The article titled: “Gains and losses in abolishment of the procedure of labour regulation registration” from Lawyer Phan Thi Ngoc Thang, is published on Sai Gon economic times, dated 31 Mar 2018.
On 09 December 2010, the Government promulgated Resolution No. 48/NQ-CP regarding the simplification of administrative procedure in the management scope of the Ministry of Labour, War Invalids and Social Welfare. The procedure of “labour regulation registration of enterprises” is one among the abolished procedures. What “gains” and “losses” will the abolishment of this procedure cause for the employees and the employers? The following content will analyse some aspects of this issue.
- Labour regulation – “Labour Code of the Enterprise”
According to Clause 1 in Article 82 of the Law of Labour and Item 1 in Article 1 of Decree No. 33/2003/NĐ-CP, enterprises recruiting ten or more employees shall have the labour regulation registered at the Department of Labour, Invalid and Social Affairs (DOLISA) or Management Board of the industrial park under the authorization of the DOLISA for enterprises in processing zones, industry parks, hi-tech zones.
Labour regulation consists of main contents such as Working and breaking time; Order in the enterprise; Labour safety and labour sanitation at working premise; Protection of properties and technology and business secret of the enterprise; Labour discipline and physical responsibilities. Content of the labour regulation shall not be contrary to labour laws and other laws.
According to relevant laws, labour regulation plays a very important role in labour relationship between the employees and the employers. Specifically, (i) contents in the labour contract shall not be contrary to the prescriptions in the labour regulation; (ii) terms in the labour contract prescribing interests of the employees at a lesser rate in comparison with the labour regulation shall be amended or otherwise be abolished; (iii) the employees shall observe the prescriptions in the labour regulation aside from the observation of the agreements in the labour contract during the time he/she works for the enterprise; (iv) labour regulation is the basis for the employers to require the employees to compensate for physical damages and the basic foundation to process disciplinary action; and (v) labour regulation in reality is also a document for enterprises with foreign investment capital to insert regulations, policies and prescriptions from the parent company or global policy of the multi-national company. Therefore, the labour regulation exists anywhere and anytime in the enterprise and helps the employees in a enterprise to commonly form an orderly, consistent and equal behaviour.
- Gains – losses in abolishment of the procedure of labour regulation registration
For the employers, the abolishment of the procedure of labour regulation registration makes him free from a burden. Under relevant regulations, for the newly-established enterprise, after six months from the first operation day, the employers shall register the labour regulation at the DOLISA and it will take effect from the day of registration. At the latest of ten days from the date of receiving the labour regulation, the DOLISA shall announce the registration. After this period, if there is not any announcement, the labour regulation will automatically take effect.
However, in reality the registration of labour regulation is not as “easy” as the laws stipulate, but it really makes the enterprises worry. Labour regulation is for application internally in the enterprise, but for some enterprises it is also affected by many regulations and policies of the parent company and overseas group. However, when labour regulation is prepared for registration, the enterprise has to polish and edited out some details because the regulation is deemed as not specific or confusing according to the view point of the DOLISA. After all, the employers want to design a labour regulation that protects their interest to a maximum extent, while the DOLISA wants to protect to a maximum extent the interests of the employees, facilitate the management work, restrict the dispute and help the dispute settlement (if any) more clear. In addition, the announcement on labour regulation registration is rarely in accordance with the law. Employers dare not take risks to deem the labour regulations as effective after ten days of submission to the DOLISA without announcement from this authority. Thus, employers wait and wait to amend the labour regulations and to be announced by DOLISA that their labour regulations have been registered – in some cases the amendment and re-submission occur many times and last for months. Therefore, the abolition of this procedure would be very welcome by the employers.
Another reason for the employers to welcome the abolition of this procedure is that they will be more comfortable in inserting the terms of the “staff handbooks” of the parent company and the overseas group in the labour regulations without waiting for DOLISA to consider or require them to abolish some details that are likely leading to dispute.
However, for the employees the abolition of registration has more latent risks. Because after all, the DOLISAs reject some provisions of the labour regulations to protect the employees. This procedure has been canceled so the interests of employees were almost floating. As a rule, before the promulgation of labour regulations, employers must consult with the grassroots union’s executive board in the enterprise. However, those who join the union executive board are employees who receive salary and work for the employers, would they dare to oppose opinions of the employers? Moreover, in case they oppose, does it have any effect on the issuance of labour regulations, while the law only says that “they will be consulted”? Or if the employers are willing to be open to the opinions of the grassroots trade union executive board, would its members be capable of building regulations to protect the interests of all employees?
Biggest risk for employees is that they are very vulnerable for the employers to apply the labour discipline measures with no apparent reason. Previously, the application of labour discipline measures to the employees is not easy because the violations of the employees subject to labour discipline measures were reflected in labour regulation that has been registered. So, in fact, there are many cases where employers can not dismiss the employee because the violations of the employees are not stated in the labour regulations that had been registered and the employers had simplified the regulations in the process of labour regulations registration. When not under the control of DOLISA, the employers are free to expand the provisions of employee violations in general terms such as “serious damage”, “other acts”, “under the direction superiors”, “including but not limited to”, etc. These prescriptions are not contrary at all to any legal regulations. In general, they also seem “innocuous”, and yet, when brought to “weighing, measuring and counting”, it is able to bind to all cases. Therefore, in the final, if the employers want to fire the employees or apply other measures of labour discipline, one of these regulations will be easily applied. Then, the employees have the only option is that to implement the disciplinary penalty if they cannot prove that they do not violate, because in this relationship, the employees seem to have not any right but a unique obligation to comply with the Labour Regulations.
- What to prepare for this abolishment
The current legal documents have not prescribed much on the preparation and monitoring of labour regulations, so when this procedure abolished, the authority issuing legal documents, employees and employers must have a thorough preparation.
The authority issuing legal documents shall make prescriptions that can limit the discretion of the employers at a reasonable level; define a monitoring process of the close and practical issuance and implementation of labour regulations in the enterprise so that the employers will see that the issuance of labour regulations is their right, but if they do not comply with strict procedures, the promulgation and implementation of labour regulations will of course have no effect and no employee must execute the obligations. The employers are obliged to provide copies of the labour regulations when there are new employees and when there is a modification or amendment of the labour regulations. This is to ensure both employers and employees have got the documents as evidence for the implementation of the labour regulations. The employers must make known the contents of the labour regulations to the employees when signing the probation contract and on the annual basis. Administrative penalties will be applied to the failure of providing copies or updating the labour regulations for employees.
More than ever, the employees need to be in the spirit of “always protect yourself.” When employed in any enterprise the employees should actively request for a copy of the labour regulations of the enterprise. Each employee must have a thorough grasp of and implement the provisions relating to daily work and those provisions directly relating to their work. Employees need to know the acts that will be disciplined in order to avoid violations. The understanding of the contents of the labour regulations should be deemed by the employees as work must be done, need to be done and should be done to protect themselves.
For the employers, they also need to be ready to take new legal provisions regarding their responsibilities and obligations in the promulgation and application of labour regulations. The preparation or putting the provisions of the parent company or overseas group into labour regulations should be considered carefully so as not to cause conflict in the relationship with the employees, contrary to the fine traditions of Vietnamese, as well as it does not exclude the case that these provisions were considered invalid due to inconsistent with the provisions of the laws of Vietnam.
 Decree No. 33/2003/NĐ-CP of the Government dated 02 April 2003 regarding the amendment and supplement of some articles of Decree No. 41/CP dated 06 July 1995 issued by the Government prescribing the detailed implementation of some articles of the Law on Labour regarding labour discipline and physical responsibility