Prohibition of Discrimination in Employment and Vocational Training

female workers; Circular 26/2013/TT-BLDTBXH dated October 18, 2013 promulgating the list of jobs that are not allowed to employ female workers; Circular 23/2015/TT-BLDTBXH dated June 23, 2015 guiding the implementation of a number of provisions on wages; Circular 47/2015/TT-BLDTBXH dated November 16, 2015 guiding the implementation of a number of provisions on contracts, labor discipline, material responsibility;...

Vietnam has made great efforts to internalize the provisions of a number of international conventions into national legal documents as well as to implement objectives consistent with international conventions on the prohibition of discrimination in employment. Vietnam has also fulfilled its responsibility to periodically report on the implementation of international conventions on the prohibition of discrimination in employment.

However, it can still be seen that the process of internalization into Vietnamese law, in some aspects due to various reasons, is still slow, some contents have not been internalized and there have not been many major changes in amending and supplementing legal provisions to comply with the content of the International Convention on the Prohibition of Discrimination in Labor after many years of ratification. Below is a basic study of the current status of Vietnamese labor law on the prohibition of discrimination.

2.1. Prohibition of discrimination in employment and vocational training

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* About work

During the feudal period, according to the harsh concept of "three obediences and four virtues", women only had a secondary role in the family and society, completely dependent on men. Society only emphasized the role of men and had heavy and harsh prejudices against women. That made women disadvantaged and backward compared to men. Nowadays, due to the development of society, backward feudal ideas have become outdated and eliminated, so work has become important for both men and women. The position of women in modern society has changed, so the opportunity to find a job and have a job is also very meaningful to them. Not only having a job, women today also create job opportunities for other workers. According to the World Bank's business survey published in June 2010,

In 2014, the percentage of enterprises with women's participation in ownership in some countries was high (See Appendix 2 ). Thus, it can be affirmed that women and men are equal to each other, women are increasingly promoting their role in social life.

Article 26 of our country's 2013 Constitution stipulates on this issue as follows:

after:

“1. Male and female citizens are equal in all aspects. The State has a policy of protecting

ensure gender equality and opportunity.

2. The State, society and family create conditions for women to develop comprehensively and promote their role in society.

3. Gender discrimination is strictly prohibited”.

Thus, all citizens, regardless of gender, are equal in all aspects and fields.

The 2013 Constitution also stipulates: “Citizens have the right to work, choose their profession, job and workplace” (Clause 1, Article 35) and “ Discrimination is strictly prohibited” (Clause 3, Article 35).

This provision is more clearly institutionalized in Point a, Clause 1, Article 5 of the 2012 Labor Code: “ Employees have the right to work, freely choose jobs, occupations, learn a trade, and improve their professional qualifications without being discriminated against .”

In addition, the State must be responsible for: “ Ensuring the equal right to work for female workers. Encouraging employers to create conditions for female workers to have regular jobs, widely applying flexible working schedules, part-time work, work at home assignments …” (Article 153 of the 2012 Labor Code). At the same time, the prohibition of discrimination is considered a principle of the Labor Law: “ Discrimination based on gender, ethnicity, skin color, social class, marital status, beliefs, religion, HIV infection, disability or for reasons of establishing, joining and participating in trade unions is strictly prohibited ” (Clause 1, Article 8 of the 2012 Labor Code).

In addition to regulations protecting female workers, Vietnamese labor law also aims for equality and non-discrimination in the field of employment and occupation for workers of different ethnicities, skin colors, religions, beliefs, disabled workers, workers who are HIV-infected... Specifically: Clause 1, Article 8 of the 2012 Labor Code strictly prohibits acts of "Discrimination based on gender, ethnicity, skin color, social class, marital status, beliefs, religion, HIV infection, disability or for reasons of establishing, joining and operating a trade union" . The State is responsible for "Ensuring the principle of gender equality; regulating labor regimes and social policies to protect female workers, workers with disabilities, elderly workers, and underage workers " (Clause 7, Article 4 of the 2012 Labor Code).

A person with a disability is a person who has a defect in one or more body parts or a functional impairment manifested in the form of a disability that makes it difficult to work, live, or study. Therefore, the State strictly prohibits “ discrimination against people with disabilities; infringement of the body, dignity, honor, property, rights, and legitimate interests of people with disabilities” (Clause 1, Clause 2, Article 14 of the 2010 Law on People with Disabilities). Employers must be responsible for “ensuring working conditions, working tools, occupational safety, and occupational hygiene suitable for employees with disabilities and regularly taking care of their health” (Clause 1, Article 177 of the 2012 Labor Code).

For elderly workers, employers are not allowed to use these workers to " do heavy, toxic, dangerous work that has a negative impact on the health of elderly workers " (Clause 3, Article 167 of the 2012 Labor Code).

For minor workers, the law also prohibits employers from employing them to “do heavy, toxic, dangerous work or in workplaces or jobs that negatively affect their personality” (Clause 1, Article 163 of the 2012 Labor Code).

Also included in the vulnerable labor group are workers infected with HIV/AIDS, this is a group of workers who are very vulnerable to mental and personal harm when participating in labor relations. Law on Prevention and Control of Virus Infection Causing Dementia Syndrome

The Law on Human Immunodeficiency Virus (HIV/AIDS) 2006 was issued to ensure the rights and benefits of this group in social relations, specifically: prohibiting discrimination against people infected with HIV; employers must implement the principle of equality for people with HIV/AIDS in recruitment and labor relations; not requiring HIV/AIDS testing reports when recruiting; not refusing to hire people infected with HIV/AIDS, forcing employees to change to other jobs when they are still healthy enough to do the job they are doing, refusing to raise salaries, promote, causing difficulties in the work process of employees or terminating labor contracts when discovering that employees are infected with HIV/AIDS (Clause 3, Article 14 of the Law on Prevention and Control of Human Immunodeficiency Virus (HIV/AIDS) 2006).

The above regulations have contributed to the harmonization of social classes in Vietnam, creating conditions for all citizens to have the right to work and develop to the fullest. Thereby, the State has reasonable policies to provide incentives for job creation, policies to attract and employ ethnic minorities, people with disabilities, minors... ensuring equality in employment opportunities, regimes and policies when participating in labor relations with disadvantaged groups of workers in society.

The 2013 Law on Employment also sets out the principles of “ ensuring the right to work, freely choosing a job and workplace” (Clause 1, Article 4) and the principle of “equality in employment opportunities and income” (Clause 2, Article 4), while also prohibiting “discrimination in employment and occupation” (Clause 1, Article 9).

Aiming to protect the health and comprehensive development of children both physically and mentally, the 2012 Labor Code has set a minimum age for participation in labor relations. According to the spirit of Clause 1, Article 3 of the 2012 Labor Code, the minimum age for participation in labor is 15 years old; however, workers under this age can do some jobs specified in Circular No. 11/2013/TT-BLDTBXH dated June 11, 2013 regulating the list of light jobs that employ people under 15 years old, but the reception and use of

In order to employ these children, employers must fulfill the responsibilities specified in Article 2 of this Circular. In addition, Circular No. 10/2013/TT-BLDTBXH dated June 10, 2013 promulgates a list of jobs and workplaces prohibited from employing minors to protect this group of workers.

Thus, Vietnamese law has provisions in accordance with Convention 111 that clearly demonstrate the principle of eliminating discrimination in employment and occupation. However, these provisions have not yet fully recognized all the bases compared to Convention 111. Specifically, the ILO stipulates that social origin is the basis for determining discrimination. Accordingly, discrimination based on region (household registration) is one of the forms of discrimination based on social origin, prohibited under Convention 111. Vietnamese law only recognizes the criterion of "social composition " without introducing the concept of " social origin ". In addition, with the development of society, there are many bases of discrimination such as age, health status, sexual orientation... which are also recognized by the ILO as bases for discrimination. For example, age discrimination in labor has been regulated in human rights law. Australia, New Zealand, South Africa, and Canada have expanded their human rights laws to include age discrimination. Age discrimination also exists in the employment laws of Australia, Canada, and New Zealand, but is more limited than in human rights laws. The age discrimination provisions in employment laws in these countries apply to people who are in an employment relationship or have recently had that relationship terminated (i.e., due to unfair dismissal). Age discrimination in human rights laws in Australia and New Zealand has been extended to both job seekers and those in employment, and also covers a broader range of employment relationships. In Canada, although there is no federal law that explicitly addresses age discrimination, a person may invoke the provisions of the Canadian Charter of Rights and Freedoms as a defense [97, p.19]. Thus, Vietnamese law should prescribe additional forms of discrimination in accordance with Convention 111 and the laws of other countries.

Every year, the National Target Program on Employment allocates funds to invest in capacity building and modernization of 40 Job Introduction Centers under the Ministry of Labor, War Invalids and Social Affairs; and supports localities in organizing conferences.

job market, job exchange. Number of unemployed workers

recruitment

through the transaction from 400 - 500, of which the number is

direct recruitment

continue to occupy

70%, the number is

[67].

hen

business interview

after trading session accounts for 30%

However, it can be seen that currently, businesses are denying employment opportunities to workers with registered residence in Thanh Hoa, Nghe An, Ha Tinh, and Ca Mau. In fact, this discrimination has been happening for many years in the southern provinces, especially in Binh Duong, where many companies have posted recruitment signs stating: "No recruitment of people from Thanh Hoa, Nghe An, Ha Tinh, and Ca Mau". However, some local officials are quite confused when dealing with the discrimination of businesses in recent times. They believe that the labor law still lacks guidance on prohibiting discrimination related to regions [85].

In addition, even on grounds that the law prohibits discrimination, in reality, discrimination still occurs. Businesses deny employment opportunities to people with disabilities, people with HIV, people who have participated in or established trade unions, female workers, and minor workers, even if they meet the job requirements...

* About vocational training

In labor relations, for employees, the right to vocational training is the basis for ensuring the right to freedom of employment and occupation. In a market economy with fierce competition for jobs in the labor market, with the requirements of economic integration, the emergence and development of a knowledge-based economy, to ensure employment, the prerequisite is that employees must continuously learn and train to improve their professional and technical qualifications.

Point a, Clause 1, Article 5 of the 2012 Labor Code stipulates that employees have the right to freely choose to learn a trade, improve their professional qualifications and not be discriminated against. At the same time, Article 59 specifically stipulates: “ Employees

Workers are allowed to choose a profession and learn a trade at a workplace that suits their job needs . Thus, the law has specific provisions demonstrating the right to freedom and equality in vocational training for workers. The law also does not discriminate against religion, gender, age, social class, ethnic minorities, people with HIV, people with disabilities, etc. in participating in vocational training.

Article 3 of the 2006 Law on Vocational Training stipulates: “ Vocational training activities and vocational training management must comply with the provisions of this Law and other relevant legal provisions; In case an international treaty to which the Socialist Republic of Vietnam is a member has provisions different from those of this Law, the provisions of that international treaty shall apply ”. Thus, this article affirms that vocational training activities must not be contrary to international law and national law related to vocational training. Therefore, this law must comply with the principle of prohibiting discrimination in vocational training. This provision is continued in the 2014 Law on Vocational Education (effective from July 1, 2015, replacing the 2006 Law on Vocational Education). At the same time, the 2014 Law on Vocational Education stipulates the subjects of application: “ This Law applies to vocational education centers, secondary schools, and colleges; Enterprises and agencies, organizations and individuals related to vocational education activities in Vietnam " (Article 2). Thus, the subjects of application do not discriminate, and there is no exclusion of any employee from vocational education activities.

For female workers, to ensure and enhance their rights in the field of vocational training, Clause 5, Article 153 of the 2012 Labor Code stipulates the responsibility of the State to: "Expand many types of training that are favorable for female workers to have additional backup jobs and are suitable for the physical, physiological and maternal characteristics of women". Thus, the law has specific regulations on the responsibilities of state agencies in the field of vocational training and vocational training for female workers, creating gender equality in the field of labor, improving the quality of female workers, and compensating for the limitations of female workers due to the responsibilities they have to perform.

The 2006 Law on Gender Equality also stipulates gender equality in the field of education and training, including: Men and women are equal in age to attend school, receive training and education; Men and women are equal in choosing their majors and careers; Men and women are equal in accessing and enjoying policies on education, training and professional development; Female cadres, civil servants and public employees who bring children under thirty-six months old when participating in training and education are supported according to Government regulations (Clause 1, Clause 2, Clause 3, Clause 4, Article 14). In addition, there are measures to promote gender equality in the field of education and training: regulating the ratio of men and women participating in training and education; female workers in rural areas are supported in vocational training according to the provisions of law (Clause 5, Article 14 of the 2006 Law on Gender Equality).

In addition, Vietnamese law also has some specific regulations for some specific groups of workers such as: " The State ensures that people with disabilities receive free vocational training advice, choose and learn a trade according to their abilities and capacities, equally with others " (Clause 1, Article 32 of the 2010 Law on People with Disabilities). For domestic workers, employers must " create opportunities for domestic workers to participate in cultural and vocational training" (Clause 5, Article 181 of the 2012 Labor Code).

The State also pays attention to vocational training, at 40 Introduction Centers.

State-organized jobs, the number of workers

advice on work

work , learn a trade ,

labor law at the floor from 600 - 700; number of workers registered for vocational training at private enterprises

400 - 500. In the period 2006 - 2010, the Job Introduction Centers are expected to provide job consultation and introduction for about 4.8 million people, of which 50% are female workers [67].

According to the 2013 summary report, the General Department of Vocational Training under the Ministry of Labor, War Invalids and Social Affairs supported 3 billion VND to pilot a vocational training model associated with job creation for nearly 925 people with disabilities in the provinces of Bac Giang, Nam Dinh, Thanh Hoa, Hai Phong City, and Da Nang City [14]. Also according to this report, the Vietnam Association for the Protection of Disabled and Orphans and other

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