What is a labor dispute? How to resolve individual labor disputes?

1. What is a labor dispute?

According to Clause 1, Article 179 of the 2019 Labor Code: Labor disputes are disputes over 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.

2. Types of labor disputes

Clause 2, Article 179 of the 2019 Labor Code stipulates types of labor disputes, including:

(1) Individual labor disputes between:

- Employees with employers;

- Employees with businesses and organizations sending employees to work abroad under contract;

- Rehired workers with rehiring employers.

(2) Collective labor disputes over rights or interests between one or more organizations representing employees and the employer or one or more organizations of employers.

3. Authority and measures to resolve individual labor disputes

Pursuant to Article 187 of the 2019 Labor Code, agencies, organizations and individuals with the authority to resolve individual labor disputes include:

- Labor mediator;

- Labor arbitration council;

- People's Court.

(1) Labor mediator

Individuals must negotiate and reconcile with a Labor Mediator before requesting a settlement from the Labor Arbitration Council or the Court, except for the following labor disputes that are not required to go through the following mediation procedures:

+ Regarding labor discipline in the form of dismissal or unilateral termination of labor contracts;

+ Regarding compensation for damages and benefits 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, regarding 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.

- Within 05 working days from the date the labor conciliator receives a request from the party requesting dispute resolution or from the specialized labor agency under the People's Committee, the labor conciliator must complete the conciliation.

- Labor mediators are responsible for guiding and supporting the negotiating parties to resolve disputes.

+ In case the parties reach an agreement, the labor conciliator shall draw up a record of successful conciliation. The record of successful conciliation must be signed by the disputing parties and the labor conciliator.

+ In case the parties cannot reach an agreement, the labor conciliator shall propose a conciliation plan for the parties to consider. In case the parties accept the conciliation plan, the labor conciliator shall draw up a record of successful conciliation. The record of successful conciliation must be signed by the disputing parties and the labor conciliator.

+ In case the conciliation plan is not accepted or a disputing party has been duly summoned for the second time but is still absent without a valid reason, the labor conciliator shall draw up a record of unsuccessful conciliation. The record of unsuccessful conciliation must be signed by the disputing party present and the labor conciliator.

+ In case one of the parties does not implement the agreements in the successful conciliation minutes, the other party has the right to request the Labor Arbitration Council or the Court to resolve the matter.

- When the dispute is not required to go through the conciliation procedure or the conciliation period mentioned above has expired but the labor conciliator does not conduct conciliation or the conciliation fails, the disputing parties have the right to choose one of the following methods to resolve the dispute:

+ Request the Labor Arbitration Council to resolve according to the provisions of Article 189 of the 2019 Labor Code;

+ Request the Court to resolve.

(Based on Article 188 of the 2019 Labor Code).

(2) Labor arbitration council

The parties may request resolution of competent agencies, organizations and individuals as the Labor Arbitration Council.

The provisions on the settlement of individual labor disputes of the Labor Arbitration Council are stipulated in Article 189 of the 2019 Labor Code, accordingly:

- On the basis of consensus, the disputing parties have the right to request the Labor Arbitration Council to resolve the dispute in cases where it is not mandatory to go through the conciliation procedure, the conciliation period has expired or the conciliation is unsuccessful. When requesting the Labor Arbitration Council to resolve the dispute, the parties may not simultaneously request the Court to resolve it.

(Except in the case where the Labor Arbitration Board is not established after 07 working days from the date of receipt of the request to resolve the dispute, or the Labor Arbitration Board is not established after 30 days from the date of establishment of the Labor Arbitration Board, the parties have the right to request the Court to resolve the dispute).

- In case one of the parties does not comply with the decision of the Labor Arbitration Board to resolve the dispute, the parties have the right to request the Court to resolve the matter.

(3) People's Court

According to the above provisions, the People's Court has the authority to resolve labor disputes. when requested by the parties in case:

Reconciliation phase:

- When the dispute is not required to go through the mediation procedure;

- After 05 working days from the date the labor conciliator receives the request from the party requesting dispute resolution or from the specialized labor agency under the People's Committee, the labor conciliator does not conduct conciliation;

- In case of unsuccessful conciliation.

Stages requested to be resolved by the Labor Arbitration Council:

- After 07 working days from the date of receipt of the request for dispute resolution, the Labor Arbitration Board is not established;

- After 30 days from the date the Labor Arbitration Board was established, the Labor Arbitration Board has not issued a decision to resolve the dispute.

- When one of the parties does not enforce the dispute resolution decision of the Labor Arbitration Board.