2009 Annual Survey of violations of trade union rights - Vietnam
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - Vietnam, 11 June 2009, available at: http://www.refworld.org/docid/4c52cabe23.html [accessed 28 March 2015]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified: 29 – 100 – 111 – 138 – 182
Freedom of association and trade union pluralism continued to be denied in Vietnam. In 2008, the government enacted two Decrees that further restrict the right to strike, but this did not impede wildcat strikes. 762 wildcat strikes were reported during 2008, a 41% increase over 2007. In Hanoi alone, nearly 20,000 labourers were involved in 46 labour disputes.
Trade union rights in law
Freedom of association: Workers are not free to organise or join unions of their choosing. The Law on Trade Unions sets out that trade unions operate "under the leadership of the Communist Party of Vietnam" (CPV). Moreover, any union formed must be approved by and affiliate with the Vietnam General Confederation of Labour (VGCL) and operate under its umbrella. 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 Code, 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. Businesses with less than ten employees are excluded from the requirements on unionisation. 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 Law on Trade Unions, 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.
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.
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), and different procedures are set out for both. The law also 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. The law also states that in non- unionised 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.
Sectoral/industrial strikes are clearly 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 involved in the strike are liable for compensation to the employer for "losses and damages". Employer challenges to the legality of a strike can be filed up to 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".
In 2008 the government enacted two decrees that further restrict the right to strike (Decree 11/2008/ND-CP and Decree 12/2008/ND-CP). They regulate respectively the question of compensation for damage caused by unlawful strikes to employers and the issue of postponement or suspension of strikes.
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.
Trade union rights in practice and violations in 2008
Workers see wildcat strikes as their only option: 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.
Nguyen Van Be, Party Secretary of the Tan Thuan Export Processing Zone, said many labour officials did not help workers organise legal strikes or protect their rights. Dang Nhu Loi, Vice Director of the Parliament's Committee on Social Affairs, said a recent survey in the southern industrial hubs of Binh Duong, Dong Nai and Ho Chi Minh City showed that all labour union officials had been selected by local company leaders, not the workers.
Export processing zones: Nguyen Thi Hoa, Trade Union Chairwoman of Hanoi Industrial and Export Processing Zones, reported that most enterprises did not want to set up trade unions. Hoa noted that the Labour Code requires the establishment of trade unions if employers have not set up a Party organisation or a Communist Youth Union.
Hundreds of strikes tolerated: Despite the restrictions on strike action, hundreds of wildcat (illegal under the Labour Code) strikes occurred throughout the year with around 20 strikes involving more than 60,000 workers.
One of the most publicised strikes involved 17,000 workers at the Taiwan-owned Ching Luh factory sourcing shoes for Nike in southern Long An Province. The workers struck on 31 March and demanded a monthly salary increase. Four workers urging their fellow workers to continue the strike were arrested on 1 April, after the company agreed to a smaller increase and the workers returned to work. In addition, management officials forced at least 20 strike leaders to submit their resignations.
On 9 May, several workers at a Chinese-owned plastics factory in Nam Hoa Ha Co in Bac Giang Province were beaten by company's security personnel when struggle arose in the factory after manager refused salary increase. In the ensuing clash with police, many workers were seriously injured and 60 arrested. The outcome of the cases of the arrested workers is not known.