Conditions for a Legal Strike under Vietnamese Labor Law

Striking is a legal right of workers in Vietnam, but it must comply with strict conditions under the Labor Code 2019 to be considered lawful. A legal strike must arise from a collective labor dispute, follow the prescribed procedures, and meet specific substantive and procedural requirements. Failure to adhere to these conditions can result in financial penalties and legal liabilities. This article examines the key legal requirements for a lawful strike in Vietnam, highlighting the necessary steps and potential consequences of non-compliance.

A strike is considered lawful when it meets the following requirements:

• It arises from a collective labor dispute within the scope of an employment relationship.
• The striking workers must be employed by the same employer.
• The collective labor dispute must have been handled by the relevant authorities, organizations, or individuals in accordance with the 2019 Labor Code.
• It does not take place in enterprises prohibited from striking, as listed in Appendix VI of Decree No. 145/2020/ND-CP issued by the government.
• It does not violate regulations on prohibited, postponed, or suspended strikes.

A collective labor dispute is a disagreement or conflict between a group of employees and their employer regarding labor rights, working conditions, wages, benefits, or other employment-related issues. These disputes typically arise when employees collectively demand changes or seek to resolve grievances that affect multiple workers within the same organization.

Under Vietnamese labor law, collective labor disputes are classified into two main types:

+ Disputes over rights: arising from disagreements about the interpretation or enforcement of labor laws, collective agreements, or company policies.

+ Disputes over interests: occurring when workers seek new benefits or changes in working conditions that go beyond existing agreements.

Only collective labor disputes over interests can legally lead to a strike, and the dispute must first go through a prescribed resolution process before workers can lawfully take collective action (Article 199).

Regarding this issue, it is important to note cases in which a strike is considered illegal, as stipulated in Article 204 of the Labor Code 2019:

1. The strike does not fall within the cases permitted under Article 199 of this Code.
2. The strike is not organized and led by a legally authorized workers’ representative organization.
3. The strike violates the procedural and procedural requirements set forth in this Code.
4. The collective labor dispute is still being handled by competent authorities, organizations, or individuals as prescribed by this Code.
5. The strike is conducted in sectors or enterprises where strikes are prohibited, as specified in Article 209 of this Code.
6. The strike continues despite an official decision to postpone or suspend it by a competent authority under Article 210 of this Code.

One notable aspect of this regulation is that it restricts unauthorized strikes, requiring them to be organized and led by a legally recognized workers’ representative organization. This prevents spontaneous or unofficial strikes that could disrupt industrial relations. Additionally, the requirement to follow proper procedures ensures that strikes are used as a last resort after negotiation and mediation efforts have been exhausted.

2. Procedures for conducting a lawful strike

When it comes to procedural issues, we need to keep in mind that there are certain legal regulations on when the right to strike arises, before actually conducting the strike. According to Article 199 Labor Code 2019: A workers’ representative organization that is a party to a collective labor dispute over interests has the right to carry out the procedures stipulated in Articles 200, 201, and 202 of this Code to organize a strike in the following cases:

1. Mediation has failed, or the mediation period specified in Clause 2, Article 188 of this Code has expired, and the labor mediator has not conducted mediation.
2. The Labor Arbitration Council has not been established, has been established but has not issued a decision to resolve the dispute, or the employer involved in the dispute fails to comply with the decision of the Labor Arbitration Council.

Based on the fulfillment of one of these two conditions, the strike may be conducted following the procedure stipulated in Article 200 of the Labor Code, consisting of 3 fundamental steps:

Step 1: Collecting Workers’ Opinions

For workplaces with a grassroots trade union, opinions are gathered from members of the union’s executive committee and team leaders of production units. In workplaces without a grassroots trade union, opinions are collected from team leaders of production units or directly from employees.

The time and method of collecting opinions (such as voting by ballot or signature) is decided by the union’s executive committee and must be announced to the employer at least one day in advance.

The opinion poll must include the following:

• The trade union’s proposed strike plan, including the starting time, location, and scope of the strike.
• The demands of the workers’ collective.
• Whether the employees agree or disagree with the strike.

If more than 50% of the surveyed workers agree with the trade union’s proposal, the union’s executive committee issues a written strike decision.

Step 2: Issuing the Strike Decision

The strike decision must include:

• The results of the opinion poll.
• The starting time and location of the strike.
• The scope of the strike.
• The workers’ collective demands.
• The name of the representative from the union’s executive committee and their contact information.

At least five working days before the strike begins, the union’s executive committee must send the strike decision to the employer, as well as provide copies to the provincial labor authority and the provincial trade union.

Step 3: Conducting the Strike

At the scheduled start time, if the employer refuses to meet the workers’ demands, the union’s executive committee will organize and lead the strike.

3. Consequences of non-compliance with legal requirements for a lawful strike

Clause 1, Article 217 of the 2019 Labor Code states that anyone who violates the provisions of this Code shall, depending on the nature and severity of the violation, be subject to disciplinary action, administrative penalties, or criminal liability. If the violation causes damage, compensation must be made in accordance with the law.

In the case of strikes, this Article provides two specific provisions in Clauses 2 and 3 as follows:

2. When a court has ruled that a strike is illegal, participating workers must immediately stop the strike and return to work. If workers refuse to comply, they may face disciplinary action under labor law, depending on the severity of the violation. Additionally, if an illegal strike causes damage to the employer, the workers’ representative organization that organized and led the strike must compensate for the damages in accordance with the law.

3. Individuals who take advantage of a strike to cause public disorder, damage machinery, equipment, or employer property, as well as those who obstruct the right to strike, incite, coerce, or force workers to strike, or those who retaliate against strike participants or leaders, may face administrative penalties or criminal prosecution, depending on the severity of the violation. If their actions result in damage, they must also compensate for the losses as required by law.

Accordingly, workers who participate in an illegal strike may face three possible consequences: disciplinary action under Article 124 of the Labor Code, which includes reprimand, salary raise delay (up to 6 months), demotion, or dismissal; liability for damages; and administrative penalties or criminal prosecution.

A lawful strike in Vietnam must strictly adhere to the Labor Code 2019, ensuring compliance with legal conditions, procedures, and restrictions. Workers have the right to strike as a means of collective bargaining, but it must arise from a legitimate collective labor dispute, be organized by an authorized representative organization, and follow proper legal steps. Failure to meet these requirements can result in disciplinary action, financial liability, or even legal consequences. Therefore, both employees and employers must clearly understand the legal framework surrounding strikes to protect their rights while maintaining industrial harmony and business stability.

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