Tiếng Việt
中文 (中国)
In Vietnam, strikes happen monthly, even weekly at businesses of different sizes. Some of the strikes can be legal, and some can be illegal and of spontaneous nature with no legal basis. Not all times strikes happen because of the employer’s fault. It is a gray area as well as every other aspect of life. So, in these difficult times, what are the measures employers can take to deal with strikes in Vietnam?
According to Article 198 of the Labor Code 2019, a strike is a temporary, voluntary, and organized stoppage of work by the employees to press demands in the process of the labor dispute settlement. A strike shall be organized and led by the representative organization of employees that has the right to request collective bargaining and is a disputing party.
An employee has the right to strike under Article 199 of the Labor Code in 2 cases when:
- The mediation is unsuccessful or the labor mediator fails to initiate the mediation by the deadline specified in Clause 2 Article 188 of the Labor Code;
- An arbitral tribunal is not established or fails to issue a decision on the settlement of the labor dispute; the employer that is a disputing Party fails to implement the settlement decision issued by the arbitral tribunal.
Cases in which employees are disciplined for participating in a strike
If the employees create a stoppage with no legal basis and of spontaneous nature, with no representative, etc., it is not a strike but harassment to the normal functioning of the enterprise, as well as other employees.
In those circumstances, the enterprise has the full right to penalize the employees, either by administrative fines or even lay off the employees according to Point e, Clause 1, Article 36 of the Labor Code.
However, for strikes that have been organized according to the law, the employer is not allowed to terminate the labor contract or take disciplinary action against the striking employee or the strike leader, or dispatch the employee or the strike leader to work elsewhere because those people are about to go on strike or already go on strike.
These are the acts that the employer is strictly prohibited from doing before, during, and after the strike specified in Clause 4, Article 208 of the Labor Code.
Thus, during the time before, during, and after the strike, the employer is not entitled to take disciplinary action against the employee participating in the strike.
However, according to the provisions of Clause 2, Article 217 of the Labor Code 2019, if the strike is decided by a competent court to be illegal but the employee refuses to stop the strike or return to work, depending on the seriousness of the violation, the employer may initiate labor discipline on the employees according to regulations.
For damage suffered by an enterprise due to an illegal strike, the leading organization representing the workers and the strike must compensate the enterprise for damage in accordance with law if the strike is declared illegal by the competent court.
Accordingly, the employer will make a written request to the employees’ representative organization leading the illegal strike to compensate for damage. Based on the content of the employer’s written request for compensation for damage, the organization representing the employees leading the strike will be responsible for making compensation for damage.
Nonetheless, it should be noted that the compensation claim must not be illogical or based on emotions, rather, it must be based on facts, data on the enterprise’s normal operation, and the effects created by the illegal strikes on the enterprise.
The organization representing the employees can negotiate with the enterprise about the compensation amount.
ASL LAW is the top-tier Vietnam law firm for Employment and Labor Law. If you need any advice, please contact us for further information or collaboration.
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