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Comparing Vietnamese and Chinese laws on labor dispute resolution - 2

7. Thesis layout


In addition to the table of contents, introduction, conclusion and list of references, the main content of the thesis includes three chapters:

Chapter 1: Theoretical issues of labor dispute resolution and law on labor dispute resolution.

Chapter 2: Comparison of current laws on labor dispute resolution between Vietnam and China.

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Chapter 3: Directions and solutions to improve Vietnam's law on labor dispute resolution based on some experiences from China.

CHAPTER 1

Comparing Vietnamese and Chinese laws on labor dispute resolution - 2

THEORETICAL ISSUES ON DISPUTE RESOLUTION

LABOR AND LAW ON LABOR DISPUTE RESOLUTION


1.1. Theoretical issues on labor disputes


1.1.1. Concept of labor dispute


In the process of formation, operation and development of the market economy in countries, labor relations are basically established on the basis of freedom and voluntariness between the two parties, the employee and the employer. This is a mutually beneficial cooperative relationship aimed at achieving the interests of each party. However, in the process of implementing labor relations, the interests of the parties are both unified and contradictory. The unity is shown in the fact that they need each other to establish labor relations. Employees need jobs and wages to support themselves and their family members. Employers need the labor of employees to carry out the production and business process to create profits.

Besides, there are also inevitable disagreements and conflicts between them because their rights and interests are rarely consistent with each other. Employers are the ones who "buy labor", their primary goal is revenue and profit, so they not only consider and calculate the quality, price, exploitation period, and use of ordinary physical goods such as machinery, equipment, and raw materials, but also consider and calculate the efficiency of using labor to serve the production and business process. To make a profit, employers often exploit surplus value through the use of labor, so they always calculate how to increase productivity, time and intensity of work of workers, at the same time want to reduce costs for workers such as: wages, benefits, etc.

social benefits and other costs for working conditions such as: labor safety, labor hygiene... to maximize profits. On the other hand, to exercise their management rights, employers may commit acts that violate labor laws such as disciplinary action, requesting material compensation not in accordance with the law, violating the right to freedom of association, insulting the honor and dignity of employees... This is one of the causes leading to conflicts between parties in labor relations.

Meanwhile, workers are hired workers, "sellers of labor", so they always want their efforts to be paid high prices and always want to work in the best working conditions, get a raise, and reduce working hours. In labor relations, workers can also have acts that infringe upon the legitimate rights and interests of employers such as: acts of destroying machinery, equipment, and materials during the labor process, acts of disturbing order, violating company rules and regulations at the workplace, etc.

Thus, lack of sympathy and mutual understanding, acts that infringe on each other's interests or lack of restraint in the conduct of employees and employers can all be causes of conflicts in labor relations. These conflicts will inevitably lead to labor disputes.

It can be said that the market economy with the existence of many different types of markets (including the labor market) is the environment for forming, nurturing and developing the freedom of business and freedom of competition of the subjects in the relationship of buying and selling labor. However, the market economy with its harsh rules and negative aspects is also the place where conflicts and contradictions between employers and employees are hidden. In the reality of labor life, labor disputes do not arise due to the subjective will of any subject but are objective phenomena.

The more the market economy develops, the more complicated labor relations become, and labor disputes tend to increase.

The issue of resolving labor disputes is regulated in the laws of most countries in the world, but depending on the economic, political and social characteristics of each country, the concept of labor disputes is understood and defined differently. However, the concept of labor disputes is often understood in two basic ways as follows:

1) In a broad sense , a labor dispute is any dispute arising in the field of labor and employment. In this sense, a labor dispute is a rather broad and all-encompassing concept. All conflicts between employers and employees related to labor and employment relations are considered labor disputes.

2) In a narrow sense , labor disputes are disputes arising from labor contract relationships. In this understanding, labor disputes are limited to the scope of conflicts arising from labor contract relationships between employers and employees.

In general, countries around the world tend to understand labor disputes in a broad sense because understanding labor disputes in a broad sense has many more reasonable points. According to this understanding, labor disputes are a fairly broad concept, all conflicts between parties in labor relations and relations related to labor relations, associated with the labor use process are considered labor disputes.

The above understanding of labor disputes will also cover and handle all labor disputes that occur in reality, expand the scope and subjects of application of legal regulations on labor dispute resolution, and resolve practical issues relatively in line with the characteristics of labor relations.

arising in the field of labor relations. Thereby, contributing to effectively, quickly and flexibly resolving conflicts in labor relations, maintaining the sustainable development of the labor market, ensuring the legitimate and legal rights and interests of the parties in labor relations, contributing to social stability and promoting economic development of countries.

1.1.2. Characteristics of labor disputes


From the above understanding of the concept of labor disputes, it is possible to identify labor disputes with their own characteristics as a basis for distinguishing them from other types of disputes.

Firstly, labor disputes always arise, exist, and are associated with labor relations, meaning that they arise from the implementation of rights and obligations from the interests of the two parties in the labor relationship. However, it is necessary to note to distinguish between labor disputes and labor disputes. These are two different concepts. Labor disputes are always associated with the implementation of labor rights and obligations, while labor disputes can arise between two parties in the labor relationship but are not associated with the implementation of labor rights and obligations.

Second, labor disputes include not only disputes over the rights and obligations of the subjects but also disputes over the interests between the two subjects. That is, labor disputes can still arise in cases with or without violations of the law.

Third, labor disputes are the type of disputes in which the scale and level of participation of the subjects can fundamentally change the nature and level of the dispute.

Fourth, labor disputes are the type of disputes that have a direct and very large impact on the workers themselves and their families, and sometimes have a great impact on public security, economic and political life and the whole society.

1.1.3. Classification of labor disputes


The classification of labor disputes is very important. It will help us accurately determine the characteristics of each type of labor dispute in order to apply appropriate and effective resolution mechanisms, ensuring the legitimate rights and interests of the parties in labor relations.

Depending on conditions, circumstances and concepts, each country has different ways of classifying labor disputes and may not be divided into different types of labor disputes. The division of labor disputes is also based on different criteria. Specifically:

Labor laws in some countries such as France and England classify labor disputes based on the number of people involved in the dispute. Accordingly, labor disputes are divided into individual labor disputes and collective labor disputes. Individual labor disputes are disputes between employees and employers, collective labor disputes are disputes between groups of employees and employers. However, the concept of collective labor disputes has not been clearly defined in terms of quantity, such as in Vietnam, the determination of the number of participants to distinguish between individual labor disputes and collective labor disputes has not been specifically regulated. Some experts do not agree with this classification because they believe that relying only on the number of participants does not fully clarify the nature of each type of labor dispute, as well as leading to confusion in applying the order, procedures, and determining the competent authority to resolve labor disputes.

The Industrial Relations Act 1967 of Malaysia classifies labour disputes into labour disputes over rights and labour disputes over interests. Accordingly, labour disputes over rights are disputes over the implementation of legal provisions such as disputes over working hours per day, wages, etc.

Overtime wages, compulsory social insurance participation... Labor disputes over benefits are disputes in which employees request the establishment of new working conditions compared to the provisions of labor law, labor agreements, labor regulations registered with competent state agencies or other legal regulations and agreements in the enterprise during the negotiation process between the parties in the labor relationship.

Also discussing the classification of labor disputes, some other legal experts such as in France have proposed two different ways of distinguishing from the above methods. The first way: distinguishing between legal disputes (conflit juridique) which are disputes about the implementation of labor law provisions and non-legal disputes (conflit non juridique) which are disputes about issues that labor law does not regulate. The second way: distinguishing between justiciable disputes (conflit justiciable) which are disputes that can be arbitrated by competent authorities and non-justiciable disputes (conflit non justiciable) which are disputes that can be resolved by negotiation between the two disputing parties until an agreement is reached. Distinguishing in these two ways helps to clearly visualize some of the content of the dispute, and clearly orients the main resolution mechanisms.

In contrast to the above viewpoint, there are also some other countries that believe that labor disputes should not be classified but only one labor dispute resolution process should be applied. For special labor disputes, separate procedures will be applied. This will create conditions for the resolution of labor disputes to be flexible, agile, and quick. However, in reality, not classifying labor disputes into specific labor disputes will sometimes lead to disputes between competent authorities regarding the resolution of labor disputes.

1.2. Theoretical issues on labor dispute resolution


1.2.1. The role of labor dispute resolution


Labor dispute settlement is the process by which competent agencies and organizations carry out procedures to resolve and settle disputes arising in labor relations between individuals and groups of employees and employers, towards ending conflicts in labor relations, restoring the legitimate rights and interests of the subjects in the labor relations. This settlement can be self-mediated, negotiated by the parties themselves or with the intervention of another subject as a mediator or as a decision-making body on labor dispute settlement.

Regardless of the method used to resolve labor disputes, dispute resolution activities still play an important role in the labor process, which is shown in the following points:

Firstly, resolving labor disputes aims to maintain and strengthen labor relations, ensure stability in production, and settle conflicts between employees and employers.

Ensuring harmony and stability in labor relations is essential for the stability and development of enterprises. If the interests of the two parties in the labor relationship cannot be reconciled, it will lead to labor disputes, culminating in strikes. That will inevitably directly affect the harmony and stability of labor relations, affecting the development and stability of production. When a dispute occurs, the labor relationship is at risk of being terminated, leading to the situation where the employer will have to establish a new labor relationship. As for the needs of life for themselves and their families, the employee must also establish another labor relationship. Thus, both the employee and the employer will have to spend a certain amount of time. That harms the

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