Table of Contents
Table of contents ……………………………………………….…………………… ……………… 1
Abbreviations……………………………………….………………………………… ……………….. 2
Overview strike and settlement of strike………………………………………...........................8
2.1 Background of labour market and labour law developments in Vietnam and Sweden….………8
2.1.1 Background of labour market and labour law developments in Vietnam…………………..........8
2.1.2 Background of labour market and labour law developments Sweden…………………………...9
2.2 The Concept of strike…………………...………………………………………........................12
2.2.1 Strike seen from socia-economic angle and international law……………….............................13
2.2.2 THe Strike in the Labour Code of Vietnam…………………………………………..………...14
2.2.3 Strike as stipulated in the law of Sweden...………..…………………………………………. 17
2.2.4 Lesson learned from the improvement of the concept of the strike in Swedish
2.3 Introducing some viewpoints on the settlement of a strike and overview of a strike's resolution
under Vietnamese and Swedish labour law…..………..……….….…………………………. 23
2.3.1 Some viewpoints on the settlement of a strike.…...………...…………………………………. 23
2.3.2 Overview of the settlement of strike under Vietnamese and Swedish labour law.....…………. 26
The Settlement strikes by way of collective bargaining……..…………………………….…....30
3.1 Issues to be improved in Vietnamese labour law in respect of settlement of a strike by collective
3.2 Lessons learned from Swedish law to improve Vietnamese labour law in respect of settlement
of a strike by collective bargaining……………….….................................................................31
3.2.1 Introduction of settlement of a strike by collective bargaining in Swedish law…......................31
3.2.2 Investigation of Swedish law with a view to improving Vietnamese legislation on the settlement
of strike by collective bargaining…..…………………………..…………………………….....37
Settlement of strike by mediation…...………………………………………..............................41
4.1 Introduction of settlement of a strike by mediation in Vietnamese Labour Law.……….....…...41
4.2 Issues to be improved in Vietnamese labour law in respect of settlement strike by
4.3 Survey of Swedish law system with a view to improvements in legislation regarding settlement
of a strike by mediation in Vietnam…………………………………..………………………...48
4.3.1 Introduction to settlement of a strike by mediation in Swedish law……………........................48
4.3.2 Investigation of Swedish law in order to improve Vietnamese legislation on settlement
of strike by mediation………………………………………………...……………….....…......52
ILO: International Labour Organization.
MBL: The Co-Determination Act.
Vietnamese Labour Code: conclusion of Vietnamese Labour Code 1994 and Amendments of
Vietnamese Labour Code 1994 in 2002, 2006 and 20007.
LO: The Trade Union Confederation (Lands-Organisation).
SAF: The Employers Confederation (Svenska Arbetstgivaveforeningen). Nowaday, SAF has
amalgamated and changed name to SN Cofederation of Swedish Enterprise.
OECD: Organisation for Economic Cooperation and Development.
My thesis studies the settlement of strikes under Vietnamese labour law using some ideas drawn
from Swedish labour law. It will deal with the concept of strike, issues of collective bargaining
and mediation in a settlement of a strike.
First, on concept of a strike, beside an overview drawn from the perspectives of economics
and social thought, the writer presents the concept of strike laid down in Vietnamese Labour
Code. “Strike means a temporary and voluntary cession of work organized by a labour collective
to resolve a collective labour dispute” (article 172 of Vietnamese Labour Code). The writer also
compares Vietnamese and Swedish Law on the issue. From the Swedish point of view, a strike is
one manifestation of industrial action. They distinguish between strikes and other expression of
industrial action such as lockout, go-slow, boycott…in Sweden. Basing itself on Swedish labour
law, Vietnamese labour law should acknowledge that a strike is a voluntary complete stoppage of
work organized by a labour collective to force the settlement of a collective labour dispute.
Secondly, on the settlement by collective bargaining, Vietnamese Labour Code, like Swedish
law, provides that before and during a strike, the parties have the right of collective bargaining to
resolve it. However, Vietnamese Labour law is short of legal grounds to create and strengthen
the chances of a settlement of a strike by collective bargaining. Based on ideas from Swedish
labour law, the writer proposes improvement to the provisions in Vietnamese labour law on
negotiation; appearances of third party; the process of collective bargaining and the mechanism to
ensure it will be carried out; guaranteeing the validity of collective agreements which derive from
the process of collective bargaining.
Finally, on a settlement of a strike by mediation, the writer describe some issues which should
be improved in this part of Vietnamese labour law. As with collective bargaining, the
participation of mediators and guarantees for the validity of proposals and agreements achieved
in mediation raise issues which Vietnamese labour law should improve. In addition, the writer is
concerned with issues of a strike’s postponement as part of a settlement. As is the case with
Swedish labour law, Vietnamese labour law should reinforce the competence of mediators to
ensure the success of mediation. This is linked to issues of postponing strikes and the mediator
should be able to suggest postponement to the provincial labour office. When the issue related to
postponement exceeds the competence of the provincial labour office, this agency can request the
competent authority at provincial level decide.
One of the forms of industrial action is the strike. It is regarded as a basic employees’ right and
one of the most important ways of protecting their rights and interests before the employers. A
strike is also considered a delicate matter because its appearance can have an adverse impact on
the economy, society and the relationship between employer and employee in the labour market.
Therefore, a key issue to research is how to settle strikes as soon as possible, how to reduce to a
minimum the negative effect of a strike when it occurs. Based on the law of the labour market,
the parties involved in the strike issue can solve it by various means such as collective bargaining
and mediation and appeal to the Court. Collective bargaining and mediation are favourable
methods because of they save time, the procedure is easy and the matter is dealt with by the
parties (employer and employee) in comparison with a settlement by the Court.
Vietnamese labour law provides that collective labour disputes in the strike can be settled
by collective bargaining and mediation though a settlement through collective bargaining will be
restricted in its effect. That are many problems such as who participates in the collective
bargaining, the level of bargaining and the legislative mechanism supporting collective
bargaining. Moreover, under Vietnamese labour mediation lacks the “power” to force a
settlement. This results from Vietnamese law on the mediator’s role, implementing the
mediator’s decision and competence regarding postponement. These problems can be resolved
with the help of lessons learned from the law of Sweden- a leader in achieving settlements by
collective bargaining and mediation. To show the necessity of improving the law on the
settlement of strikes through collective bargaining and mediation, I examine the issue
“Settlement of a strikes by collective bargaining and mediation under Vietnamese law- in
comparision with the Swedish system”. It is the subject of my thesis.
Research question and aim of thesis:
The research question shall be how to improve the legislation on the settlement of strikes through
collective bargaining and mediation under Vietnamese labour law so that this legislation will
become more “powerful” and effective in perspective of strike.
The aim of thesis:
By comparing Vietnamese and Swedish labour law, the writer will try to solve problems relating
to the settlement of strikes by collective bargaining and mediation under Vietnamese labour law.
The lessons to be learned from Swedish labour law on the topic will be brought out.
The thesis will concentrate on examining:
-The concept of a strike
-The general idea of the settlement of a strike
-The settlement of a strike by collective bargaining and mediation
The thesis will not focus on such issues as:
-Strikes for political purposes.
My thesis looks at strikes in the context of the labour relationship. Political strikes extend
beyond the sphere occupied by employees and employer and may be studied elsewhere.
-Strikes in the public sector.
Sweden is one of countries treat public sector employees. There are very few differences in
Sweden between private and public sector labour law. Although the writer deals the Co-
Determination Act (SFS 1976:580), in limitation of pages number in thesis, the writer only focus
relationship between employer and employees in private sector. Moreover, the writer has not aim
to study Public Employment Act (SFS 1994:260). That is reason strike in public sector is outside
scope of thesis.
-Consideration legal characteristic of strike (lawful or unlawful) at the Court.
In Sweden, the court does not settle strike. One of its essenstial roles is judgement whether
unlawful or lawful strike. In other words, the court only handle illegal strike. Meanwhile, the
thesis only focuses on settlement of strike by collective bargaining and mediation. Specifically,
manner and procedure to resolve collective labour disputes inside strike by collective bargaining,
mediation are main content which the writer deals. Therefore, settlement by the court will not be
considered in the thesis.
+Present the issue which I shall deal to analyse under Vietnamese and Swedish labour law.
+ Figure out and analyse differences and similarities between Vietnamese and Swedish labour
law in aspect of strike’s settlement by collective bargaining and mediation.
+Consider whether provisions of Swedish labour law in strike’s settlement perspective can
accord with economic and social condition of Vietnamese labour market.
+Pick up and explain about capable to take some legal experiences for “transplantation” into
Vietnam and how to impose these experiences of Swedish labour law into Vietnamese system.
-Traditional legal method:
+Mention issues which are related to thesis’s content.
+Bring out legal grounds supporting such issues.
+Analysis legal grounds to demonstrate they do indeed support the issues .
+Bring out viewpoint.
+Explain and analyse viewpoint.
+Mention other viewpoints (similar and different)
+Explain and analysis these viewpoints.
+ Draw conclusion.
In my thesis, I shall begin with the concept of a strike and study its settlement through collective
bargaining and mediation by comparing relevant Vietnamese and Swedish labour law. After that,
I shall analyse the same topic using the comparative method and shall then focus on settlements
by way of mediation.
OVERVIEW OF STRIKES AND THEIR SETTLEMENT
Background of labour market and labour law developments in Vietnam and
Background of labour market and labour law developments in Vietnam1
Under Vietnamese democratic government, industrial actions was mentioned in statute law.
Decree 29/SL of President Ho Chi Minh dated 12 March 1947 providing regulations on
employment between Vietnamese employers or foreigner employers and Vietnamese employees
at industrial factories, mines, commercial firm regulated: “Workers have right freedom of
association and to take industrial action”.2
The years later, because of basic “shift” in labour relationship and request of political
purpose, labour law in Vietnam had not recognized industrial action in aspect of state-owned
trade. In 1986, when Vietnam has changed from mechanism of economic management by mode
of concentrated planilisation to structure of market economy, labour relationship was diversified
by diversification of ecomomic composition in market economy. This set up request of
recognization of industrial action in Labour law again.
In 1994, the National Assembly adopted Vietnamese Labour Code. Chapter XIV (from
article 157 to article 179) in this version of Labour Code provided regulation on labour dispute
and strike-one of forms of industrial action. In addtion, Standing Committee of the National
Assembly promulgated the Ordinance on the Procedure for the Settlement of Labour Disputes in
1996. This ordinance comprises two main sets of rules. One regulated procedure for the
settlement of labour disputes. The second of set of rules concerned procedure for the settlement
of strike. The year of 2002, although Vietnamese Labour Code was modified and supplemented,
there is no any “shift” in provisions of labour dispute and strike. In practice, regulations on
Reference 1from Magazine “TheState and Law” N0 6/2007 and “Some viewpoints on amendment and supplement
Vietnamese Labour Code on Labour Dispute and strike”, Dr Do Ngan Binh, Magazine “Democracy and Law N 0
7(136) July 2003.
Article 174, Chapter 8 of Decree 29/SL dated 12 March 1947.
labour dispute and strike in labour law shown inadequacy. For instance, these regulations have
not basic definitation such as type of labour dispute, strike… It leaded out different understanding
or opposite interpretation about such definitation.
August 2005, Ministry of Labour, War Invalids and Social Affairs presented Government
Bill of Ordinance on the Procedure for the Settlement of Strike. However, a lot of legislatiors
considered that provisions in this Bill had yet accorded with current Vietnamese Labour Code (at
that time). Therefore, instead of adopting the Bill of Ordinance on the Procedure for the
Settlement of Strike, the National Assembly decided amendment and supplement provisions of
labour dispute and strike in Vietnamese Labour Code (Chapter XIV).
29 October 2006, the National Assembly adopted the Law Amending and Supplementing
a number of Articles of the Labour Code on the procedure for the settlement of Labour Disputes.
Beginning at July 01 2007, the Ordinance on the Procedure for the Settlement of Labour Disputes
was been no longer valid. In the Law Amending and Supplementing a number of Articles of the
Labour Code 2006, almost basic rules which regulated labour disputes, settlement of labour
dispute such as concept of labour dispute, competent, prescription, procedure of settlement of
labour dispute were amended and supplemented. Moreover, the concept of strike and type of
dispute was stipulated first.
On the whole, nowadays, in Vietnam, there is no such thing as a set of different statutes
on disparate issues along with labour dispute, industrial relation, strike, but only a general Labour
Code. The law on industrial relation has been just developed in recent years. Regulations on this
perspective have been recognized in the Amending and Supplement of the Labour Code in 2006.
Background of labour market and labour law developments in Sweden3
At present, the main statute in the field of collective labour law or law of industrial relations,
collective bargaining and mediation is the Act on Co-Determination at work (SFS 1976:580) ,
commonly referred to as the Co-Determination Act (The MBL). This Act covers the relationship
Reference from “Labour Law”, Ann Numhauser-Henning, page 343-373, in book “Swedish law in the new
Millennium”, Editor: Prof. Dr Micheal Bogdan, 2006; “The evolving structure of collective bargaining in Sweden
(1990-2003) Report 2004-09-16”, Prof, Dr Birgitta Nystrom, University of Lund, Sweden.
between employer and employee or any person who occupies a position of essentially the same
kind as an employee. The MBL contains two main sets of rules. One includes what might be call
the basic rules of collective bargaining, which have been transferred, with minor addtions or
amendments, to the 1976 Act from earlier legislation on peaceful industrial relations. The second
set of rules concerns co-determination at work, first introduced as a result of Act itself. The CoDetermination Act applies to both private and public employees.
Thus, the basics of current Swedish labour law, including the MBL and Acts which
regulate in labour market can be dated back nineteenth century, more than one hundred years ago.
It was then still dominant social partners were found: the Trade Union Confederation (LO) in
1898 and the Employers Confederation (SAF) in 1902.4 At that time, when industrial actions
were frequent, it set up issue that social partners back then had began a social dialogue. Through
this negotiation, SAF (SN) and LO established an early agreement of special importance: the
“December Compromise of 1906” which was known as “The Swedish Model” to start a great
autonomy for the social partners and their social responsiblility. By this compromise, the
employees’ side was protected against dismissals that violated the right of association. In
addition, the employyers’side retained “employer prerogatives” which maintained the right to
direct and allocate work freely and also “to hire anf fire at will”. This agreement was followed
later on by the important Saltsjobaden Agreement in 1938. Regulatory developments took place
mainly in the form of collective bargaining and signing of subsequent collective agreement on
different issues. The first legislative measure in the field of industrial law was the 1906
Mediation Act (replaced in 1920). It was based on vonluntary compliance.
The principle rules of labour law in Sweden were articulated by the social partners
themselves. Also, subsequent legislation was a mere codification of the social practice made
genarally applicable to parts of the labour market, such as the wage of employee, where unisation
developed only later. Early regulation by statutes comprised an Act on Collective Agreements
and Industrial Action 1928 and an Act on Collective Bargaining and right of association 1936.
Moereover, the Labour Court, a special tribunal was established in 1928. Employment
Nowaday, SAF has amalgamated and changed name to SN Cofederation of Swedish Enterprise.
conditions-including employment protection-were first regulated in collective agreement through
In the 1970, this period was considered as a “shift” in union strategies took place. It
leaded out a consequence of industrial restructuring, increased labour market participation on
behalf of women and a fast-growing public sector. Unions turned to the legislator to guarantee
both industrial democracy and important labour-market conditions. After “shift” period took
place, a certain decentralisation of industrial relations was entailed. Current Swedish labour law
reflected these historical developments. A consequence is that Sweden has not a Labour Code.
Labour aspect only contain a set of different statutes on disparate issues along with numberous
During the 1980s, the employers who are in SAF of private sector changed their strategy
from cooperation with their counterparts towards opinion making measures. In this period, it was
rosen opposition and competition between defferent groups of employees such as “blue-collar
workers” and “white-collar workers”. Industrial action also took place in almost every wage
round which was a new phenomenon on Swedish labour market and the social partners found it
exceedingly difficult to conclude agreements in during 1980s.
Then, the period of the 1990s was considered an interest phase on Swedish labour
aspect. The role of the social partners (LO and SAF) was declined. The highly centralised
bargaining system has started a decentralisation. Meanwhile, the Swedish bargaining system still
could be characterised as centralised. Also beginning of the 1990s, industrial actions were
extended. Unemployment increased sharply so that since 1930s, the Swedish labour market has
faced first. In this period, a Government Bill which has a suggested prohibition on strike was
rejected by the Parliament. As a consequense of, the Social Democrats had to leave office. The
Social Democrats was immediately reinstalled in order to get some control over increasing
unemployment, inflation and salary. Under leadership of a very experienced mediator, a tripartite
national commision consisting of experienced, retired representative for the labour market parties
was appointed by the Social Democrats in 1995. This tripartite national commision as well as an
attempt to force the social partners to agree on new rule about bargaining. Notwithstanding
leadership of experienced mediators, tripartite national commision failed. After that, in 1997, the
Government invited the social partners to suggest reforms in Swedish wage formation system.
However, it was quite obvious that the parties were very far from each other in their opinions of
how to resolve issues.
A Committee was suggested finally by the Government to review wage formation
throughout the Swedish labour market. It examined the principles governing salary negotiation,
the rules of mediation and regulations on industrial action. When a number of the committee’s
recommendations were adopted, the Nation Mediation Office was established in 2000. This
office replaced the old state mediation system. Nowadays, although the National Mediation
Office is known as the central authority responsible for mediation in labour disputes, this agency
also got a new task: to promote an efficient salary formation process.
In short, historical developments of current Swedish labour law is long-term prcoess.
This process reflected the role of socia partners, collective bargaining, collective agreement.
There is no thing as a Labour Code, but only a set of different statutes on disparate issues along
with numberous collective agreements. Collective labour law or the law of industrial relations
and collective bargaining is regulated mainly in the Act on Co-Determination at Work (SFS
The Concept of the Strike
The concept of the strike contained in the Vietnamese Labour Code 5 has been argued about from
various viewpoints6. In this research, in addition to the study of strikes as determined by legal
considerations, we also review them from the point of views of socio-economic life and the
approach of the International Labour Organization (ILO). On that basis, the term “strike” can be
viewed more comprehensively as a phenomenon existing in market economies.
Article 172 Vietnamese Labour Code.
“Law on strike and settlement of a strike in Vietnam”, Dr. Đỗ NGân Bình, PublisherTư Pháp, 2006, pages 216-219;
“Goals, viewpoints and issues which are considered are brought out on establishment Decree of strike and settlement
of a strike”, Lê Duy Đồng, state in Seminar of law of strike at Ho Chi Minh city, September 2004.
Strikes seen from a socio-economic angle and international law
From the socio-economic viewpoint, a strike is a measure of the workers’ struggle to enforce
demands relating to economic or professional interests. It manifests itself through the social
factor of voluntary work stoppages effected by one or more groups of workers. A strike makes
production come to a standstill, upsets the order of business management, reduces productivity
and product quality, and negatively affects and destabilizes society. While a strike is not the only
way for the workers to achieve their ends, it is usually considered the most effective measure to
protect their rights and interests due to the pressure it imposes.
Studying the regulations of the International Labour Organization (ILO) on strikes, we
learn that the ILO also defines the strike as one of the measures used by workers to defend and
extend their socio-economic interests. This is reflected in the Report of the Vietnamese General
Labour Federation on the ILO’s consideration on strikes that: "Strikes are a fundamental means
by which workers and their organizations may defend their social and economic interests not
only for better conditions or collective occupational requirements but also for settlements of
socio-economic policies and other labour issues of workers directly concerned"7.
Moreover, pursuant to Article 8 of the International Covenant on Economic, Social and
Cultural Rights of the United Nations, the strike is also stipulated as a right of workers.
Accordingly, the right to strike is the right of workers to conduct a temporary work stoppage
voluntarily and lawfully with the aim of compelling an employer or other person to accede to
certain demands regarding their rights and interests8. The recognition of the right to strike of
workers can be found in national constitutions (of France, Germany...) or in Labour Codes (of
Thailand, the Philippines, and Vietnam9..). Unlike other actions, the right to strike cannot be
performed through an individual’s suspension of work. A strike is only recognized as such if the
work stoppage is organized by a labour collective towards common goals. In other words, to
strike is an individual right of workers, but it has to be performed by a collective.
On the other hand, politically speaking, there has been the suggestion that the right to
demonstrate10 is also the right to strike. In fact, the right to strike as found in labour law is
“Trade Union protects lawful rights, benefits of employees before the Court”, Vietnamese General Labour
Federation, 1997, page 31.
International Convention 1966 about economic, social, culture rights of Genaral Assembly of the United Nations.
Clause 4, Article 7 of the Labour Code of Vietnam specifies: “The employee has the right to strike as prescribed by
Article 69 of the 1992 Constitution of Vietnam.
completely different from the right to demonstrate mentioned in such places as the Vietnamese
Constitution. Pursuant to the International Covenant on Economic, Social and Cultural rights of
the United Nations and the views of the ILO which were presented above, a strike is one of the
socio-economic rights of workers. The right to demonstrate is considered as one of the basic
political rights of a citizen who, irrespective of being an employee, employer or other, fully
qualifies as a citizen of a nation. Furthermore, workers can only use the right to strike as
stipulated by the law covering the labour relations that have been established between them and
their employer. Thus, the scope of the right to strike is narrower than the right to demonstrate
stipulated by the Constitution. In addition, one more reason to affirm the distinction between the
right to strike and the right to demonstrate is that settlement of strikes have to comply with the
processes and procedures prescribed by labour laws while the settlements of demonstrations will
depend on each specific case for the appropriate measures.
In general, seen from whatever angle, a strike is recognized as a right of workers.
Exercise of the right to strike will have a certain impact on society and the economy. Therefore, it
is essential to establish a full legal basis for identifying a strike by way of a specific conception
posed by the law in force, coupled with the socio-economic context where strikes arise and exist.
At the same time, we can review the legislation on settlement of strikes.
The strike in the Labour Code of Vietnam
Strikes were first mentioned in the Law Amending And Supplementing A Number Of Articles Of
the Vietnamese Labour Code in 2006. Article 172 of the Labour Code stipulated:
"A strike means a temporary and voluntary cessation of work organized by a labour collective
to resolve a collective labour dispute".
A strike can thus be identified by the basic signs mentioned in the law.
First, a strike is the response of a labour collective conveyed by a cessation of work.
Normally, in the relationship between workers and employer, the workers perform their
contractual assignments and obligations as stated in their labour contracts. Workers seek
employer approval when they want to suspend the assigned job. However, if the cessation of
work is carried out by a group of employees, for the purpose of enforcing demands relating to
their rights and interests, this is considered as the first sign and the basic attribute of a strike as
defined in law.
Thus, the aforesaid "cessation of work" is the reaction of workers expressed by their nonexecution of labour obligations without the agreement of their employer. In reality, there may be
two possibilities. First, the employer is informed of the workers’ intention prior to the work
stoppage but refuses to make concession to their demands. This is a typical case of a legal strike.
Second, the employer is not pre-informed of a sudden voluntary cessation of work. In both
circumstances, the work stoppage derives from the subjective will of a labour collective. It shows
the workers’ intention of not performing their labour obligations as agreed for the purpose of
enforcing demands relating to their rights and interests.
Following the legislative trend in some nations, only a complete and voluntary work stop
constitutes a “work stoppage” for the purposes of a strike. Accordingly, after officially
proclaiming a strike, workers are united in refusing to execute any labour obligations until their
demands are met or until there is an order of the trade union leading the strike or a decision of the
relevant authorities. In other words, when workers stop working, all work being undertaken will
cease. The seriousness of the situation depends on the scope and time of the strike and the
In addition, the Labour Code of Vietnam provides that only a voluntary cessation of work
for the purpose of protesting against the employer is still considered as a strike while a thorough
work stoppage as such is not. Specifically, the Labour Code states "A strike means a temporary
and voluntary cessation of work organized by labour collective"11. However, this definition can
lead to confusion with other concepts such as go-slow, reaction of a labour collective, etc; certain
basic concepts in the Labour Code need to be specified more precisely. Within chapter I, as
suggested by the above definition of strike, the writer mainly focuses on analysis and clarification
of the signs of a strike, of which “cessation of work” does appear first.
One more point is that cessation of work within the context of the definition of strike is
not the same as a work stoppage constituting termination of a labour contract. Striking workers
do not intend to terminate their contracts and show their willingness to go back to work if their
demands are met. The temporary work stoppage is a sign of a strike while the act of unilateral
termination of a labour contract, puts an end to all labour obligations previously agreed.
Moreover, a strike is conducted by a labour collective. This is the basis for distinguishing
between a strike and individual work suspension. An individual voluntary work stoppage is
Article 172 Vietnamese Labour Code.
considered as an offence against labour discipline with compensation (if any) being paid to the
employer, while a work stoppage carried out by a labour collective with coordination of the
workers is defined as a lawful strike. This participation of the labour collective is one of the
expressions and also the basic sign of a strike.
Another mark of a strike is that it is characteristically organized. This “organized
characteristic” is guaranteed by the fact that a strike will be led by an individual or a group
deputizing for the will of a labour collective with a common action plan and collective rules. An
organized strike is one with a leader although this can be a delegation of workers such as a
Labour Union, Trade Union or Industrial Union. Subject to variations on the impact of strikes on
various aspects of the economy, the leadership status of such person or group is admitted and
recognised in the laws of most countries. Previously, the Labour Code of Vietnam only
recognized a strike as legal if it was led by the executive committee of the trade union of the
enterprise or by the provisional executive committee of a trade union 12. In reality the, leadership
of a strike is diversified subject to the objective and de facto requirements of the circumstances
leading to strike. With the Law Amending And Supplementing A Number Of Articles Of The
Labour Code in 2006, the leadership status is now broader than the executive committee of the
trade union of the enterprise or the provisional executive committee of a trade union. The
leadership and organization of a strike can now be undertaken by any representative of the labour
collective, who is elected13 by the workers and accepted by the law.
Based on the signs contained in the concept of a strike, there is no doubt that the
“organized” attribute of a strike is in close coordination with its “collective” aspect. In other
words, without the unity manifested through the leadership of an individual or a group, striking
workers will not act in common, thus maximizing the strength of a labour collective.
Basing ourselves on the definition of strike in the Article 172 of the Law Amending And
Supplementing A Number Of Articles Of The Labour Code in 2006, we can find at least 3 basic
signs of a strike: (i) being a temporary cessation of work, (ii) organized by a labour collective and
(iii) in order to resolve a collective dispute. These are fundamental factors which affect settlement
Article 172a of the Labour Code in 1994, amended & supplemented in 2002.
The Article 172a of the Law Amending And Supplementing A Number Of Articles Of The Labour Code in 2006.
Strikes as stipulated in the law of Sweden
First of all, when studying the concept of the strike in the laws of Sweden, the writer found that a
strike is just one component of the broader term “industrial action”. This notion include work
stoppage such as clockout, strike, blockade, boycott or other industrial action which may be
recognized by the Court. This means that industrial actions were treated as collective activities or,
to speak more exactly, a collective abstaining from work, or refusal of payment for collective
non-working14. The concept of industrial action in the labour laws of Sweden thus has a broader
connotation than the concept of strike now to be found in the Labour Code of Vietnam. Pursuant
to the Swedish Constitution, the right to industrial action is part of the rights of labour. Both
employees and employers are entitled to exercise their rights and we read: “A trade union or an
employer or employers' association shall be entitled to take industrial action…” 15. Similarly, the
Co-Determination Act 1976 (“the MBL”) as amended and supplemented in 1991 and 2000 states
that only industrial action which violates its sections 41 and 41b 16 is unlawful. This means that
unless expressly unlawful,17 industrial actions by employer or employees are permitted.
The writer also recognized that this provision is quite open and can be understood very
broadly since industrial actions are defined by the “excluded” method. Differing from the
Vietnamese Labour Code, Swedish law does not give a specific definition of industrial action.
The MBL only enumerates cases of unlawful industrial action. 18 Collective actions which are not
unlawful industrial action are accepted by the law. Secondly, the MBL does not give details of
industrial actions other than to say that they contain work stoppages. All forms of industrial
action involving a stoppage of work-whether it is at the initiative of employees (strike) or of
employer (clockout)-impair the normal execution of the contract of employment. 19 Moreover, the
Act does not define actions which could be said to be comparable to work stoppages action. This
issue will be handed over the Court to explain in each case; it will determine which actions are
similar to a work stoppage. Commonly, ceasing to perform unfair labour obligations, e.g.
refusing overtime working, is also considered as a work stoppage under the law of Sweden.
“The legality of industrial actions and the methods of settlement procedure”, Thilo Ramm, Page 294 in book
“Industrial Conflict – a Comparative Legal Survey”, Editors: Bejamin Aaron and K.W Wedderburn, Publisher:
Bejamin Aaron and K.W Wedderburn,
17 The –Instrument
See The MBL sec 41,41b.
See The MBL sec 41,41b.
“The effect of industrial action on the status of the individual employee”, Xavier Blanc-Hounvan, para 2, page 176
Therefore, to distinguish between a strike and comparable collective actions, the stoppage
of work involved in a strike is the key. Subject always to what the Court says, comparable actions
are likely to be seen as incomplete work stoppages. In this case, we have other forms of lawful
industrial actions such as a partial strike, a go-slow or a boycott..
A second issue, differing again from the Labour Code of Vietnam, relates to the Sweden
principle of “equality of arms” (principle of equality of employees and employers in labour
relation) which says that not only are employees entitled to stop work, but also employers. If
employers act, this is defined as a lockout. Therefore, stoppage of work – the prerequisite for a
strike – can come from either party to the labour relation, i.e. employees or employers. Therefore,
all forms of clockout are lawful, both offensive and defensive (ie retaliatory). Offensive clockouts
are rare, but a retaliatory clockout is fairly common as a response to primary industrial action
from the employee side.20 This differs greatly from the law of Vietnam. With the aim of
maximizing the protection of employees – the subject at a disadvantageous position in labour
relations - the Labour Code of Vietnam requires a strike to be organized by a labour collective.
Offensive or defensive clockouts by employers are not permitted. However, this research focuses
on the strike and the concrete sign that it is a stoppage of work conducted by employees. The
writer does not tend to study lockouts carried out by employers.
The third issue relates to the link between strike and labour relations. All industrial
actions as defined in the law of Sweden aim to effect labour relations between employers and
employees but, differing again from the Labour Code of Vietnam, a strike in Sweden is not tied
to the settlement of a collective labour dispute. A lawful strike or industrial action in Sweden uses
force to acquire advantages in the relations between each of two parties. On the contrary, a strike
in Vietnam is not “a work stoppage to insist on demands that an employer does not want to
satisfy” or “a work stoppage to guarantee success for demands that employees lodge with an
employer”. 21 In other words, the Labour Code of Vietnam does not allow a strike with the aim of
putting economic pressure on the other party so as to achieve demands relating to the rights and
interests of a labour collective. On the contrary, the Labour Code of Vietnam recognizes the
strike as a measure to resolve a collective labour dispute aiming to satisfy rights and obligations
relating directly to the employees.
“European employment and industrial relations glossary: Sweden”, Reinhold Fahlbeck and Tore Sigeman, Sweet
and Maxwell Office for Official Publications of the European Communities, 2001, page 30.
According to the citation of the writer Do Ngan Binh in the book « The law on strikes and settlements of a strike »
from Judicial Publisher, 2006, page 27 ; that writer consulted Helene Siney, Que sais-je, Presses Universitaire de
France, 1981, page 35.
Fourth, a strike not only originates from but can also go beyond labour relations as
happens with some political strikes. This type of strike can be described as “a work stoppage
directly against the Swedish Government or authorities in Sweden or authorities abroad”.22 A
work stoppage in a political strike may be acceptable if the court finds that it is comparable to
industrial action.23 Professor Folke Schmidt’s study gave reasons for concluding that a political
strike as so defined, was not unlawful. Some reasons are:
“(…)The assumption on which the Swedish Act on Collective Agreements (essentially
replacing those given in the former by 1976 Co-Determination (the MBL) is based is that
collective industrial action is permitted unless enumerated as wrongful (…)
No Swedish statute regulates political strikes; and on the introduction of the 1962 Penal
Code it was made clear that peaceful political strikes were not an offence against the State
In fact, the Social Democratic Party and Labour Union mounted a political strike in 1928
against the draft of the Collective Bargaining Agreement and Labour Code. 25
Accordingly, the scope of Swedish labour law extends beyond the scope of the labour
relations between employer and employees. This is one of the differences in the concept of strike
as defined respectively in the labour laws of Vietnam and Sweden. In Vietnam, a strike is only
allowed if it is within the bounds of the labour relations between employer and employees.
Political strikes going beyond this will not be allowed by the labour code.
We could say that the strike is a sensitive issue affecting the whole socio-economy of
Vietnam and has only just entered the labour code. We need to experience of the results of this
acquisition before making further improvements. So, a concept of strike going beyond labour
relations has not yet entered the labour code of Vietnam and there is no governance of political or
sympathy strike as is to be found in the law of Sweden. The analysis of lawful and unlawful
strikes as found in the law of Sweden and the way that the law allows the court to consider a
“Industrial action, the State and the public interest”, KW Weddern, Page 332, in book “Industrial Conflict – a
Comparative Legal Survey”, Editors: Bejamin Aaron and K.W Wedderburn, Publisher: Longman-London, 1972; in
this article, that writer cited viewpoint of Prof . Folke Schmidt in “ Politiska strejker och Fackliga Sympatiatgarder
(Political Strikes and Trade Union Sympathetic Actions, Stockholm 1969).
Dagsposten Case (1945/62).
, “Industrial action, the State and the public interest”, KW Weddern, Page 332- 333, in book “Industrial Conflict
– a Comparative Legal Survey”, Editors: Bejamin Aaron and K.W Wedderburn, Publisher: Longman-London, 1972.
stoppage of work or other industrial action comparable make the concept of strike very flexible
and broaden its connotations in terms of forms, expressions and signs; this is all well beyond the
scope of the definition of strike in Vietnam.
Fifth, studying strikes as the right of the workers, (apart from lockouts), the writer found
similarities in the “organized” and “collective” features of the laws of both Sweden and Vietnam.
The employees in Sweden can exercise their right to strike through the organizations they join
and this is governed by the Constitutional provisions on the right to strike. 26 The Constitution
allows every trade union, but not an individual or a group of employees, to take industrial action.
Industrial action effected by a group of employees without involvement of a trade union will be
unlawful. Therefore, in Sweden, as in Vietnam, an employee can only exercise the right to strike
through a trade union. On the basis that a trade union is the most obvious type of organized
labour collective, the strike in the law of Sweden has an organized and collective nature.
Lessons learned from the improvement of the concept of the strike in Swedish law
Analyzing strikes under the law of Sweden allows one to see the need for improvements in the
Vietnamese Labour Code in order to reflect more exactly how a cessation of work currently takes
place in Vietnam.
As mentioned above, a strike can be recognized by their being a stoppage of work
organized by a labour collective. Moreover, a strike is also defined as a measure to resolve a
collective labour dispute. Such basic signs can not only help identify a strike but also distinguish
it from other industrial actions. Generally, the signs of a strike mentioned in the labour code of
Vietnam are relatively sufficient and comprehensive. Among these signs, the temporary cessation
of work showing that a strike is a measure to resolve a collective labour dispute should be studied
with a view to improvement.
The, “temporary cessation of work” in a strike can be confused with work stoppages in
other industrial actions (such as a go-slow, collective reaction, boycott, etc which the CoDetermination Law of Sweden allows to be used by parties to the labour relation). The law of
Sweden accepts the sign of work stoppage but does not clarify if this is a complete or temporary
stop. However, the law mentions both the work stoppage in a strike and other lawful industrial
actions comparable therewith such as boycott, lockout and go-slow strike). Any actions
The 1974 Instrument of Government, Chapter 2, Article 17 “Every trade Union (…) shall have the right to take
industrial action, failing any provision to the contrary laid down by law or agreement”.