Circular No. 22/2007/TT-BLDTBXH dated October 23, 2007 of the Ministry of Labour, War Invalids and Social Affairs providing guidelines on organization and operation of labour conciliation councils of enterprises, and on labour conciliators
MINISTRY OF LABOUR, WAR INVALIDS AND SOCIAL AFFAIRS
SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
Hanoi, October 23rd , 2007
PROVIDING GUIDELINES ON ORGANIZATION AND OPERATION OF LABOUR CONCILIATION COUNCILS OF ENTERPRISES, AND ON LABOUR CONCILIATORS
Pursuant to Decree 133/2007/ND-CP of the Government dated 8 August 2002 providing detailed regulations and guidelines on a number of articles of the Labour Code as amended, regarding labour dispute resolution (hereinafter referred to as Decree 133);
Pursuant to Decree 29/2003/ND-CP of the Government dated 31 March 2003 on functions, duties, powers and organizational structure of the Ministry of Labour, War Invalids and Social Affairs;
The Ministry of Labour, War Invalids and Social Affairs hereby provides the following guidelines on the organization and operation of labour conciliation councils of enterprises (hereinafter referred to as conciliation councils) and on labour conciliators (hereinafter referred to as conciliators):
I. ORGANIZATION AND OPERATION OF CONCILIATION COUNCILS
1. Procedures to establish a conciliation council:
(a) Proposal to establish a conciliation council:
A conciliation council must be established at any enterprise which has a trade union or a provisional executive committee of a trade union. At any such enterprise, the representative of the employer must take the initiative in making a proposal to the executive committee of the trade union to establish a conciliation council.
Based on the number of employees, the location and scale of the enterprise and the organizational structure of its production and business, the representative of the employer shall debate and reach agreement with the representative of the employees being the executive committee1 or provisional executive committee of the trade union of the enterprise (hereinafter both referred to as the "executive committee of the trade union") regarding the number of members of the council (including members outside the enterprise as stipulated in article 4.3(b) of Decree 133), but membership shall not be less than four (4) persons and agreement shall be reached on selection of membership of the council to represent each party participating in the council, including the chairman and secretary.
(b) Issuance of the decision establishing the conciliation council:
Based on the results of the debate and agreement reached between the parties, the employer shall issue a decision establishing the conciliation council on the standard form issued in Appendix 1 with this Circular.
The decision establishing the conciliation council must be sent to all members of the council and to the executive committee of the trade union. Within a time-limit of five (5) business days from the date of the decision, the employer must publicly announce the decision at the enterprise and send it to the district labour body in order for the latter to monitor it.
(c) Operational rules of the conciliation council:
The chairman of the conciliation council shall be responsible, within the first half of his or her term of office, to formulate and issue the operational rules of the council after reaching agreement with the other members, on the standard form issued in Appendix 2 with this Circular. The operational rules must be sent to all members of the council, and to the executive committee of the trade union and the employer; and the rules must be publicly announced at the enterprise.
(d) Change of membership of the conciliation council:
Membership of the conciliation council may be changed, or members may be added, within the term of office of the council. Any such change must be agreed by both parties, and the employer shall issue a decision on the change and send it to all members of the council, to the executive committee of the trade union, and to the district labour body for monitoring; and the decision shall be publicly announced at the enterprise the same as the decision on establishment of the council.
2. Duties of a conciliation council:
(a) To conciliate all individual labour disputes which arise at the enterprise at the request of one or both parties to the dispute.
(b) To conciliate collective labour disputes which arise at the enterprise at the request of one or both parties to the dispute.
3. Responsibilities and powers of the conciliation council:
(a) To receive any request to conciliate a labour dispute.
(b) To obtain a firm understanding of a case, to meet with the two parties in dispute and other persons involved and witnesses, to collect data and evidence, and to request the two parties in dispute to provide all the data relevant to the conciliation.
(c) To provide a settlement proposal for consideration by the two parties in dispute.
(d) If the conciliation is unsuccessful, to report and hand over the entire file on the dispute to the body authorized to resolve the dispute in order for such body to promptly resolve the matter in accordance with law.
(dd) To provide periodical [six-monthly and annual] reports on the operation of the council to the employer, to the executive committee of the trade union and to the district labour body prior to 10 June and during December of each year, or to provide extraordinary [one-off] reports at the request of State authorities.
To provide an overall report on the operation during the term of office of the council to the employer, to the executive committee of the trade union, and to the district labour body no later than ten (10) business days prior to the expiry of term of office of the council.
(e) To hand over work to members of a new term of office of the council, including all files on cases which have been received but not heard, and all files together with settlement proposals on labour disputes which remain unsuccessfully resolved, in order for members of the new term of office to consider and resolve such cases.
4. Duties and powers of members of the conciliation council:
(a) Duties and powers of the chairman of the council:
- To executively operate all activities of the council;
- To delegate tasks to members of the council and to assist them in carrying out their duties;
- On receipt of a request to conciliate a labour dispute, to make copies of the file on the case and send one copy to each member of the council in order for each member to prepare a plan for dealing with the case;
- To preside over conciliation sessions;
- To prepare and issue the operational rules for the whole of the term, during the first half of the term of the council;
- To prepare the overall report on the operation of the term and to hand over work to the new chairman when the former chairman's term of office expires.
(b) Duties and powers of the secretary of the council:
The secretary shall assist the chairman of the council, specifically as follows:
- To receive any requests for conciliation from a party to a labour dispute;
- To prepare to hold meetings of the council;
- To record the minutes of each meeting of the council; and
- To carry out other duties as delegated by the chairman.
(c) Members of the council shall have the specific duties delegated to them by the chairman, and they must gain an understanding of cases and make settlement proposals for them, and participate in other activities of the council.
(d) Members of the conciliation council shall participate in professional training courses on conciliation and on the law on labour as arranged by all level labour bodies or by other relevant authorities, in order to upgrade their ability to conduct conciliations.
(dd) Members of the council who are people from the enterprise and who take part in conciliations or participate in professional training and upgrading courses shall be entitled to be paid their salary for such time which shall be calculated as working hours, and they shall be entitled to other regimes and benefits in accordance with the law on labour.
Members of the conciliation council who are not people from the enterprise shall be paid salary by the employer for the time and days on which they conciliate or attend professional training courses. The two parties shall agree on the level of such salary, but it shall not be less than the amount paid to labour conciliators.
II. ACTIVITIES OF LABOUR CONCILIATORS
1. Introducing people to act as labour conciliators:
Based on the special characteristics and developmental status of enterprises within the locality, the district labour body shall be responsible to propose and introduce labour conciliators to the chairman of the district people's committee. After the chairman provides approval, introduction of the labour conciliators shall be conducted as follows:
(a) The district labour body shall publish on the local mass media the names of people who satisfy the conditions stipulated in article 6.1 of Degree 133, and shall also appoint an official from the district labour body to participate as a conciliator.
(b) A request shall be made to the labour federation of the district, town or provincial city (hereinafter referred to as the district labour federation) or to the trade union of the industrial zone or export processing zone to prepare a list introducing people to act as conciliators.
2. Application file for registration as a labour conciliator:
(a) The district labour body, the district labour federation or the trade union of the industrial zone or export processing zone within the locality of the district shall prepare an application file for their member/members to register to act as conciliators and send it to the district labour body. The file shall contain the following:
- Letter introducing the potential conciliator;
- Individual file of each person introduced as a potential conciliator, including:
+ Letter of voluntary participation on the standard form issued in Appendix 3 with this Circular;
+ CV of the person proposed as a conciliator, including full name, date of birth, health status, working place or work currently being undertaken, any specialist or professional qualifications, and duration of time spent working in a labour or other legal sector;
+ Document referred to in article 6.1(b) of Degree 133 being a degree or certificate certified by the authorized body or organization regarding professional training on law, or document certifying that the proposed conciliator has worked for at least three (3) years in a labour sector at the enterprise or at another body or organization;
+ Document certifying conciliation skills or experience as referred to in article 6.1(c) of Decree 133, and certificate of having attended a professional training course on conciliation skills or a document proving that the proposed candidate has participated in conciliation activities as certified by a labour body, a legal body or the Vietnam Fatherland Front.
(b) Any individual who satisfies the conditions stipulated in article 6.1 of Decree 133 and who voluntarily wishes to participate as a labour conciliator may directly lodge an individual application file containing the items stipulated in sub-clause (a) above with the district labour body.
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