Bản dịch văn bản 133/2007/NĐ-CP
nghi-dinh-133-2007-nd-cp
Cơ quan ban hành: Chính phủ
Ngày ban hành: 2007-08-08

DECREE Detailing and guiding the implementation of a number of articles of the law amending and supplementing a number of articles of the labor Code regarding settlement of labor disputes THE GOVERNMENT Pursuant to the December 25, 2001 Law on Organization of the Government; Pursuant to the June 23, 1994 Labor Code; the April 2, 2002 Law Amending and Supplementing a Number of Articles of the Labor Code; and the November 29, 2006 Law Amending and Supplementing a Number of Articles of the Labor Code; At the proposal of the Minister of Labor, War Invalids and Social Affairs, DECREES: Chapter I GENERAL PROVISIONS Article 1.- Governing scope This Decree details and guides the implementation of Articles 159, 162, 163, 164, 165a, 170, 170a, 171, 171a and 174d of the Labor Code, which was revised by the April 2, 2002 Law Amending and Supplementing a Number of Articles of the Labor Code and the November 29, 2006 Law Amending and Supplementing a Number of Articles of the Labor Code (below referred to as the Labor Code for short), regarding the settlement of labor disputes. Article 2.- Scope of application 1. Enterprises set up and operating under the Enterprise Law. 2. Cooperatives and unions of cooperatives which are set up and operate under the Law on Cooperatives. 3. State companies which are in the period of transformation under Clause 2, Article 166 of the Enterprise Law. 4. Vietnamese organizations, units and individuals that operate under Vietnamese law and employ Vietnamese laborers under labor contracts. Enterprises, cooperatives, unions of cooperatives, organizations, units and individuals that are defined in Clauses 1, 2, 3 and 4 of this Article, are below referred to as enterprises for short. Article 3.- Subjects of application 1. Laborers; Executive Committees of grassroots Trade Union organizations, Provisional Executive Committees of Trade Union organizations (below collectively referred to as Executive Committees of grassroots Trade Union organizations); representatives of labor collectives, employers at enterprises. 2. Vietnamese laborers working in international or foreign agencies or organizations; representative offices or branches of foreign economic organizations in Vietnam; foreigners working in Vietnam are also entitled to the application of this Decree, unless otherwise provided for by treaties to which the Socialist Republic of Vietnam is a contracting party. 3. This Decree also applies to agencies and organizations involved in the settlement of labor disputes or strikes of labor collectives. Chapter II SETTLEMENT OF LABOR DISPUTES Section 1. GRASSROOTS LABOR CONCILIATION COUNCILS AND LABOR CONCILIATORS Article 4.- Establishment of grassroots Labor Conciliation Councils under Clauses 1 and 2, Article 162 of the Labor Code 1. Employers shall coordinate with Executive Committees of grassroots Trade Union organizations in setting up grassroots Labor Conciliation Councils (below referred to as Conciliation Councils for short). Each party shall prepare its qualified representative to discuss and unanimously select members to join the Councils. 2. Employers shall issue a decision to set up a Conciliation Council, which clearly states the full names of its member, president and secretary, and the term of office of the president and secretary of the Conciliation Council. Decisions to set up Conciliation Councils must be publicized at enterprises and sent to Executive Committees of grassroots Trade Union organizations, members of the Councils and the labor offices of rural districts, urban districts, provincial towns or cities (below collectively referred to as district-level labor offices) for monitoring. 3. Persons selected by the employers' side and the laborers' side for participation in Conciliation Councils must be as follows: a/ For the employers' side, they are the enterprises' representatives at law or representatives authorized in writing. b/ For the laborers' side, the Executive Committees of grassroots Trade Union organizations shall appoint their members or Trade Union members at enterprises. The two sides may agree to select one or several experts outside the enterprises, who fully satisfy the conditions defined in Clause 1, Article 6 of this Decree, to join the Conciliation Councils. 4. A Conciliation Council must be composed of at least four (4) persons, including its president and secretary. After the establishment of a Council, the representative of each side shall alternately act as its president or secretary for one year; if the representative of one side acts as president, the representative of the other side will act as secretary. 5. Members of the Conciliation Councils may attend training courses on conciliation operations and fostering courses on labor law. Article 5.- Labor dispute-settling activities of Conciliation Councils under Clauses 3 and 4 of Article 162 and Article 165a of the Labor Code 1. The Conciliation Councils have the task to conciliate individual labor disputes in enterprises and collective labor disputes upon written requests. 2. Within three working days after the receipt of written requests for conciliation, the Conciliation Councils must meet with disputing parties for conciliation. 3. A meeting on conciliation of a labor dispute proceeds when it is participated by at least two-thirds of the number of the Council members. The order and procedures for holding conciliation meetings comply with the provisions of Clause 2, Article 165a of the Labor Code. 4. The conciliation for settlement of labor disputes by Conciliation Councils must comply with the provisions of the Labor Code and this Decree. 5. Employers shall ensure necessary conditions for activities of the Conciliation Councils during the period of participation in conciliation, such as conciliation meeting rooms, working equipment for members of the Conciliation Councils; supply of documents and papers related to labor disputes; payment of wages or remuneration to the members of the Conciliation Councils for the days they conduct conciliation of labor disputes and the days they attend training and fostering courses organized by labor offices at different levels. Article 6.- Labor conciliators under Article 163 of the Labor Code 1. Persons who fully satisfy the following conditions may be recognized as labor conciliators by presidents of district-level People's Committees: a/ Having full civil act capacity and good moral quality. b/ Having knowledge about labor law. c/ Having conciliation skills or experience in conciliation to undertake the job of labor conciliators. d/ Voluntarily participating in conducting conciliation. 2. Trade Union Federations of urban districts, rural districts, provincial towns or cities (below referred to as district-level Trade Union Federations) or equivalent levels (trade union organizations of industrial parks, export processing zones) shall make lists of their respective members who fully satisfy the conditions specified in Clause 1 of this Article and send their dossiers to district-level labor offices for registration to act as labor conciliators. The dossiers of the persons who fully satisfy the conditions specified in Clause 1 of this Article are submitted to district-level labor offices for registration to act as labor conciliators. 3. Labor conciliators are relieved from duty in the following cases: a/ Committing law-breaking acts. b/ Committing acts against social morality. c/ Having time and again refused conciliation tasks. 4. District-level labor offices have the responsibilities: a/ To propose district-level People's Committee presidents to issue decisions recognizing labor conciliators. b/ To assist district-level People's Committee presidents in managing labor conciliators. c/ To appoint officials to act as labor conciliators and assign labor conciliators to participate in the settlement of specific labor disputes in their respective geographical areas. 5. Labor conciliators may attend training courses on conciliation operations and fostering courses on labor law. 6. The Minister of Labor, War Invalids and Social Affairs shall specify dossiers of, the order and procedures for appointment of labor conciliators and management of labor conciliators. Article 7.- Labor conciliators' activities under Articles 163 and 165a of the Labor Code 1. Labor conciliators are tasked to conciliate individual labor disputes at enterprises where Conciliation Councils are not available, disputes over the performance of apprentice contracts and vocational training costs, disputes defined in Clause 2, Article 166 of the Labor Code when the involved parties so request, and collective labor disputes when so requested. 2. Within three working days after the receipt of a written request for conciliation, the concerned labor conciliator shall meet with the disputing parties for conciliation. Where labor disputes occur at enterprises, such enterprises shall arrange venues for labor conciliators to hold conciliation meetings. Where labor disputes do not occur at enterprises, district-level labor offices shall arrange venues for labor conciliators to hold conciliation meetings. 3. For the days labor conciliators perform the conciliation of labor disputes, including the days on which they study dossiers, they are entitled to remuneration equivalent to court allowances applicable to people's jurors. 4. The funding for labor conciliators' activities is allocated from by the state budget and included in regular expenditure estimates of district-level labor offices. The Finance Ministry shall guide in detail the funding for activities of labor conciliators. Article 8.- Selection of Conciliation Councils or labor conciliators in case of settlement of collective labor disputes under Clause 1, Article 170 of the Labor Code The Executive Committees of grassroots Trade Union organizations or representatives of labor collectives shall reach a written agreement with employers on the selection of Conciliation Councils or labor conciliators for settlement of collective labor disputes at their respective establishments. Section 2. SETTLEMENT OF COLLECTIVE LABOR DISPUTES BY DISTRICT-LEVEL PEOPLE’S COMMITTEE PRESIDENTS Article 9.- Competence of district-level People's Committee presidents to settle collective labor disputes under Clause 2, Article 170 of the Labor Code 1. District-level People's Committee presidents shall settle collective labor disputes over rights which occur in their respective geographical areas in the following cases: a/ These disputes were unsuccessfully settled by Conciliation Councils or labor conciliators. b/ Upon the expiration of the three-working day time limit, counting from the date of receipt of written requests, the Conciliation Councils or labor conciliators do not proceed with the conciliation or fail to organize conciliation meetings. 2. Within five working days after the receipt of written requests, district-level People's Committee presidents shall meet with the disputing parties to settle their disputes. Article 10.- Procedures for settlement of collective labor disputes over rights by district-level People's Committee presidents according to Point b, Clause 1, Article 170a of the Labor Code 1. Within three working days after the receipt of written requests for settlement of labor disputes, district-level People's Committee presidents shall assume prime responsibility for, and coordinate with the concerned agencies and organizations in, studying contents related to the settlement of collective labor disputes and propose solutions. After the concerned agencies and organizations propose measures to settle the disputes, district-level People's Committee presidents convene meetings to settle the disputes under the provisions of Clause 2, Article 9 of this Decree. 2. At the meetings to settle collective labor disputes over rights, district-level People's Committee presidents may invite representatives of the Trade Union organization superior to the grassroots Trade Union organization, of relevant agencies and organizations to attend the meetings. 3. In the course of settling collective labor disputes over rights, if deeming that the collective labor disputes are prompted by acts of violating labor law, collective labor agreements or working regulations which have been registered, or other lawful regulations and agreements at enterprises, district-level People's Committee presidents shall issue decisions to administratively sanction such violations in accordance with the of law on administrative sanctions 4. District-level labor offices shall coordinate with Labor Federations of the district or equivalent level in assisting district-level People's Committee presidents in overseeing the disputing parties in the observance of the law on settlement of labor disputes by district-level People's Committee presidents. Section 3. SETTLEMENT OF COLLECTIVE LABOR DISPUTES BY LABOR ARBITRATION COUNCILS Article 11.- Establishment of Labor Arbitration Councils under Article 164 of the Labor Code 1. After reaching agreement with related branches on expected presidents and members of Labor Arbitration Councils, directors of provincial/municipal Services of Labor, War Invalids and Social Affairs propose provincial-level People's Committee presidents to issue decisions on the establishment of Labor Arbitration Councils for conciliation of collective labor disputes over interests and collective labor disputes at labor strike- forbidden enterprises which occur in geographical areas under their respective management. 2. Labor Arbitration Councils are based at provincial/municipal Services of Labor, War Invalids and Social Affairs and have their own seals. 3. The funding for activities of the Labor Arbitration Councils is allocated from the state budget and included in regular expenditure estimates of provincial/ municipal Services of Labor, War Invalids and Social Affairs. Provincial/municipal Services of Labor, War Invalids and Social Affairs shall arrange venues and working equipment and ensure necessary conditions for Labor Arbitration Councils to operate. 4. A Labor Arbitration Council is composed of an odd number, either five or seven, of members, including: a/ The Council president who is the representative of the leadership of the concerned Service of Labor, War Invalids and Social Affairs. b/ The Council secretary who is an official of the concerned Service of Labor, War Invalids and Social Affairs. c/ A member who is the representative of the provincial-level Labor Federation. d/ A member who is the representative of the local employer. e/ One or several members who are legal experts or have experience in the field of labor relations, and have prestige and a sense of impartiality. 5. Secretaries of Labor Arbitration Councils are full-timers acting as standing members of the Councils and enjoying a responsibility allowance equivalent to that enjoyed by heads of sections of provincial/municipal Services. Other members work as part-timers and enjoy an allowance in the course of settlement of labor disputes under the provisions of law, which is equivalent to the court allowance applicable to people's jurors. 6. Members of Labor Arbitration Councils are supplied with information on labor law by provincial/municipal Services of Labor, War Invalids and Social Affairs and entitled to attend refresher courses on labor law. Article 12.- Labor dispute-settling activities of Labor Arbitration Councils under Articles 164 and 171 of the Labor Code 1. Labor Arbitration Councils hold meetings for conciliation of collective labor disputes when at least two-thirds of the number of their respective members are present (including members being representatives of the Service of Labor, War Invalids and Social Affairs, provincial Labor Federation and the local employer). 2. Within seven working days after the receipt of written requests for conciliation, the Labor Arbitration Councils shall meet with the disputing parties to settle their labor disputes. 3. When settling collective labor disputes at enterprises on the list of enterprises banned from strikes which occur in localities, Labor Arbitration Councils shall issue decisions on settlement of collective labor disputes. If either party disagrees with such decisions, it may request a competent people's court to settle. Chapter III APPOINTMENT OF REPRESENTATIVES OF LABOR COLLECTIVES, IDENTIFICATION OF LABORERS NOT PARTICIPATING IN LABOR STRIKES, SETTLEMENT OF WORK STOPPAGE BY LABOR COLLECTIVES UPON COLLECTIVE LABOR DISPUTES OVER RIGHTS Article 13.- Appointment of representatives of labor collectives to organize and lead labor strikes under Article 172a of the Labor Code When collective labor disputes occur in enterprises where grassroots Trade Union Executive Committees do not exist, labor collectives may appoint their representatives to organize and lead labor strikes according to the following regulations: 1. Based on the strike scale and the number of laborers in enterprises or sections of enterprises, labor collectives decide on the number of their representatives on the principle of odd number, which must neither be higher than nine (9) nor lower than three (3), to organize and lead labor strikes at enterprises. The appointment of representatives of labor collectives at enterprises must be notified in writing to the Labor Federations at the district or equivalent level within five (5) working days after the appointment by labor collectives. 2. Labor Federations at the district or equivalent level shall coordinate with district-level labor offices in guiding labor collectives at enterprises to appoint their representatives. 3. Persons appointed to be representatives of labor collectives to organize and lead labor strikes have the following tasks and rights: a/ To comply with the provisions of labor law on strike organization and leadership. b/ To have the rights and obligations like members of grassroots Trade Union Executive Committees in the course of organizing and leading labor strikes. c/ To enjoy interests like grassroots trade union officials when participating in the settlement of labor disputes in the course of acting as representatives of labor collectives. d/ The duration of acting as representatives of labor collectives is counted from the time they are appointed by labor collectives to the time the settlement of labor disputes concludes. Article 14.- Identification of laborers not participating in labor strikes according to Clause 1, Article 174d of the Labor Code Laborers identified as not participating in labor strikes but having to stop working due to the strikes are those who have not participated in labor strikes and those who work in enterprises' sections which are not on strike but have to stop working due to the strikes. Article 15.- Settlement of temporary work stoppage by labor collectives upon occurrence of collective labor disputes over rights under Clause 3, Article 159 of the Labor Code 1. Upon the occurrence of collective labor disputes over rights, which lead to temporary work stoppage by labor collectives, concerned district-level People's Committee presidents shall promptly settle them. 2. Where the disputing parties decline to accept the settling options, district-level People's Committee presidents shall send written reports thereon to provincial-level People's Committee presidents and concurrently to provincial-level Services of Labor, War Invalids and Social Affairs and Labor Federations and representatives of provincial-level employers for coordinated handling. 3. Based on the contents of labor collectives' petitions, district-level People's Committee presidents shall meet with Trade Union Executive Committees or representatives appointed by labor collectives (for places where trade union organizations do not exist), employers, and request the parties to observe the labor law and the labor collectives to return to work and stabilize production. 4. They shall consider and administratively sanction acts (if any) of violating labor law, collective labor agreements or labor regulations which have been registered, and other lawful regulations and agreements at enterprises. 5. They shall proceed with the conciliation with regard to the contents of collective labor disputes which do not originate from acts of violating the labor law, collective labor agreements or labor regulations which have been registered, and other lawful regulations and agreements at enterprises. In case of failed conciliation, they shall guide the parties to strictly comply with the provisions of labor law regarding the settlement of collective labor disputes. Chapter IV IMPLEMENTATION PROVISIONS Article 16.- Implementation effect This Decree takes effect 15 days after its publication in "CONG BAO." To abrogate the Government's Decree No.58/CP of May 31, 1997, on wage payment and settlement of other interests for strike-participating laborers during strikes; to abrogate the Prime Minister's Decision No.744/TTg of October 8, 1996, on the establishment of provincial-level Labor Arbitration Councils. Article 17.- Guidance and implementation responsibilities 1. The Ministry of Labor, War Invalids and Social Affairs shall guide the implementation of this Decree. 2. Ministers, heads of ministerial-level agencies, heads of government-attached agencies and presidents of provincial/municipal People's Committees shall implement this Decree.