Striking is one of the rights of employees in Vietnam as stipulated by the 2019 Labor Code. However, employees must exercise their right to strike in accordance with the law.
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Vietnam: What is the guidance on exercise of the right to strike in compliance with the law? (illustrative image)
The right to strike of employees is stipulated in Labor Code 2019 as follows:
1. What is a strike according to the provisions of Labor Code 2019?
According to the provisions of Article 198 of Labor Code 2019, a strike is a temporary, voluntary and organized stoppage of work by the employees in order to press demands in the process of the labor dispute settlement. A strike shall be organized and lead by the representative organization of employees that has the right to request collective bargaining and is a disputing party.
From the above concept, a lawful strike has the following characteristics:
Firstly, a strike is a temporary cessation of work by employees.
Secondly, a strike must be based on the voluntary participation of the employees involved in the strike.
Thirdly, a strike always has an organizational nature.
Fourthly, the purpose of a strike is to achieve the demands of employees when a collective labor dispute about benefits occurs.
Vietnamese law allows employees to strike to protect their rights when employers "oppress" them. This is considered a strong, determined measure of the labor collective to demand that the employer fulfill their obligations and satisfy the legitimate rights and interests of employees. However, Vietnamese law also stipulates that the right to strike must be exercised by legal regulations to avoid abusing this right and affecting the production and business activities of employers.
2. When are employees in Vietnam allowed to exercise the right to strike?
According to the provisions of the Labor Code, the right to strike of employees is exercised when the following conditions are met:
(1) When a collective labor dispute about benefits occurs;
(2) Organized and led by the labor representative organization that has the right to collectively bargain as one party in the collective labor dispute;
(3) Mediation fails or the mediation period expires without the labor mediator conducting mediation;
The case where the mediation period expires without the labor mediator conducting mediation is defined as follows: If within 05 working days from the date the labor mediator receives the request, and the mediator does not conclude the mediation, then the employees can proceed with the strike.
(4) The labor arbitration council is not established or is established but does not render a decision on the dispute, or the employer, as the disputing party, does not comply with the labor arbitration council's decision on dispute resolution.
Thus, it is not whenever a collective labor dispute about benefits occurs that employees have the right to strike, but only when the above conditions are met. More importantly, before carrying out a strike, the collective labor dispute must be subject to mediation, and only when mediation fails or the mediation period expires will employees be allowed to strike. This is because the law always upholds the spirit of voluntary agreement between parties to find the highest common interests for both employees and employers. On the other hand, as mentioned, a strike is a strong and determined measure by employees to demand benefits, so it should only be carried out when negotiation or mediation fails.
3. How are employees' rights resolved during a strike?
- The labor representative organization that has the right to organize and lead the strike has the following rights:
+ Withdraw the strike decision if no strike has yet occurred or end the strike if it is ongoing;
+ Request the court to declare the strike legal.
- Wages and other legal rights of employees during the strike period:
+ Employees who do not participate in the strike but have to stop working because of the strike are paid for stopped work according to the provisions of Clause 2, Article 99 of the Labor Code 2019 and other rights as prescribed by labor laws;
+ Employees who participate in the strike are not paid wages and other benefits as prescribed by law, except in cases where the parties have agreed otherwise.
Thus, from January 01, 2020, the right to strike continues to be one of the important rights of employees. This right is stipulated by labor law as a tool to support employees in the "battle" to demand legal rights from employers. However, the exercise of this right must be within the limits allowed by law; employees must meet all conditions and ensure that the strike is lawful so as not to affect the legitimate rights of employers.
Thuy Tram
