DECREE

ON LABOUR FOR ENTERPRISES WITH FOREIGN OWNED CAPITAL

In accordance with the Law on Organization of the Council of Ministers of the Socialist Republic of Vietnam dated 4 July, 1981;
In accordance with the Law on foreign Investment in Vietnam dated 29 December, 1987;
On the proposal of the Minister of Labour War Invalids and Social Affairs;

DECREES:

Article 1

Labour regulations for enterprises with foreign owned capital in the Socialist Republic of Vietnam are hereby promulgated.

Article 2

The Ministers, Chairmen of State Committees, heads of other bodies under the Council of Ministers, and chairmen of the people's committees of the provinces, cities and special zones under central authority shall ensure the implementation of this Decree.

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This Decree shall be of full force and effect as of the date of its promulgation. All previously issued provisions which are inconsistent with these regulations are hereby repealed.

FOR OF THE COUNCIL OF MINISTER
VICE CHAIRMAN




Vo Van Kiet

REGULATIONS

ON LABOUR FOR ENTERPRISES WITH FOREIGN OWNED CAPITAL
(Issued with Decree No. 233-HDBT of the Council of Ministers dated 22 June 1990.)

Chapter I

GENERAL PROVISIONS

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These Labour Regulations shall apply to employment in enterprises with foreign owned capital (hereinafter referred to as enterprises), which are established and operating within the territory of the Socialist Republic of Vietnam pursuant to the Law on foreign Investment in Vietnam.

These Regulations shall also apply to foreign employees in enterprises, unless stipulated to the contrary in other laws.

Article 2

for the purposes of these Regulations the following terms shall have the meanings ascribed to them hereunder:

1. Director of the enterprise means the chief executive officer in charge of the management and regulation of the enterprise. He, or a person authorized by him, shall, on behalf of the enterprise, sign labour contracts and collective labour agreements.

2. Labour representative means the chairman or a person who is authorized by the executive committee of the trade union or of an organization belonging to the Vietnam General federation of Labour or, alternatively, where an enterprise does not have a trade union organization, a person appointed by the employees of the enterprise to represent them.

3. Collective labour agreement means an agreement established through collective negotiations, signed by the labour representative in the enterprise and the director of the enterprise (or a person authorized by him), for the purpose of providing gene ral conditions for employment and labour relations in the enterprise.

4. Labour contract means an employment agreement for remuneration signed by an employee and the director of the enterprise (or a person authorized by him) in which the parties commit to the terms and conditions of employment and adopt their respectiv e rights and obligations in relation to labour relations.

5. Definite term labour contract means a contract for a fixed period of time determined in advance in the contract.

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Chapter II

LABOUR RECRUITMENT AND TRAINING

Article 3

An enterprise is entitled to recruit Vietnamese citizens aged eighteen (18) years or older in any of the following ways:

1. To recruit from those who are introduced by the local labour office, and who meet the criteria and qualifications required by the enterprise.

2. To engage a labour supply company or an investment service company to recruit labour in accordance with the criteria and qualifications specified by the enterprise.

3. In the event that those who are introduced by the local labour office or through the labour supply company or investment service company, do not meet the requirements of the enterprise, the enterprise shall be entitled to publish widely an advertisement for labour recruitment, and may even recruit persons who reside in other localities provided the local labour office is informed.

Article 4

for the purpose of training, the enterprise may employ workers aged sixteen (16) years or older. If, at the end of their training, those workers are still under the age of eighteen (18) and the enterprise requires them to work, it must obtain the approval of their parents or guardians. Where those workers have no parents or guardians, approval shall be obtained from the local labour office.

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Article 5

In the event that advanced technical, managerial or other qualifications are required in respect of which Vietnamese personnel are not available, the enterprise may recruit foreigners for a fixed period of time in accordance with the procedures stipulated by the State of Vietnam. The enterprise is obliged in doing so, however, to make and implement a plan to train Vietnamese personnel to replace those foreign employees at the earliest possible time.

Article 6

The enterprise shall, at its own expense, make a general training plan. It may establish schools and training courses within the enterprise and send its employees at all levels for training elsewhere in Vietnam or overseas in order to improve their occupational skills. Local bodies may co-operate with and support training plans which are of benefit to the locality.

Chapter III

LABOUR CONTRACTS

Article 7

In every case of employment of a Vietnamese worker a labour contract shall be negotiated and signed in writing by the employee and the director, or a person authorized by him, of the enterprise.

A labour contract shall be signed in accordance with the standard form issued by the Ministry of Labour War Invalids and Social Affairs.

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A labour contract may be signed in any of the following forms:

1. A definite term labour contract.

2. An indefinite term labour contract.

3. A labour contract for a specific or seasonal job.

Where a definite term labour contract has reached the time of expiry but the employee wishes to continue working and neither side wishes the contract to end, it shall become an indefinite term labour contract.

Article 9

Labour contracts which are mutually agreed upon and signed by both parties shall comply with the provisions of the labour law and the collective labour agreement, and shall contain the following essential information: the work to be done; the place of work; salary and wages to be paid; duration of the contract, rights of occupational safety and social insurance to be provided in accordance with the provisions of the law, and conditions under which any trial work shall be carried out.

Labour contracts shall be made in duplicate, with each contracting party keeping one copy.

Article 10

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The parties may agree to sign a trial contract. The contents of each trial contract shall include the essential information referred to in article 9 and the salary or wage to be paid which shall be the equivalent of at least seventy (70) per cent of the total salary or wage which would be paid to a permanent employee. During the trial period, either party may terminate the contract without giving notice or compensation. At the conclusion of the trial period the worker shall be informed of the results o f the trial work. Where the trial period expires without notice from the enterprise and the worker continues working, a labour contract shall be considered to be in force.

Article 11

A labour contract shall be effective as of the date agreed by the parties. Where the parties have not agreed on such a date the contract will be deemed effective as of the date on which the worker actually commences work or trial work.

Article 12

If, during performance of the labour contract, either party wishes to amend it, that party shall give notice in advance to the other party of its intention, and any change agreed shall be made in accordance with the same principles and procedures original ly adopted in the signing of the contract. Where the change is in relation to any of the items referred to in article 9, a new labour contract shall be signed unless the circumstances referred to in article 13 are applicable.

Article 13

1. Where necessitated by business, an enterprise may transfer an employee to another working place or to other duties, provided this is for no more than thirty (30) days and notice has been given. Where the transfer is for more than thirty (30) days or to another locality, the consent of the employee must be obtained and the terms and conditions must be agreed upon by both sides. Where the employee does not consent, the transfer shall not take place.

2. In an unexpected or emergency case caused by force majeure, which prevents work from continuing in the manner stipulated in the contract, the enterprise may transfer the employee to other duties or another working place for a maximum period of sixty (60) days. Where the transfer is for a period greater than sixty (60) days or to another locality, the consent of the employee must be obtained and the terms and conditions agreed upon by both sides. Where the employee does not consent, he or she is entitled to allowances for temporary suspension of employment in accordance with the provisions of clause 2 of article 44.

Article 14

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1. The duration of the labour contract has expired or the work stipulated in the contract has been completed.

2. Both parties have agreed to terminate the contract.

3. The investment license has expired or been canceled and, as a result, the enterprise has been forced to cease operation, is dissolved or liquidated.

4. The employee is sentenced for a term of at least six months imprisonment or otherwise convicted by a court, with the result that he or she is forced to discontinue work.

5. The employee has died.

Article 15

The employee is entitled at any time, unilaterally, to terminate an indefinite term labour contract, provided however that notice is given as stipulated in article 18.

The employee is entitled, unilaterally, to terminate other types of labour contracts in any of the following cases:

1. Where the enterprise fails to provide proper work as described in the labour contract, except in the cases specified in article 13 of these Regulations.

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3. Where the enterprise maltreats the employee.

4. Where, due to poor health or a difficult family situation, the employee is unable to perform his or her duties under the labour contract.

Unilateral termination of labour contracts shall take place in accordance with paragraph 1, and notice shall be given in accordance with the provisions in article 18.

Where an employee is obliged to carry out obligations imposed in accordance with laws or is elected or nominated to certain public positions, suspension or termination of the labour contract is to be agreed upon by the contracting parties. The labour cont racts of employees who are detained by law enforcement agencies may be suspended or terminated in accordance with the duration of detention.

Article 16

An enterprise is entitled, unilaterally, to terminate a labour contract in any of the following cases:

1. The employee repeatedly fails to carry out his or her duties in accordance with the terms of the contract.

2. The employee commits an offense of theft, embezzlement or any act in breach of any other law, causing serious loss or damage to the property and interests of the enterprise, or which amounts to a serious breach of internal discipline and enterprise rules.

3. The employee is physically disabled due to illness or an injury suffered in the workplace for which he or she has had treatment for a period of at least six months but from which he or she is still unable to recover.

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5. The enterprise is forced to retrench employees as a result of the application of new techniques and technology, or of the reorganization of production.

Where the labour contract is terminated as a result of any of the above (apart from item 2), the enterprise shall give advance notice, as stipulated in article 18, and shall consult with the labour representative in the enterprise. Where the labour contr act is terminated, in accordance with items 4 and 5, the enterprise shall give advance notice to the local labour office.

Article 17

Apart from those cases mentioned in item 4 of article 16, an enterprise is not permitted, unilaterally, to terminate labour contracts with female employees who are pregnant, on maternity leave, or nursing a child under the age of twelve months; with employees who are on sick leave or absent under a doctor's orders for no more than six months as the result of labour accidents or occupational diseases; or with employees who are taking annual leave.

Article 18

The period of advance notice referred to in articles 15 and 16 shall be:

Indefinite term labour contracts: at least sixty (60) days;

Definite term labour contracts: at least thirty (30) days; and

Labour contracts for a specific job or seasonal work: at least one day.

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Article 19

In the event that any of the conditions for the termination of the labour contract or the giving of advance notice under the above articles are breached, the party in breach shall be liable to compensate the other party. The amount of compensation to be paid shall be in accordance with regulations issued by the Ministry of Labour War Invalids and Social Affairs.

Article 20

No later than one week after termination of the labour contract, each party shall make payment of all benefits owed, including severance allowances and any other compensation. The enterprise shall return to the employee his or her labour book and persona l documents and supply the employee with necessary certificates as requested.

Article 21

The director of the enterprise, after consultation with the labour representative, and on the basis of these Regulations shall publish internal labour rules including any system of calculating bonuses and applying penalties.

Where an employee is in breach of internal labour rules the director of each enterprise, depending on the nature and seriousness of the breach, shall have the power to impose any one of the following forms of penalty:

A verbal reprimand;

A partial or full cut in bonus;

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Dismissal (termination of the labour contract in accordance with clause 2 of article 16).

Article 22

The employee shall be entitled himself or through his labour representative to make a complaint concerning the termination of his or her labour contract or any penalty which is imposed. All complaints may be made to the enterprise or authorized office fo r consideration and resolution in accordance with the provisions of Chapter XI.

Chapter IV

COLLECTIVE LABOUR AGREEMENTS

Article 23

The director of each enterprise, or a person authorized by him, shall, on the basis of free and voluntary collective negotiation, together with the labour representative, sign a collective labour agreement no later than six months after the date of commen cement of its operation.

Each collective labour agreement may include the following essential items: the salary to be paid in respect of each type of occupation, working conditions, occupational safety, social insurance, collective welfare, and other items agreed upon by both pa rties.

Article 24

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Each collective labour agreement shall be made in triplicate, with each party keeping one copy, and the remaining copy being sent to the local labour office for registration.

Article 25

Within fifteen (15) days from the date of receipt of the collective labour agreement, the local labour office shall approve its registration. The agreement shall be of full force and effect as of the date of such approval. In the event that any provisio n contained in the agreement is found to be contrary to these Regulations or labour laws, this shall not operate to prevent the implementation of other terms of the agreement, and the local labour office shall so inform the parties. Within ten (10) days of being so informed, the contracting parties shall continue their negotiations to resolve any remaining problems.

Article 26

Each signed collective labour agreement shall be for a duration of one to three years. After the first three months of its performance, each side has the right to request that amendments and additions be made to its contents. Within fifteen (15) days from the date of receipt of a request made by one side, both sides shall conduct negotiations on the amendments and additions requested.

If, upon expiry of the collective labour agreement, an extension is requested but neither side requires a new agreement, the old agreement shall be deemed renewed for the same duration as that of the previous agreement.

Article 27

The terms of the collective labour agreement shall be made known to all employees of the enterprise concerned. from the date on which the agreement becomes effective, all the parties shall strictly observe its terms. Any problems which may arise in the course of its implementation shall be resolved in a co-operative spirit, with mutual understanding, in acknowledgment of the legitimate interests of both parties, and of the need for stable production. Any dispute which may arise shall be settled in acco rdance with the provisions for resolution of labour disputes contained in Chapter XI.

Chapter V

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Article 28

The employees of an enterprise are entitled to establish a trade union and to engage in trade union activities in accordance with the Law on Trade Unions and rules and on the basis of the rules of the General federation of Labour of Vietnam.

Article 29

As a workers' organization, the trade union organization in an enterprise has the function of protecting the legal rights and interests of all employees, of representing the collective body of employees in resolving problems between the employees and the enterprise, and of undertaking collective negotiations to ensure the stability of labour relations in the enterprise and promotion of production.

Article 30

The director of an enterprise shall respect the rights of the employees to establish a trade union and to engage in trade union activities. He shall also respect the role of trade unions, and shall provide facilities and information and create favorable conditions for regular consultation, collective bargaining, and implementation of the functions of the trade union.

Chapter VI

WORKING HOURS AND HOLIDAYS

Article 31

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2. The normal working hours shall be reduced by at least one hour per day in respect of those workers who are under eighteen (18) years of age, who perform heavy work, who work in a dangerous or toxic environment, and female workers in their seventh month of pregnancy or later or who are nursing babies under twelve (12) months of age.

3. Night shift hours are from 10 p.m. to 6 a.m.

4. Employees are entitled to a break of at least thirty (30) minutes duration for each work shift.

Article 32

When an enterprise requires overtime to be worked, it shall seek the consent of the employee except in the following cases:

1. The work is necessary to overcome the consequences of natural disasters or other mishaps or to prevent accidents from occurring.

2. The work is urgent because the enterprise is moving to a new location.

3. The work is necessary to make up hours previously lost as a result of a stoppage of operation due to force majeure.

The total amount of overtime to be worked by an employee shall not exceed one hundred and fifty (150) hours per year.

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In every week each employee shall have at least one fixed day off (twenty four hours complete rest).

Where, due to the nature of the work, it is impossible to arrange a day off, as mentioned above, for an employee, the enterprise shall arrange for that day to be taken the following week.

In respect of specific jobs with special working conditions, it is permissible for the employees to work longer shifts provided that satisfactory conditions for equivalent days off have been recorded in the collective labour agreement.

Article 34

All employees shall be entitled to fully paid days off in respect of official festivals and holidays:

Solar New Year Holiday: one day (the first day of January each year);

Lunar New Year Holidays: three days (the final day of the old year and the first two days of the new Lunar year);

May Day: one and a half days (the second half of the thirtieth day of April and the whole of the first of May); and

National Day of the Socialist Republic of Vietnam: two days (the second and third days of September).

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Fully paid annual leave:

1. All employees shall be entitled to at least eighteen (18) days fully paid leave each year.

2. In addition, employees shall also be entitled to at least five additional days annual leave with full pay in the following cases:

They have worked at the enterprise for a period of over ten (10) years;

They work in remote isolated areas, or in a harsh climate;

They work in hard, harmful or dangerous conditions; or

They are under eighteen (18) years of age.

Article 36

Employees who have worked at the enterprise for at least eleven months are entitled to take all the holidays stipulated in clause 1 of article 35. The following periods of time shall be included in the length of service of each employee:

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Maternity leave taken by female employees;

Days which are taken as leave for personal reasons with the approval of the director of the enterprise; and

Days which are taken as sick leave with the consent of the director.

Where a labour contract is terminated after six months service, the employee shall receive pro rata payment in lieu of annual leave calculated on the basis of the applicable wage rate and the period of service.

Article 37

1. Female employees shall be given maternity leave of a minimum of twelve weeks on full pay, six weeks of which must be taken after confinement.

Where, following the expiry of maternity leave, the employee remains unfit to return to work and this is confirmed by a medical certificate, she shall be entitled to additional leave of not more than twelve weeks. During this period the employee shall receive sick leave benefits as provided in article 46.

2. All female employees nursing their babies under twelve months of age shall, under clause 2 of article 31, be given one hour's break per day in order to feed them.

Article 38

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Employees shall be entitled, with the permission of the director of the enterprise, to special unpaid leave for personal reasons for a duration agreed by the two sides.

Chapter VII

WAGES AND SALARIES

Article 39

Wages and salaries (including hourly, daily, weekly or monthly basis wages and salaries and contracted wages) shall be stated clearly in labour contracts. They shall be calculated in accordance with the terms of the collective labour agreement and shall be no less than the minimum salary to be paid by enterprises with foreign owned capital, in accordance with the amount announced each year by the Minister of Labour War Invalids and Social Affairs following his consultation with both sides concerned.

Article 40

Employees shall be paid in accordance with their productivity, quality of their work, the specific trades and industry in which they work, their occupations, working conditions and living costs from time to time, and shall be paid without regard to their sex or age.

Article 41

Employees who work night shifts shall be paid at a rate fifty (50) per cent higher than the amount paid in respect of day shifts.

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Article 42

The enterprise shall pay directly their employees their wages, salaries, and all other allowances as and when they fall due. All payments shall be made at the workplace and shall be in cash.

Article 43

The salaries of the director (general director), the deputy director (deputy general director) and all other key managers of the enterprise shall be determined by the board of management of a joint venture enterprise or the owner of an enterprise with one hundred (100) per cent foreign owned capital.

Article 44

1. When an enterprise, in accordance with article 13, temporarily transfers an employee to another working place or to other duties, the employee shall be paid a sum which is no less than that which he or she was paid in his or her previous job.

2. Where an employee, through no fault of his own, is required to stop work temporarily, the enterprise shall pay him or her an allowance equal to fifty (50) per cent of his usual wage or salary.

Article 45

All employees shall be fully informed of all deductions from their wages and salaries. Deductions must be in accordance with the labour laws, the collective labour agreement or court decision. In the event that the enterprise is declared bankrupt or is dissolved and liquidated, all wages and salaries which are outstanding shall be paid immediately by way of priority payment.

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SOCIAL INSURANCE

Article 46

Every month, each enterprise shall pay a contribution to social insurance in a sum equivalent to ten (10) per cent of the amount of total wages and salaries paid to its employees. This sum shall be applied as follows:

1. Two per cent to the local labour office for the purpose of unemployment benefits.

2. Eight per cent to the social insurance fund established at the enterprise and administered jointly by the representative of the director and the labour representative in order to meet expenses which may arise as a result of:

Sickness, labour accidents, occupational diseases (including leave taken and medical expenses);

Pregnancy, maternity and childcare; and

Burial and funeral expenses (for those who die during the term of employment).

Article 47

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Old age benefits;

Benefits paid to persons permanently disabled, as a result of sickness, occupational diseases, labour accidents or hazards; and

Burial and funeral expenses (in respect of those who die while receiving old age pensions or permanent disability benefits) and surviving benefits paid to relatives of the deceased.

Chapter IX

OCCUPATIONAL HEALTH AND SAFETY

Article 48

An enterprise shall be obliged to take all necessary measures for labour safety, protection, and hygiene in accordance with the laws on labour protection, health care, and environmental protection of Vietnam, and with international standards and practices .

Any production or business project may be carried out only after completion of all procedures for labour protection, safety, hygiene, environmental protection and proper disposal of waste, both inside and outside the enterprise and after the enterprise ha s submitted a report to the local labour office.

In the event that a labour accident occurs due to the fault of the enterprise, it shall, in accordance with provisions of the Government, pay compensation to the victims, or to their relatives in the event of death.

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The employment of women and persons under eighteen (18) years of age for heavy, harmful or dangerous work is strictly forbidden.

Women who are either pregnant or are nursing babies under twelve (12) months old and persons under eighteen (18) years of age shall not be employed for night shift work or be required to work overtime.

A list of heavy, harmful, and dangerous occupations shall be issued by the Ministry of Labour War Invalids and Social Affairs.

Article 50

The enterprise shall, on a regular basis, provide information and instruction on measures for labour safety and hygiene, supply employees with sufficient clothing and equipment necessary for their protection, devise a plan for health care, arrange for periodic health examinations to be carried out, and for preventative measures to be taken for the protection of employees from disease, and shall prevent and eliminate any dangers which may pose a threat to the life and health of the employees. The enterprise shall make periodic reports on the status of its occupational safety to the local labour office.

Each employee shall be responsible for the strict implementation of all instructions and measures on occupational safety and hygiene. If, whilst working, there is any obvious and serious danger to his or her life and health, an employee shall be entitled to leave the work place and immediately report the danger to a responsible person.

Chapter X

LABOUR INSPECTION AND CONTROL

Article 51

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Article 52

The labour inspector is responsible for securing the enforcement of the labour laws, inspecting labour accidents, advising and instructing the enterprise and employees, and for submitting reports to the Minister of Labour War Invalids and Social Affairs.

Article 53

The labour inspector has the power:

To enter any enterprise within his area of responsibility for the purpose of carrying out inspection and control work;

To ask questions of persons concerned, to demand that the director of the enterprise produce documents and printed material which relate to the labour of the enterprise and to copy, and obtain samples of all information required;

To require the director to post announcements on labour laws; and

To request that the director immediately implement all necessary measures, including the temporary stoppage of the operation of machines, in order to eliminate any dangers which threaten the health and safety of employees, and to take action within a limi ted time, when required, for the strict implementation of rules on occupational safety and hygiene.

Article 54

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Article 55

The enterprise shall be responsible for observing all legitimate requirements of the inspector and is prohibited from obstructing labour inspection and control activities.

Penalties for breaches of the law in relation to inspection and control work shall be applied in accordance with the Ordinance on Administrative Penalties proclaimed by the State Council of the Socialist Republic of Vietnam.

Chapter XI

RESOLUTION OF LABOUR DISPUTES

Article 56

The enterprise and employees may make complaint concerning labour issues to authorized labour offices at all levels, including to the Minister of Labour War Invalids and Social Affairs. All complaints shall be responded to within fifteen (15) days from t he date of their receipt.

Article 57

All labour disputes shall be the subject of attempted resolution by way of direct negotiation between the two sides, (the employees and the enterprise, the labour representative and the director) which shall be conducted in a spirit of conciliation, equal ity, fairness and respect for each other's interests.

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A conciliatory council comprised of an equal number of representatives of the two sides and the local labour office acting as mediator;

An arbitration council established and presided over by the local labour office or an arbitrator selected by both sides; or

An arbitrator appointed by the Minister of Labour War Invalids and Social Affairs.

The form of conciliation and arbitration agreed upon by both sides shall have been recorded in the collective labour agreement.

Where the conciliation fails, and the arbitration is ineffective, either side may bring the dispute before the People's Court for judgment.

The procedures for consideration of the complaints, conciliation and arbitration shall be stipulated by the Minister of Labour War Invalids and Social Affairs.

Chapter XII

FINAL PROVISIONS

Article 58

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Article 59

The Minister of Labour War Invalids and Social Affairs shall ensure that practical guidance is provided and shall issue detailed provisions, for the implementation of these Regulations.

Nghị định 233-HĐBT ban hành Quy chế lao động đối với các xí nghiệp có vốn đầu tư nước ngoài do Hội đồng Bộ trưởng ban hành