Labour relation a comparision between vietnamese and swedish labour law

HANOI LAW UNIVERSITY LUND UNIVERSITY FACULTY OF LAW LABOUR RELATION- A COMPARISON BETWEEN VIETNAMESE AND SWEDISH LABOUR LAW SPECIALTY: INTERNATIONAL AND COMPARATIVE LAW CODE: 60 38 60 MASTER OF LAW THESIS STUDENT: HOANG THI MINH THƯVIỆN T RƯ ỜNG ĐAI H O C j J âỵ Nổ! PHỊNG G V SUPERVISORS: DR LUU BINH NHUONG PROF BIRGITTA NYSTROM H A N O I - 2004 Contents PREFACE ABBREVIATIONS INTRODUCTION 1.1 O verview 1.2 Aim 1.3 Lim itations 1.4 M ethod 1.5 Previous researches 1.6 Disposition GENERAL KNOWLEDGE ONLABOUR RELATIONS 2.1 C oncept of labour relations 2.1.1 D efinition 2.1.2 Characteristics o f lab o u r relations 2.2 Structure of labour relations 2.2.1 Subjects o f lab o u r relations 2.2.2 Objects o f lab o u r relations 2.2.3 Com prehension o f lab o u r relations 2.3 The form ation and developm ent of labour relations 11 2.3.1 The form ation and develop m ent o f labour relations in Vietnam 11 2.3.2 The form ation and develop m ent o f labour relations in Sw eden 13 BASIC LEGAL ISSUES ON THE ESTABLISHMENT, MAINTENANCE AND TERMINATION OF LABOUR RELATIONS 3.1 17 Establishm ent of labour relations (m aking em ploym ent contracts) 17 3.1.1 Principles governing lab o u r contract conclution 17 3.1.1.1 Principle of voluntariness 17 3.1.1.2 Principle of equality 17 3.1.1.3 3.1.1.4 Principle of com pliance with the laws and collective agreem ents Principle of encouragem ent of providing em ployees with m ore favourable conditions than those stipulated in the labour legislation 18 18 3.1.2 D ifferent categories o f em plo ym ent contracts 19 3.1.3 Process o f m aking em ploym ent contracts 20 3.2 Maintaining labour relations 3.2.1 Im plem enting em ploym ent contracts 22 3.2.2 O ther activities to m aintain labour relations 23 3.3 3.2.2.1 Alteration of employment contracts 23 3.2.2.2 Tem porary suspension of labour contracts 24 Term ination of labour relations 3.3.1 Circum stances in which labour contracts m ay be terminated 25 3.3.1.2 Labour contract termination agreed by parties 32 3.3.1.3 Natural termination of labour contracts 33 Legal consequences o f labour contract termination Liability for damages as consequences of illegal ending labour contract 3.3.2.2 Need of promoting effectiveness of law regulation to labour relations 4.1.1 34 Real situation o f the labour relations and the implem entation labour law 38 38 of 38 4.1.1.1 Real situation of labour relations 4.1.1.2 Situation of the enactment and implementation of the labour law 40 4.1.2 4.2 33 Interests of involved parties in case of lawful contract termination 35 SOME SOLUTIONS AIMING AT INCREASING THE EFFECTIVENESS OF LAW REGULATION TO LABOUR RELATIONS IN VIETNAM 4.1 25 Unilateral termination of labour contracts 3.3.2.1 25 3.3.1.1 3.3.2 Tendency o f labour relation developm ent and the need o f increasing effectiveness o f labour law regulation Some suggestion methods for increasing effectiveness of law on labour relations 4.2.1 Im proving law 38 44 45 45 4.2.1.1 Improving law on labour relations 45 4.2.1.2 Improving the related economic law 48 4.2.2 Strengthening som e relevant institutions 49 4.2.2.1 Increasing the effectiveness of the trade union 49 4.2.2.2 Establishment and operation of tripartite mechanism 51 4.2.2.3 Enhancing the operation efficiency of the labour court 52 4.2.3 22 O ther solutions 52 4.2.3.1 Strengthening labour law popularization 52 4.2.3.2 Strengthening inspection activities 53 CONCLUSION BIBLIOGRAPHY 54 55 Preface Law on labour relations is a very broad subject Though I know that it is difficult for me to have a comprehensive and profound view and study through only this thesis, with great encouragement from my tutors, colleagues and friends, I finally decided to choose this topic as my study It is really a very interesting topic for me and it gives me a very good opportunity and inspiration for learning Swedish labour law I am very grateful to my tutors, Prof Birgitta Nystrom and Prof Luu Binh Nhuong for their kind and sincere assistance, encouragement and advice they have rendered to me right from beginning o f my study I would ljke to thank the librarians o f Lund University and Ha Noi Law University for helping me to collect necessary materials My sincere thanks to my colleagues and friends for giving me thoughtful comments on the contents o f the thesis Abbreviations EC EEC EMU EU ILO LO MOLISA SACO SAF SFS 1982:80 SOEs TCO WTO European Community European Economic Community Economic and Monetary Union European Union International Labour Organization The Swedish Trade Union Confederation Ministry o f Labour - Invalids and Social Affairs The Swedish Confederation o f Professional Association The Swedish Employers' Confederation Employment Protection Act State-owned enterprises The Swedish Confederation o f Professional Employees World Trade Organization Introduction 1.1 Overview Labour is the mode o f creating riches and different values for social life Labour relation, therefore, can be seen as one o f the most important factors contributing to the economic development To make use o f labour potentials as well as production potentials, the basic requirements are stabilising and harmonising the relationship between employees and employers in enterprises In Vietnam, recently, the number o f labour disputes, which have been solved annually at the labour court, is rather high, some 700 - 800 cases This statistic shows that labour relation quality, in general, is not very good as a result o f labour law regulation, in some cases, seems inadequate In Vietnamese enterprises, breaking labour law is rather common, especially related to working hours, working environment and social insurance etc, that are violations o f employees' rights and interests The causes o f labour law violations are due to different factors In terms o f law, there are two main reasons, as follows: First, labour laws are not well-designed There remained many shortcomings and loopholes in the legal documents Second, labour law is not well enough enforced, the violations are not properly corrected Since we have the new enactment o f Labour Code (2002), labour relations generally have a better law background to develop However, the question o f improving labour laws and promoting labour relations are always the hot issues, because Vietnam must not satisfy with the cuưent labour relation status It needs to continuous changing and promoting favourable conditions in order to help two involved parties in labour relations improve their relationship In the coming time, Vietnam shall join AFTA (Asian Free Trade Area) and continue, step by step, prepare to become WTO member It means that Vietnam needs to boost competition ability o f undertakings and speed up multi-sector economic development to integrate in global economy In thisjjro c e ss, laws, including o f labour law, must be more improved to assume the role o f the law prerequisite for production, business and trade activities Sweden is a developed country, which has a large and long-termed built labour law system In the field o f labour relations, there are many interesting provisions that can give us a little different thinking on labour relation regulation in Vietnam Through my own research, I very much expect that I could gain some specious experience o f law regulation in Sweden This is also the reason for my subject: “Labour relation - a comparison between Vietnamese and Swedish labour law” 1.2 Aim This thesis shall concentrate on comparing between Vietnamese and Swedish labour relation laws In the presentation process, similarities and differences shall be analysed and assessed concretely in attaching to its existing conditions With the experience obtained from the study, some suggestion measures supporting labour relations shall be pointed out 1.3 Limitations There are different categories o f labour relations However, I intend to concentrate on the labour relations established upon employment contract Labour contract relation itself is still a very broad subject Once again, I have to limit my subject very strictly In this study, I only refer to the most important aspects, which directly relates to the existence o f labour relations, in particularly, they are the matters o f establishment, maintenance and termination o f employment contract 1.4 Method The comparative analysis method is very frequently used in order to seek similarities and differences between the two law systems Analysis approach is very useful when I clarify concepts and detail some contents in the main part o f the thesis This method is also necessary to advance the discussion pointing out the legal questions as well as giving suggestion measures for increasing regulation effect o f labour relation laws in Vietnam Synthetic methods shall be used to give necessary conclusions 1.5 Previous researches There are only a few studies on labour relation in Vietnam The last relevant master thesis is about Labour relation in Foreign invested Enterprises, by Vu Thi Thu Ha, which was written in 1999 From comparative aspect, especially between Vietnamese and Swedish labour law, my thesis is the first study 1.6 Disposition My thesis comprises five parts, which are arranged in following order: - Introduction - General knowledge on labour relations - Basic legal issues on the establishment, maintenance and termination of labour relations - Some solutions aiming at increasing the effectiveness o f law regulation to labour relations in Vietnam - Conclusion General knowledge on labour relations 2.1 Concept of labour relations 2.1.1 Definition In the science o f law, labour relations are understood in different ways At general point of view, labour relations imply the relationship between individuals performing work to create material riches or other spiritual values for society From this aspect, labour relations consist o f all relations involving "labour" or " work performance" However the nature o f the involved relations may be far different from one another Among the distinctive characteristics such as the aim, the duration o f contract, the subjects involved etc, the most important factor is the degree o f dependency o f the party performing work on the opposite party In employment relations, employees heavily depend on employers whereas in other cases workers (contract workers, co-operative members) are much less dependent Due to this nature, each group shall be covered by different regulations The relationship between employees - employers belong to the scope o f labour law In Sweden there is practically no distinction between employees o f State (officials) or employees in other sector Two these kinds o f labour relations are regulated by the same documents In Vietnam, on the other hand, two those groups o f employees are separated because officials have special standing State official duties and responsibilities are not similar to those of employees in other sectors So, Law on state officials shall cover this group To understand the term "labour relation" in the same way, this thesis shall not refer to labour relation concerning state officials, but only to wageearning employee and his employer under employment contracts o f all economic sectors and all form o f ownership 2.1.2 Characteristics of labour relations Labour relations are created by contracts between common individual legal subjects, however labour relations have their own characteristics distinguished from other kind o f contract relations To give reader a multi-aspect portrait of labour relations in real life, labour relation characteristics shall be presented briefly as follows: First, labour relations possess both an economic and a social nature Its economic essence is explained by the aims o f two parties with particular economic interests: wage or salary for employees and business profits for employers This is also the reason for the existence o f labour relations As for the social nature, it is demonstrated by two-party behaviour in labour relations, which needs to ensure human rights For instance, during employment performance, employees have the right to safe and hygienic working conditions, to integrity and respect, to a proper treatment etc The employers have obligation to ensure those employees' rights Second, labour relations contain both unity and conflict Conflicts exist in labour relations due to two parties' opposite interests When employers improve working conditions or apply good payment system in their enterprises, the individual employers' profits can be reduced and vice versa All the gains o f the two parties are only within their enterprise benefits Says, their income distribution is somewhat similar to a cake cutting In order to promote income for both o f them, there is no other way than making the "cake" become bigger It means that, the two parties m ust be aware o f their interest inteưelation and try to work well together Third, labour relations includes equality and inequality Equality is the basic feature o f any contract relations in general Equality in this case is expressed by two parties' freedom to be bound by an employment contract However, real equality can hardly be adequately achieved here Employees often have weaker position due to their financial standing, employment pressure and so on To earn a living, they may have to accept a low salary or unsatisfactory employment, especially in current circumstances o f job shortage In addition to this, in labour relations employers have right to direct and supervise the work, they are also entitled to commend and reward or apply correct measures etc By and large employers can often use their authority and so, they have many chances to apply strict working conditions to employees This is also the reason for labour law existence to protect rights and interests o f weaker parties Fourth, labour relations are not only involved individual employers and employees, but also labour market parties Each labour contract binds one worker and his employer At this level, labour relations are linked with the performance o f rights and duties o f two parties as individuals However, employment in enterprises is norm ally performed by not only one worker but by many persons This is the reason why labour relations are still characterized by collectiveness Collective labour relations are first created by individual contracts Each individual, in turn, shall be supported by collective labour relations For example, because o f weaker position, an employee might have to endure some disadvantages With the labour standards set up by applicable collective agreements, those disadvantages can be limited in some extent Collective bargaining also helps to solve conflict more effectively and help better to protect employees' legitimate rights and interests Being aware o f this characteristic, in the process o f law making, the labour matters concerning collective activities such as the right to organize, collective bargaining, strike and dispute settlement etc should be properly considered - Employee: awareness of law remains limited, passive status and enduring Under pressure o f job, they are ready to suffer from losses rather than losing job - Trade union has not been strong enough to defend employees' interest effectively * Situation o f im plem enting labour law o f the com petent authorities - Inspection works: In 2000, the State inspection agency in labour implemented inspection in 72 enterprises, in 2001 this was 152 enterprises, in 2002: 121 enterprises, and in 2003: 126 enterprises.40 In comparing with total number o f enterprises throughout the country, this number is too humble The insufficiencies o f inspection work are due to many factors Material basis and required facilities (picture recorders, audio recorders and examining equipments etc.) as well as financial resource used for the inspection remain very limited and poor The inspection structure has been very complicated Considering the organization, various sections o f labour inspection are included in various management agencies (labour policy inspection, labour safety inspection belong to the MOLISA while labour hygiene inspection belongs to the Ministry o f Health) Inspection forces remain much lacked Inspection personnel have not been matched the task and responsibility both in quantity and quality With many aforementioned limitations, inspection applied to enterprises has not been organized regularly The remedying the labour law violation after inspection remains a lot of weakness - Labour Court works Number o f labour dispute cases submitted to the courts has been increased over recent years In 1997 and 1998, there were about 400 - 500 cases only, which rose to 700 - 800 cases in 2002 and 2003.41 Quality o f judging remains a lot of insufficient There have been some verdicts wrong in proceedings and being claimed According to Annual Reports o f the court sector in the latest years: - In 2002: Filing 805 cases, o f which 745 cases have been judged, appeal handling o f 238 cases, supervise handling o f cases - In 2003: Filing 781 cases, o f which 682 cases have been judged, first trying 578 cases (83%), appeal hearing o f 90 cases, supervise handling o f 14 cases According to the assessment o f the Supreme Court in the Annual Reports, errors in judging labour cases are attributed to the fact that, objectively, this is a new type o f cases to the court, personnel involving in the judge is inexperienced Regulations o f the labour law remain ambiguous with complicated guidelines while insufficient and being amended for many times, accordingly both understanding and application have not been unified 40 Annual Report on Labour Inspection o f MOLISA in 2000, 2001, 2002, 2003 41 Annual Reports o f the Court in from 1997 to 2003 (by Judee Council of Supreme Court) 43 yet Subjectively, embarrassing in applying the labour law is due to qualification o f personnel involving in the judge Responsibility on thoroughly understanding regulations o f applicable laws (both content and procedure) is not highlighted properly Some judges are not much careful in researching documents, in assessing and examining evidences as well, remain unilateral and subjective, so they have made some wrong application 4.1.2 Tendency of labour relation development and the need of increasing effectiveness of labour law regulation In the coming time, the strong development o f various economic sectors together with the economic shift will be occurred very rapidly It will entail great changes in structure, quantity and quality o f the employees In a short time, the reform o f the SOEs (mainly through the equitization) will release approximately 2000 enterprises (equivalent to 44% o f total number o f the SOEs at present time) Reaưangement o f the SOEs and streamlining the personnel structure in the administrative sector will reduce the number o f employees of the State as well as employees in state economic sector, and transferring into the non-state economic sector and the foreign invested enterprises Solving the need o f jobs in the forthcoming time will be a very urgent question Number o f employee needing job is very big meanwhile some business areas and occupation still lack high skilled workers and personnel The labour relations will be characterized by more complicated changes Competition in the labour market will be very severe However, this reality will strongly impact the awareness and working style o f the employees Moreover, science and technology rapidly develop, shall become increasingly a direct production force, promoting the development o f knowledge economy These factors not only impact the shift o f economic structure but also greatly changing the life condition o f the society It requires increasing quality o f the human resource to provide employees satisfying demand for labour market in new period The year 2006 will be a period o f great importance, which will witness the enterprises, enter a new business mechanism, which will be wider but also includes much severer and fierce competition.42 Difficulties and challenges facing enterprises may become disadvantageous factors o f labour relations, because in this competition the employer will save for themselves all possible advantages, including the most effective and reasonable cost o f using labour Therefore, the State's role in management o f the labour and society must be strengthened ever In this circumstance, improving and enforcing the labour law must be rapid and definitively, especially in employment policies, in development o f labour market, in development and management o f vocational training, in exporting employees and experts, in mechanism o f settling disputes, strikes and correcting the labour law violation etc 42 In 2006 Vietnam shall takes part in the Asian Free Trade Area 44 4.2 Some suggestion methods for increasing effectiveness of law on labour relations 4.2.1 Improving law 4.2.1.1 Improving law on labour relations * Im proving law on labour contracts In the current context, in order to release the whole potential of labour, potential o f the production, increasing the flexibility and selfcontrol, possibility in adapting etc for both employers and employees, and in order to stabilize labour relations, improving labour law in contracts must ensure the following requirements: - Firstly, it is necessary to generate rooms for the labour relations to be set up and maintained conveniently, respecting willingness and right o f self-determination of the parties - Secondly, it is necessary to ensure a fair settlement in interest between subjects in the labour relations during maintaining the labour relations as well as when terminating the contract As far as I have learned from Swedish law, on basis o f the above- m entioned orientations, I shall hereby explain some concrete viewpoints improving law on labour contract o f Vietnam, as follows: - Firstly, in order to create favorable condition for parties o f the labour relations to easily understand and apply the law regulations, it is necessary to simplify system o f existing regulations in labour contract Despite the fact that in the current context o f Vietnam, there has not been a collective agreement system like that o f Sweden, using o f guidance documents is still very necessary However, having too many o f guidance documents, together with a regular amendment will make the system become verbose, patchy and confused, difficult for looking up and application Therefore, it is necessary to leave out the overlapping, poor contents or contents that can be carried out through other regulations etc avoiding repeat from Labour Code to decrees and circular etc In general, many contents need to be considered and simplified Most important ones are as follows: + Subject o f the contract: when identifying conditions o f the employer party that being mentioned in both Article o f the Labour Code and Article of the Decree No 44/2003/ND-CP is too complicated while might still not cover all legal person or individuals demanding labour Perhaps it is necessary to make a general definition only, that "employers are enterprises, agencies, organizations or individuals, if it is an individual, he/she must be 18 years old or more, having legal operation and having 45 demand for labour, being capable o f providing proper labour conditions" This is enough + About the alteration o f labour contract, item - Article 33 o f the Labour Code and item 2, Article 8, Decree 44/2003/ND-CP are not much different from each other, they should be combined into one article and fully presented in the Labour Code + As for case of unilateral contract termination, Article 38 and Article 39 in the Labour Code introduce two ways of approach (Article 38 introduces the situations whereas Article 39 introduces the reasons), which are difficult to understand and causing worry to people They should be united in one article to avoid misunderstanding By and large, if we are for a dynamic economy but we apply inflexible law, multi complications shall arise The law should only regulate the most basic issues and simplest procedures that serve as a law base for people to operate their tasks Law provisions should be flexibly understood pursuance to the life changing; thus, the law shall lay few obstacles and create favorable conditions for the socio-economic development Secondly, in order to settle properly two parties' benefits, it is necessary to have the following amendments: + As for the notice duration for contract termination: Presently, the law provides different duration for fixed term contracts and indefinite contracts The minimum period changes from to 45 days subject to the specific type o f the contracts (excluding the case where female employees are pregnant and have to leave off work upon the doctors' orders, the notice duration can not be prior defined) In general, the aforementioned duration is too short, especially for indefinite contracts In order to give more time to employees arranging their new jobs or to employers arranging their labour, the duration of prior notice should be lengthened Furthermore, it is not reasonable to apply one general rate o f notice duration for all cases Notice duration should be separated upon the length of working and employees' age Vietnamese labour market is still in the phase o f establishing The employees' approach to employment sources now remains limited, especially for employees advanced in years The increase in the length o f notice shall be meaningful to help them in job arrangement + As for the compensation duties for employees when employers unilaterally terminate the contract illegally: If the employers not want to re-employ the employees, compensation rates should be determined upon the type o f contract (fixed term or indefinite term) and length o f working It should not be provided generally as "two sides shall negotiate the extra compensation" to create the feeling that this item o f addition compensation is not important as aforementioned one (the rate of at least two months' salary)43 This may cause much loss to the employees 43 See the item o f Article 41 o f Labour Code 46 + There should be more regulations on forms o f notice (written or oral), on calculation mode o f notification duration, suppose that there will be an amendment to the notice duration to be longer (as suggested above) in order to have the base for determine adequately the compensation responsibilities, when necessary Im proving law on collective agreem ent and strengthening the construction o f agreem ents * Presently, the construction o f agreements in enterprises remains weak According to the Annual Report on task implementing o f the MOLISA in 2003 there have been only 70% o f the SOEs, 20% o f private enterprises and 40% o f foreign invested enterprises have collective agreements 44 Agreements made at industry level remain to be far sighted There are no necessary supporting steps, directly concretizing the Labour Code to the enterprises' conditions is a too far step, thus, the fact that the agreement quality is not high, agreements are still formalistic, agreements are transcription of Labour Code etc is not difficult to understand In order to substantially supplement the Labour Code, collective agreements should be logically constructed and gradually replacing instruction documents o f Labour Code This process is actually the process to transfer the task of concretizing the code from a State organ to parties o f labour relations Thus, it shall involve various preparations The system o f representative organs o f parties based on branches and levels needs to be soon established Besides, it is necessary to construct a regime o f negotiation and agreement Regime o f agreement supervision should also be established (agreements may be examined in process o f agreement registration at the competent authorities) and so on This is reaily a revolution o f thinking in legislation as well as manner o f State management over labour where the roles o f two parties' representatives are highlighted; so, there should be measures and time for them to improve their sense o f awareness, "law making" abilities and labour law application * Im proving other contents o f labour relation law Improving law on labour relations also requires: Improving the system o f regulations on working conditions including improvement o f regulations on salaries, working hours, rest hours, insurance policy and labour protection etc As for salary regime, it is necessary to define reasonably the minimum wage, payment principles (for overtime working hours, overnight working etc.) Salary tables should be established in a simple way, the salary gap should be extended properly etc The regulation on working hours and leave must be practical in strict combination with salary payment regime when applying in specific jobs (e.g in commerce, service and job possessing payment of piece rate wages etc.) As for safety at work, it is necessary to ensure the duties o f supplying safe equipment in accordance with quality standards, sufficient 44 In Vietnam there have not been collective agreements at federal level, national level or local level like those in Sweden There are only collective agreements in enterprises (which made by employer and union in enteiprise) 47 compensation regime in case o f labour accidents and occupational disease etc - Improving the dispute settlement regime: an effective dispute settlement mechanism is meaningful for maintaining and strengthening the labour relation as well as ensuring parties' legitimate interests In Sweden labour disputes are settled mainly based on the negotiation o f the union and employer (or employer representative); thus, the settlement is highly objective, impartial and amicable due to the close cooperation o f the two sides This is also one o f the issues that we should study more to have experiences to improve the law on labour dispute and strike settlement that remains complicated in our country In brief, improving law on labour relations require the synchronous amelioration over multi different regimes, o f which improving the institution for contracts and agreements is the most direct based on the principle to ensure the right o f self-regulating as well as settling reasonably parties' interests 4.2.1.2 Improving the related economic law The survival o f labour relations attaches to the survival o f enterprises; thus, it can not be apart from the regulation over the labour law with other laws especially economic law It is also the meaning o f this part After nearly 20 years o f transition over the economic management regime, actual situation o f multi-sector economy development in our country remains weak: the quality o f growth, socio-economic efficiency in general is still low against the set up requirements Com petitive capacity is improved slowly against the schedule o f economic integration that Vietnam has committed in the region and the world Economic researchers have analyzed the actual legal trading environment o f enterprises and emphasized that it is necessary to have certain regulations concerning the policies and laws in order to establish an equal "play ground" for all the economic sectors These opinions are united concerning: - First, it is necessary to reduce reasonably the support from the State for SOEs, reduce the number o f branches that are only dominated by State sector (postal service, electricity etc.) Currently, the State still preserves much priority for SOEs Excluding the state's monopoly branches, other SOEs receive many advantages such as capital opportunity, production surface, favors concerning taxes or business opportunities (opportunities to win contracts etc.) The State should not further continue supporting to the SOEs in branches and fields, which keep generating prolonged losses, limiting the key role o f State economy, are burden to the budget and banks - Secondly, there should be more equal and open policies to private economy, creating favorable conditions for private enterprises to implement multi trading rights that have not been implemented so far (for example, right to establish the joint venture with foreign investors etc.) The Congress IX has also observed that one o f the limitations in our country's production relation is the inequality concerning the state policy for economic sectors 48 including the loss of private enterprises.45 Present private enterprises rank the first in being able to generate new jobs and contributing much to the budget Besides managing private enterprises to avoid the violation o f laws, the State should create more equal conditions for private enterprises to promote their potentials Third, it is necessary to renovate and strengthen further the policy to attract foreign investment as our viewpoint on strong points for attracting the investment has been changed That predominance does not belong to cheap labour, large domestic market, available materials or low land price, but the predominance belongs to united policy and serious implementation from upper to lower level etc Thus, it is necessary to overcome the situation that procedures are not clear and unpredictable, causing worry about the unstable investment environment bearing multi risks to investors The investment environment needs to be improved concerning aspects: law, infrastructure, administration procedures, trading environment, arbitration and court The remaining time is very short for Vietnam to prepare necessary premise to enter free trade region The State needs to study and improve the system o f economic laws Firstly, it is necessary to study and enact new legal documents such as Competition law and Anti- monopoly, Law on Antidumping and many other laws related to trading and investment Secondly, It is necessary to continue administration reform, to adjust tax and price policy, to simplify administration procedures etc, in order to prepare the business environment that enterprises can promote their self-control capacity in trading and be ready to join new competitions One important m eaning o f creating an equal business environment is that it shall limit the law violation by enterprises including violation o f labour law that has been considered as a natural measure to avoid inequality existed in the market It is also an important factor to improve the labour relationship o f parties 4.2.2 Strengthening some relevant institutions 4.2.2.1 Increasing the effectiveness of the trade union The success o f Sweden in the socio-economic development has been realized thanks to many factors However, as for labour field, the sound relation established by trade union and employers must be mentioned first Employees’ rights and interests are well protected It can hardly see the single opposition o f employees against their employers The task o f ensuring individual employees' interests has become the duty o f the associations and mainly the trade union Thus, trade union is the strongest and the most prestigious supporter Prerequisite conditions for the trade union to undertake its mission is a wide and deep united organization, the support by the State and their large financial source, the things that enable trade union to implement their duties favorably and independently “’"Document o f the Ninth Congress o f National Delegates", page 153 49 Vietnam Trade Union is still young and it is in the process o f perfecting organization and operation structure Presently, the trade union has been organized from the central to local levels (Vietnam General Labour Federation - Provincial Labour Federation - Trade union o f districts and trade union of units) Trade unions operate partly on the state budget and partly on contribution o f members Besides, the trade union has 51 business units supplementing the income o f the trade union The main activities o f the trade union for the past time have been propagating to raise employees' politic awareness, cultural education level, professional knowledge, specialty and skills; educating knowledge about the life, family, traditional law, moral, life style etc Besides, the trade union has organized emulation to enhance professional level and skill, educated employees to be aware o f responsibilities, working spirit, self-help and selfimprovement etc, participated in making law on labour relations, participated in settling the labour disputes, strikes, and carried out law advisory, job introduction and vocational training as well as supervising the labour law implementation The current status o f trade union organization and operation: In respect o f organization: the relation in coordinating, assigning, and devolving instructions between trade unions at national level and inferior levels has remained many shortcomings Trade unions at district level have faced a lot o f difficulties, especially difficulties for staff, material facilities and running fund In respect o f activities: The trade union's activities have been mainly formalistic, not profound, The propagating and educating activities have been argumentative and mainly in SOEs and have not been popularized in private sector The participation in law construction has not been effective Trade unions have not protected employees' rights properly Besides, the activities remain slow and have not met the demands o f the multi-section economy This status has been caused by the inadequate awareness o f people in the society about trade union position The employees, staff o f the trade union, and some committee members as well as civil servants have not understood properly about roles, functions and duties o f trade union Thus, establishing policies o f trade union has not been paid due attention Safeguarding trade union staff frankly fighting for employees has remained weak Further, fund for trade union activities has been very little In the business areas of foreign investors where stipulating not to collect the trade union fee, activities o f the trade union have been more faintly carried out After nearly 20 years o f renovation period, Vietnam Trade Union has made certain progresses and obtained some experiences However, it has still faced many difficulties and insufficiencies in terms o f both contents, methods o f implementing, and conditions o f materials and finance This requires organization and operation o f the Trade Union to be interested by the State The trade union itself must overcome timely its limitations O f its main functions, the function o f employee's protection must be taken care at first Moreover, developing the trade union in non-state enterprises and 50 foreign invested enterprises is important Increase o f financial sources in the coming time is a survival ground o f trade union The capacity o f trade union staff needs to be upgraded to actively protect employees' interests in the market economy 4.2.2.2 Establishment mechanism and operation of tripartite Pursuant to the development tendency o f the labour relationship o f Vietnam, in the future, the parties o f labour relationship will have and stronger voice in the decision o f matters belonging to their particular fields Establishment and operation o f the tripartite relationship become an objective demand, which aims at supporting the labour relationship development as well as increasing the collaboration o f the parties, suitable to the new context Towards Sweden, the employees and employers agencies are strong enough for direct negotiation on all the matters regarding the labour relationship The State carries out only impact in the macro-level through the law on labour and employment in order to determine the boundary for all agreements between parties and let them to have self-control Thus, they have relations in combining operation but indirectly In the conditions o f Vietnam, the direct participation o f the State is now inevitable The reason is that: the parties have not the role o f "making law" as those o f the Swedish employer and employees They are belonging too much to the State So, when building a writing text on labour law, State will have to receive the suggestions from the parties At present, the representative o f the working circles at the national level is Vietnam General Confederation o f Labour On the employer side, provisionally, there are two organizations: Vietnam Cooperative Union and Chamber o f Commerce and Industry o f Vietnam The employers' organizations are still new However, they have also been created conditions to participate in the process o f solving problems on the labour relationship Consulting the Vietnam General Confederation o f Labour's opinions has been remaining regularly Towards employers, in some recent years, the two aforementioned employer agencies have been entitled to take part in numerous seminars concerning labour and employment, building new documents relating to enterprises In 2003, the Government approved the new rule o f the Chamber o f Commerce and Industry o f Vietnam, recognizing officially the functions representing the legal interest in favor o f the employers in all economic sectors Thus, the parties' position has been determined and the operative collaboration between Government and parties' representatives has existed However the tripartite relationship is really not shown, because the Trade Union and the employer representatives, up to this point time, are not considered as the equal partners with the State in making new policies They are only objects proposing their opinions There have been no independent statutes stipulating concretely the modes o f organization and operation o f the tripartite mechanism If any, there are several regulations in the Labour Code (Articles 56, 57, 69, 106, 132- Paragraph 3, Article 156) but they are still too vague and faded In the coming time, Vietnam shall establish the 51 tripartite Committee in order to provide consultancy to Government in planning policies, promulgating laws and settling the problems relating to the labour relationship Vietnam is building now the drafted Decree on consulting the opinions o f the three parties, in which principles, content, form and responsibility o f the parties in the share o f opinions will be raised It is important event marking the appearance o f the tripartite relationship even though it is the starting step The following matters will be: to establish the tripartite institutions in various levels as well as to build completely the operation rule o f these agencies It has the similar meaning that it is necessary to establish and strengthen rapidly the representing offices of employees and employers at the corresponding levels as well as to enhance the working capacity o f the cadres in the representing offices in favour o f the two parties to assume well their important responsibilities 4.2.2.3 Enhancing labour court the operation efficiency of the To solve labour disputes effectively, it is not only necessary for the court to have a thorough grasp and accurate application o f labour law regulations, but also to have a flexible treatment in the process o f settlement The measure o f conciliation should be used properly whenever it is possible creating opportunity o f both parties' re-cooperation The court is not only a place for losing or winning declaration but it is also the place for law education and for enhancement o f the legal sense to parties The irresponsibility in settling the dispute shall make parties' shortage o f trust in law and in the agencies protecting law Through the recent real judgments o f the labour court, it is able to see the co u rt's difficulties on the system o f the com plicated law document The State should rapidly complete the system o f documents giving guidance to the Labour Code After transferring between the old and the new law it is easy to meet numerous entanglements, which need some study, the interpretation and the guidance etc The quality o f the judges at present is still not very good and is one o f the urgent problems Besides promoting the judgment degree o f the judges, the court should also speed up the critical and auto-critical works review severely the wrong judgment o f the judges, draw quickly experiences to avoid the shortcomings, errors etc affecting the prestige o f the Court and State 4.2.3 Other solutions 4.2.3.1 Strengthening labour law popularization In fact, respecting law is very meaningful to secure the enterprises' long-term benefit because it keeps enterprises' prestige in the market and guarantee the protection by the law As for the employees, understanding labour law shall help them be more self-confident and protect themselves when necessary 52 Educating labour law requires simplifying, systematizing o f the law, strengthening the formal and informal law interpretation, universalizing the law education, enhancing the training and publishing books, newspapers regarding to the Labour Code Nowadays, many countries have widely used leaflets that summarize the rights, duties, or steps to go on strikes, introduce competent organs that employees can require supports etc Furthermore, propagation programs such as law answer, entertainment games to study labour law also have effective results o f propagating education, especially, these movements help people get update economic and social news, and understand new regulations of the State in the labour field 4.2.3.2 Strengthening inspection activities Inspection remains many limitations as mentioned above To implement inspection activities more regularly and effectively, at first, the State should pay more attention to completing economic structure o f the inspection organ The rights of inspectors must be attached with the duties and responsibilities The State should also invest more indispensable equipment for units, and reconsider salary regime for inspection staff as well as maintaining strict discipline among inspection staff 53 Conclusion Labour law relation between Sweden and Vietnam has been shaped on the different economic and social basis in very different times The basis o f Swedish labour relation was a free, open and safe commercial environment from the outset, whereas labour relation o f Vietnam was based on a subsidized regime in a society full o f ups and downs The Swedish labour relation has developed to its top for ages while Vietnamese labour relations have remained in the establishment phase For Vietnam, all the things which are fundamental conditions for the industry are still in demand, ranging from infrastructure conditions o f the market economy to training a active, effective and orderly disciplined working method etc which since long in Sweden have become orders and indispensable things in working life Presently, Sweden possesses an open labour contract mechanism with a strong agreement system that is inevitably resulted from conflicts o f the labour relation developing to its top, being settled and becoming a highly- organized mechanism The parties' widely negotiated mechanism has become a effective method to solve different matters o f labour relations, from setting up the labour laws to settling disputes for both collectivity and individual As for Vietnam, the labour contract system has been used more popularly due to socio-economic features, manner, psychology and customs etc in labour field However, in order to have a stable foundation to establish labour contracts as well as to strengthen the labour relations, Viet nam can learn from Sweden a centralized negotiated mechanism, an open contract policy, a strong system o f trade unions, simple labour law documents, simple and clear provisions that are easy to understand and easy to apply etc It also means, there should be further studies on agreements, on collective negotiation mechanism, dispute settlement regime, implementing modes of the Labour Court and parties' representatives etc in Sweden to learn, draw and apply experiences into Vietnam situation 54 Bibliography Communist Party (1989), "Resolution o f The Sixth 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law in the new millennium, 38 N Bruun, B.Flodgren, M Halvorsen, H Hyden and R Nielsen, (1991) The Nordic labour relation model- Labour law and Trade Unions in the Nordic countries- Today and Tomorrow - Dartmouth Publishing Company 39 Parental Leave Act 40 Reinhold Fahlbeck, (1997)"Labour and Employment law in Sweden" 41 Reinhold Fahlbeck, (1995) ''Employee Privacy in Sweden" Comparative labour law Journal 42 Reinhold Fahlbeck, "Industrial Relations and Collective labour law" 43 Reinhold Fahlbeck, 1999 "Employee loyalty in Sweden" Comparative Labour Law and Policy Journal 44 Sten Edlund and Birgitta Nystrom (1988), Developments in Swedish Labour Law, Printed by Stellan Stals Tryckerier AB, Stockholm 45 Swedish National Mediation Office (2001, 2002, 2003), Annual Report (Summary in English) 56 46 47 48 49 The Equal Opportunities Act The Labour Disputes (Judicial Procedure) Act Trade Union Representative (Status at the W orkplace) Act William L Keller (Editor-in-Chief) - ABA Section o f Labour and Employment law, "International Labour and Employment la w s”, Volume II 50 Work Environment Act 51 Working Hours Act 57 ...HANOI LAW UNIVERSITY LUND UNIVERSITY FACULTY OF LAW LABOUR RELATION- A COMPARISON BETWEEN VIETNAMESE AND SWEDISH LABOUR LAW SPECIALTY: INTERNATIONAL AND COMPARATIVE LAW CODE: 60 38 60 MASTER... time labour is changed into goods and is traded and influenced by law o f value, law o f supply and demand and series o f typical laws o f a market economy However, as mentioned above, labour can... was established, so the labour relations was also limited in mainly state sector Actually that is relation between State - workers and staffs and a subsidized system, but not waged labour relation