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The Government
Pursuant to the Law on Organization of the
Government dated 25 December 2001;
Pursuant to the Labour Code dated 23 June 1994 and the Law on
Amendment of the Labour Code dated 29 November 2006;
On the proposal of the Minister of Labour, War Invalids and Social
Affairs;
Decrees:
CHAPTER I
General Provisions
Article 1 Governing scope
This Decree regulates liability to compensate for loss, the amount
of compensation and the forms for making compensation for loss by
organizations and individuals participating in a strike causing loss
to the employer, where the People's Court declares such strike to be
illegal pursuant to article 179.1 of the Labour Code as amended by
the Law on Amendment of the Labour Code dated 29 November 2006
(hereinafter abbreviated to the Labour Code).
Compensation to an employer for loss and damage to assets as
stipulated in article 179.2 of the Labour Code shall be regulated by
the provisions of the Civil Code on damages for non-contractual
loss.
Article 2 Applicable entities [shall be]:
1. The trade union, the labour collective representatives, and
employees participating in a strike causing loss to the employer
where the People's Court declares such strike to be illegal.
2. The employer.
Article 3 Principles for payment of compensation:
1. The loss must be fully and promptly compensated for, in
accordance with the demand.
2. The amount of compensation must be fixed on the basis of the
actual material loss.
3. The right of the parties to reach their own agreement with each
other must be respected, and the parties shall be encouraged to
exercise such right.
4. The lawful rights and interests of the employer and of the
employees must be ensured, in order to maintain and develop the
labour relationship at the enterprise.
5. Compensation may be made in money, in kind, or by performing
items of work.
CHAPTER II
Provisions on Compensation for Loss
Article 4 Liability to compensate for loss
1. If the trade union at the enterprise lead the strike which the
People's Court declares to be illegal, and if the strike caused loss
to the employer, then the such trade union shall be liable to
compensate for the loss.
2. If the labour collective representatives lead the strike which
the People's Court declares to be illegal, and if the strike caused
loss to the employer, then the persons appointed to act as labour
collective representatives and the employees who participated in the
strike shall be severally liable1 to discharge the obligation of
compensating for loss caused to the employer.
Article 5 Demand for payment of compensation
1. An employer shall have the right to demand that the trade union
as stipulated in article 4.1 of this Decree, or the labour
collective representatives and the employees who participated in the
strike as stipulated in article 4.2 of this Decree, compensate for
loss caused by an illegal strike. The time-limit for making such a
demand shall be one year as from the date of effectiveness of the
decision of the Court declaring that the strike was illegal.
2. A demand for compensation for loss must be in writing and must
contain the following main particulars:
(a) The value of the loss and evidence proving such value;
(b) The amount demanded as compensation;
(c) The method of making compensation;
(d) The period within which compensation must be made.
3. The written demand for compensation and other relevant data shall
be sent to the trade union or to the labour collective
representatives who lead the strike, and at the same time shall be
sent to the Department of Labour, War Invalids and Social Affairs,
and to the provincial trade union confederation in the place where
the strike took place.
Article 6 Determining loss to be compensated
Loss caused by an illegal strike shall comprise assets of the
enterprise which were directly lost or damaged due to suspension of
production [and/or] business2 because of the strike. If the two
parties are unable to reach agreement on the value of the loss, then
they shall have the right to request an intermediary organization to
fix the value of the loss. The costs of such assessment shall be
paid by the party making the request for the assessment.
Article 7 Amount of the demand for compensation
The amount of the demand for compensation for loss shall be
calculated on the basis of the determination of loss made in
accordance with article 6 of this Decree. The maximum amount of
compensation for loss shall not exceed three (3) consecutive months'
salary prior to the date on which the strike took place, calculated
in accordance with labour contracts of the employees who
participated in the strike.
Article 8 Conducting a negotiation at the enterprise on the amount
of compensation for loss
1. The representative of the executive committee of the trade union
of the enterprise or the labour
collective representatives shall, within a time-limit of ten (10)
days as from the date of receipt of the demand for compensation,
have the right to require the employer to conduct a negotiation on
the issue of compensation for loss.
2. The request to conduct a negotiation shall be made in writing,
must specify the time and location of the negotiation, and shall be
sent to the employer, to the Department of Labour, War Invalids and
Social Affairs, and to the provincial trade union confederation.
3. Within a time-limit of three (3) days from the date of receipt of
the request to conduct a negotiation, the employer must conduct a
negotiating session with the representative of the executive
committee of the trade union of the enterprise or the labour
collective representatives. If the employer is unable to arrange a
negotiation, the employer must provide a written rely explaining the
reasons, and the employer shall be responsible to fix a subsequent
time for holding the negotiating session.
4. The two parties shall have the right to invite representatives of
the State administrative body for labour, of local trade unions, and
of local employers to participate in the negotiating session. The
entire contents of the negotiating session must be recorded in
minutes.
5. If the two parties reach agreement on the amount of compensation
and the method for making compensation for loss, then they shall be
responsible to implement such agreement unless they agree on some
other arrangement. The minutes of the negotiating session shall be
the legal basis for determining the rights and obligations of the
relevant parties liable to make payment of
compensation for loss.
Article 9 Instituting proceedings claiming compensation for loss
The employer shall have the right to institute proceedings claiming
compensation for loss at the district level People's Court in the
district where the strike took place, in the following
circumstances:
1. The representative of the employees refused to negotiate.
2. A negotiation took place but was unsuccessful.
3. The party liable to make compensation [pursuant to an agreement
reached between the parties at the negotiation] failed to correctly
implement the agreement and undertaking on making compensation for
loss.
Article 10 Paying compensation for loss
1. In a case where the trade union at the enterprise which lead the
strike which the People's Court declares to be illegal must pay
compensation for loss to the employer, then the funding source for
such payment shall be taken from assets of the trade union at the
enterprise in accordance with guidelines of the Ministry of Finance.
2. In a case where the labour collective representatives who lead
the strike which the People's Court declares to be illegal must pay
compensation for loss to the employer, then the labour collective
representatives and the employees who participated in the strike
shall be severally liable for the loss caused to the employer.
In the case of employees who participated in the strike,
compensation for loss shall be gradually deducted from their monthly
salary. The maximum amount of any one deduction shall be thirty per
cent (30%) of the monthly salary stipulated in the labour contract
of the employee.
In a case where an employee terminates his or her labour
relationship prior to complete discharge of his or her obligation to
pay compensation, then the residual amount owing shall be deemed to
be a debt of such employee owing to the employer.
CHAPTER III
Implementing Provisions
Article 11 Implementing provision
This Decree shall be of full force and effect after fifteen (15)
days from the date of its publication in the Official Gazette.
Article 12 Responsibility for implementation
1. The Ministry of Labour, War Invalids and Social Affairs shall
co-ordinate with the relevant agencies and organizations to provide
guidelines for implementation of this Decree.
2. Ministers, heads of ministerial equivalent bodies, heads of
Government bodies, chairmen of people's committees of provinces and
cities under central authority, and organizations and individuals
concerned shall be responsible for implementation of this Decree.
For the Government
Prime Minister of the Government
NGUYEN TAN DUNG
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