Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Legislative developments. The Committee notes that the Labour Code is in the process of being amended. The Committee notes that section 9(1) of the draft Labour Code prohibits discrimination based on the grounds of gender, race, social class, belief or religion, and omits the grounds of colour, national extraction and political opinion. The Committee further notes that the prohibition only covers discrimination in employment, the labour relationship and work, and does not cover all aspects of employment and occupation included in the Convention, namely access to vocational training and education, vocational guidance and placement services, recruitment, advancement, security of tenure of employment, remuneration for work of equal value, and terms and conditions of employment. The Committee asks the Government to take the opportunity of the legislative revision process to include provisions in the Labour Code explicitly defining and prohibiting direct and indirect discrimination based on at least all the grounds set out in Article 1(1)(a) of the Convention, namely sex, race, colour, religion, political opinion, national extraction and social origin, in all areas of employment and occupation. Please provide information on the progress made in this regard.

Sexual harassment. The Committee welcomes the Government’s intention to include a specific provision concerning sexual harassment in the Labour Code which is in the process of being revised. The Committee notes however that section 9(2) of the draft Labour Code prohibiting “sexual harassment against employees” does not provide a definition of sexual harassment and does not indicate whether both quid pro quo and hostile environment sexual harassment are covered. The Committee also notes that measures are being taken to raise awareness on sexual harassment, such as launching an information campaign with the participation of the media. The Committee asks the Government to provide information on the adoption of section 9 of the draft Labour Code, prohibiting sexual harassment, and encourages the Government to take steps in order to include a clear definition and prohibition of both quid pro quo and hostile environment sexual harassment in employment and occupation. The Committee also asks the Government to provide more information on the information campaign and other measures taken to raise awareness on sexual harassment amongst workers, employers and their organizations. Please also indicate the relevant procedures and remedies which are currently available under the legislation to address complaints of sexual harassment.

Restrictions on women’s employment. The Committee recalls its previous comments in which it noted that labour laws and regulations are revised on a yearly basis, including the list of occupations from which women are barred. The Committee notes that the Government has provided a list of draft revisions to be brought to Circular No. 3/TT-LB of 28 January 1994, setting out the harmful and dangerous jobs from which women are barred while removing some occupations, the list also adds four new occupations from which all women workers would be barred (operator of cement packing machine, cleaner of a cylinder in a cement factory, operator of a production and bottling of HCI acid and operator of equipment for drying, liquefying and bottling). The Committee notes the Government’s indication that the Circular needs to be revised to prohibit the employment of women when jobs adversely affect female workers more than male workers, as is the case when a female worker is pregnant or feeding a small child, and the harmful or dangerous factors may adversely affect the child. The Government also indicates that the possible use of the general criteria of a job “not suitable to the mental and psychological setting of female workers” is being studied and clarified. The Committee considers that such broad and general restrictions based on a job “not suitable to the mental and psychological setting of female workers” would be discriminatory and contrary to the Convention. The Committee recalls that protective measures for women should not go beyond maternity protection, and that those aimed at protecting women generally because of their sex or gender, based on stereotypical perceptions about their suitability, capabilities and appropriate role in society are contrary to the Convention and constitute obstacles to the recruitment and employment of women. The Committee also notes 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 asks the Government to take measures in order to ensure that in the upcoming revision of Circular No. 3/TT/LB of 28 January 1994, it is made clear that the restrictions are limited to women who are pregnant or nursing. The Committee also asks the Government to ensure that in the revision of the Labour Code, any protective measures for women are limited to maternity protection.

Discriminatory recruitment practices based on sex. The Committee recalls its previous comments in which it noted the 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. The Committee notes the Government’s indication that measures have been taken to put an end to the discriminatory practices affecting women in recruitment and employment, such as the inclusion of section 32 in the draft of the revised Labour Code prohibiting employers to “force the worker to comply with such obligations which limit his/her legitimate rights” when an employment contract is being concluded. The Committee also notes that Decree No. 55/2009/ND-CP of 10 June 2009, regulating administrative sanctions on violations of gender equality, sets out in section 8(2)(a) a fine of 5,000,000 to 10,000,000 Vietnamese dong (VND) for employers who “refuse or limit the employment of male or female due to gender reasons, except such that support gender equality, dismiss an employee for gender reasons or pregnancy, maternity leave or having children”. The Committee asks the Government to provide information on the progress of the adoption of section 32 of the draft Labour Code and on the practical application of section 8(2)(a) of Decree No. 55/2009/ND-CP of 10 June 2009, and to take measures in order to monitor their application and to effectively eliminate discriminatory recruitment practices affecting women.

Discrimination based on political opinion, colour and national extraction. The Committee notes the Government’s repeated statement that no discrimination on the basis of political opinion, colour and national extraction exists in Viet Nam. The Committee notes the Government’s indication that article 5 of the Constitution prohibits discrimination based on political opinion and article 54 provides for the right to vote without discrimination based on certain grounds, including national extraction. The Committee also notes that section 9(1) of the draft Labour Code, which prohibits discrimination on certain grounds, omits the grounds of colour, national extraction and political opinion. The Committee emphasizes once again that combating discrimination is an ongoing process and that the absence of discriminatory provisions in the law, and the fact that no complaints have been raised with the authorities, are not indications of the absence of discrimination. The Committee asks the Government to provide information on any practical measures taken to ensure full application of the Convention with respect to equality of opportunity and treatment irrespective of political opinion, national extraction and colour.

Discrimination based on religion. The Committee notes that section 9 of the draft Labour Code includes the ground of religion in the prohibition of discrimination. The Committee had previously requested information on the application of section 8 of the Ordinance No. 21/2004/PL-UBTVQH11 which prohibits discrimination on religious grounds, and more particularly with respect to persons whose religion was not recognized under section 16 of the Ordinance. The Government indicates that Decree No. 22/2005/NP-CP provides detailed instructions on the implementation of the Ordinance. The Committee also notes that Directive No. 01/2005/CT-TTg was adopted by the Prime Minister on 4 February 2005 concerning Protestantism, prohibiting in section 2 attempts to force people to follow or to abandon a religion. The Committee further notes the Government’s indication that approximately 85 per cent of the population follow a religion, which accounts for 25 million people and that 32 religious organizations have been recognized by the Government. The Government also indicates that the main religions in Viet Nam are Buddhism (10 million followers), Catholicism (6 million), Cao Dai (2.4 million), Hao Hao Buddhism (1.3 million), Protestantism (1.5 million), Islam (1.5 million), Tink do Cu sy Buddhism (1.5 million) and Baha’i (7,000). The Committee asks the Government to provide more specific information on Decree No. 22/2005/ND-CP and to indicate whether it gives any instructions on applying section 16 of Ordinance No. 21/2004/PL/UBTVQH11 setting the conditions for religions to be recognized, and to indicate whether any religious organizations have been refused recognition. The Committee also asks the Government to provide information on the application of Directive No. 01/2005/CT-TTg and to indicate any further measures taken to protect persons against discrimination in employment and occupation.

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 courts had issued various verdicts banning persons from holding certain posts, practising certain occupations or doing certain jobs. The Committee notes the Government’s indication that in practice, bans can be imposed when the court judges that the continuation of the work by the convicted person may cause a danger for the society, and that this could be the case in about 100 acts criminalized by the Penal Code, such as acts to infringe life, health, dignity of a person, acts to infringe freedom of citizens, drug-related crimes, acts to infringe public order and security or acts to infringe juridical activities. The Committee asks the Government to provide information related to the verdicts 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 the outcomes thereof.

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