Decree No. 11/2008/NĐ-CP on compensation for damages caused by illegal strikes

DECREE

Regulations on compensation for damages caused by illegal strikes

labour

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THE GOVERNMENT

Based on the Government Organization Law dated December 25, 2001;

Based on the Labor Code dated June 23, 1994, and the Law Amending and Supplementing Certain Provisions of the Labor Code dated November 29, 2006;

Considering the proposal of the Minister of Labor, Invalids, and Social Affairs,

DECREE:

Chapter 1 GENERAL PROVISIONS

Article 1. Scope of Regulation

This Decree stipulates the responsibility for compensating damages, the amount of compensation, and the form of compensation for organizations and individuals participating in strikes that cause damage to employers when the strike is declared illegal by the People's Court according to Clause 1, Article 179 of the Labor Code amended and supplemented by the Law Amending and Supplementing Certain Provisions of the Labor Code dated November 29, 2006 (hereinafter referred to as the Labor Code).

The compensation for property damage to employers as stipulated in Clause 2, Article 179 of the Labor Code shall be applied in accordance with the provisions of the Civil Code on compensation for damages outside contracts.

Article 2. Applicability

Organizations of trade unions, representatives of labor collectives, and workers participating in strikes that cause damage to employers when the strike is declared illegal by the People's Court.

2. Employers.

Article 3. Principles of Compensation for Damages

1. Damages must be fully and promptly compensated according to the request.

2. The amount of compensation for damages is determined based on actual material losses.

3. Respect and encourage the right of parties to make their own decisions.

4. Ensure the rights and legitimate interests of employers and workers to maintain and develop labor relations at enterprises.

5. Compensation shall be carried out in the form of money, goods, or by performing a task.

Chapter 2 REGULATIONS ON COMPENSATION FOR DAMAGES

Article 4. Liability for Compensation for Damages

1. Trade union organizations leading strikes declared illegal by the People's Court, causing damage to employers, have the responsibility to compensate for damages.

2. In cases where strikes led by representatives of labor collectives are declared illegal by the Court and cause damage, those persons appointed to represent the collective and workers participating in the strike must bear individual responsibility for fulfilling the obligation to compensate damages to employers according to their share.

Article 5. Claims for Compensation for Damages

1. Employers have the right to demand that the trade union organization specified in Clause 1, Article 4 of this Decree or the representative of the labor collective and workers participating in the strike specified in Clause 2, Article 4 of this Decree compensate for damages caused by illegal strikes. The deadline for making such claims is one year from the date the Court's decision on the illegality of the strike becomes effective.

2. Claims for compensation for damages must be made in writing and include the following main contents:

a) The value of the damage and evidence proving the value of the damage;

b) The amount of the claim for compensation;

c) The method of compensation;

d) The deadline for implementing the compensation.

3. The written claim for compensation for damages and related documents shall be sent to the trade union organization or the representative of the labor collective that led the strike, and simultaneously sent to the Department of Labor - Invalids and Social Affairs, the Provincial Federation of Trade Unions, or the Municipal Federation of Trade Unions directly under the Central Government where the strike occurred.

Article 6. Determination of Damages for Compensation

The damages caused by an illegal strike include direct losses to the enterprise's assets due to the cessation of production and business operations as a result of the strike. In cases where both parties cannot agree on the value of the damage, they have the right to request a neutral organization to determine the value of the damage. The costs for determining the value of the damage shall be borne by the party requesting it.

Article 7. Amount of Damage Compensation Claim

The amount of the damage compensation claim is calculated based on the determination of damages as stipulated in Article 6 of this Decree. The maximum amount of damage compensation shall not exceed three (03) months' wages or remuneration immediately preceding the date of the strike according to the labor contracts of the workers participating in the strike.

Article 8. Negotiation on Damage Compensation at the Enterprise

1. Within ten (10) days from the receipt of the damage compensation claim, the representative of the Trade Union Committee of the grassroots trade union or the representative of the group of workers has the right to request the employer to negotiate regarding the issue of damage compensation.

2. The request for negotiation must be made in writing, specifying the time and place of the negotiation, and sent to the employer, the Department of Labor, Invalids and Social Affairs, and the Provincial Federation of Trade Unions.

3. Within three (03) days from receiving the request for negotiation, the employer must organize a meeting to negotiate with the representative of the Trade Union Committee or the representative of the group of workers. If it is not possible to organize the negotiation, the employer must respond in writing, stating the reasons and having the responsibility to determine the time for the next negotiation.

4. Both parties have the right to invite representatives of state management agencies on labor, local trade unions, and representatives of employers in the locality to participate in the negotiation meeting. All contents of the negotiation meeting must be recorded in minutes.

5. In case both parties agree on the amount of compensation and the method of compensating for damages, they are responsible for implementing them, except in cases of other agreements. The minutes of the negotiation meeting serve as the legal basis for determining the rights and obligations of the relevant parties responsible for implementing the damage compensation.

Article 9. Initiating a Lawsuit for Damage Compensation

The employer has the right to initiate a lawsuit before the People's Court of the district where the strike occurred to claim damage compensation in the following cases:

1. The representative of the workers refuses to negotiate;

2. The negotiation does not reach an agreement;

3. The party obligated to compensate for damages fails to implement the agreed commitment on damage compensation.

Article 10. Implementation of Damage Compensation

1. In the case where the grassroots trade union that led the strike declared by the People's Court to be illegal must compensate for damages to the employer, the source of funds for compensation will be taken from the assets of the grassroots trade union in accordance with the guidelines of the Ministry of Finance.

2. In the case where the representative of the group of workers leading the strike declared by the People's Court to be illegal, the representative of the group of workers and the workers participating in the strike must bear responsibility for the damages caused to the employer.

For workers participating in the strike, the damage compensation will be gradually deducted from their monthly wages or remuneration. The maximum deduction rate in one instance shall not exceed thirty percent (30%) of the worker's monthly wage or remuneration according to the labor contract.

In the case where the worker terminates the labor relationship before completing the obligation to compensate, the remaining compensation amount will be considered as a debt of the worker to the employer.

Chapter 3 IMPLEMENTATION PROVISIONS

Article 11. Effective Date

This Decree shall take effect fifteen days after its publication in the Official Gazette.

Article 12 RESPONSIBILITY FOR GUIDANCE AND ENFORCEMENT

1. The Ministry of Labor, War Invalids and Social Affairs shall coordinate with relevant agencies and organizations to guide the implementation of this Decree.

2. Ministers, Heads of ministerial-level agencies, Heads of government-affiliated agencies, Chairpersons of provincial People's Committees under central cities, and related agencies, organizations, and individuals shall be responsible for enforcing this Decree./.