law on employers right to labour management in vietnam

MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE HANOI LAW UNIVERSITY DO THI DUNG LAW ON EMPLOYERS' RIGHT TO LABOUR MANAGEMENT IN VIETNAM Field of Study : Economic Law Code : 62 38 01 07 ABSTRACT OF DOCTORAL THESIS ON LAW STUDIES HANOI - 2014 Training instituation: HANOI LAW UNIVERSITY Supervisor: 1. Assoc. Prof. Dr. Nguyen Huu Chi 2. Dr. Tran Thi Thuy Lam Opponent 1: Assoc. Prof. Dr. Hoang The Lien Opponent 2: Assoc. Prof. Nguyen Huu Vien Opponent 3: Assoc. Prof. Dr. Pham Cong Tru This thesis will be defended before the University Thesis Evaluation Board at Hanoi Law University on , dated / /2014 This thesis can be studied more at: 1) National Library of Vietnam; 2) Library of Hanoi Law University; 1 INTRODUCTION 1. Rationale of the study Labor management is an objective indispensable demand of production in a society with class polarization because in order to achieve the target of a production process, there must be a subject to manage general activities of people and orient such activities towards certain objectives to achieve the set goals. The more a society develops, the higher labor assignment and organization level are, and the more important labor management is. For labor relations in a market economy, on macroeconomic scale, labor management is regarded as the power of the state - the largest owner in society. On microeconomic scale, in units using employees, the state “shares” this power with employers in scope stipulated by law. Accordingly, employers are entitled to perform direct activities in organization and control of employees to make general rules and orders in such units, thus, contribute to improvement in labor productivity, quality and effectiveness. In Vietnam, labor management right of employers has been stipulated in labor legislation after the power was seized to the people in August, 1945. After several amendments and supplementations, law on labor management right of employer has been more and more complete and specified clearly of the Labor Code passed by The XIIIth National Assembly, the third session on June 18th, 2012 and taking effect from May 1st, 2013. Based on inheritance and development of the Labor Code in 1994 (amendments and supplementations in 2002, 2006 and 2007), Labor Code in 2012 keeps on institutionalizing renewal line of the Communist Party of Vietnam and concretizes the provisions of the 1992 Constitution of the Socialist Republic of Vietnam on labor and on the use and management of labor. Accordingly, labor management right of employer has been expanded ensuring more self-mastery and self-responsibility right of employer in business operation of market economy. However, in recent years, business activities of the units using employees in Vietnam have faced a lot of difficulties. Such difficulties are involved in low labor productivity and effectiveness, weak development, poor competitiveness in domestic and international market. This results from many causes. However, it cannot be denied that in comparison with other laws, some provisions of law on labor management right of employer are not really appropriate and feasible. The State still performs too much interference in labor relation which partly restrains self-mastery and self-responsibility right of the employers in labor relations of the market economy. 2 Besides, although the employer is a party in labor relations which plays an important role in creating material wealth for society as well as creating more jobs for employee, in comparison with employees, employers’ rights related to labor management have not been guaranteed on the basis of fairness and mutual benefits by labor legislation. Whereas, some provisions on employers' right to labor management are considered to be quite open and ensure self-determination of employers in recruitment, use and termination of labor use, some employers tend to abuse their power. Discrimination of areas, training modes of employees violates rights, benefits of employees and receives strong objection from society. Cases that employers terminate labor contracts, fire employees, decrease employees’ salary without just causes occur frequently and affect income and jobs of employees and general social order. From the above reasons, I decide to choose the issue of “Law on employers' right to labor management in Vietnam” as the topic of my doctoral thesis. 2. Aims and objectives of the study Objectives of this thesis are to perform a comprehensive, in-depth and systematic study on some theoretical issues on employers' right to labor management. Based on studied theoretical basis, the thesis focuses on analyzing actual state of current law on employers' right to labor management. By evaluation of inadequate points in current laws, the thesis proposes amendments and supplementations of some provisions on employers' right to labor management in Vietnam appropriate to labor market development in the context of regional and international integration. From the above objectives, the thesis focuses on main duties as follows: Firstly, overview of studies related to the thesis topic. Secondly, studying and clarifying some theoretical issues on employers' right to labor management and law on employers' right to labor management. Thirdly, analyzing and evaluating actual state of legal provisions and actual application of legal provisions on employers' right to labor management in Vietnam, then providing comments on pros and cons, shortcomings in legal provisions on current labor legislation. Fourthly, interpreting the need and objective requirements on completion of the law on employer’s labor management right in the context of market economy and international integration nowadays. Fifthly, proposing amendments and supplementations of current legal provisions on employers' right to labor management to ensure more 3 completion and appropriateness of law with actual state of labor management in units using employees in Vietnam. 3. Objects and scope of the study The thesis studies employers' right to labor management performed in units using employees under provisions of Labor Code in 2012 and documents on implementation guidance. Accordingly, contents of law on employers' right to labor management in units using employees include: - Right to establish labor management tools; - Right to organize and perform labor management. In order to study issues more deeply, depending on each set content and requirement, the thesis performs reference and comparison with provisions of international conventions and recommendations of International Labor Organization (ILO) and labor legislations of other countries related to the above contents. 4. Methods of the study The thesis is studied based on Marxism and Leninism methodology, including dialectical and historical materialism methodology. Accordingly, legal issues on employers' right to labor management are studied in motion and development state in an integral relation with political and socio- economic elements. The thesis is also based on viewpoints and direction of the Communist Party and the State on labor relations in Vietnamese market economy. Specific methods used include retrospective method of documents, analysis, proof, comparison, summary and scientific forecast. 5. New scientific contributions of the thesis - The thesis studies more deeply and clearly definitions, nature, determination basis and role of law on employers' right to labor management, enriching academic aspects of labor legislation science. - The thesis covers legal contents on employers' right to labor management and systematically analyses such contents based on provisions of ILO and laws of other countries. - The thesis comprehensively analyses and evaluates existing law as well as actual situation of application of provisions on employers' right to labor management in Vietnam, especially labor management right in labor leasing activities; points out pros and cons of current law, then shows issues that need amending and supplementing. - The thesis interprets requirements on completion of the employers’ labor management right law in Vietnam. 4 - The thesis makes 22 proposes amendments and supplementations of provisions of Labor Code in 2012 on labor management right of employer to complete provisions of Labor Code as well as improve performance effectiveness of employers' right to labor management in units using employees in Vietnam nowadays. 6. Theoretical and practical significance of the thesis Study result of the thesis contributes to enrich fundamental theoretical system on employers' right to labor management and law on employers' right to labor management in labor legislation science. The thesis is essential to employers in improving their legal knowledge to apply labor management right in their units using employees properly, flexibly and effectively. The thesis is a helpful reference document for agencies and organizations during performance, amendment and supplementation of labor legislation; for scientific research establishments, teaching and learning institutions on labor legislation; for laborers and other objects desiring to study labor legislation on general and law on employers' right to labor management in particular. 7. Conclusion of the thesis Besides introduction, conclusion, published works related to thesis topic, list of reference documents, appendices, the thesis contains four chapters and nine sections. Chapter 1 OVERVIEW OF TOPIC STUDY SITUATION 1.1. Domestic and foreign topic study situation 1.1.1. Domestic study situation Issues on labor management, employers' right to labor management in general and law on employers' right to labor management in particular have been mentioned in textbooks, reference books, grassroots level scientific topics, thesis, dissertations, articles on journal and reports of scientific conference. In details: Textbooks: Issues related to law on employers' right to labor management have been introduced in two textbook groups: Human resources management and labor legislation, in which, such issues have been mainly mentioned in Vietnam labor legislation textbooks of the education establishments that train laws. 5 Reference books: “Studying provisions of Labor Code of Socialist Republic of Vietnam” of Legal Science Research Institute - Ministry of Justice, Ho Chi Minh city Publishing House, 1995; “Studying Labor Code of Vietnam” by Pham Cong Bay, National Political Publishing House, Hanoi, 2002; “Labor contract law in Vietnam - actual state and development” by Dr. Nguyen Huu Chi, Labor and Society Publishing House, 2003; “Research documents on labor leasing” of Department of Labor Affairs, Ministry of Labor, Invalids and Social Affairs, Labor and Society Publishing House, 2011. Besides, there are books about: Questions and answers about the Labor Code, Legal handbook, Law studying, Dictionary of legal terms, etc which mention terms or provisions of labor legislation related to the thesis. Scientific topics: Scientific topics related to the thesis are mainly grassroots level scientific research projects. They are: “Actual state of suing settlement on unilateral termination of labor contract, disciplinary measure with regards to labor dismissals in recent years and recommendations” in 2001 of Supreme People’s Court of Vietnam which is managed by Master. Nguyen Viet Cuong; “Research for amendments and supplementations of Labor Code in current stage” in 2010 of Hanoi Law University which is managed by Dr. Tran Thi Thuy Lam; “Application of labor legislation in human resources management in enterprises” in 2011 of Hanoi Law University by Dr. Do Ngan Binh… Thesis and dissertation: Among published theses and dissertations, the following works are related to the thesis topic: Thesis of “Labor contracts in the market economy of Vietnam” in 2002 by Nguyen Huu Chi; Thesis of “Law on labor disciplines in Vietnam- the actual situation and suggestive direction of completion” in 2007 by Tran Thi Thuy Lam; Thesis of “Collective agreements - A comparative study of Vietnamese and Swedish labor law systems” in 2011 by Hoang Thi Minh; Thesis of “Law on unilateral termination of labor contract - Theoretical and practical issues” in 2013 by Nguyen Thi Hoa Tam. Besides, there are other published theses related to the thesis topic. Articles on journals: Articles on journals are mainly researches discussing labor disciplines, labor contracts, and collective agreements under provisions of previous Labor Code. The similarities of such articles are that the authors mainly analyze and evaluate provisions of Labor Code in 1994 (the amended and supplemented Labor Code) and propose completion of provisions the Labor Code based on shortcomings. 6 Scientific reports: Scientific reports include result reports, research reports, impact evaluation reports or summary reports on issues of labor relation and labor legislation of Ministry of Labor, Invalids and Social Affairs, ILO and VCCI which mention some issues related to the thesis. Scientific conferences: Scientific conferences on labor relations, amendment and supplementation of Labor Code containing some issues related to the thesis are held by agencies, departments and training establishments specializing law. It can be seen that in different levels, domestic research works have mentioned some aspects in contents of some institutions related to employers' right to labor management. However, there is no works studying deeply and independently employer’s labor management right in Vietnamese labor legislation. 1.1.2. Foreign study situation Law on employers' right to labor management is studied in various aspects in some documents on foreign labor legislation including books and articles on journals. Reference books: There are a lot of reference books on labor legislation in foreign countries which do not show employers' right to labor management as an independent content but show the right alternately in studying other contents of labor legislation such as labor hiring, labor contract, rights and obligations of employees and employers, labor dismissals. They are “Employment law for business” (2005), Dawn D. Bennett-Alexander, Laura B. Pincus, McGraw-Hill Companies; “Employment law” (2006), Andrew C. Bell, Sweet & Maxwell; Employment & Labor legislation” (2008), Patrick J. Cihon, James Ottavio, Castagnera, Cengage Learning; “Q & A Employment Law” (2008), Richard Benny, Malcolm Sargeant & Michael Jefferson, Oxford University Press; “Labor & Employment Law: Text and Cases” (2009), David P. Twomey, Cengage Learning (USA); “Employment Law” (2010), Hugh Collins, Oxford University Press… Besides, there are some books studying employers' right to labor management more specifically. They are “Management Prerogatives and Employee Participation” (2004), Atty. Juris Bernadette M. Tomboc- Commercial Law, Department of De La Salle University - Manila, Philippines; “Labour Laws of the Philippines” (2006), Joselito Guianan Chan, http://www.chanrobles.com/PART3.pdf; “Labour and Employment Law in Sweden” (2009), Reinhold Fahlbeck, Bernard Johann Mulder, Lund: Juristförl; “The Employer's Legal Handbook: Manage Your Employees & Workplace Effectively” (2011), Fred Steingold, Nolo… 7 Articles on journals: Such articles include: “The Managerial Prerogative and the Employee’s Obligation to Work: Comparative Perspectives on Functional Flexibility” (2006), Mia Rönnmar, Industrial Law Journal, Vol.35, No.1; “Workplace collective bargaining and managerial prerogatives” (2007), John Storey, Industrial Relations Journal, 4-7; “The managerial prerogative and the right and duty to collective bargaining in Greece” (2009), Kostas D. Papadimitriou (Associate Professor in University of Athens, Greece), Comp. Labor legislation & Pol’y Journal, Vol 30:273; “The Concept of Mangerial prerogative in South African Labour Law” (2009), John Kinamugire… In such books and articles, in major aspects, the authors have mentioned some theoretical aspects or/and contents of employers' right to labor management on labor legislation side. However, new research works mainly generalize and introduce theoretical and practical issues without analyzing and interpreting them as requirements of the thesis. 1.2. Studies issues related to the thesis topic and some comments, evaluation Based on generalizing issues studied by research works the thesis gives some comments and evaluations as follows: Firstly, definition of employers' right to labor management. There are some research works giving understanding of the rights to labor management in general and the employers' right to labor management in particular. However, such documents have not defined labor management rights of employers as well as law on labor management rights of employers, employers and units using employees. Simultaneously, such works have not deeply explained differences the right to labor management of employers in general and the right to labor management of the state. Secondly, bases stipulating labor management rights of employers. Domestic and foreign research works discuss establishments stipulating labor management rights of employers. Accordingly, labor management rights of employers come from two bases: right on economic properties and effectiveness that employers wish to achieve. However, such works have not deeply and systematically analyzed theoretical and practical basis of determination of employers' right to labor management. Thirdly, legal contents on labor management rights of employers. In studied contents, the works mentioned two aspects of employers' right to labor management: Firstly, employers are entitled to issue work rules, collective labor agreements, labor contract, etc to be basis for labor management; Secondly, employers' right to labor management is shown in 8 specific rights such as labor recruitment, work assignment, labor transfer, commendations, disciplinary measures, labor contract termination, etc. However, there is no works mentioning specifically and systematically contents of the employers' right to labor management. Moreover, some contents on employers' right to labor management in labor leasing activities, grievant settlement have not been mentioned properly by the works. Fourthly, actual state of law on employers' right to labor management in Vietnam. By studying some fundamental institutions of labor legislation such as labor contract, collective labor agreements, work rules, etc, the works mainly analyze and evaluate such institutions in general research aspect without deeply studying and considering employers' right to labor management. Proposals suggested by such works for amendments and supplementations are mainly legal provisions in previous statutes, which have partly become outdated. There is no works specifically and systematically analyzing actual state of law on employers' right to labor management based on provisions of the Labor Code 2012. Fifthly, completion of law on employers' right to labor management in Vietnam. This content is mentioned specifically in domestic research works. Such research works have proposed main opinions on completion of provisions in the Labor Code issued in 1994 which is amended and supplemented. Besides, some works propose completion of law on unilateral labor contract termination right of employers of the Labor Code in 2012. Appropriate opinions and viewpoints of such research works will be referred by the thesis during additional study and completion on side of employers' right to labor management. 1.3. Fundamental issues to be settled in the thesis 1.3.1. Some theoretical issues - Theoretical issues on employers' right to labor management. - Theoretical issues on law on employers' right to labor management. 1.3.2. Actual state of current labor legislation on employers' right to labor management in Vietnam - Actual state of law on the right to establish labor management tools. - Actual state of law on the right to organize and perform labor management. 1.3.3. Completion of law on right to establish employers' right to labor management in Vietnam - Completion direction of law on employers' right to labor management must ensure theoretical and practical requirements. -To propose amendments and supplementations of some provisions on employers' right to labor management. In detail, to propose amendment and [...]... determined on the basis of: 1) Objective requirements of labor management activities; 2) Right for properties of employers; 3) Benefits of parties in labor relation 2.2 Law on employers' right to labor management 2.2.1 Definition of law on employers' right to labor management From studies on employers' right to labor management and international legal provisions on this right, law on employers' right to. .. Direction for completion of law on employers' right to labor management in Vietnam Completion of law on employers' right to labor management is an urgent demand in current context of Vietnam economy The completion should meet the following requirements: 1) To remedy inadequate issues of current law, expand self-mastery right in employers' right to labor management and limit direct state interference in employers' ... supplementation of provisions on right to establish labor management tools and right to organize and perform labor management of employer of the Labor Code in 2012 Chapter 2 SOME THEORETICAL ISSUES ON LABOR MANAGEMENT RIGHT AND LAW ON EMPLOYERS' RIGHT TO LABOR MANAGEMENT 2.1 Employers' right to labor management 2.1.1 Definition of labor management and law on employers' right to labor management 2.1.1.1 Labor management. .. employers' right to labor management; 2) To ensure the harmony in benefits between employers and employees; 3) To suit the mechanism of the economic administration in a socialist-oriented market economy in the context of international integration in Vietnam 4.2 Proposals on amendments and supplementations of provisions on employers' right to labor management 4.2.1 To amend and supplement provisions on the right. .. labor management right; 3) Ensuring freedom and self-mastery right in business operation and promoting business production; 4) Making legal basis to ensure job and income for employees, contribute to stability, harmony and development of labor relation Chapter 3 ACTUAL STATE OF CURRENT LAW ON EMPLOYERS' RIGHT TO LABOR MANAGEMENT IN VIETNAM 3.1 Actual state of law on right to establish labor management tool... effectiveness of labor management in the unit Because of the importance of this right to settle complaints of employers, international law acknowledges it and has detailed provisions on it 2.2.3 Role of law on employers' right to labor management Law on employers' right to labor management has roles: 1) Concretizing requirements on state management in labor field; 2) Making legal basis for the employers' performance... 1) Employers' right to labor management reflects unilateral will of employers; 2) Employers' right to labor management is always affected by subject’s will in labor relation; 3) Employers' right to labor management is governed by the legal limits; 4) Employers' right to labor management is administrative 2.1.3 Basis for determination of employers' right to labor management Employers' right to labor management. .. relation 24 6 The employers' right to labor management under the current labor legislation in Vietnam has expanded Besides granting employers selfdetermination right in issuing work rules, internal regulations and decision, recruiting, arranging, assigning works, performing disciplinary measures, issuing commendations, etc, labor legislation also recognizes labor management right in labor leasing activities,... definition to emphasize labor management factor as well as expand contents for agreement (eliminating provision on “working condition” The definition can be that "Labor contract is the agreement on rights and obligations in labor relation between employers and employees, in which, employees work for earning salary and are subjected to labor management of employers" The amendment of the said definition... employers' right to labor management is a natural and traditional right regardless of any theories Right to be performed under employers desire is gradually replaced by right under legal provision 4 Contents of law on employers' right to labor management include two fundamental issues: Right to establish labor management tool and right to organize and perform labor management in the unit 5 Law on employers' . management. 1.3.3. Completion of law on right to establish employers& apos; right to labor management in Vietnam - Completion direction of law on employers& apos; right to labor management must ensure. AND LAW ON EMPLOYERS& apos; RIGHT TO LABOR MANAGEMENT 2.1. Employers& apos; right to labor management 2.1.1. Definition of labor management and law on employers& apos; right to labor management. right to labor management 2.2.1. Definition of law on employers& apos; right to labor management From studies on employers& apos; right to labor management and international legal provisions