I want to be advised on the circumstances in which a strike can be conducted under the legal manner and procedure. I hope FDVN Law Firm will give me an advice soon. Thank you!
Thank you for sending your question to FDVN Law Firm (“FDVN”). Please kindly be advised as follows:
. Circumstances in which a strike can be conducted
According to Article 198 of Labor Code 2019, “A strike is a temporary, voluntary and organized stoppage of work by the employees in order to press demands in the process of the labor dispute settlement. A strike shall be organized and lead by the representative organization of employees that has the right to request collective bargaining and is a disputing party.”
There are 2 circumstances in which a strike can be conducted:
- There is a dispute but the conciliation fails or over 05 working days, the labor mediator fails to conduct the conciliation;
- If the two parties do not agree with the conciliation result of the Mediator, the dispute will be sent to the Labor Arbitration Board. The Labor Arbitration Board may not be established or established but fails to issue a dispute settlement decision or the employer, who is one of the involved parties, fails to implement the dispute settlement decision of the Labor Arbitration Board.
. Law provisions on legal strike
First of all, the reason for strike must fall into two cases entitled to strike mentioned above.
Secondly, the strike must be conducted by a representative workers' organization.
Thirdly, the strike must be carry out in the following procedure:
- Survey on strike: Before going on strike, the representative organization of employees that has the right to call the strike as prescribed in Article 198 of this Labor Code shall survey all employees or members of the management board of the representative organization of employees.
- Strike decision and notice of starting time of a strike:
When over 50% of the surveyed people agree to carry out a strike, the representative organization of employees shall issue a written strike decision.
At least 05 working days prior to the starting date of the strike, the representative organization of employees shall send the strike decision to the employer, the People’s Committee of the district, and the provincial labor authority.
- Going on strike:
At the starting time of the strike, if the employer does not accept the demands of the employees, the strike may take place.
Fourthly, Collective labor disputes have not been resolved by competent agencies, organizations, or individuals under the law.
Fifthly, not falling into the cases where strikes are not allowed such as where the strike may threaten national defense, security, public order, and human health. The list of places where employers are not allowed to go on strike is specified in Appendix VI of Decree 145/2020/ND-CP.
Sixthly, the strike is organized when there is no decision to postpone or stop the strike from the competent authority.
When the above six conditions are satisfied, the strike is considered legal.
The above is FDVN's advice on your case. FDVN hopes that it will be useful to you.
Hà Hiền – FDVN Law Firm
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