Laws of Vietnam

CIRCULAR No 10-LDTBXH/TT ON MARCH 25, 1997 PROVIDING GUIDANCE ON THE ORGANIZATION AND OPERATION OF THE GRASSROOTS RECONCILIATION COUNCIL AND THE LABOR RECONCILIATORS OF THE LABOR OFFICES OF DISTRICTS, CITIES, TOWNS AND TOWNSHIPS OF THE PROVINCES AND CITIES DIRECTLY UNDER THE CENTRAL GOVERNMENT

I. SUBJECTS AND SCOPE OF APPLICATION:

1. Subjects of application:

The enterprises irrespective of their economic sectors, including the enterprises which are independent or dependent accounting members of Union of Enterprises or State Corporations, which employ 10 or more laborers, shall set up Grassroots Labor Reconciliation Councils.

2. The following units shall not have to set up Grassroots Labor Reconciliation Councils:

- The enterprises irrespective of their economic sectors which employ less than 10 laborers;

- The State public service agencies, people’s organizations and social and political organizations, and cooperatives which employ laborers on labor contract;

- The foreign agencies and organizations and international organizations; the representative offices of foreign and international organizations; the foreign and international economic and other organizations which employ Vietnamese laborers.

When labor disputes occur at the above-said units, Reconciliators of the district-level Labor Office are authorized to handle them.

II. ORGANIZATION OF THE GRASSROOTS RECONCILIATION COUNCIL:

1. The Reconciliation Council shall comprise an equal number of representatives of the employer and laborer parties:

- The employing party is the employer or other managing personnel of the enterprise who is designated as representative of the employer.

- The representative of the laborers designated by the Executive Committee of the Grassroots Trade Union or the provisional Trade Union,

- The membership of the Grassroots Reconciliation Council shall comprise at least four people, including a president and a secretary. The term of the Grassroots Reconciliation Council is two years with representatives of each party to alternate the positions of president and secretary every six months from the date of establishment. The Reconciliation Council operates on the principle of agreement and consensus.

2. The establishing procedure:

- The employer or the President of the Grassroots Trade Union shall take initiative to recommend the establishment of the Grassroots Reconciliation Council and the number of its membership on the basis of the number of laborers, organization and production scale of the enterprise, and on the basis of this recommendation, the employer shall decide the establishment of the Grassroots Reconciliation Council. The Decision shall clearly describe the names of each member, the president and the secretary of the Council.

The Decision shall be sent immediately to the district Bureau of Labor, War Invalids and Social Affairs, the provincial Service of Labor, War Invalids and Social Affairs, the Confederation of Labor of the province or city directly under the Central Government, the Executive Committee of the Grassroots Trade Union and the members of the Reconciliation Council.

- During the term of the Reconciliation Council, the concerned parties have the right to change or add members who are their representatives. The change or addition of members shall be agreed upon by the two parties and decided by the employer. This decision shall also be sent immediately to the above-mentioned recipients as prescribed for the decision on the establishment of the Reconciliation Council.

III. THE TASKS AND POWERS OF THE GRASSROOTS RECONCILIATION COUNCIL:

1. The Reconciliation Council has the tasks: to settle all collective and individual labor disputes (including those on sacking, unilateral termination of labor contract and the damage compensation requested by involved persons) at the enterprise.

2. The Reconciliation Council has the powers:

- To study the dispute, meet with the parties to the dispute and the concerned people and witnesses;

- To gather evidences, request the involved parties and applicants to provide in full documents and papers related to the dispute that is to be settled;

- To request the presence of the involved parties and applicants at the reconciliation meeting of the Council;

- To recommend reconciliation solutions for the two concerned parties to consider and negotiate.

3. The President of the Reconciliation Council has the tasks: to conduct all the operations of the Reconciliation Council, to chair the reconciliation sessions and to report the situation of its labor reconciliation operation to the Bureau and Service of Labor, War Invalids and Social Affairs at the end of every June and December.

4. The Secretary of the Reconciliation Council has the tasks: to assist the President in all operations of the Reconciliation Council as assigned by the President and take the minutes of every meeting of the Council.

5. The employer shall provide the necessary conditions for the operation of the Reconciliation Council: providing room and work facilities for reconciliation sessions.

6. The members of the Reconciliation Council who are representatives of the laborers shall, during their attendance at reconciliation sessions to settle labor disputes and their participation in other activities related to their tasks at the Reconciliation Council, have the time they spend counted as work time and be entitled to full salary and other regimes and privileges as provided for by labor laws.

IV. THE PROCEDURE FOR RECONCILING LABOR DISPUTES

1. The processing of the dispute:

When a member of the Reconciliation Council receives a request for settlement of a dispute, he or she shall relay the request immediately to the President of the Council; the Secretary shall register the request and clearly note down the date of reception. The President of the Reconciliation Council has the responsibility to inform it to the Council members and assign people to study the alleged dispute. Within seven days after the reception, the Reconciliation Council shall hold the labor dispute reconciliation session.

- After studying the dispute, the President of the Reconciliation Council shall hold a meeting of the Council to work out a reconciliation solution to the dispute, set the date for the reconciliation session and notify the disputing parties and the witnesses (when necessary). The reconciliation solution must be agreed upon by the members. It can be:

a) To accept the request of the complaining party if its complaint proves to be right;

b) To convince the complaining party to drop the charge if it is proven wrong;

c) To recommend a neutral solution for both parties to consider and negotiate.

2. Holding the reconciliation session for a labor dispute:

a) At the reconciliation session, the Council shall check the presence of the disputing parties and the invitees. In case a disputing party fails to be present and mandates a representative, the written mandate shall be checked. If the disputing parties fail to be present and do not mandate their representatives, or their representatives do not have a written mandate, the Council shall guide the parties to follow the procedure strictly or postpone the session to another date. If the seven days’ time limit is over without the parties showing up at, or dispatching their representatives to, the session of the Reconciliation Council as convened, the Council shall file a minute to the effect that the reconciliation is a failure.

b) When the parties are present in full, the reconciliation session of the Council shall be conducted in the following procedure:

+ Declaring the reason for the reconciliation session for the labor dispute;

+ Reading the letter of request of the complainant;

+ The complainant explains the case;

+ The complained explains the case;

+ The Reconciliation Council questions the concerned parties, cites the evidences and requests witnesses (if any) to testify;

+ The defenders of the complained (if any) comments.

c) The Reconciliation Council shall base itself on labor laws and regulations, documents, evidences and comments from the concerned parties, to analyze the dispute, indicate the right and wrong points of the concerned parties so as to let them reconcile among themselves or recommend a solution to the dispute for the concerned parties to consider, negotiate upon and accept.

+ In case the disputing parties can reconcile among themselves or accept the solution recommended by the Reconciliation Council, the minutes on the successful reconciliation shall be made. The minutes shall be made into three copies, each bearing the signatures of the President and the Secretary of the Reconciliation Council and of the disputing parties, and sent to the disputing parties. The disputing parties have the obligation to comply with the agreements recorded in the minutes of the successful reconciliation.

+ In case the disputing parties cannot reconcile among themselves or cannot accept the reconciliation solution, the Reconciliation Council shall file the minutes of unsuccessful reconciliation which records the opinions of each party; the minutes shall bear the signatures of the President and the Secretary of the Reconciliation Council and the representatives of the disputing parties and shall be duplicated for the disputing parties within three days from the date of the unsuccessful reconciliation, and the concerned parties shall have the right to file a law suit (in case of a personal labor dispute) or request the provincial Arbitrary Council to handle the case (if it is a collective labor dispute).

+ The Reconciliation Council has the responsibility to transfer the dossier to the authorized agencies or organizations as requested by these agencies and organizations. The dossier is to be composed of: a letter of request for settlement of the dispute filed by the accusing party, the minutes of unsuccessful reconciliation, the documents and evidences related to the dispute.

d) The spoken and written language used in the process of the labor dispute reconciliation is Vietnamese. If a party to the reconciliation of a labor dispute is not able to use Vietnamese, the employer has to appoint a translator to take part in the reconciliation and settlement of the dispute.

V. THE LABOR RECONCILIATOR

1. The district Bureau of Labor, War Invalid and Social Affairs has the tasks:

a) To appoint personnel of appropriate competence, quality, knowledge and prestige who can carry out the work of a labor reconciliator at district level in keeping with the level of development of the enterprises located in the district.

b) To provide the work facilities and venues for the reconciliators to carry out their work in reconciling labor disputes; in case the reconciliation is to be carried out at the enterprise, the employer is to provide the venue and work facilities for the reconciliator.

c) To firmly grasp the organization and operation of the Grassroots Reconciliation Council, the situation of labor disputes and the reconciliation of labor disputes at enterprises in the district and file periodical and irregular reports on the situation of labor disputes and their reconciliation, and promptly recommend solutions to problems arising in the course of labor dispute settlement to the provincial Service of Labor, War Invalids and Social Affairs for consideration and settlement.

2. The tasks and powers of the labor dispute reconciliator:

To reconcile personal and collective labor disputes at enterprises which employ less than 10 laborers, disputes between family helpers and their employers, disputes over the implementation of the contracts on vocational training and tuition fees at vocational training centers and enterprises where trainees shall not work for them after their training.

During the participation in meetings for labor dispute reconciliation, a reconciliator is entitled to an allowance of 15,000 (fifteen thousand) VND which is to be drawn from the State Budget and included in the annual budgetary plan of the Bureau of Labor, War Invalids and Social Affairs (in line with Decision No.154-TTg of March 12, 1996, of the Prime Minister on allowance regime for court trials).

3. The procedure for reconciliation and settlement of labor disputes:

The reconciliator who takes part in reconciling labor disputes must comply with the procedure provided for in Part IV of this Circular. Before putting forward a reconciliation solution, the reconciliator may consult the Chief of the district Bureau of Labor, War Invalids and Social Affairs.

VI. IMPLEMENTATION

1. The provincial Service of Labor, War Invalids and Social Affairs is responsible for:

a) Coordinating with the provincial Confederation of Labor to provide guidance for the organization, training, establishment and operation of the Grassroots Reconciliation Council and the Reconciliators of the district labor agency to solve labor disputes in accordance with the provisions of the Labor Code and this Circular.

b) Firmly grasping the situation of labor disputes and their reconciliation; periodically twice every year at the end of June and December and on irregular occasions to report the situation of labor disputes and their reconciliation in the province to the Ministry of Labor, War Invalids and Social Affairs.

2. Within a period of three months, starting from the effective date of this Circular, all enterprises shall set up their Grassroots Reconciliation Councils; as for the enterprises which are set up after the issuing date of this Circular, they shall within six months at the latest from the date of operation establish their Grassroots Reconciliation Councils; the district Bureau of Labor, War Invalids and Social Affairs shall appoint personnel to work full time or part time as reconciliators.

3. This Circular shall be circulated to all enterprises and laborers for implementation.

This Circular takes effect as from April 10, 1997.

If any problems arise in the course of its implementation, they should be reported promptly to the Ministry of Labor, War Invalids and Social Affairs for consideration and solutions.

The Minister of Labor, War Invalids and Social Affairs

TRAN DINH HOAN