1.0 Introduction

In the years leading up to the 2012 Labour Code ratification, Vietnam had been engulfed in a number of worker-led strikes, which led to this reform outlining worker-employee relations. The document outlines the Vietnamese state’s objective to “guarantee the rights and interests of employers” and “guide employees and employers...to develop harmonious, stable, and advanced labour relations”.1 This would set the precedence for the labour rights scene in Vietnam, and the workers’ protests for fairer working conditions. This paper will examine firstly, the individual and collective rights of workers in Vietnam, highlighting the key reforms brought by the 2012 Labour Code reforms, as well as its limitations, particularly with regards to collective bargaining. Secondly, the paper will discuss worker’s strikes in the aftermath of the labour law reform, demands that characterise these strikes and how it reveals issues of realising effective collective action within the state union apparatus. Lastly, this paper will analyse in particular the state’s response to these demands. This paper will attempt to relate their subsequent reforms to the mounting pressure exerted by the international community for Vietnam to ratify and develop its labour practices in line with international labour standards, and its competing political and economic development agendas.

2.1 Individual and Collective Rights of Workers

Originally ratified in 1994, Vietnam’s amended 2012 Labour Code sought to codify the obligations of workers and employers within their contractual relationship. Articles 4 to 8 of this Labour Code partitions individual rights and collective rights of workers. Individual rights outlined included the ability “to work and freely choose their...occupation”, receive fair wages commensurate with ability and agreed-upon contract, to work in a safe work environment, and the ability to terminate their employment contract “unilaterally”.2 These were produced in consultation with their 12 ILO ratified convention commitments – such as C100 ‘Equal Remuneration Convention’, and C029 ‘Forced Labour Convention’, amongst others.3 In the clauses of these rights, they concerned other commitments, such as ‘minimum age for work, night work, underground work for women, weekly days off, labour inspection, and occupational health and safety’.4 The last three rights in the reform stipulated employees’ collective rights: the right to form, join and participate in a trade union, and the right to strike.5 While individual rights appear more or less in line with international standards, worker’s collective rights have often been the centre of international criticism, due to the institutional and legal constraints placed on these rights.

Arguably, the emphasis of the Labour Code on channelling labour disputes through the only state-managed trade union, the Vietnamese General Confederation of Labour (VGCL), limits the full realisation of the ILO conventions C098 right to collective bargaining, and C087 the right to freedom of association, which had not been ratified by Vietnam when the reform had taken place. In the Labour Code, it stipulates that employers are obligated to facilitate trade union activities and prohibited from interfering, or applying discriminatory measures against union workers.6 In one interpretation, this reform opens up the possibility for worker representation at the business/factory level. However, trade union law stipulates that all trade unions must be registered under the state’s only recognised trade union, the VGCL, absorbing all union activity effectively under state surveillance.7 This limits the capacity for the labour unions to fully represent workers’ interests at the grassroots level, upon negotiation with management. As Tran explains, in the negotiation process two representatives, from the management and the workplace level are present; however, often these union representatives are paid by management and have a conflict of interest reflecting simultaneously state, worker and management interests.8 Subsequently in the labour disputes process, their lack of representation for workers produces an obstacle for effective negotiation, and discourages workers from initiating in the legally sanctioned pathway for collective bargaining. Additionally, the negotiation process, depending on whether it is an ‘interest’ or ‘rights’-based dispute, could take several days, involving several levels of the VGCL apparatus, which theoretically could represent their interests more effectively than at the labour union level.9 Until an agreement is reached, this often debilitates recovery to normal production, and delays are frequent due to the highly bureaucratic nature of the process.10 The centralisation of both trade unions and its activities incapacitates it from being an effective means for collective bargaining. Legally, strikes are led by the VGCL and considered a last resort when consensus cannot be reached; however, in reality, worker-led strikes in Vietnam, contravene this process, effectively classifying in practice the expression of their collective bargaining as illegal.11

2.2 Worker Strikes and their Demands

In Vietnam, worker-led strikes often centre around exploitative practices of management, particularly in the Foreign-Direct Investment (FDI) sector. Despite FDI enterprises making up 2.5% of the total number of enterprises in Vietnam in 2010,12 70.8% of strikes within manufacturing, mining and construction sectors all occurred within FDI companies.13 Most of these strikes revolved around labour law violations by management, such unpaid and low wages, unsafe and abusive working environment, as well as inadequate allocated benefits (social security, health and unemployment).14 Poor working conditions characterise the FDI sector, with many exploiting the zoned minimum wage policies of Vietnam for cheaper labour and the layered marginalisation of migrant rural workers and women. Policies such as the Household Registration policy and Minimum Wage laws create ideal conditions for these companies to exploit rural workers’ social and financial precariousness and desperation for work.15 In a gendered analysis, women over-represent the labour force in these companies. Particularly in the manufacturing sector, women employed in Export-Processing and Industrial Zones (EPZs and IZs) in Ho Chi Minh City, share similar social profiles: aged 18-30, low skills, rural migrant background, and low education.16 Statistically, women are more likely to work without a written labour contract (47%) than men (30.9%), leaving them vulnerable to exploitative practices.17 In these FDI companies, non-compliance with labour laws, exploitation and abuse are endemic. In 2010 alone, of the 424 strikes recorded, 339 strikes were from FDI enterprises,18 demanding for poor compliance of labour working standards to be redressed. Inherent in these strikes is a concern for fairness in compensation and treatment, as well as a demand for their ‘rights and interests’ to be reflected in these companies’ conduct.19 Why then are violations of labour rights so endemic in FDI enterprises, despite reforms? The answer seems to lay in the state’s contradictory responsiveness and ambivalence toward labour rights, which reveals a deep-seated political and economic interest in maintaining a ‘harmonious’ relationship with foreign investors.

2.3 Political Economy of Labour Reform

Economic development policies favoured foreign investment historically, and its legacy continues in the VCP’s labour reform. When the Investment Law (2005) had been introduced, Vietnam subsequently restructured their economy around foreign investment, in an effort to invite overseas Vietnamese investors, relegating interests in domestic investment, as Tran explains.20 Poor law enforcement, combined with the zoning of minimum wages, low piece- rate contribution by supplier factories, and subsequent low contribution to worker benefits, led to the incubation of a growing, relatively insecure working class.21 This opportunity for low labour costs at the expense of these workers, serves to make Vietnam palatable for foreign investment and their exploitative practices. The Labour Code’s central philosophy reflects the state’s reluctance to address this class’s marginalisation in many ways. Through the emphasis to maintain ‘harmonious’ relations in their objective for labour unions,22 the Labour Code’s design in addressing labour-relations aims to quell strike action, rather than serve the interests of workers when their rights are not respected.23 For example, in one interview of a union official, they explain their role is to mediate conflict, and ‘to compromise bit by bit and reach a consensus’ through the legally sanctioned process of negotiations.24 However, as Tran points out, the state is not a monolith, with some party members being more pro-workers than others, leading to perhaps a mixed response to labour reform.25 This can be evidenced in the predominantly-based FDI worker-led strikes of 2005-2006, which campaigned for raising minimum wages, leading to a 40 percent increase,26 as well as the labour state press’ role in critiquing the enforcement of labour laws and labour rights advocacy.27 Arguably, instrumental to much of the labour reforms that occurred after the Labour Code, came from ratifying international trade agreements, in particular the TPP, EU- Vietnam free trade agreement and the CPTPP.28 Pham argues that their signing of these agreements gave rise to a revitalised interest in legislative chambers on reforming workers’ rights.29 Vietnam’s concession to ratify convention 98 in 2019, the right to organise and collectively bargain, is one example of such negotiations. Although, the one-state party continues to show resistance in committing to their international labour rights commitments, these concessions and subsequent labour law reforms reveal the contradictions inherent in the state’s authoritarian governance. While labour protests that demand political regime change are violently suppressed,30 the ongoing worker-strikes and the party’s own non- monolithic culture attest to a growing acceptance for labour reform. This highlights a contradictory stance of the party’s conception of itself, supporting economic development through foreign investment at the expense of workers, as well as maintaining politico- ideological legitimacy in the face of worker-led strikes.

3.0 Conclusion

As the state seeks to diversify its foreign investor portfolio, international pressure to conform to labour standards is still being deeply contested within the party’s labour policies. As ratifying ILO Freedom of Association would mean losing control over worker surveillance and ideological hegemony, the state’s commitment to this new economic plan would have to not only quell worker strikes and demands, but also balance the implications of committing to labour international standards. Labour reforms inextricably run in opposition to the functioning of a hegemonic one-party state. The full commitment to realising worker collective bargaining and freedom of association would mean a gradual acceptance of the human right to freedom of expression, amongst others. Whether Vietnam will produce this precedence lays entirely on future prioritisation of these competing political-economic interests.

FOOTNOTE

1 Tu Nguyen, Workplace Justice: Rights and Labour Resistance in Vietnam (Singapore: Palgrave Macmillan, 2019), 25.

2 Ibid.
3 Ibid., 24.
4 Ibid.
5 Ibid., 25.
6 Ibid.
7 Angie Ngoc Tran, Ties that Bind: Cultural Identity, Class, and Law in Vietnam’s Labor Resistance (New York: Cornell Southeast Asia Program Publications, 2013), 120.

8 Ibid.
9 Angie Ngoc Tran, “Alternatives to the “Race to the Bottom” in Vietnam: Minimum Wage Strikes and Their Aftermath,” Labor Studies Journal 32, no. 4 (Dec 2007): 444-45, doi: 10.1177/0160449X07300730.

10 Nguyen, Workplace, 36.
11 Ibid., 35.
12 Kaxton Siu and Anita Chan, “Strike Wave in Vietnam, 2006-2011,” Journal of Contemporary Asia 45, no. 1 (2015): 76, http://dx.doi.org/10.1080/00472336.2014.903290.

13 Kristen Nordhaug, “Labour Conflicts in the Socialist Market Economy: China and Vietnam,” in The Socialist Market Economy in Asia: Development in China, Vietnam and Laos, eds. Arve Hansen, Jo Inge Bekkevold, and Kritsen Nordhaug (Singapore: Palgrave Macmillan, 2020), 253.

14 Tran, Ties, 181.
15 Ibid., 262-63.
16 Ibid., 183-84.
17 Dung Kieu Nguyen et al., “Labour code, location, and migration,” The Economic and Labour Relations Review 34, no. 4 (2023): 807, https://doi.org/10.1017/elr.2023.50.

18 Tran, Ties, 181.
19 Nguyen, Workplace, 64. 20 Tran, Ties, 264.
21 Ibid.
22 Nguyen, Workplace, 31.

23 Ibid., 34.
24 Ibid., 38.
25 Tran, Ties, 152; Angie Ngoc Tran, “The Third Sleeve: Emerging Labor Newspapers and the Response of the Labor Unions and the State to Workers’ Resistance in Vietnam,” Labor Studies Journal 32, no. 3 (2007): 258, doi: 10.1177/0160449X07300716.
26 Tran, Ties, 138.
27 Ibid., 272; Tran, “The Third Sleeve”, 272-73.
28 Joe Buckley, “Freedom of Association in Vietnam: A Heretical View,” Global Labour Journal 12, no. 2 (2021): 82, https://doi.org/10.15173/glj.v12i2.4442.

29 Nghia Trong Pham, “Trade and Labour Rights: The Case of the TPP,” (Global Economic Governance Programme Working Paper No. 124, University of Oxford, UK, March 2017), 26, https://www.geg.ox.ac.uk/sites/default/files/GEG%20WP%20124%20- %20Trade%20%26%20Labour%20Rights%20%20The%20Case%20of%20the%20TPP%20- %20Nghia%20Trong%20Pham_0.pdf.

30 Anh-Susann Pham Thi, “Dissident Labour Activism in Vietnam,” Journal of Contemporary Asia (2023): 2, https://doi.org/10.1080/00472336.2023.2246207.

REFERENCES

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