Demande directe (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Viet Nam (Ratification: 2019)

Autre commentaire sur C098

Demande directe

2022
2021

Afficher en : Francais - EspagnolTout voir

The Committee notes the Government’s statement that it shared the report with the Viet Nam General Confederation of Labour (VGCL), the Viet Nam Chamber of Commerce and Industry (VCCI) and the Viet Nam Cooperative Alliance, which agreed with its content.

The Committee notes the Government’s indication on the adoption of the following decrees and decisions: Decree No. 12/2022/ND-CP dated 17 January 2022 on administrative sanctions in the field of labour, social insurance, and Vietnamese workers working abroad under contracts; Decision No. 416/QD-TTg dated 25 March 2020 promulgating the plan for the implementation of Directive No. 37-CT/TW on strengthening the leadership and direction of the Central Committee of the Communist Party of Viet Nam to build harmonious, stable and progressive industrial relations in the new situation; Decision No. 449/QD-TTg dated 26 March 2021 on the establishment of the National Wage Council; Decision No. 1413/QD-TTg dated 18 August 2021 on the strengthening of the functions, duties, organizational structure and operation of the Industrial Relations Committee and Decision No. 338/QD-LDTBXH dated 17 March 2021 on the announcement of newly promulgated, amended, supplemented and abolished administrative procedures in the field of labour and wages under the state management functions of the Ministry of Labour, Invalids and Social Affairs. Taking due note of the above, the Committee requests the Government to indicate any provisions of the above instruments which give effect to the Convention and to provide copies thereof (except Decree No. 12/2022/ND-CP already submitted by the Government and examined below).

Scope of application of the Convention. Specific categories of workers. In its previous comment, the Committee noted that foreign workers were excluded from the application of the Trade Union Law, 2012 (section 5(1)) and that the regime for certain workers (cadres, civil servants, public employees, personnel belonging to the armed forces and the police, social organizations, members of cooperatives and persons working without an employment relationship) would be regulated by other legal documents than the Labour Code, 2019 (section 220(3)). The Committee requested the Government to provide clarification on the legislation applicable to those categories of workers covered by the Convention. The Committee notes that the Government indicates that: (i) the Trade Union Law is applicable to the above categories of workers, including public employees and civil servants not engaged in the administration of the State, workers in managerial positions and workers without labour contracts but is not applicable to foreign workers whose rights are guaranteed in accordance with the provisions of the Labour Code; (ii) the Labour Code is applicable to all workers, irrespective of whether they are in a managerial position or casual workers; (iii) the Labour Code does not contain specific provisions on the rights of workers without an employment relationship but does not restrict their respective rights; (iv) the rights, obligations and working regulations of cadres, civil servants and public employees are prescribed in the 2008 Law on Cadres and Civil Servants and the 2010 Law on Public Employees, as well as their amending legislation, which do not prohibit the right to collective bargaining; and (v) under Decree No. 04/2015/ND-CP, civil servants, public employees and workers in administrative agencies and public non-business units can participate in the congress of cadres, civil servants and public employees and can also participate in discussions, negotiations and decisions on issues related to their rights and obligations. The Government adds that the application of the rights granted by the Convention is relatively new in the country and ILO technical assistance would therefore be welcome, in particular to work on improving legislation, developing relevant technical guidelines and enhancing enforcement capacity in practice. Taking due note of the above, the Committee recalls that the Convention covers all workers, whether nationals or foreigners, in both the private and public sectors, with the only authorized exceptions of the armed forces, the police and public servants engaged in the administration of the State (Articles5 and 6) and that its scope extends not only to the right to bargain collectively but also to protection against anti-union discrimination and acts of interference, as examined in more detail below. The Committee trusts that the Government will take the necessary measures, with the technical assistance of the Office, to ensure that national legislation and its application in practice are fully in line with the Convention so as to ensure that all workers within the scope of the Convention can benefit from the rights set out in this instrument. The Committee requests the Government to provide further information on the exact provisions of the laws governing public employees and public servants not engaged in the administration, which give effect to the provisions of the Convention, and to provide copies thereof.

Scope of application of the Convention. Protection of higher-level workers’ organizations and their members.The Committee previously requested the Government to provide clarification on whether the provisions of the Labour Code giving effect to the rights guaranteed by the Convention apply to upper-level workers’ organizations. The Committee notes the Government’s indication that section 7 of the Labour Code on the development of labour relations refers to” employers, employers’ representative organizations, workers and workers’ representative organizations”, without a qualifier, and that sections 65 and 72 of the Labour Code regulate collective bargaining at all levels, including beyond the enterprise. While taking due note of these indications, the Committee observes that other provisions of the Labour Code, including section 1 on its scope of application and sections 175-177 on anti-union discrimination and interference, refer only to workers’ representative organizations at the grassroots level (addressed in more detail below). While further noting the Government’s indication that due to historical conditions higher-level trade unions have not fully developed, the Committee must emphasize the importance of bringing national legislation in line with the Convention on this point, precisely to enable and promote free and voluntary collective bargaining at all levels with the representative organizations of the workers’ own choosing. The Committee therefore calls on the Government to take the necessary measures to ensure that all the rights provided by the Convention are guaranteed to workers’ and employers’ organizations at all levels, as well as their members, both in law and in practice. The Committee invites the Government to avail itself of the ILO technical assistance in this regard.

Equal access to the guarantees of the Convention. Independence of workers’ and employers’ organizations.In its previous comment, in view of two different but partially overlapping laws giving effect to the provisions of the Convention – the Trade Union Law and the Labour Code – the Committee requested the Government to ensure that all workers’ organizations have equal access to the guarantees of the Convention, irrespective of the applicable legislation. It also observed that certain provisions place trade unions under the direction or authority of higher-level trade unions, other organizations or political parties and requested the Government to ensure the independence of workers’ and employers’ organizations in the exercise of their rights under the Convention. The Committee notes the Government’s information that the provisions of the Convention were transposed into the national legal system through the adoption of the Labour Code, which clearly stipulates that trade unions under the Trade Union Law and workers’ organizations at enterprises established under the Labour Code have equal rights and obligations in protecting the lawful and legitimate rights and interests of workers in labour relations (section 170). The Government also refers to numerous provisions of the Labour Code, the Trade Union Law and Decree No. 12/2022/ND-CP to demonstrate the independence of workers’ and employers’ organizations. While taking due note of the above, the Committee observes that the provisions pointed to by the Government deal with the prohibition of anti-union discrimination and interference by the employers, which, while relevant to the application of the Convention and addressed in more detail below, does not address the specific issues previously raised by the Committee, in particular that the applicable legislation appears to place trade unions under the direction or authority of higher-level trade unions, other organizations or political parties, thus interfering with the free and voluntary nature of collective bargaining. Recalling in this regard the importance of ensuring and maintaining independence of workers’ and employers’ organizations, not only from each other, but also from public authorities or political parties and higher-level organizations, so at to contribute to stable industrial relations,the Committee requests the Government to take the necessary measures to ensure full independence of workers’ and employers’ organizations at all levels in the exercise of their rights under the Convention. Further noting the continued duality of legislation governing the rights of workers’ organizations but noting the Government’s clarification in this regard, the Committee trusts that, in practice, all workers’ organizations, irrespective of the legislation that governs them, have equal access to the guarantees of the Convention and encourages the Government to consider reviewing the dual approach to legislation governing the rights granted by the Convention.

Government regulations. The Committee previously noted that numerous provisions of the Labour Code are drafted in a broad language, leaving extensive powers to the Government to stipulate further details on specific matters which fall within the scope of the Convention and requested the Government to clarify whether any such regulations were already adopted. The Committee notes that the Government points to: (i) Decree No. 145/2020/ND-CP regulating, in particular, the organization and operations of the Labour Arbitration Council and the Labour Arbitration Panel, as well as criteria and qualifications for the appointment of labour arbitrators; (ii) Circular No. 10/2020/TT-BLDTBXH detailing the functions, duties and operations of collective bargaining councils; and (iii) draft Decree on workers’ representative organizations and collective bargaining which aims to regulate the minimum membership requirements to engage in collective bargaining. The Committee takes note of this information and recalls that some of the decrees were examined in its previous comment and others are mentioned in this comment. The Committee requests the Government to continue to provide information on the adoption or modification of any Government regulations giving effect to the provisions of the Convention.

Articles 1 and 2 of the Convention. Adequate protection against acts of anti-union discrimination and interference. Higher-level organizations. The Committee previously welcomed provisions of the Trade Union Law (sections 9 and 25) and the Labour Code (sections 3(8), 5, 8(1), 175 and 177) prohibiting various forms of anti-union discrimination and interference, and requested the Government to clarify whether these provisions also apply to higher-level organizations. The Committee notes that the Government informs that: (i) section 9 of the Trade Union Law prohibiting acts of anti-union discrimination and interference is generally applicable to all subjects and protects members of grassroots unions, as well as upper-level trade unions; and (ii) section 8(1) of the Labour Code prohibiting “discrimination at work” is generally applicable to all subjects covered by the Labour Code, regardless of whether they are members of grassroots or upper-level unions. Taking due note of the above, the Committee observes, however, that even though section 8(1) of the Labour Code prohibits “discrimination at work” in general terms, section 3(8) which defines such discrimination refers to trade unions and workers’ organizations at the enterprise level. Furthermore, the Committee notes the Government’s indication that section 175 of the Labour Code prohibiting anti-union discrimination and interference is applicable to workers’ representative organizations at the grassroots level. Recalling that the protection afforded to workers and trade union leaders against acts of anti-union discrimination and interference in union affairs is an essential aspect of freedom of association, the Committee requests the Government to take the necessary measures, including legislative, to ensure that protection against such acts is provided, both in law and in practice, to members of workers’ organizations at all levels, including at the sectoral and national levels.

Articles 1, 2, 3 and 4. Effective and sufficiently dissuasive sanctions and remedies for acts of anti-union discrimination and interference. Sanctions for violations of obligations relating to collective bargaining. The Committee previously noted that the level of fines imposable on employers for acts of anti-union discrimination and interference in trade union affairs (Vietnamese Dong (VND) 3,000,000 to 20,000,000 (equals to US$120 to 883)), as well as for failure to engage in collective bargaining (VND3,000,000 to 5,000,000 (equals to US$120 to 221)), as set out in Decree No. 28/2020/ND-CP, may not be sufficiently dissuasive and requested the Government to consider raising the level of fines. The Committee notes the Government’s indication that Decree No. 28/2020/ND-CP was replaced by Decree No. 12/2022/ND-CP developed in close consultation with the VGCL, the VCCI and the Viet Nam Cooperative Alliances and that the level of fines in relation to workers’ representative organizations at the grassroots level and trade unions has been raised. The Committee notes, in particular, that the fines imposable on employers for acts of anti-union discrimination and interference in trade union affairs now range from VND 3,000,000 to 40,000,000 (equals to US$120 to 1,610) (sections 34(3) and 35-37 of the Decree) and that these fines concern individuals responsible for the violations, whereas the amount of the monetary penalty imposed on entities is two times higher (section 6(1) of the Decree). Similarly, the level of fines imposable on employers for violations of obligations relating to collective bargaining was increased and Decree No. 12/2022/ND-CP contains more detailed provisions in this regard. Welcoming the Government’s engagement to increase the level of fines imposable on employers for acts of anti-union discrimination, interference and failure to engage in collective bargaining, the Committee requests the Government to monitor, together with the social partners, the application in practice of these newly adopted sanctions and to review the relevant provisions, where considered necessary, so as to ensure that the sanctions imposable for acts of anti-union discrimination, interference in trade union affairs and failure to engage in collective bargaining are sufficiently dissuasive.

The Committee also previously requested the Government to provide information on the practical application of the available procedures, sanctions and remedies provided by the legislation to address allegations of anti-union discrimination and interference, as well as failure to engage in collective bargaining. The Committee notes the Government’s indication that, according to the VGCL, there has been no specific information on the application of the provisions on preventing and combating discrimination, manipulative intervention in trade union activities or failure to engage in collective bargaining since 2019. Similarly, results from a report of the Inspectorate of the Ministry of Labour, Invalids and Social Affairs on the observance of labour law in enterprises did not detect any acts prohibited by the relevant provisions of the Labour Code. The Government adds, however, that such violations may occur, even without being reported and it is therefore important to conduct awareness-raising and capacity-building exercises with workers, trade unions and State management agencies in charge of labour, including labour inspectors and labour arbitrators. Noting that the Government requests ILO technical assistance in this regard, the Committee trusts that the Office will be able to provide such technical assistance so as to contribute to raising awareness of the relevant stakeholders on the importance of preventing, monitoring and reporting violations relating to the prohibition of anti-union discrimination, interference in trade union affairs and failure to engage in collective bargaining. The Committee further encourages the Government to continue to report on the practical application of the available procedures, sanctions and remedies provided by the legislation to address such violations, in particular to indicate the number of alleged violations filed to the competent authorities (mediation, arbitration and judicial proceedings), as well as the average duration of the procedures and the type of sanctions and remedies applied as a result thereof.

Article 4. Collective bargaining levels. The Committee previously noted that collective bargaining at the national level was not explicitly stipulated in section 78 of the Labour Code and requested the Government to clarify whether such collective bargaining was permitted. The Committee notes the Government’s indication that the provision refers to “other types of agreements” and that this may also include national collective bargaining agreements.

Collective bargaining at the level of the enterprise. Minimum threshold of representativity.In its previous comment, the Committee noted the different scenarios for collective bargaining at the enterprise level stipulated by section 68 of the Labour Code and observed that the provision referred to a minimum membership requirement to bargain collectively, without, however, elaborating on the required threshold. The Committee notes the Government’s indication that a decree on this subject is being prepared and provides various options on the minimum membership ratio for workers' representative organizations to have the right to conduct collective bargaining. The Government also informs that it took note of the Committee’s comments and that it is in the process of consulting on the draft decree for its promulgation in the near future. Taking due note of the Government’s information, the Committee trusts that the decree establishing the minimum requirements for workers’ organizations to engage in collective bargaining at the enterprise level will be elaborated without delay, in consultation with the social partners,so as to allow these organizations to participate in collective bargaining to defend the interests of their members. The Committee trusts that the determination of the minimum threshold will be done in line with the Convention, as detailed in the Committee’s previous comment, and invites the Government to avail itself of ILO technical assistance in this regard.

Sectoral bargaining. Minimum threshold of representativity.In its previous comment, the Committee requested the Government to indicate whether any minimum requirements apply to workers’ organizations to be able to participate in collective bargaining at the sectoral level. The Government informs that the Labour Code grants a lot of autonomy to the parties in conducting collective bargaining at the sectoral level. In particular, the sectoral trade union and the employers’ organization determine the collective bargaining representatives who can participate in bargaining (section 72 of the Labour Code), as well as the process for conducting sectoral collective bargaining, including whether or not to conduct it through a collective bargaining council (section 73 of the Labour Code). Taking due note of this information, the Committee requests the Government to provide further information on the determination of collective bargaining parties at the sectoral level in situations where more than one workers’ organization seeks to participate in such collective bargaining. The Committee also requests the Government to clarify whether the decree on the minimum requirements to participate in collective bargaining, mentioned above, also addresses sectoral collective bargaining.

Adoption of collective agreements. Requirement to obtain opinions from workers. In its previous comment, the Committee requested the Government to provide information on the practical application of the provisions of the Labour Code which require opinions of all workers at the enterprise and approval by more than 50 per cent of them before a collective bargaining agreement can be adopted, as well as on the application of similar provisions for sectoral and multi-enterprise collective agreements. The Committee takes note of the Government’s observations that at the enterprise level, 99 per cent of workers vote to adopt collective agreements when consulted. The Government also reports that 3,489 new collective agreements were adopted at the level of the enterprise in 2021 and 1,676 new agreements were adopted between January and May 2022. The Committee requests the Government to provide further information on the practical application of section 76(2) of the Labour Code, which provides for specific requirements to obtain the opinions of workers and a vote in favour of a sectoral or a multi-enterprise collective bargaining agreement, before such an agreement can be adopted.

Sectoral and multi-enterprise bargaining. Collective Bargaining Council. Powers of the Provincial People’s Committee. The Committee previously noted that the Provincial People’s Committee, the administrative entity at the provincial level, had certain prerogatives in sectoral and multi-enterprise collective bargaining, including the power to reject a request to establish a collective bargaining council and to assist, under certain conditions, in the process of collective bargaining, and requested further information in this regard. The Committee notes the Government’s indication that within 20 workings days from a request to engage in multi-enterprise collective bargaining, the Provincial People’s Committee shall issue a decision on the establishment of a collective bargaining council or the reasons why such establishment was not accorded. This aims, according to the Government, to ensure that the establishment of a collective bargaining council is conducted in accordance with the law, that the principles of collective bargaining are voluntary and based on cooperation, goodwill, equality, openness and transparency. Accordingly, in all cases where these criteria are not met, the request will be rejected with a written document and a clear statement of the reasons therefore, but this does not interfere with the conclusion of a collective bargaining agreement between the parties. While taking due note of the above, the Committee recalls that there are also other aspects of the Provincial Peoples’ Committee’s involvement in collective bargaining which may raise issues of compatibility with the Convention, in particular that representatives of the Provincial Peoples’ Committee are also members of the collective bargaining council and that the Committee is mandated, under certain circumstances, to assist in the process of collective bargaining. In this context, the Committee requests the Government to provide further information on the role of representatives of the Provincial People’s Committee, as the State authority at the provincial level, in a collective bargaining council, including on the type of assistance that can be provided to parties in line with section 74 of the Labour Code. The Committee requests the Government to ensure that any assistance or participation of State authorities in collective bargaining of sectoral or multi-enterprise collective agreements does not infringe the principle of the autonomy of the parties promoted by the Convention. The Committee trusts that the powers of the Provincial Peoples’ Committee and the Department of Labour to reject a request for the establishment of a collective bargaining council are, in practice, limited to verifying formal requirements as to the composition of the council or ensuring that basic principles of equality and voluntary bargaining are met, as reported by the Government, and do not restrict recourse to sectoral and multi-enterprise collective bargaining.

Procedures for the settlement of collective labour disputes. The Committee previously noted the provisions of the Labour Code on mediation, arbitration and judicial resolution of individual and collective labour disputes (sections 179-197) and requested the Government to provide further information on measures to ensure the independence of the Labour Arbitration Council from the State authorities and to clarify whether the law allows for compulsory arbitration (arbitration established at the initiative of one party or the competent authority with compulsory effect on the parties). The Committee notes that the Government indicates that, while rights-based individual or collective disputes can be unilaterally referred to the courts for resolution, the law does not provide for compulsory arbitration for interest-based collective labour disputes but, in certain situations, the workers’ representative organization, as a disputing party, can initiate a strike action in line with the provisions of the Labour Code. The Government further points to the relevant provisions of the Labour Code and of Decree No. 145/2020/ND-CP (previously assessed by the Committee), which elaborate on the establishment of the Labour Arbitration Council and on the criteria and qualifications of labour arbitrators, and which, in the Government’s view, ensure the independence and effective operation of the Labour Arbitration Council. Taking due note of this information, the Committee observes, however, that the provincial State authority seems to play an essential role in the establishment, composition and functioning of the Labour Arbitration Council (section 185 of the Labour Code) which may raise concerns of full independence of this entity from State authorities. Emphasizing that bodies entrusted with resolving collective labour disputes should be independent and enjoy the confidence of the parties, the Committee requests the Government to take the necessary measures to ensure that the Labour Arbitration Council is fully independent from the Government and to provide details as to the nature of the awards, orders or remedies that may be issued by an arbitration panel.

Workers’ and employers’ organizations cited in the labour legislation. The Committee previously observed that a number of provisions of the Trade Union Law, the Labour Code and Decree No. 145/2020/ND-CP provide specific rights, including the right to participate in national tripartite bodies, to enumerated workers’ and employers’ organizations and requested the Government to take the necessary measures to review the labour legislation in order to ensure that it does not cite specific organizations but rather uses a more general language. The Government indicates that trade unions and workers’ organizations in enterprises have equal rights and obligations in protecting the lawful and legitimate rights and interests of workers in labour relations (section 170 of the Labour Code) but that workers’ organizations are only regulated at the enterprise level and that at other levels, due to historical conditions, there is currently only one trade union. In relation to employers’ organizations and business associations other than the VCCI and the Viet Nam Cooperative Alliances, the Government informs that they also participate in tripartite institutions at all levels. The Government provides the example of the National Wage Council, where, in addition to representatives of the above organizations, there are also 3 members from other employers’ organizations at the national level (one from the Viet Nam Association of Small and Medium Enterprises and two from national sectoral associations employing a high number of workers, without being nominally specified). While taking due note of the broader participation of employers’ organizations in the National Wage Council and of the historical circumstances explaining a lack of regulation of trade unions at higher levels, the Committee recalls once again that systems which cite by name in the legislation the organizations which have preferential rights may give rise to risks of partiality or abuse and are not compatible with the Convention. The Committee further recalls that it is preferable for legislation, when granting rights and obligations to workers’ and employers’ organizations, to use a general language, for example based on the level of representativity of the organizations concerned. The Committee requests the Government to take the necessary measures, including legislative, so as to bring the law in line with the Convention on this point.

Collective bargaining in practice. The Committee notes the Government’s indication that by the end of June 2022, 38,588 enterprise-level collective bargaining agreements, two collective bargaining agreements at the local level (in the garment industry), 21 multi-enterprise collective bargaining agreements (in tourism, electronic enterprises, garment enterprises, construction materials enterprises and preschool institutions) and one national-level sectoral collective labour agreement in the garment industry, were signed and in force covering around 6,195,843 workers (accounting for 79 per cent of the total number of workers in enterprises where trade unions have been established). The Committee further welcomes the detailed information provided by the Government on the implementation of a number of measures to promote the development of collective bargaining to meet the requirements of the Convention. The Committee encourages the Government to continue to provide updated statistics on collective bargaining in practice and to continue to take measures to promote the full development and utilization of collective bargaining under the Convention.

Promotion of the Convention. The Committee takes due note of the information provided by the Government on the measures taken to strengthen the functioning of the Industrial Relations Committee, as well as on the development of cooperation programmes with national social partners and the implementation of the 2021 Action Plan to change the organization and operation of the Viet Nam Trade Union in the new situation, which the Committee understands also refers to the ongoing revision of the Trade Union Law. The Committee requests the Government to provide updates on the revision of the Trade Union Law and trusts that its comments will be taken into account in the process, so as to bring the law in line with the Convention. The Committee also requests the Government to continue providing information on other measures taken to promote the application of the Convention.