Right to Form, Join and Operate Trade Unions

The terms and responsibilities of the Trade Union as well as measures to ensure Trade Union activities.

In the 1992 Constitution, the provisions in Article 10 once again affirmed the role and position of the Trade Union in the period of innovation, in which "caring for and protecting the rights and interests of cadres, civil servants, public employees and other workers" were given top priority.

The promulgation of the Labor Code has continued to affirm the legal position of the Trade Union in the market economy, creating new conditions for the Trade Union to develop strongly in terms of organization and improve the quality of its activities in the period of innovation. The Trade Union organization will be a solid support for state agencies and meet the demands of workers. This is also the unique feature of the history of the workers' and trade union movements in our country. In the past as well as at present, the Vietnam Trade Union has always been worthy of its role and mission towards the working class and civil servants of Vietnam; worthy of the tradition of the heroic Vietnamese nation.

Chapter 2

TRADE UNION RIGHTS AND IMPLEMENTATION IN PRACTICE

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The 1990 Trade Union Law with 4 Chapters and 19 Articles is the legal basis for promoting the role of trade unions in the cause of innovation and development of a multi-sector commodity economy under the market mechanism, ensuring democratic rights and interests of workers in the period of industrialization and modernization of the country. The Trade Union Law clearly defines the rights of trade unions in all areas of labor relations, meeting the requirements of regulating current trade union relations. These are: The right to establish, join and operate trade unions; The right to participate with state agencies and representatives of employers on labor relations issues; The right to represent trade unions; The right to participate in inspecting and supervising the implementation of labor law provisions; and Some rights of trade unions in protecting workers. This has contributed to protecting workers and developing harmonious and stable labor relations.

2.1. The right to establish, join and operate trade unions

The right to freely establish and join trade unions in accordance with the law is a fundamental right of workers in all economic sectors. Not only that, it is also one of the most fundamental rights in the "trade union rights", and is the core task of Vietnamese trade unions. This is one of the factors that demonstrate the democracy and development of a country. In other words, democracy and sustainable economic development of a country will not exist if a part of the population is deprived of the right to establish organizations to protect their rights and interests. Therefore, respecting the principle of trade union freedom is the top priority for professional relationships to operate well and for a country's democracy to be actively promoted.

In international labor law, respect for freedom of association is considered a fundamental principle in labor. This right includes the right of every worker to freely form, join or not to join different unions. Therefore, according to international conventions of the United Nations and the International Labor Organization, all workers have the right to freely form and join unions, if such formation and participation are not contrary to public order or infringe upon the security and interests of the host country.

In Vietnam, due to many reasons, the ratification of international conventions related to trade unions, especially the conventions of the International Labor Organization, has not been implemented. Therefore, workers in Vietnam, including Vietnamese workers and foreign workers, have not had the opportunity to fully exercise their rights to participate in the establishment and membership of trade unions as recognized in the international conventions of the two international organizations mentioned above.

At the international level, freedom of trade unionism is protected primarily by multilateral international treaties of the United Nations and the International Labour Organization.

Within the framework of the United Nations, the right to freedom of association is expressed and guaranteed by important documents on human rights in general and workers' rights in particular. First of all, we cannot fail to mention the Universal Declaration of Human Rights in 1948. Although it does not have binding legal value, this document can be considered as a legal doctrine as a basis for the construction of international legal documents on basic human rights, including the right to freedom of association.

Among the group of labor-related rights recognized in Article 23 of the Declaration, the right to freedom of association is considered an inalienable and indisputable right of workers. Clause 4 of Article 23 stipulates: "Everyone has the right to form and join trade unions for the protection of his interests" [41]. To ensure the international legal value of the right to freedom of association

In terms of trade unions, the United Nations has a series of conventions, including provisions that require member states, when ratifying the convention, to respect and create conditions for all workers to join and form trade unions to protect their interests in labor relations with employers. Article 22, paragraph 1 of the International Covenant on Civil and Political Rights 1966 stipulates: "Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests." At the same time, Article 8, paragraph 1 of the International Covenant on Economic, Social and Cultural Rights 1962 also recognizes the right to freedom of trade union for all people. Accordingly, "States Parties to the present Covenant undertake to ensure the right of everyone to form trade unions and to join trade unions of his choice for the promotion and protection of his economic and social interests, subject only to the rules of the organization concerned" [41]. Thus, both of the above conventions allow the exercise of freedom of association without any restrictions, except where the law of a State Party provides for certain restrictions for the purposes of ensuring a democratic society, in the interests of national security, public order or the protection of the rights and freedoms of others.

In addition to the two international documents with legal value mentioned above, in 1990, the United Nations also issued another convention in the field of labor to protect the rights of migrant workers. In this convention, the trade union rights of migrant workers working in the territory of a member state are also guaranteed in the same way as domestic workers. With the provision in Article 7 on "protection of non-discrimination" between workers of different nationalities, the 1990 United Nations Convention on the Protection of Migrant Workers and Members of Their Families has forced member states to ensure the freedom of trade union rights of foreign workers as the rights of domestic workers. In other words, this convention also indirectly recognizes the freedom of trade union rights of all workers in the territory of a member state. Article 26 of the above Convention stipulates:

"States Parties recognize the right of migrant workers to participate in meetings and activities of trade unions and other lawfully constituted organizations, for the protection of their economic, social, cultural and other rights and interests, subject to the rules of such organizations" [41]. This right is clearly specified in Article 40 of the same Convention: "Migrant workers shall have the right, in association with others, to form associations and trade unions in the country in which they are employed, for the promotion and protection of their economic, social, cultural and other interests" [41].

Thus, according to the provisions of international documents of the United Nations, for the purpose of ensuring their economic, cultural and social interests, all workers, including foreign workers, have the right to establish and join trade unions of their choice.

In addition to the United Nations, workers' freedom of association is also always the focus of protection by the International Labor Organization. Article 2 of Convention No. 87 on Freedom of Association and Protection of Trade Union Rights of the International Labor Organization in 1948 stipulates: "All workers and employers shall have the right to establish and join organizations of their choice subject to the provisions of the constitutions of such organizations" [41]. Thus, workers' freedom of association, according to the International Labor Organization, also includes the right to establish and join trade unions of their choice. That is, workers can establish many different trade unions in one workplace. On that basis, other workers have the right to freely choose to join this or that trade union to best protect their interests.

In addition to the conventions that are legally binding on ratifying member states, the International Labor Organization also has declaratory documents, recommending that all member states of the International Labor Organization protect the unrestricted freedom of association of workers.

The 1998 Declaration on Fundamental Principles and Rights at Work establishes the obligation of member states of the International Labour Organization, including those that have not ratified the relevant conventions on freedom of association, to respect the freedom of association of workers. Thus, even if they do not ratify the conventions of the International Organisation on freedom of association, at the very least, member states of this Organization must ensure that all workers have the right to join and form trade unions.

Article 1 of the Law on Vietnamese Trade Unions stipulates:

Vietnamese workers working in production and business units of all economic sectors, foreign-invested enterprises, public service units, state agencies, and social organizations have the right to establish and join trade unions within the framework of the Charter of the Vietnam Trade Union [28].

Vietnam has not yet become a member of any of the International Labor Organization's Conventions on freedom of association mentioned above. Therefore, legally, we are not required to comply with the provisions of these Conventions. However, within the framework of the United Nations, Vietnam has joined two 1966 Conventions on civil and political rights and social and cultural rights, including the right to join and form trade unions for all people. However, compared to the freedom of association in the two 1966 Conventions mentioned above, the Vietnamese Trade Union Law still does not fully ensure the right to join, form and join trade unions of workers due to some specific limitations.

2.2. The right of trade unions to participate with state agencies and employers' representatives on labor relations issues

This is the authority of the trade union system at all levels. Accordingly, the Trade Union represents the workers in participating in building and perfecting the labor force.

mechanisms, policies, and laws. Trade unions coordinate with state agencies to build a synchronous system of policies and laws in Vietnam. At the same time, trade unions also actively participate in promoting the completion of the "tripartite mechanism" in labor relations. The tripartite mechanism is one of the forms of expression of the relationship between the State - employers - employees (represented by trade unions) to change the way of labor relations, harmonizing the employer - employee relationship to be compatible with the state management mechanism.

In this mechanism, the Government is responsible for setting laws and regulations. Trade unions are socio-political organizations representing workers, making recommendations, participating in the legislative process and proposing solutions to create a stable legal basis for trade unions in the process of protecting the rights and interests of workers.

To properly resolve the tripartite relationship, the trade union, together with the State and relevant agencies, negotiates through the joint conference method to participate with the State, gradually building a tripartite mechanism at a high level. Currently, the tripartite mechanism in the field of labor relations is taking shape more and more clearly. The trade union is proactive in building a tripartite mechanism to properly resolve labor relations between employers and employees according to the State's laws. Accordingly, the implementation of the right to participate of the trade union organization depends on the decentralization of this organization. Specifically as follows:

Firstly, the participation rights of the Vietnam General Confederation of Labor include the following specific contents:

- Right to legal initiative: The Vietnam General Confederation of Labor has the right to submit draft laws and draft ordinances to the National Assembly and the National Assembly Standing Committee;

- The right to participate with state agencies in developing laws, policies and regimes related to the rights and interests of workers;

- The President of the Vietnam General Confederation of Labor has the right to attend Government meetings when discussing issues directly related to the rights, obligations and interests of workers;

- The right to participate in inspection and supervision delegations to implement laws related to the rights and interests of workers organized by the Government, Ministries and branches;

- The right to make recommendations to state agencies on issues arising in the implementation of laws, regimes and policies for employees;

- The right to participate with state agencies in resolving complaints and denunciations of employees;

- The right to give opinions when the Government decides and announces the general minimum wage, regional minimum wage, industry minimum wage, and minimum wage in foreign-invested enterprises for each period (Article 56, Article 132 of the Labor Code);

- The right to give opinions when the Government prescribes principles for building salary scales, payrolls, and labor norms; prescribes salary scales and payrolls for state-owned enterprises;

- The right to give opinions when the Government regulates special cases where overtime is not allowed to exceed 300 hours in a year;

- The right to participate with the Government in developing national programs on labor protection, labor safety, and labor hygiene, developing scientific research programs, and developing laws on labor protection, labor safety, and labor hygiene;

- The right to give opinions on the list of occupational diseases before the Government or state agencies issue it;

Second, the right to participate of grassroots trade unions includes the following basic contents:

- The right to participate with state agencies in developing laws, policies and regimes related to the rights and interests of workers;