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

THE GOVERNMENT

Decree No. 46/2013/ND-CP of May 10, 2013, detailing a number of articles of the Labor Code regarding labor disputes

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the June 18, 2012 Labor Code;

At the proposal of the Minister of Labor, War Invalids and Social Affairs;

The Government promulgates the Decree detailing a number of articles of the Labor Code regarding labor disputes.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree provides criteria for, and competence to appoint, labor conciliators; postponement and cancellation of strikes, and settlement of rights and benefits of employees’ collectives in case of postponement or cancellation of strikes.

Article 2. Subjects of application

1. Labor conciliators appointed by competent agencies.

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. Representative organizations of grassroots-level employees’ collectives defined in Clause 4, Article 3 of the Labor Code.

5. Agencies, organizations and individuals related to the implementation of criteria for, and competence to appoint, labor conciliators, postponement and cancellation of strikes, and settlement of rights and benefits of employees’ collectives in case of postponement or cancellation of strikes.

Article 3. Interpretation of terms

In this Decree, the terms below are construed as follows:

1. Labor conciliator means a person who is appointed by the chairperson of the provincial-level People’s Committee for a 5-year term to conciliate labor disputes and disputes over vocational training contracts in accordance with law.

2. Postponement of a strike means delaying the starting time of a strike fixed by a trade union executive committee in its strike decision which has been sent to the employer, the provincial-level state management agency of labor and the provincial-level trade union to another time under the decision of the chairperson of the provincial-level People’s Committee.

3. Cancellation of a strike means stoppage of an ongoing strike until there is no more risk of causing serious damage to the national economy and public interests under the decision of the chairperson of the provincial-level People’s Committee.

Chapter II

LABOR CONCILIATORS

Article 4. Criteria for labor conciliators

1. Being Vietnamese citizens who are physically fit and have full civil act capacity and good ethics.

2. Neither being examined for penal liability nor serving a sentence.

3. Being knowledgeable about the labor law and relevant laws.

4. Having 3 years’ working in fields related to industrial relations, and skills for conciliating labor disputes.

Article 5. Competence, order and procedures for appointment and re-appointment of labor conciliators

1. Chairpersons of provincial-level People’s Committees may appoint and re-appoint labor conciliators.

2. Order and procedures for appointment of labor conciliators:

a/ Self-registering or being introduced by the district-level Labor, War Invalids and Social Affairs Division, the district-level trade union, the trade union of an industrial park or export processing zone for labor conciliator recruitment;

b/ A dossier of labor conciliator recruitment comprises:

- An application for labor conciliator recruitment;

- Resumes;

- Health certificate;

- Copies of diplomas and certificates (if any);

- Written introduction for recruitment, made by an agency or organization defined at Point a of this Clause.

c/ Within 20 working days after the deadline for receipt of dossiers, the district-level Labor, War Invalids and Social Affairs Division shall make a list of eligible persons and report it to the chairperson of the district-level People’s Committee;

d/ Within 5 working days after receiving the report of the district-level Labor, War Invalids and Social Affairs Division, the chairperson of the district-level People’s Committee shall send a written proposal on appointment of labor conciliators to the chairperson of the provincial-level People’s Committee, and concurrently to the director of the provincial-level Labor, War Invalids and Social Affairs Department for appraisal and submission to the chairperson of the provincial-level People’s Committee;

dd/ Within 10 working days after receiving the district-level People’s Committee chairperson’s written proposal on appointment of labor conciliators, the director of the provincial-level Labor, War Invalid and Social Affairs Department shall appraise and submit it to the chairperson of the provincial-level People’s Committee for consideration and decision, and concurrently send it to the district-level People’s Committee chairperson who makes the proposal;

e/ Within 5 working days after receiving the provincial-level Labor, War Invalids and Social Affairs Department director’s written proposal, the chairperson of the provincial-level People’s Committee shall issue a decision to appoint labor conciliators;

g/ Within 5 working days after receiving the provincial-level People’s Committee chairperson’s decision on appointment of labor conciliators, the director of the provincial-level Labor, War Invalids and Social Affairs Department and the chairperson of the district-level People’s Committee shall notify the list of labor conciliators to the employer, the representative organization of the grassroots-level employees’ collective and employees.

3. Order and procedures for re-appointment of labor conciliators

a/ Within 3 months before the end of the term of a labor conciliator, the district-level Labor, War Invalids and Social Affairs Division shall assess his/her accomplishment of tasks and the conciliation demand in the locality, and report the re-appointment of the labor conciliator to the chairperson of the district-level People’s Committee;

b/ The order and procedures for re-appointment of labor conciliators comply with Points d, dd, e and g, Clause 2 of this Article.

Article 6. Relief from duty of labor conciliators

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

a/ Filing a written request for relief from duty of labor conciliator;

b/ Failing to fulfill his/her conciliation tasks;

c/ Having committed law-breaking acts, taken advantage of his/her prestige, competence or responsibility to ham the interests of disputing parties or the State in the course of conciliation, or refused the conciliation tasks twice or more without plausible reasons when being assigned to settle labor disputes or disputes over vocational training contracts.

2. Competence, order and procedures for relief from duty of labor conciliators

a/ Chairpersons of provincial-level People’s Committees may decide on relief from duty of labor conciliators at the proposal of chairpersons of district-level People’s Committees and directors of provincial-level Labor, War Invalids and Social Affairs Departments;

b/ District-level Labor, War Invalids and Social Affairs Divisions, based on the written request for relief from duty of labor conciliators, extent of non-accomplishment of tasks or law-breaking acts of labor conciliators, shall report the relief from duty of labor conciliators to chairpersons of district-level People’s Committees;

c/ The order and procedures for relief from duty of labor conciliators comply with Points d, dd, e and g, Clause 2, Article 5 of this Circular.

Article 7. Assurance of working conditions for labor conciliators

1. On the days they are assigned to conciliate labor disputes, labor conciliators are entitled to enjoy an allowance applicable to people’s jurors according to regulations on the allowance regime for persons participating in court hearings and meetings to settle civil cases; have working trip expenses paid according to the current regime of working trip expenses, and be ensured necessary conditions for conciliation of labor disputes, such as meeting rooms, documents and stationery.

2. Funds for activities of labor conciliators are allocated from the state budget according to current regulations on budget management decentralization. The estimation, management and settlement of funds for activities of labor conciliators comply with the state budget law.

Chapter III

POSTPONEMENT AND CANCELLATION OF STRIKES

Article 8. Cases of postponement and cancellation of strikes

1. Strikes which are expected to be organized at units providing electricity, water, public transport and other services directly related to the organization of meetings to celebrate the Victory Day, the International Labor Day or the National Day.

2. Strikes which are expected to be organized in localities where natural disaster, fire or epidemic prevention and mitigation activities are taking place or a state of emergency is imposed in accordance with law.

3. Strikes happening in a locality where a natural disaster, fire or epidemic occurs or a state of emergency is imposed in accordance with law.

4. Strikes happening for three days in a row at units providing electricity, water or public sanitation services, which affect the environment, living conditions and health of people in provincial cities.

5. Strikes involving acts of violence and disturbance, affecting the assets and life of investors, causing insecurity and public disorder, and affecting activities of communities at the places where the strikes take place.

Article 9.  Procedure for postponing strikes

1. Procedures for postponing strikes are provided as follows:

a/ When receiving the decision to go on strike of the executive committee of the trade union, if seeing that the strike falls in one of cases specified in Clauses 1 and 2, Article 8 of this Decree, the director of the provincial-level Labor, War Invalids and Social Affairs Department shall discuss with the chairperson of the district-level People’s Committee, and report it to the chairperson of the provincial-level People’s Committee for decision on postponement of the strike.

A written proposal for postponement of a strike sent to the chairperson of the provincial-level People’s Committee includes: the name of the enterprise of the employees’ collective on strike; the expected place of the strike; the expected starting time of the strike; demands of the employees’ collective; reasons for postponement of the strike; proposal for postponement of the strike; postponement period and measures for implementation of the strike postponement decision of the chairperson of the provincial-level People’s Committee;

b/ Based on the proposal of the director of the provincial-level Labor, War Invalids and Social Affairs Department, the chairperson of the provincial-level People’s Committee shall issue a decision to postpone the strike, and immediately notify it to the chairperson of the district-level People’s Committee, the president of  the provincial-level Federation of Labor and the chairperson of the Labor Arbitration Council, the executive committee of the grassroots trade union or the immediate higher-level trade union, for an enterprise where a trade union has not been established and the employer of enterprise where the strike is expected to be organized.

2. Within 48 hours after the director of the provincial-level Labor, War Invalids and Social Affairs Department receives the decision to go on strike of the executive committee of the grassroots trade union, the chairperson of the provincial-level People’s Committee shall issue a decision to postpone the strike.

3. Within 24 hours after receiving the strike postponement decision of the chairperson of the provincial-level People’s Committee, related agencies and organizations shall postpone the strike.

Article 10. Procedures for canceling strikes

1. Procedures for canceling strikes are provided as follows:

a/ When considering that an ongoing strike falls in one of cases specified in Clauses 3, 4 and 5, Article 8 of this Decree, the district-level Labor, War Invalids and Social Affairs Division shall report on cancellation of the strike to the chairperson of the district-level People’s Committee;

b/ After receiving the district-level Labor, War Invalids and Social Affairs Division’s report, the chairperson of the district-level People’s Committee shall consider and propose the chairperson of the provincial-level People’s Committee to issue a decision to cancel the strike, and currently send its proposal to the director of the provincial-level Labor, War Invalids and Social Affairs Department.

A written proposal for cancellation of a strike sent to the chairperson of the provincial-level People’s Committee includes: the name of the enterprise of the employees’ collective on strike; the place of the strike; the starting time of the strike; the scope of the strike; the number of  employees on strike; demands of the employees’ collective; reasons for cancellation of the strike; proposal for cancellation of the strike, and measures for implementation of the strike cancellation decision of the chairperson of the provincial-level People Committee;

c/ When receiving the district-level People’s Committee chairperson’ proposal for cancellation of the strike, the director of the provincial-level Labor, War Invalids and Social Affairs Department shall send his/her opinion to the chairperson of the provincial-level People’s Committee for consideration and decision.

d/ Based on the district-level People’s Committee chairperson’s proposal for cancellation of the strike and the provincial-level Labor, War Invalids and Social Affairs Department director’s opinion, the chairperson of the provincial-level People’s Committee shall consider and issue a decision to cancel the strike.

The provincial-level People’s Committee chairperson’s strike cancellation decision  must be immediately notified to the chairperson of the district-level People’s Committee, the director of the provincial-level Labor, War Invalids and Social Affairs Department, the president of the provincial-level Federation of Labor, the chairperson of the Labor Arbitration Council, the executive committee of the grassroots trade union or the immediate higher-level trade, for an enterprise where a trade union has not been established and the employer of the enterprise where the strike is taking place.

2. Within 12 hours after the chairperson of the district-level People’s Committee receives the district-level Labor, War Invalids and Social Affairs Division’s report, the chairperson of the provincial-level People’s Committee shall issue a decision to cancel the strike.

3. Within 12 hours after receiving the strike cancellation decision of the chairperson of the provincial-level People’s Committee, related agencies and organizations shall cancel the strike.

4. Within 48 hours after receiving the strike cancellation decision of the chairperson of the provincial-level People’s Committee, the chairperson of the district-level People’s Committee shall report on the strike cancellation result to the chairperson of the provincial-level People’s Committee.

Article 11. Settlement of employees’ collectives’ demands in case of postponement or cancellation of strikes

Within the time limit for implementation of the strike postponement or cancellation decision of the chairperson of the provincial-level People’s Committee, the Labor Arbitration Council shall conciliate labor disputes in accordance with the labor law.

In case of unsuccessful conciliation and past the time limit for postponement or cancellation of the strike under the decision of the chairperson of the provincial-level People’s Committee, the executive committee of the trade union may continue organizing the strike, but shall notify it in writing to the employer, the provincial-level state management agency of labor and the provincial-level trade union at least 5 working days before resuming the strike.

Article 12. Rights and responsibilities of employees in case of cancellation of strikes

1. When the executive committee of the trade union requests cancellation of the strike under the decision of the chairperson of the provincial-level People’s Committee, the employees shall return to work and be paid with wages.

2. After the executive committee of the trade union requests cancellation of the strike under the decision of the chairperson of the provincial-level People’s Committee, the employees failing to return to work will not be paid with pages, and be disciplined based on the seriousness of violations according to internal working regulations and laws.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 13.  Effect

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

2. The Government’s Decree No. 133/2007/ND-CP of August 8, 2007, detailing and guiding a number of articles of the Law Amending and Supplementing a Number of Articles of the Labor Code regarding labor disputes, and Decree No. 12/2008/ND-CP of January 30, 2008, on postponement or cancellation of strikes and settlement of interests of employees’ collective interests cease to be effective on the date this Decree takes effect.

Article 14. Implementation responsibilities

1. The Minister of Labor, War Invalids and Social Affairs shall guide this Decree.

2. Ministers, heads of ministerial-level agencies, heads of government-attached agencies and chairpersons of provincial-level People’s Committees shall implement this Decree.-

On behalf of the Government
Prime Minister
NGUYEN TAN DUNG