During the implementation of the labor contract, the collective labor agreement, between the subjects may appear conflicts, contradictions, disagreements when one of the two parties believes that the other party violates the signed agreement. Workers tend to demand the highest possible wages and benefits, while employers tend to keep wages and working conditions as low as possible. These contradictions, if not reconciled, are very likely to arise disputes.
1. Overview of labor disputes
A labor dispute is defined in Clause 1, Article 179 of the 2019 Labor Code as follows: “dispute over rights, obligations and interests among the parties during the establishment, execution or termination of labor relation; a dispute between the representative organizations of employees; a dispute over a relationship that is directly relevant to the labor relation”. Labor standards are not only conflicts over behavior related to labor activities of employees but also disputes over issues related to the labor process, issues related to rights and interests of the parties. Based on the subject of the labor union, the labor union includes two types, the individual labor union and the collective labor union. Compared with the 2012 Labor Code, the mechanism for resolving labor disputes under the 2019 Labor Code has many fundamental changes in issues such as the concept of “labor disputes”, and the dispute settlement mechanism. Apra Law shall analysis and comment on the basic new points of the Labor Code 2019 on the Labor Code.
2. New points of the 2019 Labor Code on labor disputes
2.1. The concept of labor dispute
Clause 7, Article 3 of the 2012 Labor Code defines that: “Labor dispute is a dispute over rights, obligations and interests arising between parties in the labor relationship”. The 2019 Labor Code stipulates: “A labor dispute is a dispute over rights, obligations and interests among the parties during the establishment, execution or termination of labor relation; a dispute between the representative organizations of employees; a dispute over a relationship that is directly relevant to the labor relation”.
Firstly, the 2019 Labor Code has had an innovation, namely, it has introduced the interpretation of the concept of labor law into a separate law rather than clauses in a law as before. It can be seen that the 2019 Labor Code emphasizes the importance of awareness of labor standards more than the old law.
Second, the new Code concretizes regulations on the scope of disputes, clarifies the labor law that may arise in the process of establishing, implementing, or terminating the labor relationship or the relationship directly related to the labor relationship, labor system. Thus, disputes over social insurance and health insurance in accordance with the law on social insurance and health insurance or disputes between employees and enterprises or non-business units that bring employees to work abroad under a contract is also considered a labor contract.
Third, the 2019 Labor Code adds a dispute between one or more representative organizations of employees and the employer or one or more organizations of the employer. According to the provisions of the new Labor Code, the Trade Union is no longer the only organization representing the employees but also the organizations of the employees at the enterprise, so conflicts and conflicts between the organizations may arise. this position. The additional regulation of these subjects is reasonable.
Fourth, the concept of the collective labor union on rights and the collective labor union on benefits has also been amended and supplemented. Accordingly, the concept of the collective labor union on the right to be supplemented with discriminatory acts for reasons of establishment, joining and operating in a representative organization of employees; or in violation of the obligation to negotiate in good faith. The concept of a collective labor agreement in terms of benefits is also expanded, not only determined based on both during the collective bargaining process and also when there is no collective bargaining. Thus, in general, the concept of labor standards has been broader and more comprehensive than the previous Labor Code.
2.2. Principles of labor dispute settlement
Article 180 of the Labor Code 2019 basically inherits the dispute settlement principle of the 2012 Labor Code, but there are some changes to the wording. For example, amending the word “Respect the parties’ autonomy through negotiation throughout the process of labor dispute settlement” to “Respect the parties’ autonomy through negotiation throughout the process of labor dispute settlement”; change from “The settlement of a labor dispute shall be conducted by a competent agency, organization or person after either party makes a written request due to the fact that the other party refuses to negotiate or the two parties do not negotiate successfully or the two parties negotiate successfully but either party does not implement the agreement” to “Labor dispute settlement shall be initiated by a competent authority or person after it is requested by a disputing party or by another competent authority or person and is agreed by the disputing parties”. It can be seen that the 2019 Labor Code has promoted self-negotiation, self-determination and aims to ensure the integrity of the rights and interests of the parties, provide the fastest way to resolve conflicts and avoid unworthy costs.
2.3. Competence in settling labor disputes
The 2019 Labor Code stipulates that the competent authority to settle labor disputes includes: the labor mediator, the labor arbitration council and the People’s Court. Compared with the provisions of the 2012 Labor Code, the provisions of the 2019 Labor Code have some fundamental new points about the competence to settle labor disputes as follows:
First, about the competent authorities.
For individual labor disputes: Previously, in the 2012 Labor Code, the labor arbitration council was only competent to settle collective labor disputes. The Labor Code 2019 has added the authority of the labor arbitration council to settle individual labor disputes. This provision makes the parties more flexible in choosing a dispute settlement mechanism. For collective labor unions: The Labor Code 2019 has removed the provisions on the competence to settle collective labor disputes regarding the rights of the chairperson of the district-level People’s Committee because the district-level People’s Committee chairperson is a state administrative agency having dispute resolution function. In addition, the Labor Code 2019 stipulates that the labor arbitration council is entitled to issue decisions when settling disputes. Regulations like the Labor Code 2012 are not suitable with the functions and duties of administrative agencies and are also implicitly “acknowledge the intervention of the State through administrative measures to solve labor disputes. It is not appropriate that the agency dealing with labor disputes must be a system of judicial agencies”.
Second, about the labor arbitration council.
Labor arbitration Council (Article 185 of the Labor Code 2019): This is the first time the Labor Code provides for a labor arbitrator. The labor arbitrator is appointed by the of the People’s Committee of the province. The number of labor arbitrators shall be decided by the Chairman of the Provincial People’s Committee but must be at least 15 persons, including an equal number of persons nominated by the parties.
Arbitral Tribunal: Clause 4, Article 185 of the Labor Code adds new regulations on the principle of establishing a Labor Arbitration Board to settle a labor arbitration case: the representative of each disputing party chooses one arbitrator from the list of important judges. trustee; Arbitrator shall be selected by the parties unanimously 01 Head of the arbitral tribunal. This regulation of the 2019 Labor Code has overcome the shortcomings of the 2012 Labor Code. Previously, when a collective labor agreement arose that needed to be resolved, the whole labor arbitration council participated in the settlement of a collective dispute leading to a collective dispute. The situation when one of the parties to a dispute wants to exercise the right to request a change of members, it will not be able to do so because the arbitral tribunal does not have a replacement arbitrator.
2.4. Dispute settlement order and procedures
2.4.1. Procedures for handling individual labor disputes
Firstly, the Labor Code 2019 adds cases where individual labor unions are not required to mediate by a Labor Mediator. Specifically, in addition to the dispute about “social insurance in accordance with the law on social insurance, about health insurance in accordance with the law on health insurance” has added “unemployment insurance according to the provisions of the law on employment, insurance of occupational accidents and diseases according to the provisions of the law on occupational safety and hygiene”. Besides, adding a new labor union without conciliation procedures is: a dispute between the sub-contracted employee and the sub-employee.
Secondly, the Labor Code 2019 allows the parties to request the labor arbitration council in addition to bringing a lawsuit to the Court. This provision has created favorable conditions for the parties to flexibly choose the method of dispute settlement. However, this provision still has one limitation, that is, it has not yet provided a mechanism to ensure the enforcement of the decision of the labor arbitration panel. If there is no enforcement mechanism, the ability to enforce the decision is not high, it is easily broken when one party is not dedicated and willing to implement that decision.
2.4.2. Procedures for settling collective labor disputes
Firstly, for the collective labor union on rights: The 2019 Labor Code has had an innovation compared to the 2012 Labor Code on the collective labor agreement on rights when one of the parties fails to implement the agreements in the minutes of successful conciliation, or the mediator, the employee fails to conduct the conciliation, or the conciliation is unsuccessful (cannot reach an agreement, does not accept the mediation plan, or the disputing party has been duly summoned for the second time but is still absent without legitimate reasons), the disputing parties have the right to choose the Labor Arbitration Council or the Court to settle. In addition, when conducting conciliation and settlement of collective labor disputes on rights specified at Points b and c, Clause 2 of the Labor Code 2019, if it is determined that there has been a violation of the law, the mediator will not conduct conciliation. The labor arbitrator does not issue a settlement decision, but makes a record and transfers the dossier and documents to the competent agency for handling. This regulation contributes to raising the sense of law compliance of employers and protecting the legal rights of employees. For example, when conciliating a collective labor agreement on arising rights related to social insurance, if it is discovered that the employer has committed fraud in paying compulsory insurance, the mediator will not conduct the conciliation. but make a record and transfer the file to a competent agency for settlement according to the provisions of the Criminal Code.
Secondly, for the labor union in terms of benefits: For the first time, the Labor Code stipulates the legal value of the minutes of conciliation into a collective labor agreement on the benefits drawn up by the mediator equal to the collective labor agreement of the enterprise. Such provision is completely consistent with the nature of negotiations in conciliation, which is “an extension of the direct negotiation process between the parties with the support of the labor mediator in order to reach an agreement between the parties” should be considered a product of the collective bargaining process. In addition, this is also the first time the Labor Code clearly stipulates the basis for settling collective labor disputes in terms of benefits in Clause 3, Article 197 of the 2019 Labor Code, similar to the grounds for settling collective labor disputes in terms of rights. There are opinions that such provisions are somewhat inappropriate because the collective labor union has about benefits arising in the process of collective bargaining or when one party refuses to negotiate or fails to negotiate within the prescribed time limit. Therefore, it is not possible to rely on the provisions of labor law, collective labor agreement, internal labor regulations… to issue a decision to resolve a collective labor dispute regarding benefits that do not arise when one of the parties implements it. not in accordance with the labor laws, agreements, internal regulations… Moreover, the arbitral tribunal’s ruling when settling disputes not only affects the disputing parties but also affects other enterprises in the same industry and in the same region, even to macroeconomic management policies.
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