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The right to strike of employees in the Vietnamese Labor Code reflects progress and fairness in labor relations in the market, the most fundamental factor in creating material wealth for the economy. Organizing strikes is not only a means to protect the interests of employees 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 unlawful movements contrary to the law as they are today. This leads to a situation where instead of both businesses and employees benefiting, illegal strikes gradually become a tool for employees to threaten businesses into compromise.
Illegally conducting strikes, with wrong motives or forms, does not bring long-term benefits to employees. To ensure that employees can clearly present the necessity of striking and to ensure that businesses can fully and clearly listen to the desires of employees and offer mutually beneficial solutions, understanding and legally exercising the right to strike is particularly important.
The following article will present multidimensional perspectives on employees’ right to strike according to the provisions of the Labor Code 2019 No. 45/2019/QH14 (“Labor Code 2019“), focusing on striking in collective labor disputes over interests.
The necessity of amending legal provisions on labor in Vietnam
In the 7 years since the Labor Code 2012 No. 10/2012/QH13 (“Labor Code 2012“) was enacted, many individuals and organizations related to labor have reflected on various issues arising from the enforcement of provisions in the Vietnamese Labor Code, such as labor contracts, wages, working hours, labor discipline, female labor, foreign labor, and other issues related to dialogue, trade unions, collective bargaining, labor dispute resolution, and strikes.
The Labor Code 2012 faced difficulties in enforcing some provisions, facing challenges from the rapid development of the labor market and the impact of the technological revolution, requiring improvements in human resource management and creating more favorable conditions for labor-related businesses.
In addition to the shortcomings arising from domestic needs, Vietnam’s active participation in international trade agreements such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the Free Trade Agreement between Vietnam and the European Union (EVFTA) is also a driving force for Vietnam to fulfill basic commitments such as environmental and labor standards.
Commitments regarding labor in these agreements require member countries to fulfill the principles and basic rights of labor.
Specifically, Vietnam has committed within a certain period to establish and improve labor regimes according to the labor standards of the International Labor Organization (ILO), including 4 groups of rights according to 8 basic conventions of the ILO as well as other international organizations.
The Vietnamese government has accepted requests and recommendations from the business community and organizations, issuing the Labor Code 2019 on November 20, 2019, incorporating many international commitments with 17 chapters, 220 Articles with more appropriate amendments and additions, notably including the addition of the right to protect the organization and collective bargaining rights of employees. The provisions on striking have been amended and supplemented in more detail, reflecting the difficulties faced by employees and employers since the Labor Code 2012 took effect.
Origin and Current Situation of Labor Disputes Leading to Strikes in Vietnam
Since the early years of economic liberalization and reforms, Vietnam has undergone significant changes in both economic structure and labor relations. This process has posed 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 interests of employees and businesses.
According to statistics from the Ministry of Labor – Invalids and Social Affairs, from the effective enforcement of the Labor Law 1994 35-L/CTN until the end of 2009, there were 2863 strikes nationwide, averaging 190.8 strikes per year. The number of strikes has been increasing throughout the period from 1995 (with only 50 strikes) to its peak in 2008 (652 strikes).
Since 2010, the number of strikes has continued to increase. 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 witnessed an additional 3501 strikes.
From 2022 to the present, the trend of strikes has decreased, with an average decrease of about 75% in 2023 compared to the same period in 2022. However, it is noteworthy that although the total number of strikes has decreased, the number of spontaneous strikes still accounts for a high proportion, with statistics from 2018 to 2022 showing 591 spontaneous strikes, illegal work stoppages.
Originating from economic motives, these strikes are not led by grassroots trade unions but are carried out by a majority of employees through informal channels, especially increasing before the Lunar New Year with main reasons such as businesses withholding or underpaying wages, prolonged overtime, overtime pay not in accordance with the law, etc.
Although there are no incidents of machine destruction or alarming factory disruptions as in Western countries in recent years, spontaneous strikes still occur frequently in industrial parks, export processing zones, significantly affecting business operations and societal stability.
While Western countries like France, the United States, and the United Kingdom may have more extreme strikes, their trade union systems and labor representation organizations still generally conduct legal strikes, which are recognized by businesses and governments. This facilitates both businesses and employees to seek mutually beneficial solutions more effectively.
So, what constitutes a legal strike in Vietnam?
Vietnam’s 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 employees recognized by the law.
In Europe, the right to strike is governed 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 necessary activities to ensure the interests of employees.
Many countries, such as France or Italy, even further enshrine the right to strike into their national constitutions. In France, the right to strike is enshrined in the 1946 constitution. Employers cannot penalize striking employees or terminate their employment contracts, except in very limited cases of intentional misconduct (faute lourde)…
In Vietnam, the Labor Code 2019 is the legal document that tightly regulates the factors concerning legal strikes.
When labor disputes arise, parties must comply with the legal procedures for each type of collective labor dispute. The Labor Code 2019 stipulates three types of labor disputes, including individual labor disputes, collective labor disputes over rights, and collective labor disputes over interests.
Individual labor disputes and collective labor disputes over rights do not have provisions allowing employees to strike. For collective labor disputes over interests, parties must first attempt resolution through the conciliation procedure of labor conciliators before requesting the Labor Arbitration Council to resolve the dispute or initiating strike procedures as stipulated in Article 195(2) of the Labor Code 2019.
Accordingly, only in cases where labor conciliators fail to conciliate or the conciliation period expires without conciliation, or if one of the parties does not comply with the agreement in the conciliation record, the disputing parties have the right to choose the next dispute resolution method depending on the type of dispute. For collective labor disputes over interests, parties may request the Labor Arbitration Council to resolve the dispute or initiate strike procedures.
In Vietnam, typically when a collective labor dispute erupts, according to legal regulations, parties can first attempt conciliation and then resort to labor arbitration. If these two methods are ineffective, employees can proceed with striking.
However, in practice, both the conciliation record of labor conciliators and the decision to resolve disputes of the Labor Arbitration Council do not have mechanisms to ensure enforcement against employers or businesses.
Due to this situation, coupled with the complexity of following proper legal procedures, Vietnamese employees often want to bypass the labor arbitration step because it is not highly effective. After unsuccessful conciliation, they often proceed with striking immediately.
According to statistics from statistical agencies, although Labor Arbitration Councils have been established in 60 provinces and cities in Vietnam, there has been no case in which disputing parties requested the Labor Arbitration Council to resolve the dispute.
Realizing this mindset of employees, the Labor Code 2019 officially legalized a provision allowing employees to bypass the resolution of collective labor disputes through labor arbitration and proceed directly with striking when conciliation fails or the conciliation period expires without conciliation, as stipulated in Article 199.
From the perspective that when employees and businesses have attempted to resolve disputes through conciliation without reaching an agreement, continuing conciliation at another agency is unnecessary as prolonging the dispute resolution period often has more disadvantages for employees.
This is a positive provision that can help employees advance the negotiation process with employers through strike procedures.
However, in some cases of collective labor disputes where employees do not even attempt conciliation but actively proceed to strike to exert pressure on businesses, putting businesses in a passive position when they cannot respond in time, those cases still constitute violations of the law on strikes, conducting improper procedures for legal strikes, as stipulated in Article 204 of the Labor Code 2019 regarding cases of illegal strikes.
Recommendations for Amending Labor Laws Regarding Strikes in Vietnam
The Labor Code of 2019 has introduced several provisions regarding strikes; however, there are still many areas that need improvement, which may pose challenges in practical implementation.
Firstly, the current Labor Code of 2019 does not specify whether employees have the right to engage in legal strikes if the employer fails to fully comply with the agreements in the conciliation minutes. In cases where the enterprise implements agreements in a coercive manner or only partially, it remains unclear whether employees using this as a reason to strike would be recognized as legal.
Secondly, Vietnam currently lacks a specialized agency to resolve labor disputes, especially those related to strikes. Considering the frequent occurrences of spontaneous strikes in Vietnam in recent years, it is inappropriate that Vietnam lacks a specialized agency for resolving labor disputes like the Labor Relations Commission in Japan, South Korea, the Philippines, etc.
Thirdly, although the Labor Code of 2019 clearly distinguishes between collective labor disputes concerning rights and those concerning interests, it lacks mechanisms to resolve disputes involving both rights and interests simultaneously. For instance, if a strike arises from employees wanting an increase in Tet bonuses (an interest-based dispute) and from employees wanting the company to cease appointing an individual closely associated with the company’s leadership in the labor representation organization (a rights-based dispute), there are currently no mechanisms to address both disputes simultaneously.
In the next amendment to the Labor Code, the drafting committee should consider adding separate procedures and procedures for resolving these types of disputes, as separating the resolution of each dispute does not guarantee the rights of employees. Similarly, provisions should be added for cases where both types of collective labor disputes are resolved simultaneously, specifying how employees’ strike rights should be determined.
Conclusion
The provisions for resolving collective labor disputes have been detailed in the Labor Code of 2019 as well as in previous versions. However, in practice, the implementation of these provisions to organize legal strikes is not widely applied.
According to the summary report on the enforcement of the Labor Code in 2012 by the Ministry of Labor – Invalids and Social Affairs, all strikes in Vietnam have not followed the procedures for resolving collective labor disputes, including conciliation, arbitration, or state agencies as stipulated by law.
Strikes are perceived by employees as the last “weapon” or “shield” against employers. However, using this tool against regulations not only harms businesses but also risks employees losing their rights and interests.
Instead, strikes should be used as a shield to protect employees’ rights, a tool for employers to recognize the value that employees bring to the company, and a genuine effort to negotiate.
Understanding the essence of strikes and having legal knowledge to implement them is crucial for building an effective labor relationship culture with employers. Before engaging in strikes, employees should consult legal advisory units to receive advice on resolving disputes regarding their rights and interests with employers.
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