Prohibition of discrimination in Vietnamese labor law - Current situation and some recommendations - 2

Second , compare current legal provisions with practice to analyze, evaluate and clarify regulations and law enforcement activities on prohibiting discrimination in the labor field.

Third, from research on legal theory and practice, we will make objective assessments of the provisions of national law compared to international law on the issue of prohibiting discrimination in labor law, and make some recommendations to improve and enhance the effectiveness of the implementation of Vietnamese law on prohibiting discrimination in the labor field.

6. Research method

To achieve the research purpose, the thesis is mainly based on the methodology of Marxist-Leninist philosophy, general theory of State and law. In addition, the author also uses a number of scientific methods such as analysis, comparison, contrast, practical research, synthesis, statistics to comprehensively consider theoretical and practical issues within the scope of the research topic.

7. Structure of the thesis

In addition to the introduction, conclusion and list of references, the content of the thesis is divided into 3 chapters:

Chapter 1: Some basic theoretical issues on prohibition of discrimination in labor law.

Chapter 2: Current status of Vietnamese labor law and implementation practices on prohibition of discrimination.

Chapter 3: Perfecting the law and enhancing the effectiveness of enforcement of Vietnamese labor law on prohibition of discrimination.

Chapter 1

SOME BASIC THEORETICAL ISSUES ON PROHIBITION OF DISCRIMINATION IN LABOR LAW

1.1 Concept of discrimination and prohibition of discrimination

1.1.1 Concept of discrimination

According to the definition of the Vietnamese Dictionary, "discrimination" is to recognize differences based on characteristics and properties considered unusual in order to have unequal treatment [92, p.770].

According to the interpretation of the Human Rights Committee, “discrimination” means any distinction, exclusion, restriction or preference made on any basis such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, origin or other status, which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons on an equal basis of rights and freedoms.

When the ILO was established, there were only 45 participating countries. To date, the ILO has 187 member countries. The ILO is responsible for developing and monitoring international labor standards; coordinating with its 187 member countries to ensure those labor standards. The ILO was established on the basis of three basic goals: humanitarian goals (improving working conditions of workers); political goals (ensuring social justice and protecting labor and human rights to create social stability) and economic goals. To achieve the above goals, the ILO builds minimum labor standards on workers' rights (For example: freedom of association, the right to organize and bargain collectively, the right to eliminate forced labor, the right not to be discriminated against at work and in employment...). The ILO carries out its mission through international policies and programs to promote workers' rights; reform living and working conditions and increase employment opportunities; develop international labour standards in the form of Conventions, Recommendations and Ministries

Codes of practice, which set out minimum standards for workers' rights; policy advice and technical cooperation, working closely with social partners to develop and implement; training, education and research at the international and national levels; providing publications and disseminating knowledge and information. The ILO has adopted a total of 189 Conventions and 203 Recommendations. After many years of research and discussion, on June 18, 1998, the ILO adopted the Declaration on Fundamental Principles and Rights at Work. The ILO Declaration affirms four groups of basic international labor standards: Freedom of association and the right to collective bargaining; Elimination of all forms of forced and compulsory labor; Effective abolition of child labor; Elimination of discrimination in employment.

The above basic international labor standards are stipulated in 8 ILO Conventions, including: Convention No. 87 on freedom of association and protection of the right to organize (Freedom of Association and Protection of the Right to Organize Convention, 1948, No. 87); Convention No. 98 on the right to organize and collective bargaining (Right to Organize and Collective Bargaining Convention, 1949, No. 98); Convention No. 29 on forced or compulsory labor (Forced Labor Convention, 1930, No. 29); Convention No. 105 on abolition of forced labor (Abolition of Forced Labor Convention, 1957, No. 105); Convention No. 138 on minimum working age (Minimum Age Convention, 1973, No. 138); Convention No. 182 on the elimination of the worst forms of child labour (Worst Forms of Child Labour Convention, 1999, No.182); Convention No. 100 on equal remuneration for men and women workers for work of equal value (Equal Remuneration Convention, 1951, No.100); Convention No.

111 on discrimination in employment and occupation (Discrimination Employment and Occupation Convention, 1958, No. 111). Human rights are fundamental and absolute rights that every human being is entitled to. The principle that all human beings have equal rights and are treated equally is a fundamental principle of the concept of human rights. This principle stems from the inherent dignity and equality of all individuals. Since all people are equal before the law, they are entitled to freedom and justice, the state

8

must grant equal rights and privileges to all citizens. However, this natural equality has never been fully provided for all people. Discrimination in one form or another has been a problem since the beginning of humanity, everyone can be affected by discrimination at different levels. However, not all discrimination is automatically understood as an abuse of human rights. When discrimination is based on reasonable and objective criteria, it can be considered legitimate. Regardless of the form of discrimination, it can be identified through three common characteristics, which are:

- Actions that are defined as discriminatory are exclusions, restrictions, and favoritism or preferential treatment;

- The causes of discrimination are personal characteristics such as race, ethnicity, lineage, national origin, skin color, gender, age, physical integrity...

- The purpose and effect of discrimination is to have the objective, or effect, of preventing the victim from exercising or enjoying human rights and fundamental freedoms. (See also Annex 1 : Three elements of discrimination defined under Convention 111)

From the above general characteristics, ILO has also proposed a specific concept of discrimination in employment and occupation. In the ILO Convention No. 111 on discrimination in employment and occupation dated June 25, 1958, the term "discrimination" was introduced , according to which discrimination is understood as: "Any distinction, exclusion or preference based on race, colour, sex, religion, political opinion, national or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation and any other distinction, exclusion or preference which nullifies or impairs equality of opportunity or treatment as the Member State concerned may specify after consultation with the representative organizations of employers and workers (if any) and other appropriate organizations" (Clause 1 , 2, Article 1 of Convention No. 111). Thus, based on the above provisions of the ILO, it can be seen that in

In the relationship between employees and employers, the following acts will be considered discrimination:

First, discrimination in treatment, paying whites and blacks differently for two equal jobs, creating equal value;

Second, preferential treatment, for example, if the business owner is a Catholic, Catholic employees will be given priority in recruitment;

Third , exclusion from an opportunity, for example refusing to hire a candidate because they are gay.

Discrimination in ILO Convention No. 111 includes direct discrimination and indirect discrimination. Direct discrimination is understood as unequal treatment between workers based on race, colour, religion, sex, political opinion, national origin or social origin, prescribed in law or practice that creates a clear difference between these workers. These are easily recognizable discriminations that do not require going through the process of application in practice to discover discrimination. For example, it is considered direct discrimination when a company's recruitment notice clearly states that it only recruits male workers.

Indirect discrimination is a policy, regulation or practice that does not show discrimination, but when applied in practice, it causes inequality among employees. For example, Canon Vietnam Company in Tien Du, Bac Ninh has a regulation to organize two evening university entrance exam review sessions a week for employees who want to take the university entrance exam. When applied in practice, because there are some employees who only have to work during office hours, they can participate in these review sessions, but employees who are required to work in the evening two weeks out of a month cannot participate, it is clear that when applied in practice, the above regulation has limited the rights of a part of employees.

The Universal Declaration of Human Rights was adopted by the United Nations General Assembly on February 10, 1948, in Article 1 of which states: “ Everyone is equal before the law and has the right without any discrimination to the protection of the law. Everyone has the right to the protection of the law against any