Thành Lập Công Đoàn Cơ Sở Có Cần Thiết Cho Doanh Nghiệp Không?

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Từ trước tới nay, tâm lý chung của chủ doanh nghiệp (“DN”) có vốn đầu tư nước ngoài và DN dân doanh là ngán ngại việc thành lập công đoàn cơ sở (“CĐCS”) ở đơn vị mình. Theo họ, hoạt động CĐCS vừa tốn kém về thời gian, nhân lực, vừa gây phiền hà, rắc rối, lại còn phải đóng đoàn phí bằng 1% trên tổng quỹ tiền lương, tiền công của DN (“NLĐ”)[1] (trong khi đó CĐCS được thành lập nhằm mục đích chính là để bảo vệ lợi ích cho NLĐ, đưa ra những yêu cầu, đòi hỏi buộc NSDLĐ phải tuân thủ pháp luật lao động liên quan tới quyền, lợi ích cũng như cách “đối xử” với NLĐ.vv). Do đó, các chủ DN thường tránh né việc thành lập CĐCS, hoặc nếu phải thành lập thì CĐCS cũng chỉ hoạt động một cách có hình thức, không hiệu quả. Ông Nguyễn Huy Cận – Chủ tịch Liên đoàn Lao động TPHCM, từng nhận định rằng “trong số các CĐCS chỉ có khoảng 50% gọi là biết hoạt động chứ chưa dám nói là mạnh. Số hoạt động có hiệu quả chỉ chừng 30%”[2].

thanh-lap-cong-doan

Ngoài ra, NLĐ cũng không thiết tha lắm việc tham gia CĐCS. Nào là họ sợ bị NSDLĐ dòm ngó, mất thời gian làm việc, phải đóng đoàn phí[3], nhưng hơn hết là khi tham gia CĐCS rồi, quyền lợi thực tiễn từ hoạt động công đoàn mang lại chẳng là bao. Theo kết quả thống kê gần đây của Tổng liên đoàn Lao động Việt Nam thì đến tháng 08/2009 có đến 60% DN có vốn đầu tư nước ngoài và 80% DN dân doanh chưa có tổ chức CĐCS[4]. Những con số đáng phải suy ngẫm!

Tuy nhiên, trên thực tế, để quan hệ lao động được hài hoà và tiến bộ, vai trò của CĐCS là hết sức quan trọng và cần thiết. Thực tế cho thấy, do không có CĐCS hoặc có CĐCS nhưng không thể phát huy vai trò của mình, nhiều DN phải đối với mặt những rắc rối pháp lý không đáng có và cả những thiệt hại không hề nhỏ.

Hậu quả nhãn tiền

Về tranh chấp tập thể: Tính từ năm 1995 cho tới nay đã có gần 3.000 cuộc đình công, lãn công xảy ra nhưng hầu hết đều trái luật[5] và một trong những nguyên nhân chính là DN không có CĐCS hoặc Ban chấp hành CĐCS không tham gia, điều tiết để đình công theo đúng khuôn khổ luật định. Bởi vì, một cuộc đình công chỉ được coi là hợp pháp khi diễn ra theo đúng các trình tự, thủ tục do tổ chức công đoàn trong DN tổ chức. Rõ ràng, hậu quả của những vụ đình công quy mô lên tới hàng trăm, hàng ngàn công nhân tham gia diễn ra nhiều ngày là khá lớn và người gánh chịu thiệt hại đầu tiên và nặng nề nhất không ai khác là chủ DN. Họ vẫn phải trả lương cho những NLĐ khác vì ảnh hưởng của đình công mà phải tạm nghỉ việc[6], các chi phí cố định (fixed cost) như nhà xưởng, điện nước vẫn phát sinh. Nghiêm trọng hơn nửa là việc sản xuất kinh doanh bị đình trệ, mất tiền của, mất uy tín với khách hàng, mất cơ hội làm ăn kinh doanh do phải tập trung giải quyết tranh chấp. Một số vấn đề tế nhị khác cũng nảy sinh, như DN sẽ bị “chăm sóc” kỹ càng hơn từ các cơ quan chức năng liên quan đến hoạt động của DN đặc biệt là từ phía cơ quan quản lý lao động, hoặc mối quan hệ giữa NSDLĐ và NLĐ trong DN sau đình công trở nên gượng gạo, căng thẳng, ảnh hưởng không ít đến hiệu quả hoạt động sản xuất, kinh doanh của DN.

Về tranh chấp cá nhân: Thời gian gần đây, các tranh chấp về xử lý kỷ luật lao động dưới hình thức sa thải hoặc đơn phương chấm dứt hợp đồng lao động hoặc tranh chấp về bồi thường thiệt hại, trợ cấp khi chấm dứt hợp đồng lao động gia tăng, một phần do ảnh hưởng của tình hình kinh tế khó khăn, phần do có sự cải thiện về kiến thức pháp luật lao động của NLĐ. Sẽ không có nhiều vấn đề để bàn nếu các quyết định của NSDLĐ được đưa ra phù hợp với quy định của pháp luật lao động về nội dung cũng như thủ tục. Điều đáng nói là một phần các vụ tranh chấp lao động thường xuất phát từ việc hiểu biết pháp luật lao động còn hạn chế của NSDLĐ, đặc biệt là nhận thức về vai trò của CĐCS trong việc tham gia giải quyết tranh chấp. Chẳng hạn, khi xử lý một lỗi vi phạm kỷ luật lao động, nhận thấy NLĐ đáng bị cho thôi việc, nhiều chủ DN chỉ đơn giản ra thông báo hoặc quyết định ngắn gọn về việc sa thải có tham chiếu đến nội quy lao động, thậm chí NLĐ còn bị buộc viết đơn xin thôi việc và bị từ chối chi trả các khoản lương, phụ cấp… còn nợ. Kết quả tất yếu là sẽ vấp phải sự phản ứng gay gắt của NLĐ bằng việc NLĐ nhờ luật sư bảo vệ quyền lợi, đồng thời gởi đơn khiếu nại đến cơ quan quản lý lao động địa phương, thậm chí cả cơ quan công an. …. Đứng trước sự việc đã rồi của DN, các luật sư khi được tham khảo ý kiến chỉ còn cách tư vấn cho DN “chữa cháy” bằng cách ngồi lại làm việc với NLĐ trên cơ sở các bên cam kết bảo đảm tôn trọng quyền và lợi ích chính đáng của mỗi bên, điều quan trọng là tránh để sự việc kéo dài căng thẳng, ảnh hưởng không tốt tới hoạt động bình thường và hình ảnh của DN.

thanh-lap-cong-doan

Một trong những điểm chung của các DN vướng vào những rắc rối không đáng có về pháp luật lao động nói trên là không thành lập CĐCS hoặc tự hạn chế vai trò của CĐCS trong DN. Nếu có CĐCS và chịu khó tham khảo ý kiến của Ban Chấp Hành CĐCS, hẳn cán bộ công đoàn (những người được coi là nắm rõ những quy định pháp luật lao động) sẽ thông tin cho NSDLĐ những nội dung cơ bản liên quan tới thủ tục để có thể dẫn đến buộc thôi việc đối với NLĐ, đó là: NSDLĐ phải trao đổi, thống nhất sự việc với Ban Chấp Hành CĐCS, hoặc nếu không đạt được sự đồng thuận với Ban Chấp Hành CĐCS, sự việc phải được báo cáo lên cơ quan, tổ chức quản lý lao động địa phương 30 ngày trước khi ra quyết định buộc thôi việc[7]. Đồng thời, việc tiến hành họp kỷ luật lao động phải lập hồ sơ và ghi thành biên bản, kèm theo các giấy tờ, bằng chứng chứng minh sự vi phạm[8]….. Nếu không chứng minh được lỗi vi phạm của NLĐ[9], trong mọi trường hợp, DN không thể tự tiện tiến hành xử lý kỷ luật NLĐ được.

Nói chung, do thiếu tổ chức công đoàn trong DN, hoặc có tổ chức công đoàn nhưng lại bỏ qua vai trò quan trọng của họ, khiến nhiều DN phải miễn cưỡng xắn tay vào giải quyết những rắc rối không đáng có, có thể là những vụ kiện cáo lùm xùm về lương, phụ cấp, bồi thường thiệt hại, kỷ luật lao động mà DN phải nhận người lao động trở lại làm việc nếu NSDLĐ thua kiện, hoặc nghiêm trọng hơn là những vụ đình công lôi kéo đông đảo NLĐ của DN tham gia như thời gian gần đây.

Chủ DN cần thay đổi nhận thức về công đoàn cơ sở

Bộ luật Lao động hiện hành cũng như các văn bản pháp luật liên quan quy định việc thành lập CĐCS tại các DN là bắt buộc, chậm nhất là sau sáu tháng kể từ ngày DN bắt đầu hoạt động dù nghĩa vụ thành lập là của công đoàn cấp trên[10]. Đồng thời, chủ DN phải có trách nhiệm phối hợp cũng như tạo điều kiện tốt nhất cho tổ chức công đoàn hoạt động đúng chức năng, nhiệm vụ của mình[11].

Như vậy, cơ sở pháp lý đã có. Điều quan trọng là làm sao thay đổi nhận thức của NSDLĐ và cả NLĐ về vai trò của CĐCS trong các quan hệ lao động trong DN. CĐCS được thành lập với nhiệm vụ chính là chăm lo đời sống, bảo vệ quyền và lợi ích hợp pháp của NLĐ trong DN, suy cho cùng cũng là để góp phần giúp chủ DN thực thi một cách đúng đắn quy định pháp luật lao động. Qua đó, quan hệ lao động giữa NSDLĐ và NLĐ tiến gần hơn đến sự cân đối, hài hoà.

Thứ nhất, CĐCS tham gia hỗ trợ NSDLĐ xây dựng nội quy lao động[12], thang, bảng lương[13], thỏa ước lao động tập thể[14]. Do đó, chủ DN nên tán thành việc thành lập CĐCS để tránh những thiệt hại, ít nhất là không bị phạt vi phạm hành chính khi tranh tra lao động kiểm tra DN. Đồng thời, chủ DN cũng cần phối hợp chặt chẽ với NLĐ để hoạt động CĐCS trở nên thật sự hữu ích, là cầu nối truyền đạt tâm tư nguyện vọng của NLĐ đến chủ DN và ngược lại để tránh tranh chấp.

Thứ hai, CĐCS còn giúp NSDLĐ chủ động hơn trong việc xây dựng lịch nghỉ phép hàng năm của NLĐ[15]. Đặc biệt, một khi DN rơi vào tình thế thay đổi cơ cấu hoặc công nghệ, công đoàn trở nên hết sức quan trọng giúp NLĐ giành thế chủ động trong việc sắp xếp lao động, cũng như chấm dứt hợp đồng lao động[16].

Thứ ba, khi có tranh chấp xảy ra như đơn phương chấm dứt hợp đồng lao động[17], kỷ luật lao động[18], đình công,… CĐCS sẽ tham gia trong việc tổ chức đối thoại nhằm dung hòa lợi ích giữa NLĐ và NSDLĐ với tư cách là một chủ thể độc lập, trung gian trực tiếp giải quyết tranh chấp lao động trong Hội đồng hoà giải cơ sở, Hội đồng trọng tài lao động, Hội đồng kỷ luật lao động. Do vậy, không nên hiểu máy móc là công đoàn lãnh đạo NLĐ chống lại giới chủ.

Mặt khác, hoạt động của CĐCS cũng mang lại những lợi ích rõ rệt là chăm lo thiết thực cho đời sống vất chất, tinh thần cho NLĐ, chẳng hạn như thăm hỏi động viên NLĐ bị ốm đau, tai nạn, hay tặng quà trong những dịp lễ, tết….Đây là những công việc vốn thuộc chính sách ưu đãi của NSDLĐ đối với NLĐ[19]. CĐCS làm nhiệm vụ của mình cũng chính là làm thay, hay hỗ trợ, cho người chủ DN trong việc thực hiện các chế độ, chính sách trong doanh nghiệp.

Một khi đời sống NLĐ được chăm lo đúng mực, quyền và lợi ích chính đáng được bảo đảm, họ sẽ nảy sinh tâm lý lạc quan, gắn bó với DN, cố gắng phấn đấu lao động sản xuất. Nhờ đó, năng suất, hiệu quả lao động sẽ nâng cao. Và người hưởng lợi lớn nhất từ điều này không ai ngoài chính là DN.

Nếu quý vị có nhu cầu biết thêm thông tin hỗ trợ về dịch vụ Quản trị doanh nghiệp và Tuân thủ pháp luật của chúng tôi, xin vui lòng liên hệ liên hệ trực tiếp đến số: +84 (28) 3622 3522 hoặc email cho chúng tôi tại: info@phuoc-associates.com

Ls. Lạc Thị Tú Duy và Ls Nguyễn Hữu Phước

——

[1] Quyết Định số 133/2008/QĐ-TTg ngày 1 tháng 10 năm 2008

[2] http://www.sggp.org.vn/xaydungdang/2009/9/203295

[3] Công văn số 826/HD-TLĐ của Tổng Liên đoàn lao động Việt Nam ngày 1 tháng 6 năm 2009

[4] http://www.sgtt.com.vn/detail23.aspx?newsid=55345&fld=HTMG/2009/0809/55345

[5] http://www.sgtt.com.vn/detail23.aspx?newsid=55345&fld=HTMG/2009/0809/55345

[6] Điều 174d Bộ Luật lao động

[7] Điều 38.2 Bộ luật lao động Việt Nam số 35/L/CTN ngày 23 tháng 6 năm 1994, đã được sửa đổi bổ sung những lần sau (“Bộ luật Lao động”)

[8] Điều 87 Bộ luật Lao động

[9] Điều 87 Bộ luật Lao động

 [10] Điều 153.1 Bộ luật Lao động

 [11] Điều 154 Bộ luật Lao động

[12] Điều 82. 2 Bộ luật Lao động

[13] Điều 57 Bộ luật Lao động

[14] Điều 45 Bộ luật Lao động

[15] Điều 76.1 Bộ luật Lao động

[16] Điều 17.2 Bộ luật Lao động

[17] Điều 38.2 Bộ luật Lao động

[18] Điều 87.3 Bộ luật Lao động

[19] Điều  63 và Điều 64 Bộ luật Lao động

980 Bình luận

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