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TRAINING HANOI LAW UNIVERSITY TRAN THUY HANG THE LAW REGULATING LABOR RELATIONS OF FOREIGN WORKERS IN VIETNAM IN THE INTERNATIONAL ECONOMIC INTERGRATION PERIOD Major : International

TRAINING

HANOI LAW UNIVERSITY

TRAN THUY HANG

THE LAW REGULATING LABOR RELATIONS

OF FOREIGN WORKERS IN VIETNAM IN THE INTERNATIONAL ECONOMIC INTERGRATION

PERIOD Major : International Law Code : 9 38 01 08

THE SUMMARY OF THE PhD THESIS

HA NOI – 2019

HANOI LAW UNIVERSITY

Supervisors : 1 Assoc Prof Nong Quoc Binh

2 Doctor of Law Do Ngan Binh

THE LIST OF AUTHOR’S PUBLISHED ARTICLES

1 Hang Tran Thuy (2017), “Report on Vietnam’s Rules Regulating Foreign Workers”, Japan Labor Issues, Volume 1 Number 3

November-December 2-17, p 77-83

2 Trần Thúy Hằng (2018), “Policy attracting foreign workers to operate in science and technology in Vietnam”, Journal of Law, Number 5/2018, p 38-54

PREAMBLE

1 Reason for choosing the topic

Vietnam has advocated receiving foreign workers since 1985 to meet the demand for domestic production and business (Article 16 of Vietnam Foreign Investment Law 1987) Regulations on the recruitment and hiring foreign workers in the Labor Code 1994 have been inherited and supplemented, together with the provisions of the previous period For the professions that Vietnamese workers have not been able to do, enterprises may recruit a certain number of foreign workers for a certain period The Labor Code 2012, effective from January 1, 2013, has separated regulations on the labor activities of foreign workers in Vietnam in Section 3 Chapter XI, from Article 169 to 175 and supplemented by Decrees and Circulars detailing and implementing several articles of the Labor Code on foreign workers in Vietnam Also, in the context

of international economic integration, Vietnam has signed a series of labor cooperation agreements, free trade agreements, joined 21 conventions of the World Labor Organization Accordingly, the issue of protection of rights and basic labor conditions is receiving increasing concern Since 2016, Vietnam has continued to implement the commitments in the ASEAN Framework Agreement on Services to fulfill the objective of movement freedom for skilled workers These international treaties create an international legal basis to regulate labor relations of the Vietnamese workers and foreign workers working in Vietnam

Through a process of development, the law regulating labor activities

of foreign workers has been increasingly improved to adapt to the diverse economic growth of the country The legal provisions are quite detailed, which focus primarily on the employing requirements and work permit for foreign workers working in Vietnam However, the number of regulations in Vietnam

is quite small; the content is simple, overlapping and low enforceability Meanwhile, since the need for skilled labor is increasing due to the impact of the technological revolution 4.0, the reception of foreign workers is a practical solution to offset the domestic shortage of labor But to formulate a system of the legal norm to meet the needs and the development of the economy, comprehensive and extensive research on the law regulating labor relations of foreign workers in Vietnam is required Therefore, the research on the law regulating labor relations of foreign workers in Vietnam is necessary for the current period

2 Research objective and scope of the thesis

The thesis focuses on studying the current provisions of Vietnamese law, the provisions of international treaties to which Vietnam is a member, and the judgments of Vietnamese courts dealing with disputes on individual labor relations of foreign workers

With the research objective as mentioned above, the scope of the thesis includes basic theoretical issues about labor relations and the law regulating labor relations of foreign workers; current provisions of international law and the bill of foreign countries regulating labor relations of foreign workers; current provisions of Vietnamese legislation regulating labor relations of foreign workers

3 Research aims and mission of the thesis

The aim of the thesis includes more in-depth analysis of fundamental theoretical issues of the law regulating labor relations of foreign workers; analysis and evaluation of the current practice of legislation regulating labor relations of foreign workers in Vietnam Based on these analyses, the thesis proposes some specific recommendations and solutions to improve the legal regulations and improve the effectiveness in implementing legislation

regulating labor relations of foreign workers

To achieve this purpose, the author must fulfill the specific tasks as follows: (i) Formulate the concept of foreign workers in Vietnam (ii) Develop

a concept of labor relations and identify the characteristics of labor relations of foreign workers (iii) Clarify the fundamental theoretical issues of the law regulating labor relations of foreign workers (iv) Assess the comprehensive legal basis regulating labor relations of foreign workers (v) Propose several specific solutions to improve the legislation and enhance the effectiveness of implementation to create a stable and favorable legal environment for the development of labor relations with foreign elements, to protect the constitutional rights and interests of foreign workers in Vietnam

4 Methodology and research methods

In studying the law regulating labor relations of foreign workers in Vietnam, the thesis uses the theoretical basis, including The doctrine of Marxism – Leninism and Ho Chi Minh's Thoughts on State and Law, knowledge systems, perspectives on law and legal implementation of the Communist Party and the State of Vietnam

The thesis mostly focuses on the following research methods: Legal, scientific research method, Comparative law method, Analytical method, Proving method, Synthesis method, Scientific forecasting method

5 Scientific meaning and novelty of the thesis

This thesis provides new scientific contributions as follows:

First, the dissertation has systematically analysed fundamental

theoretical issues of the law regulating labour relations of foreign workers It has developed the concepts of foreign workers and labour relations of foreign workers, thereby, identifying the characteristics of labour relations of foreign workers in Vietnam

Second, the dissertation has comprehensively analysed fundamental

legal issues on adjustment of labour relations of foreign workers in accordance with the law of Vietnam and international treaties to which Vietnam is a member and offered comments on judgments of Vietnamese courts dealing with individual labour disputes arising from labour relations of foreign workers, and thereby indicating the inadequacies of the implementation and interpretation of legal provisions on labour relations of foreign workers in Vietnam

Third, the dissertation has identified experiences of some developed

countries in regulating labour relations of foreign workers On that basis, the dissertation offers some proposals for improving the law of Vietnam regulating labour relations of foreign workers consistently with Vietnam's socio-economic conditions in the period of international economic integration

6 The theoretical and practical meanings of the thesis

The thesis contributes to formulating and perfecting the theoretical basis and perfecting the law regulating labor relations of foreign workers in the context of international economic integration; At the same time, to a certain degree, this thesis will be a valuable source of information to aid policymakers, legislators, and managers in making and implementing provisions of legislation regulating labor relations of foreign workers in Vietnam The thesis is also a reference for research and teaching of labor law, private international law Faculties, and Universities specialized in law or labor and social affairs

7 Structure of the thesis

With the aims mentioned above and tasks, the thesis is presented in 4 chapters Also, the thesis includes Introduction, List of Abbreviations, Conclusion, List of other works published by the author, References, and Appendices

Chapter 1: Overview of the studies related to the thesis topic

Chapter 2: Theoretical issues in labor relations of foreign workers and the law regulating labor relations of foreign workers

Chapter 3: Current practice of the law regulating labor relations of foreign workers in Vietnam

Chapter 4: Perfecting the law and improving the effectiveness of implementing the law regulating labor relations of foreign workers in Vietnam

Chapter 1 OVERVIEW OF THE STUDIES RELATED TO THE

THESIS TOPIC

The studies on the law regulating labor relations of foreign workers are diverse and are carried out under many different aspects Regarding foreign workers as the research topic, there are many authors conducting research, with many studies from different perspectives The studies presented the general theoretical issues of foreign worker management, such as scientific bases, legal bases and practical bases of foreign workers for socio-economic development

of our country systematically Regarding the law regulating labor relations of foreign workers as the research topic, there are no intensive and comprehensive studies about the law regulating labor relations of foreign workers in Vietnam The existing studies only focus on some different issues, such as managing foreign workers, protecting the rights of foreign workers, labor contracts of foreign workers Analyses on the inadequacy of legislation and recommendations to perfect the legislation are generic, without comparing and absorbing the experiences on this topic of countries in the world

From the existing studies as well as the aim and research tasks of the thesis, within its research scope, the thesis focuses on clarifying the following issues:

First, theoretical matters Based on existing studies related to the thesis

topic, the thesis will explain some issues such as the legal basis of legislation regulating labor relations of foreign workers, conflict of laws

Second, practical legal issues The emergence and development of

statutory provisions for foreign workers working in Vietnam have been generally presented, analyzed and commented by many studies The thesis will absorb this knowledge to clarify the legal framework regulating labor relations

of foreign workers in Vietnam

Third, issues of practical implementation of the law regulating labor

relations of foreign workers in Vietnam and the issues on orientation and solutions The thesis studies the experience in management and solutions in each country, especially countries with developed labor markets which use international human resources effectively

Chapter 2 THEORETICAL ISSUES IN LABOR RELATIONS OF FOREIGN WORKERS AND THE LAW REGULATING LABOR RELATIONS

OF FOREIGN WORKERS 2.1 The concept of foreign workers and labor relations of foreign workers

2.1.1 The concept of foreign workers

2.1.1.1 Definition

The author proposed the concept of foreign workers in Vietnam as

follows: "Foreign workers are foreigners who come to Vietnam to work under labor contracts, are paid and subject to the management and administration of employers.”

2.1.1.2 Classification of foreign workers

First, based on skills, foreign workers are divided into two categories:

skilled workers and unskilled workers Second, based on legal status, foreign

workers are divided into two categories: legal foreign workers and illegal

foreign workers Third, based on nationality, foreign workers are divided into

different categories depending on the laws of the country and international treaties on the reception of foreign workers of which the country is a member

Fourth, based on allowing the duration of residence in the host country, foreign

workers are divided into two categories: foreign workers with permanent residence and foreign workers with temporary residence

2.1.2 Concepts and characteristics of labor relations of foreign workers

2 1.2.1 Definition

The author proposes to formulate the concept “labor relations of

foreign workers in Vietnam” as follows: “labor relations of foreign workers in Vietnam are labor relations arising between foreign workers and employers where foreign workers are hired and perform the work under the management and administration of employers for wages.”

2.1.2.2 Characteristics of labor relations of foreign workers

The distinguishing features between labor relations of foreign workers and normal labor relations are that the subjects have foreign elements; one of the subjects is a foreigner This characteristic makes labor relations of foreign workers the subject matter of both labor law and private international law

2.2 The basic theoretical issues on the law regulating labor relations of foreign workers

2.2.1 The role of the law regulating labor relations of foreign workers in the context of international economic integration

First, the law regulating labor relations of foreign workers creates a

legal basis for the parties to establish and execute legal labor relations

Second, the law regulating labor relations of foreign workers creates a

legal basis for protecting the rights of foreign workers in labor relations

2.2.2 The main sources of the law regulating labor relations of foreign workers

2.2.2.1 International law

The system of global multilateral treaties, related to labor relations of foreign workers, mainly focused on the protection of migrant workers' rights Some related issues to labor relations of foreign workers have been regulated

by regional multilateral treaties or bilateral treaties such as the issue of determining the applicable law of labor contracts in private international law, the issue of promoting freedom of movement of labor in the region, the issue

of protecting the rights of migrant workers

2.2.2.2 National law

The legislation

Some countries position all regulations in a unified code, but in the others, the provisions are scattered in different legal documents From the perspective of private international law, some countries in the world have legal provisions for determining the applicable law for labor relations with foreign elements and these provisions will also be applied to labor relations of foreign workers Some countries do not have legal provisions of applicable law for labor relations with foreign elements, but there are provisions on applicable law

of contracts, including labor contracts

reference for lower courts

2.1.1 The basic principles of the law regulating labor relations of foreign workers

2.2.3 1 Principle of non-discrimination

This principle requires that the host country shall treat foreign workers without discrimination regardless of sex, race, color, religion or political view

2.2.3.2 Principle of national treatment

Under this principle, foreign workers will be entitled to the same rights

as domestic workers as regulated by the law of the host country

2.2.3.3 Principle of freedom of agreement of the parties in labor relations

Regarding labor law, freedom of agreement of parties in labor relations is widely recognized in the laws of most countries around the world This principle requires parties in labor relations to respect fair, voluntary, legal agreements regarding rights, obligations, benefits, and responsibilities of each party in labor relations From the perspective of private international law,

in determining the applicable law of labor contracts, the choice of applicable law by the parties prioritized The choice of law by the parties shall be reflected

in labor contracts and will be the basis for the court to resolve disputes arising

from labor contracts

2.2.3.4 Protection of legal rights and interests of employers

This principle requires the state to ensure that the rights and benefits

of employers under the law are implemented without being violated by others Employers are an indispensable part to form and maintain labor relations By protecting the legal rights and interests of employers, labor relations may

develop sustainably

2.2.4 Several basic legal contents of the law regulating labor

relations of foreign workers in countries around the world

2.2.4 1 Establishment of labor relations of foreign workers

Unlike the establishment of labor relations with domestic workers, employing foreign workers is an activity limited by employment conditions, which are requirements to limit the number of foreign workers in a country, that done in two ways: (i) quotas (United States, South Korea, Singapore) and (ii) employment standards

2.2.4.2 Executing labor relations of foreign workers

When foreign workers meet the employment requirements, they will participate in labor relations and become workers with full rights and obligations under the law Therefore, labor relations are executed based on the mutual agreement of labor rights and obligations reflected from labor contracts

of foreign workers, and at the same time shall comply with specific legal provisions of each country (Japan, Malaysia)

2.2.4.3 Termination of labor relations of foreign workers

The termination of labor relations of foreign workers is executed in accordance with the general provisions of termination of labor contracts of foreign workers However, since workers are foreigners, legislation of some countries have several additional obligations for employers of foreign workers

in case of premature unilateral termination

2.2.4.4 State management of labor relations of foreign workers

The most common method of management is work permits Moreover, some countries even adopt regulations on the obligations of employers in managing foreign workers

2.2.5 Conflict of laws and methods to resolve conflicts of law in labor relations of foreign workers

2.2.5.1 Conflict of laws in labor relations of foreign workers