HANDLING STRIKES IN LABOR CODE 2025
Topic 41:
HANDLING STRIKES IN LABOR CODE
MSc. Lê Ngọc Anh
SUMMARY OF SITUATION AND RESOLUTION BY COMPETENT AUTHORITIES
Refer to Mai Chí, “Hải Phòng: 2,900 Tam Cường footwear workers cease work,” Lao Động: [link](https://laodong.vn/cong-doan/hai-phong-2900-cong-nhan-giay-da-tam-cuong-ngung-viec-1024990.ldo).
Summary of the Situation:
On March 18, 2022, and continuing for almost a week thereafter, thousands of workers from Tam Cường Footwear Factory, part of Đỉnh Vàng Co., Ltd., located in Tam Cường commune, Vĩnh Bảo District, Hải Phòng City (hereinafter Đỉnh Vàng Company), stopped work to demand:
– An increase in minimum wage as per legal regulations;
– Monthly fuel allowances for employees;
– An increase in lunch allowance from 12,000 VND to 15,000 VND per meal;
– A supplementary meal if working overtime in the evening;
– A 13th-month salary for employees;
– Social insurance contributions based on basic salary plus other actual received incomes.
Resolution by Competent Authorities:
Upon receiving information about the workers stopping work, representatives from Tiên Lãng District’s Labor, Invalids & Social Affairs Office, in coordination with representatives from Hải Phòng Industry and Trade Union, visited Đỉnh Vàng Company and worked with factory leaders to propose resolution measures.
As of March 25, 2022, Tam Cường Footwear Factory issued a final announcement agreeing to several worker demands:
– Employee wages will adhere to legal regulations.
– Fuel allowances of 150,000 VND/month/worker will be provided starting April 2022.
– Seniority pay adjustments will be made based on specific working years.
– Social insurance contributions will be calculated based on basic salary, seniority, and hazardous pay.
– Workers will be served meals at 15,000 VND per meal.
Additionally, the company clarified that if workers return to work, the days they ceased working would still be paid at minimum wage rates.
COMMENTARY
I. Introduction
Strikes are a pressing issue and a natural phenomenon within labor relations in a market economy. They reflect impasses in labor relations caused by unresolved conflicts over rights and benefits between employees and employers [“Strikes and Labor Relations in Vietnam,” Ministry of Labor, Invalids, and Social Affairs, accessed February 20, 2025].
In other words, strikes are both the manifestation of collective labor disputes and the outcome of failed resolutions to such disputes. Strikes can only occur within the scope of collective labor disputes and are not legally recognized if they do not stem from collective labor disputes. Moreover, strikes arise after attempts to resolve collective labor disputes through prescribed procedures fail to satisfy the collective workforce.
Thus, strikes represent the consequence of unresolved collective labor disputes. Additionally, they are a legally acknowledged method of economic struggle by the workforce to expedite dispute resolutions favoring employees. Strikes serve as an effective legal instrument compelling employers to fulfill their obligations under legal provisions, agreements with employees, and employer-issued regulations, or to meet workers’ demands.
In the case at Đỉnh Vàng Company, we observe that workers ceased work on March 18, 19, and 20, 2022, to achieve their demands. Subsequently, the company engaged in dialogue and negotiation with employee representatives and accepted most of their demands.
The question arises: under Vietnam’s current labor laws, was the cessation of work by Đỉnh Vàng Company’s workers a legally recognized strike? Moreover, what legal issues should employees and employers consider to protect their legitimate rights and interests during a strike?
II. Legal Issues
- Criteria for Determining Whether a Strike is Legal or Illegal
To address this issue, it is necessary to understand the concept of strikes and their distinguishing characteristics, as well as the definition of illegal strikes.
During the early 19th century, as the working class emerged, intense struggles between workers and the bourgeoisie began to take shape, resulting in the phenomenon of strikes. At that time, the term “work stoppage” was commonly used, referring to “the resistance of workers against brutal exploitation by the bourgeoisie or against dismissals—a collective struggle by many workers bargaining with employers by destroying machinery or workshops, gradually leading to a comprehensive movement by the working class to liberate themselves” [V. I. Lenin, Collected Works, Vol. 4, Progress Publishers, Moscow, 1994, p. 364. See also Ho Chi Minh City University of Law (2022), Labor Law Textbook, pp. 676].
With this perspective, strikes were historically more common in market economies, while in socialist countries, strikes were either not legally recognized or rarely occurred despite legal provisions. Today, nearly all nations acknowledge the right to strike as one of the fundamental human rights—an economic and social right afforded to employees.
In Vietnamese law, the right to strike was first recognized in Article 172 of the 1994 Labor Code (as amended and supplemented in 2006). In the 2012 Labor Code, strikes continued to be defined in Article 209 as “a temporary, voluntary, and organized work stoppage by a collective workforce to achieve demands during the resolution of collective labor disputes.”
This provision was inherited and expanded in Article 198 of the 2019 Labor Code to include organizational and leadership elements: “A strike is a temporary, voluntary, and organized cessation of work by employees to achieve demands during the resolution of collective labor disputes, organized and led by the employees’ representative organization authorized for collective bargaining and as a party to the collective labor dispute.”
Thus, under Vietnamese law, strikes are foremost collective work stoppages. They reflect the subjective will of the workforce, intentionally refraining from performing labor duties to exert pressure on the employer. This differs entirely from collective work stoppages caused by objective circumstances under legal provisions [see Article 99 of the 2019 Labor Code for cases of work stoppage due to objective reasons]. It also differs from the unilateral abandonment of work by individual employees or small groups without coordination or a common purpose—acts that may be deemed violations of labor discipline.
Such work stoppages are temporary and occur over a limited period, depending on circumstances. However, they are not intended to be permanent; employees do not seek to quit their jobs or work for others. The cessation of work is merely a form of expression and reaction, not the ultimate goal. After the strike, employees are expected to resume work.
The second characteristic of strikes is that they involve a complete cessation of work, during which participants refrain from performing any tasks within the labor relationship. This distinction sets strikes apart from sporadic work stoppages or slowdowns, often referred to as “go-slows,” which are considered non-comprehensive work stoppages. Such actions are not classified as strikes and are regarded as violations of labor discipline.
The third characteristic of strikes is that they are organized efforts. The organizational nature of a strike is evident in its execution under unified direction, leadership, and coordination by an individual or group, with participation and cooperation from others. Vietnamese law recognizes a strike as legal only when it is organized and led by an employee representative organization authorized for collective bargaining and as a party to the collective labor dispute.
The fourth characteristic of strikes is that they involve temporary work stoppages aimed at resolving collective labor disputes over benefits. This highlights the essence of strikes as both the outcome of unresolved collective labor disputes and a means of economic struggle by employees. This characteristic is crucial for distinguishing strikes from protests. While strikes are economic measures addressing collective labor disputes, protests are political actions targeting broader political demands. Consequently, protests are not aimed at resolving collective labor disputes.
In summary, under Vietnamese law, strikes are defined as temporary, voluntary, and organized work stoppages by a collective workforce to achieve demands during the resolution of collective labor disputes. A strike is deemed illegal under Article 204 of the 2019 Labor Code if:
(i) It does not fall within the scenarios permitted under Article 199 of the Code;
(ii) It is not organized or led by an employee representative organization authorized to conduct strikes;
(iii) It violates procedures and processes for conducting strikes prescribed in the Code;
(iv) The collective labor dispute is actively being resolved by competent authorities or organizations as regulated in the Code;
(v) The strike occurs under circumstances prohibited by Article 209 of the Code;
(vi) The strike proceeds despite decisions to postpone or halt the strike issued by competent authorities as specified in Article 210 of the Code.
Based on the characteristics and legal criteria outlined above, the collective work stoppage by Đỉnh Vàng Company workers to demand increased lunch allowances, meal stipends, and wages is classified as an illegal strike for several reasons:
First: While the work stoppage stems from the subjective will of numerous employees deliberately refraining from fulfilling labor duties to pressure the employer, the underlying causes are demands for increased basic wages, fuel allowances, inclusion of allowances in social insurance contributions, a 13th-month salary, higher lunch allowances, and additional food support for evening overtime work.
Although these demands reflect collective labor disputes over benefits, the workers’ assembly lacked the organizational leadership required for conducting formal negotiations. Collective labor disputes over benefits involve conflicts between one or more employee representative organizations and enterprises during collective bargaining processes or when one party refuses to bargain within legally defined timeframes [Clause 1, 3, Article 179 of the 2019 Labor Code]. In this instance, the workers merely gathered to present new demands to Đỉnh Vàng Company without initiating structured negotiations.
Second: The right to strike arises when collective labor disputes over benefits fail during mediation or exceed the statutory time limits without mediation by a labor conciliator. Alternatively, it arises if the labor arbitration council is not established or fails to issue dispute resolution decisions, or if employers disregard such decisions. Here, the work stoppage occurred without prior meetings, dialogues, or conflict resolution efforts, meaning this action was not the ultimate solution to the dispute.
Third: The work stoppage on March 18, 19, and 20, 2022, was spontaneous and lacked organized direction or unified leadership. The participants did not act in coordination or under collective guidance. Thus, the stoppage lacked the organizational nature required for legal strikes.
In conclusion, under Vietnamese labor law, the collective work stoppage by Đỉnh Vàng Company workers constitutes an illegal strike.
- 2. Consequences of Illegal Strikes, Legal Responsibilities of the Parties, and Measures to Limit Illegal Strikes
As analyzed above, the collective work stoppage by Đỉnh Vàng Company workers constitutes an illegal strike under labor law. Đỉnh Vàng Company has the right to request the court to declare the strike illegal under Clause 3, Article 203 of the 2019 Labor Code and seek compensation for material damages (if any). However, the practical implementation of legal consequences resulting from illegal strikes—particularly regarding mechanisms for determining and declaring strikes illegal and mechanisms for compensation—remains uncertain.
Notably, this situation, like many other strikes in Vietnam, highlights the high spontaneity of strikes. According to statistics, most strikes since 2004 have been spontaneous, occurring without adherence to the legal framework for collective labor disputes and without the involvement of employee representative organizations.
From 2009 to 2014, 3,104 collective work stoppages occurred across 40 provinces and cities, concentrated in key southern economic regions such as Ho Chi Minh City, Đồng Nai, Bình Dương, Tây Ninh, and Long An, as well as northern provinces like Hanoi, Hải Dương, and Hải Phòng. Foreign-invested enterprises accounted for 2,337 strikes (74.9%), with Taiwan and South Korea as notable contributors. On average, 300 to 450 collective stoppages occur annually, most being spontaneous, non-compliant with procedures, and lacking leadership from employee representative organizations.
Moreover, most of these strikes result in employers meeting the majority of employee demands, as seen in the Đỉnh Vàng case. This fosters a perception among workers that collective work stoppages are the quickest and easiest way to achieve their demands, leading to strikes becoming the first, rather than the last, method of dispute resolution. This is a concerning trend.
There are multiple reasons for the prevalence of spontaneous and illegal strikes in Vietnam:
- Economic Factors:Nearly 90% of strikes involve demands for employers to ensure rights and benefits regarding wages, bonuses, social insurance, working hours, rest periods, and labor contract execution [“Strikes and Labor Relations in Vietnam,” Ministry of Labor, Invalids, and Social Affairs, accessed February 20, 2025]. Workers often prefer immediate resolution of their demands, as the legal procedures for conducting strikes involve multiple steps, making spontaneous actions inevitable.
- Ineffective Bargaining Mechanisms: The 2019 Labor Code lacks effective mechanisms for early-stage bargaining. Information-sharing and bargaining between enterprises and employees are often insufficient from the inception of labor relations. Current laws emphasize bargaining only when disputes escalate into severe conflicts, whereas dispute resolution mechanisms require dialogue and negotiation from the moment disputes arise.
- Inefficient Employee Representation: The absence or ineffectiveness of employee representative organizations at enterprises exacerbates the problem.
To address these challenges and promote healthy labor relations, comprehensive solutions are needed, particularly in terms of mechanisms and policies:
- Enhancing Mediation and Arbitration:Organizations specializing in arbitration and mediation must be strengthened, with a focus on mediation efforts. Effective mediation can resolve disputes at their inception, minimizing losses for both workers and employers.
- Promoting Workplace Dialogue: Enterprises should encourage monthly or quarterly dialogues between employers and employees, as well as between managers and staff, to address conflicts early. These dialogues could be regulated by the government or formalized in the bylaws of the Vietnam Chamber of Commerce and Industry, Vietnam Cooperative Alliance, and Small and Medium Enterprise Associations.
III. Conclusion
The 2019 Labor Code provides clear criteria in Article 204 for determining illegal strikes. However, spontaneous, illegal strikes that bypass procedural requirements and lack organizational leadership remain widespread and are increasing. This trend negatively impacts enterprise operations, economic stability, and social-political security. Hence, effective legal and policy measures are essential to limit and address these issues.
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“The article’s content refers to the regulations that were applicable at the time of its creation and is intended solely for reference purposes. To obtain accurate information, it is advisable to seek the guidance of a consulting lawyer.”
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