Tóm tắt Luận án Law on employers' right to labour management in vietnam

ion in foreign countries which do not show employers' right to labor management as an independent content but show the right alternately in studying other contents of labor legislation such as labor hiring, labor contract, rights and obligations of employees and employers, labor dismissals. They are “Employment law for business” (2005), Dawn D. Bennett-Alexander, Laura B. Pincus, McGraw-Hill Companies; “Employment law” (2006), Andrew C. Bell, Sweet & Maxwell; Employment & Labor legislation” (2008), Patrick J. Cihon, James Ottavio, Castagnera, Cengage Learning; “Q & A Employment Law” (2008), Richard Benny, Malcolm Sargeant & Michael Jefferson, Oxford University Press; “Labor & Employment Law: Text and Cases” (2009), David P. Twomey, Cengage Learning (USA); “Employment Law” (2010), Hugh Collins, Oxford University Press Besides, there are some books studying employers' right to labor management more specifically. They are “Management Prerogatives and Employee Participation” (2004), Atty. Juris Bernadette M. Tomboc- Commercial Law, Department of De La Salle University - Manila, Philippines; “Labour Laws of the Philippines” (2006), Joselito Guianan Chan, “Labour and Employment Law in Sweden” (2009), Reinhold Fahlbeck, Bernard Johann Mulder, Lund: Juristförl; “The Employer's Legal Handbook: Manage Your Employees & Workplace Effectively” (2011), Fred Steingold, Nolo 7 Articles on journals: Such articles include: “The Managerial Prerogative and the Employee’s Obligation to Work: Comparative Perspectives on Functional Flexibility” (2006), Mia Rönnmar, Industrial Law Journal, Vol.35, No.1; “Workplace collective bargaining and managerial prerogatives” (2007), John Storey, Industrial Relations Journal, 4-7; “The managerial prerogative and the right and duty to collective bargaining in Greece” (2009), Kostas D. Papadimitriou (Associate Professor in University of Athens, Greece), Comp. Labor legislation & Pol’y Journal, Vol 30:273; “The Concept of Mangerial prerogative in South African Labour Law” (2009), John Kinamugire In such books and articles, in major aspects, the authors have mentioned some theoretical aspects or/and contents of employers' right to labor management on labor legislation side. However, new research works mainly generalize and introduce theoretical and practical issues without analyzing and interpreting them as requirements of the thesis. 1.2. Studies issues related to the thesis topic and some comments, evaluation Based on generalizing issues studied by research works the thesis gives some comments and evaluations as follows: Firstly, definition of employers' right to labor management. There are some research works giving understanding of the rights to labor management in general and the employers' right to labor management in particular. However, such documents have not defined labor management rights of employers as well as law on labor management rights of employers, employers and units using employees. Simultaneously, such works have not deeply explained differences the right to labor management of employers in general and the right to labor management of the state. Secondly, bases stipulating labor management rights of employers. Domestic and foreign research works discuss establishments stipulating labor management rights of employers. Accordingly, labor management rights of employers come from two bases: right on economic properties and effectiveness that employers wish to achieve. However, such works have not deeply and systematically analyzed theoretical and practical basis of determination of employers' right to labor management. Thirdly, legal contents on labor management rights of employers. In studied contents, the works mentioned two aspects of employers' right to labor management: Firstly, employers are entitled to issue work rules, collective labor agreements, labor contract, etc to be basis for labor management; Secondly, employers' right to labor management is shown in 8 specific rights such as labor recruitment, work assignment, labor transfer, commendations, disciplinary measures, labor contract termination, etc. However, there is no works mentioning specifically and systematically contents of the employers' right to labor management. Moreover, some contents on employers' right to labor management in labor leasing activities, grievant settlement have not been mentioned properly by the works. Fourthly, actual state of law on employers' right to labor management in Vietnam. By studying some fundamental institutions of labor legislation such as labor contract, collective labor agreements, work rules, etc, the works mainly analyze and evaluate such institutions in general research aspect without deeply studying and considering employers' right to labor management. Proposals suggested by such works for amendments and supplementations are mainly legal provisions in previous statutes, which have partly become outdated. There is no works specifically and systematically analyzing actual state of law on employers' right to labor management based on provisions of the Labor Code 2012. Fifthly, completion of law on employers' right to labor management in Vietnam. This content is mentioned specifically in domestic research works. Such research works have proposed main opinions on completion of provisions in the Labor Code issued in 1994 which is amended and supplemented. Besides, some works propose completion of law on unilateral labor contract termination right of employers of the Labor Code in 2012. Appropriate opinions and viewpoints of such research works will be referred by the thesis during additional study and completion on side of employers' right to labor management. 1.3. Fundamental issues to be settled in the thesis 1.3.1. Some theoretical issues - Theoretical issues on employers' right to labor management. - Theoretical issues on law on employers' right to labor management. 1.3.2. Actual state of current labor legislation on employers' right to labor management in Vietnam - Actual state of law on the right to establish labor management tools. - Actual state of law on the right to organize and perform labor management. 1.3.3. Completion of law on right to establish employers' right to labor management in Vietnam - Completion direction of law on employers' right to labor management must ensure theoretical and practical requirements. -To propose amendments and supplementations of some provisions on employers' right to labor management. In detail, to propose amendment and 9 supplementation of provisions on right to establish labor management tools and right to organize and perform labor management of employer of the Labor Code in 2012. Chapter 2 SOME THEORETICAL ISSUES ON LABOR MANAGEMENT RIGHT AND LAW ON EMPLOYERS' RIGHT TO LABOR MANAGEMENT 2.1. Employers' right to labor management 2.1.1. Definition of labor management and law on employers' right to labor management 2.1.1.1. Labor management Based on management definition, labor management can be understood as impact of competent subjects on objects when participating in labor relations to boost labor productivity, quality and effectiveness. From this perspective, competent subjects for labor management include the state and the employers. The labor management of employers can be understood as organizational and intended impact of employers on employees in units using employees to gain the highest effectiveness during business operation. 2.1.1.2. Employers' right to labor management “Employers” can be understood as units using employees (agencies, organizations, companies and cooperatives, or persons using employees (households and individuals). In the units using employees, the employers have “supreme” right in making decisions on business operation and process of labor management. To get this right, the employers must be qualified under legal provisions. Concepts of employers' right to labor management by foreign countries are mainly shown in two theories: 1) Institutional theory; 2) Contractual theory. Although two theories give different viewpoints of employers' right to labor management, the similarity is that labor management right is recognized as privilege of employers to the employees in the workplace. In Vietnam, there has been no definition of employers' right to labor management. From legal provisions, it can be seen that employers' right to labor management is considered on flexible basis of the above theories. The most general definition of employers' right to labor management can be given as follows: Employers' right to labor management is the right of an employer in directing, managing the employees in the unit based on 10 establishing labor management tool as well as organizing the implementation of labor management under legal requirements in order to boost labor productivity, quality and effectiveness. 2.1.2. Nature of employers' right to labor management Employers' right to labor management has social, economic and legal nature. This natures are proved in fundamental characteristics: 1) Employers' right to labor management reflects unilateral will of employers; 2) Employers' right to labor management is always affected by subject’s will in labor relation; 3) Employers' right to labor management is governed by the legal limits; 4) Employers' right to labor management is administrative. 2.1.3. Basis for determination of employers' right to labor management Employers' right to labor management is determined on the basis of: 1) Objective requirements of labor management activities; 2) Right for properties of employers; 3) Benefits of parties in labor relation. 2.2. Law on employers' right to labor management 2.2.1. Definition of law on employers' right to labor management From studies on employers' right to labor management and international legal provisions on this right, law on employers' right to labor management can be understood as all state provisions on right of employers in directing, managing employees of the unit based on labor management tool establishment as well as labor management organization and performance for improvement in labor productivity, quality and effectiveness. 2.2.2. Contents of law on employers' right to labor management 2.2.2.1. Right to establish labor management tool * Issuing work rules, internal regulations and decisions - Work rules Issuing work rules is the activity showing employers' right to labor management in the clearest manner. By the work rules, the employers define general and long term conduct requirements for all employees. In law of some countries such as France, Japan, Cambodia, Korea, Vietnam, etc, work rules are compulsorily established in units using numerous employees whereas in other countries such as India, England, Canada, USA, etc work rule are not mandatory. Regardless of the issuance is compulsory or not, work rules have two main content groups including provisions forcing employees to perform their duties at work and disciplinary measures for employees violating the provisions. However, to avoid misuse and violation 11 of employers on employees’ right and benefits, law of the countries also stipulate procedures for labor regulation issue. - Internal regulations Internal regulations are documents issued by employers which include provisions and modes applied to employees in their labor employment unit. Labor legislations of some countries such as Japan, Russia, Cambodia, and Vietnam stipulate that employers are entitled to issue regulations to direct labor process. However, to ensure democracy of parties in labor relations, laws of many countries, similar to those applied for work rules, also stipulate that before issuing of internal regulations, the employers shall consult opinions of organizations representing employees. - Decisions Decisions are documents showing employers’ will in cases of definitely issuing measures to settle problems arising when they use employees. Laws of many countries allow employers to make decisions for labor process management, however, besides stipulated procedures, such laws also limit this employers’ right by stipulating mechanisms to protect employees’ benefits. * Signing collective labor agreements, labor contract and other agreements - Collective labor argreements Through collective labor agreements, employers' right to labor management is shown in two aspects. Firsly, the rights of the employers to perform certain acts to their employees, and secondly duties and obligations of the employees. Laws of some countries consider collective labor agreements as an important basis to bind employees to perform their obligations under employers’ direction. Because collective labor agreements aim at effectiveness of business operation, employers used collective labor agreements as a tool for enhancing labor effectiveness. - Labor contract Beside labor management, a contract signed between employers and the employees is of paramountly importance because it allows the employers to freely negotiate with their employees on rights and obligations that during performance of such rights and benefits, employers always hold management and administration rights for employees to gain labor objectives as set out. Laws of most countries indicate that the most important characteristic to distinguish a labor contract from a civil one is the factor of labor management on the employers side. However, to maintain, stabilize labor relations and protect benefits of two parties, especially 12 employees’ benefits, labor legislations of most countries in the world limit employers' right to labor management by listing employers’ obligations. - Other agreements Besides labor contract, in labor relation, parties also have other agreements such as labor leasing contract, vocational contract, and probation contract. Signing such contracts is to create legal basis for employers to perform labor management during labor leasing, vocational training or probation period. 2.2.2.2. Right to organize and perform labor management * Right to recruit employees Derived from importance and benefits of values brought by labor recruitment, ILO as well as some countries such as France, Poland, Indonesia, China, etc recognizes and respects this right of employers. However, laws of many countries only indirectly stipulates responsibilities of related subjects (such as employment services or organizations) as well as stipulates acts that employers are not allowed to perform when recruiting, instead of specifically stipulating labor recruitment contents. Such undetailed stipulation in laws is the way that lawmakers grant this right to employers to make decisions on recruitment for existence and development of their unit. * Right to labor use - Right to assign and arrange works for employees Laws of some countries in the world such as Japan, China, Vietnam, Korea, South Africa, etc take this employers’ right as granted. However, for some special types of employees, because of their typical characteristics, employers are not allowed to assign certain works to them. - Right to transfer, change and suspend works of employees For the right to transfer employees to perform other works: Laws of some countries such as Sweden, Greece, England, Philippines, etc allow employers to assign employees to perform other works. Plausible reason for this abnormal asignment mainly comes from the demand of the employment circumstance, or the employee's capacity. However, to protect the employees’ rights, the laws also limit this right of employers by specifically stipulating assignment duration and procedures, employees’ rights, especially by forcing employers to arrange original works for employees when assignment duration expires. For right to change employees’ works: Laws of countries such as Sweden, Japan, Vietnam, etc indicate unlimited right of employers in changing employees’ works. However, because change in works can affect 13 profession, trained qualification, working place and environment, income and other rights of employees, laws of countries stipulate that employers are only entitled to change employees’ works with acceptance of employees. For right to suspend employees’ works: Employees’ work suspension deriving from employers’ will can result from risks in business operation or from employees or competent agencies. Suspension time depends on agreement between two parties or legal provisions. After suspension time, employers shall fully ensure works and other rights for employees under terms and conditions in the labor contract. - Right to issue commendations to employees Right to issue commendations to employees is the right that employers evaluate performance of works, obligations of employees well with material benefits. International law hardly interferes this employers’ right and employers can make decision on commendation by themselves. To ensure fair, appropriate and democratic commendation mode, before issuing commendation rules, employers shall consult organizations representing employees. - Right to handle violations of labor discipline Right to handle violations with regard to labor discipline is the right of employers to consider and handle violations of labor discipline by imposing disciplinary measures on employees. Laws of many countries stipulate that employees who violate labor discipline can be subjected to disciplinary measures or work suspension in case employers have no sufficient basis to perform disciplinary measures. Handling violations for employees is considered as an activity showing employers’ power in the clearest manner. It is the right to use disciplinary sanction with a high enforcement effect to ensure a proper respect and compliance of established rules, regulations and agreements as well as protection of general labor order and legal properties of employers. This activity punishes employees in material and spiritual aspect and educates as well as prevents other employees in the unit from committing the same violation. However, to ensure rights of employees and avoid misuse of employers, laws of many countries stipulate that employers shall observe certain rules, regulations and procedures. * Right to terminate labor use Right to terminate labor use is the right that employers proactively terminate employees' performance of labor right and obligation in the unit and this right does not depend on labor contract term. Under the regulation of the ILO and of many countries, when terminating labor use, employers shall have plausible reason. Plausible reasons include reasons from employees, employers or objective reasons. 14 Right to terminate labor use due to reasons from employees: Labor legislations of the USA, Sweden, Vietnam, Japan, etc have different provisions on reasons from subjective fault of employees, however, the similarity is that employers shall perform some certain procedures. Right to terminate labor use due to reasons from employers: the ILO stipulates that employers are entitled to terminate labor use due to reasons related to economy, technology, restructure of the unit or the like. Accordingly, law of each country concretizes this reason to be appropriate to conditions of such country. Right to terminate labor use due to objective reasons: Objective reasons include natural disasters, fire or other force majeure reasons. Laws of countries do not stipulate specifically this right. Vietnamese law specifically stipulates this right in point c, clause 1, Article 38 of Labor Code. * Right to settle complaints of employees and labor collective Law allows employees and labor collective to complain about decisions and acts related to employer’s labor management right and simultaneously allows employers - subject directly issuing such decisions and acts, to consider and settle complaints of employees and labor collective. The objective is to make chances for employers to consider their labor management activities, then have measures to handle and remedy or improve effectiveness of labor management in the unit. Because of the importance of this right to settle complaints of employers, international law acknowledges it and has detailed provisions on it. 2.2.3. Role of law on employers' right to labor management Law on employers' right to labor management has roles: 1) Concretizing requirements on state management in labor field; 2) Making legal basis for the employers' performance of the labor management right; 3) Ensuring freedom and self-mastery right in business operation and promoting business production; 4) Making legal basis to ensure job and income for employees, contribute to stability, harmony and development of labor relation. Chapter 3 ACTUAL STATE OF CURRENT LAW ON EMPLOYERS' RIGHT TO LABOR MANAGEMENT IN VIETNAM 3.1. Actual state of law on right to establish labor management tool of employers 3.1.1. Issuing labor regulations, rules and decisions 3.1.1.1. Work rules 15 Current regulation of the labor law are fairly appropriate and ensure self-determination of employers in self-determining contents of labor regulations appropriate to actual conditions of the unit. According to reports, about 70% of units using more than 10 employees issue work rules. However, in reality, besides work rules, most units using employees also issue Code of Conduct. This is an important labor management tool in the workplace. Thus, not stipulating Code of Conduct in legal documents is not appropriate to actual labor use in Vietnam nowadays. 3.1.1.2. Internal regulations Current labor legislation grants right to employers in freely issuing labor regulations to direct labor process in the unit. This provision expands self-determination right of employers on modes, rights and obligations of employees in the unit and shows appropriateness to laws of other countries. To avoid misuse of employers, like work rules, law also stipulates that when issuing internal regulations, employers must consult organizations representing labor in the unit. 3.1.1.3. Decisions Decisions are issued by employers in cases of: labor contract termination, salary increase, disciplinary measure imposed, and work suspension. The employers are proactively responsible for issues such as when to issue decisions, what issues settled by such decision and their contents, etc. For labor discipline, law specifically stipulates terms that employers shall make decisions on imposing disciplinary measures. 3.1.2. Signing collective labor agreements, labor contract and other agreements 3.1.2.1. Signing collective labor accord The current law stipulates that employers and labor collective representative conduct collective negotiation in the unit and in case of successful negotiation, the two parties shall sign a collective labor agreement. To ensure benefit of parties, employers shall observe legal provisions on contents, subject, term and procedures in negotiation, signing; on procedures in publishing the agreement, amending and supplementing other documents of the unit as well as issuing collective agreements specifically and appropriately, ensure right to freely negotiate of employers on issues related to stability and development of the unit. According to reports, some 25-30% of enterprises have developed collective labor agreements, in which, 100% of state-owned enterprises has collective agreements. 3.1.2.2. Signing labor contract 16 According to Articles 15 to 25 of the Labor Code, when concluding labor contract, employers shall observe obligations on supplying information before negotiating, obligations when signing, banned acts, obligations under provisions on bargaining principles, form, terms and contents of the collective agreement. Regarding labor leasing activities, labor contract signed between labor leasing enterprises and leasing employees shall observe provisions in clause 5, Article 56 of Labor Code. In general, labor contract conclusion is stipulated specifically by law to provide a legal basis for employers to strictly perform labor management. According to the existing reports, most employers in enterprises are aware of the importance of labor contract in labor management and concerned about labor contract conclusion. In reality, labor contracts signed in enterprises account for more than 90% of the related labor force. From labor management perspective, there remain shortcomings in legal provisions on labor contract concusion. They are, for examples, the definition of labor contract signing does not focus on labor management - the most important element of labor contract; provisions on written contract signed between employers and legal representative of employees from 13 to 15 years old is not appropriate; provisions on contents of labor contract signed by employers in labor leasing enterprises and leasing employees under provisions in labor contract like normal employees is not appropriate. 3.1.2.3. Signing other contract types Basically, provisions on vocational training contract, probation contract remedied shortcomings of previous provisions and are appropriate in ensuring employers' right to labor management. However, for probation contract, because probation duration is short and the parties have no closed constraint on rights and obligations as a labor contract, stipulating contents of probation contract is unnecessary. For labor leasing contract, to provide a legal basis for contracting parties to negotiate rights and obligations based on fairness and mutual benefits, law should stipulate labor leasing/subleasing fee as well as consider labor leasing/subleasing term. 3.2. Actual state of law on right to organize and perform labor management of employers 3.2.1. Right to recruit employees According to the law, employers' right to labour recruitment is shown in two contents: right to recruit employees based on demand and right to recruit employees directly or through other agencies. Besides provisions on labor recruitment in general, employers should note exclusions when 17 recruiting specific objects. Current right to recruit of employers is larger than previous ones and show fairness in units using employees. Besides, recruitment procedures and process is stipulated more simply. However, because labor supply is much higher than labor demand in Vietnam, the employers tend to misuse when recruiting. Besides, labor legislation prioritizing and encouraging recruitment of the disabilities is not appropriate due to current labor redundancy. 3.2.2. Right in labor use 3.2.2.1. Right to assign and arrange works to employees In general, provisions on this right of employers are adequate and appropriate to labor use in the context of the market economy in Vietnam and prove appropriateness of Vietnamese labor legislation to ILO’s conventions and laws of other countries. However, the provision relating to the case of merger, consolidation or division of the enterprises, co-operatives, according to which the succeeding employer shall be responsible for keeping on using current labors and amending, supplementing labor contract stipulated in clause 1, Article 45 of Labor Code, is not appropriate. Provision on work item that employers are not allowed to use female employees (77 works) partly limits their works and income. Provision on maternity leave of six months regardless of labor condition and capacity is not appropriate to labor use demand of the unit, conditions of employees and other laws. 3.2.2.2. Right to transfer, change and suspend works of employees According to the law, during the life time of a labor relation, employers are entitled to assign workers to a different position for a limited period (Article 31 of the Labor Code), change works (Article 35 of the Labor Code) and suspend work performance of employers (Article 32 of the Labor Code). Basically, such provisions are appropriate and reflect activeness of employers in using labor human resources without recruiting or hiring to meet on-site labor demand and limit the cost. However, law should consider and improve the provision on temporarily assigning employees to perform other works to works agreed in labor contract because in reality, employers not only transfer works but also transfer employees to other working places or to perform other works to meet work demands. 3.2.2.3. Right to issue commendations to employees According to current regulations, employers are entitled to issue commendations to employees when employees fulfill assigned works or complete works with output quota higher than set quota. To encourage employees in labor productivity, quality and effectiveness improvement, 18 employers make decisions on commendations and bonuses. This regulation ensures employers' self-determination right in distributing income as well as employers' right to labor management. 3.2.2.4. Right to handle violations of labor discipline * Right to handle violations of labor discipline The current law grants employers a right in making decisions correcting violations of labor discipline. When doing this, employers shall observe legal requirements on disciplinary form, principle, basis, order and procedure. For employees whom are leased from other enterprises, lessors are not entitled to perform disciplinary measures to employees. * Right to handle material damage Right to handle material damage of employers is performed in two cases. Accordingly, law stipulates compensation basis, level and method for the employers to further concretize in the company work rules. Besides, when handling a case in relation to compensation for material damage, employers shall observe the related principle, order, and procedure. * Right to suspend employees’ works Right to suspend employees’ works is unilaterally decided by employers. Once performing this right, employers are required to observe procedure, terms and employees' rights under Article 129 of the Labor Code. It can be seen that there are reasonable points in the law on correcting violations of labor discipline. However, the regulation set up in work rules as the basis for labor discipline in the workplace as provided for in Article 118 of the Labor Code seems to be too narrow compared to laws of many countries. The stipulated period in which employees are absent without authorization or plausible reason in order for them to face a corrective measure as a dismissal is too long, which badly affects progress of the production. The provisions on material liability: the term “material liability”; the compensation level that is defined based on property state (which suffer damage or loss), the compensation level fixed (a part or the whole damage) in case employees cause loss of tools, equipment and properties of employers, are not appropriate. 3.2.3. Right to terminate labor use 3.2.3.1. Right to terminate employment relations due to reasons from employees According to clause 1, Article 38 of the Labor Code, employers are entitled to unilaterally terminate labor contract in three cases. Upon the termination, the employers shall notify employees a certain period in advance to assist employees in seeking new jobs. 19 3.2.3.2. Right to terminate employment relations due to reasons from employers According to Article 44, 45 of the Labor Code, employers are entitled to lay-off employees due to reasons from business operation of the unit such as change in structure, technology; economic reasons; merger, consolidation or division of the enterprises; transfer of ownership, or the right to use the property of the enterprise. Before resorting to the laying-off, the employers have to follow different procedures set for specific cases. 3.2.3.3. Right to terminate employment relations due to objective reasons When unilaterally terminating labor use due to objective reasons, employers shall notify employees a certain period in advance depending on term of labor contract agreed by parties. Besides procedures required to be followed depending on cases, employers are also required not to unilaterally terminate labor use in some cases stipulated in Article 39, clause 4 in Article 219 of the Labor Code (excluding cases of laying-off due to reasons from employees). It should be noted that in case employers fail to observe legal requirements in respect of bases and procedures for terminating labor use, decisions on such termination shall be deemed as illegal and such employer shall be subjected to legal consequences under provisions in Article 42 of the Labor Code. Generally, law stipulates specific bases and procedures for terminating labor relations. Comparing to prior-mentioned provisions, this right is stipulated by law in an opener manner. However, the right to lay employee off due to reasons from employers in four cases stipulated in Article 44 and 45 of Labor Code, which are conducted in different procedures is not appropriate. Cases where an employee regularly fails to fulfill works under a signed labor contract or due to economic reasons is not sufficiently clarified by law and this creates a lot of difficulties for employers to determine reasons for laying employees off. The provisions under which unilateral termination of indefinite labor contract by employers requires just causes, and the differentiation of compensation level between the two parties for the same act of illegal termination of a labor contract is not appropriate. 3.2.4. Right to handle complaints According to the law, employers are first entitled to settle the complaint of employees or labor collective. During the process of complaintsettlement, the employers shall strictly observe on the related principles and procedures. However, the strictness does not ensure employers' right to labor management because provision on labor grievant procedures by employers is similar to those by labor inspectors, in addition theand the regulation under which employers are only entitled to settle complaints, not denunciations by employees/labor collectives with regard to other employees or labor collectives, which arise during the progress of the labor relations does not suit the actual conditions of labor management in the unit. 20 Chapter 4 COMPLETION OF LAW ON EMPLOYERS' RIGHT TO LABOR MANAGEMENT IN VIETNAM 4.1. Direction for completion of law on employers' right to labor management in Vietnam Completion of law on employers' right to labor management is an urgent demand in current context of Vietnam economy. The completion should meet the following requirements: 1) To remedy inadequate issues of current law, expand self-mastery right in employers' right to labor management and limit direct state interference in employers' right to labor management; 2) To ensure the harmony in benefits between employers and employees; 3) To suit the mechanism of the economic administration in a socialist-oriented market economy in the context of international integration in Vietnam. 4.2. Proposals on amendments and supplementations of provisions on employers' right to labor management 4.2.1. To amend and supplement provisions on the right to establish labor management tools of employers Firstly, it is necessary to supplement conduct issue as a subject matter to work rules. Accordingly, employers are also allow to separate this content into a Code of Conducts. Once building up a Code of Conducts, the employers shall observe stipulated requirements, similar to those when establishing work rule. Secondly, it is necessary to amend labor contract definition to emphasize labor management factor as well as expand contents for agreement (eliminating provision on “working condition”. The definition can be that "Labor contract is the agreement on rights and obligations in labor relation between employers and employees, in which, employees work for earning salary and are subjected to labor management of employers". The amendment of the said definition will lead to amendment of “employees” definition in clause 1, Article 3 of Labor Code. Accordingly, this definition should eliminate the phrase “is paid a salary and subjected to employers' management and direction”. In detail, “employees” is defined as follow: Employees are individuals who are not less than 15 years old with labor capabilities and work under labor contract. Thirdly, it is necessary to stipulate employers' obligation to sign labor contract in writing with employees between 13 and 15 years old when there is a written commitment of legal representative of employees. Fourthly, it is necessary to supplement some provisions on labor contract between labor leasing enterprises and leasing employees. 21 Accordingly, labor contract in labor leasing activities shall be deemed as particular case stipulated in clause 5, Article 23 of Labor Code. Fifthly, it is necessary to supplement regulations on services fee, fee, payment method and liabilities if this term in labor leasing contract is violated. Simultaneously, labor leasing/subleasing fee should be between 15% and 20% of employees’ salary. Sixthly, it is necessary to amend provision on labor leasing/subleasing term. Accordingly, labor leasing/subleasing term is completely agreed by parties but does not exceed Labor leasing license term of 36 months (excluding term extension). 4.2.2. To amend and supplement provisions on right to organize and perform employers' right to labor management Firstly, it is necessary to supplement the act of discrimination on basis of regions, areas, training forms when using and recruiting employees as prohibited acts stipulated in clause 1, Article 8 of Labor Code. Secondly, it is necessary to stipulate that employers shall be responsible for recruiting the disabilities with certain rate (instead of encouraging recruitment of the disabilities as stipulated in current law). Accordingly, units in heavy industry sector shall recruit the disabilities with a rate of 2% whereas the rate of units in other sectors is at least 3%. Units not recruiting the disabilities shall contribute a certain amount of money based on salary fund of such units to employment fund for the disabilities. Thirdly, it is necessary to flexibly stipulate employers' responsibility for employment in case of merger, consolidation or division of the enterprises, co-operatives under provision in clause 1, Article 45 of Labor Code. It should be that after resorting to all possible prevention measures to limit lay-off, if the employers are still unable to arrange works for employees, such employeer are entitled to lay employees off and do not have to “keep on using current employees”. Fourthly, it is necessary to eliminate work item that employers are not allowed to use female employees and only stipulate works that female employees are not allowed to perform in case such female employees intend to be pregnant, during maternity period or maternity leave or they have to care for their children that are below 12 months of age. Fifthly, it is necessary to amend provision on maternity leave. In particular, maternity leave shall be 4, 5 or 6 months depending on working conditions and disability rate of employees similar to those provided under Law on Social Insurance in 2006. Sixthly, it is necessary to amend provision on right to temporarily assign employees to perform other works than those in the labor contract stipulated in Article 31 of Labor Code. Accordingly, employers are not only 22 entitled to temporarily assign employees to other work but also entitled to send employees to other working places for a limited period. Seventhly, it is necessary to amend labor discipline definition so as to expand legal sources for labor discipline. Accordingly, labor discipline is not only stipulated in work rules but also collective labor agreements or other documents. In detail, Article 118 of the Labor Code should be amended as follow: Labor discipline includes compulsory provisions applied to all employees during performance of labor rights and obligations stipulated in labor regulation, collective labor agreements or other documents. Eighthly, it is necessary to decrease the stipulated period in which the disciplinary violation is counted to be seen sufficient to apply dismissal in case employees are absent without authorization or plausible reason. Where an employee is absent without authorization or plausible reason for three accumulative days per month or ten accumulative days per year, such employee shall be subjected to dismissal. Ninthly, it is necessary to replace provision on “material liability” with “liability of compensation for property damage” of employers. Cases should be classified based on damage value instead of damage forms (causing damage or loss). Simultaneously, the selection of compensation level (partly or wholly) should not be fixed but should be freely decided by employers and declared in work rules or contract of responsiblity (if any). Tenthly, procedures for lay-off of four cases in Article 44, 45 of the Labor Code should be stipulated uniformly (in case works for employees cannot arranged). Accordingly, procedures for such cases should be that before laying employees off, employers shall consult local organizations representing employees, report labor agencies and while their responsibility for payment of severance allowance to employees should still be remained. Eleventhly, it is necessary to further clarify cases where employees regularly fail to fulfill works under the labor contracts. The regulation may be stipulated as follow: The case employees regularly fail to fulfill works under the labor contracts is the case where employees fail to fulfill work quota or assigned work due to subjective reasons, whose the incompletion of work dutieshas been recorded in writing or reminded in writing repeatedly for at least three times in a month or five times in a year. Twelfthly, it is necessary to define what is an "economic reason". Accordingly, law should differentiate two economic reasons: 1) Direct impact of global, regional and domestic economic crisis; 2) Enterprise restructure under a decision of competent agencies. Thirteenthly, it is necessary to limit circumstances in which employees are entitled to unilaterally terminate a labor contract with indefinite term. 23 Fourteenthly, it is necessary to increase compensation level for employers when employees unilaterally terminate labor contract in contravention of law which is equivalent to compensation level of employers. This means that such compensation level should be equivalent to 2 months of salary of employees under the labor contracts. Fifteenthly, it is necessary to stipulate procedures and orders for settlement of employees’ complaints. Sixteenthly, it is necessary to prescribe employers’ right to settle complaints of employees, labor collectives on other employees or labor collectives in the unit, which relate to rights, benefits and obligations of the relevant parties in the labor relations. CONCLUSION 1. Labor management is an objective indispensable activity of all business operation process. Labor management can be understood as a control by a competent subject over respective objects in labor relation in order to achieve the goals of such a labor use. In labor legislation sector, the afore-mentioned competent subject includes state and employers. 2. In labor relations, based on the ownership to properties of the unit, labor management right is granted to employers. This is considered as a natural right and “privilege” of employers. Unlike the right to labor administration of the state, employers' right to labor management is the right which shows unilateral will of employers but is governed by legal provisions and agreements of parties in labor relation. 3. Concepts of employers' right to labor management in different countries in the world are based mainly on two theories: Institutional theory and Contractual theory. In labor relations, employers' right to labor management is a natural and traditional right regardless of any theories. Right to be performed under employers’ desire is gradually replaced by right under legal provision. 4. Contents of law on employers' right to labor management include two fundamental issues: Right to establish labor management tool and right to organize and perform labor management in the unit. 5. Law on employers' right to labor management plays an important role: concretizing state management requirements in labor field, creating a legal basis for employers' right to labor management to bepracticed as well as ensuring freedom and self-mastery right in business operation and promoting business production, this, in turn, ensures employment and income for employees, contributing to stability, harmony and development of labor relation. 24 6. The employers' right to labor management under the current labor legislation in Vietnam has expanded. Besides granting employers self- determination right in issuing work rules, internal regulations and decision, recruiting, arranging, assigning works, performing disciplinary measures, issuing commendations, etc, labor legislation also recognizes labor management right in labor leasing activities, laying employees off due to economic reasons. The expansion in contents and scope of employers’ right to labor management shows appropriateness between legal provisions and the abundance labor management demand, variety of business demand in a market economy. This show clearly a suitable approach of the law on employers' right to labor management in Vietnam to ILO’s provisions and labor legislations of other countries. 7. Because of a strong prejudice on employers’ strength compared to employees, legal provisions on employers' right to labor management are forced regarding general correlation on employee protection. Thus, labor management right expansion of employers partly limits flexible implementation capacity of provisions on employers’ labor management right in reality. Besides, there are provisions which are not appropriate to real life as well development requirements of market economy in the context of current integration. 8. This situation of the law on employers’ labor management right need to be improved. It is necessary to immediately remedy shortcomings of current law ensuring feasibility to expand more self-mastery right in employers’ labor management right and limit state interference. Besides ensuring employers' right to labor management, law also ensures the balance of rights and benefit between the two parties, in particular, without prejudice to employee right and benefits. Simultaneously, the completion of the law on employers’ labor management right must suit economic management mechanism in general and the state's labor administration in particular in the context of current integration. 9. Based on the practical requirements , it is necessary to amend and supplement legal provisions on right to establish employers’ labor management tool and right to organize and perform employers’ labor management. As for right to establish labor management tool, amending and supplementing provisions on labor regulation, labor contract and labor leasing contract are essential. For the right to organize and perform labor management, it is necessary to amend and supplement provisions on recruiting employees, assigning and arranging works for employees, assigning employees to perform other work, performing disciplinary measures, terminating labor use as well as settling complaints of employees and labor collectives. LIST OF ADDITIONAL PUBLICATIONS RELEVANT TO THE THESIS 1. Do Thi Dung (2013), “On definition of employers' right to labor management”, Jurisprudential Review, (6), pages 11-17. 2. Do Thi Dung (2013), “The employers' right to hire labour in Vietnam - The actual state of the law and some proposals”, Democracy and Law Review, (6), pages 22-31. 3. Do Thi Dung (2013), “On the employers' right to labor management with regards to outsourcing activities”, Jurisprudential Review, (8), pages 12-19. 4. Do Thi Dung (2014), “The actual state of law on employers’ right to handle violations of labor discipline and some proposals”, Journal for Legislative Studies, (02+03), pages 102-109. 5. Do Thi Dung (2014), “The employers’ rights to work arrangement and assignment for employees”, Democracy and Law Review, (3), pages 36-39.