Chapter 1
THEORETICAL BASIS AND CONTENT OF LABOR DISCIPLINE REGIME, MATERIAL RESPONSIBILITY IN VIETNAMESE LABOR LAW
1.1. THEORETICAL BASIS OF LABOR DISCIPLINE AND MATERIAL RESPONSIBILITY
1.1.1. Concept of labor discipline and material responsibility
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1.1.1.1. Labor discipline
According to the Vietnamese Dictionary of Words and Phrases, discipline is “the rules set by an organization that must be followed to maintain order” 3 . In an organization, all members are required to follow the organization’s rules and regulations to ensure the organization’s sustainability. In the social sphere, discipline is also the foundation for building society. Discipline in society regulates the relationships between people in daily life, such as in labor and production activities, in entertainment, etc.
ensure that these relationships are always maintained in a state of balance and stability. "Thanks to discipline, human activities are orderly and directed towards clear goals. That ensures the normal operation of social organizations" 4. Discipline in society is built on the basis of current social ethical standards, and is expressed in the form of legal regulations, regulations of organizations, village conventions, customs, etc. Discipline exists in forms such as: labor discipline, discipline of Party organizations, unions, etc. In labor relations, labor discipline is considered the totality of mandatory regulations for members participating in the labor process.
The nature of labor discipline is determined by the dominant production relations in society, first of all by the ownership relations of the means of production. Whenever the mode of social production changes, the nature and form of labor discipline also change. Under the primitive communist regime, self-awareness and equality were the rules of conduct in labor relations as well as in the distribution of products.
In slave societies, slave owners had unlimited power over their slaves and their families. The slaves themselves as well as all the fruits of their labor
All the goods produced were owned by the slave owners. Labor discipline was characterized by forced labor and cruel exploitation of slaves by slave owners.
In feudal society, landlords occupied most of the land, the peasants had no land, had to work for the landlords and were brutally exploited by rent and other forms of forced labor. "The labor discipline set by the landlords was very brutal, based on the discipline of whipping and brutally forcing the peasants to
people. This is the discipline of the whip, the most humiliating and tyrannical discipline, the most unreasonable, the most blatant and the most brutal to human beings” 5 .
In capitalist society, the bourgeoisie owns the main means of production of society. Workers do not have the means of production, they have to sell their labor power, they have to work for hire. “The bourgeoisie uses economic coercion, that is, using wages to coerce. Losing their jobs, not getting paid, workers will fall into a situation of homelessness, hunger, and cold. Labor discipline in capitalist society is a discipline built on hunger, a discipline called the discipline of free hire, a discipline that is actually the discipline of capitalist slavery” 6 .
Thus, in socio-economic forms with class antagonism, labor discipline always has a coercive nature, is contrary to the interests of workers and is used as a measure to increase exploitation. The ruling class uses labor discipline as a tool to force workers to use their labor to create benefits for the ruling class.
The birth of the socialist mode of production, along with it, was the birth and development of new labor discipline. Socialist labor discipline is voluntary labor discipline, a manifestation of socialist production relations and cooperative labor relations of workers. That production relation has created and encouraged voluntary, voluntary relationships with workers and considered labor as an obligation to society.
From a legal perspective, labor discipline is an element of labor law relations, an indispensable institution of the Labor Law.
As an element of labor law relations, labor discipline is a content of this relationship, because when employees start working in any employer, they must comply with labor discipline.
Employees must comply with labor regulations, technological processes, labor safety... as prescribed by law or as required by the unit. Employers have the right to require employees to comply with labor discipline and maintain labor discipline in the unit.
As a labor law institution, labor discipline is a synthesis of legal norms that stipulate the obligations and responsibilities of employees and employers towards enterprises, agencies and organizations; stipulate measures to encourage employees to comply with exemplary regulations as well as forms of handling for those who do not comply or do not fully comply with those obligations and responsibilities.
In an enterprise, labor discipline is "compliance with time, technology and production and business management as shown in the labor regulations" (Article 82 of the Labor Code). Labor discipline focuses on maintaining order and discipline in the enterprise's labor, including the following basic issues: working time and rest time; order in the enterprise; labor safety and hygiene in the workplace; protection of assets, technological and business secrets of the unit; violations of labor discipline, forms of labor discipline and material responsibility. Thus, in an enterprise, the employer, based on the provisions of labor law, builds models that employees must follow. When employees do not comply with those models, they will have to suffer certain legal consequences.
To clarify labor discipline, let us distinguish labor discipline in enterprises from administrative discipline applied to civil servants in state agencies (administrative discipline). The difference is shown in the following points:
Firstly, labor discipline is applied to employees who participate in wage labor relations. This relationship is established with the employer according to a labor contract. Administrative discipline is applied to officials and civil servants in state agencies. These people are recruited mainly by the form of recruitment into the payroll.
Second, labor discipline is only applied when employees exercise their labor rights and obligations during their working hours at the enterprise or at the request of the employer. Meanwhile, administrative discipline is applied in an unlimited space and time. Regardless of whether a civil servant commits an act of violating professional ethics and honor outside the scope of a state agency, outside working hours, in this locality or at any other location, they will be subject to disciplinary action.
Third, employees in labor relations are responsible to their employers for their disciplinary violations; in administrative discipline, officials and civil servants are responsible to the state and the agency, not to the manager.
Fourth, the person with the authority to make a decision on labor discipline is the employer, or a person authorized by the employer. In administrative discipline, the person making the disciplinary decision and the disciplined officer or civil servant have a subordinate relationship.
Fifth, in labor discipline, based on the provisions of labor law, employers specify the forms and levels of labor discipline in the labor regulations in accordance with the situation of the enterprise to apply when handling violations of labor discipline. In handling administrative discipline, the subjects do not have to specify the provisions of the law but apply the available regulations accurately. The same violation will be handled the same for anyone and in any space.
Labor discipline plays a very important role in labor production and in the whole society, so respecting and complying with labor discipline is the basic duty of workers. The State in general and employers in particular have used many different measures, some of which are educational, some of which are coercive, so that all workers comply with labor discipline in the enterprise.
1.1.1.2. Measures to ensure and enhance labor discipline
Measures to ensure and strengthen labor discipline are measures to make employees perform their duties well. In the labor-using unit, the following measures can be used:
- Persuasive education
Persuasive education is a measure to make workers understand the content, purpose and effects of labor discipline, thereby raising their sense of respect and voluntary compliance. The measure of education and persuasion is very suitable and effective in labor relations because labor relations are formed on the basis of free will of both parties; employers and employees freely agree on all issues related to rights and obligations on the basis of legal regulations. Education and persuasion make the parties in the labor relationship understand labor discipline and the parties will voluntarily commit to implementation. This measure is the most comprehensive measure, because other measures to ensure and strengthen discipline also aim at the common goal of educating all workers to comply with labor discipline.
- Social impact
Social impact is a measure to create public opinion and direct public opinion to condemn and criticize acts of violating labor discipline and express approval for good examples, typical individuals and groups. To implement this measure, it is necessary to make good implementation of the content of labor discipline a competitive standard in organizations and agencies in society, creating public opinion in support of good implementation of labor discipline. Social impact measures have both ethical and legal significance because compliance with labor discipline is not only a legal obligation but also a content of social ethics. As society develops more and more, the legal awareness of workers increases, the role of public opinion becomes more and more important in supporting legal measures.
- Encouragement and reward
Encouragement and reward is the employer's recognition of the achievements of some employees in fulfilling their labor obligations to encourage the positivity and self-awareness of all employees. Employers need to apply appropriate and timely forms of reward to turn reward into an effective measure in ensuring and enhancing labor discipline.
- Apply legal responsibility
Measures such as persuasive education, social influence, and encouragement and rewards play a very important role in ensuring and strengthening labor discipline. However, in some cases of labor discipline violations, these measures are not strong enough, and sanctions must be applied. The measures applied in such cases are legal responsibilities, including disciplinary responsibilities and material responsibilities. When employees disregard labor discipline and commit labor discipline violations, causing damage to the enterprise, the employer will apply disciplinary responsibilities to those who violate labor discipline, forcing employees to compensate for property damage caused. This measure is implemented to remind, punish or remove from the labor collective those who violate labor discipline depending on the severity of their violations, thereby ensuring discipline of the unit and social order.
The application of disciplinary responsibility and material responsibility are strong sanctions, of particular importance in ensuring and strengthening labor discipline in business-using units.
1.1.1.3. Responsibility for labor discipline
a) Concept
Disciplinary liability is a type of legal liability imposed by employers on employees who violate labor discipline by subjecting them to one of the forms of discipline prescribed by law.
Disciplinary responsibility has the following characteristics:
The subject responsible for discipline is always the employee. According to Article 6 of the Labor Code, employees in labor legal relations are Vietnamese citizens who are at least 15 years old, have labor legal capacity and labor conduct capacity and participate in labor relations. Employees under 15 years old may only perform jobs permitted by law, and must have the consent of their parents or legal guardians or sponsors. Foreign employees working in Vietnam must be at least 18 years old, have professional qualifications and health to perform the prescribed jobs, and have a work permit issued by a competent State agency. Responsibility
Labor discipline is only imposed on employees when they exercise their rights and obligations within the scope of labor relations.
The person with the authority to apply disciplinary responsibility is the employer. The employer has the right to decide to apply disciplinary measures to employees when they violate labor discipline. The decision to discipline employees must comply with the provisions of the law. In some cases, the employer may authorize another person to handle disciplinary action against employees.
The basis of labor discipline responsibility is labor discipline violations. These are acts that employees intentionally or unintentionally commit, violating the provisions of the enterprise's labor regulations, which must be subject to labor discipline according to regulations.
b) Basis for applying disciplinary responsibility
The basis for determining disciplinary responsibility is that there is a violation of labor discipline and fault.
- Violation of labor discipline: Violation of labor discipline is the first condition for the application of disciplinary responsibility. Violation of labor discipline is a violation of labor obligations. These obligations are mainly stipulated in labor regulations and in the direct management process of the employer. In reality, the labor obligations of each employee depend on the position of each person in the labor organization process, on the division of tasks of the employer and the provisions of law on different activities in society. Therefore, when determining this basis, the employer cannot generally conclude that the employee has violated labor discipline, but must clearly identify the violation. The employer needs to accurately determine which specific labor obligations there are in that labor relationship, which obligations they do not perform or perform incorrectly; Is the time of the violation within working hours; Is the location of the disciplinary violation within the scope where the employee is required to perform labor obligations? Labor discipline does not apply
applicable to violations beyond the scope of obligations required by the employer.
Violations of labor discipline are expressed in the form of action or inaction. In the form of action, violations of labor discipline are understood as employees performing tasks that are not allowed to be performed under labor regulations, or performing incorrectly as prescribed by labor regulations. In the form of inaction, violations of labor discipline by employees are understood as employees not performing labor obligations, actions that labor regulations require to be performed.
- Fault is the second basis for handling violations of labor discipline . Fault is a mandatory element for applying disciplinary responsibility. When there is no fault, even though there is a violation, it is not enough basis to apply labor discipline responsibility to the employee.
Fault is the psychological attitude of the employee towards the violation and the consequences of his/her violation. Fault is expressed in two forms, intentional and unintentional. Intentional fault is the fault of the violator when they are aware of the violation, the consequences of the violation and want to perform the act as well as achieve the consequences. Intentional fault is divided into two types: direct intentional fault and indirect intentional fault. Unintentional fault is divided into two types: unintentional due to carelessness and unintentional due to overconfidence. Unintentional due to carelessness is the fault of a person who, due to carelessness, does not foresee that his/her act is a violation and the consequences of that act, although he/she should have foreseen and could have foreseen. Unintentional due to overconfidence is the fault of a violator when he/she is aware of the violation, the possible consequences, he/she does not want to achieve those consequences but still commits the violation because he/she believes that the consequences will not occur.
Fault is one of the bases for employers to apply appropriate disciplinary measures. According to Article 87 of the Labor Code, when handling labor discipline, employers must prove the employee's fault. In addition, when handling labor discipline, employers must consider the severity of the fault, intentional or unintentional; specific circumstances to choose the appropriate disciplinary measure.