The Labor Code 2019 was approved by the National Assembly of Vietnam on November 20, 2019 and officially took effect from January 1, 2021. The strike issue specified in the Labor Code 2019 has new points, more suitable to the socio-economic situation. So what’s new about new points on strikes under the Labor Code 2019 Vietnam? Let’s find out with Lawyer X!
Legal grounds
- Labor Code 2019
- Civil Procedure Code 2015
- Labor Code 2012
What is a strike?
From a social perspective: strike is a social phenomenon that occurs; exist objectively in a market economy.
From an economic perspective: Strike is a measure of workers’ struggle to protect their rights; economic, social and labor benefits that they are interested in.
From a legal perspective: Strike is a worker’s right recognized by law within a certain scope.
New points on strikes under the Labor Code 2019
New point on strike concept
Pursuant to Article 198 of the Labor Code 2019 and Article 209 of the Labor Code 2012:
“A strike is a temporary stoppage of work.” This is the successor of the Labor Code 2012.
Regulations on organizations that have the right to lead the strike have many progressive points. The Labor Code 2019 stipulates that the strike leader organization is “a representative organization of employees with the right to collective bargaining and is a party to a collective labor dispute that organizes and leads”. Previously, the Labor Code 2012 stipulates that strike leaders are:
“first. Where there is a grassroots trade union, the strike must be organized and led by the executive committee of the grassroots trade union.
- Where there is no grassroots trade union, the strike shall be organized and led by the superior trade union organization at the request of the workers.”
Pursuant to Article 68 of the 2019 Labor Code, a representative organization of employees has the right to collective bargaining when reaching the minimum ratio of members to the total number of employees in the enterprise as prescribed by the Government.
Thus, the subject of strike leadership in the Labor Code 2019 has a narrower scope than the 2012 Labor Code, focusing on subjects having the right to collective bargaining.
The change in the timing of the strike
Pursuant to Article 200; Article 201; Article 202 of the Labor Code 2019 and article 211; Article 212; Article 213 Labor Code 2012:
The Labor Code 2019 stipulates: The employee representative organization that is a party to a collective labor dispute over interests has the right to carry out the procedures specified in Article 200; 201 and 202 Labor Code 2019 to strike in the following cases:
The conciliation is unsuccessful or the conciliation time limit expires but the labor mediator fails to conduct the conciliation;
The Labor Arbitration Board may not be established or established but does not issue a decision to resolve the dispute or the employer being the disputing party fails to implement the dispute settlement decision of the Labor Arbitration Board.
The Labor Code 2012 stipulates: Strikes can only be conducted for collective labor disputes over interests and after the following time limit:
After 05 days from the date the Labor Arbitration Council makes a record of successful conciliation, one of the parties fails to implement the reached agreement.
After 03 days from the date the Labor Arbitration Council makes a record of unsuccessful conciliation.
Thus, the time allowed to start the strike is specified in article 199 of the Labor Code 2019 earlier than the Labor Code 2012.
More specifically about the order and procedures for strikes
While the Labor Code 2012 only stipulates in a general way; In general about the order of strikes in Article 211, in the Labor Code 2019, the order of strikes has been specified in a specific way; detail; clear; reference to article 201; Article 202 of this Code. This overcomes the disadvantages of the Labor Code 2012 when unclear regulations will cause difficulties; problems during implementation.
In addition, when stipulating the strike sequence in Clause 2, Article 200 of the Labor Code 2019; The legislators have provided for “notice of strikes in accordance with article 202 of this law”.
The regulation on notice of strike is not a new one. In fact, the Labor Code 2012 appeared in article 213. However, when stipulating the order of strikes, the notice of strike was not included. This lacks logic and causes controversy about the strike procedure sequence.
Overcoming this shortcoming, the Labor Code 2019 has more detailed regulations. Because strikes cause great damage to businesses; If there is no prior notice, the interests of the business will be affected.
Therefore, notice of strike must be a mandatory procedure in the strike proceedings.
Amending and supplementing regulations on handling of strikes against order and procedures.
Labor Code 2019 simplifies procedures; proceeding to strike during proceedings; the process of going to strike under the Labor Code 2012 is quite complicated; leading to the majority of strikes being illegal.
Besides, according to the Labor Code 2012; after taking the step of Labor Mediator for collective labor disputes failed; Trade unions must step through the Chairman of the District People’s Committee (dispute about rights) or the Labor Arbitration Council (dispute over interests); If this step fails, the next steps will be taken to strike.
Meanwhile, according to the Labor Code 2019, when there is a collective dispute, after taking the unsuccessful step of the Labor Mediator, the organizations representing the employees, the trade union have the right to choose whether or not to take the next step. is through the Labor Arbitration Council; take the case directly to the court for resolution or organize steps to strike.
Regarding collecting opinions of workers to strike:
The 2012 Labor Code requires consultations with members of the executive committee of trade unions and leaders of production groups. Where there are no unions; then consult the heads of production groups or labor collectives.
Meanwhile, the Labor Code 2019 stipulates that it is only necessary to collect opinions of the workers’ collective; or members of the leadership of representative workers’ organizations are sufficient.
New points on the rights of the parties before, during and after the strike
The rights of workers are further expanded thanks to the appearance of the Labor Arbitration Council. Specifically, Clause 1, Article 203 of the Labor Code 2019 provides for the parties:
“Continue to agree to settle the collective labor dispute or jointly request the labor mediator, the Labor Arbitration Council to conduct conciliation and settlement of the labor dispute.”
Amending and supplementing cases of illegal strikes
Pursuant to Article 209 of the Labor Code 2019, compared with the Labor Code 2012:
The Labor Code 2019 has removed 02 cases of illegal strikes:
Not arising from a collective labor dispute over interests;
Employees who do not work for the same employer go on strike.
The Labor Code 2019 also added 03 cases of illegal strikes:
The strike violates the regulations on the order and procedures for conducting the strike;
Not because workers’ representative organizations have the right to organize and lead strikes;
Not falling into the cases of strike as prescribed in Article 199 of the Labor Code 2019.
Abolish the regulation on strike settlement
The Labor Code 2012 specifically provides for the settlement of strikes in article 222.
However, the Labor Code 2019 does not provide for the settlement of strikes. In addition, the provisions on settlement of strikes are provided in chapter XXXI of the 2015 Civil Procedure Code.
The reason is that the regulation on strike settlement is a rule on formal law, on the order and procedures of the court. Therefore, the provisions on settlement of strikes in the Civil Procedure Code ensure the reasonableness.
Problem-solving
The Labor Code 2019 has provisions on strikes that are innovative, breakthrough and suitable to the socio-economic situation of the country. It can be seen that the regulations on strikes are being improved more and more; contribute to promoting the development of the country in the context of international economic integration.
Please see more:
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- What are rights and obligations of employees and employers under Viet Nam Labor Law?
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Frequently asked questions
Pursuant to Clause 3, Article 85 of the Law on Social Insurance 2014 as follows:
Article 85. Payment rate and mode of payment of employees participating in compulsory social insurance
Employees who do not work and do not receive wages for 14 or more working days in a month shall not pay social insurance premiums for that month. This time is not counted to enjoy social insurance, except in case of taking maternity leave.
Thus, the strike participant does not receive salary (unless otherwise agreed upon with the employer) and the strike lasts more than 14 days in a month, he or she will not be paid monthly social insurance premiums. there.
Labor dispute means a dispute over rights, obligations and interests arising between parties in the process of establishing, performing or terminating the labor relationship; disputes between organizations representing workers; Disputes arising from relations directly related to labor relations
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