Some effects of changes in context on Vietnamese regulations on labour and proposals

The industry revolution 4.0, in addition to remarkable contribution to the development of technology, also creates some new elements in working environment which become direct reason o[r]

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SOME EFFECTS OF CHANGES IN CONTEXT ON VIETNAMESE REGULATIONS ON LABOUR AND PROPOSALS

Dr Nguyễn Lê Thu Vietnam National University, Hanoi- School of Law

In the context of many changes, Vietnam is on its way to amend its regulations which contribute to the development of the country Among them, regulations on labour are estimated to be directly affected from industry revolution 4.0, flows of labour migrants and international commitments which have been approved This article shall focus on the effects of these phenomenona, recognize requirements for the development of labour regulations within this context and then provide some proposals

1 Introduction

The speed of integration of Vietnamese economy into international market has been improved year after year not only through the statistics on trade and investment, but also through its role as an active member in both international and bilateral agreements which create a great chance for prosperity Among them, Comprehensive and Progressive Agreement for Trans-Pacific Partnership (here and after CPTPP) and Free Trade Agreement between European Union and Vietnam (here and after EVFTA) are remarkable These Agreements are considered as a step of one promising economy in the way to comprehensively integrate into international economy In this way, the society of Vietnam is directly affected from international changes which on one hand are challenges for the flexibility and adaptation of each country but on the other hand are a chance for Vietnam to amend its regulations for a sustainable development

In this context, the author recognizes that legal regulations in general and regulations on labour in particular are also affected, especially in the context when labour is one of factors which must be taken into account within trade agreement Therefore, this article shall firstly highlight some changes in international context which directly affect on labour regulations Based on these facts, the articles shall analyze some requirements for the amendment of these regulations and provide some proposals

2 Changes in context that directly affect on labour regulations

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2.1 A wide and strong development of the industry revolution 4.0

Under effects of the industry revolution 4.0, many new concepts have been invented such as cyber – physical system, internet of thing (IoT), cloud computing and cognitive computing 579 The existence of ‗e-wallet‘ goes beyond the limitation of traditional mode of payment, etc The industry revolution 4.0 also creates a database for collecting, integrating and managing a variety of information in an automatically way with an amazing degree of accuracy, such as information on environment, biology or chemical composition, etc It is clear that technology is supporting social life in a more simple and effective way On the other hand, from the perspective of employment relation, this revolution also raises some concerns In its Summary of Policies in Vietnam 5/2018, ILO confirms that Vietnam is improving and applying new technology with a high speed than ever in a variety of fields.580 Because of the application of technology, many works in the field of garment, clothing, shoes, digital products and electronic products shall be hugely affected, accordingly, works in these fields are at high risk of being replaced by the implementation of automatic process.581 On the one hand, number of jobs shall be dramatically decreased by the use of robot, but on the other hand, the use of technology opens a door for creating new jobs in international supply chain An interesting example of this trend is the production of ‗smart shirt‘ accumulated with ‗smart shoes‘ for adapting users‘ needs The production being applied with technology creates more value while requires less labour force

In this context, labour force is not only connected in a traditional way in factories Instead, labour force is able to be supplied by an online system and labourer not need to move to a specific geographical place In other words, labour force becomes more geographically dispersive, which in turn leads to controversial discussions on some specific issues of labour regulations such as how to determine working time, rest time, working condition as well as to protect collective rights of labourers Furthermore, the development of robot with artificial intelligence creates a working environment with more connection between human and human and between human and robots In the context of endless discussion on legal responsibility of robot, the implementation of robot in working environment raises a concern on legal and technical protection for workers in smart factories For example, workers could be attacked by robot Finally, the industry revolution 4.0 contributes remarkably to create a working environment which base on technology and diminishing the subordination of employee on employer – one of primary criterion of traditional employment relation.582 Then, the industry revolution 4.0 has strongly and directly affected the method of management and the use of labour force as well as the method of creating legal relations related to working

579

Source: wikipedia, at the website https://en.m.wikipedia.org/wiki/Industry_4.0 (last visited on 20/3/2019)

580

ILO, Cách mạng công nghiệp 4.0 Việt Nam: Hàm ý thị trường lao động (The Industry Revolution 4.0 in Vietnam: Suggestions for labour market)

581

ILO, ASEAN in transformation: How technology is changing jobs and enterprises transformation, page xxiii

582

See Nguyễn Lê Thu, Nguyễn Thanh Huyền, Cách mạng công nghiệp 4.0 yêu cầu đặt việc hoàn

thiện pháp luật hợp đồng lao động (The Industry Revolution 4.0 and requirement on legal amendments on employment contract) in the Report on National Workshop on ―The effects of the Industry Revolution 4.0 to industrial

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2.2 Variety of flows of labour migrants

In addition to the industry revolution 4.0, there is one more phenomenon which is not totally new but still has effects on labour issue in almost countries – flow of labour migrant In according to statistics, number of international migrants increases in recent years.583 In details, this number reaches 172 million, 220 million and 258 million respectively in 2000, 2010 and 2017.584 Among them, number of migrants for employment is estimated at 150.3 million.585 In this context, number of migrant workers in Vietnam and ASEAN is also increased The number of Vietnamese workers working abroad is at 500,000 They work in more than 40 countries but a large proportion among them is in Association of South East Asian Nations (here and after ASEAN) and other Asian countries.586 This organization is also considering to build a region for the connection not only in economy but also in labour by the announcement of ASEAN Consensus on the Protection and Promotion of the Rights of Migrant Workers Then, it is clear that Vietnam is also a country being strongly affected from flow of various labour migrants which are difficultly protected from legal perspective

On the other hand, in accordance to some recent researches on comparative labour regulations, many form of working are recognized differently in different legal systems, especially informal or non-standard employment Accordingly, they includes part-time work, on-call work, seasonal work, temporary agency worker, casual work as well as disguised employment More seriously, these forms are mentioned differently in legal systems.587 This fact requires that both host and destination country of labour migrants must pay attention on legal solutions for clearly determining these forms, then protect migrants for employment and their labour force but on the other hand, not create any obstacle for them in movement

2.3.Commitments on labour issues in Agreements

In addition to many changes of context as above mentioned, by joining CPTPP and EVFTA, Vietnam also needs to carefully examine the content of these agreements, among other, labour issue Firstly, CPTPP choses a comprehensive approach on labour issue instead of only requiring the performance of some specific contents of labour law In addition to core labour rights, the Chapter 19 of TPP (which is not changed by CPTPP), on the one hand does not directly intervene in national legislations of state parties, but on the other hand refers to international standards which are widely recognized by the conventions of the International Labour Organization (here and after ILO) as a common reference source in this field More

583

See UNDP, Human Development Report: Overcoming Barriers (2009), available at http://hdr.undp.org/sites/default/files/reports/269/hdr_2009_en_complete.pdf

584

UN,International Migration Report2017,available at

https://www.un.org/en/development/desa/population/migration/publications/migrationreport/docs/MigrationReport2017 _Highlights.pdf, last visited on May 15, 2019

585

International Organization for migration, World Migration Report 2018 (Báo cáo tình hình Di cư quốc tế năm 2018), p 28, https://publications.iom.int/system/files/pdf/wmr_2018_en.pdf

586

Vietnamese Ministry of Foreign Affairs, Review of Vietnamese Migration abroad (Đánh giá tình người Việt Nam di

cư nước ngoài), 2012, p.15,

http://eeas.europa.eu/archives/delegations/vietnam/documents/eu_vietnam/vn_migration_abroad_en.pdf

587 See ILO, Non-standard employment around the world, Understanding challenges, shapping prospects ISBN

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importantly, the spirit of the Chapter 19 is that the labour issues should not be only separately and directly addressed by regulations on labour They should be also improved within a connection with and without being detrimental to the development of trade and investment and vice versa.588 Furthermore, states parties are recommended to protect labour in different ways, in addition to legal solutions Among them, corporate social responsibility (CSR) or raising general awareness on labour rights are recommended.589 All these provisions express a comprehensive approach of the Chapter 19 on the issue of labour rights and the protection of labour rights

In a similar way to CPTPP and TPP, EVFTA reserves the Chapter 13 ‗Trade and Sustainable Development‘ on the obligation of parties to ensure the implementation of labour rights In addition to the requirement on following international standards on labour issues which are recommended by the ILO, this Agreement re-confirms the responsibilities of parties for creating an effective working environment for the purpose of sustainable development.590 In other words, parties are not only obligated to separately protect labour right but they are required to protect the value of sustainable development in labour issues in the connection with other aspects such as economic development and trade It could be said that, although this requirement is not totally new, these two Agreements still require a new criterion in the development and amendment of legal system in general and regulations on labour in particular In order to take full advantage of these agreements, Vietnam has no other choice than to absorb these new elements to the amendment of national legal system

3 Requirement for the development of regulations on labour

In the above analyzed international context as well as in response to internal demand on implementing multilateral and bilateral commitments, regulations on labour need to be amended to effectively resolve these above mentioned challenges as well as to contribute to a stable legal bases for sustainable development This part shall clarify these requirements for the development of labour regulations

3.1 Protection of labour force from new types of risks

The industry revolution 4.0, in addition to remarkable contribution to the development of technology, also creates some new elements in working environment which become direct reason of some new types of risks Before, working environment of worker can be protected by regulations on occupational safety and hygiene Because of them, by applying these standards, workers are mainly protected from risks for their health and their working ability

Recently, with the development of technology and science as well as controversial discussion on technology applied to human life, workers are faced with new elements in working environments The first one is the existence of robot with artificial intelligence These robots are not only act in accordance to a coded process but they can act ‗by themselves‘ in some specific

588

See TPP, Chapter 19, articles 19.4 and 19.5

589 See TPP, Chapter 19, articles 19.7 and 19.8 590

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cases This element, in addition to positive effects, raises a concern on the safety in working environment of workers when they attack worker and cause death.591 The problem becomes more serious when this case is not rare in the context of frequent information about traffic accident due to self-driving cars It means that the control of this type of robot is not as good as expected The second element which directly affect to worker is an environment of internet of things This element creates a chance for online working job as well as decreases many steps in the management of labour force However, this element is also dangerous when all information transferred during working process are at the risk of being stolen, misused or changed, which in turn leads to damages for both workers and employers Finally, because of online working and that information about both labour force supplier and user are coded, labour force could be used for illegal purposes In other words, anonymity in online working environment can lead to unpredictable risks for worker

Then, it is required that labour regulations should clearly recognize these risks and provide effective legal solutions for diminishing these risks I think that this new element and these types of risks are within the area of regulations on working condition and occupational safety As a result, this issue should be solved in a similar way to the approach of regulations on occupational safety and hygiene standards In details, this content needs to be dealt with in both technical and legal perspectives The reason is that these risks are mainly created from technical gaps, then technical solutions are absolutely important Legal solutions play an assistant role which ensure the implementation of technical solutions In other words, legal regulations shall determine rights and responsibilities of parties in legal relations of using labour force as well as appropriate working conditions in a cyber environment It means that regulations on working conditions of workers must extend to effectively protect workers from potential risks from the application of new technology One of interesting example is the regulation on the right to disconnect applied in France and is examined in some other countries.592

3.2 Improvement of the adaptability to the development of new working forms As above analyzed, with the assistance from technology of the industrial revolution 4.0, limitations on the way of supplying, using and managing labour force are extended Additionally, with flow of labour migrants, almost all working forms develop all over the world, which in turn lead to a development of multi working forms In a recent research of the ILO on non-standard employment, it is mentioned that there are many working forms but they are not clearly recognized in legal systems.593 Accordingly, they include temporary employment, part-time work, dependent self-employment, disguised employment, project- or task based work), seasonal work and casual work However, many legal systems in the world require that one of pre-condition of employment relation is subordination between employee

591 See more at https://www.theguardian.com/world/2015/jul/02/robot-kills-worker-at-volkswagen-plant-in-germany and

https://www.independent.co.uk/news/world/americas/robot-killed-woman-wanda-holbrook-car-parts-factory-michigan-v entra-ionia-mains-federal-lawsuit-100-a7630591.html (last visited on 17 July, 2019)

592

See The right to disconnectL The new law banning after-hours work emails, available at

https://newatlas.com/right-to-disconnect-after-hours-work-emails/55879/ (last visited on 17/7/2019)

593

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and employers, which in turn lead to the fact that they have to face with difficulties in recognize the legal status of non-standard employment Such legal gap becomes more serious when the approach of these forms mainly bases on traditional elements on standard work.594 These elements are hardly relevant to recognize working forms which based on online infrastructure, including both physical performance and online task Even in the case of online task, working forms are also various with generic platform and specific platform with some remarkable examples such as Amazon Turk, Microtask, Clickwork and Uber, FlyCleaners, Sandemans, Myfixpet.595 Then, it could be concluded that the development of working forms and the method of supplying labour force create a real and urgent demand on legal recognition of these forms

3.3 Strengthening the value of sustainable development in labour regulations By joining multilateral and bilateral agreements, Vietnam is required to achieve all commitments including ones on labour issue As above analyzed, labour issue, as recognized in both CPTPP and EVFTA, is expected to be reinforced for a sustainable development within an harmonization and without being detrimental to other factors and vice versa Furthermore, these Agreements also refer to principles and labour standards of the ILO In addition to clear obligations of state parties on labour which is regulated by ILO‘s Conventions, Agreements focus on the importance of full and productive employment and decent work for all596 and protecting labour law from being weakened by trade and investment activities.597 These provisions reflect that labour regulations need to be appropriate to other factors of the whole legal system as well as meet international standards on labour protection for all One again, an open approach on labour issue is mentioned in both Agreements and referred ILO standards Accordingly, responsibility on ensuring labour rights are not limited to a specific group of labourers, instead they should be widely provided This point of view is shared in many ILO documents It is mentioned that work insecurity must include (i) employment, (ii) earning, (iii), (working) hours, (iv) occupational, safety and health, (v) social security, (vi) training, (vii) representation and other fundamental principles and rights at work.598 Then, for the purpose of sustainable development, national labour regulations need to approach in a general way to ILO standards rather than focus on protecting labour rights of some specific groups of workers

4 Proposals

With the purpose of adapting this new context, this writing provides some proposals for amending labour regulations

594

Aelim Yun, Reconstructing Labour Law Actors beyond, International Journal of Comparative Labour Law and Industrial Relation 34, no 4(2018), p 435-456

595 Adrián Todoli-Signes, The End of the Subordinate Worker? The On-Demand Economy, the Gig Economy, and the Need for Protection for Crowdworkers, International Journal Comparative Labour Law and Industrial Relation 33, no 2(2017), 241-268 596

EVFTA, article 13.4, para

597

TPP, Chapter 19, articles 19.3 19.4

598 ILO, Non-standard employment around the world, Understanding challenges, shapping prospects ISBN

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4.1 Supplementing new elements of working environment

As above analyzed, the lack of regulations on new working conditions shall create a legal gap which in turn leads to difficulty in determining legitimate rights and responsibilities of parties getting involved in working activities On the one hand, new technologies need to be encouraged to develop for the purpose of achieving the goal to be an industrialized country of Vietnam On the other hand, labour regulations need to coincide with such development by predicting working risks and improving the protection for labour force

Recently, in Vietnam, new above-mentioned working conditions have not been yet regulated In addition to Labour Code, Law on Occupational Safety and Hygiene is an important legal document mentioning rights and responsibilities of parties in protecting labour force Its personal scope is more extensive than ones of Labour Code 2012, accordingly, workers without employment contract are also protected in term of working conditions.599 This approach suggests that new working conditions can be supplemented and such supplementation shall provide not only employee but also other workers with the protection from new types of risks caused by new technologies Furthermore, in addition to traditional working condition, new provisions on rights and responsibilities of both employers and workers in cyber environment are also recommended to be supplemented Accordingly, employers should be in charge of ensuring protecting measures, include but not limit to, technologies for appropriate working conditions for worker in a high-technology and cyber working environment

In details, regulations on working conditions need to recognize risks in future which are potentially occur and harm worker from both technical and legal perspectives In term of legal perspective, both employer and producer of applied technology – the party which understand and have ability to design safety solutions for user of technology – are responsible for providing occupational safety solution This responsibility should be extensive even after the termination of contract and/or after the use of such technology This legal requirement shall also at the first step enhance the awareness of parties in protecting labour force in new context

4.2 Determining criteria for the classification of working forms

The emergence of new forms of work and the goal of sustainable development in labour also require a general recognition and protection for all worker in general

In this field, in a similar way to some legal systems, Vietnam does not regulate the nature of each form of work, then, the determination of working form mainly depends on the concept of ‗employee‘ in accordance to Labour Code 2012 Accordingly, employee is determined as ‗a person of at least 15 years-old who has ability of working, work with an employment contract, is paid and is under the management of employer‘.600

Then, the traditional elements of employment contract and management of employer are main criteria

599 Law on Occupational Safety and Hygien no 84/2015/QH13 issued by National Assembly on 25 June 2015, Article 600

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for the determination of employee As a result, only employees are included within the personal scope of Labour Code 2012 In addition, this Code also mentions some other criteria for other forms of work such as ‗working with least than 03 months‘, ‗part-time work‘, but these forms are still a version of working with an employment contract.601 Beside this form, the concept of ‗worker without employment contract‘602

is also mentioned in other labour regulations, which in turn leads to the understanding that the second form of work is working without employment contract Then, in comparison to multi-forms of work as above-mentioned, this classification and recognition of working forms in Vietnam are still simple, which only include two groups ‗employee with employment contract‘ and ‗worker without employment contract‘ As a result, all forms of work which are not created through employment contract are considered as informal work and the person who take this working form is not regulated by Labour Code Therefore, only one part of labour force is protected by Labour Code This fact becomes more serious when, in accordance to official statistic, worker without employment contract in informal sector is more vulnerable from the perspective of labour rights.603

In order to effectively deal with this issue, Vietnamese labour regulations should consider the determination of other criteria for classifying forms of working without employment contract The purpose of this classification is a better recognition of these forms, and then, consider worker of which form(s) is/are closer to employee, and then, provide them with similar level of protection on labour rights In other words, in addition to the criterion on ‗the subordination of employee to employer‘, some other criteria need to be supplemented to a better determination of working status, and then, some groups of workers are able to be entitled to more labour rights These criteria could include the cohesion between supplier of and user of labour force which is estimated by frequency and longevity of this use In details, even in the case of a seasonal work or on-call work, if a worker spends almost of his or her working time for one single user of labour force, this user must take some responsibility of employer toward the worker concerned In a similar way, in the context of cyber labour market, despite of coded information about user and supplier of labour force, the system is still able to collect information about frequency and longevity of using labour force between them, which create a base for the determination of rights and responsibility of each party

4.3.Enhancing the value of sustainable development in labour regulations

Sustainable development is a general issue which play an important role in many

601

In accordance to article 16.2, Labour Code 2012, employer and employee can join verbal employment contract for working in temporary job with least than 03 months Then, employment contract is still a main criterion for the determination of formal working forms In a similar way, in article 34, Labour Code 2012, part-time employee is considered as employee working with less working hours but still need to join employment contract

602

Law on Occupational Safety and Hygien no 84/2015/QH13 issued by National Assembly on 25 June 2015, article 2.3

603

See Ministry of Labour, War Invalid and Social Affairs and General Statistics Office of Vietnam, Report on Labour

Market Vietnam, no 18, 2018, available at

http://www.molisa.gov.vn/Images/FileAnPham/fileanpham20189181538663.pdf (last visisted on 17/7/2019) vaf ILO,

2016 report on informal employment in Vietnam, available at website

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eco-social issues and also legal development In the process of building up legal system, this element is absorbed in many legal documents on labour issue, which express an expectation of protecting labour force from the worst form of working and creating promotion for all worker The CPTPP and EVFTA once again require a sustainable development in labour issue In details, it requires a more extensive protection of labour regulations as well as an harmony between labour issue and other issues such as investment and trade

From this perspective, Vietnam is not the only country who is finding a solution for such harmony In some recent research on possible new approaches to labour law, it is suggested that traditional bases of labour law which is on countervailing force to the inequality of bargaining power inherent in the employment relation need to be supplemented.604 In this context, labour law is expected to develop in a more flexible way For adapting this requirement, the capabilities approaches are examined to be an additional bases of labour law Accordingly, the ultimate goal of labour law should be the protection and promoting capacity and creating working opportunities for people who have working ability.605 With this new approach, labour regulations shall not only protect employment relationship but also other legal relations which relate to labour for obtaining the goal of development of labour force In connection with above analyzed facts on working insecurity and recommendation (4.1 and 4.2), labour regulations should classify workers into different groups, and then, provide each group with the protection of labour rights which is correspondent to their involvement to labour market Accordingly, employee with employment contract is full protected in term of labour rights while core labour rights of all other workers will be improved In the context that Vietnam will not extend the personal scope of Labour Code in short term, the implementation of this recommendation is expected to extend legal protection to all workers regardless their working status

5 Conclusion

In conclusion, this writing highlights some changes in new context due to the development of eco-social activities and technology, then presents some main effects of these changes to labour regulations These changes jointly create new demand for the development of labour law such as the extension and effectiveness of protection toward worker The amendment of labour law is no longer on a traditional way but needs to adapt new approach Some proposals at the end of the writing are expected to contribute for an improvement of labour regulations to adapt with new changes in new context

604

Horacio Spector, Philosophical foundation of labour law, Florida State University Law Review số 33 (2006), p 1120 – 1150

605 Riccardo Del Punta, Labour law and the Capacibility Approach, International Journal of Comparative Law and