Circular No. 22/2007/TT-BLDTBXH dated October 23, 2007 of the Ministry of Labour, War Invalids and Social Affairs providing guidelines on organization and operation of labour conciliation councils of enterprises, and on labour conciliators

CIRCULAR

PROVIDING GUIDELINES ON ORGANIZATION AND OPERATION OF LABOUR CONCILIATION COUNCILS OF ENTERPRISES, AND ON LABOUR CONCILIATORS

Pursuant to Decree 133/2007/ND-CP of the Government dated 8 August 2002 providing detailed regulations and guidelines on a number of articles of the Labour Code as amended, regarding labour dispute resolution (hereinafter referred to as Decree 133);

Pursuant to Decree 29/2003/ND-CP of the Government dated 31 March 2003 on functions, duties, powers and organizational structure of the Ministry of Labour, War Invalids and Social Affairs;

The Ministry of Labour, War Invalids and Social Affairs hereby provides the following guidelines on the organization and operation of labour conciliation councils of enterprises (hereinafter referred to as conciliation councils) and on labour conciliators (hereinafter referred to as conciliators):

I. ORGANIZATION AND OPERATION OF CONCILIATION COUNCILS

1. Procedures to establish a conciliation council:

(a) Proposal to establish a conciliation council:

A conciliation council must be established at any enterprise which has a trade union or a provisional executive committee of a trade union. At any such enterprise, the representative of the employer must take the initiative in making a proposal to the executive committee of the trade union to establish a conciliation council.

Based on the number of employees, the location and scale of the enterprise and the organizational structure of its production and business, the representative of the employer shall debate and reach agreement with the representative of the employees being the executive committee1 or provisional executive committee of the trade union of the enterprise (hereinafter both referred to as the "executive committee of the trade union") regarding the number of members of the council (including members outside the enterprise as stipulated in article 4.3(b) of Decree 133), but membership shall not be less than four (4) persons and agreement shall be reached on selection of membership of the council to represent each party participating in the council, including the chairman and secretary.

(b) Issuance of the decision establishing the conciliation council:

Based on the results of the debate and agreement reached between the parties, the employer shall issue a decision establishing the conciliation council on the standard form issued in Appendix 1 with this Circular.

The decision establishing the conciliation council must be sent to all members of the council and to the executive committee of the trade union. Within a time-limit of five (5) business days from the date of the decision, the employer must publicly announce the decision at the enterprise and send it to the district labour body in order for the latter to monitor it.

(c) Operational rules of the conciliation council:

The chairman of the conciliation council shall be responsible, within the first half of his or her term of office, to formulate and issue the operational rules of the council after reaching agreement with the other members, on the standard form issued in Appendix 2 with this Circular. The operational rules must be sent to all members of the council, and to the executive committee of the trade union and the employer; and the rules must be publicly announced at the enterprise.

(d) Change of membership of the conciliation council:

Membership of the conciliation council may be changed, or members may be added, within the term of office of the council. Any such change must be agreed by both parties, and the employer shall issue a decision on the change and send it to all members of the council, to the executive committee of the trade union, and to the district labour body for monitoring; and the decision shall be publicly announced at the enterprise the same as the decision on establishment of the council.

2. Duties of a conciliation council:

(a) To conciliate all individual labour disputes which arise at the enterprise at the request of one or both parties to the dispute.

(b) To conciliate collective labour disputes which arise at the enterprise at the request of one or both parties to the dispute.

3. Responsibilities and powers of the conciliation council:

(a) To receive any request to conciliate a labour dispute.

(b) To obtain a firm understanding of a case, to meet with the two parties in dispute and other persons involved and witnesses, to collect data and evidence, and to request the two parties in dispute to provide all the data relevant to the conciliation.

(c) To provide a settlement proposal for consideration by the two parties in dispute.

(d) If the conciliation is unsuccessful, to report and hand over the entire file on the dispute to the body authorized to resolve the dispute in order for such body to promptly resolve the matter in accordance with law.

(dd) To provide periodical [six-monthly and annual] reports on the operation of the council to the employer, to the executive committee of the trade union and to the district labour body prior to 10 June and during December of each year, or to provide extraordinary [one-off] reports at the request of State authorities.

To provide an overall report on the operation during the term of office of the council to the employer, to the executive committee of the trade union, and to the district labour body no later than ten (10) business days prior to the expiry of term of office of the council.

(e) To hand over work to members of a new term of office of the council, including all files on cases which have been received but not heard, and all files together with settlement proposals on labour disputes which remain unsuccessfully resolved, in order for members of the new term of office to consider and resolve such cases.

4. Duties and powers of members of the conciliation council:

(a) Duties and powers of the chairman of the council:

- To executively operate all activities of the council;

- To delegate tasks to members of the council and to assist them in carrying out their duties;

- On receipt of a request to conciliate a labour dispute, to make copies of the file on the case and send one copy to each member of the council in order for each member to prepare a plan for dealing with the case;

- To preside over conciliation sessions;

- To prepare and issue the operational rules for the whole of the term, during the first half of the term of the council;

- To prepare the overall report on the operation of the term and to hand over work to the new chairman when the former chairman's term of office expires.

(b) Duties and powers of the secretary of the council:

The secretary shall assist the chairman of the council, specifically as follows:

- To receive any requests for conciliation from a party to a labour dispute;

- To prepare to hold meetings of the council;

- To record the minutes of each meeting of the council; and

- To carry out other duties as delegated by the chairman.

(c) Members of the council shall have the specific duties delegated to them by the chairman, and they must gain an understanding of cases and make settlement proposals for them, and participate in other activities of the council.

(d) Members of the conciliation council shall participate in professional training courses on conciliation and on the law on labour as arranged by all level labour bodies or by other relevant authorities, in order to upgrade their ability to conduct conciliations.

(dd) Members of the council who are people from the enterprise and who take part in conciliations or participate in professional training and upgrading courses shall be entitled to be paid their salary for such time which shall be calculated as working hours, and they shall be entitled to other regimes and benefits in accordance with the law on labour.

Members of the conciliation council who are not people from the enterprise shall be paid salary by the employer for the time and days on which they conciliate or attend professional training courses. The two parties shall agree on the level of such salary, but it shall not be less than the amount paid to labour conciliators.

II. ACTIVITIES OF LABOUR CONCILIATORS

1. Introducing people to act as labour conciliators:

Based on the special characteristics and developmental status of enterprises within the locality, the district labour body shall be responsible to propose and introduce labour conciliators to the chairman of the district people's committee. After the chairman provides approval, introduction of the labour conciliators shall be conducted as follows:

(a) The district labour body shall publish on the local mass media the names of people who satisfy the conditions stipulated in article 6.1 of Degree 133, and shall also appoint an official from the district labour body to participate as a conciliator.

(b) A request shall be made to the labour federation of the district, town or provincial city (hereinafter referred to as the district labour federation) or to the trade union of the industrial zone or export processing zone to prepare a list introducing people to act as conciliators.

2. Application file for registration as a labour conciliator:

(a) The district labour body, the district labour federation or the trade union of the industrial zone or export processing zone within the locality of the district shall prepare an application file for their member/members to register to act as conciliators and send it to the district labour body. The file shall contain the following:

- Letter introducing the potential conciliator;

- Individual file of each person introduced as a potential conciliator, including:

+ Letter of voluntary participation on the standard form issued in Appendix 3 with this Circular;

+ CV of the person proposed as a conciliator, including full name, date of birth, health status, working place or work currently being undertaken, any specialist or professional qualifications, and duration of time spent working in a labour or other legal sector;

+ Document referred to in article 6.1(b) of Degree 133 being a degree or certificate certified by the authorized body or organization regarding professional training on law, or document certifying that the proposed conciliator has worked for at least three (3) years in a labour sector at the enterprise or at another body or organization;

+ Document certifying conciliation skills or experience as referred to in article 6.1(c) of Decree 133, and certificate of having attended a professional training course on conciliation skills or a document proving that the proposed candidate has participated in conciliation activities as certified by a labour body, a legal body or the Vietnam Fatherland Front.

(b) Any individual who satisfies the conditions stipulated in article 6.1 of Decree 133 and who voluntarily wishes to participate as a labour conciliator may directly lodge an individual application file containing the items stipulated in sub-clause (a) above with the district labour body.

3. Accreditation, dismissal and administration of labour conciliators:

(a) Accreditation of labour conciliators:

Within a time-limit of fifteen (15) days from the date of receipt of a complete and valid application file, the district level labour body shall be responsible to consider the application and make a submission to the chairman of the district people's committee to issue a decision accrediting the labour conciliator, on the standard form issued in Appendix 4 with this Circular.

(b) Dismissal of labour conciliators:

A labour conciliator shall be relieved of his or her duties in the circumstances stipulated in article 6.3 of Decree 133. The district labour body shall make a submission to the chairman of the district people's committee to issue a decision relieving a labour conciliator of his or her duties, on the standard form issued in Appendix 5 with this Circular.

(c) Changing or adding labour conciliators:

In the case of any change or addition of a labour conciliator, the district labour body shall be responsible to make a submission to the chairman of the district people's committee to issue a decision accrediting the new conciliator in accordance with the procedures stipulated in sub-clause (a) above.

(d) Administration of labour conciliators:

The district labour body shall be responsible to assist the chairman of the district people's committee to administer the team of labour conciliators, and specifically as follows:

- To publicly announce the list of conciliators as accredited by the chairman of the district people's committee;

- To allocate in writing duties to conciliators and to assist them in conducting conciliations pursuant to requests from disputing parties;

- To guide conciliators to conciliate disputes correctly in accordance with law;

- To hold professional training courses on conciliation for conciliators;

- To prepare estimated budgets of expenses of conciliation activities and to conduct accounting finalization thereof in accordance with law;

- On an annual and six monthly basis, to report to the chairman of the district people's committee and to the Department of Labour on the activities of the team of labour conciliators within the locality.

4. Duties and powers of members of labour conciliators:

(a) To conciliate the labour disputes stipulated in article 7.1 of Decree 133.

(b) To accept work delegated by the district labour body and to correctly implement it in accordance with the law on resolution of labour disputes.

(c) Not to take advantage of the title of labour conciliator in order to act in breach of the law or social ethics.

(d) To obtain a firm understanding of a case, to meet with the two parties in dispute and other persons involved and witnesses, to collect data and evidence, and to request the two parties in dispute to provide all the data relevant to the conciliation.

(dd) To provide a settlement proposal for consideration by the two parties in dispute.

(e) To participate in professional training courses on conciliation and on the law on labour as arranged by all level labour bodies or by other relevant bodies and organizations.

(g) To be paid remuneration by the district labour body for the days on which they conduct conciliation of labour disputes, including days on which they research the relevant file and meet the parties in dispute in order to collate data and evidence. The amount of remuneration shall be the same as that stipulated for court sessions applicable to people's councils as stipulated in Decision 241-2006-QD- TTg of the Prime Minister of the Government dated 25 October 2006 on the regime for payment of expenses for court sessions.

III. PROCEDURES FOR CONCILIATING LABOUR DISPUTES

1. Procedures for conciliating an individual labour dispute:

(a) Receipt of the request for conciliation:

- One or both parties to a labour dispute which requests conciliation must make a request on the standard form issued in Appendix 6 with this Circular and send it to the conciliation council (in the case of a place which already has a council) or to the district labour body (in the case of a place which has not yet established a council); and

- The secretary of the council or the official appointed by the district labour body shall receive the request and record it in a register, noting the date of receipt of the request, and transfer the request to the chairman of the council or to a leader of the district labour body in order for the latter to allocate conciliation work to a conciliator.

(b) Preparation for conciliation session:

- A member of the conciliation council or the conciliator allocated to resolve the dispute must quickly grasp an understanding of the case and draft a settlement proposal;

- If the dispute is to be heard by the conciliation council, then the chairman shall arrange for a meeting

to be held in order to discuss the draft settlement proposal which must first be agreed by all members of the council; and

- Within a time-limit of three (3) days from the date of receipt of the request, the chairman of the council or the conciliator allocated to the matter must issue a written summons to the disputing parties and to any witnesses to attend a hearing, and must hold such hearing.

(c) Holding a conciliation hearing:

- The secretary of the council or a conciliator must check that the parties in dispute and other invitees are present at the session. If the parties in dispute authorize another person to appear as their representative, then the written powers of attorney must be checked. If one of the two parties in dispute fails to attend, or if a representative of a party attends but without a power of attorney, then the conciliation session shall be adjourned until the following day and the two parties shall be guided on how to correctly implement the stipulated procedures.

- When the two parties in dispute or their representatives validly attend the conciliation session, the council shall conduct the following procedures:

+ Announce the reason for the session and introduce all the people in attendance;

+ Read the request of the plaintiff;

+ The plaintiff shall be given the opportunity to explain the request;

+ The defendant shall be given the opportunity to address the meeting;

+ The council or the conciliator shall question the parties, explain the evidence and request any witnesses to give their evidence;

+ Counsel [i.e. legal representative] (if any) for either party shall address the session;

+ The conciliation council or the conciliator shall, based on the law on labour and the data and evidence, the opinions of the parties in dispute, and an analysis of the case, state the correct and the incorrect points of the two parties so that the two parties may negotiate with each other; or the conciliation council or the conciliator shall provide a settlement proposal in order for the two parties to discuss it and provide their agreement.

If the plaintiff withdraws the request, or if the two parties reach agreement between themselves, or if the two parties agree to the settlement proposal, then the conciliation council or the conciliator shall prepare minutes of conciliation on the standard form issued in Appendix 7 with this Circular. The minutes shall be signed by the two parties in dispute and by the chairman and secretary of the council or by the conciliator. The parties shall be obliged to comply with the agreements recorded in the minutes of conciliation.

If the two parties do not agree with the settlement proposal, then the conciliation council or the conciliator shall prepare minutes of unsuccessful conciliation and record the opinions of the two parties in such minutes, which must be signed by the two parties and by the chairman and secretary of the council or by the conciliator.

If one of the parties has been summonsed for the second time but still fails to attend the session without a legitimate explanation, then the council or conciliator shall prepare minutes of an unsuccessful conciliation and record in the minutes the opinion of the party in attendance. The minutes shall be signed by the party in attendance and by the chairman and secretary of the council or by the conciliator.

Minutes of conciliation must be copied and sent to the two parties to the dispute within one (1) business day from the date on which the minutes were prepared.

2. Procedures for conciliating a collective labour dispute:

(a) Receipt of the request for conciliation:

Procedures for receipt of a request for conciliation of a collective labour dispute shall be implemented the same as the procedures applicable to an individual labour dispute in clause 1(a) above of this Section III.

A request for conciliation of a collective labour dispute shall be sent to the district labour body if such dispute arose in a place which does not yet have a conciliation council; or it shall be sent [to the conciliator] in a case where the executive committee of the trade union or the representative of the labour collective agree with the employer to select a conciliator to resolve the dispute.

(b) Preparation of the conciliation session:

Preparation of the conciliation session of a collective labour dispute shall be implemented the same as the procedures applicable to an individual labour dispute in clause 1(b) above of this Section III.

(c) Holding the conciliation:

The conciliation session of a collective labour dispute shall be held the same as stipulated for conciliation of an individual labour dispute in clause 1(c) above of this Section III.

If the representative of one or both parties to the dispute is a member of a conciliation council, then [another] representative must be appointed to attend the conciliation session correctly in accordance with law.

3. Language to be used throughout the conciliation process:

Both written and spoken Vietnamese must be used throughout the process of conciliating a labour dispute. If one or both parties does not know Vietnamese, then the employer shall be responsible to arrange for a qualified translator to assist throughout the conciliation process.

IV. IMPLEMENTING PROVISIONS

1. Responsibilities of Departments of Labour:

(a) To guide district labour bodies to organize and establish conciliation councils and to administer conciliators in order to correctly resolve labour disputes in accordance with the provisions of the Labour Code, Decree 133 and this Circular.

(b) To co-ordinate with the district labour federation in disseminating the law on labour, and in fostering the professional role of conciliators.

(c) To keep informed on the status of labour disputes and their resolution within the locality.

(d) To provide six monthly and annual reports on the status of labour disputes and their resolution in local enterprises and to send such reports to the Ministry of Labour prior to 20 June and in December of each year, or to provide extraordinary [one-off] reports on request.

2. Responsibilities of Chairmen of District People's Committees:

(a) To resolve collective labour disputes about rights which arise within the locality, correctly in accordance with law.

(b) To direct district labour bodies and other functional officers to keep abreast of the status of labour disputes and to promptly report on any matters arising during the process of the occurrence of labour disputes and their resolution so that the chairman may have an appropriate plan on resolving such issues, aimed at developing conciliation within local labour relationships.

(c) To make decisions on accreditation and on dismissal of conciliators within the locality, pursuant to clause 3(c) of Section II of this Circular.

3. Responsibilities of District Labour Bodies:

(a) To preside over co-ordination with the district labour federation or equivalent body in guiding the organization, establishment and operation of conciliation councils, and in fostering the professional role of members of such councils and of conciliators.

(b) To propose, introduce and submit to the chairman of the district people's committee to accredit or dismiss conciliators; and to administer conciliators in accordance with the provisions of Section II of the Circular.

(c) To ensure there is a working location and the other necessary facilities for conciliators to conduct conciliations of disputes which are unable to be resolved at the enterprise.

(d) To keep abreast of the organization and operation of conciliation councils, and of the status of labour disputes occurring at enterprises within the locality and of the resolution of such disputes; to provide periodical reports on such labour disputes and their resolution, and to promptly make recommendations regarding any difficulties during the process of resolution of labour disputes on a six monthly basis prior to 15 June and on an annual basis prior to December in any one year, or to provide extraordinary reports to the Department of Labour on request in order for the latter to consider or for the authorized body to promptly resolve.

4. Responsibilities of District Labour Federations or Equivalent Bodies:

(a) To introduce members who satisfy the conditions in order to act as conciliators as stipulated in Decree 133 and this Circular.

(b) To guide the executive committee of the trade union at an enterprise or the provisional executive committee of the trade union to correctly implement the law on resolution of labour disputes and to participate in conciliation aimed at protecting the lawful rights and interests of members of the trade union and of employees within such enterprise.

(c) To preside over co-ordination with the district labour body in guiding the appointment of the representative of the labour collective at an enterprise in order to correctly resolve labour disputes in accordance with the Labour Code, Decree 133 and this Circular.

5. Responsibilities of Enterprises:

Within a time-limit of three (3) months from the date this Circular takes effects, enterprises shall be responsible to strengthen or re-consolidate their conciliation councils (applicable to enterprises which have already established a council), or must establish a labour conciliation council if they have not already done so, correctly in accordance with Decree 133 in this Circular.

In the case of enterprises established after the date on which this Circular takes effect, they must establish a labour conciliation council as stipulated no later than six (6) months from the date on which the enterprise commenced operation.

6. Effectiveness:

(a) This Circular shall be of full force and effect fifteen (15) days after the date of its publication in the Official Gazette.

(b) The following Circular is hereby repealed: Circular 10/LDTBXH-TT of the Ministry of Labour, War Invalids and Social Affairs dated 25 March 1997 on labour conciliation councils of enterprises.

(c) Any difficulties during the process of implementation of this Circular should be reported to the Ministry of Labour, War Invalids and Social Affairs for prompt resolution.