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The worker’s right to strike in the Vietnamese Labor Code reflects progress and fairness in labor relations in the market, the most fundamental factor contributing to material wealth for the economy. Organizing strikes is not only a means to protect the interests of workers but also a mechanism to regulate labor relations, creating conditions for balance and stability in society.
However, exercising the right to strike must ensure compliance with legal conditions rather than being spontaneous movements against the law, leading to a situation where instead of businesses and workers benefiting, illegal strikes gradually become a tool for workers to threaten businesses into concessions.
Engaging in illegal strikes, with improper purposes and forms, does not bring long-term benefits to workers. To ensure that workers can present the necessity of striking and that businesses can fully listen to the desires of workers and provide mutually beneficial solutions, understanding and implementing legal strike regulations is crucial.
The following article will present multifaceted perspectives on the worker’s right to strike according to the provisions of the Labor Code 2019, focusing on striking in collective labor disputes regarding interests.
The necessity of amending legal regulations regarding labor in Vietnam
In the seven years since the Labor Code of 2012, No. 10/2012/QH13 (“Labor Code 2012”), was enacted, many individuals and organizations involved in labor have raised numerous issues arising from the enforcement of provisions within the Vietnam Labor Code. These include issues related to labor contracts, wages, working hours, labor discipline, female labor, foreign labor, and other matters related to dialogue, trade unions, collective bargaining, labor dispute resolution, and strikes.
The Labor Code 2012 encountered difficulties in enforcing certain provisions, facing challenges from the rapid development of the labor market and the influence of the technological revolution, which demanded improvements in human resource management and favorable conditions for labor enterprises.
In addition to domestic needs, Vietnam actively and proactively participates in international trade agreements such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the European Union-Vietnam Free Trade Agreement (EVFTA) also serves as a driver for Vietnam to fulfill basic commitments such as environment and labor.
Labor commitments in these agreements require member countries to undertake obligations to implement basic labor principles and rights.
Specifically, Vietnam commits to building and completing labor institutions according to the labor standards of the International Labour Organization (ILO), including the four groups of rights under the eight fundamental conventions of the ILO as well as other international organizations.
The Vietnamese government has accepted requirements and recommendations from the business community and organizations, issuing the Labor Code 2019 on November 20, 2019, internalizing many international commitments with 17 chapters, and 220 articles with more appropriate amendments and additions, notably including the enhancement of the protection of the organizing and collective bargaining rights of workers. The provisions regarding strikes have been revised and supplemented in more detail, reflecting the challenges faced by workers and employers since the Labor Code 2012 came into effect.
Origin and Current Situation of Labor Disputes Leading to Strikes in Vietnam
From the early years of economic liberalization and reform, Vietnam has undergone significant changes in both its economic structure and labor relations. This process has created challenges in labor relations, primarily revolving around the concepts of rights and interests, leading to the emergence of labor disputes, a phenomenon reflecting the confrontation between the rights of workers and businesses.
According to statistics from the Ministry of Labor, Invalids and Social Affairs, from the effective date of the Labor Code 1994 (35-L/CTN) until the end of 2009, there were 2,863 strikes nationwide, averaging 190.8 strikes per year. The number of strikes followed an increasing trend throughout the period from 1995 (with only 50 cases) to its peak in 2008 (652 cases).
From 2010 onwards, the number of strikes continued to rise. According to data from the Ministry of Labor, Invalids and Social Affairs, in just the first six months of 2010, there were over 200 strikes nationwide. From 2010 to 2021, Vietnam saw an additional 3,501 strikes.
From 2022 to the present, the trend of strikes has declined, with an average decrease of about 75% in 2023 compared to the same period in 2022. However, it is noteworthy that despite the overall decrease in the number of strikes, the number of spontaneous strikes remains high, with statistics from 2018 to 2022 showing 591 cases of illegal collective work stoppages.
Arising from economic motives, these strikes are not led by grassroots trade unions but are carried out by groups of workers through oral communication, especially increasing before Tet (Lunar New Year), with main reasons such as businesses ceasing or underpaying salaries, prolonged overtime, overtime pay not following the law, etc.
Although there have been no alarming incidents like machine-breaking or factory occupations as seen in Western countries in recent years, spontaneous strikes still occur frequently in industrial parks, and export processing zones, significantly affecting business operations and social stability.
While Western countries such as France, the United States, and the United Kingdom may experience more extreme strikes, the average trade union system and labor representation organizations in these countries still typically conduct legally recognized strikes, acknowledged by both businesses and governments, thereby helping both businesses and workers seek mutually beneficial solutions more effectively.
So, what constitutes a legal strike in Vietnam?
The Vietnamese legal regulations on legal strikes
Article 8 of the International Covenant on Economic, Social, and Cultural Rights of the United Nations stipulates that the right to strike is a fundamental right of workers recognized by law.
In Europe, the right to strike is regulated by Article 11 of the European Convention on Human Rights (ECHR), of which most European countries are members. This includes the right to organize trade unions and carry out activities necessary to ensure the rights of workers.
Many countries, such as France or Italy, have taken an additional step to enshrine provisions on strikes in their national constitutions. In France, the right to strike is stipulated in the 1946 Constitution. Employers cannot penalize striking workers or terminate their employment contracts, except in very limited cases of intentional misconduct (faute lourde).
In Vietnam, the 2019 Labor Code is the legal document that rigorously regulates the elements of lawful strikes.
When labor disputes arise, the parties must adhere to the legal procedures and processes for each type of collective labor dispute. The 2019 Labor Code stipulates three types of labor disputes, including individual labor disputes, collective labor disputes regarding rights, and collective labor disputes regarding interests.
Individual labor disputes and collective labor disputes regarding rights do not have provisions allowing workers to strike. Regarding collective labor disputes regarding interests, the parties must first attempt to resolve them through the mediation procedure of the labor mediator before requesting the Labor Arbitration Council to settle or proceed with strike procedures as stipulated in Article 195(2) of the 2019 Labor Code.
Thus, only in cases where the labor mediator fails to mediate or the mediation period expires without resolution, or if any of the parties fail to implement the agreements in the mediation minutes, the disputing parties have the right to choose the method of resolving the dispute depending on the type of dispute. For collective labor disputes regarding interests, the parties may request the Labor Arbitration Council to settle or proceed with strike procedures (from this point on, collective labor disputes regarding interests will be abbreviated as ‘collective labor disputes’).
In Vietnam, typically when a collective labor dispute erupts, according to legal regulations, the parties may first attempt mediation and then proceed to labor arbitration. If these two methods are ineffective, workers may proceed with a strike.
However, in practice, both the mediation minutes of the labor mediator and the decision to settle the dispute by the Labor Arbitration Council do not have mechanisms to ensure enforcement against employers or businesses.
Due to this situation along with the complexity of following the legal procedures correctly, Vietnamese workers often have the mentality of bypassing the labor arbitration step because it is not highly effective. After unsuccessful mediation, they often proceed with a strike immediately afterward.
According to statistics from relevant agencies, although Labor Arbitration Councils have been established in 60 provinces and cities in Vietnam, there have been no cases where disputing parties requested the Labor Arbitration Council to settle disputes.
Recognizing the mindset of workers, the 2019 Labor Code officially legalized provisions allowing workers to bypass the resolution of collective labor disputes through labor arbitration and proceed directly to strike when mediation fails or the mediation period expires without mediation conducted by the labor mediator, as stipulated in Article 199.
From the perspective that when workers and businesses have attempted mediation without reaching an agreement, continuing mediation at another agency is unnecessary as prolonging the resolution period often disadvantages workers more.
This is a positive addition that can help workers promote the negotiation process with employers through strike procedures.
However, in some cases of collective labor disputes, when workers actively proceed to strike without even attempting mediation to put pressure on the business, putting the business in a passive position when they cannot respond promptly, these cases still constitute violations of labor strike laws, conducting strikes contrary to the legal procedure, as stipulated in Article 204 of the 2019 Labor Code regarding cases of unlawful strikes.
Recommendation to amend the laws on strikes in Vietnam
The Labor Code 2019 has introduced many provisions regarding strikes, however, there are still several incomplete points that may pose difficulties in practical application.
Firstly, the Labor Code 2019 currently does not have provisions regarding whether workers have the right to strike legally if the employer fails to fully implement the agreements in the conciliation report. In cases where the company implements agreements in a biased manner or only partially fulfills them, whether workers can use that as a reason to strike legally remains unclear.
Secondly, Vietnam currently lacks a specialized agency for resolving labor disputes, especially those related to strikes. Considering the frequent occurrence of spontaneous strikes in Vietnam in recent times, the absence of a specialized agency for resolving labor disputes like the Labor Relations Commission in Japan, South Korea, the Philippines, etc., is not appropriate for the current social context.
Thirdly, the Labor Code 2019 clearly distinguishes between collective labor disputes regarding rights and those regarding interests but does not provide a mechanism for resolving disputes that involve both rights and interests simultaneously.
For example, if a strike occurs because workers want an increase in year-end Tet bonuses (collective labor dispute regarding interests), and at the same time, workers want the company to stop appointing an individual closely related to the company’s leadership in the labor representative organization (collective labor dispute regarding rights), there is currently no mechanism to simultaneously resolve these disputes.
In the next amendment of the Labor Code, the drafting committee should consider adding separate procedures and procedures for resolving these types of disputes because separating the resolution of each dispute does not ensure the rights of the workers. Similarly, provisions should be added regarding the workers’ right to strike in cases of resolving two types of collective labor disputes simultaneously.
The provisions for resolving collective labor disputes have been detailed in the Labor Code 2019 as well as in previous versions. However, in practice, the implementation of these provisions to organize a lawful strike is not applied in reality.
According to the summary report on the enforcement of the Labor Code 2012 by the Ministry of Labor – Invalids and Social Affairs, all strikes that occurred in Vietnam did not comply with the procedures for resolving collective labor disputes through conciliation, arbitration, or state agencies as prescribed by law.
Strikes are regarded by workers as the last “weapon” or “shield” against employers. However, using this tool contrary to regulations as a weapon not only damages the business but also has the potential to deprive workers of their rights and interests.
Instead, strikes should be used as a shield to protect the rights of workers, a tool for employers to recognize the value that workers bring to the company, and to genuinely engage in negotiations.
Understanding the essence of strikes as well as the legal knowledge to implement them is essential for building an effective labor relationship and culture with employers. Before conducting strikes, workers should seek legal advice from legal consulting firms to receive guidance on resolving disputes regarding rights and interests with employers.
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