Circular No. 23/2007/TT-BLDTBXH guiding the organization and operation of the Labor Arbitration Council

CIRCULAR

Guidelines on the organization and operation of the Labour Arbitration Council

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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 Certain Provisions of the Labour Code concerning the resolution of labour disputes (hereinafter referred to as Decree No. 133/2007/NĐ-CP);

Pursuant to Decree No. 122/2007/NĐ-CP dated July 27, 2007 stipulating the List of enterprises not entitled to strike and the handling of collective labour demands at enterprises not entitled to strike (hereinafter referred to as Decree No. 122/2007/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 Labour, Invalids and Social Affairs;

The Ministry of Labour, Invalids and Social Affairs hereby provides guidelines on the tasks, powers, organization, and operation of the Labour Arbitration Council as follows:

I. TASKS AND POWERS OF THE LABOUR ARBITRATION COUNCIL

1. Tasks of the Labour Arbitration Council

a) Mediate collective labour disputes over benefits between the collective labour and the employer;

b) Resolve collective labour disputes between the collective labour and the employer at enterprises listed in the list of enterprises not entitled to strike as prescribed in Decree No. 122/2007/NĐ-CP.

2. Powers of the Labour Arbitration Council

a) Investigate the case, meet with the disputing parties, and relevant persons, witnesses;

b) Collect evidence and request the disputing parties and relevant persons to provide all related documents to the dispute;

c) Require the disputing parties to attend mediation or dispute resolution sessions convened by the Labour Arbitration Council;

d) Propose mediation solutions for both disputing parties to consider and negotiate;

đ) Record the successful or unsuccessful mediation;

e) Issue decisions to resolve disputes at enterprises listed in the list of enterprises not entitled to strike;

g) Provide professional guidance on mediating labour disputes to grassroots Mediation Councils and labour mediators in localities.

h) The Secretary of the Labour Arbitration Council shall enjoy the regime as stipulated in Clause 5, Article 11 of Decree No. 133/2007/NĐ-CP. Other members of the Labour Arbitration Council who work on a part-time basis during mediation and dispute resolution activities, including days spent reviewing files, meeting with the disputing parties to collect evidence, shall be entitled to a compensation equivalent to the court session allowance applied to People's Assessors under Decision No. 241/2006/QĐ-TTg dated October 25, 2006 of the Prime Minister regarding the court session allowance system.

3. Tasks of the Chairman of the Labour Arbitration Council

a) Direct all activities of the Labour Arbitration Council, chair mediation and dispute resolution sessions;

b) Assigning specific tasks to members of the Labor Arbitration Council;

c) Sign minutes and decisions resolving labour disputes of the Labour Arbitration Council;

d) Sign and issue the operational regulations of the Labour Arbitration Council;

đ) Organize training and professional development courses on mediation and dispute resolution;

g) Report annually or ad hoc on the activities of the Labour Arbitration Council.

4. Tasks of the Secretary of the Labour Arbitration Council

a) Handle administrative tasks and ensure the functioning of the Labour Arbitration Council;

b) Receive and investigate labour dispute cases;

c) Gather relevant evidence and documents;

d) Prepare meetings of the Labour Arbitration Council;

đ) Conduct procedures and record minutes at mediation and dispute resolution sessions of the Labour Arbitration Council.

5. Tasks of other members of the Labour Arbitration Council

a) Investigate and study collective labour disputes to propose mediation and resolution plans for the Labour Arbitration Council;

b) Attend mediation and dispute resolution sessions of the Labour Arbitration Council;

c) Perform tasks assigned by the Chairman of the Labour Arbitration Council.

II. ORGANIZATION OF THE LABOUR ARBITRATION COUNCIL

1. Term of Office of the Labour Arbitration Council

The term of office of the Labour Arbitration Council as stipulated in Clause 3, Article 164 of the Labour Code is three (3) years.

In addition to meetings convened to resolve disputes based on requests from the disputing parties, the Labour Arbitration Council may convene extraordinary meetings upon the Chairman's request, and hold regular meetings every six months in June and December each year to evaluate its performance and report to the Provincial People's Committee and the Ministry of Labour, Invalids and Social Affairs.

2. Composition of the Labour Arbitration Council

The number and composition of the Labour Arbitration Council as prescribed in Clause 4, Article 11 of Decree No. 133/2007/NĐ-CP. Now, we provide guidance on Point d and Point đ of Clause 4, Article 11 of Decree No. 133/2007/NĐ-CP as follows:

a) In the case where a representative of the local employer as prescribed in Point d, Clause 4, Article 11 of Decree No. 133/2007/NĐ-CP is a Branch or Representative Office of the Vietnam Chamber of Commerce and Industry or the Provincial Cooperative Union.

b) In the case where one or more members are lawyers or persons with experience in labour relations in the locality, having credibility and impartiality as prescribed in Point đ, Clause 4, Article 11 of Decree No. 133/2007/NĐ-CP, selected by the Department of Labour, Invalids and Social Affairs for decision by the Chairman of the Provincial People's Committee based on recommendations from one of the following agencies or organizations: the Department of Labour, Invalids and Social Affairs, the Bar Association, the Trade Union, the Branch or Representative Office of the Vietnam Chamber of Commerce and Industry, the Provincial Cooperative Union.

c) In addition to the official members, the Department of Labor, Invalids and Social Affairs, the Trade Union, and the Branch or Representative Office of the Vietnam Chamber of Commerce and Industry or the Provincial Cooperative Alliance shall each appoint one alternate member to replace the official member in case of absence or required change at the request of the disputing parties. The alternate member from the Department of Labor, Invalids and Social Affairs shall be a Department-level Leader to replace the Chairman of the Arbitration Council in case of absence.

d) Based on the proposal of the Chairman of the Labor Arbitration Council, the Director of the Department of Labor, Invalids and Social Affairs shall submit to the Chairman of the Provincial People's Committee for consideration and issue a decision to remove a member of the Labor Arbitration Council if they are unable to fulfill their assigned tasks (the removal decision follows Model No. 2 attached to this Circular).

3. Establishment of the Labor Arbitration Council

The Director of the Department of Labor, Invalids and Social Affairs shall send a letter requesting relevant agencies and organizations to nominate members to participate in the Labor Arbitration Council.

Based on the list of nominations from the agencies and organizations, the Director of the Department of Labor, Invalids and Social Affairs shall submit to the Chairman of the Provincial People's Committee for consideration and issue a decision to establish the Labor Arbitration Council (following Model No. 1 attached to this Circular).

III. PROCEDURES FOR CONCILIATION AND SETTLEMENT OF LABOR DISPUTES BY THE LABOR ARBITRATION COUNCIL

1. Receiving Applications for Resolution of Labor Disputes

The Secretary of the Labor Arbitration Council must record applications for resolution of labor disputes upon receipt, noting the date and month, and researching and collecting relevant evidence and materials. Within two (2) days of receiving the application, the Secretary of the Labor Arbitration Council must send the following documents to the members of the Labor Arbitration Council:

a) Notice of Meeting of the Labor Arbitration Council;

b) Application for Resolution (following Model No. 3 attached to this Circular);

c) Relevant Evidence and Materials;

d) List of Labor Arbitration Council Members participating in conciliation and dispute resolution, as decided by the Chairman of the Labor Arbitration Council.

If one or both parties to the dispute request a change in the members of the Labor Arbitration Council because they believe that such members cannot ensure impartiality and fairness in resolving the dispute (due to being relatives or having personal interests directly or indirectly related to one party to the dispute), then a written request must be submitted to the Labor Arbitration Council at least three (3) days before the meeting. The replacement of members during each conciliation and collective labor dispute resolution session shall be decided by the Chairman of the Labor Arbitration Council.

2. Procedures and Processes for Conciliating Collective Labor Disputes of the Labor Arbitration Council for Enterprises Eligible for Strike

a) At the meeting of the Labor Arbitration Council, the Secretary of the Labor Arbitration Council shall check the presence of both parties to the labor dispute and their authorized representatives. If either party to the labor dispute is absent but has authorized another person to represent them, the authorization letter must be checked. If one party to the labor dispute is absent for a valid reason during the first meeting, the Labor Arbitration Council shall postpone the meeting. If one party to the labor dispute is absent without a valid reason after being summoned for the second time within two (2) working days following the first postponement decision by the Labor Arbitration Council, the Labor Arbitration Council shall still convene the meeting and record the unsuccessful conciliation with signatures from the present party to the dispute, the Chairman, and the Secretary of the Labor Arbitration Council.

b) When both parties to the labor dispute are present at the meeting, the Labor Arbitration Council shall proceed as follows:

- Announce the purpose of the meeting;

- Introduce the participants in the meeting;

- The party submitting the application for resolution of the labor dispute shall present their case;

- The party requested to resolve the labor dispute shall present their case;

- The Secretary of the Labor Arbitration Council shall present the collected evidence and materials and propose a conciliation plan for the council members to provide opinions and reach a consensus through secret ballot;

- The Chairman of the Labor Arbitration Council shall propose a conciliation plan.

c) If the parties to the labor dispute can reconcile themselves or agree with the conciliation plan proposed by the Labor Arbitration Council, the Labor Arbitration Council shall prepare a successful conciliation record (following Model No. 4 attached to this Circular) signed by both parties to the dispute, the Chairman, and the Secretary of the Labor Arbitration Council, and send it to both parties. Both parties to the dispute are obligated to comply with the agreements recorded in the successful conciliation record.

d) If both parties to the labor dispute do not accept the conciliation plan proposed by the Labor Arbitration Council or one party is absent without a valid reason after being summoned for the second time, the Labor Arbitration Council shall prepare an unsuccessful conciliation record (following Model No. 4 attached to this Circular), clearly recording the opinions of all parties; the record must be signed by both parties to the dispute, the Chairman, and the Secretary of the Labor Arbitration Council.

The record must be sent to the parties to the dispute within one (1) working day from the date of preparation of the conciliation record.

3. Procedures and Processes for Resolving Labor Disputes of the Labor Arbitration Council for Enterprises Not Eligible for Strike

Within a maximum of five (5) working days from the date of receipt of the application for resolution of the labor dispute, the Labor Arbitration Council must organize a meeting to resolve the dispute.

a) The Labor Arbitration Council shall follow the procedures set out in Clause 1 and points a and b of Clause 2 of Section III of this Circular.

b) If both parties can reconcile themselves or agree with the conciliation plan proposed by the Labor Arbitration Council, the Labor Arbitration Council shall prepare a successful conciliation record and issue a decision to resolve the labor dispute according to the successful conciliation plan (following Model No. 5 attached to this Circular).

c) In case of unsuccessful conciliation, the Labour Arbitration Council shall prepare a record of unsuccessful conciliation and issue a decision to resolve the labour dispute (in accordance with Model No. 5 attached hereto).

The decision of the Labour Arbitration Council on resolving the dispute shall be discussed and voted on by secret ballot according to the majority principle. If more than fifty percent (50%) of the votes of the members of the Labour Arbitration Council present agree with the resolution plan, then that Decision shall take effect.

In case one party to the dispute or both parties to the dispute disagree with the decision of the Labour Arbitration Council, they have the right to request the People's Court to resolve the matter in accordance with the provisions of the law.

The decision of the Labour Arbitration Council on resolving the dispute shall be sent to the two disputing parties within no more than one (1) working day from the date of signing the decision.

4. Language used during the conciliation and resolution of labour disputes at the Labour Arbitration Council

The spoken language and writing used during the conciliation and resolution of collective labour disputes at the Labour Arbitration Council shall be Vietnamese. In cases where one or both parties to the dispute cannot use Vietnamese, the employer shall be responsible for arranging an interpreter who meets the requirements to serve the conciliation and resolution process of labour disputes.

IV. IMPLEMENTATION

1. This Circular shall take effect fifteen (15) days from the date of publication in the Official Gazette.

Repeal Circular No. 02/LDTBXH-TT dated January 8, 1997 of the Ministry of Labour, Invalids and Social Affairs guiding the implementation of Decision No. 774/TTg dated October 8, 1996 of the Prime Minister on the establishment of provincial Labour Arbitration Councils.

2. The Provincial People's Committee shall be responsible for establishing and directing the operation of the Labour Arbitration Council in accordance with the guidance of this Circular.

3. During the implementation process, if there are any difficulties, please report to the Ministry of Labour, Invalids and Social Affairs for prompt resolution./.