Question 34: If the labour collective representing organisation does not agree with the criteria for evaluating the Employee’s task completion level which serves as a basis for the unilateral termination of LCs, can these criteria be considered valid? If the labour collective representing organisation agrees with the criteria, what are the legal risks in case the court and/or local labour management agency does not agree with these criteria in settling labour disputes?

505

As prescribed by labour law, Employers will set the regulation on evaluating the Employee’s task completion level after consulting the grassroots labour collective representing organisation[1], i.e. the grassroots Trade Union Executive Committee or the executive committee of the direct superior trade union if the grassroots trade union has not been established[2] (hereinafter referred to collectively as the Trade Union Executive Committee). However, labour law does not require Employers to get the consent or approval of the TUEC with respect to the regulation on evaluating the task completion level in order to make the regulation effective. Therefore, it can be inferred that Employers only need the TUEC to review and give opinions about the regulation on evaluating the task completion level as a way to make it a transparent process, but they do not have to get the consent or approval of the TUEC.

However, there is a point of view (and this point of view is often maintained by court judges in settling disputes) that the “opinions” here must be construed as the “consent” of the TUEC to the regulation on evaluating the task completion level. Otherwise, the regulation is just a formality which may be unreasonable and cause difficulties to Employees.

Even if the TUEC has totally agreed with the Employer’s regulation on evaluating the task completion level, it will just be a plus for Employers in the labour disputes where Employers unilaterally terminate LCs for the reason that Employees cannot fulfil their tasks, instead of a guarantee that the court will always consent to the regulation on evaluating the task completion level set by Employers. It is because in a dispute, the court will also consider other relevant elements than the laws, such as the appropriateness of the regulation when it is applied from time to time. For example, Employers cannot set the sales target for Employees who sell products for use in the monsoon season as high as the sales in the sunny season.

Nevertheless, that the TUEC approves or agrees with the regulation on evaluating the task completion level will definitely be in favour of Employers in dispute with Employees as compared to the fact that the TUEC makes comments on the regulation as “disagree” or “no comment” or “the Employer needs to comply with the regulations of labour law”.

In order to “give more effect” to the comments made by the TUEC on the regulation on evaluating the task completion level, Employers should ensure to get the comments from all the members of TUEC. If the members cannot directly make their comments and sign the minutes because they are on business trips or work in different offices, they all can authorise one person in the TUEC (e.g. Chairman of the Trade Union) to make a collective comment on the regulation on evaluating the task completion level issued by Employers. The authorisation here must be a valid authorisation which complies with the regulations of civil law.

[1]Article 12.1 Decree 05/2015/NĐ-CP dated 12/01/2015

[2]Article 3.4 Labor Code