective at the grassroots level; parents or legal representatives in the case of employees under 18 years old (from 2021, employees under 15 years old) to hold a meeting for handling labor discipline.

- In case the enterprise discovers the disciplinary violation after the act has occurred, has enough evidence to prove the fault of the employee, and within the statute of limitations for discipline, the following actions are taken:

• The enterprise notifies the content, time, and location of the disciplinary meeting to the representative organization of the labor collective at the grassroots level, the employee, and the lawyer, the grassroots trade union in case of defending assistance, ensuring these parties receive the notice before the meeting and conducting the disciplinary meeting with the participation of the notified parties.
• Upon receiving the notice from the enterprise, within a maximum of 03 working days from the date of receipt, the attending parties must confirm attendance. If unable to attend, they must notify the enterprise and state the reasons.
• If any of the notified parties do not confirm attendance, provide an unjustifiable reason for absence, or confirm attendance but do not show up, the enterprise still proceeds with the disciplinary handling.

Thus, according to the above regulations, before proceeding with labor discipline, the enterprise must have the participation of the representative organization of the labor collective at the grassroots level (the grassroots trade union executive committee or the higher-level trade union executive committee at the place where no grassroots trade union has been established) and the employee, as well as a lawyer, or the representative organization of the labor collective at the grassroots level in case of defense assistance. However, in the case where the enterprise does not have a grassroots trade union, can it handle labor discipline?

Currently, under the current Labor Code (which will be replaced by the Labor Code 2019 from January 1, 2021), the handling of labor discipline must have the participation of the representative organization of the labor collective at the grassroots level, where the representative organization of the labor collective at the grassroots level is the grassroots trade union executive committee or the higher-level trade union executive committee at places where no grassroots trade union has been established. Therefore, in cases where the enterprise has not established a grassroots trade union, the higher-level trade union executive committee at places where no grassroots trade union has been established must participate to proceed with labor discipline procedures.

However, from January 1, 2021, there will no longer be the concept of a representative organization of the labor collective at the grassroots level, and it will be replaced by the representative organization of the employee at the grassroots level. According to Clause 3, Article 3 of the Labor Code 2019, the representative organization of the employee includes the grassroots trade union and the employee’s organization. The trade union is an organization under the Vietnam General Confederation of Labor (a type of employee representative organization that has existed and is still existing in Vietnam, considered as the representative organization for employees to date). Additionally, from January 1, 2021, there will be another representative organization for employees, which is the employee’s organization. The employee’s organization is understood to be representative organizations for employees different from the grassroots trade union. Thus, instead of choosing to join or not join the trade union as it is currently, from 2021, the law allows employees in enterprises to choose to establish or join the trade union or another employee’s organization.

Therefore, from 2021, in cases where the enterprise has not established a grassroots trade union, the participation of the employee’s organization at the enterprise is required to proceed with labor discipline procedures.

Ty Na

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