The article with the title: “Law shall protect employees” written by Lawyer Tran Thanh Tung – Partner of Phuoc & Partners is published on Saigon Economic Times dated 01/04/2010.
In the relationship with employers, employees are always in a more disadvantageous position. Therefore, legislation on labour takes responsible in shortening this gap to an acceptable extent and not able to fill the gap. For this reason, legislation on labour in essence shall protect the employees.
Why LC should be revised?
The current LC was firstly promulgated in 1994, and up to this time the economy has got a lot of changes. Vietnam has integrated deeply into the world economy, and labour market in Vietnam has step by step formed fully its composition. Labour relationship under contract has become common and predominated over the relationship of egular recruitment. Moreover, labour relationship has changed, developed and become more and more complicated, and the 1994 LC (although revised many times in 2002, 2006 and 2007) has not caught up with changes of life. Legally, from 1994 up to now, Vietnam has joined a lot of conventions of International Labour Organization (ILO) in the field of labour.
Therefore, as a member, Vietnam has obligation to implement these conventions, and one of the implementation ways is to convert the regulations in those conventions into legislation on labour of Vietnam.
That circumstance raises the demand of a comprehensive amendment of LC, and not partial amendment as previously done. The draft of LC (second edition) is in that circumstance, and changes in the draft not only in words but also in basic essence. The basis for these changes is the update of three-party mechanism of ILO into legislation on labour of Vietnam.
What is three-party mechanism?
Three-party mechanism is the essential mechanism in the process of establishment organization and operation of ILO as well as of ILO’s viewpoint regarding labour relationship. This mechanism acknowledges the labour relationship in the interaction among employees, the State and the employers as equal and independent parties.The three subjects cooperate and bind each other in order to find (through the voluntary mutual negotiation, concession, consultancy and making decision together) solutions for labour issues so that the society will develop harmoniously. With three- party mechanism, the social benefit will be a
composition function of benefits of these three parties.The law makers shall consider the benefits of employees, employers and the State so that social benefit will be at maximum rate. For the sake of this goal, the sacrifice of partial benefit of the State or the employees or the employers (if any) will be sometimes a necessary “pain”. The three-party mechanism was for the first time stated in the draft with the provision: “the State ensures to harmonize the benefit of the employees and the employers in labour relationship”; however, the sense of this mechanism is shown throughout the draft.
It is necessary to recall here that the current LC has been prepared in the direction of protecting the legal and proper rights and benefits of employees. Therefore, for a matter that LC does not state or states not clearly and maybe interpreted in different senses, the most advantageous sense implied for the employees shall be applied in priority. However, this maybe change when for the first time the LC states the principle: “the State ensure the legal rights and benefits of the employers”. Although the scope of “legal rights and benefits of the employers” is still narrower than “the legal and proper rights and benefits of employees”, but with this new regulation, the choice of solution for issues that LC does not state or states not clearly will be more difficult since benefits of both employees and employers will be considered.
The direct changes for employees and employers are the regulations in labour contract. It can be stated that the draft of LC has brought the labour contractual relationship back to its original nature, i.e. the voluntary agreement of the two independent and equal parties, and the interference of the State in this agreement will be restricted. Since this is a kind of bilateral contract, right of the employee will be obligation of the employer, and vice versa; thus any party will be responsible to the other party in case he/she terminates the contract illegally (for instance, the employee who terminates the contract illegally shall compensate the employer, the employee who is dismissed will not be paid severance allowance, etc.).
Besides, there are other regulations showing the three-party mechanism, such as the recognition of the employer’s right of participating in professional associations (corresponding to the employee’s right of participating in labour union), the employer’s right of lockout (corresponding to the employee’s right of strike), etc.
Therefore, it will be unfair to confirm that this draft protects the employees more, or binds the employers more. In fact, this draft seems more impartial for parties, the employees and the employers.
Whom does legislation on labour protect?
In the relationship with the employers, the employees are always in a more disadvantageous position. This occurs forever. No businessman who spends time, money and brainpower with plenty of risks accepts a lower position than his staff. Thus, legislation on labour has obligation in narrowing this gap to an acceptable extent, and not able to fill the gap. Therefore, legislation on labour shall by nature protect the employees. The issues in the draft being in discussion now must be considered in the direction of protecting the employees’ benefits. This is not an issue of political institutions, but an issue of the nature of labour relationship.
It is necessary to further state that many foreign managers, although reckon that legislation on labour of Vietnam protect the employees to a large extent, but have to admit that legislation on labour in their countries also protect the employees similarly, though maybe in a different way. Sometimes they admit that official law (in writing) in their countries maybe more open (in the viewpoint of employers), but the process of its implementation causes numerous difficulties for the employers since labour unions in their countries are very strong, as well as their enterprises are supervised by a lot of civil organizations. Meanwhile, in Vietnam official law seems very stringent (for employers), but in fact the employees are not fully protected due to inefficient operation of labour union as well as the employers are rarely supervised by civil organizations such as associations, profession organizations, etc. The flexibility or strictness between the official law and the practice in fact in Vietnam and foreign countries are anyway the reasonability of life.
It can be stated that the current LC is a State’s product in the early stage of opening for integration; meanwhile the incoming LC is a labour law in open circumstance and it is the result of updating the three-party mechanism of ILO into legislation on labour of Vietnam. Although there are a lot of arguments and some issued to be revised, basically the draft of LC has been prepared relatively suitable with legal principles on labour of ILO. After all, the legislation on labour shall protect the employee, consequently, the issues currently debated in the draft should be considered towards the protection of employee interest, not otherwise.