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LEGISLATION ASPECT ON INDUSTRIAL ACTION & THE NEED OF INDEPENDENT UNIONS IN VIETNAM |
Lawyer Le Thi Cong Nhan - Vietnam
Warsaw-Poland, 10/2006
Ladies and Gentlemen,
It is a great honour for me to be invited to a conference that is held at the heart of the unified movement regarding worldwide labour. I come from Vietnam, a current totalitarian ruling communist country, and I am sorry that I do not have much good news to inform you of the daily living and working of workers & labourers in my country. Therefore, in this simple article, I won’t describe much about the miserable living, the low salary of the workers & labourers in Vietnam, and the fact that they are treated with little respect; but rather, I would like to emphasize on the legislation aspect of industrial action and the important need to have independent unions for the labour opposing the state unions of the ruling party in the current Vietnam.
The fighting movement of labourers for their basic & essential rights has recently expanded & been generated strongly through many strikes nationwide. However, 90% of a total 1200 strikes in the last 10 years were considered illegal by the communist state union and state courts. Therefore, the communist state government has oppressed severely the movement, because of the following causes:
I- The Current Law of VN Does Not Support Industrial Actions
The current law of Vietnam is deprived of rules & regulations that are judicious and feasible for the industrial action rights of labour, and there does not exist a definition of strike. The only code of the rights to take industrial action is Rule 1 of Clause 172 of the Employment Act 2002, which stated: “If a number of workers & labourers disagreed with the decision of the Employment Mediators Committee, then they have the right to take the industrial dispute to a People Court or strike.”
Nevertheless, the communist government of Vietnam established impractical procedures that are difficult to settle and aimed to prevent industrial strikes of labour. Currently, the Employment Act of VN compulsorily imposes any industrial collective dispute, that is the only legal cause for industrial actions of labour, to 2 reconciliation steps: Firstly a reconciliation at the Basic Reconciliation Committee within 7 days from the application date, and if it failed then secondly it is applied to the Provincial Arbitration Committee within 10 days from the applied date. After that, if the reconciliation process failed, the collective workers & labourers can take it to court or strike (Clause 170, 171). These procedures last two long for the labour and the capitalist, especially for the labour because their daily life depend on their very low wages.
On the other hand, by law, an industrial action is allowed and recognized if within 17 days from the application date, workers & labourers could collect over ½ signatures of the dispute members, and then 3 Board members in the state union of this enterprise must deliver the notice of strike to 3 bodies: the Province Employment Services, the Provincial Labour League and the enterprise capital (the first two bodies are state organization). Nevertheless, how difficult it is for the labourers to collect enough quorum of signatures and what enterprise can allow them to collect these signatures on site from their firms. Although law sets such a long time and complicated procedures, it does not state any sanction or responsibility upon the state Reconciliations and Arbitrations if they fail to reconcile within the time limit. Thus, these bodies work very slowly, irresponsibly; and as a result of that, labour suffers a lot from repressed pressures. Then, these delays & irresponsibility encourage the labour to take their industrial actions for their own benefit.
If industrial action is the labour rights then workers / labourers have to be allowed to strike when a strike is needed and they should not have to follow impractical & delay procedures in application for permissions from the communist state government.
II- The Current Law of VN Sets Obstacles To Industrial Actions
Vietnam Communist Law currently has not defined what is industrial action but imposes a definition of what is an illegal strike!!!.
Clause 176 in the Employment Act 2002 declares vaguely (confusingly) that legal strikes are ones that do not come from collective disputes of employment, overcome the scope of employment relationship & enterprise; and labour is not allowed to go on strikes during the awaiting periods for decisions from the Employment Reconciliation Council and the Employment Arbitration Council (Clause 173).
The above legal procedures restricted mostly cases that the labour has rights to go on strikes. For example, what happens if the state arranges to impose rules for what labour considers their rights would be abused or in a case some individual worker / labourer was insulted or violated, then labour class must own the rights to go on strike instead of being restricted. However, in the current Vietnam, the state authority considers that only industrial actions from collective employment disputes are legal. This consideration is not accordingly appropriate to the scientific & human standards from the International Labour Organization (ILO) that declared workers & labourers have rights to take industrial actions if they want to make political pressures to the state authorities or to the political parties about a problem that includes threats to labour interests even if the threats are not immediate.
Aims of strikes are to claim higher interest standards & rights for labour by putting pressures from a level of economic losses upon enterprise capitals and/or authorities. Whatever fact that leads to an industrial action, is only an aspect of the formalism. Therefore, nature of strikes always has a strong attachment to political status essentially, but not a pure and immediate relationship in employment issues. Concretely, an industrial dispute looks like an interest dispute, of which features, background, scope and scale of the dispute could stand out the political characteristics of that strike. However, current Law in VN imposes arbitrarily industrial action in a limited scope, which is only collective employment dispute and only dispute of pure economic interests. This imposition lames the roles and the nature of an industrial strike of which connections to political problems have been recognized by the whole world. Although the propaganda of communism always recognize this political connection, in practice the Vietnamese communists have carried on in the contrary.
The current Law in VN specifies a strike illegal, if this strike overcomes the enterprise scope and this specification is ambiguous and incorrect. It is ambiguous because there is no definition of “the enterprise scope” so that “the enterprise scope” can be realized as the business or the geographical domain of an enterprise. It is uncorrected because whatever imposition of the scope is not also fitted for industrial action. The labourers have their full rights to take actions when their interests have threats of violation, and not only when direct disputes within their enterprise occurred. On the other hand, labourers cannot take industrial actions only within their geographical domain of their work places, but anywhere. In reality, cases of industrial action presently are also protests or marches, which are more and more popularly worldwide.
Moreover the communist authorities in Vietnam bases themselves on “their solid imposition of illegal strike” to oppress terribly the individual labourers / workers of strikes, even the capitalists felt unexpectedly. Gradually, such policies and laws impose a fear of strike for political aims on the labourers / workers when strikes for political aims are quite normal in the developed & modernized countries. Thus, labour nearly does not have any role in the state politics; conversely they are only screens to be used by the Vietnamese Communist Party (VCP) for its demagogy when necessary.
In particular, I attach special importance to this aspect of the Vietnamese Law because in reality there were less than 10% (ten percent) of the total number of strikes met those standards to be legal strikes. What a shame!, these 10% did not result in expected successes and then rights and legitimate interests of labour class have been violated after the strikes which were considered ideal by these authorities.
III-Consequences From Court’s Decisions On “Illegal Strikes”
3.1 Court’s verdicts in the current VN concluded most of strikes were illegal to make references for the terrible oppressions caused by police who is considered to act legally. However, I would like to remind you that these references have based on a foundation of an illogical and narrow law of the current communist Vietnam.
3.2 The concrete consequence from the Court’s verdicts considering an illegal strike makes the participated labourers / workers become criminals. Then their wages were cut and they were even layed-off sometimes, because their factory capitals referred to decisions from Courts to accuse participated labourers / workers that they themselves gave up their jobs and then dismissed strike labours legally (item c, article 1, Clause 85).
3.3 We especially have to be interested in the destinies of these strikes’ leaders; most of them are common labourers or workers and not officers of state union. After the industrial actions that were supposed to be illegal, labourers were always victimized, oppressed, dismissed and even were unjustly accused as criminals in many cases such as public security violation, inciting riots, action against active services, etc….
Listening until this time, perhaps you are questioning that where is the role of the Union in VN ? Union in VN is large, crowdedly rich and is pampered by the VCP, but in the VCP’s totalitarian current structure, Union is considered as an organ of the Party, is lead by the Party and serves the Party. Thus, Union in VN is no more a normal, pure & common union as its nature as the unions in the world. A real union must be founded by labourers & workers themselves, maintained and developed by themselves only. Only, real unions of this type could serve interests of labour unlimitedly. Because the Unions in current VN are not independent, no board of basic unions dares to organize industrial actions for their labour members by Article 2, Clause 173. This Clause resulted the labourers had themselves to take actions because they cannot wait for nothing from the basic state unions. This is one of the causes that make these industrial actions were labeled unprompted, anarchical & illegal then as a result of these imposed labels severe consequence happened as said above.
IV- Severe Consequence From Regulation Of Illegal Strikes In The Current Vietnam Law
The above unfeasible regulations themselves cause more than 90% strikes in Vietnam to be illegal. Four consequences from these regulations are as follows:
1. Relationships between labours and capitals become tense ones because capital class usually referred to the so-called “illegal strike” to punish, even lays off the workers who fall in hardship and impasse.
2. As a strike is treated to be illegal by the authorities, then consequently requests and claims from workers & labourers would not be satisfied. Therefore, employment collective disputes essentially still remain and being repressed to lead to other industrial actions easily.
3. The rigid resolve that refers to those puerile & limited regulations of the Courts makes the workers & labourers to lose their trust in the state law much more. As a result of that, spontaneous & disobedient actions from workers & labourers make the current strikes in VN complicated and disordered.
4. Labours both lose their trust on Courts and State services and even state union organizations, because those unions of the totalitarian government do not represent labours / workers and do not help workers any more. Furthermore, labours in the current Vietnam are not allowed to form their independent unions themselves, therefore their campaigns & struggles are more difficult and unorganized. As a result of this, the state related organs have difficulties in catching information and performing their management roles.
There has existed many labourers / workers and even legislators have demanded for an independent union system of Vietnam, of which the labour themselves found, manage, maintain and contribute, and employed suitable professional to work for. Although these very normal and good demands for union organization are still not approved & supported by the Vietnamese authority, even these demands suit the world trend of indispensable development.
V- Need To Reform The Vietnam Law On Industrial Action & Independent Union Is A Must.
Industrial action is the rights of labourers to obtain normal interest during strike time with aims of protecting interest & preventing from interest violation by causing a level economical loss for the capital class or the third party. Labour must be respected to perform the rights on time & quickly, that means they must be allowed to arrange industrial action confidentially, to avoid the capital stamp out it. However, the Vietnam Law set a month for applying for and waiting approval for a strike. Furthermore, state union’s officers are working in the same site of dispute, getting wages from the state and practicing concrete guidance of the Vietnamese Communist Party (VCP), therefore they may not perform the representative roles and interest services for labour. Thus, there have not been almost a legal strike in the current Vietnam, with reason is as follow: if you want to follow legislation then you cannot take industrial action, conversely if you want to strike then you are not able to follow legislation. Bad results, from the fact that the authority used their backward law to impose illegally on industrial actions, have arisen, built up & increased gap from parties and create premise for other strikes occur.
The current Vietnam Law is no more catching up with reality of life and obstructing development of the society. Vietnam needs legislative regulations on industrial action that suits and observes the international law, in particular the regulations of The International Labour Organisation (ILO), and absolutely necessary follows close behind the social life that is progressing continuously, with supreme aims of serving interest of the labour as the following 4 concrete comprehensions:
1- There must exist a legal definition of industrial action and a discrimination between strike and massive resign from their jobs;
2- I suggest that strike-defined time for notice and grant (approval) for an industrial action is not more than 72 hours limit. To fix only one-step for negotiation & reconciliation on site and if these issues failed then workers have the immediately rights to take industrial action or to take the dispute to Court. This fixation ensures the opportunity for the feasibility and effection and enhances attitude and responsibility of the capital class and of the concerned public representatives.
3- Only consider an industrial action is illegal when it is not related to employment and working relationship (for example, when a firm capital decide to change uniform without harm on health and safety or to let workers enter rear entrance instead of main entrance, etc. ..). Moreover, any strike, that does not come from direct employment disputes, but concern to state law & policy on employment/labour, must be considered legal.
4- Labour have rights to form their independent unions, to contribute donation to these ones, to manage these ones and to employ professionals to run these ones. Labour also have freedom rights to form professional unions, geographical unions and freedom to associate with other union organizations to protect their interests.
Ladies and Gentlemen,
The current struggle are going to be more and more expanded because this is a unprejudiced reality, and is an indispensable consequence rising from extensive unjustices in the Vietnamese current society - a communist society in which labour is miserably, poverty-stricken, severely exploited day and night and humiliated in dealing with. It is a hardship struggle with continuity for long term and firm until there exists equal opportunities for labour and labour value and labour dignity are respected.
I quite understand I am a little individual who supports and contributes my voice and am searching for a solution for the fighting. And also, I believe in the continuous attempts of labour force and democratic force in Vietnam that are going to receive aid, assistances and supports from people who, in depth, share the experiences of the current labour force, both from labour and for labour. Your specific & practical aid, assistances and supports would be effective and scheduled in creating of an external pressure, which is large enough to make a change of the current law on strike, in order to allow labour to take industrial action legally and to have their independent unions. This is my confidence contributed to the conference such that the conference also contributes and brings this confidence to Vietnam.
Thank you for your time