Currently, Vietnamese law and practice are far removed from international labor standards on freedom of association and collective bargaining. First, according to the International Labor Organization, workers have the right to establish organizations of their own choosing without previous authorization, which implies the possibility of creating, if the workers so choose, more than one workers’ organization per enterprise. In Vietnam, the monopoly of the trade union system is imposed by law. Workers do not enjoy the true right to organize, and they cannot choose to establish or to join trade unions of their own choosing because there is only one legally recognized system of trade unions. The organization of trade unions is prescribed by the Charter of Vietnamese Trade Union adopted by the Vietnam General Confederation of Labor (VGCL).
Second, ILO international labor standards require that trade unions must be independent of authorities in both organizational operation and financial issues; trade unions must also be independent of employers in carrying out their activities. In Vietnam, trade unions are defined in the Constitution 2013 as sociopolitical organizations of the working class and laborers. This means trade unions are strongly reliant on the state in terms of both financial support and personnel management. At the same time, the law requires all employers to contribute to a trade union fund, which makes trade unions financially dependent on employers.
In its labor side agreement with the United States to implement the Trans-Pacific Partnership (TPP), Vietnam committed to incorporate those international labor standards into its legal system and implement them in practice. For the TPP to take effect, the revision of the Labor Code was put on the agenda of the National Assembly to bring domestic law into conformity with the requirements of the TPP. However, when the United States withdrew from the TPP, labor rights reform was delayed. In this context, many people argued that the need for labor rights reform is gone because there is no more demand for reform from the United States.
On the contrary, I believe that Vietnam should and must continue its labor rights reform by ratifying ILO Conventions 87 and 98 on freedom of association and collective bargaining. By incorporating standards provided in these Conventions into the domestic legal system and implementing them in practice, Vietnam will receive a lot of legal, political, and economic benefits.
The legal benefits of ratifying and incorporating ILO standards on freedom of association and collective bargaining can be measured by its promotion and protection of the relevant rights enshrined in the Constitution 2013 of Vietnam. Article 25 of this Constitution provides that the right to freedom of association in Vietnam is considered together with other rights, such as the right to freedom of speech, freedom of the press and right to demonstrate. However, the right to freedom of association is not an absolute right, as its “practice shall be provided by the law.” Nonetheless, the current legal framework is neither sufficiently comprehensive nor facilitative of freedom of association.
Since 1992, a draft of the Law on Associations has been under consideration in Vietnam, mostly by a drafting committee convened by the Ministry of Home Affairs. The draft has been the subject of intense debate and was submitted to the National Assembly for discussion in May 2015 but has not been adopted.
In the absence of domestic legislation, ratification, incorporation, and implementation of the ILO standards would play an important role in protecting the values and rights provided by the Constitution of Vietnam in three ways.
First, it would help to fill the gap within current regulations by being the direct source of Vietnam law. In Vietnam, ratified international treaties are direct sources of law and prevail over domestic law. Therefore, after ratification, provisions of the ILO core Conventions on freedom of association would be direct sources of Vietnam law. Thus, these provisions would contribute to protecting the freedom of association provided by the Constitution.
Second, ratifying these ILO Conventions would create momentum for the government to act. In Vietnam, most domestic law is in conformity with the substantive provisions of the ILO even before relevant Conventions have been ratified. However, ratification would provide an incentive for the government to take action to implement the relevant domestic regulations. Therefore, ratification and incorporation of the ILO Conventions on freedom of association would generate energy for enforcement and implementation of domestic regulations on the right to freedom of association, as protected by the Constitution.
Third, ratification and incorporation of Conventions 87 and 98 would enhance implementation in practice by imposing an obligation of enforcement on the state under the supervision of the ILO. Although domestic law might already be in conformity with the ILO’s substantive provisions, procedural provisions of the ILO’s Conventions require governments to carry out certain obligations provided by the supervisory mechanism of the ILO, for example, consulting workers’ and employers’ organizations in making reports, replying to requests from the ILO, etc.
Ratifying and incorporating the ILO Conventions on freedom of association and collective bargaining into Vietnamese law would allow Vietnam to achieve its political aspirations of democracy, human resource development, and foreign relations.
First, incorporating the Conventions on freedom of association and collective bargaining would further democracy, which contributes to achieving the goal of the party and state in Vietnam to build a more democratic and civilized society. Moreover, freedom of association and collective bargaining are tools to achieve industrial democracy, which is one of the bases for social democracy. Implementing this right gives workers a voice with which to express their aspirations, strengthens their position in collective bargaining, and enables them to participate in the framing and implementing of economic and social policy.
Second, incorporation and implementation of these Conventions would play an important part in the success of developing human resource. The United Nations has recognized that freedom of association is essential to the improvement of workers’ lives and their economic well-being. Furthermore, the right to freedom of association allows solidarity among workers while the right to collective bargaining allows workers to demand improved rights and interests. These rights empower workers in the negotiating process and protect workers from being exploited. They enable workers to make demands for other interests, including skills training and education.
Third, ratification of these Conventions would demonstrate Vietnam’s promotion of the ILO 1998 Declaration and also increase the status of Vietnam within the ILO, helping Vietnam to avoid criticism arising from the supervisory mechanism of the ILO. Incorporating and implementing Conventions 87 and 98 on freedom of association and collective bargaining into Vietnam would convey Vietnam’s active role in protecting and promoting inherent human rights at work. It would contribute to making Vietnam more reliable and more respected in international relations, as well as enabling Vietnam to avoid severe criticism from foreign countries and foreign organizations relating to allegations of human rights and workers’ rights violations.
In addition to legal benefits and political benefits, incorporation and implementation of ILO Conventions 87 and 98 will bring economic benefits to Vietnam.
First, according to the World Bank, ensuring freedom of association and collective bargaining can go a long way toward promoting labor market efficiency and better economic performance. If the right to organize and collectively bargain is recognized, promoted and protected, it will ensure the security of employment relationships, which plays an important role in maintaining sociopolitical stability, fostering economic growth, and attracting FDI.
Second, the EU-Vietnam FTA, finalized in 2016, is now awaiting signature and ratification. This FTA is expected to bring many benefits to Vietnam, like eliminating at least 90 percent of tariff lines on Vietnam’s exports to the EU and increasing EU capital sources for Vietnam. It will also be an important boost for Vietnam’s exports. The labor right commitments in the FTA derive from the ILO 1998 Declaration, including the right to freedom of association and collective bargaining provided by the ILO Conventions 87 and 98. Thus, Vietnam’s ratification, incorporation, and implementation of these ILO Conventions will contribute to the success of Vietnam’s implementation of its labor commitments under this FTA, which, in turn, would render a lot of economic benefits for Vietnam.
Thirdly, against the backdrop of the dead TPP, Vietnam is pursuing a bilateral FTA with the United States. Needless to say, this FTA will boost Vietnam’s economy; however, it will surely require strong labor provisions at least equal to those negotiated under the TPP. Therefore, in order to be able to secure an FTA with the United States, incorporating and implementing international labor standards on freedom of association and collective bargaining into Vietnam’s legal system is an important piece of preparation.
In conclusion, although strong demand for labor rights reforms all but vanished with the death of the TPP, there are many reasons for Vietnam to continue this reform process by ratifying and incorporating the ILO Conventions on freedom of association and collective bargaining into its legal systems. This reform will bring about triple benefits for Vietnam.
Dr. Nghia Trong Pham is a Global Leaders Fellow at the Global Economic Governance Program, based at University College and the Blavatnik School of Government.