Procedures for resolving individual labor disputes in labor relations with foreign elements in Vietnam

DFor individual labor disputes, the procedure for resolving labor disputes involving foreign employees includes the following procedures:

1. Negotiation

Labor relations are part of civil relations, in which when a dispute arises, the parties will prioritize negotiation so that the parties can resolve it themselves. However, negotiation is not a mandatory method of resolving labor disputes. If negotiation fails, the parties can refer the case to another competent authority such as a labor conciliator (in cases where mediation procedures must be followed before resolution at the Court) or the Court to resolve the case (in cases where mediation procedures are not mandatory).

2. Reconciliation of individual labor disputes at Labor Conciliator

In case the parties refuse to negotiate or fail to negotiate, the parties may request mediation by a labor mediator. The time limit for requesting a labor mediator to resolve the dispute is 06 months from the date of discovery of the act that each disputing party believes to have violated its legitimate rights and interests (Clause 1, Article 190 of the 2019 Labor Code). In addition, the provisions of the 2015 Civil Procedure Code on the enforcement of out-of-court mediation documents are a legal basis to facilitate the method of labor dispute mediation in practice.

The procedure for resolving labor disputes at the labor conciliator includes the following steps:

- Submit a request for mediation and select a mediator.

- Prepare for the mediation session and conduct the mediation. The law assigns the mediator full initiative in this matter, but there are some requirements when conducting the mediation session such as ensuring the presence of the disputing parties, the disputing parties negotiating to resolve their dispute, the mediator must propose a mediation plan, etc.

In case the conciliation fails or one of the two parties does not implement the agreements in the minutes of successful conciliation or after 05 working days the labor conciliator does not conduct conciliation, each disputing party has the right to request the Court to resolve the dispute.

c) Resolving individual labor disputes at the People's Court

• Resolving individual labor disputes under first instance procedures

Filing a lawsuit and accepting a labor case: When a dispute arises, one party has the right to submit a lawsuit and supporting documents to the Court directly or by post or send it online electronically via the Court's electronic information portal to request the Court to resolve the case (Article 189, Article 190 of the 2015 Civil Procedure Code). After receiving the lawsuit, the Court will perform specific tasks such as: Checking the right to file a lawsuit, considering the statute of limitations, considering the jurisdiction, considering whether the case is a case where the lawsuit must be returned or not, considering the court fees (if any), if all conditions are met, the Court will issue a decision to accept the case. At this time, the Court has the authority and responsibility to resolve the labor dispute case.

Preparation for trial and conciliation: After the Court accepts the case, it will prepare for trial and conciliation for the parties. The time limit for preparing for trial of a labor case is 02 months and can be extended by 01 month for complicated labor cases or due to objective obstacles. During this period, the Court will carry out specific tasks such as: Preparing case files, determining the status of the parties, participants in the proceedings, verifying, collecting evidence, applying temporary emergency measures, and conciliation. If the conciliation is successful, the Court will draw up a record of successful conciliation and after 7 days, if both parties do not change their opinions, the Court will issue a Decision recognizing the agreement of the parties (Clause 1, Article 212 of the 2015 Civil Procedure Code).

First-instance labor court: During the preparation for the trial, if the parties cannot reach an agreement and the case is not subject to suspension or temporary suspension, the Court will open a first-instance trial to resolve the dispute. The first-instance judgment is the result of the first-instance trial of the labor case. However, it does not take effect immediately and can be appealed according to the appeal procedure.

• Resolving individual labor disputes at the Court of Appeal

The time limit for preparing for the appeal trial of a labor case is 02 months from the date of accepting the case. Mediation is not a mandatory procedure for the appeal stage. The 2015 Civil Procedure Code has quite specific regulations on the order and procedures for resolving individual labor disputes according to the appeal procedure in Chapter XV to Chapter XVII.

• Procedures for reviewing judgments and decisions that have come into legal effect according to the procedures of cassation and retrial

To ensure that the Court's judgments are in accordance with the law and to protect the rights and interests of the parties, even though the Court's judgments and decisions have come into legal effect, they can still be reviewed according to the procedures of cassation and retrial.