Authority to resolve individual labor disputes in labor relations with foreign elements in Vietnam

According to the provisions of the 2019 Labor Code on labor disputes: "Labor disputes are disputes about rights, obligations and interests arising between parties in the process of establishing, implementing or terminating labor relations; disputes between organizations representing employees; disputes arising from relationships directly related to labor relations".

And in which, labor disputes are divided into 02 types: individual labor disputes and collective labor disputes, from which there are regulations on the subject with the authority to resolve disputes, the order and procedures for resolving these two types of disputes. Thus, individual labor disputes in labor relations with foreign elements in Vietnam between foreign employees ("NLĐNN") and employers ("NSDLĐ") will be applied as follows:

2. Authority to resolve individual labor disputes in labor relations with foreign elements in Vietnam

The settlement of individual labor disputes in labor relations (LPR) with foreign elements in Vietnam is conducted by labor conciliators and the People's Court.

a) Labor mediator

Labor conciliators are entities with the authority to resolve disputes appointed by the Chairman of the Provincial People's Committee to conciliate labor disputes, disputes over vocational training contracts; and support the development of labor relations (Article 184 of the 2019 Labor Code). This is a new point of the 2019 Labor Code compared to the 2012 Labor Code when the authority to appoint labor conciliators belongs to the Chairman of the Provincial People's Committee and not by "nomination by the state management agency of labor at the district level" [2]. Thus, labor conciliators in Vietnam only exist at the provincial level and there are no national labor conciliators.

To become a labor mediator, an individual must fully meet 04 conditions on experience, professional capacity... according to the provisions of Decree No. 145/2020/ND-CP detailing and guiding the implementation of a number of articles of the Labor Code on working conditions and labor relations.

b) People's Court

Disputes in individual labor relations with foreign elements in Vietnam are cases of labor disputes with foreign elements, so the jurisdiction of the Court is determined in 2 steps:

- Step 1: Determine the general jurisdiction of the Vietnamese Court over the labor dispute according to the provisions of Chapter XXXVIII of the Civil Procedure Code.

- Step 2: Determine the jurisdiction of the specific Court according to the provisions of Clause 2, Article 469 and Chapter 3 of the 2015 Civil Procedure Code.

Firstly, the general jurisdiction of Vietnamese Courts over labor disputes with foreign elements is determined as follows:

- The defendant is an individual residing, doing business, or living permanently in Vietnam. The defendant in a labor dispute involving foreign elements is a foreigner or their employer. This case only applies to employers who are individuals residing, doing business, or living permanently in Vietnam. In cases where the employer is a Vietnamese legal entity or a foreign legal entity with a commercial presence in Vietnam, the second case applies.

- The defendant is an organization or agency headquartered in Vietnam or the defendant is an organization or agency with a branch office or representative office in Vietnam for cases related to the activities of that branch office in Vietnam. The defendant in this case can only be the employer of the foreign employee.

- Civil relations cases where the establishment, change or termination of such relations occurs in Vietnam or the work is performed in the territory of Vietnam. Vietnamese courts shall have jurisdiction to resolve disputes in the labor relations of foreign employees where such relations are established, performed, changed or terminated in the territory of Vietnam.

- A case of civil relations in which the establishment, change or termination of such relations occurs outside the territory of Vietnam but is related to the rights and obligations of Vietnamese organizations and individuals or those with headquarters or residence in Vietnam. This is the case where the Labor Contract (LC) of a foreign employee is signed and will be liquidated abroad but the foreign employee is sent to Vietnam to work as an internal transfer within the enterprise.

Second, the specific jurisdiction of the Court when resolving labor disputes with foreign elements will apply according to normal procedures.

- Jurisdiction of the Court by case: The People's Court has the authority to resolve labor disputes arising between foreign employees and employers, including the following cases:

Individual labor disputes between employees and employers that are successfully mediated by a labor conciliator but the parties do not implement or do not implement correctly or the conciliation fails, or the conciliation is not conducted within the time limit prescribed by law, except for disputes that do not necessarily have to go through conciliation at the facility such as: Disputes on handling labor discipline in the form of dismissal or unilateral termination of labor contracts, disputes on compensation for damages between employees and employers, on benefits when terminating labor contracts, disputes between employees who are domestic workers and employers.

- Jurisdiction of the Court at all levels: Provincial People's Courts have the authority to resolve labor disputes between foreign employees and employers (Article 37 of the 2015 Civil Procedure Code). For labor disputes between foreign employees and Vietnamese employers, procedures can be carried out such as: Serving relevant papers, records, documents, summoning witnesses, experts, collecting, providing evidence or other requests (Law on Judicial Assistance 2007). Currently, Vietnam has signed judicial assistance agreements with a number of countries such as Algeria, China, Cuba, Belarus, the Russian Federation, etc., so the issue of judicial entrustment related to labor cases will apply the above agreements. In case there is a request for judicial entrustment between Vietnam and a foreign country that does not have an agreement on judicial assistance, the judicial entrustment activity will be carried out on the principle of reciprocity but not contrary to Vietnamese law, in accordance with international law and practice (Clause 2, Article 4 of the Law on Judicial Assistance 2007).

- The territorial jurisdiction of the Court will be determined according to Articles 39 and 40 of the 2015 Civil Procedure Code.