Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Forced Labour Convention, 1930 (No. 29) - Viet Nam (Ratification: 2007)

Other comments on C029

Observation

Direct Request

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Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. In its earlier comment, the Committee noted section 119 of the Penal Code, as amended in 2009, which prohibits trafficking in persons.

The Committee takes due note of the adoption by the national assembly in March 2011 of the Law on prevention and suppression of human trafficking, which entered into force on 1 January 2012. The Committee notes that the Law strengthens the definition of trafficking in persons provided for in sections 119 and 120 of the Penal Code and includes detailed provisions relating to the prevention of trafficking in persons, the detection of cases of trafficking, the protection and support of victims of trafficking, the responsibilities of different ministries and international cooperation in the prevention and suppression of trafficking.

The Committee notes the information contained in the Government’s report as regards the legal documents developed by the Programme of Action on Prevention and Combating Trafficking in Women and Children (No. 130) of the Ministry of Labour, Invalids and Social Affairs on receiving victims of trafficking in persons and supporting their rehabilitation for reintegration into the community. The Committee further notes the network to support victims of trafficking in persons consisting of international organizations and national partners, which aims to strengthen information sharing, support services for victims, adopt timely interventions for their reintegration and improve referral services by strengthening cooperation between agencies involved in the reception and support of victims of trafficking in persons. The Committee also notes that the Ministry of Labour, Invalids and Social Affairs has cooperated closely with international organizations, including the ILO, to develop and implement pilot community-based models to support victims of trafficking in persons. In addition, the Committee notes the measures taken by the Government on preventing and combatting trafficking in women and children in terms of capacity building of local staff and communication and awareness-raising activities.

Considering that the Government’s report contains no information on this point, the Committee again requests the Government to provide information concerning the application in practice of sections 119 and 120 of the Penal Code, including information on numbers of cases of prosecutions and convictions, and indicating the penalties imposed on perpetrators. The Committee also requests the Government to provide information on measures taken to give effect to the Law on Prevention and Suppression of Human Trafficking 2011.

Article 1(1) and 2(1). 1. Work exacted in drug rehabilitation centres. The Committee notes the Decree on regulating in detail the implementation of the law to amend and supplement a number of articles of the Law on drug prevention regarding post-rehabilitation management (No. 94/2009/ND-CP), which regulates drug rehabilitation centres. The Committee notes that the Decree stipulates that persons in these centres must actively participate in labour and production and complete assigned target volume and quality of work (sections 26(2), 34(1)(b)) and that the Director of the Centre has the authority to apply coercive measures against those failing to comply with the Centre’s rules and regulations regarding education, learning and labour (section 43(1)(a)). Noting that work is part of the treatment in these centres, the Committee requests the Government to provide information as to how persons enter these centres, how the authorities ensure that the persons concerned have given their free and formal consent to work and what sanctions are applied in case of refusal to work. The Committee also requests the Government, in its next report, to provide copies of laws and regulations governing drug rehabilitation centres, including Decree No. 135/2004.

2. Freedom of civil servants to terminate their employment contract. The Committee previously noted that, under section 3 of the Decree on job discontinuation and retirement procedures applicable to civil servants (Decree No. 46/2010), civil servants are entitled to terminate their employment contracts at their own will, subject to the consent of competent agencies, organizations or units. The Committee further noted that under section 4(1) of the same Decree, in order to terminate employment, civil servants must submit written applications to the competent agencies, organizations or units, which have 30 days to accept it or not. In the latter case, the competent authority shall state the grounds for refusal, which may include, inter alia, the workers’ non-fulfilment of “an obligation to pay money or assets under their personal liability towards their agencies, organizations or units” or task requirements of the workers’ agencies, organizations or units.

The Committee notes the Government’s indication that national law does not restrict the rights of civil servants to resign, but purports to avoid arbitrary job discontinuation and difficulties for management agencies. Civil servants are not allowed to resign if they still owe money to the management agency. The Government states that statistics are not available, but that most civil servants wishing to resign are allowed to. In exceptional cases, civil servants were required to pay back fees for sponsored training courses and higher education before being entitled to resign.

While noting the Government’s explanations, the Committee is bound to recall, referring also to the explanations in paragraphs 271 and 290 of its General Survey of 2012 on the fundamental Conventions concerning rights at work, that the effect of statutory provisions preventing termination of employment of indefinite duration by means of notice of reasonable length amounts, in practice, to turning a contractual relationship based on the will of the parties into service by compulsion of law, and is thus incompatible with the Convention.

In order to ensure that a refusal to grant termination of employment is not of indefinite duration and that civil servants are allowed to resign within a reasonable period of time, the Committee requests the Government to provide information on the application of section 4(1) of the abovementioned Decree in practice, indicating the cases in which resignations were refused, in particular concerning the workers’ non-fulfilment of “an obligation to pay money or assets under their personal liability towards their agencies, organizations or units” or task requirements of the workers’ agencies, organizations or units as grounds for refusal.

Article 2(2)(a). Compulsory military service. The Committee previously noted article 77 of the Constitution, which provides for compulsory military service and participation in building a national defence amongst citizens’ obligations and requested the Government to provide information on the guarantees provided to ensure that work or services exacted under compulsory military service laws are used purely for military ends.

The Committee notes the Government’s indication in its report that compulsory military service is purely of a military character in order to protect the sovereignty and territorial integrity of the country. The Government states that the use of labour and services extracted from persons in military duty for economic purposes for any organization or individual is strictly prohibited. In this regard, the Government refers to various legal regulations regarding military duties, in particular the Law on military service 1981.

The Committee further notes that, according to the Ordinance on militia and self-defence force 2004, provided by the Government, all Vietnamese citizens, aged between 18 and 45 for men and aged between 18 and 40 years for women, are obliged to serve for five years in the militia or self-defence force. The Committee notes the tasks of the militia and self-defence force set out in section 7 of the Ordinance and notes that, besides military activities to protect the sovereignty and territorial integrity of the country, they are “to actively implement socio-economic development programs in localities” (section 7(3)). In addition, the Committee notes that section 25 of the Ordinance provides that “core militia and self-defence officers and men shall be exempt from annual public labour obligation”.

The Committee recalls that, under Article 2(2)(a) of the Convention, work or service exacted in virtue of compulsory military service laws is only excluded from the scope of the Convention on condition that it is of a purely military character.

The Committee understands that both the Law on military service 1981 and the Ordinance on militia and self-defence force 2004 regulate compulsory military service and the building of a national defence among citizens. The Committee requests the Government to explain in its next report how these two laws relate to each other. For this purpose, the Committee also requests the Government to provide a copy of the Law on military service 1981, in English, if possible, indicating which provisions ensure that “the works undertaken by Vietnamese citizens for the armed forces are of pure military character”. As regards the Ordinance on militia and self-defence force 2004, the Committee requests the Government to clarify in its next report how in practice effect is given to section 7(3) relating to the active implementation of socio-economic development programmes in localities and to clarify the meaning of the “annual public labour obligation” referred to in section 25. It requests the Government to provide copies of laws and regulations governing the annual public labour obligation.

Article 2(2)(c). Prison labour. The Committee previously noted section 3(4) of the Penal Code which establishes that persons sentenced to imprisonment must be “compelled to serve their sentences in detention camps, to labour and study so as to become persons useful to society”. The Committee also noted the Government’s indication that section 22 of the Ordinance on enforcement of judgement by imprisonment provides for compulsory prison labour, and that, according to the Regulation on stockade, the use of inmates’ labour for private or individual enterprises is strictly prohibited. As the Government’s report contains no copies of the requested legislation, the Committee once again requests the Government to provide copies of the above provisions of the Ordinance on enforcement of judgement by imprisonment and the Regulation on stockade.

Article 2(2)(e). Minor communal services. The Committee, in its earlier comment, noted the Government’s indications that the provisions of the Law on the Organization of people’s council and people’s committee 2003 authorize communal authorities to mobilize local people to perform minor services for the direct interest of the community.

The Committee notes the copy of the Law on the organization of people’s council and people’s committee 1994 provided by the Government. The Committee also notes the Government’s repeated indication that the local people’s council has the right and responsibility to develop and adopt the plan to mobilize human resources for activities that are directly for the interest of the local community. In addition, the Government states that any new needs for communal services for the interest of the community shall be discussed and consulted with the members of the community, including heads of the residential area or directly by meetings of the residential areas. Considering that the 1994 legislation provided by the Government does not seem to include any provisions relating to communal services, the Committee requests the Government, in its next report, to provide a copy of the Law on the organization of people’s council and people’s committee 2003 and indicate the provisions which organize communal services. It further requests the Government to provide information as to the scope, type and duration of communal services, including examples of work mandated by the local people’s council.

Article 25. Penal sanctions. The Committee previously noted that, despite the administrative penalties punishing labour law violations provided for in sections 192 and 195 of the Labour Code, no specific criminal offence concerning forced labour is established in the Penal Code apart from several related dispositions concerning ill-treatment of other persons (section 110), human trafficking (sections 119 and 120), humiliation (section 121) and coerced or forced prostitution (section 254(2)).

The Committee notes the Government’s indication that the People’s Supreme Court has provided guidelines to lower level courts to improve the efficiency of the handling of criminal cases, generally, and, in particular, relating to prostitution, human trafficking, humiliation and ill-treatment. The Committee further notes the Government’s statement that the Ministry of Justice has made a proposal for revision of the Penal Code, including amending and supplementing the provisions relating to forced labour with a view to ensuring compliance with the obligations under the Convention and taking into consideration the recommendations of the Committee. Moreover, the Government indicates that the revised draft Labour Code, which more clearly defines forced labour, will be presented to the national assembly.

Recalling that, under Article 25 of the Convention, the illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and the penalties imposed by law shall be really adequate and strictly enforced, the Committee trusts that the draft Labour Code and amendments to the Penal Code will soon be adopted to ensure fuller compliance with the Convention. The Committee requests the Government to continue to provide information regarding the process of revision and amendment of the legislation. Pending this process, the Committee also requests the Government to continue to provide information on the enforcement of criminal offences related to forced labour and the prosecution of forced labour cases.

Communication of texts. The Committee once again requests the Government to supply, with its next report, copies of the following legislation: Law on people’s police 2005; Ordinance on mobilization of private sector for national defence 2003; and Ordinance on national defence industry 2008.