Circular No. 08/2013/TT-BLDTBXH dated June 10, 2013 of the Ministry of Labor, War Invalids and Social Affairs guiding the Government’s Decree No. 46/2013/ND-CP of May 10, 2013, detailing a number of articles of the Labor Code regarding labor disputes

THE MINISTRY OF LABOR, WAR INVALIDS AND SOCIAL AFFAIRS

Circular No. 08/2013/TT-BLDTBXH of June 10, 2013, guiding the Government’s Decree No. 46/2013/ND-CP of May 10, 2013, detailing a number of articles of the Labor Code regarding labor disputes

Pursuant to the Government’s Decree No. 46/2013/ND-CP of May 10, 2013, detailing a number of articles of the Labor Code regarding labor disputes;

Pursuant to the Government’s Decree No. 106/2012/ND-CP of December 20, 2012, defining the functions, tasks, powers and organizational structure of the Ministry of Labor, War Invalids and Social Affairs;

At the proposal of the director of the Department of Labor and Wages;

The Minister of Labor, War Invalids and Social Affairs promulgates this Circular guiding the Government’s Decree No. 46/2013/ND-CP of May 10, 2013, detailing a number of articles of the Labor Code regarding labor disputes.

Article 1. Scope of regulation

This Circular guides the recruitment, appointment, re-appointment and assignment of labor conciliators for participating in labor dispute settlement, and relief from duty of labor conciliators as prescribed in the Government’s Decree No. 46/2013/ND-CP of May 10, 2013, detailing a number of articles of the Labor Code regarding labor disputes (below referred to as Decree No. 46/2013/ND-CP).

Article 2. Subjects of application

1. Labor conciliators.

2. Employees defined in Clause 1, Article 3 of the Labor Code.

3. Employers defined in Clause 2, Article 3 of the Labor Code.

4. Grassroots representative organizations of employees’ collectives defined in Clause 4, Article 3 of the Labor Code.

5. Agencies, organizations and individuals involved in the recruitment, appointment, re-appointment and assignment of labor conciliators for participating in labor dispute settlement, and relief from duty of labor conciliators.

Article 3. Dossier of labor conciliator recruitment

1. An application for labor conciliator recruitment, made according to Form No. 01/HGV issued together with this Circular. An application of a person working in a state agency, non-business unit, political organization, socio-political organization or professional organization other than the recommending agencies and organizations specified at Point a, Clause 2, Article 5 of Decree No. 46/2013/ND-CP must obtain the consent of that agency, unit or organization.

2. A resume certified by the managing agency or the People’s Committee of the commune or ward of residence.

3. A health certificate issued by a competent health agency.

4. Copies of diplomas and certificates certified by competent agencies or organizations.

5. A written introduction for recruitment, made by the head of an agency or organization specified at Point a, Clause 2, Article 5 of Decree No. 46/2013/ND-CP, for persons recommended to apply for labor conciliator recruitment.

Article 4. Determination of numbers and recruitment of labor conciliators

1. Every urban district, rural district, town and provincial city must have labor conciliators. Based on the number of enterprises and the extent of local labor disputes in the localities, district-level Labor, War Invalids and Social Affairs Divisions shall propose chairpersons of district-level People’s Committees to decide on the number of labor conciliators.

In the fourth quarter every year, based on the extent of labor dispute settlement and the numbers of existing enterprises and labor conciliators, district-level Labor, War Invalids and Social Affairs Divisions shall propose the chairpersons of district-level People’s Committee to increase the number of labor conciliators as a basis for recruitment according to regulations.

2. Based on the criteria on labor conciliators prescribed in Article 4 of Decree No. 46/2013/ND-CP and the number of labor conciliators to be recruited, the district-level Labor, War Invalids and Social Affairs Divisions shall notify the recruitment of labor conciliators in the mass media of their localities.

3. The district-level Labor, War Invalids and Social Affairs Division shall recommend an officer under its management for appointment as labor conciliator.

4. The list of eligible persons, made according to Form No. 02/HGV issued together with this Circular, shall be reported to chairpersons of district-level People’s Committees for appointment of labor conciliators under Point c, Clause 2, Article 5 of Decree No. 46/2013/ND-CP.

Article 5. Decision on appointment of labor conciliators

A decision on appointment of a labor conciliator of the provincial-level People’s Committee chairperson is made according to Form No. 03/HGV issued together with this Circular.

Article 6. Notification of lists of labor conciliators

Lists of labor conciliators prescribed at Point g, Clause 2, Article 5 of Decree No. 46/2013/ND-CP shall be notified as follows:

1. Posting up in district-level Labor, War Invalids and Social Affairs Divisions and provincial-level Labor, War Invalids and Social Affairs Departments.

2. Publishing on websites of district-level People’s Committees and provincial-level Labor, War Invalids and Social Affairs Departments.

3. Publishing in the mass media of localities.

Article 7. Receipt of requests for labor dispute settlement and assignment of labor conciliators for participating in labor dispute settlement

1. District-level Labor, War Invalids and Social Affairs Divisions shall receive requests for conciliation of labor disputes and disputes over vocational training contracts.

2. The requesting party may propose a labor conciliator for the district-level Labor, War Invalids and Social Affairs Division to assign his/her to participate in labor dispute settlement.

3. Within 1 working day after receiving a request for labor dispute settlement, the district-level Labor, War Invalids and Social Affairs Division shall report it to the district-level People’s Committee chairperson for appointment of a labor conciliator to participate in labor dispute settlement.

4. Within 1 working day after receiving the report of the district-level Labor, War Invalids and Social Affairs Division, the district-level People’s Committee chairperson shall appoint a labor conciliator to participate in labor dispute settlement.

A decision on appointment of a labor conciliator to participate in labor dispute settlement is made according to Form No. 04/HGV issued together with this Circular.

5. Within 1 working day after receiving the decision on appointment of a labor conciliator to participate in labor dispute settlement, such labor conciliator shall notify the disputing parties of the agenda, time and venue of the conciliation session at least one working day before the conciliation.

6. When necessary, the district-level Labor, War Invalids and Social Affairs Division shall propose the chairperson of the district-level People’s Committee to request the chairperson of another district-level People’s Committee to appoint labor conciliators to assist in labor dispute settlement.

The district-level People’s Committee which requests assistance of labor conciliators shall assure working conditions for these labor conciliators under Article 7 of Decree No. 46/2013/ND-CP.

Article 8. Assessment of task accomplishment of labor conciliators

1. Annually, district-level Labor, War Invalids and Social Affairs Divisions shall assess the level of task accomplishment of labor conciliators regarding the number of cases assigned for participation, number of cases participated, number of cases of successful conciliation and compliance with the law on labor dispute settlement and decisions of chairpersons of district-level People’s Committees on appointment of labor conciliators for participating in labor dispute settlement.

2. A labor conciliator is regarded to accomplish his/her tasks when:

- He/she complies with the law on labor dispute settlement;

- He/she observes decisions of the chairperson of the district-level People’s Committee on appointment of labor conciliators for participating in labor dispute settlement.

- The number of cases of successful conciliation makes up over 50 per cent of the cases he/she has participated in.

Article 9. Relief from duty of labor conciliators

1. A labor conciliator is relieved from duty in one of the following cases:

a/ Making a written request for relief from duty of labor conciliators, made according to Form No. 05/HGV issued together with this Circular;

b/ Being assessed as failing to fulfill tasks as prescribed in Article 8 of this Circular for 2 consecutive years;

c/ Having committed violations of law, taken advantage of his/her prestige, power or responsibility to harm the interests of disputing parties or the State in the course of conciliation in one of the following cases:

- Committing one of the acts specified in Article 3 of the Law on Anti-Corruption;

- Conducting conciliation in a manner which is neither impartial nor objective.

The district-level People’s Committee chairperson shall hold a meeting to evaluate the severity of violations of a labor conciliator in the presence of this conciliator, representatives of the district-level Labor, War Invalids and Social Affairs Division and parties involved in such violations. The meeting minutes must bear the signatures of the labor conciliator and representatives of attending parties.

d/ Failing to conduct conciliation under the decision on appointment of labor conciliator of the chairperson of the district-level People’s Committee in the set time limit for two times or more without plausible reasons.

2. The written request of the chairperson of the district-level People’s Committee for relief from duty of a labor conciliator must be sent to the chairperson of the provincial-level People’s Committee enclosed with the conciliator’s written request for relief from duty (for the case specified at Point a, Clause 1 of this Article) or the district-level Labor, War Invalids and Social Affairs Division’s report on non-accomplishment of conciliation tasks (for the case specified at Point b, Clause 1 of this Article) or the meeting minutes on evaluation of the severity of the labor conciliator’s violations (for the case specified at Point c, Clause 1 of this Article).

3.  A decision on relief from duty of a labor conciliator of the provincial-level People’s Committee chairperson is made according to Form No. 06/HGV issued together with this Circular.

Article 10. Assurance of working conditions for labor conciliators

Annually, district-level Labor, War Invalids and Social Affairs Divisions shall:

1. Estimate, pay and finalize operational expenses for labor conciliators in compliance with Article 7 of Decree No. 46/2013/ND-CP and the state budget law.

2. Assure necessary conditions for conciliation of labor disputes, such as meeting rooms, documents and stationery.

Article 11. Reporting regime

1. Labor conciliators shall report the result of each conciliation case enclosed with the minutes of conciliation to district-level Labor, War Invalids and Social Affairs Divisions.

2. District-level Labor, War Invalids and Social Affairs Divisions shall manage and keep dossiers and conciliators’ minutes of labor dispute settlement; biannually or upon request report on local conciliation operations to district-level People’s Committee chairpersons and the provincial-level Labor, War Invalids and Social Affairs Departments.

3. Biannually or irregularly according to requirements of conciliation operations in their localities, provincial-level Labor, War Invalids and Social Affairs Departments shall report on the results of appointment, relief from duty and conciliation of labor disputes to the provincial-level People’s Committee chairpersons and the Ministry of Labor, War Invalids and Social Affairs.

Article 12. Effect

1. This Circular takes effect on July 1, 2013.

2. The Ministry of Labor, War Invalids and Social Affairs’s Circular No. 22/2007/TT-BLDTBXH of October 23, 2007, guiding the organization and operation of grassroots conciliation councils and labor conciliators, and previous regulations which are contrary to this Circular cease to be effective on the effective date of this Decree.

3. Any problems arising in the course of implementation should be promptly reported to the Ministry of Labor, War Invalids and Social Affairs for timely guidance and supplementation.-

For the Minister of Labor, War Invalids and Social Affairs
Deputy Minister
PHAM MINH HUAN

* All the forms mentioned in this Circular are not translated.