ABSTRACT
Purpose: The purpose of the article research the theoretical issues and practical establishment of workers' representative organizations at grassroots level, based on which the author proposes some recommendations regarding the establishment of workers' representative organizations at grassroots level in Viet Nam.
Theoretical framework: The research employs theories about the establishment of workers' representative organizations in Vietnam, regulations on the establishment of workers' representative organizations, and mechanisms that apply to the establishment of workers' representative organizations in Vietnam.
Design/methodology/approach: The research employs three common methods in legal science research: (1) Legal analysis method; (2) Legal efficiency evaluation method; and (3) Comparative legal method. The above research methods help compare and contrast theories of the establishment of workers' representative organizations in Vietnam and bring out some essential findings.
Findings: Some valuable findings have been revealed such as the formulation and development of the establishment of workers' representative organizations in Vietnam, some theoretical issues, and limitations on regulations on the establishment of workers' representative organizations in Vietnam.
Research practical and social implications: The article proposes some tasks remaining undone, and further tasks will be fulfilled in the future. The article may support many developments in future research in Vietnam.
Originality/value: The research on the establishment of workers' representative organizations in Vietnam become more and more urgent and very important in Vietnam.
Keywords: Labor, Labor Laws, Workers, Trade Union, Viet Nam.
RESUMO
Objetivo: O objetivo do artigo é investigar as questões teóricas e a criação prática de organizações representativas dos trabalhadores a nível das bases, com base nas quais o autor propõe algumas recomendações relativas à criação de organizações representativas dos trabalhadores a nível das bases no Vietname.
Estrutura teórica: A pesquisa emprega teorias sobre o estabelecimento de organizações representativas dos trabalhadores no Vietnã, regulamentos sobre o estabelecimento de organizações representativas dos trabalhadores e mecanismos que se aplicam ao estabelecimento de organizações representativas dos trabalhadores no Vietnã.
Projeto/metodologia/abordagem: A pesquisa emprega três métodos comuns em pesquisa de ciências jurídicas: (1) método de análise jurídica; (2) método de avaliação de eficiência jurídica; e (3) método jurídico comparativo. Os métodos de pesquisa acima ajudam a comparar e contrastar teorias de estabelecimento de organizações representativas dos trabalhadores no Vietnã e trazer algumas conclusões essenciais.
Conclusões: foram reveladas algumas conclusões valiosas, como a formulação e o desenvolvimento do estabelecimento de organizações representativas dos trabalhadores no Vietname, algumas questões teóricas e limitações à regulamentação sobre o estabelecimento de organizações representativas dos trabalhadores no Vietname.
Investigação implicações práticas e sociais: O artigo propõe algumas tarefas que continuam por fazer, e outras tarefas serão cumpridas no futuro. O artigo pode apoiar muitos desenvolvimentos em pesquisas futuras no Vietnã.
Originalidade/valor: A investigação sobre a criação de organizações representativas dos trabalhadores no Vietname torna-se cada vez mais urgente e muito importante no Vietname.
Palavras-chave: Trabalho, Leis Trabalhistas, Trabalhadores, Sindicato, Vietnã.
RESUMEN
Propósito: El propósito del artículo es investigar las cuestiones teóricas y el establecimiento práctico de organizaciones representativas de los trabajadores a nivel de base, sobre la base de lo cual el autor propone algunas recomendaciones con respecto al establecimiento de organizaciones representativas de los trabajadores a nivel de base en Viet Nam.
Marco teórico: La investigación emplea teorías sobre el establecimiento de organizaciones representativas de los trabajadores en Vietnam, regulaciones sobre el establecimiento de organizaciones representativas de los trabajadores y mecanismos que se aplican al establecimiento de organizaciones representativas de los trabajadores en Vietnam.
Diseño/metodología/enfoque: La investigación emplea tres métodos comunes en la investigación de las ciencias jurídicas: (1) Método de análisis jurídico; (2) Método de evaluación de la eficiencia jurídica; y (3) Método jurídico comparativo. Los métodos de investigación anteriores ayudan a comparar y contrastar las teorías del establecimiento de organizaciones representativas de los trabajadores en Vietnam y sacan a la luz algunos hallazgos esenciales.
Hallazgos: Se han revelado algunos hallazgos valiosos, como la formulación y el desarrollo del establecimiento de organizaciones representativas de los trabajadores en Vietnam, algunas cuestiones teóricas y limitaciones a las regulaciones sobre el establecimiento de organizaciones representativas de los trabajadores en Vietnam.
Implicaciones prácticas y sociales de la investigación: El artículo propone algunas tareas pendientes, y otras tareas se cumplirán en el futuro. El artículo puede apoyar muchos desarrollos en futuras investigaciones en Vietnam.
Originalidad/valor: La investigación sobre el establecimiento de organizaciones representativas de los trabajadores en Vietnam se vuelve cada vez más urgente y muy importante en Vietnam.
Palabras clave: Trabajo, legislación laboral, trabajadores, sindicato, Viet Nam.
1 INTRODUCTION
Establishing workers' representative organizations under the laws of Viet Nam is currently a critically important issue owing to the influence of these organizations on the work environment and interests of workers, as well as the business functions of enterprises. Establishing workers' representative organizations helps protect workers' rights, ensure a fair working condition, improve the work environment of workers, and provide them with the facilitation to take part in negotiation with employers.
Viet Nam is robustly promoting industrialization, increasing the number of enterprises, therefore the establishment of workers' representative organizations helps enhance negotiation and representation power of workers in the face of rapid changes in the work environment. This research learns how the workers' representative organizations balance the workers' interests with the enterprises' growth in order to gain the fairness and stability in industrial relations. The research also identifies prevailing laws and regulations on the establishment and operation of the workers' representative organizations to ensure the legitimacy and adherence to labor laws.
2 THEORETICAL FRAMEWORK
According to Article 22 of the International Covenant on Civil and Political Rights (ICCPR), everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. The right to freedom of association in Article 22 of ICCPR refers to three main aspects, including the freedom to establishment of new associations. (Department of Legal Affairs - Ministry of Labor, Invalids and Social Affairs, 2017).
The right to freedom of association is the right reiterated and generalizes the standards stipulated in Convention No. 87, 1948 and Convention No. 98 of the International Labor Organization (ILO). Article 2 in ILO Convention No. 87 stipulates that: "Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization." (ILO)
This clearly affirms the rights of workers and employers to establish organizations as they expect. Nevertheless, they are only subject to the rules of the organization concerned. This right is considered one of the workers' fundamental rights, which helps protect their interests and ensure the fairness and equity in industrial relations.
The right to freedom of association, hence, is one of the significantly recognized and protected rights in labor, and it reflects the importance of organizing and uniting workers for the protection of their interests.
Thus, it can be said that establishing workers representative organizations means that workers in an enterprise together establish their own representative organization at grassroots level to protect their legitimate rights and interests in industrial relations.
Workers have the right to establish their own organizations, advocate to propagate and attract members (Bendix, S, 2004). Forbidding the establishment of workers' organizations shall compromise their legitimate rights and interests. Workers have the right to participate in organizations concerned without any discrimination or stigma even including political viewpoints (International Labor Office, 2017).
The regulations on only one single workers' representative organization and on professions exclusively acknowledged to establish organizations might result in barriers against the workers' formation of their new organizations. The acts of establishing, advocating and propagating for the establishment of workers' organizations shall not be restricted by their status as being an apprenticeship, doing farm work or being under probation contract. However, there are some restrictions for those considered as "workers taking supervisory role", but even they can join workers' organizations. The act of establishing a new representative organization may even include not-joining an existing representative organization and forming a new one (D BOLTON, J BAGRAIM, L WITTEN et al., 2007) (Bendix, S, 2004) at their own discretion (Youngmo Yoon, 2009).
To establish a new organization of workers, or a grassroots organization of workers' representative organization at an enterprise, establishers may comply with either of the two procedures (W. Glick, P. Mirvis, and D. Harder, 1977) (A. S. Tannenbaum and R. L. Kahn, 1958). Most importantly, it must be recognized by laws: required prior permit or not. In the case of required prior permit (L. E. Tetrick, L. M. Shore, L. N. Mc Clurg et al., 2007), the requirements may include the approval of the organization's charter, regulations on the organization and operation, or requirements related to the steps to take prior to the establishment of the organization. In this procedure, the establishers are required to strictly follow laws and regulations to get the permission for establishing the organization (G. Strauss, 1977). Where a prior permit is not required, it does not mean that it is not mandatory to comply with regulations of laws, rather it removes the requirements which bring difficulties and obstacles for the establishment of the organization. Yet, the regulations of laws must be abided to ensure that the establishment of the organization does not violate regulations of Convention No. 87.
According to Convention No. 87, the application for the establishment workers' organization may or may not require prior permit as long as the regulations shall not impair or prejudice the guarantees provided for in this Convention. The regulation on the minimum number of members may also be applied. If the national laws stipulate the minimum number of members of new organizations, which is sensible and does not violate Convention No. 87, workers have to proceed the establishment of their organization in accordance with the regulation for a successful establishment. Nevertheless, provisions of the national laws should not impose restrictions preventing the organization' establishments, such as the provision prohibiting workers from establishing their own organization in a certain period after their enterprise begins to make a profit. This shall violate Convention No. 87 and must be amended. Thus, it is essential for the national laws to stipulate detailed regulations on the establishment of workers' new organizations, stipulating certain procedures without unexpected restrictions to make sure that workers can manage to establish their own organizations.
To operate legally and protect workers' interests, the organizations must undergo establishment and registration procedures. (M. E. Gordon, J. W. Philpot, R. E. Burt, C. A. Thompson et al., 479-499). The registration process provides legitimate acknowledgement for the operation of the organization and allows the organization to fully represent for workers' rights and interests. However, registration is only applicable to activities related to industrial relations, and does not include the ones which endanger national security and social order. During the registration process, workers also have the right to complain and denounce violations of the laws related to the registration of the organization. (D. G. Gallagher and P. F. Clark, 1989). To ensure workers' interests, it is needed to have the legal corridor and time to deal with issues related to the registration of the organization.
According to Article 170, Labor Code 2019, on the right to form, join and participate in activities of workers' representative organizations at the grassroots level, workers have the right to form and join trade unions in accordance with the Trade Union Law or workers' organizations at their enterprises (National Assembly, 2019). Thus, the forms of workers' representative organizations established at grassroots level can be divided into two main groups, based on the features of the workers' representative organizations at grassroots level, including: establishing a grassroots trade union and establishing a workers' organization in the enterprise. 3 LITERATURE REVIEW
Researches related to this paper's theme include: Bendix, S. (2004) with "Industrial Relations in South Africa (4th ed)"; Ministry of Labor, Invalids and Social Affairs (2018) with "2017 Industrial Relations Report"; Clive Fullagar & Julian Barling (1989) with "A Longitudinal Test of a Model of the Antecedents and Consequences of Union Loyalty"; Cohen, A. (1993) with "An empirical assessment of the multidimensionality of union participation"; D BOLTON, J BAGRAIM, L WITTEN et al. (2007) with "Explaining union participation: the effects of union commitment and demographic factors"; D. G. Gallagher and P. F. Clark. (1989) with "Research on union commitment: Implications for labor"; United Nations General Assembly. (1966) with "International Covenant on Civil and Political Rights"; United Nations General Assembly. (1966) with "Covenant on Economic, Social and Cultural Rights"; Do Quynh Chi. (2012) with " Employee participation in Viet Nam"; Fullagar, C. . (1986). "A factor analytic study on the validity of a union commitment scale"; Fullagar, C., & Barling, J.. (1989) with "A longitudinal test of a model of the antecedents and consequences of union loyalty"; Fullagar, C., Clark, P.F., Gallagher, D.G. et al. (1994) with "A model of the antecedents of early union commitment: the role of socialization experiences and steward characteristics"; G. Strauss. (1977) with "Union government in the U.S.: Research Past and Future. Industrial Relations", etc.
4 METHODOLOGY
The research built on common research methods in the law sector in Viet Nam such as: empirical legal analysis, empirical legal assessment, and comparative legal research.
5 RESULTS AND DISCUSSION
5.1 CURRENT STATUS OF ESTABLISHMENT OF WORKERS' REPRESENTATIVE ORGANIZATIONS IN VIET NAM
Before the Labor Code 2019 took effect on January 1, 2021, the establishment of new workers' organizations was mainly expressed in the form of establishment of grassroots trade unions under the Viet Nam General Confederation of Labor. Statistics updated to 2018 from the Industrial Relations Report of the Viet Nam General Confederation of Labor show that the 2018 goal was that 90% of units/enterprises employing 30 or more workers had grassroots trade union organizations established. However, as of November 31, 2016, the total number of grassroots trade unions only reached 48,293, established in 37,636 private enterprises, 6,935 foreign-invested enterprises and 3,704 State-owned enterprises. Notably, there were 46,642 enterprises having 30 or more workers that have not had a grassroots trade union established in these enterprises. (Ministry of Labor, Invalids and Social Affairs, 2018).
In addition, as of January 1, 2017, there were 505,000 active enterprises nationwide, of which the service sector accounted for 70% (354,000 enterprises), the industrial and construction sectors accounted for 29% (146,000 enterprises). There were 131,300 enterprises employing 10 or more workers. In addition, there were 135,000 cooperatives, of which 1,042 had trade unions established.
Since the promulgation of the Labor Code 2019, according to the latest data reported by Viet Nam General Confederation of Labor, the numbers of newly established grassroots trade unions in the years ranging from 2019 to 2022 were 5,219,4,057,3524, and 4,413, respectively. In the business sector alone, the number of newly established grassroots trade unions decreased in 2021 (with 1,842 organizations established, equivalent to 49.5% of that in 2020) but increased in 2022 (with 3,827 organizations established, equivalent to 208% of that in 2021). The major reason was the impacts of the Covid pandemic. (Viet Nam General Confederation of Labor).
From the above data, it can be seen that the number of newly established grassroots trade unions remains small, and they are not popular in the private and foreign-invested sectors. (Nguyen Thi Thu Thuy, 2021). The reasons for this may include difficult production and business landscape, enterprises' temporary suspension of business, dissolution or downsized production, and workers' job loss. However, some areas, especially urbans, saw a growth in the establishment of new grassroots trade unions. For example, by 2018, more than 24,000 new grassroots trade unions have been established, or 123% of the establishment target. This was said to be thanks to the diversified methods of advocacy and development of trade union members. (Hoa An, 2018)
Regarding the establishment of workers' organizations in enterprises in accordance with the Labor Code 2019, there is currently no official reported data. Enterprise surveys show no such organization established in the enterprises, but mostly the grassroots trade unions are active. On account of a lack of a Decree guiding the establishment, organization and operation of workers' organizations in enterprises, the actual establishment of such organizations has not yet been possible.
5.2 RECOMMENDATIONS
Given the new industrial relation context since the issuance of the Labor Code 2019, there have been many new regulations promulgated to ensure workers' right to organize. One notable point is the regulation allowing more than one workers' organizations in an enterprise. This is a remarkable progress in the history of Viet Nam's industrial relations, which has brought about many new opportunities and challenges. However, in reality, there are still not many cases of establishment of workers' representative organizations other than the grassroots trade unions. Therefore, it has not been possible to summarize and draw lessons learnt from this reality so far. However, the experience from the participation in trade unions in previous periods could still provide some valuable recommendations in the new context.
Firstly, develop a legal corridor for the establishment of workers' representative organizations in general and workers ' organizations in enterprises in particular, and assure equality among workers' representative organizations as well as equality between such organizations and trade unions.
Issues of concern regarding the legal corridor include: establishment conditions, establishment procedures, organizational structure and operation of workers' organizations in the enterprises.
To assure equality among workers' representative organizations, and equality between such organizations and trade unions, it is necessary to build a clear legal corridor. Below are some critical issues that require attention in developing the legal corridor governing the establishment of workers' representative organizations in enterprises:
- Establishment conditions: There is a need to determine the criteria and conditions for a representative organization to be established. This may include requirements regarding the number of members in the organization, the required percentage of workers to join the organization, and other requirements.
- Establishment procedures: To ensure transparency and fairness, it is necessary to establish a clear and simple procedure for establishing representative organizations. This procedure shall cover the application submission, appraisal, and approval of establishment application/registration, as well as monitoring of the establishment process.
- Organizational structure: It is necessary to stipulate the organizational structure of the representative organizations, including the leadership and managerial units within the organizations. This would help ensure the effectiveness and representation of diverse workers' opinions.
- Operation: The legal corridor should clearly regulate the rights and duties of representative organizations, including the rights to representation and collective bargaining, the right to operate and participate in the decision-making of the enterprises, as well as the right to organize trainings, communications and supports for workers. All of the above issues should be addressed through the development and promulgation of relevant regulations, legal documents and directives. At the same time, the supervision by State agencies is needed to ensure compliance with regulations and principles on fairness for all representative organizations and workers.
Secondly, strengthen communication about the roles of workers ' organizations so that workers are aware of the importance of establishing workers' organizations in enterprises to better protect their rights and interests.
To raise awareness of and educate workers on the roles of workers' organizations in enterprises, the following communication measures can be deployed:
- Organize seminars, workshops, or provide information/counselling: Provide workers with specific information about the roles and benefits of establishing the workers' organizations; especially, clearly explain how such organizations can protect the rights and interests, and the rights of the organizations, and at the same time promote collective bargaining with enterprises.
- Use communication channels: Use different communication channels such as newsletters, magazines, websites or social networks to share information related to workers' organizations in enterprises. Articles, infographics, videos or success stories of workers who were protected by the representative organizations can help raise awareness and trigger demand of other workers.
- Conduct trainings and coachings: Conduct trainings and coachings on the benefits and legalities of establishing workers' organizations in enterprises. Ensure that workers have access to sufficient information to understand their rights and responsibilities in participating and contributing to workers' organizations.
- Network with other representative organizations: Enhance networking and partnership with other representative organizations such as trade unions, social organizations and professional organizations to enhance the rights and interests and importance of workers' organizations. This solidarity and interaction would strengthen the roles of these organizations and create a greater promotion effect.
- Use internal communication channels: When workers' organizations are present in enterprises, it is very important to create internal communication channels such as internal conferences, meetings, emails and messages to communicate clear documents and well inform about the roles, rights and interests of workers' organizations to workers in the enterprises.
Strengthening communication about the roles of workers' organizations is an important factor in raising widespread awareness and understanding which would enable the establishment of workers' representative organizations at grassroots level, thereby contributing to protecting the rights and interests of workers in the enterprises.
6 CONCLUSION
Building on theoretical basis on the establishment of workers' representative organizations and the current performance in Viet Nam, the following conclusions can be drawn. The establishment of workers' representative organizations is supported and protected by a series of international regulations and Viet Nam's laws. The representative organization helps workers freely express their rights and interests, negotiate working conditions, protect their interests, and ensure fairness in the work environment. However, actual context in Viet Nam shows that the establishment of new organizations still encounters many limitations. Statistics indicate that there remain businesses that do not have a grassroots trade union organization established, and the number of newly established organizations remains small. To further improve the effectiveness of participation in workers' representative organizations at grassroots level, specific advances and preferential and supporting policies are needed. Some recommendations include developing a clear legal corridor, promoting communication and educating workers on the roles of representative organizations, and creating a favorable environment for workers to join such organizations.
6.1 LIMITATIONS
However, having too many conditions, and regulation for the establishment of workers' representative organizations is difficult, and complicated for the establishment of workers' representative organizations in Vietnam.
6.2 FUTURE SCOPE
Many areas are not covered in this research article such as the history of the establishment of workers' representative organizations, the basis for forming the establishment of workers' representative organizations or practical application of the establishment of workers' representative organizations in Vietnam etc. Therefore, the above-discussed uncovered area of this article is known as the future scope.
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Abstract
Objetivo: O objetivo do artigo é investigar as questões teóricas e a criação prática de organizações representativas dos trabalhadores a nível das bases, com base nas quais o autor propõe algumas recomendações relativas à criação de organizações representativas dos trabalhadores a nível das bases no Vietname. Estrutura teórica: A pesquisa emprega teorias sobre o estabelecimento de organizações representativas dos trabalhadores no Vietnã, regulamentos sobre o estabelecimento de organizações representativas dos trabalhadores e mecanismos que se aplicam ao estabelecimento de organizações representativas dos trabalhadores no Vietnã. Projeto/metodologia/abordagem: A pesquisa emprega três métodos comuns em pesquisa de ciências jurídicas: (1) método de análise jurídica; (2) método de avaliação de eficiência jurídica; e (3) método jurídico comparativo. Os métodos de pesquisa acima ajudam a comparar e contrastar teorias de estabelecimento de organizações representativas dos trabalhadores no Vietnã e trazer algumas conclusões essenciais. Conclusões: foram reveladas algumas conclusões valiosas, como a formulação e o desenvolvimento do estabelecimento de organizações representativas dos trabalhadores no Vietname, algumas questões teóricas e limitações à regulamentação sobre o estabelecimento de organizações representativas dos trabalhadores no Vietname. Investigação implicações práticas e sociais: O artigo propõe algumas tarefas que continuam por fazer, e outras tarefas serão cumpridas no futuro. O artigo pode apoiar muitos desenvolvimentos em pesquisas futuras no Vietnã. Originalidade/valor: A investigação sobre a criação de organizações representativas dos trabalhadores no Vietname torna-se cada vez mais urgente e muito importante no Vietname.