Circular No. 08/2013/TT-BLDTBXH guiding the Government's Decree No. 46/2013/NĐ-CP dated May 10, 2013 detailing certain provisions of the Labor Code on labor disputes.

CIRCULAR

Guidelines for Decree No. 46/2013/NĐ-CP dated May 10, 2013 of the Government detailing the implementation of certain provisions of the Labor Code on labor disputes

of the Government in 2013 detailing the implementation of certain provisions

concerning labor disputes

______________________

Pursuant to Decree No. 46/2013/NĐ-CP dated May 10, 2013 of the Government detailing the implementation of certain provisions of the Labor Code on labor disputes;

Pursuant to Decree No. 106/2012/NĐ-CP dated December 20, 2012, of the Government, stipulating the functions, tasks, powers, and organizational structure of the Ministry of Labor, Invalids, and Social Affairs;

At the proposal of the Director of the Department of Labor and Wages;

The Minister of Labor, Invalids and Social Affairs issues this Circular guiding Decree No. 46/2013/NĐ-CP dated May 10, 2013 of the Government detailing the implementation of certain provisions of the Labor Code on labor disputes.

Article 1. Scope of Regulation

This Circular guides the implementation of the selection, appointment, reappointment, designation of labor mediators to participate in resolving labor disputes, and the removal of labor mediators as prescribed in Decree No. 46/2013/NĐ-CP dated May 10, 2013 of the Government detailing the implementation of certain provisions of the Labor Code on labor disputes (hereinafter referred to as Decree No. 46/2013/NĐ-CP).

Article 2. Applicability

1. Labor mediator.

2. Employee as defined in Clause 1, Article 3 of the Labor Code.

3. Employer as defined in Clause 2, Article 3 of the Labor Code.

4. Trade union organization at the workplace as defined in Clause 4, Article 3 of the Labor Code.

5. Agencies, organizations, and individuals related to the implementation of the selection, appointment, reappointment, designation of labor mediators to participate in resolving labor disputes, and the removal of labor mediators.

Article 3. Application dossier for labor mediator

1. Application form for labor mediator according to Form No. 01/HGV issued together with this Circular. The application for labor mediator of employees working in state agencies, public institutions, political organizations, political-social organizations, and non-professional organizations must have the approval of the agency or unit where they work, as stipulated in point a, Clause 2, Article 5 of Decree No. 46/2013/NĐ-CP.

2. Curriculum vitae with confirmation from the directly managing agency or the People's Committee of the commune, ward, or town where the applicant resides.

3. Health certificate issued by a competent health authority.

4. Certified copies of diplomas and certificates issued by a competent agency or organization.

5. Introduction letter for participation in the application for labor mediator issued by the head of the agency or organization as stipulated in point a, Clause 2, Article 5 of Decree No. 46/2013/NĐ-CP for those recommended to apply for labor mediator.

Article 4. Determination of the number and selection of labor mediators

1. Each district, county, township, or provincial city must have a labor mediator. Based on the number of enterprises and the level of labor disputes in the area, the Department of Labor, Invalids and Social Affairs shall determine the number of labor mediators to be submitted to the Chairman of the District People's Committee for decision. In the fourth quarter of each year, based on the resolution of labor disputes, the number of enterprises, and the current number of labor mediators, the Department of Labor, Invalids and Social Affairs shall report to the Chairman of the District People's Committee to supplement the number of labor mediators for the basis of selection as prescribed.

2. Based on the criteria for labor mediators prescribed in Article 4 of Decree No. 46/2013/NĐ-CP and the number of labor mediators needed, the Department of Labor, Invalids and Social Affairs shall announce the recruitment of labor mediators through local mass media.

3. The Department of Labor, Invalids and Social Affairs shall be responsible for recommending an officer under its management for appointment as a labor mediator.

4. The list of persons meeting the criteria shall be reported to the Chairman of the District People's Committee to propose the appointment of labor mediators as prescribed in point c, Clause 2, Article 5 of Decree No. 46/2013/NĐ-CP, which is established according to Form No. 02/HGV issued together with this Circular.

Article 5. Decision on the appointment of labor mediators

The decision on the appointment of labor mediators by the Chairman of the Provincial People's Committee shall be implemented according to Model No. 03/HGV issued together with this Circular.

Article 6. Publicizing the list of labor mediators

Publicizing the list of labor mediators as prescribed in point g Clause 2 Article 5 of Decree No. 46/2013/NĐ-CP is stipulated as follows:

1. Display publicly at the Department of Labor - Invalids and Social Affairs and the Department of Labor - Invalids and Social Affairs.

2. Publish on the electronic information website of the District People's Committee and the Department of Labor - Invalids and Social Affairs.

3. Announce through local mass media.

Article 7. Accepting requests for resolving labor disputes and assigning labor mediators to participate in resolving labor disputes

1. The Department of Labor - Invalids and Social Affairs shall be responsible for accepting requests for labor dispute mediation and vocational training contract disputes.

2. The party requesting mediation may choose a labor mediator to request the Department of Labor - Invalids and Social Affairs to assign a labor mediator to participate in resolving labor disputes.

3. Within one working day from the date of receiving the request to resolve labor disputes, the Department of Labor - Invalids and Social Affairs shall report to the Chairman of the District People's Committee to decide on assigning a labor mediator to participate in resolving labor disputes.

4. Within one working day from the date of receiving the report from the Department of Labor - Invalids and Social Affairs, the Chairman of the District People's Committee shall decide on assigning a labor mediator to participate in resolving labor disputes. The decision on assigning a labor mediator to participate in resolving labor disputes shall be made according to Model No. 04/HGV issued together with this Circular.

5. Within one working day from the date of receiving the decision to participate in resolving labor disputes, the labor mediator must notify the program, time, and location of the mediation session to the disputing parties at least one working day before proceeding.

6. In case of necessity, the Department of Labor - Invalids and Social Affairs shall report to the Chairman of the District People's Committee to request another District People's Committee in the province to assign a labor mediator to assist in resolving labor disputes.

The District People's Committee where the assistance in labor mediator support is requested shall be responsible for ensuring the operating conditions of the labor mediator in accordance with Article 7 of Decree No. 46/2013/NĐ-CP.

Article 8. Evaluating the results of the completion of tasks by labor mediators

1. Annually, the Department of Labor - Invalids and Social Affairs shall be responsible for evaluating the degree of completion of tasks by labor mediators with the following contents: number of cases assigned to participate in mediation, number of cases participated in mediation, number of successful mediations, compliance with laws on resolving labor disputes, compliance with decisions of the Chairman of the District People's Committee assigning participation in resolving labor disputes.

2. A labor mediator completes their tasks when meeting the following requirements:

- Compliance with laws on resolving labor disputes;

- Compliance with decisions of the Chairman of the District People's Committee assigning participation in resolving labor disputes;

- Achieving more than 50% successful mediations compared to the number of cases participated in mediation.

Article 9. Dismissal of Labor Mediators

1. Labor mediators shall be dismissed when they fall under any of the following circumstances:

a) Submitting a resignation application to withdraw from the role of labor mediator according to Form No. 05/HGV issued together with this Circular.

b) Being evaluated as failing to complete their tasks for two consecutive years as stipulated in Article 8 of this Circular.

c) Engaging in acts that violate the law, taking advantage of their reputation, authority, or responsibility to harm the interests of the parties involved or the interests of the State during the mediation process, including:

- Any of the provisions set forth in Article 3 of the Law on Prevention and Control of Corruption;

- Performing mediation duties without impartiality or objectivity.

The Chairman of the People's Committee at the district level shall be responsible for chairing the meeting to review the extent of the violation of the law by the labor mediator, with the presence of the labor mediator, representatives of the Department of Labor, Invalids and Social Affairs at the district level, and relevant parties related to the mediator's violations. The minutes of the meeting must have the signatures of the labor mediator and representatives of the participating parties.

d) Failing to perform mediation tasks as decided by the Chairman of the People's Committee at the district level for two or more times within the specified period without valid reasons.

2. The document proposing the dismissal of the labor mediator by the Chairman of the People's Committee at the district level shall be sent to the Chairman of the People's Committee at the provincial level along with the Resignation Application to Withdraw from the Role of Labor Mediator (for the case stipulated in point a Clause 1 of this Article) or the Report on Failure to Complete Mediation Tasks (for the case stipulated in point b Clause 1 of this Article) or the Minutes of the Meeting to Review the Extent of Violation of the Law by the Labor Mediator (for the case stipulated in point c Clause 1 of this Article).

3. The decision to dismiss the labor mediator by the Chairman of the People's Committee at the provincial level shall be implemented according to Form No. 06/HGV issued together with this Circular.

Article 10. Ensuring Conditions for the Operation of Labor Mediators

Annually, the Department of Labor, Invalids and Social Affairs shall be responsible for:

1. Preparing the budget estimate, paying, and settling the operating expenses of labor mediators as prescribed in Article 7 of Decree No. 46/2013/NĐ-CP and laws on state budget.

2. Ensuring necessary conditions such as meeting rooms, documents, office supplies for labor mediators to conduct dispute resolution mediations.

Article 11. Reporting System

1. Labor mediators shall be responsible for reporting the results of each mediation case accompanied by the Minutes of the mediation cases to the Department of Labor, Invalids and Social Affairs.

2. The Department of Labor, Invalids and Social Affairs shall be responsible for managing and storing the files and minutes of labor dispute resolutions conducted by mediators; periodically reporting every six months and upon request about mediation activities in the area to the Chairman of the People's Committee at the district level and the Department of Labor, Invalids and Social Affairs.

3. Periodically reporting every six months and upon request about mediation activities in the area, the Department of Labor, Invalids and Social Affairs shall report the results of appointments, dismissals, and labor dispute mediation activities to the Chairman of the People's Committee at the provincial level and the Ministry of Labor, Invalids and Social Affairs.

Article 12. Effective Date

1. This Circular takes effect from July 1, 2013.

2. Circular No. 22/2007/TT-BLDTBXH dated October 23, 2007, of the Ministry of Labor, Invalids and Social Affairs guiding the organization and operation of grassroots conciliation councils and labor mediators, and previous regulations inconsistent with this Circular shall cease to be effective from the date this Circular takes effect.

3. In the course of implementation, if there are difficulties, agencies and units are requested to reflect them to the Ministry of Labor, Invalids and Social Affairs for timely guidance and supplementation./.