Decree No. 46/2013/NĐ-CP guiding the Labor Code on labor disputes

DECREE

Detailed regulations on certain provisions of the Labor Code concerning labor disputes

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Pursuant to the Law on Organization of the Government dated December 25, 2001;

Based on the Labor Code dated June 18, 2012;

Decree No. 07/2021/NĐ-CP

The Government promulgates this Decree providing detailed regulations on certain provisions of the Labor Code concerning labor disputes,

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Decree stipulates standards, authority for appointing labor mediators; suspending, stopping strikes and resolving collective labor rights in cases of suspension or stoppage of strikes.

Article 2. Applicability

1. Labor mediators are appointed by competent authorities.

2. Workers as prescribed in Clause 1, Article 3 of the Labor Code.

3. Employers as prescribed in Clause 2, Article 3 of the Labor Code.

4. Trade union organizations representing collective workers at the workplace as prescribed in Clause 4, Article 3 of the Labor Code.

5. Agencies, organizations, and individuals related to the implementation of standards, authority for appointing labor mediators, suspending, stopping strikes and resolving collective labor rights in cases of suspension or stoppage of strikes.

Article 3. Explanation of Terms

In this Decree, the following terms are understood as follows:

1. Labor mediator is a person appointed by the Chairman of the People's Committee of the province for a five-year term to mediate labor disputes and vocational training contract disputes in accordance with the law.

2. Suspension of strike is the act of the Chairman of the People's Committee of the province issuing a decision to postpone the start date of the strike set by the Trade Union Executive Committee in the strike decision sent to the employer, provincial labor administration agency, and provincial trade union to another time.

3. Termination of strike is the act of the Chairman of the People's Committee of the province issuing a decision to terminate the ongoing strike until there is no longer a serious threat to the national economy and public interest.

Chapter II

LABOR MEDIATOR

Article 4. Standards for labor mediators

1. Being a Vietnamese citizen, having full civil capacity, good health and moral character.

2. Not being under criminal investigation or serving a sentence.

3. Understanding labor laws and related laws.

4. Having three years of work experience in areas related to labor relations, possessing skills in mediating labor disputes.

Article 5. Authority, procedures, and formalities for appointing and reappointing labor mediators

1. The Chairman of the People's Committee of the province appoints and reappoints labor mediators.

2. Procedures and formalities for appointing labor mediators:

a) Registering voluntarily or being introduced by the Department of Labor - Invalids and Social Affairs, county-level trade unions, industrial zone trade unions, export processing zone trade unions to participate in the selection process for labor mediators;

b) The application dossier for labor mediators includes:

- Application form for labor mediator;

- Curriculum vitae; - Health certificate;

- Copies of diplomas and certificates (if any);

- Introduction letter for participation in the selection process from agencies and organizations specified in Point a, Clause 2 of this Article.

c) Within twenty working days from the deadline for receiving applications, the Department of Labor - Invalids and Social Affairs compiles a list of candidates meeting the criteria and reports to the Chairman of the County People's Committee;

d) Within five working days from the date of receipt of the report from the Department of Labor - Invalids and Social Affairs, the Chairman of the County People's Committee issues a request to the Chairman of the Provincial People's Committee to appoint labor mediators, simultaneously sending it to the Director of the Provincial Department of Labor - Invalids and Social Affairs for review and submission to the Chairman of the Provincial People's Committee;

đ) Within ten working days from the date of receipt of the request for appointment of labor mediators from the Chairman of the County People's Committee, the Director of the Provincial Department of Labor - Invalids and Social Affairs reviews and submits to the Chairman of the Provincial People's Committee for consideration and decision, simultaneously sending the Chairman of the County People's Committee who has requested the appointment of labor mediators;

e) Within five working days from the date of receipt of the Director of the Provincial Department of Labor - Invalids and Social Affairs's document, the Chairman of the Provincial People's Committee issues a decision to appoint labor mediators;

g) Within five working days from the date of receipt of the Provincial People's Committee Chairman's decision to appoint labor mediators, the Director of the Provincial Department of Labor - Invalids and Social Affairs and the Chairman of the County People's Committee have the responsibility to publicly announce the list of labor mediators so that employers, trade union organizations representing collective workers at the workplace, and workers are aware.

3. Procedures and formalities for reappointing labor mediators:

a) Within three months before the end of the term of office of the labor mediator, the Department of Labor - Invalids and Social Affairs evaluates the performance of the labor mediator and the mediation needs in the area and reports to the Chairman of the County People's Committee about the reappointment of labor mediators;

b) Procedures and formalities for reappointing labor mediators are carried out according to the provisions of Points d, đ, e, and g Clause 2 of this Article.

Article 6. Dismissal of Labor Mediators

1. Labor mediators shall be dismissed in any of the following cases:

a) Submitting a resignation from the position of mediator;

b) Failing to fulfill mediation duties;

c) Engaging in acts that violate the law, exploiting their reputation, authority, or responsibility to harm the interests of the parties involved or the State's interests during the mediation process, or refusing to undertake mediation tasks two or more times without legitimate reasons when assigned to resolve labor disputes or vocational training contract disputes.

2. Authority, procedure, and formalities for dismissing labor mediators:

a) The Chairman of the People's Committee at the provincial level decides on the dismissal of labor mediators based on the proposal of the Chairman of the People's Committee at the district level and the Director of the Department of Labor, Invalids, and Social Affairs;

b) The Department of Labor, Invalids, and Social Affairs reports to the Chairman of the People's Committee at the district level regarding the dismissal of labor mediators based on the resignation letter submitted by the mediator, the extent of failure to fulfill duties, or violations of the law committed by the mediator;

c) The procedures and formalities for dismissing labor mediators shall be carried out in accordance with Points d, đ, e, and g Clause 2 Article 5 of this Decree.

Article 7. Ensuring Conditions for Labor Mediators' Activities

1. Labor mediators, on days they are assigned to mediate labor disputes or vocational training contract disputes, shall enjoy allowances as stipulated for judges participating in civil trial sessions according to regulations on allowances for participants in court hearings; they shall also be reimbursed travel expenses for the days they perform mediation work according to current travel expense regulations and shall be provided with necessary conditions such as meeting rooms, documents, and office supplies to facilitate the mediation of labor disputes.

2. The operating funds for labor mediators shall be guaranteed by the state budget according to the current regulations on the hierarchical management of the state budget. The preparation, management, and settlement of the operating funds to ensure the activities of labor mediators shall comply with the laws on the state budget.

Chapter III

SUSPENSION AND STOPPAGE OF STRIKES

Article 8. Cases of Suspension and Stoppage of Strikes

1. Strikes planned to take place at units providing electricity, water, public transport services, and other direct services for organizing commemorative events on Victory Day, International Labor Day, and National Day.

2. Strikes planned to take place in areas where activities aimed at preventing, mitigating the consequences of natural disasters, fires, epidemics, or emergencies as defined by law are ongoing.

3. Strikes occurring in areas where natural disasters, fires, epidemics, or emergencies as defined by law have occurred.

4. Strikes continuing for three consecutive days at units providing electricity, water, and public sanitation services, affecting the environment, living conditions, and health of residents in cities under provinces.

5. Strikes involving violent acts, causing disturbances that affect the property and lives of investors, disrupting public security and order, impacting community activities in the area where the strike takes place.

Article 9. Procedures for Postponing a Strike

1. The procedures for postponing a strike shall be as follows:

a) Upon receiving the decision to strike from the Trade Union Executive Committee, the Director of the Department of Labor, Invalids, and Social Affairs shall examine the matter. If it is determined that the strike falls under the cases stipulated in Clause 1 and Clause 2 of Article 8 of this Decree, the Director shall consult with the Chairman of the People's Committee at the district level and report to the Chairman of the People's Committee at the provincial level to decide on postponing the strike.

The request to postpone the strike submitted to the Chairman of the People's Committee at the provincial level shall include: the name of the enterprise where the labor collective intends to strike; the location where the strike is expected to take place; the time when the strike is expected to begin; the demands of the labor collective; the necessary reasons for postponing the strike; the proposal to postpone the strike, the duration of the postponement, and measures to implement the Chairman of the People's Committee at the provincial level's decision to postpone the strike;

b) Based on the request of the Director of the Department of Labor, Invalids, and Social Affairs, the Chairman of the People's Committee at the provincial level shall issue a decision to postpone the strike and immediately notify the Chairman of the People's Committee at the district level, the Chairman of the Provincial Federation of Trade Unions, the Chairman of the Labor Arbitration Council, and the Executive Committee of the grassroots trade union or the directly superior trade union executive committee in places where no grassroots trade union has been established, and the employer at the location where the strike is expected to occur.

2. Within 48 hours from the time the Director of the Department of Labor, Invalids, and Social Affairs receives the decision to strike from the grassroots trade union executive committee, the Chairman of the People's Committee at the provincial level must issue a decision to postpone the strike.

3. Within 24 hours from the time of receiving the decision to postpone the strike from the Chairman of the People's Committee at the provincial level, relevant agencies and organizations must implement the postponement of the strike.

Article 10. Procedures for Terminating a Strike

1. The procedures for terminating a strike shall be carried out as follows:

a) When it is found that the ongoing strike falls under one of the cases stipulated in Clause 3, Clause 4, and Clause 5 of Article 8 of this Decree, the Labor, Invalids, and Social Affairs Office shall report to the Chairman of the People's Committee at the district level about the termination of the strike;

b) Immediately upon receiving the report from the Labor, Invalids, and Social Affairs Office, the Chairman of the People's Committee at the district level shall consider and propose the Chairman of the People's Committee at the provincial level to decide on terminating the strike, while also sending the report to the Director of the Department of Labor, Invalids, and Social Affairs.

The request to terminate the strike submitted to the Chairman of the People's Committee at the provincial level shall include: the name of the enterprise where the strike is currently taking place; the location of the strike; the time when the strike began; the scope of the strike; the number of workers participating in the strike; the demands of the labor collective; the reasons for terminating the strike; proposals regarding the termination of the strike and measures to implement the Chairman of the People's Committee at the provincial level's decision to terminate the strike;

c) Upon receiving the request to terminate the strike from the Chairman of the People's Committee at the district level, the Director of the Department of Labor, Invalids, and Social Affairs must provide comments for the Chairman of the People's Committee at the provincial level to consider and decide;

d) Based on the request to terminate the strike from the Chairman of the People's Committee at the district level and the comments of the Director of the Department of Labor, Invalids, and Social Affairs, the Chairman of the People's Committee at the provincial level shall consider and decide on terminating the strike.

The decision to terminate the strike by the Chairman of the People's Committee at the provincial level must be immediately notified to the Chairman of the People's Committee at the district level, the Director of the Department of Labor, Invalids, and Social Affairs, the Chairman of the Provincial Federation of Trade Unions, the Chairman of the Labor Arbitration Council, and the Executive Committee of the grassroots trade union or the directly superior trade union executive committee in places where no grassroots trade union has been established, and the employer where the strike is currently taking place, so they can be informed and implement the decision.

2. Within 12 hours from the time the Chairman of the People's Committee at the district level receives the report from the Labor, Invalids, and Social Affairs Office, the Chairman of the People's Committee at the provincial level must issue a decision to terminate the strike.

3. Within 12 hours from the time of receiving the decision to terminate the strike from the Chairman of the People's Committee at the provincial level, relevant agencies, organizations, and individuals must implement the termination of the strike.

4. Within 48 hours from the time of receiving the decision to terminate the strike from the Chairman of the People's Committee at the provincial level, the Chairman of the People's Committee at the district level must report to the Chairman of the People's Committee at the provincial level on the results of implementing the termination of the strike.

Article 11. Resolution of Collective Labor Union's Requests when Postponing or Suspending a Strike

During the period of implementing the decision to postpone or suspend a strike made by the Chairman of the Provincial People's Committee, the Labor Arbitration Council shall carry out mediation of labor disputes in accordance with the provisions of labor laws.

In cases where mediation fails and the postponement or suspension period according to the decision of the Chairman of the Provincial People's Committee has expired, the Trade Union Executive Committee may continue the strike but must notify the employer, provincial state management agency on labor affairs, and the provincial trade union in writing at least five working days before the resumption of the strike.

Article 12. Rights and Obligations of Workers when Suspending a Strike

1. After the Trade Union Executive Committee requests to suspend a strike pursuant to the decision of the Chairman of the Provincial People's Committee, workers must return to work and be paid their wages.

2. If workers do not return to work after the Trade Union Executive Committee requests to suspend a strike pursuant to the decision of the Chairman of the Provincial People's Committee, they will not be paid wages and may be subject to disciplinary action depending on the severity of the violation, in accordance with the internal regulations of the workplace and relevant laws.

Chapter IV

IMPLEMENTING PROVISIONS

Article 13. Effective Date

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

2. Decree No. 133/2007/NĐ-CP dated August 8, 2007 of the Government detailing and guiding the implementation of certain articles of the Law amending and supplementing some articles of the Labor Code regarding resolution of labor disputes, and Decree No. 12/2008/NĐ-CP dated January 30, 2008 of the Government concerning the postponement or suspension of strikes and settlement of collective workers' rights shall cease to be effective from the date this Decree takes effect.

1. The Minister, Heads of Ministries equivalent to ministries, Heads of government agencies, Chairmen of provincial People's Committees under the central government, and related agencies, units, and individuals are responsible for implementing this Circular.

1. The Minister of Labor, Invalids and Social Affairs shall be responsible for guiding the implementation of this Decree.

2. The Ministers, Heads of Ministries equivalent to Ministries, Heads of agencies under the Government, Chairpersons of Provincial People's Committees directly under the Central Government are responsible for implementing this Decree./.