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Chapter XIV SETTLEMENT OF LABOR DISPUTES

Thứ năm - 28/03/2013 16:00

Section 1. GENERAL PROVISIONS ON SETTLEMENT OF LABOR DISPUTES
Article 194. Principles of settlement of labor disputes
1. Respecting and ensuring to let the parties negotiate and decide in the settlement of labor disputes by themselves
2. Ensuring the implementation of conciliation and arbitration on the basis of respect for the rights and interests of both parties, respect for the common good of society and not contrary to law.
3. Being public, transparent, objective, timely, rapid and lawful.
4. Ensuring the participation of representatives of the parties during the process of settlment of labor disputes.
5. The settlement of labor disputes must be directly negotiated by the two parties firstly to settle the harmonious interests of the two parties, stabilize the production and business and to ensure the social order and safety.
6. The settlement of labor disputes by the agencies, organizations and individuals having the competence to settle the labor disputes is conducted after either party files a requesting application due to the refusal of negotiation by either party, negotiation done but failed or successful negotiation but either party fails to perform the agreement.
Article 195. Responsibilities of agencies, organizations and individuals in settlement of labor disputes
1. The State management agencies on labor shall be responsible for coordianting with the trade union organization, the representative organization of the employer to make guidance and support and assist the parties in the settleement of labor disputes.
2. The Ministry of Labour - Invalids and Social Affairs shall organize the training to improve the professional capacity of the labor mediator, labor arbitrator in the settlement of labor disputes.
3. The State competent agency must actively and promptly settle the collective labor disputes on the rights.
Article 196. Rights and obligations of both parties in the settlement of labor disputes
1. In the settlement of labor disputes, both paties have the following rights
a) Directly or through the representatives to participate in the process of settlement;
b) Withdrawing application or changing the requested content;
c) Requesting the change of the person who settles the labor dispute if there is reason to believe that such person is not impartial or objective.
2. In settlement of labor disputes, both parties have the obligations:
a) Providing adequate and timely documentation and evidence to prove their claims;
b) Executing the agreements both parties have reached, the judgment or decision that has taken the legal effect.
Article 197. Rights of agencies, organizations and individuals with the comptence to settle labor disputes
The agencies, organizations and individuals having the competence to settle the labor disputes within the scope of their duties and powers may request the disputing parties, the agencies, organizations and individuals concerned to provide financial data, evidence, solicit expertise, witnesses and the persons concerned.
Article 198. Labor mediator,
1. The labor conciliator is appointed by the State management agency on labor at district, town and provincial city level to settle the labor disputes and disputes on vocational training contracts.
2. The Government regulates the standard and authority for appoitment of labor mediator.
Article 199. Labor arbitration Council
1. The Chairman of provincial People's Committee shall decide to establish the labor arbitration Council. The labor arbitration Council includes the Head of the state management on labor, secretary of the Council and members who are the provincial trade union representatives, representative organizations of the employer. The number of members of the labor arbitration Council is an odd numbe and not execeeding 07 people.
In necessary case, the Chairman of the Labor Arbitration Council may invite the representatives of agencies and organizations concerned and the person who has experience in the area of labor relations at the locality.
2. The Labor Arbitration Council conducts the reconciliation of the collective labor disputes as follows:
a) Collective labor disputes on interests;
b) Collective labor dispute occurs at the labor employment units that are not entitled to go on strike under the list regulated by the Government.
3. The labor arbitration Council makes a decision by majority in the form of secret ballot voting.
4. The provincial People's Committee shall ensure the necessary conditions for the activities of the labor arbitration Council.
Section 2. AUTHORITY AND ORDER OF PERSONAL LABOR DISPUTE SETTLEMENT
Article 200. Agencies and individuals with the competence to settle individual labor disputes
1. The labor mediator
2..The People's Court
Article 201. Mediation order and procedures for labor dispute of the labor mediator
1. The personal labor dispute must be through the mediation procedures of the labor mediator before requiring the Court to settle except for the following labor disputes without having to go through the mediation procedures:
a) On the labor discipline in the form of dismissal or disputes over the case of unilateral termination of labor contract;
b) Regarding the compensation and allowance upon termination of labor contract;
c) Between the housemaid with the employer;
d) On the social insurance in conformity with the law on social insurance and health insurance as prescribed by the law on health insurance.
dd) Regarding the compensation between the employee and the enterprise, non-business units that send the employee to work overseas under contracts.
2. Within 05 working days after receiving the request for mediation, the labor mediator must end the mediation.
3. At the mediation meeting, there must be the presence of both disputing parties. The disputing parties may authorize the others to join the mediation meeting.
The labor mediator shall guide the parties to negotiate. Where the two parties reach agreement, the labor mediator shall make a record of successful mediation.
Where the two parties can not reach agreement, the labor mediator shall give out a mediatory plan for both parties to consider. Where the two parties accept the mediatory plan, the labor mediator shall make a record of successful mediation.
Where the two parties do not accept the mediatory plan or a disputing party has been duly summoned twice but still absent without plausible reasons, the mediator shall make a record of unsuccessful mediation.
The record shall bear the signatures of both disputing parties and the labor mediator.
Copy of the record of successful mediation or unsuccessful mediation must be sent to both disputing parties within 01 working day from the date of making the record
4. In case of unsuccessful mediation or either party does not perform the agreements in the record of successful mediation or the time limit for settlement is over as prescribed in clause 2 of this Article but the labor mediator does not conduct the mediation, each disputing party has the right to request the settlement from the Court.
Article 202. Limitation for request of settlement of personal labor disputes
1. The limitation to request the labor mediator to perform the mediation of personal labor disputes is 06 months from the date of discovery of the acts whereby the disputing parties thinks that their rights and legitimate interests have been breached.
2. The limitation to request the court to settle individual labor disputes is 01 years from the date of discovery of the act whereby the disputing parties thinks that their rights and legitimate interests have been breached.
Section 3. COMPETENCE AND ORDER FOR SETTLEMENT OF COLLECTIVE LABOUR DISPUTES
Article 203. Agencies, organizations and individuals with the competence to settle the collective labour disputes
1. The agencies, organizations and individuals with the competence to settle the collective labour disputes including:
a) Labor mediator;
b) Chairman of the People's Committees of districts, towns and provincial cities (hereinafter referred to as chairman of the district-level People’s Committee).
c) People’s Court.
2. The agencies, organizations and individuals with the competence to settle the the collective labour disputes with respect to interests including:
a) Labor mediator;
b) Labor arbitration Council.
Article 204. Order of settlement of collective labor dispute at the grassroots level
1. The order of settlement of collective labor dispute at the grassroots level is executed as prescribed in the Article 201 of this Code. The record of mediation must specify the type of collective labor dispute.
2. In case of unsuccessful mediation or either party fails to perform the agreements in the record of mediation, the following provisions shall apply:
a) For the collective labor disputes on the rights, the parties have the right to request the Chairman of district-level People’s Committee for settlement;
b) For the collective labor disputes on the interests, the parties have the right to request the labor arbitration Council for settlement;
3. In case the time limit of the settlement is over as stipulated in Clause 2 of Article 201 of this Code but the labor mediator does not conduct the mediation, the parties have the right to submit petition to the district-level People’s Committee Chairman for settlement.
Within 02 working days after receiving the request for settlement of collective labor disputes, the Chairman of district-level People’s Committee shall determine the type of dispute of about the rights or interests
In case of collective labor dispute on the rights, the settlement shall be performed as stipulated in clause 2 of this Article and Article 205 of this Code.
In case of collective labor dispute on the interests, the parties requesting the settlement of dispute shall be guided immediately under the provisions in point b, clause 2 of this Article.
Article 206. Settlement of collective labor disputes on the rights of the Chairman of district Peoples’ Committee.
1. Within 05 working days after receipt of request application for settlement of collective labor disputes on the rights, the chairman district-level People's Committees shall have to settle the labor disputes.
2. At the meeting to settle the labor disputes, there must be the representatives of both disputing parties. In necessary cases, the Chairman of district-level People's Committee shall invite the representatives of the agencies and organizations concerned to attend the meeting.
The Chairman of district-level People's Committee shall rely on the law on labor, collective labor agreement and the labor rule registered and the other legal regulations and agreements for consideration and settlement of labor disputes.
3. In the event the parties do not agree with the decision of Chairman of district-level People's Committee or if the deadline is over but the Chairman of district-level People's Committee does not settle, the parties have the right request the settlement from the Court.
Article 206. Settlement of collective labor disputes on the interests of the labor arbitration Council
1. Within 07 working days after receiving the application for settlement request, the labor arbitration council must finish the mediation.
2. At the meeting of the labor arbitration council, there must be the representatives of both parties. In necessary case, the Labor Arbitration Council shall invite the representatives of agencies, organizations and individuals concerned to attend the meeting.
The Labor Arbitration Council shall assist the parties to negotiate themselves, where the two parties fail to negotiate; the labor arbitration council shall offer a plan for both parties to consider.
In case the two parties reach agreement or accept the mediation plan, the labor arbitration Council shall make a record of successful mediation at the same time make a decision on recognizing the agreement of the parties.
In case the two parties fail to reach agreement or a disputing party has been duly summoned for the second time but still absent without plausible reason, the labor arbitration Council shall make a record of unsuccessful mediation
The record has the signatures of the present parties, the Chairman and secretary of the labor arbitration council.
The copy of record of successful mediation or unsuccessful mediation must be sent to both disputing parties within 01 working day from the date of making record.
3. After a period of 05 days from the date the Labor Arbitration Council sets up the record of successful mediation but one of the parties does not execute the agreement that has been reached, the labor collective has the right to conduct the procedures to go on strike.
In case the Labor Arbitration Council sets up the record of unsuccessful mediation, after a period of 03 days, the labor collective has the right to conduct the procedures to go on strike.
Article 207. Limitation of request for the settlement of collective labor dispute on the rights
The limitation of request for the settlement of collective labor dispute on the rights is 01 year from the date of discovery of the acts that the disputing parties think that their rights and interests are breached.
Article 208. Prohibiting unilateral action while the collective labor disputes under settlement
When the collective labor disputes are being settled by the competent agencies, organizations and individuals within the time limit prescribed by this Code, neither party has the right to take unilateral action against the other.
Section 4. STRIKE AND SETTLEMENT OF STRIKE
Article 209. Strike
1. The strike is the temporary, voluntary and organizational stopping of work of the labor collective in order to meet the requirements in the process of settlment of labor disputes.
2. The strike is only conducted for the collective labor disputes on the interests and after the time limit prescribed in Clause 3, Article 206 of this Code.
Article 210. Organization and leadership of strike
1. Where there is not grassroots trade union, strike must be orgnized and led by the the grassroots trade union executive committee.
 2. Where there is not grassroots trade union, strike must be orgnized and led by the the superior trade union organization at the request of the employee.
Article 211. Strike order
1. Gathering opinion of the labor collective
2. Making a decision on strike
3. Conducting strike
Article 212. Procedures for gathering opinion of the labor collective
1. For a labor collective with the grassroots trade union organization, gather the opnions from the member of the grassroots trade union executive committee and the heads of production teams. Where there is not grassroots trade union, gather the opnions of the heads of production teams or of the employee.
2. The organization of opinion gathering may be made ​​by card or signature.
3. Content of opinion gathering for strike including:
a) The plan of the trade union executive committee on the contents prescribed at Points b, c and d, Clause 2 of Article 213 of this Code;
b) Opinions of employees on the agreement or disagreement with the strike.
4. The time and form of opinion gathering for strike shall be decided by the trade union executive committee and must be announced to the employer thereof at least 01 days.
Article 213. Notice the starting time for the strike
1. When there is more than 50% of the people gathered their opnions agree with the plan of the union executive Committee, the trade union executive committee shall make a decision on strike in writing.
2. The decision on strike must have the following contents:
a) Result of opnion gathering on strike;
b) Starting time and place for the strike;
c) Scope of strike conducting;
d) Request of labor collective;
dd)ull name of the representative of the union executive Committee.
3. At least 05 working days prior to the starting day of the strike, the trade union executive committee shall send the strike decision to the employer, at the same time send 01 copy to the provincial State management agencies on labor, 01 copy to the provincial trade union.
4. At the time the strike starts, if the employer does not accept to settle the requirements of the labor collective, the trade union executive committee shall organize and lead the strike.
Article 214. Rights of the parties before and in the course of strike
1. To keep on agreement to settle the contents of collective labor disputes or jointly request the State management agency on labor, trade union organization and representative organization of the employer at provincial level to conduct the mediation.
2. The trade union executive committee has the following rights:
a) To withdraw the decision on strike if strike has not conducted yet or stop the strike if it is underway;
b) To require the Court to declare the strike is legitimate
3. The employer has the following rights
a) To accept the whole or a part of the requirements and give notice in writing to the Trade Union Executive Committee of union organizing, leading strikes;
b) To temporarily close the workplace during the strike due to ineligible to maintain the normal operation or to protect property;
c) To request the Court to declare the strike illegal.
Article 215. Cases of illegal strike
1. Not to arise from the collective labor disputes on the interests
2. To organize for the employees who donot work for the same employer to go on strike.
3. When the collective labor disputes have not been or are being settled by the agencies, organization and individual as prescribed by this Code
4. To be conducted at enterprises that are not entitled to go on strike under the list prescribed by the Government.
5. When there is a decision to delay or stop going on strike.
Article 216. Announcing decision on temporary closure of the workplace
At least 03 working days before the temporary closure of the workplace, the employer shall publicly posted the decision on temporary closure of the workplace and announce to the following agencies and organization:
1. The trade union executive committee organizing and leading the strike;
2. Provicial-level trade union;
3. The representative organization of the employer;
4. The State management agency on labor;
5. The district-level People’s Committee where the head office located.
Article 217. Cases of prohibiting the temporary closure at the workplace
1. Before 12 hours from the time of the strike specfied in the decision on strike.
2. After the labor collective stop the strike.
Article 218. Salary and other legal interests of the employee during the strike.
1. The employee who does not participate in the strike but has to stop working because of strike is paid for the stop of working as prescribed in Clause 2, Article 98 of this Code and other interests under the provisions of labor law.
2. The employee who takes part in the strike shall not be paid and other interests as prescribed by the law, unless otherwise agreed by both parties.
Article 219. Acts prohibited before, during and after the strike
1. To hinder the implementation of the right to strike or incite, induce or coerce the employee to go on strike; prevent the employee who does not take part in the strike from going to work.
2. To use violence; destroy machinery, equipment and property of the employer.
3. To infringe the public order and safety
4. To terminate the labor contract or handle the labor discipline to the employee, the strike leader, or appoint the employee and the strike leader to perform another job or go to work at other places because of strike preparation or strike participation.
5. To retaliate and revenge the employee for participating in the strike and the person leading the strike.
6. To take advantage of the strike to commit other acts of violations of the law.
Article 220. Prohibited cases of strike
1. Strikes are prohibited at the units using employee and essentially operating to the national economy because the strike may threaten the security, national defense, health and public order under the list issued by the Government.
2. The State management agencies must periodically listen the opinions of the labor collective and the employer to assist and resolve the legitimate requirements of the labor collective in a timely manner.
Article 221. Decision on postponement and stop of strike
When considering that the strike may cause serious damage to the national economy and the public interest, the Chairman of the provincial People's Committee shall decide to postpone or stop the strike and ask for settlement from the competent state agencies and authorities
The Government stipulates the postponement and stop of strike and settlement of interest of the labor collective
Article 222. Handling the strike with improper order and procedures
1. The Chairman of provincial People's Committee shall make a decision on declaring the strike has breached the order and procedures and immediately notify the Chairman of district-level People's Committee as the organization and leading of the strike do not comply with the Article 212 and Article 213 of this Code.
2. Within 12 hours after receiving notice of the Chairman of provincial People's Committee, the Chairman of district-level People's Committees shall preside over and coordinate with the State management agency on labor and trade union at the same level and other agencies and organizations directly concerned to meet with the employer and the grassroots trade union executive committee or the superior trade union to hear the parties’ opinions and support them to find the measures for settlement and put the operation of production and business back to normal condition.
Section 5. COURT’S CONSIDERATION OF LEGALITY OF THE STRIKE
Article 223. Requesting the Court to consider the legality of the strike
1. During the strike or in the period of 03 months, from the date of termination of the strike, each party has the right to submit petitions to the Court to request the consideration of legality of the strike.
2. The petition must have the following main contents:
a) Date, month, year of the petition;
b) Name of the Court receiving petition;
c) Name and address of the requesting party;
d) Name and address of the organization leading the strike;
dd) Name and address of the employer where the labor collective go on strike;
e) Content to request the Court’s settlement;
g) Other information that the requesting party deem necessary for the settlement.
3. The requesting party must send together with the petition the copies of strike decision, decision or the record of mediation of the competent agencies and organizations to settle the collective labor dispute, materials and evidence related to the consideration of the legality of the strike.
Article 224. Procedures for submitting petition to request the Court’s consideration of the legality of the strike
Procedures for petition submission, receipt, obligation to provide materials and evidence for the consideration and decision on the legality of the strike at the Court are made ​​similarly to the procedures for petition submission, receipt; obligation to provide materials under the provisions of the Code of civil procedure.
Article 225. Competence to consider the legality of the strike
1. The provincial People's Court where the strike takes place has jurisdiction to consider the legality of the strike
2. The Supreme People's Court has jurisdiction to settle the complaints about the legality of the strike.
Article 226. Members of the legality consideration Council of the strike
1. The legality consideration Council of the strike consists of three judges
2. The Council to settle complaints against the decisions on the legality of the strike, including three judges appointed by the Chief Justice Supreme People's Court.
3. The change of judge as a member of the legality consideration Council of the strike is carried out under the provisions of the Code of civil procedure.
Article 227. Procedures for settlement of the petition to request the consideration of the strike.
1. Immediately after receiving the petition, the Tribunal President of the provincial People's Court shall decide to establish a Council to consider the legality or illegality of the strike and assign a judge to preside over the resolution of the petition.
2. Within 05 working days from the date of receiving the petition, the judge assigned to preside over the resolution of the petition must make a decision to put the legality of the strike into consideration. The decision to open a meeting to consider the legality of the strike must be sent to the Trade Union Executive Committee, the employer, agencies and organizations concerned.
3. Within 05 working days from the date of making the decision to consider the legality of the strike, the legality consideration Council of the strike must open the meeting to consider the legality of the strike.
Article 228. Suspending the consideration of the legality of the strike
The Court shall suspend the consideration of the legality of the strike in the following cases:
1. The requesting party has withdrawn its petition;
2. Both parties have agreed with each other on the settlement of the strike and submitted petition to request the Court not to carry out the settlement.
3. Person who submits the requesting petition has been duly summoned twice but is still absent.
Article 229. Persons taking part in the meeting for consideration of the legality of the strike.
1. The legality consideration Council of the strike shall be chaired by the presiding Judge; the Court’s clerk shall record the minutes of the meeting.
2. The representative of the labor collective and the employer
3. The representative of the agencies and organizations on the requirement of the Court
Article 230. Meeting postponement of the legality consideration of the strike
1. The judge assigned to preside over a meeting to consider the legality of the strike or the legality consideration Council has decided to postpone a meeting to consider the legality of a strike similarly to the regulations on adjournment in accordance with the law on civil procedure.
2. The time limit for the meeting postponement of the legality consideration of the strike shall not exceed 03 working days.
Article 231. Order of the meeting of the legality consideration of the strike
1. The person presiding over the meeting of the legality consideration of the strike announces the decision on opening the meeting of the legality consideration of the strike and summarize the content of the petition.
2. The representative of the labor collective and the employer shall present their opinions.
3. The person presiding over the meeting of the legality consideration of the strike may request representatives of the agencies and organizations attending the meeting to express their opinions.
4. The legality consideration Council of the strike shall discuss and make a decision by majority.
Article 232. Decision on the legality of the strike
1. The Court’s decision on the legality of the strike must specify the reason and the grounds for the conclusion of the legality of the strike.
The Court’s decision on the legality of the strike must be announced publicly at the court and sent to the union executive Committee and the employer, the People's Procuracy of the same level. The labor collective and the employer shall execute the decision of the court but may lodge a complaint under the procedures prescribed by this Code.
2. After the court's decision on the legality of the strike is announced, if the strike is illegal, the employee on strike must stop the strike and get back to work.
Article 233. Violation handling
1. When the court has decided that the strike was illegal, but the employee does not end the strike and get back to work, depending on the seriousness of the violation, they may be disciplined in accordance with the regulation on labor law.
In case the strike is illegal, which causes damage to the employer, the union organization leading the strike must make compensation as prescribed by law.
2. The person who take advantage of a strike to disrupt public order, damaging machinery, equipment and property of the employer; the person who commit acts of obstructing the exercise of the right to strike, agitating, inducing, coercing the employee to strike; the person who has acts of retaliation and revenge of the employee taking part in the strike and the person leading the strike, depending on the seriousness of their violations, they can be handled for administrative violations or prosecuted for criminal liability, if causing damage, they must make compensation as prescribed by law.
Article 234. Order and procedures for settlement of complaint about the decision on the legality of the strike
1. Within 15 days from the date of receipt of the decision on the legality of the strike, the trade union executive committee and the employer may send a complaint to the Supreme People's Court.
2. Immediately after receiving the complaint about the decision on the legality of the strike, the Supreme People's Court must send a written request to the Court that has considered the legality of the strike to transfer the case dossier for review and settlement.
3. Within 03 working days after receipt of the written request, the Court that issued a decision on the legality of the strike must transfer the case dossier to the Supreme People's Court for review and settlement.
4. Within 05 working days after receipt of the dossier for the legality consideration of the strike, the Council shall resolve the complaint about the decision on the legality of the strike.
The decision of the Supreme People's Court is the final decision on the legality of the strike

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