New policies on the labor dispute settlement under the Labor Code 2019 compared to it under the Labor Code 2012
On November 20th 2019, The National Assembly promulgated the Labor Code No. 45/2019/QH14 (called “the Labor Code 2019”), coming into force from January 01st 2021 and replacing the Labor Code No. 10/2012/QH13 promulgated on June 18th 2012 (called “the Labor Code 2012”). According to legal experts, the Labor Code 2019 will bring significant reforms, especially the labor dispute settlement, to the labor market. In this newsletter, DTD presents differences between the labor dispute settlement mechanism between the Labor Code 2019 and the Labor Code 2012.
I. Of the individual labor dispute
1. An increase in the labor dispute settlement body
Article 187 Labor Code 2019 stipulates Labor Arbitration Councils as additional bodies to settle labor disputes. This prescription is expected to advance the position of Arbitration Councils in settling disputes. Compared to the Labor Code 2012, this is a new regulation because Arbitration Councils shall only resolve collective labor disputes for a reason that these disputes occurring at employing units where strikes are prohibited on the list stipulated by the Government (Article 199.02 the Labor Code 2012). The Labor Code 2012 set out only an individual dispute settlement mechanism including two kinds of procedures: procedures outside Court, proceeded by labor conciliators, and procedures before Court (Article 200 the Labor Code 2012). This provision is legally binding to parties, while individual labor disputes are complex and require a special settlement mechanism. Recognizing Arbitration Councils as dispute settlement bodies will flexibly overhaul the previous regulations in the process of dispute settlement. Specifically, Article 187 the Labor Code 2019 stipulates that:
“Article 187. Competence to settle individual labor disputes
The following agencies, organizations and individuals have the competence to settle individual labor disputes:
1. Labor conciliators;
2. Labor Arbitration Councils;
3. The People’s Court.”
In short, instead of Courts and Labor Conciliators, parties are entitled to submit their disputes to Arbitration Councils, another means of dispute settlement.
2. Of statute of limitations for requesting settlement of individual labor disputes
Another new provision in the Labor Code 2019, specified in Article 190.04, is that in circumstances due to a force irresistible event or unfortunate event causing the statute of limitations cannot be complied with, the duration of such an event shall not be included in the time limit for requesting settlement of individual labor disputes: “In case the requester is able to prove that the aforementioned time limits cannot be complied with due to a force irresistible event or unfortunate event, the duration of such an event shall not be included in the time limit for requesting settlement of individual labor dispute.” Moreover, the time limit to request a Labor Arbitration Council to settle a right-based collective labor dispute is 09 months from the date on which a party discovers the act of infringement of their lawful rights. As we can see, the new clause will facilitate both employers and employees to enforce their requesting rights in the best way, especially in the present COVID-19-pandemic period in which the labor force and market are severely affected.
3. Increase in responsibilities of labor, war invalids, and social affairs agencies under People’s Committee
Article 181. 03 specifies that: “The provincial labor authority, when requested, shall receive and classify the request for labor dispute settlement, provide instructions and assists the parties during the process of labor dispute settlement.”
As can be seen, the Labor Code 2019 regulates that specialized agencies shall take responsibility for not only instructions and assistance but also receipts and classifications to help parties enforce their requesting rights more easily. As a consequence, it reduces the amount of work of Courts and enables to employers and employees protect their rights and benefits.
II. For collective labor disputes
1. The competent authority
Instead of authorizing the Chairman of District People’s Committee to resolve right-based collective labor disputes, the Labor Code 2019 stipulates the authority for Labor Arbitration Councils (Article 191.01.b the Labor Code 2019). As a result, the Labor Code 2019 will restrict the intervention of administrative authorities in the labor dispute settlement to suit the nature of labor relationships. In addition, Article 191.02 and 195.02 provide that right-based labor disputes shall be settled through mediation by labor mediators before being brought to the Labor Arbitration Council or the Court with a view to settling disputes immediately in the mediation process.
2. Of statute of limitations for requesting settlement
There is a difference in statute of limitations (or time limits) between dispute settlement authorities in the Labor Code 2019. In particular, the time limit to request a labor mediator to settle an individual labor dispute is 06 months; 09 months with a Labor Arbitration Council and 01 year with a Court from the date on which a party discovers the act of infringement of their lawful rights and interests (Article 194 the Labor Code 2019). Otherwise, Article 207 the Labor Code 2012 sets out the statute of limitations for requesting settlement of a right-based collective labor dispute is 01 year counting from the date of discovering an act which is claimed by either party to infringe upon its rights or legitimate interests. The new rule in the Labor Code 2019 will assists parties to ascertain the time limit to each authority and actively make a settlement request.
The Labor Code 2019 is taking effect from January 01st 2021. Employers and employees should study its regulations to effectively protect their rights and benefits.
