2008 Annual Survey of violations of trade union rights - Vietnam
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Vietnam, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca632c.html [accessed 27 January 2015]|
ILO Core Conventions Ratified: 29 – 100 – 111 – 138 – 182
Freedom of association and trade union pluralism continued to be denied in Vietnam. The economy faced galloping inflation of 15-20%, creating significant hardships for workers and their families and prompting 541 wild-cat strikes by workers seeking better pay and benefits. Amendments to the Labour Law to reform legal strike procedures took effect on 1 July, but the new provisions were largely ignored by workers who continued to lead the strikes without the formal support of the official Vietnamese General Confederation of Labour (VGCL).
Trade union rights in law
Freedom of association – political control of unions: Workers are not free to organise or join unions of their choosing. Any union formed must be approved by and affiliate with the VGCL and operate under its umbrella. The Trade Union Law sets out that trade unions operate "under the leadership of the Communist Party of Vietnam" (CPV). Similarly, the Statutes of the Vietnamese Trade Unions adopted at VGCL's 9th Congress in 2003 also clearly state the trade unions are under the CPV's leadership. The VGCL works under the close supervision and effective control of the Party and is a core member of the Vietnam Fatherland Front.
According to the Labour Law, a union must be formed by the local or industry trade unions within six months of the establishment of any new enterprise with ten employees or more. The employer is responsible for "facilitating the early establishment" of the union. Once the union is legally formed, the law further requires the employer to recognise the union, and to "cooperate closely with it". However, officials of the Ministry of Labour, Invalids and Social Affairs (MOLISA) have publicly admitted that many enterprises, particularly those owned by foreign investors, have no union presence.
According to the Trade Union Law, individual unions are only able to affiliate with, join, or participate in international labour bodies "in conformity with their activity objectives". Those "objectives" are determined by the national VGCL, giving it effective power to prevent international contacts or affiliations of which it does not approve.
Amendments to the Labour Law that took effect on 1 July 2007 open up the possibility for legal worker actions to be taken outside the parameters of the VGCL. The law states that in nonunionised enterprises, "a strike must be organised and led by representatives nominated by workers". The names of those workers representatives must be sent to the VGCL.
Acts of anti-union discrimination are prohibited by the Labour Code. An employer must receive permission from the union or higher level VGCL body before terminating any member of the union's executive committee.
Further restrictions on the right to strike: The July 2007 amendments to the Labour Law brought significant changes to legal procedures for strikes in Vietnam. Disputes are divided into disputes over rights (compliance with the law, collective bargaining agreement, and/or work rules of the company) and disputes over interests (demands beyond what the law provides), setting out different procedures for both. The law sets out an extensive process of mediation and arbitration that must be followed before a strike can legally take place.
Strikes are illegal if their origin does not arise from a collective labour dispute or if they concern issues that are outside of labour relations.
Sectoral/industrial strikes are effectively banned by a new provision of the law which states that any strike that involves more than one enterprise is illegal.
Thresholds for workers to approve a decision to strike are excessive. The law states that at least 50 per cent of the workers in an enterprise with less than 300 workers must vote for the strike. For enterprises with 300 workers or more, the requirement increases to 75 per cent.
New provisions in the law open a potential loophole for employers and government to influence workers' decisions through creative use of a "work stoppage allowance", to be paid to workers who do not take part in the strike but are prevented from working because of it. Striking workers are not entitled to pay and benefits.
Employers have the right to challenge the legality of a strike by appealing to the Labour Court. If a strike is ruled illegal, the law holds that the workers' organisation and individuals responsible for the strike are liable for compensation to the employer for "losses and damages". Employer challenges to the legality of a strike can be filed as long as three months after a strike is finished, raising concerns about retaliatory challenges to successful strikes.
Strikes are prohibited in public services, in state-owned enterprises and those considered by the government to be important to the national economy and defence. The definition is broad, covering a total of 54 sectors, including railway, maritime and air transportation, banks, post and telecommunications, electricity production and the oil and gas industries. The Prime Minister has the right to suspend a strike considered detrimental to the national economy or public security.
In strikes which are deemed legal, provisions in the law provide protection to workers by specifically forbidding "terminating individual labour contract, imposing labour discipline or transferring the workers to other jobs or other locations" because of those workers' involvement in a strike. The law also prohibits employers from taking "revenge" against workers who supported or lead strikes or engaging in a "unilateral suspension of business of operations in order to resist a strike".
Collective bargaining: VGCL affiliated unions have the right to bargain collectively on behalf of all workers in an enterprise. However, their ability to effectively bargain with management is handicapped by the fact that at many private enterprises, VGCL representatives are either considered by the workers to be close to management or are actually management officials.
Export processing zones (EPZs): Vietnam's EPZs are covered by the same laws as the rest of the country.
Exclusion of micro-enterprises from trade union coverage: The law excludes businesses with less than 10 employees from the labour code's requirements on unionisation.
Trade union rights in practice and Violations in 2007
Workers see official union as ineffective: The VGCL describes itself as the bridge between employer and worker, rather than the defender of workers' rights. Credibility of the VGCL among workers is still low because many workers believe that the leadership is unable to represent their concerns successfully.
Hundreds of strikes tolerated: Despite the restrictions on strike action, a total of 541 strikes, involving an estimated 350,000 workers, took place during the year. All of these actions were done without all the procedures in law and regulations being respected, and they were tolerated by the authorities. MOLISA surveys found that most of the strikes occurred as a result of a mistake or violation by employers, such as slow or delayed payment of wages and overtime and poor treatment of employees. Most of the strikes concerned disputes over pay and conditions of work, and most observers viewed the strikes as serving as the most accessible and effective bargaining tools that could be employed by workers, especially given difficulties with the formal collective bargaining system.
In the case of the Sam Yang factory, producing goods for Nike, local labour activists reported that five workers who led the strike on November 18-19 were jailed overnight by the local authorities and then fired by the factory.
Most observers state that the strikes begin without prior consultation with the VGCL or its local unions, and that the primary role of the VGCL is as a mediator between striking workers, local authorities and the employer to resolve the dispute. News reports indicated that retaliation by private sector employers, including dismissal, against active union leaders also discouraged the official unions from taking a leading role in the strikes.
Export processing zones: Only about ten per cent of workers in EPZs have long-term employment contracts. The remainder are on "definite term" contracts of between one to three years, or seasonal contracts of one year's duration – both of which are not legally permitted for a job which is "regular". Both types of contracts help employers avoid the legal requirement to set up a union in enterprises with ten employees or more.
Arrests and prison terms for activists involved in labour rights advocacy: Starting in mid-2006 and continuing through 2007, there was a crackdown on an array of Vietnamese activists from civil society and pro-democracy groups, including those who have attempted to publicly proclaim independent worker organizations and have taken some actions to promote workers' rights. Charges are usually brought under restrictive (yet vaguely worded) sections of the Vietnamese Penal Code, such as conducting propaganda against the government (article 88); "abusing democratic freedoms" of speech, press, belief, religion, assembly, and association to "infringe upon the interests of the State" (article 258); "undermining the unity police" (article 87); "disrupting security" (article 89); "causing public disorder" (article 245); and "spying" (article 80).
The government continued to outlaw the International Workers Union (IWU) of Vietnam, which was proclaimed in October 2006 by political activist Nguyen Khac Toan, and during the year, he reportedly remained under the close surveillance of the authorities. In March, political activist and pro-democracy writer Tran Thi Thuy Trang, who was also involved in founding of the IWU, was arrested in Ho Chi Minh City for her various activities. Human Rights Watch reported that Le Tri Tue of the IWU disappeared in May after applying for political asylum with UNHCR in Cambodia.
The government also continued to prohibit the United Workers-Farmers Organisation (UWFO). During the year, three founding members of this organization (Doan Huy Chuong, Tran Thi Le Hong, and Doan Van Dien) were serving prison sentences for ""abusing democracy and freedom rights to infringe the interests of the state and the legitimate rights and interests of organizations and citizens". In May 2007, UFWO spokesperson Tran Quoc Hien was sentenced to jail for seven years for "conducting propaganda against the state" and "disturbing security and order". Several other UFWO members were also reportedly being held during the year. Nguyen Thi Tuyet, a member of the UWFO, was released in December after a year in detention without trial.
The government also used labour-related charges in some cases against political activists peripherally involved in labour union matters. For example, among the many criminal charges filed in April against Nguyen Van Dai of the Vietnam Committee for Human Rights and multi-party democracy activist Le Thi Cong Nhan was one for "misinterpreting" the government's policies regarding labour unions.