Settlement of a strikes by collective bargaining and mediation under vietnamese law- in comparision with the swedish system

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Table of Contents Table of contents ……………………………………………….…………………… ……………… 1 Abbreviations……………………………………….………………………………… ……………….. 2 Executive Summary………………….…………………………………………………………………..3 1. Introduction………………………………………………………..…………………………… 4 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 law............................................................................................................................................... 20 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 3. 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 bargaining…….............................................................................................................................30 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 4. 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 mediation ………………………………………………………………….................................42 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 5. Conclusion…...………………………………………………………………….........................61 Bibliography.……………………………………………………………………………........................62 1 Abbreviations: 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. 2 Executive Summary 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. 3 1. 1. 1 INTRODUCTION Identification 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. 4 1. 2 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. 1. 3 Delimitation: 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- 5 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. 1.4 Method: -Comparative method: +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 . 6 +Draw conclusion. -Logical analysis: +Bring out viewpoint. +Explain and analyse viewpoint. +Mention other viewpoints (similar and different) +Explain and analysis these viewpoints. + Draw conclusion. 1. 5 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. 7 2. 2.1 Sweden 2.1.1 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. 2 Article 174, Chapter 8 of Decree 29/SL dated 12 March 1947. 8 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. 2.1.2 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. 9 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. 10 conditions-including employment protection-were first regulated in collective agreement through collective bargaining. 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 collective agreements. 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 11 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 1976: 580). 2. 2 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. 12 2.2.1 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. 8 9 law.” 10 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. 13 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. 2.2.2 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. 14 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 specific circumstances. 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. 15 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 of strikes. 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. 16 2.2.3 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: Longman-London, 1972. 15 16 17 14 19 in Chapter book “Industrial a Comparative Legal Survey”, Editors: Bejamin Aaron and K.W Wedderburn, 2, ArticleConflict 17 The –Instrument of Government of Sweden in 1974. Publisher: Longman-London, These sections list unlawful1972. industrial actionsbased. 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 17 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. 21 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. 18 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 (…)”.24 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). 23 Dagsposten Case (1945/62). 24 21 , “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. 19 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. 2.2.4 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 26 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”. 20
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