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Page 1 of 104 The right of association has been recognized in the Communist Vietnam’s Constitution as well as in the Labor Law. However, in the reality, the workers were prevented from forming unions of their own or joining independent union
Pho Van Pham, ESQ. 2006
Recent outbreak of massive strikes by the Vietnamese workers, especially in the foreign enterprises doing business in Vietnam or foreign direct investment companies (FDI) in southern industrial parks (IPs) and export processing zones (EPZs), have raised concerns among international observers and in the Vietnamese community overseas about the conditions of the Vietnamese workers. In fact, they are the victims of systematic violations of the most basic labor rights, including the right to have decent working conditions, the right of free association in forming trade unions, the right to strike and the rights for safety and security in the work places. They are the victims of a regime, which claims itself as the champion of the workers and the leaders of the proletariat. However, in the reality, in this regime, the workers have been exploited and sacrificed with their labor and efforts for the benefits of a small group of leaders and cadres.
1. The rights of association
The right of association has been recognized in the Communist Vietnam’s Constitution as well as in the Labor Law. However, in the reality, the workers were prevented from forming unions of their own or joining independent union. There is no such independent union but only one trade union, the Vietnam General Confederation of Labor (VGCL) controlled by the Vietnamese Communist Party. All workers automatically become members of this union at their workplace. According to VGCL, they have 5.2 millions members with 71 percent of public sector and 90 percent of workers in state-owned enterprises. Among 1.5 million workers in enterprises with foreign investment, 600,000 workers belong to VGCL. The vast majority of workforce live in rural areas is not unionized. The overall level of unionization of the workforce was 12 percent. (Source: 2005 Reports on Human Rights Practices 2005 by the Department of State.)
VGCL has an important role in the proposal of amendment of labor laws and regulations and implementation of labor laws at the workplace. In reality, they are not representing the rights of the workers, instead they are only the “eyes and ears” of the VCP to closely look at the workers at their workplace for observing and reporting troublemakers. For those reasons, VGCL never got the trust of the workers.
Vietnam is a member of the International Labor Organization (ILO) and has ratified various Conventions, including Discrimination, the Worst Forms of Child Labor Convention, Minimum Age Convention, Occupational Safety and Health Convention and Worst Forms of Child Labour Convention. However, Vietnam has not ratified the two most important conventions: the Freedom of Association and Protection of the Right to Organize Convention and the Right to Organize Convention, even its membership in the ILO requires the members to respect, promote, and realize the right to freedom of association and the right to collective bargaining.
In an 8-points Demand of the Vietnamese Workers made by Hoanh Tan Nguyen, Representative of Dien Ban Industrial Sector, Quang Nam Province, March 13, 2006, and sent to Radio Hoa Mai, in which they demand:
3: “The state-controlled Labor Unions which are formed by the government in all companies of all sectors must be dissolved.”
4: “The Communist Party of Vietnam must stop organizing in our work places cells of Communist Youth League and Communist Party which the government uses to work against us. We are only the ordinary workers, we don’t want to get involved in politics, and we don’t want any dictatorial system to impose more on us.”
5: “We reserve the right to sign our own contracts for individuals or group with the employers once we already abolished the state-controlled Labor Unions. These do not protect our benefits but instead are taking a percentage from our production. It is absurd that we have to get the permission of these “unions” whenever we raise our voice for our legitimate benefits.
6: “We should not be obligated to make contributions, deducted from our salaries, for the state-controlled Union’s programs.”
2. The Right to Strike
The Labor Law and Article 80 of the April 11, 1996 Ordinance on the Procedures for Settlement of Labor Disputes provides that in order to strike “legally”, workers to follow strict procedures beginning with conciliation (at the enterprises’ level) and arbitration (at district’s level) and then the People’s Court or to strike. All strikes are needed to be “guided” and initiated by the state-controlled Unions.
Since the procedure for strike is so complicated, all past strikes (1,171 strikes since 1995 to March 24, 2006) are illegal strikes since no strike has followed closely steps promulgated by laws.
In fact, all strikes were “self-initiated” by the workers themselves without asking for the intervention of the VGCL.
Even The People’s Committee of Hochiminh City, in a working session with the Congress on March 23, 2006, observed that “workers cannot strike legally due to many complicated regulations; besides, since the laws on strikes are not so clear and very difficult to distinguish between strike and labor dispute”. Therefore, the city proposes to amend and to simplify the regulations on strike.
Besides, Vi Duy Nguyen, Vice-President of the Legal Department of VGCL disclosed that the Ministry of Labor and Invalids and Social Affairs (MOLISA) propose a new law degree for applying penalty to workers who violate the Labor Law by which anyone participate in “illegal strikes” shall be fined from 200,000 to 500,000 dong (Lao Dong magazine.)
In 8 point demand by Hoanh Tan Nguyen regarding the right to strike as follows:
8. We reserve the right to exercise the freedom to meet together, to organize ourselves, to raise funds, to protest against abuses, and to organize strikes to make sure we share the benefits of the production of which we are entitled.
According to the report made by the Congress, 90 % of the recent strikes were caused by the unrealistic minimum wages determined by government. It has been adjusted at least 3 times for the workers in public sectors but unchanged in the private sectors.
According to Hoanh Tan Nguyen, due to the current high cost of living, a worker has to get at least a minimum wage of 2,000,000 dong to survive. With the actual salary, the workers and their families will face starvation and cannot survive. (Interview with Do Hieu March 24, 2006).
In 8 point demand by Hoanh Tan Nguyen regarding the minimum wage:
1. Our salary must be adjusted based on the current value of the US dollars on the market and to the actual contracts signed between the Vietnamese government and the foreign Direct Investment (FDI) companies.
2. The minimum wage should be raised to the comparative salary in other countries in Southeast Asia, such as Singapore, Thailand, Indonesia, etc. as well in South Korea.
3. Right to a minimum wage.
The most relevant reasons leading to recent strikes were the minimum wages were never met or resolved properly.
Even the Labor Law requires the government to set a minimum wage and has to adjust according to inflation and other economic changes. The minimum wage set for foreign-invested joint ventures in 1999 is $40 (626,000 VND) in urban districts of Hanoi and Ho Chi Minh City; $35.90 (556,000 VND) for rural districts of Ha Noi, Ho Chi Minh City, and district of Hai Phong, Bien Hoa City and Vung Tau; $31.40 (487,000 VND) elsewhere. The wage for State sector was $18.80 (200,000 dong). In the local enterprises, the minimum wage was 350,000 dong.
In early 1990, in an effort to attracted foreign investors, especially from Taiwan and Korea (more than eight billion US dollars so far), looking for cheaper labor than in China where the basic wages are at 63 US dollars a month, Vietnam has set the minimum wage for FDI at $40 a month.
After many strikes, the government has promised to raise to minimum wages at the FDI regions from 870,000 dong (approximately $58 dollar) in urban areas of Ha Noi and Ho Chi Minh City, in outside areas is 790,000 dong and in other area is 710,000 dong.
MOLISA is planning to raise minimum wage to 400,000 to 450,000 dong per month, starting this October for workers in public sectors. For local enterprises, the minimum wages are determined according to 3 areas: in areas with high costs of living such as Ho Chi Minh City, Ha Noi, the minimum wage will be from 500,000 to 550, 000 dong.
Even with those new minimum wages, the workers cannot cope with the rising costs of living. As estimated by observers and workers, a worker with wife and two children needs at least a monthly wage of 2,200,000 dong to meet minimum level of life.
4. Working hours
The Labor Law determined regular working hour at 8 hours a day with a 24-hour break each week. Overtime is paid at the rate of 1.5 times of regular hour and 2 times on the weekend and three times on the holidays. However, in the reality, workers usually are required to work over 8 hours, sometimes up to 12 hours a day, without being paid overtime. In the interview with Hoanh Tan Nguyen, he complained that “we used to be forced to work extra shifts, 3 shifts a week, without extra pay, and to work overtime without overtime payment, or to work in night shifts also. For those working time, we were paid only 600,000 dong a month, not enough to our needs.”
5. Safety at workplace
The labor law requires the government to promulgate rules and regulations to ensure worker’s safety. In reality, the enforcement by MOLISA proved to be inadequate due to the shortage of well-trained inspectors. According to MOLISA statistics, the first half of 2005, there were 2,596 work-related accidents. In 2004, there were 6,186 injuries and 576 fatalities resulting from 6,026 work-related accidents, 55 percent more than in 2003.
Le Van Trinh, Director of the Institute of Scientific Research on Labor Protection reported that nationwide, workplace accidents and occupational diseases are increasing at an alarming rate. Trinh told participants at a seminar on labor protection in HCM City that from 1996 to 2001, on-the-job accidents increased about 130 percent.
The survey also found 17,416 laborers suffering occupational diseases and each year, about 20,000 laborers suffer from work-related accident. Labor safety officials blame the increase on poor inspection procedures, lax punishment of irresponsible employers, and poor working conditions, and a lack of basic safety.
Since most workers are deprived of basic benefits such as health insurance, retirement benefits and Workers’ Compensation Insurance, injured workers have to face an uncertain future and a real disaster.
6. Child labor
Labor Law prohibits child labor and limit the minimum age of 18 with some exceptions for certain types of work children between the age of 15 and 18 can work with the permission of parents and MOLISA. But the government estimates 23,000 children between the ages of 8 and 14 worked part-time or full time in violation of labor law. According to a 2002 survey, approximately 18 percent of children participated in economic activities, and of these, 63 percent did not go to school.
But most seriously, some reports about the trafficking in children and women to the foreign countries such as China, Cambodia, Macao, Malaysia, Korea and Taiwan. The ringleaders were found among cadres or gangsters aided by government’s cadres. Most of those children and women were forced to become prostitutes or sex slaves.
According to the US Department of State’s Report on Human Rights Practice 2005, between 1990 and 2000, approximately 20,000 women and girls were sent to China to become brides, domestic workers; however, it was not clear how many were victims of trafficking. Between 1995 and 2000, approximately 5,000 women and children were trafficked to and escaped from Cambodia. The government estimated that approximately 10 percent of marriages with Chinese men may have become trafficking.
An unofficial report estimated the number of Vietnamese brides in Taiwan amounts to more than 100,000 and 10,000 to 15,000 Vietnamese brides in Korea. It is unclear how many of those brides are victim of human trafficking. However, in many cases, it was reported that many “brides” have been forced to work as prostitutes or to work as maid or laborer.
7. The exports of laborers
In recent years, in an effort to resolve the unemployment crisis and to collect more foreign currency, the government let thousand of workers to find jobs in Taiwan, Korea, Malaysia and other countries. As reported by the Vietnamese press inside Vietnam, those workers had to sell houses, obtain loans with very high interests to finance the trip.
Lao Dong Magazine, on May 5, 2006 reported that the cost of obtaining the permit to work in foreign country is approximately 699 US dollars. But in fact, such permit costs more than 1,000 dollars, sometimes much more.
Many workers, after a short period of working at the foreign countries had escaped from the work places or from their employers, due to hardship or having been exploited by those bosses. Many workers became bankrupt and could not pay off the large amount of loan in Vietnam. In many instances, workers who quit jobs or were terminated by the new employers did not have money left to buy a return ticket and no government’s representative came to help them.
Conclusion
Vietnam is facing a real labor crisis with no solution available. For the meantime, the government has to offer a raise in the minimum wage, starting next October, and to promise to make some drastic “changes” and amendment of the labor law, since they realize they cannot apply an oppressive policy against their own workers and cannot suppress the “illegal strikes” organized by the workers, either. However, the government certainly will not let the workers organizing their own unions. The example of Poland prevented them from taking such suicidal measures. In that case, they will face stronger opposition, by means of strikes and possibly violent acts, from the workers themselves. The future therefore would be unpredictable, especially for the survival of the current regime, since the solution for the current labor crisis cannot be found in some amendments of the labor law but the change of the political system and the regime itself.
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