English - CEDAW Southeast Asia

CEDAW and the Law:
Added criteria relating to protection of rights of the parties, rights and law-based decisions,
and provision of more appropriate remedies, even if it does not result in settlement,
must be considered as basis of good efforts at conciliation. Otherwise, there is a
tendency to overlook rights over settling proceedings quickly.
In relation to labour disputes, the Labour Code states that a labour dispute will be
resolved on the basis of the following principles: (a) direct negotiation and conciliation between
the disputing parties; (b) conciliation and arbitration on the basis of mutual respect of rights
and benefits, general social benefits, and compliance with the law; (c) publicly, objectively, and
in a timely manner; (d) the trade union organization of the enterprise and the representative of
the employer must participate in the resolution process of the labour dispute. 200 To resolve individual
labour disputes the following have competence: (a) the labour conciliatory council of an
enterprise, (b) a labour conciliator of the body in charge of State administration of labour of the
town, district or provincial city in cases where there is no labour conciliatory council; and (c)
the people's court. 201 Article 166 of the Labour Code provides for the disputes that may go
directly to the court without undergoing conciliation first.
A labour conciliatory council of an enterprise shall be established in enterprises
that have a trade union or a provisional executive committee of trade union, and consist
of an equal number of representatives of the employees and the employer. 202 The
number of members in the council shall be agreed by the enterprise and trade union.
Recommendation: In relation to the labour conciliatory council, the proportion of
women members must not be less than 30 percent in enterprises that have at least 30
percent women employees. Where the proportion is less than 30 percent, the number
of women members must reflect the proportion of women in the enterprise, but under
no circumstances should be less than one member.
Indicator 13
Is protection against gender discrimination extended to foreigners
100
The protection against gender discrimination in Vietnamese legal documents is extended
to foreigners. Article 81 of the Constitution provides: “Foreigners residing in Viet Nam …
shall receive protection with regard to their lives, possession and legitimate interests in accordance
with the provision of Vietnamese laws.” The Penal Code makes no distinction as to the
nationality of the victim of the crime, and it points out that it applies to all acts of criminal
offences committed in the territory of Viet Nam. 203 In relation to civil matters, the provisions of
civil law apply to civil relations involving foreign elements, unless there is a treaty to the contrary.
204 This includes matters relating to marriage and family, labour, and property rights.
V.1.3.4 Institutions and Mechanisms for Implementation and Monitoring 205
200
Labour Code, Article 158
201
Ibid., Article 162
202
Ibid., Article 163
203
Penal Code, Article 5.
204
Civil Code, Article 759
205
The Decree on Gender Equality, Decree on MOLISA and the Decision on NCFAW were adopted on June 4, 2008,
December 26, 2007 and August 22, 2008 respectively and not included in this review. The review, although based on
the context prior to the passage of the said legal documents, is still relevant in monitoring whether the recommendations
provided were addressed in the new legal documents.
Review of key legal documents and compliance with CEDAW