What are the current procedures for labor mediation at the workplace?

Labor mediation at the workplace is a common mechanism encountered in enterprises. The following article outlines the legal regulations governing such labor mediation and addresses several related issues to help individuals and organizations protect their lawful rights and interests. I....

Labor mediation at the workplace is a common mechanism encountered in enterprises. The following article outlines the legal regulations governing such labor mediation and addresses several related issues to help individuals and organizations protect their lawful rights and interests.

I. Current effectiveness of labor mediation at the workplace

Labor dispute mediation through the system of labor mediators serves as an important legal mechanism that helps reduce the burden on the courts. Such a method is highly regarded due to its prompt, flexible, and confidential procedures. The mediation process is conducted efficiently, enabling parties to save substantial court fees and travel expenses compared to initiating court proceedings.

Despite the positive developments resulting from legal reforms and practical implementation in resolving labor disputes in general, and individual labor disputes through mediation in particular, certain shortcomings and limitations remain and require further improvement and amendment.

II. Overview of labor mediation at the workplace

1. What is labor mediation at the workplace?

Pursuant to Clause 1, Article 188 of the Labor Code 2019, individual labor disputes must be resolved through mediation conducted by a labor mediator before a request may be submitted to the Labor Arbitration Council or the Court for resolution, except for the disputes specified in Clause 1 of this Article, which are not required to undergo mediation.
Pursuant to Clause 2, Article 191 and Article 195 of the Labor Code 2019, collective labor disputes regarding rights and collective labor disputes regarding interests must be resolved through mediation conducted by a labor mediator before being referred to a competent authority for resolution or before strike procedures may be initiated.

Accordingly, labor mediation at the workplace is the process of resolving conflicts between parties in an employment relationship through negotiation facilitated by a labor mediator. Such a mechanism aims to safeguard the lawful rights and interests of the parties in accordance with labor laws. Mediation also contributes to maintaining stable and sustainable labor relations.

2. Purposes of labor mediation at the workplace

The primary purpose of labor mediation is to promptly resolve disputes and disagreements between employees and employers. It helps save time and costs while promoting harmonious, stable, and progressive labor relations within enterprises.

Specifically:

Resolving disputes: It assists parties in finding common ground and voluntarily reaching agreements without requiring intervention from courts or state authorities.
Saving time and costs: Mediation procedures are conducted expeditiously, minimizing economic losses, human resource burdens, and complex legal risks for both employers and employees.
Maintaining labor relations: It enables parties to preserve mutual respect and avoid the tension and confrontation that often arise during court proceedings.
Promoting stability: It helps maintain internal unity, thereby improving productivity and supporting the sustainable development of the enterprise.

3. Principles governing labor mediation at the workplace

Pursuant to Article 180 of the Labor Code 2019, the principles governing labor dispute resolution are as follows:

Respecting the parties’ right to self-determination through negotiation throughout the dispute resolution process.
Giving priority to resolving labor disputes through mediation and arbitration on the basis of respecting the rights and interests of both disputing parties, respecting the common interests of society, and ensuring compliance with the law.
Ensuring transparency, openness, objectivity, timeliness, efficiency, and compliance with legal requirements.
Ensuring the participation of representatives of the parties during the dispute resolution process.
Labor disputes shall be resolved by competent authorities, organizations, or individuals only upon the request of a disputing party or upon the proposal of a competent authority, organization, or individual and with the consent of the disputing parties.

III. Legal regulations relating to labor mediation at the workplace

1. Which labor disputes are required to undergo mediation before a lawsuit may be filed?

- Pursuant to Clause 1, Article 188 of the Labor Code 2019, individual labor disputes must be resolved through labor mediation before being submitted to the Labor Arbitration Council or the Court, except for the following disputes, which are exempt from mandatory mediation:

Disputes concerning labor disciplinary measures in the form of dismissal or unilateral termination of an employment contract;
Disputes regarding compensation for damages or benefits upon termination of an employment contract;
Disputes between domestic workers and their employers;
Disputes concerning social insurance under social insurance laws, health insurance under health insurance laws, unemployment insurance under employment laws, and occupational accident and disease insurance under occupational safety and hygiene laws;
Disputes regarding compensation between employees and enterprises or organizations that send employees to work overseas under contracts;
Disputes between leased employees and labor subleasing employers.

- Pursuant to Clause 2, Article 191 and Article 195 of the Labor Code 2019:

Collective labor disputes regarding rights must be resolved through mediation conducted by a labor mediator before being submitted to the Labor Arbitration Council or the Court.
Collective labor disputes regarding interests must be resolved through mediation conducted by a labor mediator before being submitted to the Labor Arbitration Council or before strike procedures may be initiated.

2. What are the powers and authority of labor mediators?

Pursuant to Clause 1, Article 184 of the Labor Code 2019, a labor mediator is a person appointed by the Chairperson of the Provincial People’s Committee to mediate labor disputes, vocational training contract disputes, and support the development of labor relations.

Pursuant to Clause 1, Article 187; Article 188; Clause 1, Article 191; and Point a, Clause 1, Article 195 of the Labor Code 2019, labor mediators have the following authority:

Resolving individual and collective labor disputes concerning rights and interests before such disputes are referred to the Labor Arbitration Council or the Court, except for disputes exempt from mandatory mediation.
Receiving applications for dispute resolution submitted by disputing parties or labor authorities under the People’s Committee in accordance with Clause 3, Article 181 of the Labor Code 2019, and conducting mediation within a maximum period of five (05) working days from receipt of the application.
Guiding and assisting parties in negotiations to resolve disputes and preparing mediation records.

If the parties reach an agreement, the labor mediator shall prepare a successful mediation record. Such a record must bear the signatures of the disputing parties and the labor mediator. However, if the parties fail to reach an agreement, the labor mediator shall propose a mediation solution for consideration. In cases the parties accept the proposed solution, a successful mediation record shall be prepared and signed by the disputing parties and the labor mediator.

Where the mediation proposal is rejected or where a disputing party, despite having been duly summoned twice, fails to attend without a legitimate reason, the labor mediator shall prepare an unsuccessful mediation record. Such records must bear the signatures of the attending party and the labor mediator.

3. How are labor mediation procedures implemented?

Pursuant to Articles 188, 192, and 196 of the Labor Code 2019 and Article 95 of Decree No. 145/2020/ND-CP, labor mediation procedures (for individual disputes or collective disputes regarding rights and interests) must be conducted through a labor mediator before referral to the Labor Arbitration Council or the Court. The process generally includes the following steps:

Submission of a mediation request: An application for labor dispute resolution shall be submitted to the Department of Labor, Invalids and Social Affairs, the Division of Labor, Invalids and Social Affairs, or directly to a labor mediator.
Organization of the mediation session:
+ The labor mediator must conduct mediation within no more than five (05) working days from receipt of the application.
+ Both disputing parties must attend the mediation session. The parties may authorize representatives to attend on their behalf.
+ The labor mediator shall guide and assist the parties in negotiating a settlement.
Conclusion of the mediation process:
+ If the parties reach an agreement, the labor mediator shall prepare a successful mediation record signed by the parties and the labor mediator.
+ If the parties fail to reach an agreement, the labor mediator shall propose a mediation solution. If accepted, a successful mediation record shall be prepared.
+ If the mediation proposal is rejected, or if a duly summoned party fails to attend for the second time without a legitimate reason, the labor mediator shall prepare an unsuccessful mediation record.
Enforcement of mediation outcomes:
If either party fails to comply with the terms set out in the successful mediation record, the other party has the right to request resolution by the Labor Arbitration Council or the Court.

4. What are the legal requirements regarding labor mediation records?

Pursuant to Clauses 4 and 5, Article 188 of the Labor Code 2019, labor mediators are responsible for guiding and assisting parties in negotiating a settlement.

If the parties reach an agreement, the labor mediator shall prepare a successful mediation record, which must be signed by the disputing parties and the labor mediator.
If the parties fail to reach an agreement, the labor mediator shall propose a mediation solution for consideration. If accepted, a successful mediation record shall be prepared and signed by the parties and the labor mediator.
The labor mediator shall prepare an unsuccessful mediation record if the mediation proposal is rejected or where a disputing party, despite being duly summoned for a second time, fails to attend without a legitimate reason. The unsuccessful mediation record must be signed by the attending party and the labor mediator.
Copies of successful or unsuccessful mediation records must be provided to the disputing parties within one (01) working day from the date the record is prepared.

IV. Questions regarding labor mediation at the workplace

1. How is a situation handled if one party fails to participate in labor mediation?

Pursuant to Clauses 4 and 5, Article 188 of the Labor Code 2019, where a disputing party has been duly summoned for a second time but remains absent without a legitimate reason, the labor mediator shall prepare a record of unsuccessful mediation.

Such records must bear the signatures of the attending disputing party and the labor mediator. Copies of the successful mediation record or unsuccessful mediation record must be sent to the disputing parties within one (01) working day from the date on which the record is prepared.

2. Is audio or video recording permitted during labor mediation?

Pursuant to Article 4 of the Law on Mediation and Dialogue at Court 2020, audio recording, video recording, and the preparation of mediation or dialogue minutes are prohibited during mediation or dialogue sessions. Minutes may only be prepared for the purpose of recording mediation or dialogue results in accordance with Article 31 of the Law. Mediators and participating parties may take notes solely for mediation or dialogue purposes and must maintain the confidentiality of such notes.
Pursuant to Article 182 of the Labor Code 2019, the rights and obligations of the parties in labor dispute resolution include:
+ Participating directly or through representatives in the dispute resolution process;
+ Withdrawing or amending their requests;
+ Requesting the replacement of the person conducting the dispute resolution if there are grounds to believe that such person may not act impartially or objectively;
+ Providing complete and timely documents and evidence supporting their claims;
+ Complying with agreements reached, decisions of the Labor Arbitration Board, and legally effective judgments and decisions of the Court.

3. Can a labor dispute undergo labor mediation multiple times?

Pursuant to Clauses 4 and 7, Article 188 of the Labor Code 2019:

Labor mediators are responsible for guiding and assisting the parties in negotiating a resolution to the dispute. Where the parties fail to reach an agreement, the labor mediator shall propose a mediation solution for consideration. If the proposal is not accepted or if a disputing party, despite having been duly summoned for a second time, remains absent without a legitimate reason, the labor mediator shall prepare a record of unsuccessful mediation.
In the case of unsuccessful mediation, the disputing parties are entitled to choose one of the following methods for dispute resolution:
Requesting resolution by the Labor Arbitration Council in accordance with Article 189 of the Labor Code;
Initiating legal proceedings before the Court.

Accordingly, a labor dispute cannot undergo workplace mediation repeatedly. Once a record of unsuccessful labor mediation has been issued, the parties may not request mediation again for the same dispute.

4. Can a lawyer participate in workplace labor mediation proceedings?

Pursuant to Clause 3, Article 188 of the Labor Code 2019, both disputing parties must be present at the mediation session. The parties may authorize another person to participate in the mediation session on their behalf.
Pursuant to Point b, Clause 1, Article 21 of the Law on Lawyers 2006, as amended by Clause 12, Article 1 of the Law amending and supplementing the Law on Lawyers 2012, lawyers have the right to represent clients in accordance with the law.

Therefore, a lawyer may participate in workplace labor mediation proceedings. The involvement of a lawyer is an effective means for employees to present legal arguments, evidence, and reasonable grounds to protect their lawful rights and interests.

V. Why should you seek legal advice from NPLaw regarding workplace labor mediation?

The above information is intended to address common concerns relating to workplace labor mediation. With a team of experienced lawyers and legal professionals, NPLaw provides reliable and professional legal services aimed at safeguarding the lawful rights and interests of its clients to the fullest extent possible.

Should you require legal assistance or advice on workplace labor mediation or any other labor law matter, you may contact NPLaw for prompt support and consultation.

The information provided above is for reference purposes only. Should you require detailed advice regarding a specific case, please contact NPLaw for immediate legal assistance.