Procedures for resolving labor disputes involving foreign elements

1. For individual labor disputes

Clause 1, Article 188 of the 2019 Labor Code stipulates that individual labor disputes must be resolved through the conciliation procedure of the Labor Conciliator before requesting the Labor Arbitration Council or the People's Court to resolve. Exceptions for 06 cases of disputes that are not required to go through conciliation procedures: Regarding labor discipline in the form of dismissal or disputes regarding unilateral termination of labor contracts; regarding compensation for damages and allowances upon termination of labor contracts; between domestic workers and employers; regarding social insurance according to the provisions of the law on social insurance, regarding health insurance according to the provisions of the law on health insurance, regarding unemployment insurance according to the provisions of the law on employment, occupational accident and disease insurance according to the provisions of the law on occupational safety and hygiene; regarding compensation for damages between employees and enterprises and organizations sending employees to work abroad under contracts; between the rehired employee and the rehiring employer.

2. For collective labor disputes

Pursuant to Articles 192 and 196 of the 2019 Labor Code, collective labor disputes are not required to be resolved through the conciliation procedure of the Labor Conciliator. In case the conciliation fails or the conciliation period expires but the Labor Conciliator does not conduct the conciliation or one of the parties does not implement the agreement in the successful conciliation record, the disputing parties have the right to choose one of the following methods to resolve the dispute: request the Labor Arbitration Council to resolve, or request the Court to resolve.

The statute of limitations for requesting a Labor Mediator to mediate a labor dispute is 06 months; the statute of limitations for requesting the Labor Arbitration Council to resolve a labor dispute is 09 months; the statute of limitations for requesting the Court to resolve a labor dispute is 01 year. These statutes of limitations are calculated from the date of discovery of the act that the disputing party believes has violated its legitimate rights and interests.

3. Conclude

The mechanism for resolving labor disputes in the 2019 Labor Code is more flexible and complete when expanding the right to choose the method of resolving labor disputes for the parties after conducting the conciliation procedure by adding the subject of labor dispute resolution, the Labor Arbitration Council. It can be seen that arbitration is a method of resolving labor disputes used by many countries in the world because of the great effectiveness it brings, in addition to restoring the legitimate rights and interests of the parties in labor relations with foreign elements, it also aims to maintain harmonious and stable international relations.

The addition of authority to the Labor Arbitration Council is an important step forward in the development of the Vietnamese labor law system, aiming to overcome shortcomings, increase flexibility in the resolution process and help the parties have more rights to choose the resolution agency instead of only having the right to choose the Court as before. At the same time, the law does not stipulate the intervention of State administrative agencies in resolving labor disputes but enhances the supporting role, in accordance with the conditions and characteristics of the Vietnamese context, compatible with international standards that Vietnam has committed to and joined, in which, it emphasizes respect, promotes dialogue and negotiation to resolve labor disputes, especially labor disputes with foreign elements.