Circular No. 06/2008/TT-BLDTBXH guiding the implementation of certain provisions of Decree No. 04/2005/NĐ-CP dated January 11, 2005 of the Government detailing and guiding the implementation of certain articles of the Labor Code on complaints and denunciations regarding labor.

CIRCULAR

Guidelines for Implementing Certain Provisions of Decree No. 04/2005/NĐ-CP dated January 11, 2005 of the Government on Detailed Regulations and Guidance for Implementation of Certain Provisions of the Labour Code Regarding Complaints and Accusations Related to Labour

Pursuant to Decree No. 04/2005/NĐ-CP dated January 11, 2005 of the Government on detailed regulations and guidance for implementation of certain provisions of the Labour Code regarding complaints and accusations related to labour, the Ministry of Labour, Invalids and Social Affairs provides guidelines for implementation as follows:

Chapter I. SCOPE OF REGULATION AND APPLICABLE OBJECTS

1. Scope of regulation: As stipulated in Article 1 of Decree No. 04/2005/NĐ-CP concerning complaints, accusations, and resolution of complaints and accusations related to labour. In cases where workers are subject to disciplinary action, temporary suspension from work, or required to compensate under material responsibility regimes, if they do not request resolution of labour disputes according to the laws on resolution of labour disputes, they have the right to file complaints in accordance with this Circular.

2. Applicable objects as provided in Article 2 of Decree No. 04/2005/NĐ-CP include:

a) Workers and worker collectives working in the following organizations: - Enterprises established and operating under the Enterprise Law; - Enterprises of political organizations, political-social organizations, economic-social organizations, political-professional organizations, social-professional organizations, and other social organizations; - Cooperatives established and operating under the Cooperative Law; - State agencies, public service units; - Units and economic organizations under the People's Army and People's Public Security forces; - Agencies, organizations that enter into contracts with workers to send them abroad for training, apprenticeship, or skill enhancement; - Farms, individuals, households employing workers under labour contracts; - Semi-public, private, and individual establishments in cultural, health, education, training, scientific, physical education, and sports sectors and other sectors; - Foreign agencies, organizations, or international organizations based in Vietnam employing workers under Vietnamese labour laws, except where international treaties to which the Socialist Republic of Vietnam is a party provide otherwise.

b) Employers include: - General Directors, Directors of enterprises operating under the Enterprise Law; - Heads of cooperatives, individuals, household heads hiring workers; - Heads of state agencies, public service units, political organizations, political-social organizations, economic-social organizations, political-professional organizations, social-professional organizations, and other social organizations employing workers under labour contracts; - Heads of economic organizations under the People's Army and People's Public Security forces employing workers under labour contracts. - General Directors, Directors of foreign-invested enterprises operating in Vietnam, foreign agencies, organizations, or international organizations based in Vietnam employing workers under labour contracts. - Directors of enterprises, Heads of agencies, organizations, and individuals of Vietnamese nationality based in Vietnam employing foreign workers.

II. COMPLAINT RESOLUTION

1. Rights and obligations of the complainant as stipulated in point a, Clause 1, Article 6 of Decree No. 04/2005/NĐ-CP:

a) To exercise their right to file a complaint themselves;

b) If they do not exercise their right to file a complaint themselves, they may do so through a legally authorized representative; a legally authorized representative includes a legal representative or an authorized representative: - A legal representative is a representative designated by law or decided upon by a competent state authority. Legal representatives include: + Parents for underage workers; + Guardians for those under guardianship; + Persons appointed by the court for those with limited capacity for civil acts; + Other subjects as prescribed by law. - An authorized representative is a representative established through authorization between the representative and the represented party. The authorization must be documented in writing and comply with the provisions of civil law.

2. Complaint procedures as stipulated in Clause 1, Article 12 of Decree No. 04/2005/NĐ-CP: The complainant must submit a petition clearly stating the date, month, year of the complaint, name, address, reasons, and content of the complaint; the name and address of the organization or individual using labour that is being complained about; and the complainant's requests (according to Model No. 01 issued together with this Circular). The petition must be signed or marked by the complainant. The complaint petition must be sent to the competent agency, organization, or individual for resolution.

3. Acceptance for complaint resolution as stipulated in Clause 1, Clause 2, Article 13 of Decree No. 04/2005/NĐ-CP:

a) The person with the authority to resolve complaints, upon receiving a complaint within their jurisdiction, must accept it for resolution and notify the complainant in writing (according to Model No. 02 issued together with this Circular). If the petition does not fall within their jurisdiction, they must notify and guide the complainant to submit the petition to the person with the authority to resolve it, while sending along any relevant documents and materials related to the content of the complaint (if any) (according to Model No. 03 issued together with this Circular). Notification shall only be made once for each complaint case.

4. The time limit and procedure for handling the first complaint as prescribed in point c, Clause 1, Article 14 of Decree No. 04/2005/NĐ-CP: The person handling the first complaint must meet and have direct dialogue with the complainant; for complaints from labor collectives, there must be participation of the representative of the grassroots trade union, and where there is no grassroots trade union, there must be participation of the representative of the workers (from a higher-level trade union) along with a labor mediator or other mass organization. The decision to resolve the first complaint must be made by a decision on resolving the complaint (in accordance with Form No. 05 issued together with this Circular).

5. The decision on handling subsequent complaints as prescribed in point g, Clause 1, Article 18 of Decree No. 04/2005/NĐ-CP: Maintain, amend, revoke, or require amendment or revocation of part or all of the previous decision on resolving the complaint, stop the complained conduct, and resolve specific issues within the scope of the complaint. The content of the decision on handling subsequent complaints (in accordance with Form No. 06 or No. 07 issued together with this Circular).

Chapter III. COMPLAINT HANDLING

1. Complaint procedures as prescribed in Article 27 of Decree No. 04/2005/NĐ-CP: The complainant must submit a letter to the Director of the Department of Labor, Invalids and Social Affairs' Inspectorate or a labor inspector when they are conducting an inspection at an enterprise. In the complaint letter, the name, address of the complainant or the representative of the labor collective making the complaint, and the content of the complaint (in accordance with Form No. 08 issued together with this Circular) must be clearly stated. If the complainant presents their complaint directly, the labor inspector or staff member of the Department of Labor, Invalids and Social Affairs must record the content of the complaint, the name, and address of the complainant, and obtain the signature or thumbprint of the complainant for reporting to the Director of the Department of Labor, Invalids and Social Affairs for consideration and resolution.

2. Do not consider or resolve anonymous complaints, complaints under false names, those without clear addresses, lacking direct signatures but instead having photocopied signatures, or complaints that have already been resolved by competent authorities but are resubmitted without new evidence.

IV. IMPLEMENTATION 

This Circular takes effect fifteen days after its publication in the Official Gazette.

Any difficulties encountered during implementation should be reported to the Ministry of Labor, Invalids and Social Affairs for study and resolution./.