settlement of a strikes by collective bargaining and mediation under vietnamese law- in comparision with the swedish system

Table of Contents Table of contents ……………………………………………….…………………… ……………… 1 Abbreviations……………………………………….………………………………… ……………… 2 Executive Summary…………………. ………………………………………………………………… 3 1. Introduction……………………………………………………… …………………………… 4 2. Overview strike and settlement of strike……………………………………… 8 2.1 Background of labour market and labour law developments in Vietnam and Sweden…. ………8 2.1.1 Background of labour market and labour law developments in Vietnam………………… 8 2.1.2 Background of labour market and labour law developments Sweden………………………… 9 2.2 The Concept of strike………………… ……………………………………… 12 2.2.1 Strike seen from socia-economic angle and international law……………… 13 2.2.2 THe Strike in the Labour Code of Vietnam………………………………………… ……… 14 2.2.3 Strike as stipulated in the law of Sweden ……… …………………………………………. 17 2.2.4 Lesson learned from the improvement of the concept of the strike in Swedish law 20 2.3 Introducing some viewpoints on the settlement of a strike and overview of a strike's resolution under Vietnamese and Swedish labour law… ……… ……….…. …………………………. 23 2.3.1 Some viewpoints on the settlement of a strike.… ……… …………………………………. 23 2.3.2 Overview of the settlement of strike under Vietnamese and Swedish labour law …………. 26 3. The Settlement strikes by way of collective bargaining…… ……………………………. … 30 3.1 Issues to be improved in Vietnamese labour law in respect of settlement of a strike by collective bargaining…… 30 3.2 Lessons learned from Swedish law to improve Vietnamese labour law in respect of settlement of a strike by collective bargaining………………. … 31 3.2.1 Introduction of settlement of a strike by collective bargaining in Swedish law… 31 3.2.2 Investigation of Swedish law with a view to improving Vietnamese legislation on the settlement of strike by collective bargaining… ………………………… …………………………… 37 4. Settlement of strike by mediation… ……………………………………… 41 4.1 Introduction of settlement of a strike by mediation in Vietnamese Labour Law.……… … 41 4.2 Issues to be improved in Vietnamese labour law in respect of settlement strike by mediation ………………………………………………………………… 42 4.3 Survey of Swedish law system with a view to improvements in legislation regarding settlement of a strike by mediation in Vietnam………………………………… ……………………… 48 4.3.1 Introduction to settlement of a strike by mediation in Swedish law…………… 48 4.3.2 Investigation of Swedish law in order to improve Vietnamese legislation on settlement of strike by mediation……………………………………………… ……………… … 52 5. Conclusion… ………………………………………………………………… 61 Bibliography. …………………………………………………………………………… 62 1 Abbreviations: ILO: International Labour Organization. MBL: The Co-Determination Act. Vietnamese Labour Code: conclusion of Vietnamese Labour Code 1994 and Amendments of Vietnamese Labour Code 1994 in 2002, 2006 and 20007. LO: The Trade Union Confederation (Lands-Organisation). SAF: The Employers Confederation (Svenska Arbetstgivaveforeningen). Nowaday, SAF has amalgamated and changed name to SN Cofederation of Swedish Enterprise. OECD: Organisation for Economic Cooperation and Development. 2 Executive Summary My thesis studies the settlement of strikes under Vietnamese labour law using some ideas drawn from Swedish labour law. It will deal with the concept of strike, issues of collective bargaining and mediation in a settlement of a strike. First, on concept of a strike, beside an overview drawn from the perspectives of economics and social thought, the writer presents the concept of strike laid down in Vietnamese Labour Code. “Strike means a temporary and voluntary cession of work organized by a labour collective to resolve a collective labour dispute” (article 172 of Vietnamese Labour Code). The writer also compares Vietnamese and Swedish Law on the issue. From the Swedish point of view, a strike is one manifestation of industrial action. They distinguish between strikes and other expression of industrial action such as lockout, go-slow, boycott…in Sweden. Basing itself on Swedish labour law, Vietnamese labour law should acknowledge that a strike is a voluntary complete stoppage of work organized by a labour collective to force the settlement of a collective labour dispute. Secondly, on the settlement by collective bargaining, Vietnamese Labour Code, like Swedish law, provides that before and during a strike, the parties have the right of collective bargaining to resolve it. However, Vietnamese Labour law is short of legal grounds to create and strengthen the chances of a settlement of a strike by collective bargaining. Based on ideas from Swedish labour law, the writer proposes improvement to the provisions in Vietnamese labour law on negotiation; appearances of third party; the process of collective bargaining and the mechanism to ensure it will be carried out; guaranteeing the validity of collective agreements which derive from the process of collective bargaining. Finally, on a settlement of a strike by mediation, the writer describe some issues which should be improved in this part of Vietnamese labour law. As with collective bargaining, the participation of mediators and guarantees for the validity of proposals and agreements achieved in mediation raise issues which Vietnamese labour law should improve. In addition, the writer is concerned with issues of a strike’s postponement as part of a settlement. As is the case with Swedish labour law, Vietnamese labour law should reinforce the competence of mediators to ensure the success of mediation. This is linked to issues of postponing strikes and the mediator should be able to suggest postponement to the provincial labour office. When the issue related to postponement exceeds the competence of the provincial labour office, this agency can request the competent authority at provincial level decide. 3 1. 1. 1 INTRODUCTION Identification One of the forms of industrial action is the strike. It is regarded as a basic employees’ right and one of the most important ways of protecting their rights and interests before the employers. A strike is also considered a delicate matter because its appearance can have an adverse impact on the economy, society and the relationship between employer and employee in the labour market. Therefore, a key issue to research is how to settle strikes as soon as possible, how to reduce to a minimum the negative effect of a strike when it occurs. Based on the law of the labour market, the parties involved in the strike issue can solve it by various means such as collective bargaining and mediation and appeal to the Court. Collective bargaining and mediation are favourable methods because of they save time, the procedure is easy and the matter is dealt with by the parties (employer and employee) in comparison with a settlement by the Court. Vietnamese labour law provides that collective labour disputes in the strike can be settled by collective bargaining and mediation though a settlement through collective bargaining will be restricted in its effect. That are many problems such as who participates in the collective bargaining, the level of bargaining and the legislative mechanism supporting collective bargaining. Moreover, under Vietnamese labour mediation lacks the “power” to force a settlement. This results from Vietnamese law on the mediator’s role, implementing the mediator’s decision and competence regarding postponement. These problems can be resolved with the help of lessons learned from the law of Sweden- a leader in achieving settlements by collective bargaining and mediation. To show the necessity of improving the law on the settlement of strikes through collective bargaining and mediation, I examine the issue “Settlement of a strikes by collective bargaining and mediation under Vietnamese law- in comparision with the Swedish system”. It is the subject of my thesis. 4 1. 2 Research question and aim of thesis: The research question shall be how to improve the legislation on the settlement of strikes through collective bargaining and mediation under Vietnamese labour law so that this legislation will become more “powerful” and effective in perspective of strike. The aim of thesis: By comparing Vietnamese and Swedish labour law, the writer will try to solve problems relating to the settlement of strikes by collective bargaining and mediation under Vietnamese labour law. The lessons to be learned from Swedish labour law on the topic will be brought out. 1. 3 Delimitation: The thesis will concentrate on examining: -The concept of a strike -The general idea of the settlement of a strike -The settlement of a strike by collective bargaining and mediation The thesis will not focus on such issues as: -Strikes for political purposes. My thesis looks at strikes in the context of the labour relationship. Political strikes extend beyond the sphere occupied by employees and employer and may be studied elsewhere. -Strikes in the public sector. Sweden is one of countries treat public sector employees. There are very few differences in Sweden between private and public sector labour law. Although the writer deals the Co- 5 Determination Act (SFS 1976:580), in limitation of pages number in thesis, the writer only focus relationship between employer and employees in private sector. Moreover, the writer has not aim to study Public Employment Act (SFS 1994:260). That is reason strike in public sector is outside scope of thesis. -Consideration legal characteristic of strike (lawful or unlawful) at the Court. In Sweden, the court does not settle strike. One of its essenstial roles is judgement whether unlawful or lawful strike. In other words, the court only handle illegal strike. Meanwhile, the thesis only focuses on settlement of strike by collective bargaining and mediation. Specifically, manner and procedure to resolve collective labour disputes inside strike by collective bargaining, mediation are main content which the writer deals. Therefore, settlement by the court will not be considered in the thesis. 1.4 Method: -Comparative method: +Present the issue which I shall deal to analyse under Vietnamese and Swedish labour law. + Figure out and analyse differences and similarities between Vietnamese and Swedish labour law in aspect of strike’s settlement by collective bargaining and mediation. +Consider whether provisions of Swedish labour law in strike’s settlement perspective can accord with economic and social condition of Vietnamese labour market. +Pick up and explain about capable to take some legal experiences for “transplantation” into Vietnam and how to impose these experiences of Swedish labour law into Vietnamese system. -Traditional legal method: +Mention issues which are related to thesis’s content. +Bring out legal grounds supporting such issues. +Analysis legal grounds to demonstrate they do indeed support the issues . 6 +Draw conclusion. -Logical analysis: +Bring out viewpoint. +Explain and analyse viewpoint. +Mention other viewpoints (similar and different) +Explain and analysis these viewpoints. + Draw conclusion. 1. 5 Conclusion: In my thesis, I shall begin with the concept of a strike and study its settlement through collective bargaining and mediation by comparing relevant Vietnamese and Swedish labour law. After that, I shall analyse the same topic using the comparative method and shall then focus on settlements by way of mediation. 7 [...]... Collective bargaining or mediation is usually applied in these cases The second is determination of the legality of a strike Only the court has jurisdiction over the legality of a strike and this is done in judicial proceedings 2.3.2.1 Collective bargaining Settlement of a strike by collective bargaining is one of the traditional measures recognized in the labour law of many countries including Vietnam and. .. fair to say that the settlement of a strike by collective bargaining has the nature of a self-solving mechanism This measure only relates to the content of a strike without consideration of its legality The purpose of collective bargaining is to end the collective stoppage of work The settlement of a strike by collective bargaining is the settlement of issues relating to the rights and interests of. .. continue period of collective bargaining- stage has assistance of mediator The advantages of mediation are that it is simple, convenient, economical and quick Mediation is also considered as a friendly way to settle a strike Mediation involves a meeting in which the parties will discuss and agree on matters in respect of a strike with the assistance of a third party acting as intermediary During mediation, ... bargaining and mediation, after taking into account the lessons to be learned from Swedish legislation 3 THE SETTLEMENT OF STRIKES BY WAY OF COLLECTIVE BARGAINING 3.1 Issues to be improved in the labour law of Vietnam in respect of the settlement of a strike by collective bargaining The labour law of Vietnam regulates that prior to and during the process of a strike, the parties have the right to negotiate... individuals participating in the strike who were at fault may have to pay compensation for this 40 Further, the decision of the court backed by the State and mandatory Settlement of a strike by a court will be followed This is one of the advantages of a settlement at court by comparison with collective bargaining and mediation Article 196, 171 Vietnamese Labour Code Clause 1, Article 17 6a, Vietnamese Labour... study of collective bargaining in the law of Sweden, in Chapter II, the writer will suggest some ways of improving the regulations on collective bargaining in the labour law of Vietnam 2.3.2.2 Mediation Besides collective bargaining, parties can engage in mediation to resolve a strike’s content In the event parties can not settle the conflict on their own in collective bargaining, mediation will follows... labour market, such as the wage of employee, where unisation developed only later Early regulation by statutes comprised an Act on Collective Agreements and Industrial Action 1928 and an Act on Collective Bargaining and right of association 1936 Moereover, the Labour Court, a special tribunal was established in 1928 Employment Nowaday, SAF has amalgamated and changed name to SN Cofederation of Swedish. .. collective bargaining with employee representatives This leads to an imbalance between the parties involved though an important factor in a successful settlement of a strike by collective bargaining is equality between and agreement of the parties In practice, the employer may more easily defend and respond to the proposals and demands of employees As a result, the parties may find it difficult to reach an agreement... the 1962 Penal Code it was made clear that peaceful political strikes were not an offence against the State (…)”.24 In fact, the Social Democratic Party and Labour Union mounted a political strike in 1928 against the draft of the Collective Bargaining Agreement and Labour Code 25 Accordingly, the scope of Swedish labour law extends beyond the scope of the labour relations between employer and employees... wider range of participants in collective bargaining than the employer and employees in enterprises and industries The level of collective bargaining should also be higher than direct collective bargaining between the two parties in labour relationship Al this means that any agreement should be between representatives of both the labour collective and employer groups Bearing in mind the requirements of . bargaining and mediation and appeal to the Court. Collective bargaining and mediation are favourable methods because of they save time, the procedure is easy and the matter is dealt with by the parties. Sweden- a leader in achieving settlements by collective bargaining and mediation. To show the necessity of improving the law on the settlement of strikes through collective bargaining and. mediation, I examine the issue Settlement of a strikes by collective bargaining and mediation under Vietnamese law- in comparision with the Swedish system . It is the subject of