Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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

Article 1(1) of the Convention. Grounds of discrimination. Legislative developments. The Committee notes the adoption of the new Labour Code of 2019 (Law No. 45/2019/QH14) that entered into force on 1 January 2021. It welcomes section 3(8) of the 2019 Labour Code which extends further the list of prohibited grounds of discrimination that were included in the 2012 Labour Code by adding five additional grounds, namely “national origin”, “age”, “pregnancy status”, “politics”, and “family responsibilities”. It notes with interest that the ground of “social class” has been replaced by “social origin”, to bring the text in line with the Convention. The Committee asks the Government to confirm its understanding that the grounds of “politics” and “national origin” correspond to the grounds of “political opinion” and “national extraction” laid down in the Convention. It also asks the Government to provide information on the application in practice of section 8(1) of the Labour Code, including information on any violation detected by the labour inspectors or addressed by courts, the sanctions imposed and the remedies granted. The Committee also asks the Government to provide information on any awareness-raising activities about these provisions undertaken for workers, employers and their respective organizations, as well as public enforcement officials.

Article 1(1)(a). Discrimination based on religion. The Committee notes that, in its report, the Government provides information on the adoption of the Law on Belief and Religion of 2016 that has replaced Ordinance No. 21/2004/PL-UBTVQH11. The Committee notes that section 5 of the Law prohibits, among other things, discrimination and stigmatization of people for their beliefs or religion. The Government states that at present 43 organizations belonging to 16 religions have been recognized by the State and have been granted registration to carry out their religious activities. The Committee notes that the United Nations Human Rights Committee (CCPR) expressed the following concerns: (1) that the Law on Belief and Religion unduly restricts the freedom of religion and belief, such as through the mandatory registration and recognition process for religious organizations and restrictions on religious activities based on vague and broadly interpreted legal provisions related to national security and social unity; and (2) that members of religious communities and their leaders, predominantly unregistered or unrecognized religious groups, ethnic minorities or indigenous peoples, face various forms of surveillance, harassment, intimidation, and property seizure or destruction, and are forced to renounce their faith, pressured to join a competing sect, and subject to physical assaults, which sometimes leads to death (CCPR/C/VNM/CO/3, 29 August 2019, paragraph 43). In light of the above, the Committee asks the Government to provide information on the implementation of the Law on Belief and Religion of 2016, in particular on any cases dealt with by the labour inspectorates or the courts regarding religious discrimination alleged by individuals with unrecognized religious beliefs, as well as their outcome.

Discrimination based on sex. Sexual harassment. In reply to its previous request on the application of the 2012 Labour Code provisions on sexual harassment, the Committee welcomes the fact that the 2019 Labour Code includes a definition of sexual harassment, which did not appear in the previous Code, and that: (1) according to section 3(9) of the Code, “sexual harassment at a workplace is any behaviour of a sexual nature by any person towards another person at a workplace that is not wanted or accepted by the latter person”; (2) section 3(9) clarifies that a workplace is any place where a worker undertakes work as agreed with or assigned by the employer; (3) section 6(2)(d) provides that employers shall develop and implement solutions to prevent sexual harassment at the workplace; (4) section 5(1)(a) recognizes workers’ right to be free from sexual harassment at the workplace; (5) section 118 establishes that employers must issue internal work regulations which shall include “prevention and control of sexual harassment at the workplace” and “Steps and procedures for handling sexual harassment at the workplace”; (6) section 125 provides that dismissal, as a disciplinary measure, may be applied by an employer in the case of a worker who commits sexual harassment at the workplace as defined in the internal work regulations; and (7) section 135 provides that the State shall implement measures to prevent sexual harassment at the workplace.

The Committee notes with interest that section 84 of Decree No. 145/2020/ND-CP of 2020, which supplements the Labour Code, further clarifying the definition provided in the Labour Code by indicating that sexual harassment “may occur in the form of a request, demand, suggestion, threat, [or] use of force to have sex in exchange for any work-related interests; or any sexual act that thus creates an insecure and uncomfortable work environment and affects the mental, physical health, performance and life of the harassed person”. The same section specifies that sexual harassment may include: actions, gestures, or physical contact with the body of a sexual or suggestive nature; sexual or suggestive comments or conversations in person, by phone or through electronic media; body language; and display, description of sex or sexual activities whether directly or through electronic media. Furthermore, section 84 of the Decree specifies that “workplace” under section 3(9) of the 2019 Labour Code means “any location where the employee works in reality as agreed or assigned by the employer, including the work-related locations or spaces such as social activities, conferences, training sessions, business trips, meals, phone conversations, communications through electronic media, shuttles provided by the employer and other locations specified by the employer”.

Concerning the application of the Code of Conduct on Sexual Harassment in the Workplace of 2015, the Committee notes the information provided by the Government concerning awareness-raising and capacity-building activities for labour inspectors. The Government observes that despite the increased awareness among different actors about the phenomenon and the applicable rules, few cases of sexual harassment at work are detected and addressed. According to the Government, this is partially due to the lack of understanding or the hesitation of the victims. However, in the Government’s view the main reason for the few cases detected and handled resides in the lack of specific and clear regulations on sexual harassment in the workplace and effective complaints procedures within enterprises, agencies and organizations. In order to address this weakness, the Decree No. 145/2020/ND-CP of 2020 provides guidance on the application of the relevant provisions of the 2019 Labour Code and the Ministry of Labour, Invalids and Social Affairs is planning to revise the 2015 Code of Conduct on Sexual Harassment in the Workplace. Welcoming all these developments, the Committee asks the Government to provide information on the application of the relevant provisions of the Labour Code and the Decree No. 145/2020/ND-CP, including examples of measures adopted to prevent sexual harassment pursuant to section 135 of the Labour Code and examples of internal regulations setting out measures and procedures to prevent and address cases of sexual harassment at work. The Committee also asks the Government to provide information on any cases of sexual harassment addressed by the labour inspectors and the judiciary, as well as disciplinary measures, including dismissal, applied by employers pursuant to the 2019 Labour Code. The Committee also requests the Government to provide information on the revision of the 2015 Code of Conduct on Sexual Harassment in the Workplace and its outcome.

Article 5. Restrictions on women’s employment. In its previous observation, the Committee requested the Government to provide information on the application of section 160 of the Labour Code of 2012, which prohibits the employment of female workers on work that is harmful to parenting functions, 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 also requested the Government to take measures to ensure that future revisions of the above Circular limit its restrictions to women who are pregnant or breastfeeding. The Committee notes with interest that, with the adoption of the 2019 Labour Code, the norms that established a ban on women’s employment in those cases considered harmful to parenting functions have been removed. In this respect, the Committee notes that section 142(1) of the 2019 Labour Code, concerning “occupations and work adversely affecting reproductive and child-nursing functions” provides that the Ministry of Labour, Invalids and Social Affairs shall issue a list of the occupations and works falling under this heading. Section 142(2) provides that the employer has a duty to provide adequate information to all workers about the dangers, risks and requirements of jobs, and to ensure statutory occupational safety and health for workers when requesting them to perform any work included in the list issued by the Ministry of Labour, Invalids and Social Affairs. At the same time, the Government indicates that the new Labour Code places an emphasis on women’s “choice” by establishing, for example, at section 137(2) that “a female worker who performs heavy, hazardous or harmful work or extremely heavy, hazardous or harmful work, or work that adversely affects reproductive and child-rearing functions, when pregnant and having informed the employer, is entitled to be transferred to lighter and safer work by the employer or to have her daily working time reduced by one hour without any reduction in her wages, rights and interests during the period while she is caring for a child less than 12 months old”. Likewise, section 137(1) leaves to the woman the choice to perform night work or overtime work or to go on long-distance work trips. Welcoming these changes, the Committee asks the Government to provide information on the application in practice of both sections 137 and 142 of the 2019 Labour Code, and in particular, regarding: (i) whether the reduction of daily working time provided for in section 137(2) applies to pregnant women; and (ii) whether any awareness-raising activities have been foreseen or undertaken for workers and employers, and their respective organizations, as well as public enforcement officials, regarding these two provisions. The Committee also asks the Government to provide a copy of the list of occupations and work adversely affecting reproductive and child-nursing functions issued by the Ministry of Labour, Invalids and Social Affairs under section 142(1) of the 2019 Labour Code.

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