The nature of labour relations is an agreement between employees and employers based on equality, voluntariness, and mutual respect. Therefore, once a dispute arises between the parties, the law allows employees to strike.
However, many employees still do not thoroughly understand the legal regulations, which leads to many illegal (wildcat) strikes and seriously affects the legitimate rights and interests of employees themselves. Therefore, in this article, PL & Partners Law Firm would like to introduce the provisions on a lawful strike. Please read the below for more.
1. WHAT IS A STRIKE?
The concept of a strike is specified in Article 198 of the Labor Code 2019 as follows:
“A strike is a temporary, voluntary, and organized stoppage of work by employees in order to achieve their requirements in the process of settling labor disputes. It is organized and led by the employees’ representative organization which has the collective bargaining rights and is a party to collective labor disputes.”
2. REGULATIONS CONCERNING A LAWFUL STRIKE?
For a strike to be considered lawful, the following conditions must be met:
2.1. Employees are entitled to go on strike.
The first condition for a strike to be considered lawful is to fall into one of the cases where the law allows employees to strike. Article 199 of the Labor Code 2019 provides for 02 cases where employees are eligible for strike as follows:
- Case 1: The conciliation is unsuccessful or within 05 working days from the date the labor mediator receives the request from the party that requested dispute resolution or from the competent authority but does not conduct the conciliation;
- Case 2: The Labor Arbitration Board is not established or established but does not issue a dispute settlement decision or the employer who is the party to the dispute fails to implement the dispute settlement decision of the Labor Arbitration Board.
2.2. The strike is organized and led by a competent organization.
A strike is only lawful if it is organized and led by the employees’ representative organization which has the collective bargaining rights and is a party to the collective labor dispute. Specifically:
- Where there is a grassroots trade union, the strike must be organized and led by the Executive Committee of Grassroots Trade Union.
- Where there is no grassroots trade union, the strike shall be organized and led by the superior trade union at the request of the employees.
2.3. The strike complies with the statutory sequence.
The sequence is specified in Articles 200, 201, and 202 of the Labor Code 2019 as follows:
Step 1: Carry out a poll.
Before conducting a strike, the employees’ representative organization having the right to organize and lead the strike is liable for collecting the opinions of all employees or members of the board of the employees’ representative organizations that participate in the negotiations. The content and form of the poll are specified in Article 201 of the Labor Code 2019.
Step 2: Issue a written decision and announce the strike.
When more than 50% of the people polled agree with the content of the strike, the employees’ representative organization shall issue a decision to strike in writing according to the provisions of Article 202 of the Labor Code 2019.
At least 05 working days before the start date of the strike, the employees’ representative organization that organizes and leads the strike must send a written notice of the decision to:
- People’s Committees of districts;
- Specialized labor agency under the provincial People’s Committee.
Step 3: Go on strike.
By the time the strike shall begin, if the employer still does not accept the employee’s request, the employee’s representative organization shall organize and lead the strike.
2.4. Do not go on strike at places where strikes are not allowed.
Do not strike at workplaces where the strike may threaten national defense, security, public order, and human health.
The list of places where strikes are not allowed is specifically listed in Appendix VI of Decree no.145/2020/ND-CP.
2.5. Do not go on strike at the time the collective labor dispute is being resolved by a competent authority, organization or individual.
2.6. Do not strike when there has been a decision to postpone or stop the strike issued by the competent authority.
Thus, when the above 6 conditions are met, a strike is considered lawful. Failure to meet any of the above conditions is considered an illegal strike, then, the employees participating in the strike will not be paid wages for the days they go on strike and may be subject to disciplinary action. The employer may be compensated for the damage caused by them (if any). Therefore, employees should pay close attention to the above conditions to protect their legitimate rights and benefits.
PL AND PARTNERS LAW FIRM
Headquarters: 46th Floor, Bitexco Financial Tower, No. 2 Hai Trieu, Ben Nghe Ward, District 1, Ho Chi Minh City, Vietnam
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The article is based on the current legal regulations at the time of writing, and it may no longer be valid or relevant at the time you are reading it due to changes of the law. The article, therefore, is seen as reference only.