The decree consists of 35 articles and 8 chapters with the guiding viewpoint that the State encourages and creates favorable conditions for people with disabilities to exercise their political, economic, cultural and social rights equally and to promote their abilities to stabilize their lives, integrate into the community and participate in social activities.
The Ordinance is also the legal basis and principles for the Government, Ministries and branches to include issues related to people with disabilities in specialized laws to submit to the National Assembly for approval, at the same time develop and promulgate policies, programs and projects to help people with disabilities integrate into the community, and mobilize international and domestic resources to effectively assist people with disabilities.
In the field of employment, the 1994 Labor Code (amended and supplemented in 2002, 2006, 2007) has a separate section on disabled workers; the 2007 Law on Vocational Training has 1 chapter and 5 articles detailing vocational training for the disabled; the 2005 Law on Education does not have a separate chapter on students and teachers with disabilities, but has up to 8 articles regulating education for students with disabilities. In addition, there are:
+ Decree No. 116/2004/ND-CP dated April 23, 2004 amending and supplementing a number of articles of Decree No. 81/CP of the Government detailing and guiding the implementation of a number of articles of the Labor Code on disabled workers;
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+ Directive No. 01/2006/CT-TTg dated January 9, 2006 of the Prime Minister on promoting the implementation of policies to support people with disabilities in the current economic and social development situation.
+ Decision No. 239/2006/QD-TTg dated October 24, 2006 of the Prime Minister on approving the Project to support people with disabilities for the period 2006-2010.
General assessment of the effectiveness of law enforcement on employment for people with disabilities during this period shows that in addition to recognizing the right to
The employment of people with disabilities is specifically reflected in the legal regulations as mentioned above. In reality, there are still many people with disabilities who are unemployed. This can be a great burden for families and society, because people with disabilities depend on their families and therefore cannot avoid poverty, requiring government subsidies.
According to the survey results of people with disabilities by the Ministry of Labor, War Invalids and Social Affairs, among people with disabilities aged 15 and over, only 29% of people with disabilities answered that they are capable of working, of which nearly 75% participate in economic activities, however, only 47.5% have enough jobs, 37.2% are underemployed and 15.3% are unemployed. By the 2008 survey, over 50% of people with disabilities of working age had jobs, mainly working in the agricultural sector (over 70%). Implementing policies and solutions to create jobs for people with disabilities, the country currently has more than 400 production and business establishments of war invalids and people with disabilities, creating stable jobs for 15,000 workers with disabilities, about 65% of households with people with disabilities enjoy policies to support production development, such as: tax exemption and reduction, preferential credit support, support for production land... However, the majority of people with disabilities have unstable jobs, mainly self-employment, working in organizations and humanitarian and charitable establishments. Very few people find jobs and work stably in agencies, organizations and enterprises. [8]
The income of those who are employed is also very low, lower than the minimum wage, the majority of whom work in agriculture, where income is lowest. Through these figures, it can be seen that the issue of employment and income for people with disabilities is a pressing issue that needs attention.
The 2009 Census data shows marked differences in labour force participation and employment of people with disabilities compared to the general population.
people without disabilities. People with disabilities have lower labor force participation rates and higher unemployment rates in both rural and urban areas than people without disabilities. The more severe the disability, the lower the labor force participation rate and the higher the unemployment rate. The labor force participation rates of people with disabilities and people without disabilities are 82.7%, 72%, and 25.3%, respectively. The unemployment rates of these groups in urban areas are 4.3% and 13.9%, respectively.[53]
This comes from a number of reasons such as:
Regarding working conditions , the Ordinance on the Disabled does not specify specific responsibilities for state agencies, social organizations and economic organizations in recruiting the disabled. This Ordinance only stipulates: “Administrative and public service agencies shall not refuse to employ a disabled person when that disabled person meets the qualifications to be recruited for a suitable job for which the agency has a recruitment need .” The State has not paid attention to public employment service organizations established by state agencies that can provide free employment services to the disabled. [32]
The Labor Code issued in 1994 also stipulated a minimum quota for recruiting disabled people to work, but its implementation has not been serious and many businesses have recommended that this provision should be removed. In fact, many countries in the world have stipulated this provision and implemented it quite well. Our country should not abandon this provision because of the current temporary economic downturn as recommended by businesses.
The provisions on recruitment and employment of people with disabilities are too general and employers have to comply with the provisions of the Labor Code, and other specific provisions related to people with disabilities. However, the Labor Code of this period also has 4 provisions related to people with disabilities and employers, namely: provisions on the rights of people with disabilities
disabled people to work, health and work capacity rehabilitation, vocational training and low-interest loans. The Labor Code also addresses the issue of working hours for people with disabilities, and prohibits the recruitment of people with disabilities to do dangerous jobs or work in toxic environments. “People with disabilities shall not work more than 7 hours/day”. This regulation has made it difficult for manufacturing enterprises to arrange suitable jobs for people with disabilities, and people with disabilities do not have many options to work on production lines because managers can only assign work for 7 hours/day and do not affect the production line. Moreover, the jobs that people with disabilities can do are domestic helpers, which do not require high skills like those participating in the labor market.
The legal texts do not contain any provisions relating to working conditions, conditions and accessibility of the workplace or suitable conditions. The implementation of the Labor Code also clearly shows some weaknesses, causing obstacles and discouraging people with disabilities to work.
Regarding vocational training, the Government does not provide adequate vocational training for people with disabilities to improve their quality and skills in the labor market. According to the 2002 Labor and Employment Department's Assessment of the implementation of the Labor Code, 97.6% of people with disabilities do not have vocational knowledge and those with knowledge are mainly concentrated in urban areas.
c. Period from 2010 to present
Pursuant to Directive No. 01/2006/CT-TTg dated January 9, 2006 of the Prime Minister on promoting the implementation of policies to support people with disabilities, the Project to support people with disabilities for the period 2006-2010 was submitted and following that, the Prime Minister issued Decision No. 239/2006/QD-TTg of the Prime Minister dated October 24, 2006 approving the Project to support people with disabilities for the period 2006-2010.
On July 22, 2007, Vietnam signed the Convention on the Rights of Persons with Disabilities. This is the most comprehensive international convention on persons with disabilities. Although the signing has not yet created rights and obligations for the country, as a premise for the official ratification of the convention (Vietnam ratified the convention in 2014), our country has compared the system of domestic legal documents with the international convention on the rights of persons with disabilities and the experiences of a number of countries. The comparison results show that Vietnam's current legal system is relatively similar to the convention. However, there is a difference that in all countries, it is included in the Law, but in Vietnam, it is mainly regulated by sub-law documents, or is being implemented in the form of policies, programs, projects, and proposals. Although those policies have been implemented relatively stably and for a long time. In order to comply with the provisions of the International Convention, it is also necessary to study the sub-law provisions that have been implemented stably and are still suitable to upgrade the provisions to a higher legal level.
In addition, the international community's approach to the issue of people with disabilities from the perspective of human rights and the signing of the International Convention on the Rights of Persons with Disabilities has changed not only the quantity but also the quality of the perception of many different subjects in Vietnamese society about people with disabilities. In other words, instead of approaching people with disabilities only from the outside, we have gradually had an approach from the inside, from people with disabilities themselves with their own desires, needs, emotions... and of course in specific economic and social conditions.
From those objective and subjective factors, at the 7th session on June 17, 2010, the 12th National Assembly of the Socialist Republic of Vietnam passed the Law on Persons with Disabilities, contributing to further perfecting the policy system for persons with disabilities.
After the Law was passed, the Ministry of Labor, War Invalids and Social Affairs presided over the drafting and submission to the Government for promulgation of Decree No. 28/2012/ND-CP detailing and guiding the implementation of a number of articles of the Law on Persons with Disabilities, as a basis for relevant ministries and branches to develop and promulgate documents guiding the implementation of the Law; at the same time presided over the drafting and submission to the Prime Minister for promulgation of Decision No. 1019/QD-TTg dated August 5, 2012 of the Prime Minister approving the Project on supporting persons with disabilities for the period 2012-2020; Decision No. 1215/QD-TTg dated July 22, 2011 of the Prime Minister approving the Project on social assistance and community-based rehabilitation for mentally ill and mentally disturbed people for the period 2012-2020.
On education for people with disabilities: Decree No. 75/2006/ND-CP guiding the implementation of a number of articles of the Law on Education; guiding the National Target Program on Education and Training until 2010.
On labor and vocational training for people with disabilities: The Government issued Decree 116/2004/ND-CP dated April 23, 2004 amending and supplementing a number of articles of Decree No. 81/CP dated November 23, 1995 of the Government detailing and guiding the implementation of a number of articles of the Labor Code on laborers with disabilities. The Ministry of Labor, War Invalids and Social Affairs, the Ministry of Finance and the Ministry of Planning and Investment issued Joint Circular No. 19/2005/TTLT/BLDTBXH-BTC-BKHĐT dated May 19, 2005 guiding the implementation of Decree No. 81/CP dated November 23, 1995 and Decree No. 116/2004/ND-CP dated April 23, 2004 amending and supplementing a number of articles of Decree No. 81/CP of the Government detailing and implementing a number of articles of the Labor Code on disabled workers, including regulations on the establishment, management and use of the Employment Fund for the disabled in provinces and centrally run cities; Regimes for disabled workers; Policies for training establishments.
Occupations reserved for people with disabilities; Policies for production and business establishments reserved for people with disabilities; Rights and obligations of vocational training establishments and enterprises accepting people with disabilities for vocational training and employment; Guidelines for implementing funding to support short-term vocational training for people with disabilities from the national target program on education and training.
At the 8th session of the 13th National Assembly, the Convention on Persons with Disabilities was ratified (October 2014). From a legal perspective, this poses certain advantages, difficulties and challenges in reviewing the domestic legal system on persons with disabilities, moving towards internalizing the provisions of the convention.
In short, from the 1998 Ordinance on Persons with Disabilities to the 2010 Law on Persons with Disabilities that replaced it, from the signing of the Convention on Persons with Disabilities to the ratification of the Convention, is evidence of a major and quite fundamental shift in the awareness and practical actions of the Vietnamese State and society towards the issue of persons with disabilities. That is, a shift from the way of thinking about the issue of persons with disabilities as a humanitarian and charitable matter to thinking about persons with disabilities on the basis of human rights. The process of summarizing and evaluating the regulations and practices of implementing the 1998 Ordinance on Persons with Disabilities to develop and promulgate the 2010 Law on Persons with Disabilities also clearly demonstrates the process of reviewing and evaluating the system of regulations related to persons with disabilities [54]. At that time, the competent state agency had an official report summarizing the implementation of the Ordinance on Persons with Disabilities as a basis for research to determine the content of legal policies in the field of persons with disabilities in general and the development of the Law on Persons with Disabilities in particular [5]. Therefore, it can be said that although the Convention has not been ratified, in the spirit of being a signatory country to the Convention, Vietnam's 2010 Law on Persons with Disabilities is basically assessed as being quite compatible with the Convention on the Rights of Persons with Disabilities.
However, from law-making to practical implementation of the Law on Persons with Disabilities, although Vietnam has made much progress compared to the previous period, there are still limitations and shortcomings that need to be overcome. In response to the current requirement to ratify the Convention, reviewing the legal system, comparing the Convention with Vietnamese law is an important task that needs to be carried out seriously and urgently. The results of this work are a positive preparation step, deciding on the ratification to become an official member of the Convention. The review needs to ensure the comprehensiveness and completeness of the rights of persons with disabilities in all areas as prescribed by the Convention, taking the 2010 Law on Persons with Disabilities as the center (common law) and at the same time ensuring consistency with the content, words and spirit, and ideology of the 2013 Constitution of the Socialist Republic of Vietnam. [19]
2.2. Current status of employment law for people with disabilities in Vietnam
2.2.1. Recruitment of disabled workers
The Labor Code of the Socialist Republic of Vietnam, amended and supplemented in 2012, affirms: “The State protects the right to work and self-employment of workers with disabilities, and has policies to encourage and provide incentives for employers to create jobs and employ workers with disabilities, in accordance with the provisions of the Law on People with Disabilities” (Clause 1, Article 176). The right to work of workers with disabilities is a premise to create opportunities and motivation for people with disabilities to find jobs, have the opportunity to assert themselves, be independent in life, and generate income so as not to have to rely on family and relatives.
Recruitment is the most difficult step for people with disabilities to access employment. In this stage, the most important principle is the principle of prohibiting discrimination in recruitment. This principle has been internalized in Vietnamese law in Clause 1, Article 14 of the Law on People with Disabilities, and accordingly, "Discrimination against people with disabilities is the act of shunning, refusing, mistreating, defaming, or