February 16, 2022
Steven Lê - author
Since the existence of the first Labor Code in 1994 until the effective date in 2012, the 'union' is the only representative organization to protect legitimate rights and interests for employees.
In 2012, the Labor Code came into effect, the term 'independent workers’ representative group (WRO), however, the essence of this organization is still “Executive Committee of Grassroot Union or Executive Committee of immediate upper-level grassroot Union in the area which has not established a grassroots trade union.” Therefore, it is still the old wine in a new bottle.
It was only when the Labor Code of 2019 came to existence, the term “representative organization of the workers at grassroot" was officially introduced, which includes grassroots trade unions and business labor organizations. Specifically, Article 3.3 of the 2019 Labor Code provides for “The organizations represent the workers at the grassroots level is an organization established on the voluntary basis of the employees at the employers for the purpose of protecting legitimate rights and interests of employees in labor relations through collective bargaining or other forms as prescribed by law about labor. Organizations representing the workers at the grassroots include grassroots trade unions and grassroots employee organizations.”
It was only when the Labor Code of 2019 came to existence, the term “representative organization of the workers at grassroot" was officially introduced, which includes grassroots trade unions and business labor organizations. Specifically, Article 3.3 of the 2019 Labor Code provides for “The organizations represent the workers at the grassroots level is an organization established on the voluntary basis of the employees at the employers for the purpose of protecting legitimate rights and interests of employees in labor relations through collective bargaining or other forms as prescribed by law about labor. Organizations representing the workers at the grassroots include grassroots trade unions and grassroots employee organizations.”
The reason for the existence of "Organization of the workers”, next to the Trade Union
Practice has proven that the role of the Trade Union has not worked effectively and is not realistic perform well as an independent representative organization for the rights and interests of workers because the organization and mechanism still depend on the employers:
The leaders of the grassroots Trade Union belong to the employers, receive salary and benefits from the employers, so it is still dominated and affected by the business leadership. Leads to the inability to be objective and independent, to be bold in the protection of the collective interests of the employees in a thorough and fair manner.
Employees do not want to join the Union because they have to pay union dues while not fully understanding and perceiving the effectiveness, the actual benefits of being members of the Union.
The financial source for the operation of the Trade Union is also very dependent on the amount of money union fee contributed by the enterprise every month (2% of salary is the basis pay for the employee social insurance premiums). Many businesses misunderstand that if there no established Union, there is no need to pay union expense, so many businesses do not wish to form a union.
The recognition of the immediate upper level trade union organization representing the employees at the business that do not have a grassroots trade union, it is not in accordance with the provisions of the Group The International Labor Organization (ILO), does not guarantee voluntary (free) participation representative organization selected by the employees; specifically under Convention 87 of 1948 on freedom of association and on the protection of the right to organize, and Convention 98 of 1949 on the application of the principles of the right to organize and to bargain collectively. When employees who have not established or joined a trade union, they have not authorized immediate upper-level grassroot trade unions, on behalf of them, to represent and protect them in public relations labor system. Even for individuals who do not join the grassroots Trade Union, there is no legal basis to assert that they have delegated the grassroots trade union to represent for their legitimate rights and interests.
Countries that are members of the ILO also want to ensure that standards, regulations, ILO common conventions are met, or even better. For example, in the U.S., when conducting business in Vietnam, all corporations and companies desire their products that they order to be produced in the spirit of voluntary labor, equality, freedom from oppression and exploitation, respect for human rights, dignity at work. Therefore, to protect rights of workers, requires an independent organization and is willing to do its best for the benefit of workers; This organization cannot be dominated or influenced by the employers. Example: in the past, there were garment manufacturing foreign companies (from Asian countries) have treated unfairly, violently toward the workers; These businesses receive orders from Group N and when the businesses know, they reviewed, checked, proposed changes, prevent the problems in the factory production of goods for Group N; that's why Group N opened representative offices in countries with outsourcing businesses for N's goods to closely monitor local practices to ensure goods traded in the name of N all ensure the minimum standards of ILO or even better.
Moreover, Vietnam is increasingly dynamic and proves itself to be an active member, progress in the international community, and integration for development have been advocated by the Party passed Resolution 06-NQ/TW on November 5, 2016. In subsection 2.10 of the Decree has issued "Enact new or amending, supplementing legal documents on the assignment of state management responsibilities of changes, to strengthen the effective management of the establishment and operation of employees' organizations, aim to protect the employee’s justified rights and legitimate interests, and create conditions for stable and successful businesses. To ensure the establishment and operation of the employee's organizations in accordance with the process in the legal framework, with all tools and management measures to create conditions for these organizations to have favorable operation and healthy in accordance with the provisions of Vietnamese laws, in accordance with the principles of the International Labor Organization, while maintaining political stability." Therefore, the most outstanding progress of the Labor Code of 2019 is the recognition the existence of two forms of organization that representative the workers at the grassroots level, including: grassroots trade union and labor union. Regulations have institutionalized the guiding point of view of Resolution No. 06-NQ/TW of the Central Committee of the Party in the trend of international integration.
Establishment of "Workers' Organization"
Workers' organizations are legally established and operated after the state agency granted their registration. The organizations have its own charter, and have independent financial resources from the grassroots Trade Union. Management board members are workers working at their respective company. It is worth noting that, the organization cannot at the same time have ordinary workers and members that are workers directly involved in the decision process related to working conditions, labor recruitment, labor discipline, terminate the labor contract or the transfer of workers to another job position.
Although the provisions of the Labor Code of 2019 allow the establishment of organizations of the workers has been in effect since January 1, 2021, but so far there has not been establishment of any organization of the workers. The reason is because to establish, the join and operate of these organizations still have to wait on the instructions from the Government, such as filing, submission, procedures, approval in registration; State management over financial matters and assets of the worker organizations; division, separation, consolidation, merger, dissolution, right of association of the worker organizations, etc. Hopefully, the Government will quickly enact the necessary instructions for the provisions of the Labor Code 2019 to come into practice soon to help protect more effectively and stronger for the interests of the collectively all workers.
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