Suggestions for improvement in Vietnam employment laws in the context of gender equality
Tạp chí Khoa học & Công nghệ Số 11
90
Suggestions for improvement in Vietnam employment laws
in the context of gender equality
Quang Ha Tran Nguyen
Lecturer at the Faculty of Law of Nguyen Tat Thanh University
Nhận
23.07.2020
Abstract
Được duyệt 29.09.2020
Improving gender equality in the workplace is an urgent task for Vietnam Communist Party and
the Government. Despite the ratification of international conventions on labour, women rights,
as well as amendment to relevant domestic laws, it appears that the provisions have not satisfied
the requirements set forth to combat discrimination at work against women. Through this
Công bố
30.10.2020
Keywords
article, the author intends to propose some ideas to improve the laws on the protection of the gender equality;
current female workers’ rights based on the 2012 Labour Code (amended and supplemented in legislation; employment,
2019), related laws and sub–law documents.
female worker, Labour
Code; Vietnam
® 2020 Journal of Science and Technology - NTTU
perspective of law, women and men are basically equal in
economy, politics, culture and society. Although the
implementation of equal rights between men and women
still exists and many provisions of the law are equal, they,
in fact, have not guaranteed the true equality. To overcome
gender gaps is an important task in order to ensure the
interests of each gender in the implementation of human
rights in Vietnam as in President Hồ Chí Minh’s advice
considering the issue of men and women equality as, “A
rather big and difficult revolution because of the disdain for
male is a habit of leaving thousands of years. Because it is
deeply ingrained in the minds of everyone, every family,
every social class, we must revolutionise every person,
every family, to all people. Although it is tremendous and
hard but it will definitely be successful” [1].
1 Introduction
In Vietnam, like in other developing countries, women
continue to be the main force constituting to the poor, low-
income labour group, which is more likely to be subject to
unemployment, and have precarious employment
conditions than men. Women also constitute the majority of
unpaid family work, and of the ‘invisible’ part of the
informal economy - they work as domestic workers, on
street vendors or work in the entertainment industry. The
position of women in the labour market is severely affected
by socio-economic disadvantages resulting from gender-
based discrimination. Vietnamese women often have less
access to production resources, education, skills
development and employment opportunities than men. The
main cause of this situation is that the Vietnamese society
assigns women a lower status and places the burden of
unpaid housework on the shoulders of women. Current
efforts are increasing the opportunities of women in
business environments, preventing labour exploitation of
children and women, and enhancing gender equality in
labour legislation, such as prohibiting discrimination on all
forms either directly or indirectly, promoting equal pay,
preventing sexual harassment and balancing the retirement
age for women and men.
The 2012 Vietnam Labour Code (amended and
supplemented in 2019)i and other legal documents are still
currently in the process of amending and gender equality is
an important content to be adjusted to comply with the
requirements and practices of society, enterprises and
international integration. Gender equality at work can
create many occupations, improve the quality of jobs, and
expand employment opportunities for men and women.
i The Labour Code No. 45/2019/QH14 passed by the XIV National
Assembly on 20th November 2019 with many new sections and
articles, will take effect from January 1st 2021.
Ensuring gender equality in Vietnam in the current period
has made significant progress compared to before. From the
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This is the ‘key’ to improve labour productivity for
businesses, especially in the context that Vietnam is deeply
involving in regional and international economies.
sending children to kindergartens of workers. The cost of
the employer when implementing these measures and other
measures to ensure and promote gender equality are entitled
to the preferential policies of the State under the tax law.
Employers are obliged to help and support the construction
of kindergartens and the cost of sending children to
kindergartens of workers. At the same time, adding clear
regulations, when implementing measures to ensure and
promote gender equality, employers are entitled to the
State’s support policies. The costs of the enterprise
supporting the construction of kindergartens or part of the
costs of sending children to kindergartens for workers are
counted as reasonable operating expense in production and
business.
Based on the above context, the study will highlight some
recommendations for Vietnamese employment law as well
as contributing to ameliorating the laws that relate to sexual
equality in order to ensure human rights and enhance the
social value of the law.
2 Some particular suggested improvement in
gender equality on employment laws of Vietnam
2.1 Protecting maternity, reproductive and child raising
functions of female workers.
The 2012 Labour Code (as well as the 2019 version) still
has some gender inadequacies. That is the situation of
enterprises restraining the use of female workers due to fear
of increasing costs due to the implementation of maternity
leave, and organising kindergartens for their children. The
restriction of female workers’ rights to work in some jobs
has affected female employment opportunities, and hence,
there are some ways to promote gender equality.
Thirdly, the State is responsible for creating plans and
measures to establish kindergartens in places where there
are many workers with comprehensive regulations and
guidelines. This is a problem that has not been clearly
reflected in the Labour Code, but has been stipulated in the
Education Law 2006 (amended in 2009), the 2016 Law on
Children and National Strategies, Plans and Economic
Development Plans. Local authorities must include the
goals of children into mandatory contexts of local
strategies. The State should have more policies to
encourage participation in the private sector, considering it
is a conditional business under the 2019 Education Law,
and the 2020 Investment Law. Especially, if employers
themselves spend money building kindergartens for their
workers, these expenses will be considered to be reasonable
expense to be entitled to tax incentives from the
Government.
Fourthly, the addition of “installing room for collecting and
storing milk’ to the new Labour Code aims to ensure higher
enforcement and consistency with the provisions of the
2016 Law on Children, ‘Children have the right to be cared
for and nurtured to develop comprehensively” [4]; “The
Government encourages agencies, organisations, families
and individuals to support and take care of children and
disadvantaged children. Organisations and individuals that
provide care services to children shall receive support
policies on land, taxes and credits” [5]. Moreover, that
“Employers install a room for collection and storage of
breast-milk that is suitable to the actual conditions in their
workplace, the needs of female workers and the ability of
employers, help female workers (who raise children over 12
months of age) to collect and store breast-milk at work”
should be added into Decrees or Circulars guiding the 2019
Labour Code.
Firstly, female employees are entitled to social insurance
allowance when they take leave from work for pregnancy
check-up, miscarriage, abortion, dead foetus in womb,
implementation of contraceptive methods, taking care of a
sick child who is under 07 years of age or for nursing an
adopted child under 06 months of age [2]. This is an
interesting issue because the 2013 Constitution mentioned
the equal rights between men and women in implementing
reproductive and child raising functions, however, the new
Code has not specified this issue to create consistency and
uniformity in the legal system as well as in line with
Vietnam’s international commitments. That is to say, it is
necessary to amend the Code in the way that men also have
the rights to take care of sick children and still receive
benefits according to the Law on Social Insurance. At
present, men are only allowed to take care of their wives
who give birth to children[3]. It is necessary for female
workers to take prenatal and postnatal leave so that mothers
can restore their health and have a good source of milk for
their children. But from the perspective of gender equality,
the father also needs to share the nursing of young children,
so Article 155 of the 2012 Labour Code (Article 137 of the
2019 Labour Code) needs to be revised and/ or
supplemented in the direction of stipulating that the father -
the male worker also has the right to take leave to care for
his wife and children at a certain time; and at the same time
allows the husband to take a break in lieu of his wife, after
the wife has left a certain time to recover her health.
Finally, lawmakers also need to review the regulations that
female employees who are pregnant have to dismiss their
jobs because ‘labour contract expires’, making it more
suitable to current practice. Because, once the labour
Secondly, employers are encouraged to participate in
organising kindergartens and partly support the costs of
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contract expires at the time that the female employee is
pregnant, no enterprise will negotiate and enter into a new
contract because the health and quickness of pregnant
employees during this period decrease. Legislators should
resurrect the Article 111(3) of the 1994 Labour Codei:
during pregnancy, women are granted to postpone
unilaterally termination of labour contract, even if the
employer has reasons (specified in Article 38) to
unilaterally terminate the labour contract. This regulation is
very humane and suitable for the protection of women
rights in accordance with the nature of the Labour Code.
2.2 Improving anti – sexual harassment regulations.
The concept of sexual harassment in the workplace needs to
be improved as well. According to Research Report
“Sexual Harassment at the workplace in Viet Nam: An
Overview of the Legal Framework” [6], it is important for
the Government to initiate a legal document guiding the
implementation of the relevant articles of Labour Code that
relate to sexual harassment at work.
Article 3(9) of the 2019 Labour Code is concerned with the
definition of sexual harassment, which is “a sexual act of a
person against another person in the workplace against the
latter’s will. When encountering this behaviour, the victim
has the right and obligation to actively collect, provide and
hand over documents and evidence to competent state
authorities and prove his/her request is valid and legal”. In
practice, however, this behaviour is not easy to prove and
even if there is evidence, it is difficult to apply the laws to
handle. Therefore, it is proposed that the burden of proof
should be transferred from employees to the employer, and
the employee is only responsible for informing that there is
a sexual harassment behaviour in the workplace as
adversarial system countries.
When the Government issues new decrees defining and
providing guidance on the implementation of a number of
contents of the 2019 Labour Code, they should include
regulations that focus on protecting victims of sexual
harassment from retaliation, especially hiding their
confidential information and sensitive images.
employees and their family. However, it is difficult to
determine the minimum living needs. Therefore, this article
should be, “Minimum wage is the lowest payment for an
employee who performs the simplest work in normal
working conditions”. Furthermore, it is necessary to study
and assess the minimum wages applied in countries in the
world with the same level of development as Vietnam, and
on that basis, calculate the minimum wage for Vietnamese
employees to ensure the equality between domestic
employees and the employees around the world. The
minimum wage should be determined and adjusted based
on these factors: Minimum living standards of employees
and their families, correlation between the minimum wage
and common salary of employees on the market, consumer
price index, economic growth rate, labour supply and
demand relations, employment and unemployment, labour
productivity and affordability of businessesii.
Secondly, the sanctions for handling violations of wages in
general and the minimum wage in particular are not really
effective, leading to the handling of violations facing many
difficulties. The current level of sanctions (from 20,000,000
VND to 75,000,000 VND) in Article 16(3) of Decree No.
28/2020/ND-CP[7] does not really protect workers,
therefore a change in sanctions is required to deal with the
current issue. Increasing the sanction level higher than the
current one will ensure that employers rule the law. A
specific monitoring mechanism should be developed in
enterprises, such as: The lowest salary within the enterprise,
strengthening the functions of the monitoring organisations
in the enterprise, and building a compensation mechanism
for employees if violations happen.
Thirdly, it is necessary to clearly define the responsibilities
of the authorities in the process of implementing
regulations on minimum wage. Specifically, there should be
regulations on the responsibilities, tasks and authority of the
Government, management authorities and the National
Wage Council in guiding the implementation of the
minimum wage policy. There should be regulations on the
responsibility of local authorities and relevant authorities in
supervising the implementation of laws in the localities.
Lastly, the 27-NQ/TW Resolution [8] stated that, from
2021, the government will not directly intervene in the
salary policy of enterprises. The role of the Trade Union
will also change to receive adequate wages. The
government will gradually reduce direct intervention in
salaries for employees, which is a progressive trend in the
market mechanism. Minimum wage is only the lowest rate,
2.3 Minimum wage.
Firstly, the current Labour Code stipulates that the
minimum wage must ensure minimum living needs of the
iAn employer is prohibited from this missing a female employee
or unilaterally terminating the labour contract of a female
employee for reason of marriage, pregnancy, taking maternity
leave, or raising a child under twelve (12) months old, except
where the enterprise ceases its operation. During pregnancy,
maternity leave, or raising a child under twelve (12) months old, a
female employee shall be entitled to postponement of unilateral
termination of her labour contract or to extension of the period of
consideration for labour discipline, except where the enterprise
ceases its operation.
iiIf a minimum wage exceeds the affordability of the business, it
will not create productivity, competitiveness between markets,
between businesses. Therefore, the adjustment of the minimum
wage must also take into account the affordability of businesses.
Đại học Nguyễn Tất Thành
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so it needs to be negotiated to be in accordance with labour
prices. The role of Trade Unions must be further enhanced,
the biggest of which is wage negotiation through collective
bargaining discussion agreements. Next, the employees
themselves must be aware that they have the right to
negotiate wages, which are written in the employment
contract. For a long time, workers have not realised their
value; when recruited, they do not dare to bargain about
salary but agree with the level given by enterprises. In order
for employees to reach a satisfactory salary, they also need
the assistance of the Trade Union in providing information,
rights and obligations.
occupations and jobs that adversely affect child-bearing and
parenting functions after the 2012 Labour Code was
amended and The CEDAW (The Convention on the
Elimination of All Forms of Discrimination against
Women) Committee recommended Vietnam to review and
reduce the list of occupations prohibited to women in
Circular No. 26/2013/TT-BLDTBXH [9].
However, in term of heavy and toxic occupations that may
adversely affect child-bearing and parenting functions,
legislators may have to make separated regulations,
creating the best conditions for women to have a choice.
3 Conclusion
2.4 Right to work.
Female workers should be entitled to make their own
decisions about choosing jobs that adversely affect child-
bearing and parenting functions provided that they are fully
informed about these jobs. Ensuring this right will create
many economic benefits for both workers and social
insurance as it does not have a tremendous impact on the
state and businesses. At the same time, it helps businesses
pave the way for recruiting workers at work in accordance
with the law and reduce violations. In sub-laws guiding the
new Labour Code, gender equality should be amended in
the way that regulations on employment will not prohibit
female employees from performing their tasks that may be
detrimental to child-bearing and parenting functions in
order to ensure all the right to choose jobs. Currently, the
Ministry of Labour, Invalids and Social Affairs is collecting
comments on the Draft Circular to issue a list of
Overall, promoting sustainable jobs and better income for
women and men in a free, equal, safe and respectful dignity
environment are two of the main priorities of the ILO
Sustainable Employment and Economic Development
(SEED) programme (its target is to lessen strifes by
improving employment and economic prospects and
focusing on the young and women in insecure areas).
Integrating gender issues into promotion and job creation
will help improve efficiency for productivity and economic
growth, human resource development, sustainable
development and reduce poverty. Advances in increasing
female labour force and narrowing the income gap between
men and women have been taking place worldwide over the
past decades. However, we still need to make more efforts
to bring gender equality in employment into reality.
References
1. Hồ Chí Minh toàn tập (7) (2011), Hà Nội, NXB Chính trị Quốc gia, 340 - 342.
2. Labour Code 2012, art 159.
3. The Law on Social Insurance 2014, art 31(1)(e).
4. Law on Children 2016, art 15.
5. Law on Children 2016, art 42(2).
6. MOLISA and ILO, Research Report “Sexual Harassment at the workplace in Viet Nam: An Overview of the Legal
Framework” (Ha Noi, March 2013) <https://www.ilo.org/wcmsp5/groups/public/---asia/---ro-bangkok/---ilo-
hanoi/documents/publication/wcms_206106.pdf> accessed on August 28th 2019.
7. The Government, Decree No. 28/2020/NĐ-CP on Penalties for Administrative Violations against Regulations on Labour,
Social Insurance, and Overseas Manpower Supply, March 1, 2020.
8. Party Central Committee, Resolution on the Reform of Salary Policy for Civil Servants, Public Employees, the Armed
Forces, and Workers of Enterprises, May 21, 2018.
9. The Ministry of Labour, War Invalids and Social Affairs Circular, No. 26/2013/TT-BLDTBXH on Promulgating the list
of jobs in which the employment of female workers is prohibited, October 18, 2013.
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