Circular No. 22/2007/TT-BLDTBXH guiding on the organization and operation of the grassroots labor mediation council and labor mediators

CIRCULAR

Guidelines on the organization and operation of the grassroots labor mediation council and labor mediators

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Pursuant to Decree No. 133/2007/NĐ-CP dated August 8, 2007 of the Government detailing and guiding the implementation of certain provisions of the Law amending and supplementing some articles of the Labor Code regarding the resolution of labor disputes (hereinafter referred to as Decree No. 133/2007/NĐ-CP);

Pursuant to Decree No. 29/2003/NĐ-CP dated March 31, 2003 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Labor, Invalids and Social Affairs;

The Ministry of Labor, Invalids and Social Affairs hereby issues guidelines on the organization and operation of the Grassroots Labor Mediation Council (hereinafter referred to as the Mediation Council) and labor mediators (hereinafter referred to as mediators) as follows:

I. ORGANIZATION AND OPERATIONS OF THE MEDIATION COUNCIL

1. Procedures for Establishing the Mediation Council

a) Proposing the Establishment of the Mediation Council:

The Mediation Council must be established in enterprises with grassroots trade unions or provisional trade union executive committees. In these enterprises, representatives of the employer side must proactively propose to the trade union executive committee about establishing the Mediation Council.

Based on the number of employees, characteristics, scale, and production and business organizational structure of the enterprise, representatives of the employer side discuss and agree with representatives of the employee side, which is the grassroots trade union executive committee or provisional trade union executive committee (hereinafter collectively referred to as the grassroots trade union executive committee), on the number of members (including members outside the enterprise as provided for in Point b Clause 3 Article 4 of Decree No. 133/2007/NĐ-CP) of the Council but not less than four people, and select members from each side to participate in the Council, the Chairperson, and Secretary of the Council.

b) Issuing the Decision to Establish the Mediation Council:

Based on the results of discussions and agreements between both sides, the employer issues the decision to establish the Mediation Council according to Model No. 1 attached to this Circular.

The decision to establish the Mediation Council must be sent to the members of the Council, the grassroots trade union executive committee. Within five working days from the date of issuance of the Decision, the employer must publicly announce at the enterprise and send to the district labor authority for monitoring.

c) Rules of Operation of the Mediation Council:

The Chairperson of the Mediation Council during the first half-term has the responsibility to draft and promulgate the Rules of Operation of the Council based on discussions and agreements with the members of the Council according to Model No. 2 attached to this Circular. The Rules of Operation of the Mediation Council must be sent to the members of the Council, the grassroots trade union executive committee, the employer, and publicly announced at the enterprise.

d) Changing Members of the Mediation Council:

Members of the Mediation Council may be changed or supplemented during the term of the Council.

Changes or supplements to members of the Mediation Council must be agreed upon and consented to by both sides. The employer must issue a Decision to change or supplement members of the Council and send it to the members of the Council, the grassroots trade union executive committee, the district labor authority for monitoring, and publicly announced at the enterprise as with the Decision to establish the Mediation Council.

2. Tasks of the Mediation Council

a) Mediate all individual labor disputes occurring at the enterprise according to the request of one or both parties involved in the dispute;

b) Mediate collective labor disputes occurring at the enterprise according to the request of one or both parties involved in the dispute.

3. Responsibilities and Powers of the Mediation Council

a) Accept requests for labor dispute mediation;

b) Investigate the case, meet with both parties involved in the dispute, related persons, witnesses, collect evidence, and require both parties involved in the dispute to provide all relevant documents related to the dispute to be mediated;

c) Propose a mediation solution for both parties involved in the dispute to consider and negotiate;

d) Report and hand over the entire file of the unresolved labor dispute to the competent authority to resolve the dispute promptly in accordance with the law;

đ) Regularly report on the activities of the Council to the employer, the grassroots trade union executive committee, and the district labor authority before June 10 and December 10 each year or submit ad hoc reports as required by the competent state authorities.

Submit a final report on the term's activities to the employer, the grassroots trade union executive committee, and the district labor authority no later than ten (10) working days before the end of the term;

e) Hand over work to the next term along with the entire file of unresolved labor dispute mediation requests received or the entire file and mediation plan for unresolved labor disputes to the next term for further consideration and resolution.

4. Tasks and Powers of the Members of the Mediation Council

a) Tasks and Powers of the Chairperson of the Mediation Council:

- Direct all activities of the Council;

- Assign tasks and support members of the Council in performing assigned tasks;

- When receiving a request for labor dispute mediation, immediately send copies of the dispute file to each member of the Council for investigation and formulation of a handling plan;

- Chair mediation sessions;

- The Chairperson during the first half-term is responsible for drafting and promulgating the Rules of Operation for the term;

- The Chairperson during the second half-term is responsible for summarizing the activities of the term and handing over the work of the term to the Mediation Council of the next term.

b) Tasks and Powers of the Secretary of the Mediation Council

The Secretary of the Mediation Council assists the Chairperson in all activities of the Council, specifically as follows:

- Receive requests for mediation from the parties involved in the labor dispute;

- Prepare for meetings of the Council;

- Recording minutes of Council meetings;

- Perform other tasks as assigned by the Chairperson.

c) The members of the Mediation Council have specific responsibilities assigned by the Chairman of the Council; they are responsible for investigating cases, proposing mediation solutions for labor disputes, and participating in other activities of the Council.

d) Members of the Mediation Council are entitled to participate in training and capacity-building courses on mediation procedures and labor laws organized by labor authorities at various levels or other relevant agencies and organizations to enhance their mediation capabilities.

đ) If a member of the Mediation Council is an employee of a business entity, the time spent performing duties and attending training and capacity-building sessions on mediation shall be considered working hours and such member shall receive full salary and other benefits as stipulated by labor laws.

If a member of the Mediation Council is not an employee of a business entity, the employer shall compensate them for the time spent performing duties and attending training and capacity-building sessions on mediation. The amount of compensation shall be agreed upon by both parties but shall not be less than the stipend provided for labor mediators under the regulations.

II. ACTIVITIES OF LABOR MEDIATORS

1. Introduction of Labor Mediators

Based on the characteristics and development situation of enterprises within their jurisdiction, local labor authorities at the county level are responsible for proposing to the Chairman of the People's Committee at the county level regarding the introduction of labor mediators. After the Chairman of the People's Committee at the county level agrees, the introduction of labor mediators will proceed as follows:

a) The local labor authority at the county level will announce on local mass media to invite individuals who meet the conditions specified in Clause 1, Article 6 of Decree No. 133/2007/ND-CP to register for participation, while also dispatching staff from the local labor authority at the county level to participate as mediators.

b) Request the District Trade Union, County Trade Union, Town Trade Union, or City Trade Union under the province (hereinafter referred to collectively as the District Trade Union) or the Trade Union of industrial zones, export processing zones to compile lists recommending members to participate as mediators.

2. Application for Registration as a Labor Mediator

a) The local labor authority at the county level, the District Trade Union, or the Trade Union of industrial zones, export processing zones within the county area shall establish a file for each applicant registering to become a mediator and submit it to the local labor authority at the county level, including:

- A letter introducing the applicant for registration as a mediator;

- Personal files of each person recommended for registration as a mediator, including:

+ A voluntary application form for registration as a mediator according to Model No. 3 attached to this Circular;

+ A curriculum vitae of the applicant for registration as a mediator, including the following contents: name; date of birth; health status; current workplace or job position; professional qualifications; work experience in fields related to laws or labor relations;

+ Documents as specified in point b, Clause 1, Article 6 of Decree No. 133/2007/ND-CP are certificates or diplomas with confirmation from authorized agencies or organizations regarding training or capacity-building in laws, or documents confirming at least three (03) years of work experience in the field of labor at enterprises, agencies, or organizations.

+ Documents confirming mediation skills and experience as specified in point c, Clause 1, Article 6 of Decree No. 133/2007/ND-CP are certificates of participation in training or capacity-building courses on mediation procedures, or documents proving involvement in certain mediation activities confirmed by labor authorities, judicial authorities, or the Fatherland Front.

b) Individuals meeting the conditions specified in Clause 1, Article 6 of Decree No. 133/2007/ND-CP and wishing to participate as labor mediators shall directly submit their personal application files for registration as mediators according to the provisions of point a, this clause to the local labor authority at the county level.

3. Recognition, Removal, and Management of Labor Mediators

a) Recognition of Labor Mediators:

Within fifteen days from the receipt of complete and valid applications, the local labor authority at the county level shall examine and propose to the Chairman of the People's Committee at the county level to issue a Decision recognizing labor mediators according to Model No. 4 attached to this Circular.

b) Removal of Labor Mediators:

Labor mediators may be removed in the circumstances specified in Clause 3, Article 6 of Decree No. 133/2007/ND-CP.

The local labor authority at the county level shall propose to the Chairman of the People's Committee at the county level to issue a Decision removing mediators according to Model No. 5 attached to this Circular.

c) Change and Supplement of Labor Mediators:

When there is a change or supplement to mediators, the local labor authority at the county level shall propose to the Chairman of the People's Committee at the county level to issue a Decision recognizing mediators according to the procedure specified in point a, this clause.

d) Management of Labor Mediators:

The local labor authority at the county level shall assist the Chairman of the People's Committee at the county level in managing the team of mediators specifically as follows:

- Publicly announcing the list of recognized mediators by the Chairman of the People's Committee at the county level;

- Assigning tasks to mediators in writing and supporting them in carrying out mediation work based on requests from disputing parties;

- Guiding mediators in mediating labor disputes in accordance with the law;

- Organizing and providing training on mediation procedures for mediators;

- Preparing budgets for mediator activities and settling expenses for mediator training in accordance with the law;

- Reporting periodically every six months and annually to the Chairman of the People's Committee at the county level and the Department of Labor, Invalids, and Social Affairs about the activities of the mediator team in their jurisdiction.

4. Duties and Authorities of Labor Mediators

a) Labor mediators are responsible for mediating labor disputes as specified in Clause 1, Article 7 of Decree No. 133/2007/ND-CP.

b) Adhering to assignments from the local labor authority at the county level and strictly implementing legal regulations on resolving labor disputes during the mediation process.

c) They must not abuse their role as labor mediators to engage in actions that violate the law and social morals.

d) Investigate the case, meet with both parties in dispute, relevant persons, witnesses, collect evidence, and request both parties in dispute to provide all relevant documents related to the case to be mediated.

đ) Propose a mediation plan for both parties in dispute to consider and negotiate.

e) Participate in training courses on mediation procedures and labor laws organized by labor authorities at various levels or other relevant agencies and organizations.

g) Be compensated by the county-level labor authority for the days spent mediating labor disputes, including the days spent studying the file, meeting with both parties in dispute to collect evidence. The compensation level is equivalent to the session allowance applied to People's Assessors under Decision No. 241/2006/QĐ-TTg dated October 25, 2006, issued by the Government Prime Minister regarding session allowances.

III. PROCEDURES FOR MEDIATING LABOR DISPUTES

1. Procedures for Mediating Individual Labor Disputes

a) Receiving Requests for Mediation of Labor Disputes:

- Each party or both parties in dispute must submit a request for mediation according to Model No. 6 attached to this Circular to the Mediation Council (if there is a Mediation Council) or the county-level labor authority (if there is no established Mediation Council).

- The Secretary of the Mediation Council or the staff member of the county-level labor authority assigned to receive the request must record it in a logbook indicating the date, month, and year of receipt and immediately transfer it to the Chairman of the Council or the head of the county-level labor authority to assign a mediator to investigate and handle the matter.

b) Preparing for the Mediation Session:

- Members of the Mediation Council or the assigned mediator must promptly investigate the case and propose a mediation plan.

In cases where the labor dispute is resolved by the Mediation Council, the Chairman of the Mediation Council must convene a meeting of the Council to discuss the proposed mediation plan. The mediation plan must be agreed upon by all members of the Council.

- Within three days from receiving the request, the Chairman of the Mediation Council or the assigned mediator must notify in writing the parties in dispute, witnesses (if necessary), and organize a mediation session.

c) Conducting Mediation of Labor Disputes:

- At the mediation session, the Secretary of the Mediation Council or the mediator must check the presence of both parties in dispute and those invited. If either party has authorized another person as their representative, the authorization letter must be checked. If one party is absent or if a representative is present without an authorization letter, the mediation session will be postponed until the next working day, and instructions will be given to both parties to follow the prescribed procedures.

- When both parties in dispute or their representatives are present at the session, the Mediation Council will proceed with mediation in the following order:

+ Declare the purpose of the mediation session and introduce the participants;

+ Read the plaintiff's petition;

+ The plaintiff presents their case;

+ The defendant presents their case;

+ The Mediation Council or mediator questions the parties, presents evidence, and requests witnesses (if any) to speak;

+ Counsel for one or both parties (if any) may speak.

- Based on labor laws, documents, evidence, and opinions of the parties in dispute, the Mediation Council or mediator analyzes and evaluates the case, points out the right and wrong aspects of both parties, and encourages them to resolve the dispute themselves or proposes a mediation plan for the parties to consider, negotiate, and agree upon.

If the plaintiff accepts withdrawal of the request or both parties reach an agreement or accept the mediation plan, the Mediation Council or mediator will prepare a successful mediation record according to Model No. 7 attached to this Circular, signed by both parties, the Chairman, Secretary of the Mediation Council, or mediator. Both parties are obligated to comply with the agreements recorded in the successful mediation record.

If both parties do not accept the mediation plan, the Mediation Council or mediator will prepare an unsuccessful mediation record detailing the opinions of both parties, which must be signed by both parties., Chairman, Secretary of the Mediation Council, or mediator.

If one party is summoned twice but still fails to attend without a valid reason, the Mediation Council or mediator will prepare an unsuccessful mediation record detailing the opinion of the present party.; The record must be signed by the present party, the Chairman, Secretary of the Mediation Council, or mediator.

The mediation record must be sent to both parties in dispute within one working day from the date of preparation of the mediation record.

2. Procedures for Mediating Collective Labor Disputes

a) Receiving Requests for Mediation of Labor Disputes

The procedure for receiving requests for mediation of collective labor disputes is carried out similarly to the procedure for receiving requests for mediation of individual labor disputes as stipulated in point a, clause 1, Section of this document.

The request for mediation of collective labor disputes is submitted to the county-level labor authority in cases where the collective labor dispute occurs in places without a Mediation Council or when the Trade Union Committee or the representative of the collective labor agrees with the employer to choose a mediator to resolve the dispute.

b) Preparing for the Mediation Session:

The preparation for the mediation session is carried out similarly to the preparation for the mediation session of individual labor disputes as stipulated in point b, clause 1, Section of this document.

c) Conducting Mediation of Labor Disputes:

The organization of the mediation session for collective labor disputes is carried out similarly to the organization of the mediation session for individual labor disputes as stipulated in point c, clause 1, Section of this document.

For cases where the representative of one or both parties in dispute is a member of the Mediation Council, they must appoint a representative to participate in the mediation session in accordance with the provisions of the law.

3. Language During the Mediation Process

The language used during the labor dispute mediation process shall be Vietnamese. In cases where one or both parties to the dispute cannot use Vietnamese, the employer shall be responsible for arranging interpreters who meet the requirements to serve the labor dispute mediation process.

IV. IMPLEMENTATION

1. Responsibilities of the Department of Labor - Invalids and Social Affairs:

a) Guide the county-level labor agencies in organizing, establishing Mediation Boards and managing mediators to resolve labor disputes in accordance with the provisions of the Labor Code, Decree No. 133/2007/ND-CP, and this Circular;

b) Coordinate with the Provincial Trade Union Federation to disseminate labor laws, and train mediation skills for mediators;

c) Monitor labor disputes and resolve labor disputes within their jurisdiction; report periodically on the situation of labor disputes and resolution at enterprises within the province to the Ministry of Labor - Invalids and Social Affairs before June 20th and December 31st each year, or promptly as required.

2. Responsibilities of the Chairman of the People's Committee at the county level:

a) Resolve collective labor disputes concerning rights occurring within their jurisdiction in accordance with the provisions of the law;

b) Direct the county-level labor agency and relevant agencies to closely monitor labor disputes and promptly report any developments during the dispute resolution process to ensure reasonable solutions that maintain harmonious labor relations within their jurisdiction;

c) Decide on recognizing and removing mediators within their jurisdiction in accordance with point c, Clause 3, Section II of this Circular.

3. Responsibilities of the county-level labor agency:

a) Lead and coordinate with the county-level trade union federation or equivalent to guide the organization, establishment, and operation of Mediation Boards, and train mediation skills for members of Mediation Boards and mediators;

b) Propose, introduce, and submit to the Chairman of the People's Committee at the county level for recognition and removal of mediators, and manage mediators in accordance with the provisions of Section II of this Circular;

c) Ensure locations and necessary conditions for mediators to mediate labor disputes not resolved within enterprises;

d) Monitor the organization and operation of Mediation Boards, the situation of labor disputes, and resolution of labor disputes at enterprises within the county, report periodically on the situation of labor disputes and resolution, and promptly recommend any difficulties encountered during the resolution process before June 15th and December 31st each year, or promptly to the Department of Labor - Invalids and Social Affairs for consideration or timely reporting to the competent authority for resolution.

4. Responsibilities of the county-level trade union federation or equivalent:

a) Introduce members meeting the conditions to participate as mediators in accordance with the provisions of Decree No. 133/2007/ND-CP and this Circular;

b) Guide the grassroots trade union executive committees/temporary trade union executive committees to comply with the legal provisions on resolving labor disputes and participate in resolving disputes to protect the legitimate rights and interests of trade union members and workers in enterprises;

c) Lead and coordinate with the county-level labor agency to guide the appointment of representatives of the workforce at enterprises to resolve labor disputes in accordance with the provisions of the Labor Code, Decree No. 133/2007/ND-CP, and this Circular.

5. Responsibilities of enterprises

Within three (03) months from the date this Circular takes effect, enterprises have the responsibility to reorganize the Mediation Board (for enterprises that have already established it), and establish a Mediation Board (for enterprises that have not yet established it) in accordance with the provisions of Decree No. 133/2007/ND-CP and this Circular.

For enterprises established after this Circular takes effect, they must establish a Mediation Board within six (06) months from the date of enterprise commencement in accordance with the regulations.

6. Effective Date

a) This Circular shall take effect fifteen days after its publication in the Official Gazette.

Repeal Circular No. 10/LĐTBXH-TT dated March 25, 1997, guiding the organization and operation of grassroots Mediation Boards and labor mediators of county, district, city, town, and township labor agencies under centrally governed cities and provinces.

b) During implementation, if there are any issues, individuals and organizations are requested to reflect them to the Ministry of Labor - Invalids and Social Affairs for prompt resolution./.