2010 Annual Survey of violations of trade union rights – Vietnam

Population: 88,100,000
Capital: Hanoi
ILO Core Conventions Ratified: 100 – 111 – 138 – 182

The official trade union confederation has been criticised on all sides for its ineffectiveness. The government continues to victimise independent trade unions.

Trade union rights in law

There are many obstacles to the free enjoyment of trade union rights. Workers may not organise or join unions of their choosing, as all unions must be approved by and affiliate with the Vietnam General Confederation of Labour (VGCL) and operate under its umbrella. The VGCL, on its part, is under the leadership of the ruling party. Individual unions can only affiliate with, join or participate in international labour bodies if approved by the VGCL. While VGCL-affiliated unions have the right to bargain collectively, the right to strike is severely restricted. The voting thresholds for calling a strike are prohibitively high, and all strikes must relate to collective labour disputes or concern industrial relations. Furthermore, strikes that involve more than one enterprise are illegal, as are strikes called in public services or state-owned enterprises. Strikes are also banned in sectors considered important to the national economy and defence, a definition which currently covers a total of 54 sectors. The Prime Minister can suspend a strike considered detrimental to the national economy or public security. Finally, if a strike is ruled illegal, the union and the individuals involved are liable for compensation to the employer for “losses and damages”.

Trade union rights in practice and violations in 2009

Background: Vietnam is still under the single party rule of the Communist Party. Repression of any sign of dissidence is being stepped up in the run-up to its next congress, in January 2011.

No freedom of association: Workers do not have the right to form or join a trade union that is not affiliated to the Vietnam General Confederation of Labour (VGCL), the official labour confederation controlled by the Communist Party. A new generation of trade unionists is emerging however, who do not have such close links to the party, notably in the post and telecommunications sector.

Official labour confederation criticised for its ineffectiveness: Strikes in Vietnam are usually called by informal groups of workers, even where there is a VGCL (Vietnam General Confederation of Labour) union delegation. The local authorities and representatives of the official union usually try to hold negotiations between workers and management. However the VGCL mainly takes the interests of the government and the enterprise into account during negotiations. In February, several representatives of the authorities called for a review of the labour legislation in order to clarify the roles and responsibilities of the trade unions. The deputy-director of the Ho Chi Minh City Export Processing and Industrial Zone Authority (HEPZA) explained that workers go on wild cat strikes because the procedures for organising a legitimate strike were too complicated and because workers considered that strikes were the only way to claim their rights and that most of the local trade unions did not fulfil their role of representing members and protecting their rights.

Court cases lead to dead end: Workers who want to claim the respect of their rights in court face numerous obstacles, including the slowness and cost of the proceedings, and even the absence of an employment contract. When the Thu Duc (Ho Chi Minh City) district union wanted to bring a case on behalf of 70 workers at the Hai Vinh Co. factory against their management, it turned out that most of them did not have an employment contract, even though it is a legal obligation. In other cases employment contracts were signed, but the workers did not get a copy.

Union representatives often co-opted: The ability of unions that are affiliated to the Vietnam General Confederation of Labour (VGCL) to effectively bargain with management is handicapped by the fact that at many private enterprises, VGCL representatives are either considered by the workers to be close to management or are actually management officials.

Drop in the number of wildcat strikes: Despite the restrictions on strike action, 216 wild cat strikes (illegal under the terms of the Labour Code) were carried out in 2009, which was 70% less than in 2008 according to government figures. This fall in the number of wildcat strikes was not due to an improvement in the workers’ situation however, but rather owing to their fear of losing their jobs in the wake of the world economic crisis. According to the government, most strikes took place in foreign-owned enterprises and were in protest at long working hours for low wages, as well as the violation of rights set out in the employment contract.

Two workers’ rights activists released: Tran Thi Le Hong, one of the founders and representatives of the United Worker-Farmers Organisation of Vietnam (UWFO) was released in February. She had been sentenced to three years imprisonment for “abusing democratic freedoms”. Huynh Viet Lang, a member of the Democratic People’s Party who had published an article in 2006 criticising workers’ rights violations in Vietnam, was released in February after spending 30 months in detention, but Human Rights Watch notes that he will remain under close supervision for two years, which is tantamount to house arrest.

Tran Khai Than Thuy re-arrested: Tran Khai Than Thuy, a renowned journalist, has been subjected to several periods of detention and house arrest since becoming one of the founders in 2006 of the Independent Workers’ Union. According to Human Rights Watch, she was beaten by thugs and uniformed police on 8 October, after trying to attend the trial of other dissidents in Hanoi and Haiphong. She was arrested and accused of “intentionally causing injury or damaging the health of other persons”. At the end of the year she was awaiting trial.

At least three independent activists still in detention: In May a Human Rights Watch report documented the government’s repression of activists who tried to create independent trade unions. The report recalls that since 2006 at least eight independent activists have been sentenced to prison on dubious national security charges. Three of them were still in prison at the end of 2009: Doan Van Dien, one of the founders of the the United Worker-Farmers Organisation of Vietnam (UWFO), Tran Quoc Hien, UWFO spokesperson, and Le Thi Cong Nhan, a lawyer and multi-party democracy campaigner. During her trial she was accused of “fallacious interpretation” of government policies on labour unions. Her articles on the internet criticised national legislation that allowed for arbitrary detention, prevented the creation of independent trade unions and the exercise of the right to strike. Le Thi Cong Nhan is being held in Yen Dinh prison, 150km south of Hanoi.

source: http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=country&docid=4c4fec4e3b0&skip=0&coi=VNM&querysi=trade&searchin=title&display=10&sort=date

2009 Annual Survey of violations of trade union rights – Vietnam

Population: 87,400,000
Capital: Hanoi
ILO Core Conventions Ratified: 29 – 100 – 111 – 138 – 182

Freedom of association and trade union pluralism continued to be denied in Vietnam. In 2008, the government enacted two Decrees that further restrict the right to strike, but this did not impede wildcat strikes. 762 wildcat strikes were reported during 2008, a 41% increase over 2007. In Hanoi alone, nearly 20,000 labourers were involved in 46 labour disputes.

Trade union rights in law

Freedom of association: Workers are not free to organise or join unions of their choosing. The Law on Trade Unions sets out that trade unions operate “under the leadership of the Communist Party of Vietnam” (CPV). Moreover, any union formed must be approved by and affiliate with the Vietnam General Confederation of Labour (VGCL) and operate under its umbrella. Similarly, the Statutes of the Vietnamese Trade Unions adopted at VGCL’s 9th Congress in 2003 also clearly state the trade unions are under the CPV’s leadership. The VGCL works under the close supervision and effective control of the Party and is a core member of the Vietnam Fatherland Front.

According to the Labour Code, a union must be formed by the local or industry trade unions within six months of the establishment of any new enterprise with ten employees or more. Businesses with less than ten employees are excluded from the requirements on unionisation. The employer is responsible for “facilitating the early establishment” of the union. Once the union is legally formed, the law further requires the employer to recognise the union, and to “cooperate closely with it”. However, officials of the Ministry of Labour, Invalids and Social Affairs (MOLISA) have publicly admitted that many enterprises, particularly those owned by foreign investors, have no union presence.

According to the Law on Trade Unions, individual unions are only able to affiliate with, join, or participate in international labour bodies “in conformity with their activity objectives”. Those “objectives” are determined by the national VGCL, giving it effective power to prevent international contacts or affiliations of which it does not approve.

Acts of anti-union discrimination are prohibited by the Labour Code. An employer must receive permission from the union or higher level VGCL body before terminating any member of the union’s executive committee.

Right to strike: The July 2007 amendments to the Labour Law brought significant changes to legal procedures for strikes in Vietnam. Disputes are divided into disputes over rights (compliance with the law, collective bargaining agreement, and/or work rules of the company) and disputes over interests (demands beyond what the law provides), and different procedures are set out for both. The law also sets out an extensive process of mediation and arbitration that must be followed before a strike can legally take place.

Strikes are illegal if their origin does not arise from a collective labour dispute or if they concern issues that are outside of labour relations. The law also states that in non- unionised enterprises “a strike must be organised and led by representatives nominated by workers”. The names of those workers representatives must be sent to the VGCL.

Sectoral/industrial strikes are clearly banned by a new provision of the law which states that any strike that involves more than one enterprise is illegal.

Thresholds for workers to approve a decision to strike are excessive. The law states that at least 50 per cent of the workers in an enterprise with less than 300 workers must vote for the strike. For enterprises with 300 workers or more, the requirement increases to 75 per cent.

New provisions in the law open a potential loophole for employers and government to influence workers’ decisions through creative use of a “work stoppage allowance”, to be paid to workers who do not take part in the strike but are prevented from working because of it. Striking workers are not entitled to pay and benefits.

Employers have the right to challenge the legality of a strike by appealing to the Labour Court. If a strike is ruled illegal, the law holds that the workers’ organisation and individuals involved in the strike are liable for compensation to the employer for “losses and damages”. Employer challenges to the legality of a strike can be filed up to three months after a strike is finished, raising concerns about retaliatory challenges to successful strikes.

Strikes are prohibited in public services, in state-owned enterprises and those considered by the government to be important to the national economy and defence. The definition is broad, covering a total of 54 sectors, including railway, maritime and air transportation, banks, post and telecommunications, electricity production and the oil and gas industries. The Prime Minister has the right to suspend a strike considered detrimental to the national economy or public security.

In strikes which are deemed legal, provisions in the law provide protection to workers by specifically forbidding “terminating individual labour contract, imposing labour discipline or transferring the workers to other jobs or other locations” because of those workers’ involvement in a strike. The law also prohibits employers from taking “revenge” against workers who supported or lead strikes or engaging in a “unilateral suspension of business of operations in order to resist a strike”.

In 2008 the government enacted two decrees that further restrict the right to strike (Decree 11/2008/ND-CP and Decree 12/2008/ND-CP). They regulate respectively the question of compensation for damage caused by unlawful strikes to employers and the issue of postponement or suspension of strikes.

Collective Bargaining: VGCL-affiliated unions have the right to bargain collectively on behalf of all workers in an enterprise. However, their ability to effectively bargain with management is handicapped by the fact that at many private enterprises, VGCL representatives are either considered by the workers to be close to management or are actually management officials.

Trade union rights in practice and violations in 2008

Workers see wildcat strikes as their only option: The VGCL describes itself as the bridge between employer and worker, rather than the defender of workers’ rights. Credibility of the VGCL among workers is still low because many workers believe that the leadership is unable to represent their concerns successfully.

Nguyen Van Be, Party Secretary of the Tan Thuan Export Processing Zone, said many labour officials did not help workers organise legal strikes or protect their rights. Dang Nhu Loi, Vice Director of the Parliament’s Committee on Social Affairs, said a recent survey in the southern industrial hubs of Binh Duong, Dong Nai and Ho Chi Minh City showed that all labour union officials had been selected by local company leaders, not the workers.

Export processing zones: Nguyen Thi Hoa, Trade Union Chairwoman of Hanoi Industrial and Export Processing Zones, reported that most enterprises did not want to set up trade unions. Hoa noted that the Labour Code requires the establishment of trade unions if employers have not set up a Party organisation or a Communist Youth Union.

Hundreds of strikes tolerated: Despite the restrictions on strike action, hundreds of wildcat (illegal under the Labour Code) strikes occurred throughout the year with around 20 strikes involving more than 60,000 workers.

One of the most publicised strikes involved 17,000 workers at the Taiwan-owned Ching Luh factory sourcing shoes for Nike in southern Long An Province. The workers struck on 31 March and demanded a monthly salary increase. Four workers urging their fellow workers to continue the strike were arrested on 1 April, after the company agreed to a smaller increase and the workers returned to work. In addition, management officials forced at least 20 strike leaders to submit their resignations.

On 9 May, several workers at a Chinese-owned plastics factory in Nam Hoa Ha Co in Bac Giang Province were beaten by company’s security personnel when struggle arose in the factory after manager refused salary increase. In the ensuing clash with police, many workers were seriously injured and 60 arrested. The outcome of the cases of the arrested workers is not known.

source: http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=country&docid=4c52cabe23&skip=0&coi=VNM&querysi=trade&searchin=title&display=10&sort=date