SETTLEMENT OF LABOR DISPUTES WITH FOREIGN FACILITIES
Resolving labor disputes with foreign elements is a matter of concern for many employees and employers with foreign elements. So, which agency or organization is competent to settle “labor disputes” with foreign elements? What is the order of execution and procedure? This article will provide you with information to better understand the regulations on the above issue.
1. Legal grounds
– The Labor Code 2019
– The Civil Procedure Code 2015
– The Civil Code 2015
2. Labor relations with foreign elements and labor disputes
An employment relationship with foreign elements is a relationship arising under a labor contract between an employer and an employee when one of the two parties has different nationalities. According to the provisions of Vietnam’s labor law, cases of labor relations involving foreign elements include: Vietnamese employees working overseas; Vietnamese citizens working in foreign organizations in Vietnam; Foreign employees working in Vietnam….
According to the provisions of Article 179, Labor Code 2019
A labor dispute means a dispute over rights, obligations and interests among the parties during the establishment, execution or termination of labor relation; a dispute between the representative organizations of employees; a dispute over a relationship that is directly relevant to the labor relation. Types of labor disputes:
a) Labor disputes between the employee and the employer; between the employee and the organization that sends the employee to work overseas under a contract; between the outsourced worker and the client enterprise.
b) Right-based or interest-based collective labor disputes between one or several representative organizations of employees and the employer or one or several representative organizations of employees.
From that, it can be concluded that a labor dispute with foreign elements is a conflict of rights, obligations and interests arising between the parties in the labor relationship in which at least one party is a foreigner or a foreigner. directly related to labor relations with foreign elements, which are requested to be resolved by one of the parties.
3. The following agencies, organizations and individuals have the competence to labor disputes:
– Labor mediators;
– Labor Arbitration Councils;
– The People’s Court.
4. Procedures for the settlement
4.1 Individual labor disputes
According to the provisions of Clauses 1, Article 188, Labor Code 2019, Individual labor disputes shall be settled through mediation by labor mediators before being brought to the Labor Arbitration Council or the Court, except for the following labor disputes for which mediation is not mandatory:
– Disputes over dismissal for disciplinary reasons; unilateral termination of employment contracts;
– Disputes over damages and allowances upon termination of employment contracts;
– Disputes between a domestic worker and his/her employer;
– Disputes over social insurance in accordance with social insurance laws; disputes over health insurance in accordance with health insurance laws ; disputes over unemployment insurance in accordance with employment laws; disputes over insurance for occupational accidents and occupational disease in accordance with occupational safety and health laws;
– Disputes over damages between an employee and organization that dispatches the employee to work overseas under a contract;
– Disputes between the outsourced worker and the client enterprise.
4.2 Right-based labor disputes
– Right-based labor disputes shall be settled through mediation by labor mediators before being brought to the Labor Arbitration Council or the Court. (According to the provisions of Clauses 2, Article 191, Labor Code 2019).
– In case the mediation is unsuccessful or the labor mediator fails to initiate the mediation by the deadline specified in Clause 2 Article 188 of this Labor Code, the disputing parties may:
+ Request the Labor Arbitration Council to settle the dispute
+ Request the Court to settle the dispute.
4.3 An interest-based collective labor dispute
– An interest-based collective labor dispute shall be settled through mediation by labor mediators before it is brought to the Labor Arbitration Council or a strike is organized. (According to the provisions of Clauses 2, Article 195, Labor Code 2019).
– In case the mediation is unsuccessful, the labor mediator fails to initiate the mediation by the deadline specified in Clause 2 Article 188 of this Labor Code, or a party fails to adhere to the agreements in the successful mediation record:
+ Request the Labor Arbitration Council to settle the dispute
+ The representative organization of employees is entitled to organize a strike.
5. Statute
– The time limit to request a labor mediator to settle labor dispute is 06 months ;
– The time limit to request a Labor Arbitration Council to settle labor dispute is 09 months;
– The time limit to bring labor dispute to the Court is 01 year;
All statute from the date on which a party discovers the act of infringement of their lawful rights and interests.
Conclusion:
The method of settlement by the labor arbitration council has quick procedures, the principle of non-public trial helps keep information confidential, Arbitrators selected by the parties who represent the will of the parties, not in the name of State power, very suitable for settling disputes with foreign elements. A disputing party being a foreign individual or legal entity, when choosing to settle by a labor arbitration council in Vietnam, may, based on its will, choose one arbitrator to directly participate in and adjudicate, protect ensure their legitimate rights and interests.