- Difference between strike and go-slow?
| Strike | Go-slow | |
| Definition | Strike means a temporary and voluntary cessation of work which is well-organised by the Employee collective aimed at achieving demands during the process of handling labour disputes and being organised and led by the Organisation representing employees with the right to conduct collective bargaining as a disputing party [1]. | Go-slow means the acts of an Employee intentionally working together lazily, a form of fighting for the Employee’ rights. |
| How to perform | An Organisation representing Employees that is a disputing party to a benefit-based collective labour dispute is entitled to conduct a strike in any of the following cases: 1. The conciliation is unsuccessful, or the labour conciliator fails to initiate the conciliation within the time limit; 2. A labour arbitration tribunal is not established or fails to issue a decision on the settlement of the labour dispute; the Employer that is a disputing party fails to implement the settlement decision issued by the labour arbitration tribunal[2]. | The Employees leave work sporadically, work negligently, perfunctorily, do not comply with the ILR, do not use up working time and capacity of machinery and equipment. |
| Legal basis | The labour law specifically regulates the order as well as the rights and obligations of the Employees participating in a strike. Accordingly, a legal strike must be organised and led by the Organisation representing employees[3]. | It is not recognised by the labour law but is spontaneously performed by the Employees, not organised and led by the Organisation representing Employees. |
2. During or after the strike, does the Employer have the right to handle violations of labour discipline for any Employee participating in the strike?
The Employer is prohibited to terminate the LC or handle breach of labour discipline for any Employee participating in the strike, the leader of the strike or reassign the Employee or any strike leader to do other works or work at other locations due to their preparation for or involvement in the strike[4]. Therefore, neither before nor after the strike, the Employer is prohibited to handle breach of labour discipline for the Employees participating in the strike.
However, if the Court has issued a decision that declares that such strike is illegal, any Employee who fails to return to work shall be disciplined in accordance with the law[5].
3. Who are responsible for the damage that the enterprise suffers from illegal strike and how will compensation be made?
If an illegal strike causes damage to the Employer, the Organisation representing Employees who organised the strike and the strike leaders shall compensate for the damage as prescribed by law[6]. Accordingly, the Employer will send a written request to the Organisation representing Employees leading the illegal strike to compensate for damage. Based on the content of the Employer’s request, the Organisation representing Employees who organise the strike will be responsible for compensation for damage.
In addition, please note that there is no legal guidance on the order of negotiation when the Employers request the Organisation representing Employees organising and leading a strike to compensate for damage caused by the illegal strike. However, in the scenario that there are no legal regulations directly guiding the negotiation of compensation for damage caused by an illegal strike, the enterprise can refer to the process stated in Circular 29/2015/TT-BLĐTBXH of the Ministry of Labour, War Invalids and Social Affairs (guidelines for the Decree 05/2015/ND-CP which has expired). Accordingly, if the organisation representing Employees leading the strike does not agree with one of the main contents of the Employer’ written request for damage compensation, the parties will follow the sequence as below[7]:
i. Within 05 working days, from the date on which the compensation claim is received, the trade union leading the strike shall send the Employer a request for negotiation;
ii. Within 03 working days, from the date on which the request for negotiation is received, the Employer shall discuss, agree with the trade union on time, location, participants of the negotiation meeting on compensation for damage.
The meeting of negotiation shall be recorded in the meeting minutes in which includes signatures of the parties and the person recording such minutes, all issues that the parties have reached on the basis of consensus (if any) and other various opinions. The minutes shall be the legal basis to determine the rights and obligations of the parties in terms of liability for compensation.
Once the negotiation is over, if the negotiation is successful, both parties must abide by the negotiated settlement agreement; if the negotiation is not successful, either party may request the competent Court to handle the dispute in accordance with the law.
[1] Article 198 of the Labour Code
[2] Article 199 of the Labour Code
[3] Article 204.2 of the Labour Code
[4] Article 208.4 of the Labour Code
[5] Article 217.2 of Labour Code
[6] Article 217.2 of the Labour Code
[7] Article 7.1 of Circular 29/2015/TT-BLDTBXH dated 31/07/2015
