Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Viet Nam (Ratification: 1997)

Legislative developments. The Committee notes with interest that section 8(1) of the newly amended Labour Code (Law No. 10/2012/QH13 of 18 June 2012) extends the number of prohibited grounds of discrimination. Specifically, regarding the grounds enumerated in Article 1(1)(a) of the Convention, the new Labour Code adds “colour” to the previously prohibited grounds of gender, race, social class, belief or religion.

Regarding the grounds enumerated in Article 1(1)(b) of the Convention, the Committee welcomes the addition in the new Labour Code of “marital status,” “HIV status,” “disabilities”, and “establishing, joining a trade union or participating in trade union activities”. The Committee requests the Government to provide information on the implementation and enforcement of the expanded grounds of discrimination set out in section 8(1) of the amended Labour Code, including any measures taken or envisaged to raise awareness of these provisions among workers, employers and their respective organizations, as well as public enforcement officials, and any administrative or judicial complaints submitted to the relevant authorities in this respect., disaggregated by the type of alleged discrimination.

Article 1 of the Convention. Discrimination based on colour and national extraction. The Committee recalls its previous request to the Government to take practical measures to ensure the application of the Convention with respect to equality of opportunity and treatment irrespective of political opinion, national extraction and colour. In this respect, the Committee notes that, although section 8(1) of the Labour Code of 2012 now includes colour as a prohibited ground of discrimination, it continues to omit “political opinion” and “national extraction”. In this regard, while the Committee notes the Government’s indication that Decree No. 95/2013/ND-CP of 22 August 2013 establishes penalties for administrative violations on the grounds of discrimination, as defined in section 8(1) of the Labour Code, it emphasises that this Decree does not apply to the grounds of political opinion and national extraction. The Committee requests the Government to provide information on the application of Decree No. 95/2013/ND-CP of 2013 with regard to acts of discrimination on the basis of colour, as well as any other measures taken to ensure equality of opportunity and treatment irrespective of colour. The Committee also once again requests the Government to provide information on any practical measures taken to ensure the full application of the Convention in relation to equality of opportunity and treatment irrespective of political opinion and national extraction.

Discrimination based on religion. The Committee recalls its previous request to the Government to provide details of legislative measures that prohibit discrimination in employment and occupation on religious grounds. The Committee notes the Government’s indication that article 24 of the Constitution and section 8(1) of the Labour Code of 2012 include religion as a prohibited ground of discrimination. The Government adds that Decree No. 95/2013/ND-CP of 22 August 2013 imposes fines for acts of discrimination on grounds of religion, and that Decree No. 92/2012/ND-CP of 8 November 2012 provides details regarding the implementation of Ordinance No. 21/2004/PL-UBTVQH11 of 29 June 2004, which prohibits discrimination on religious grounds. However, the Committee notes that section 6(1)(a) of Decree No. 92/2012/ND-CP provides that, in order to obtain registration, the activities of a religious organization must not be in violation of sections 8(2) and 15 of Ordinance No. 21/2004/PL-UBTVQH11. Section 8(2) of the Ordinance prohibits the abuse of the right to belief and religious freedom in contravention of national laws and policies while section 15 provides that religious activities shall be ceased if they adversely affect the unity of the people or national cultural traditions. In this regard, the Committee recalls Directive No. 01/2005/CT-TTg concerning protestantism, adopted by the Prime Minister on 4 February 2005, prohibits attempts to force people to follow or to abandon a religion. The Committee notes that taken together the three laws allow for scenarios in which a worker, with a religious belief not recognized by the Government, may face discrimination by the employer in employment and occupation. In this regard, the Committee recalls that the Convention protects the expression and manifestation of religion, and that appropriate measures need to be adopted to eliminate all forms of intolerance (see General Survey on the fundamental Conventions, 2012, paragraph 798). The Committee requests the Government to provide information on the application in practice of Ordinance No. 21/2004/PL-UBTVQH11, Directive No. 01/2005/CT-TTg and Decree No. 92/2012/ND-CP, including information on the measures taken or envisaged to ensure that workers or employers with unrecognized religious views are not subject to discrimination in employment or occupation.

Discrimination based on social origin. The Committee notes that the Labour Code includes “social class” as a ground of discrimination that may have a narrower meaning than the ground of “social origin” contained in Article 1(1)(a) of the Convention. In this regard, the Committee recalls that discrimination and lack of equal opportunities based on “social origin” refer to situations in which an individual’s membership of a class, socio-occupational category or caste determines his or her occupational future, either because he or she is denied access to certain jobs or activities, or is assigned only certain jobs (see General Survey on the fundamental Conventions, 2012, paragraph 802). The Committee requests the Government to clarify how it interprets the term “social class”, and whether in its view this term is consistent with the term “social origin” as provided for in the Convention.

Article 3 of the Convention. Sexual harassment. The Committee notes with interest that section 8(2) of the Labour Code of 2012 prohibits sexual harassment at the workplace. Section 37 of the Labour Code provides for the right of an employee to unilaterally terminate a contract on the grounds of sexual harassment, and sections 182 and 183 specifically prohibit sexual harassment against domestic workers. However, the Committee also notes that the amended Labour Code still does not provide a definition of sexual harassment. In this regard, the Committee notes that a Code of Conduct on Sexual Harassment in the Workplace was developed in May 2015 by the tripartite Industrial Relations Committee with the support of the ILO, which defines both quid pro quo and hostile environment sexual harassment, as well as the term “workplace”. The Committee also notes that the Code of Conduct applies to all companies in both the public and private sectors, regardless of size, and aims to help employers and workers develop their own sexual harassment policies or regulations. The Committee notes the Government’s indication that Decree No. 04/2005/ND-CP of 11 January 2005 provides guidance on the enforcement provisions for sexual harassment contained in the previous Labour Code and defines the rights and obligations of the complainant and the person being complained against, the jurisdiction, procedures and enforcement of appeal decisions. It notes, however, that an equivalent Decree providing equivalent interpretation for the revised Labour Code has not been submitted by the Government. The Committee requests the Government to provide information on the implementation and enforcement of sections 8(2), 37, 182 and 183 of the Labour Code of 2012, including any measures taken or envisaged to raise awareness of these provisions among workers, employers and their respective organizations, as well as public enforcement officials, along with any administrative or judicial complaints submitted to the relevant authorities in this respect. It also requests the Government to provide specific information on the measures taken or envisaged to facilitate the application of the Code of Conduct on Sexual Harassment in the Workplace by workers and employers in both the public and private sectors, as well as information on any progress made in this regard.

Restrictions on women’s employment. The Committee recalls its request to the Government to take steps to ensure that protective measures restricting women’s employment are limited to maternity protection. The Committee notes the provisions cited by the Government regarding maternity protection, but also notes section 160 of the Labour Code of 2012, which prohibits the employment of female workers on work that is harmful to parenting functions, as specified in the list of types work issued by the Ministry of Labour, Invalids and Social Affairs (MLISA), that is work that requires regular immersion in water and regular underground work in mines. It notes the Government’s indication that the MLISA issued Circular No. 26/2013/TT BLDTBXH on 18 October 2013 which lists 77 job categories in which women are prohibited from working. In this regard, the Committee reiterates that protective measures for women should not go beyond maternity protection, as those aimed at protecting women generally because of their sex or gender are often based on stereotypical perceptions of their suitability, capabilities and appropriate role in society and are contrary to the Convention, and thus constitute obstacles to the recruitment and employment of women. The Committee wishes to point out once again that provisions relating to the protection of persons working in harmful or dangerous jobs should be aimed at protecting the health and safety of both women and men at work. The Committee requests the Government to provide information on the application of section 160 of the Labour Code of 2012, including a list of occupations prohibited under section 160(2) and (3), in addition to the occupations designated in Circular No. 26/2013/TT BLDTBXH of 2013. The Committee once again requests the Government to take measures to ensure that future revisions of the above Circular limit its restrictions to women who are pregnant or breastfeeding.

Articles 3 and 5. Prohibition of discriminatory recruitment practices based on sex, and special measures. The Committee recalls its request to the Government on the measures taken to curb discriminatory practices affecting women in recruitment, such as giving preference to male job applicants and discouraging female applicants by establishing requirements prohibiting marriage and pregnancy during a certain period following recruitment. In this regard, the Committee notes sections 8(1), 153 and 154 of the Labour Code of 2012, which prohibit discrimination based on gender and require the Government and employers to create employment opportunities for woman employees and to promote gender equality in recruitment. It also notes Decree No. 85/2015/ND-CP of 1 October 2015, which contains detailed provisions for the implementation of these sections, as well as specific provisions to improve the working conditions and health-care services available to women employees. The Committee especially welcomes the specific measures outlined in section 5(1)(b) of the Decree, which provides that the State shall ensure equal rights for men and women employees in recruitment through preferential treatment and tax reduction schemes. Section 5(2)(a) provides that the State shall encourage employers to “prioritize females in recruitment and assignment if the job is suitable for both males and females and the applicant is qualified”. The Committee also notes the Government’s indication that section 25(2) of Decree No. 95/2013/ND-CP of 22 August 2013 establishes a fine of between 5,000,000 and 10,000,000 Vietnamese Dong (VND) for acts of discrimination against, inter alia, gender and marital status, and that section 18 of the Decree specifies sanctions for the violation of provisions regarding women workers. The Committee requests the Government to provide information on the implementation and enforcement of sections 8(1), 153 and 154 of the Labour Code of 2012, as supplemented by Decree No. 85/2015/ND-CP of 2015, including any measures taken or envisaged to raise awareness of these provisions among workers, employers and their respective organizations, as well as public enforcement officials. The Committee also requests the Government to provide detailed statistical information on the application of sections 18 and 25(2) of Decree No. 95/2013/ND-CP of 2013, and any administrative or judicial complaints submitted to the relevant authorities in this respect.

Article 4. Measures affecting individuals who are justifiably suspected of, or engaged in, activities prejudicial to the security of the state. The Committee recalls its previous comments in which it noted that persons upon whom a ban under section 36 of the Penal Code has been imposed have the right to appeal the decision within 15 days of the date of conviction, and that the courts had issued various rulings banning persons from holding certain posts, practising certain occupations or doing certain jobs. The Committee recalls the Government’s previous indication that in practice bans can be imposed when a court judges that the continuation of the work by the convicted person may cause a danger for society, and that this could be the case in about 100 acts criminalized by the Penal Code, such as acts infringing the life, health or dignity of a person, acts infringing the freedom of citizens, drug-related crimes, acts infringing public order and security or acts interfering with justice. The Committee notes the Government’s brief reply referring the Committee to aggregated statistics on the numbers of court cases dealing with different types of labour disputes. The Committee notes, however, that this information does not reply to its previous request. The Committee therefore repeats its earlier request to the Government to provide information related to the rulings banning persons from holding certain posts, practising certain occupations or doing certain jobs; the offences in connection with which such bans have been imposed; and the number and nature of the appeals lodged and their outcomes.

The Committee is raising other matters in a request addressed directly to the Government.