RESEARCH OF LABOR DISPUTES MEDIATION UNDER THE PROVISIONS OF THE LABOR CODE OF 2019

I. Regulations

– The Labor Code 2019

– Decree No. 145/2020/ND-CP of the Government dated December 14, 2020

II. What is Labor Dispute Mediation?

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 include:

  • 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;
  • 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.

Current methods of settling labor disputes include labor mediator, settlement by the Labor Arbitration Council, and settlement by a competent Court.

When a labor dispute arises, the labor law prioritizes dispute resolution by conciliation on the basis of respecting the rights and interests of the two disputing parties. Labor dispute mediation is a method of labor dispute resolution conducted by a labor mediator, offering a mediation option for the two parties to consider jointly. Labor dispute mediation helps to resolve minor disputes such as wage disputes upon the termination of labor contracts, reducing the burden of lawsuit costs for employees.

III. Are labor disputes required to go through labor mediation procedures

Article 188 of the Labor Code 2019 stipulates that labor disputes must be resolved through the mediation procedure of the labor mediation before requesting the Labor Arbitration Council or the Court to settle the dispute. Particularly for the following labor disputes must not go through the mediation procedure:

  • 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.

Labor disputes that do not go through the mediation procedure mentioned above are because the parties have conflicting interests, cannot reconcile their interests, or do not have time to sit down and reconcile with each other.

Right-based or interest-based collective labor disputes are required to conduct labor dispute mediation before requesting dispute settlement through the Labor Arbitration Council or the Court (Clause 2, Article 191, and Clause 3, Article 195 of the Labor Code 2019).

From the above provisions, it means that if the labor disputes fall into the case of having to be mediated but not implemented, when the lawsuit is filed at the Court, it will be refused to accept the reason for not having enough conditions to initiate a lawsuit.

IV. Competence to mediate labor disputes

Labor Dispute Mediation is performed by a Labor Mediator. A labor mediator is a person appointed by the President of the People’s Committee of the province to mediate labor disputes, and disputes over vocational training contracts; support the development of labor relations.

The labor mediator must meet the following standards:

  • Be a Vietnamese citizen, have full civil act capacity as prescribed by the Civil Code, and have good health and moral qualities.
  • Have at least a bachelor’s degree and 03 years’ experience in a field relevant to labor relation.
  • Not be facing criminal prosecution; not have any unspent conviction.

V. Request and procedures for mediation of labor disputes

   1. File a request for labor dispute mediation

      The statute of limitations for requesting conciliation of individual labor disputes and collective labor disputes on rights is 06 months from the date of discovering an act in which the disputing party believes that his/her legitimate rights and interests have been violated (Clause 1 Article 190 and Clause 1 Article 194 of the Labor Code 2019).

      The person requesting labor dispute mediation submits a request for labor dispute mediation to a labor mediator or a specialized labor agency under the People’s Committee, usually the Department of Labor, War Invalids, and Social Affairs or Provincial Department of Labor, War Invalids and Social Affairs.

   2. Appointing a labor mediator to settle disputes

     After receiving the mediation requester’s application, deeming the dispute to be in the case of labor conciliation, the competent agency shall appoint a mediator to settle the dispute, specifically:

      a. Where the application for labor dispute mediation is sent to the mediator

        In case the labor mediator directly receives the application from the disputing object for settlement, within 12 hours after receiving the application, the labor mediator must transfer it to the Department of Labor, War Invalids, and Social Affairs or the Provincial Department of Labor, War Invalids and Social Affairs is managing the labor mediator to classify processing.

        In case of receiving an application from a labor mediator, within 12 hours from the date of receipt of the application, according to the management decentralization, the Department of Labor, War Invalids, and Social Affairs or the Provincial Department of Labor, War Invalids and Social Affairs shall appoint a labor mediator according to regulations.

       b. In case the application for mediation of a labor dispute is sent to the specialized labor agency under the People’s Committee

        Within 05 working days from the date of receipt of the request, according to the management decentralization, the Department of Labor, War Invalids, and Social Affairs or the Provincial Department of Labor, War Invalids and Social Affairs is responsible for classifying and sending a written nomination. The labor mediator shall settle according to regulations.

       Depending on the complexity of the case, the Department of Labor, War Invalids, and Social Affairs or the Provincial Department of Labor, War Invalids and Social Affairs may appoint one or several labor mediators to join the settlement.

    3. Mediation session

      Settlement time: Within 05 working days from the date the mediator receives the request from the party requesting the resolution of the dispute or from a competent authority, the labor mediator must end the mediation.

     This means that the conciliation meeting must be opened within 05 working days from the date of receipt of the application.

     At the mediation meeting, both parties must be present. The parties may authorize another person to attend the meeting.

     The labor mediator is responsible for guiding and assisting the parties in negotiating to resolve the dispute. Specifically:

  • In case the two parties can agree, the labor mediator makes a record of conciliation. The minutes of successful conciliation must be signed by the disputing parties and the labor mediator.
  • In case the two parties do not reach an agreement, the labor mediator shall recommend a mediation option for the disputing parties to consider:
  • If the parties accept the mediation option, the labor mediator shall prepare a written record of successful mediation which bears the signatures of the disputing parties and the labor mediator.
  • If the two parties do not agree with the recommended mediation option or where one of the disputing parties is absent for the second time without a valid reason after having been legitimately summoned, the labor mediator shall prepare a record of unsuccessful mediation which bears the signatures of the present disputing parties and the labor mediator.

    4. Send the minutes of mediation to the parties

      Copies of the record of successful mediation or unsuccessful mediation shall be sent to the disputing parties within 01 working day from the date on which it is prepared.

     For a collective labor dispute over interests, the record of successful conciliation has the same legal value as the enterprise’s collective labor agreement (Clause 2, Article 196 of the Labor Code of 201).

    In case mediation is not mandatory, the labor mediator fails to initiate the mediation by the deadline, or the mediation is unsuccessful, the parties have the right to choose the method of settling disputes by the Labor Arbitration Council or request the Court.