Luận án: Thỏa ước lao động tập thể - So sánh hệ thống luật lao động Thụy Điển & Việt Nam

HOANG THI MINH COLLECTIVE AGREEMENTS - A COMPARATIVE STUDY OF SWEDISH AND VIETNAMESE LABOUR LAW SYSTEMS Specialty: International and Comparative Law Code: 62 38 60 01 TRUNG TAM THONG TIN THU VIER TRUONG ĐẠI HỌC LUAT HÀ NỘI PHÒNG BỌC__ “2⁄4 f DOCTORAL DISSERTATION OF LAW Supervisors: - Prof. BIRGITTA NYSTROM - Prof. DAO THI HANG HANOI -2011 Acknowledgement My study is the result of a process to which many people contributed. First, I am greatly indebted to my Swedish supervisor, Prof.

Birgitta Nystrom, for her dedicated guidance, advice, and support. As her student since 2002, I have constantly benefited from her expertise. I was so fortunate to have the opportunity of learning from her not only legal knowledge, but also the way to work professionally. This study would not have existed or completed if she had not given me her precious guidance.

I did not understand that collective agreements are so important to a labour market until I started digging deeper in the subject. To help me develop my study and reach the necessary understandings, she spent a great deal of time reading my manuscript, commenting on and discussing its content. She made herself constantly available to me, encouraged me so much and inspired me to work on my subject from its beginnings to the final stages of the study. I would also like to express my deepest gratitude to my Vietnamese supervisor, Prof.

Dao Thi Hang, whose suggestion and guidance contributed greatly to my work. Being her colleague at Hanoi Law University, I could meet her regularly and discuss various matters in the field of labour laws, receive her encouragement and helpful information about our labour market. She gave me insightful comments. She was always available for any discussion regarding my thesis and gave me her full support in any activities related to the research, thus creating favourable conditions for me.

I would like to express my sincere gratitude to Prof. Christina Moell and Asst. Bengt Lundell who always supervised and gave all the Vietnamese students their wholehearted support and helped us handle any difficulties during the course of our studies. After seminars held to assess my progress towards the completion of this study, I also received many thoughtful, objective and constructive comments, advice and suggestions from members of the examinationypanel.

I would like to specially thank Asst. Bengt Lundell, Prof. Per Ole Traskman, Prof. Michael Bogdan, Dr.

Nguyen Kim Phung, Prof. Nguyen Viet Ty and Prof. Nguyen Huu Chi. Their opinions helped very much in developing and improving my thesis.

I am indebted to many professors and colleagues in Lund University, Suffolk University Law School, Max Planck Institute and Swedish National Mediation Office. I am especially grateful to Prof. Reinhold Fahlbeck, Prof. Hans-Heinrich Vogel, Prof.

Holger Knudsen, Prof. Daeubler Wolfgang, Prof. Lars Goran Malmberg, Prof. Hans Henrik Lidgard, Asst.

Mulder Johann, Dr. Mia Ronnmar, Niklas Selberg and Mr. Kurt Eriksson, for their kind support, instruction, helpful materials, valuable advice, explanations of legislative systems and their encouragement. Also, I would like to take this opportunity of sincerely thanking the librarians, assistants and staff for providing me the most favorable study facilities and technical support.

Also, I am indebted to my colleagues in the Ha Noi Law University, especially in the Labour Law Section who supported me by undertaking additional teaching duties, providing me with the precious gift of time off to do the research. I would also like to thank the institutions concerned including the Ministry of Labour - War Invalids and Social Affairs, the ILO Office in Hanoi, the Vietnam General Confederation of Labour, and the Vietnamese Supreme Court as well as the research centers and businesses in Vietnam for providing relevant information and data for the thesis. I would like to give my warmest thank to Prof. Pham Huu Nghi, Prof.

Pham Cong Tru, Dr. Luu Binh Nhuong, Dr. Do Ngan Binh and Mr. Nguyen Viet Thung, Mr.

Dao Van Thu for materials and interesting discussions or opinions regarding specific issues relating to my study. My gratitude and appreciation go to my dear friend, Harry Larsen Rice, for his great help in my study of English and the search for materials. He made his help available by way of explanations of Latin phrases, English idioms and special expressions in documents that I was dealing with as well as translating short texts in French/German when necessary. He also gave me encouragement and valuable advice on how to handle difficulties during the research process.

I would like to thank the Sida, for financing my research as part of the project "Strengthening of Legal Education in Vietnam". I owe my deep gratitude to the Project Management Board and those who helped organize our studies and offered adequate conditions enabling us to complete our research tasks. My special thanks belong to Asst. Bengt Lundell, Dr.

Nguyen Quoc Hoan, Dr. Nguyen Van Quang, Ms. Cu Thuy Trang and Ms Nguyen Thu Thuy. I am also grateful to Philip Horowitz, who helped me proof read the whole text and suggested many corrections and improvements.

Finally, I wish to express my deepest gratitude to my parents and my son for their unlimited support and love. I had most favourable conditions for work; I was fully energized by having them beside me. I would very much appreciate receiving any further constructive opinions and comments on this study. I can be reached at minhminhdh!@yahoo.

Minh Thi Hoang TABLE OF CONTENT Chapter 1: Introducfion. Research tasks, delimitation and definitions. Methods and materiaÌS.15 3c 11 cv vn ng nrưn 8 I9 -u oi. 16 Chapter 2: Some basic issues on collective agreements.

Concept of collective agreemenfS. ---- 5-5 ĂSs+sx s2 sesseesee 17 2. Interrelation between collective agreements and other legal instruments regulating the labour market. Collective agreements and international labour law.

Collective agreements and national labour law. Collective agreements and individual labour relations law. Collective agreements and collective labour relations law. Collective agreements and individual contracts.

Collective agreements and work rules. Collective agreements and work agreements. Collective agreements and company practices. Features of collective agreemennfS.

Nature of collective agreemens. The “Contract” nafure. The “legal Morm” nafure. -- - - -- -- << tt ng HH HH ngà 38 2.

Role of collective agreeMentS. Implementing labour legislation. Balancing social partners’ interests, stabilizing labour relations. Creating equally competitive environment for enterprises.

Consolidating discipline at work and supporting production. Forms of collective agreement. HH HH HH HH HT TH 46 D2, COREA POTION s.secgrsnieosnecesstoseese-exaBesessexesdBnEsoaaoHi ao iscla408- 55 xSkos518BseE0a6550146s. Tacit-COMSENE FOF 0.

The content of collective agreemenfs. ETTPÏOVTTIETIE SEGUITẨY s¡cuueonioinaaeoennridodisnionoDaaidaosEENEGRHD. Working time and leave.- --- --- -- 2à Tà HH“ ng nưkp 52 2. WAGES ANG EMU ALON ssiincanisccicarscenrarsconxseaancanvonanennanoreneamasnnernnnmneasennaans 53 2.

Occupational safety and health. Social security and Welfare. Cooperation and communication between the trade union and the MANAGEME MM.7; Resolution Of CONT Gs: seeeeeseeeeenernarrorentdinrioigrrisodiirtroliibssgiosituiieraostgginorsixsgt 58 2. Clauses of Application scope and effect of collective agreement.

Legal effect of collective agreemenfS. Binding or not binding2. --- -- s4 HH Hi HH nh.-- - --- ---- SL HH H HH HH HH HH HH Hư 67 2. Conflicting collective agreemens.

Duration of collective agreemenfs. Classification of collective agreemenfs. International collective agreemens. Global collective agreermenfS.

-- --- ---«+- se sex cv. vn HT re 85 2. Regional collective agreermenifS. National collective agreemenIs.

Intersectoral collective agree@MenNt. Industry-wide collective agreement. Company-level collective agreement. Recognition of collective bargaining agents.

Conditions for collective bargaining and status of collective agreement development in some major market economies. Collective agreement legislation-an overview. International labour ÌaW. vn ng nghe 125 3.

Primary issues of international labour law. Concept of international labour ÌW. The rise of international labour ÌaW. The purposes of international labour lawWS.

International framework for collective agreements. Glebe Ine iS ecg rere 128 IV S. Regtorial Tia[Turri6niE. Main regulation of international labour law in the collective agreement 20s] san co 288D.

ngggy angg0tgagSiEN5300030010003058182N596955700811G10ĐSP.NHIHRDXRGIIRSGNETADEUENI-NMEHEDIEM/GUAIGD0-G01000T00002300 138 3. The influence of international labour law on the Swedish and Vietnamese sysSftems. - - -- LH HH HH HH ng HH ng Hư 143 3. The influence of international labour law on the Swedish system.

The influence of international labour law on Vietnamese system. Collective agreement legislation and collective agreement development in Sweden and Vietnam. Collective agreement legislation and the development of the collective agreement in SwWede. Collective agreement legislation and collective agreement development in Vietnam.

ccc sceeeessesseeesenssessseeseeeseasenseneeseeeseeeneeeeeeeers 160 Chapter 4: Current regulation on collective agreements in Sweden and Vietnam. Conclusion of collective agreemenfS. Parties to collective agreemens. EffylDWse: SỈ saeseneesensninuodinraniitnddiltgtittrdipstsi0ENESNVSISGHESRHtiptSNsgtitisgNISGGISSDSSNGSIEGEES 169 $.

Trade tHnböni th SĐT cacaueoaronrseeriidEoinitdaursdeavodggig01640854395/440955488A0567-ESGS. Trade WOR 1 VÏBEHHÍNoiiasndsnennsrsratnrsiiadtkekkgESECSLEM0110/2409NH/. The Swedish erHDÏO@T.-- -< ĂĂ St HH KH HH HH HH. The Vietnamese €IIDÏO€FF.-- 5-2 s5 5n HH HH HH HH nh 190 1.

Making a Pema seuoeesnnverrnnsensirronnorrnnotddruoibnnornlionitidtgnDgKDASnSGTEO2AA0000/80 00159 192 Ä.- --- - ---- <2 TH TH TH TH TH KH TH 203 4. Signing a collective agreement. Registering collective agreemenIS. na seuss gà5nnhĩngtha bung Gousuaci3a40IG01nu8NĐR103000157M850100417308 206 4.

Authorities responsible for collective agreement registration. Procedure of registration.-- ---- ---- - SH HH HH ri 210 4. Implementation of collective agreemenfs. Termination of collective agreemens.

Invalid Collective agreerneniÌS. Legal grounds for invalidating collective agreements. Authorities who can declare a collective agreement to be invalid. Legal consequences of invalid collective agreements.

Disputes concerning collective agreemenfs. TRUSS OF HÌSBHES neeeseeensneenennrornnnnnnnieontonnrtitgrtrtttttiag0g1000050000000500330089001008. Dispute settlement bodies.-- ccc ĐÀ SH ren E29/E) 4. Dispute settlement bodies in Sweden.

Dispute settlement bodies in Vietnam.-- -----ccc sec Hrkereeeree 231 4. Dispute settlement procedure. Dispute settlement procedure in Sweden. Dispute settlement procedure In Vietnam.

Violations relating to collective agreemens. Concept of violations relating to collective agreements. Forms of violations and treaftment. - --- ---ccc se, 243 Chapter 5.

Promoting collective agreement development in 5. Creating fundamental conditions for trade union development. Strengthening Vietnamese trade union system. The necessity of trade union innovation.

Specific actions needed to enhance the trade union’s role. Strengthening the primary organization. Improving the personnel of the plant-level trade unions .2 Activating and tightening the links between trade unions at different levels. Clearly stating trade union rights and responsibilities in law and adding II ,Ao-.

Protecting trade union officials from anti-union treatment. Strengthening trade union’s economic condifions. Rebalancing the trade union CoSt SÍTICÍHF€. Enriching trade union HHỚS.Ô <5 HH gen eae: 5.

The issue of payment for staff of primary HHHOTIS. Organizing both sides for collective bargaining. Improving the law relating to collective agreements. Expanding bargaining actors on the employee side.

Using strikes in supporting collective agreement conclusion. Collective agreement registration, a mandatory procedure affirming the legitimacy of the agreement before application. Dealing with clauses which are incompatible with labour law provisions but appear well suited to the specific situations of the ETHIIETIDTISEEBseeaeendienoaenrengrorosoiooresreosStngsrsgBBfnuaausoiiusaesgslBfBWiarasrosltoasgpviififaswnnastss. Duration of collective agreemenfs.

Applying collective agreements in the event of the reorganization of AM UNdertaking. Amendment of collective agreements. Expiry of collective agreemens. Sector-level collective agreements, a new development.

The trade union’s representative role in setting labour disputes. Industrial peace obligation and iiability for the illegal strikes. Completing the mechanism relating to the settlement of labour PGiSPUute 2c ÔÔÔÔ. Reinforcing labour law implementation.

Overcoming some other difficulties confronting collective agreement GevelopMent. Lack of awareness of collective agreements and trade unions. Lack of knowledge of labour law. Lack of experiences and skills needed for collective bargaining.

Lack of resources and Competence.ccccccceeseeescecsecsseseceseeseeneeeees 297 Related publicafions. - --- -- LG ng ng nên 302 References and appendix .