Principle of Gender Equality in Labor Law:

Convention No. 111 also stipulates that “Each Member State to which this Convention is in force shall adopt, in accordance with its national circumstances and practice, measures to enact laws and promote educational programs that accept and apply that policy; to repeal any legal provisions and to amend any directives or administrative procedures inconsistent with that policy” (Article 3 of Convention No. 111). To implement these International Conventions and fulfill its obligations as a member of the Convention, Vietnam has internalized the provisions of those International Conventions into domestic legal norms, as reflected in the 2006 Law on Gender Equality; the 1994 Labor Code amended and supplemented in 2002, 2006, 2007 and now the 2012 Labor Code.

The internalization of international legal regulations is also the basis for Vietnam to perfect its labor law system on gender equality. If this work is done well, it will contribute significantly to the comprehensive development of the country, enhancing Vietnam's position in the international arena in the current regional and world context.

1.3. Principle of gender equality in Labor Law:

The principle of gender equality in labor law is the concretization of the Constitutional principle on gender equality, reflecting the Party and State's concept and policy on gender equality, and at the same time being consistent with the principles in the CEDAW Convention, which are the main ideas throughout the process of building and implementing the Labor Code. The issue of gender equality in labor law is built on the following four basic principles:

First: The principle of comprehensive gender equality

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Comprehensive gender equality is gender equality in all areas of social life in general and in the field of labor law in particular. Article 63 of the 1992 Constitution stipulates: “Female and male citizens have equal rights in all aspects of politics, economy, culture, society and family”. Thus, whether women or men

Men are treated equally in all aspects, including the field of labor.

Based on the above ideas, the issue of gender equality has been recognized in the Labor Code in all areas such as employment, vocational training; In the field of entering into, implementing and terminating labor contracts; Gender equality in working hours, rest hours; Labor safety and hygiene; Wages; Social insurance and labor discipline... This is demonstrated through the Labor Code stipulating the responsibility of the State in ensuring the principle of gender equality (Article 7 of the Labor Code) and the obligations of employers towards female employees "Ensure gender equality and measures to promote gender equality in recruitment, employment, training, working hours, rest hours, wages and other regimes" (Article 154 of the Labor Code).

This principle is fully consistent with the CEDAW Convention “States Parties shall take all appropriate measures, including legislation, in all fields, in particular in the political, social, economic and cultural fields, to ensure the full development and advancement of women, for the purpose of ensuring them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men” (Article 3 of the CEDAW Convention).

Second: The principle that male and female workers are not discriminated against based on gender.

Gender discrimination between male and female workers means that male and female workers have equal positions and roles, are given equal conditions and opportunities to develop their abilities in the field of labor, and enjoy the same benefits from their labor.

The Labor Code stipulates the State's responsibilities and the obligations of employers in ensuring that male and female workers are not discriminated against.

Employers must ensure gender equality in recruitment, employment, training, working hours, rest hours, wages and other regimes (Clause 1, Article 154 of the Labor Code); Employers must ensure equal wages, without gender discrimination, for employees doing work of equal value (Clause 3, Article 90 of the Labor Code); The State is responsible for ensuring the equal right to work for female employees (Clause 1, Article 153)...

This principle is reflected in the neutral provisions of the Labor Code, which apply equally to both male and female workers.

Third: The principle that measures to promote gender equality are not considered gender discrimination.

Measures to promote gender equality are measures to ensure real gender equality. When there is a large difference between male and female workers in terms of position, role, conditions, opportunities to develop labor capacity and enjoy the fruits of labor, and the application of the same regulations between male and female workers does not reduce this difference, the State will prescribe measures to promote gender equality. These measures are implemented for a certain period of time and end when the goal of gender equality has been achieved, when there is sufficient basis to determine that the economic, cultural, and social conditions that create a large difference between male and female workers have changed, leading to the implementation of measures to promote gender equality no longer being necessary.

Measures to promote gender equality are special and temporary measures. The special nature is reflected in the fact that they are only applied to one gender, not equally to both genders. The temporary nature is reflected in the fact that they are only applied in certain cases where there is a huge difference in the position and role of male and female workers, and when the goal of gender equality has been achieved, this measure will also end. Therefore, when applying this measure

The implementation must be regularly reviewed and the results achieved assessed. Once gender equality has been achieved, this measure must be stopped immediately.

Because female workers are different from men in terms of psychology and physiology, and at the same time have to take care of children and do housework, in the field of labor, female workers are somewhat disadvantaged. Therefore, it is not enough to only ensure that male and female workers are not discriminated against, but there must be measures to promote gender equality to achieve real gender equality.

The Labor Code has recognized a number of measures to promote gender equality such as: Encouraging employers to create conditions for female workers to have regular jobs, widely applying flexible working schedules, part-time work, and assigning work at home (Clause 2, Article 153 of the Labor Code); Having a tax reduction policy for employers who employ many female workers according to the provisions of the law on tax; Expanding many types of training to facilitate female workers to have additional backup jobs and suitable for the physical, physiological characteristics and motherhood functions of women (Clause 4, Clause 5, Article 153 of the Labor Code); The Labor Code stipulates jobs that cannot employ female workers (Article 160 of the Labor Code)...

Compared with the CEDAW Convention, it can be seen that this principle is consistent with the provision that “The adoption by States Parties of temporary special measures to accelerate de facto equality between men and women shall not be considered discrimination within the meaning of the Convention, but shall not thereby constitute the maintenance of unequal or separate standards. Such measures shall cease when the objectives of equality of opportunity and treatment have been achieved” (Clause 1, Article 4 of the CEDAW Convention).

Fourth: The policy principle of protecting and supporting female workers during pregnancy, childbirth, and child rearing is not considered gender discrimination.

Women have their own biological characteristics, and their gender gives them the role of motherhood. Policies to protect and support female workers during pregnancy, childbirth, and child rearing are provisions of the Labor Code specifically for pregnant and child rearing female workers to protect children and women during the period when women perform their noble function - social reproduction.

During the period when female workers are pregnant, give birth, or raise small children, women need to be protected in terms of health, employment, and working conditions more than ever. Therefore, the Labor Code has specific regulations for female workers during this period, such as: Employers are not allowed to unilaterally terminate the labor contract in case the employee takes maternity leave according to the provisions of the law on social insurance (Clause 4, Article 39 of the Labor Code); Employers are not allowed to use female workers to work at night or work overtime in the following cases: Pregnant from the 7th month or from the 6th month if working in mountainous, remote, border, or island areas; Raising children under 12 months old (Clause 1, Article 155 of the Labor Code); The Labor Code stipulates that pregnant female workers or those raising children under 12 months old cannot be used for certain jobs (Article 160 of the Labor Code); The Labor Code stipulates maternity benefits applicable to female employees (Article 157 of the Labor Code). At the same time, the Labor Code also stipulates job security for female employees on maternity leave (Article 158 of the Labor Code)...

This principle is also recognized in the CEDAW Convention: “Adoption by States Parties of special measures, including those set out in this Convention, to protect mothers shall not be considered discrimination” (Clause 2, Article 4 of the CEDAW Convention).

The above principles not only guide the content of the Labor Code but also serve as criteria for gender equality. Therefore, when drafting labor legal documents, it is necessary to absolutely ensure the principles of gender equality. In the process of perfecting the legal system, it is necessary to review documents that do not ensure gender equality. When conducting the review, it is necessary to pay attention to the principles of gender equality and consider this as the basis for assessing whether the legal document is suitable or not. Unsuitable documents must be amended and replaced.

1.4. Gender equality in the field of labor according to the provisions of international law

Currently, there are many international conventions signed in the field of human rights. These conventions stipulate the rights that women enjoy, the ways and measures to eliminate discrimination and achieve gender equality. Up to now, Vietnam has participated in 04 international conventions related to gender equality in the field of labor: CEDAW Convention on the elimination of all forms of discrimination against women; Convention 45 on the employment of women in underground work in mines (1935); Convention No. 100 on equal remuneration between men and women workers for work of equal value (1951); Convention No. 111 on discrimination in employment and occupation (1958).

The CEDAW Convention recognizes the issue of gender equality in a broad scope, covering most areas of life, and at the same time identifies appropriate measures to completely eliminate inequality of women in the family as well as in society. It can be said that the CEDAW Convention is a specialized convention on anti-discrimination against women, aiming to establish the reality of equal status of women in all areas of life.

The CEDAW Convention was born from the important awareness of the international community about basic human rights. The birth of the CEDAW Convention is the result of the long-term struggle of progressive humanity for a just, democratic, humane and civilized society. On December 18, 1979, the CEDAW Convention was ratified by the United Nations General Assembly. On September 3, 1981, after being ratified by the 20th country, the Convention officially came into effect. On March 19, 1982, Vietnam became a member of this Convention. To date, 185 countries in the world have ratified or signed the Convention, accounting for over 90% of the United Nations members.

The CEDAW Convention addresses the protection of women's rights in many different areas of social life such as education, employment, civil affairs, business, marriage and family... One of the areas that the CEDAW Convention is very concerned about is ensuring gender equality in the field of employment.

In the CEDAW Convention, the right to equality in labor and employment is first expressed in ensuring the same rights between men and women, including the right to work, the right to enjoy employment opportunities (including the application of the same standards in labor recruitment), the right to choose a job, the right to be promoted, the right to vocational training, the right to receive equal remuneration, the right to social insurance, the right to be guaranteed health and safety at work. In addition, the CEDAW Convention also stipulates a number of measures to ensure the rights of female workers such as: Prohibiting and punishing the act of dismissing women because of pregnancy, maternity leave or based on marital status; Female workers on maternity leave are still entitled to receive salary, are guaranteed their old jobs, seniority and social allowances; Encourage the provision of social support to enable parents to combine family obligations with work responsibilities and participate in social activities, especially promoting the establishment and development of kindergartens and model schools.

For pregnant women who do heavy and hazardous work, there is a special protection regime.

The CEDAW Convention sets out a number of measures that member States must take: Such as internalizing the CEDAW Convention; There must be an agency to protect women and sanctions to deal with acts of discrimination against women; Amending or eliminating all existing provisions, regulations, customs and practices that discriminate against women... The Convention allows States the right to apply temporary special measures to accelerate de facto gender equality between men and women, and there must be measures to protect mothers.

Currently, the International Labor Organization (ILO) has adopted many conventions on the rights of women workers and gender equality in labor. Specifically, Convention No. 3 on the employment of women before and after childbirth (1919); Convention No. 4 on night work by women (1921); Convention No. 41 on the revision of Convention No. 4 (1934); Convention No. 45 on the employment of women in underground work in mines (1935); Convention No. 89 on the revision of night work (1948); Convention No. 100 on equal remuneration between men and women workers for work of equal value (1951); Convention No. 111 on discrimination in employment and occupation (1958); Convention No. 156 concerning equal opportunity and treatment of men and women workers and workers with family responsibilities (1951). Up to now, Vietnam has only ratified 3 conventions in this field: Convention No. 45, Convention No. 100 and Convention No. 111.

Due to the limitations in health and psychology of female workers, Convention No. 45 on the employment of women in underground work in mines stipulates: "No woman, regardless of age, shall be employed in underground work in mines" (Article 45).

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