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<b>SOME EFFECTS OF CHANGES IN CONTEXT ON VIETNAMESE </b>

<b>REGULATIONS ON LABOUR AND PROPOSALS </b>

<i><b>Dr. Nguyễn Lê Thu </b></i>
<i><b>Vietnam National University, Hanoi- School of Law </b></i>

<i>In the context of many changes, Vietnam is on its way to amend its regulations which </i>
<i>contribute to the development of the country. Among them, regulations on labour are </i>
<i>estimated to be directly affected from industry revolution 4.0, flows of labour migrants and </i>
<i>international commitments which have been approved. This article shall focus on the effects </i>
<i>of these phenomenona, recognize requirements for the development of labour regulations </i>
<i>within this context and then provide some proposals. </i>

<b>1. Introduction </b>

The speed of integration of Vietnamese economy into international market has been
improved year after year not only through the statistics on trade and investment, but also
through its role as an active member in both international and bilateral agreements which create a
great chance for prosperity. Among them, Comprehensive and Progressive Agreement for
Trans-Pacific Partnership (here and after CPTPP) and Free Trade Agreement between European
Union and Vietnam (here and after EVFTA) are remarkable. These Agreements are considered as
a step of one promising economy in the way to comprehensively integrate into international
economy. In this way, the society of Vietnam is directly affected from international changes
which on one hand are challenges for the flexibility and adaptation of each country but on the
other hand are a chance for Vietnam to amend its regulations for a sustainable development.

In this context, the author recognizes that legal regulations in general and regulations
on labour in particular are also affected, especially in the context when labour is one of factors
which must be taken into account within trade agreement. Therefore, this article shall firstly
highlight some changes in international context which directly affect on labour regulations.
Based on these facts, the articles shall analyze some requirements for the amendment of these

regulations and provide some proposals.

<b>2. Changes in context that directly affect on labour regulations </b>

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<i><b>2.1. A wide and strong development of the industry revolution 4.0. </b></i>

Under effects of the industry revolution 4.0, many new concepts have been invented such
as cyber – physical system, internet of thing (IoT), cloud computing and cognitive computing. 579
The existence of ‗e-wallet‘ goes beyond the limitation of traditional mode of payment, etc. The
industry revolution 4.0 also creates a database for collecting, integrating and managing a variety
of information in an automatically way with an amazing degree of accuracy, such as information
on environment, biology or chemical composition, etc. It is clear that technology is supporting
social life in a more simple and effective way. On the other hand, from the perspective of
employment relation, this revolution also raises some concerns. In its Summary of Policies in
Vietnam 5/2018, ILO confirms that Vietnam is improving and applying new technology with a
high speed than ever in a variety of fields.580 Because of the application of technology, many
works in the field of garment, clothing, shoes, digital products and electronic products shall be
hugely affected, accordingly, works in these fields are at high risk of being replaced by the
implementation of automatic process.581 On the one hand, number of jobs shall be dramatically
decreased by the use of robot, but on the other hand, the use of technology opens a door for
creating new jobs in international supply chain. An interesting example of this trend is the
production of ‗smart shirt‘ accumulated with ‗smart shoes‘ for adapting users‘ needs. The
production being applied with technology creates more value while requires less labour force.

In this context, labour force is not only connected in a traditional way in factories.
Instead, labour force is able to be supplied by an online system and labourer do not need to
move to a specific geographical place. In other words, labour force becomes more
geographically dispersive, which in turn leads to controversial discussions on some specific
issues of labour regulations such as how to determine working time, rest time, working
condition as well as to protect collective rights of labourers. Furthermore, the development of

robot with artificial intelligence creates a working environment with more connection
between human and human and between human and robots. In the context of endless
discussion on legal responsibility of robot, the implementation of robot in working
environment raises a concern on legal and technical protection for workers in smart factories.
For example, workers could be attacked by robot. Finally, the industry revolution 4.0
contributes remarkably to create a working environment which base on technology and
diminishing the subordination of employee on employer – one of primary criterion of
traditional employment relation.582 Then, the industry revolution 4.0 has strongly and directly
affected the method of management and the use of labour force as well as the method of
creating legal relations related to working.

579

Source: wikipedia, at the website (last visited on 20/3/2019).

580

<i> ILO, Cách mạng công nghiệp 4.0 tại Việt Nam: Hàm ý đối với thị trường lao động (The Industry Revolution 4.0 in </i>
Vietnam: Suggestions for labour market)

581

<i> ILO, ASEAN in transformation: How technology is changing jobs and enterprises transformation, page xxiii. </i>

582

<i> See Nguyễn Lê Thu, Nguyễn Thanh Huyền, Cách mạng công nghiệp 4.0 và những yêu cầu đặt ra đối với việc hoàn </i>

<i>thiện pháp luật về hợp đồng lao động (The Industry Revolution 4.0 and requirement on legal amendments on </i>
<i>employment contract) in the Report on National Workshop on ―The effects of the Industry Revolution 4.0 to industrial </i>

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<i><b>2.2. Variety of flows of labour migrants </b></i>

In addition to the industry revolution 4.0, there is one more phenomenon which is not
totally new but still has effects on labour issue in almost countries – flow of labour migrant.
In according to statistics, number of international migrants increases in recent years.583 In
details, this number reaches 172 million, 220 million and 258 million respectively in 2000,
2010 and 2017.584 Among them, number of migrants for employment is estimated at 150.3
million.585 In this context, number of migrant workers in Vietnam and ASEAN is also
increased. The number of Vietnamese workers working abroad is at 500,000. They work in
more than 40 countries but a large proportion among them is in Association of South East
Asian Nations (here and after ASEAN) and other Asian countries.586 This organization is also
considering to build a region for the connection not only in economy but also in labour by the
announcement of ASEAN Consensus on the Protection and Promotion of the Rights of
Migrant Workers. Then, it is clear that Vietnam is also a country being strongly affected from
flow of various labour migrants which are difficultly protected from legal perspective.

On the other hand, in accordance to some recent researches on comparative labour
regulations, many form of working are recognized differently in different legal systems,
especially informal or non-standard employment. Accordingly, they includes part-time work,
on-call work, seasonal work, temporary agency worker, casual work as well as disguised
employment. More seriously, these forms are mentioned differently in legal systems.587 This
fact requires that both host and destination country of labour migrants must pay attention on
legal solutions for clearly determining these forms, then protect migrants for employment and
their labour force but on the other hand, do not create any obstacle for them in movement.

<i><b>2.3.Commitments on labour issues in Agreements </b></i>

In addition to many changes of context as above mentioned, by joining CPTPP and
EVFTA, Vietnam also needs to carefully examine the content of these agreements, among
other, labour issue. Firstly, CPTPP choses a comprehensive approach on labour issue instead
of only requiring the performance of some specific contents of labour law. In addition to core
labour rights, the Chapter 19 of TPP (which is not changed by CPTPP), on the one hand does
not directly intervene in national legislations of state parties, but on the other hand refers to
international standards which are widely recognized by the conventions of the International
Labour Organization (here and after ILO) as a common reference source in this field. More

583

<i> See UNDP, Human Development Report: Overcoming Barriers (2009), available at </i>

584

UN,<i>International Migration Report2017,</i>available at

/>_Highlights.pdf, last visited on May 15, 2019.

585

<i> International Organization for migration, World Migration Report 2018 (Báo cáo về tình hình Di cư quốc tế năm 2018), </i>
p. 28,

586

<i> Vietnamese Ministry of Foreign Affairs, Review of Vietnamese Migration abroad (Đánh giá về tình người Việt Nam di </i>

<i>cư ra nước ngoài), 2012, p.15, </i>

587<i>_{See ILO, Non-standard employment around the world, Understanding challenges, shapping prospects ISBN}</i>

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importantly, the spirit of the Chapter 19 is that the labour issues should not be only separately
and directly addressed by regulations on labour. They should be also improved within a
connection with and without being detrimental to the development of trade and investment
and vice versa.588 Furthermore, states parties are recommended to protect labour in different
ways, in addition to legal solutions. Among them, corporate social responsibility (CSR) or
raising general awareness on labour rights are recommended.589 All these provisions express
a comprehensive approach of the Chapter 19 on the issue of labour rights and the protection
of labour rights.

In a similar way to CPTPP and TPP, EVFTA reserves the Chapter 13 ‗Trade and
Sustainable Development‘ on the obligation of parties to ensure the implementation of labour
rights. In addition to the requirement on following international standards on labour issues
which are recommended by the ILO, this Agreement re-confirms the responsibilities of parties
for creating an effective working environment for the purpose of sustainable development.590
In other words, parties are not only obligated to separately protect labour right but they are
required to protect the value of sustainable development in labour issues in the connection
with other aspects such as economic development and trade. It could be said that, although
this requirement is not totally new, these two Agreements still require a new criterion in the
development and amendment of legal system in general and regulations on labour in
particular. In order to take full advantage of these agreements, Vietnam has no other choice
than to absorb these new elements to the amendment of national legal system.

<b>3. Requirement for the development of regulations on labour </b>

In the above analyzed international context as well as in response to internal demand
on implementing multilateral and bilateral commitments, regulations on labour need to be
amended to effectively resolve these above mentioned challenges as well as to contribute to a
stable legal bases for sustainable development. This part shall clarify these requirements for
the development of labour regulations.

<i><b>3.1. Protection of labour force from new types of risks </b></i>

The industry revolution 4.0, in addition to remarkable contribution to the development
of technology, also creates some new elements in working environment which become direct
reason of some new types of risks. Before, working environment of worker can be protected
by regulations on occupational safety and hygiene. Because of them, by applying these
standards, workers are mainly protected from risks for their health and their working ability.

Recently, with the development of technology and science as well as controversial
discussion on technology applied to human life, workers are faced with new elements in working
environments. The first one is the existence of robot with artificial intelligence. These robots are
not only act in accordance to a coded process but they can act ‗by themselves‘ in some specific

588

See TPP, Chapter 19, articles 19.4 and 19.5.

589_{See TPP, Chapter 19, articles 19.7 and 19.8.}
590

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cases. This element, in addition to positive effects, raises a concern on the safety in working
environment of workers when they attack worker and cause death.591 The problem becomes
more serious when this case is not rare in the context of frequent information about traffic

accident due to self-driving cars. It means that the control of this type of robot is not as good
as expected. The second element which directly affect to worker is an environment of internet
of things. This element creates a chance for online working job as well as decreases many
steps in the management of labour force. However, this element is also dangerous when all
information transferred during working process are at the risk of being stolen, misused or
changed, which in turn leads to damages for both workers and employers. Finally, because of
online working and that information about both labour force supplier and user are coded,
labour force could be used for illegal purposes. In other words, anonymity in online working
environment can lead to unpredictable risks for worker.

Then, it is required that labour regulations should clearly recognize these risks and
provide effective legal solutions for diminishing these risks. I think that this new element and
these types of risks are within the area of regulations on working condition and occupational
safety. As a result, this issue should be solved in a similar way to the approach of regulations on
occupational safety and hygiene standards. In details, this content needs to be dealt with in both
technical and legal perspectives. The reason is that these risks are mainly created from technical
gaps, then technical solutions are absolutely important. Legal solutions play an assistant role
which ensure the implementation of technical solutions. In other words, legal regulations shall
determine rights and responsibilities of parties in legal relations of using labour force as well as
appropriate working conditions in a cyber environment. It means that regulations on working
conditions of workers must extend to effectively protect workers from potential risks from the
application of new technology. One of interesting example is the regulation on the right to
disconnect applied in France and is examined in some other countries.592

<i><b>3.2. Improvement of the adaptability to the development of new working forms </b></i>
As above analyzed, with the assistance from technology of the industrial revolution
4.0, limitations on the way of supplying, using and managing labour force are extended.
Additionally, with flow of labour migrants, almost all working forms develop all over the
world, which in turn lead to a development of multi working forms. In a recent research of the
ILO on non-standard employment, it is mentioned that there are many working forms but they

are not clearly recognized in legal systems.593 Accordingly, they include temporary
employment, part-time work, dependent self-employment, disguised employment, project- or
task based work), seasonal work and casual work. However, many legal systems in the world
require that one of pre-condition of employment relation is subordination between employee

591_{See more at and}

/>entra-ionia-mains-federal-lawsuit-100-a7630591.html (last visited on 17 July, 2019)

592

<i> See The right to disconnectL The new law banning after-hours work emails, available at </i>

(last visited on 17/7/2019).

593

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and employers, which in turn lead to the fact that they have to face with difficulties in
recognize the legal status of non-standard employment. Such legal gap becomes more serious
when the approach of these forms mainly bases on traditional elements on standard work.594
These elements are hardly relevant to recognize working forms which based on online
infrastructure, including both physical performance and online task. Even in the case of online
task, working forms are also various with generic platform and specific platform with some
remarkable examples such as Amazon Turk, Microtask, Clickwork and Uber, FlyCleaners,
Sandemans, Myfixpet.595 Then, it could be concluded that the development of working forms
and the method of supplying labour force create a real and urgent demand on legal recognition
of these forms.

<i><b>3.3. Strengthening the value of sustainable development in labour regulations </b></i>

By joining multilateral and bilateral agreements, Vietnam is required to achieve all
commitments including ones on labour issue. As above analyzed, labour issue, as
recognized in both CPTPP and EVFTA, is expected to be reinforced for a sustainable
development within an harmonization and without being detrimental to other factors and
vice versa. Furthermore, these Agreements also refer to principles and labour standards of
the ILO. In addition to clear obligations of state parties on labour which is regulated by
ILO‘s Conventions, Agreements focus on the importance of full and productive employment
and decent work for all596 and protecting labour law from being weakened by trade and
investment activities.597 These provisions reflect that labour regulations need to be
appropriate to other factors of the whole legal system as well as meet international standards
on labour protection for all. One again, an open approach on labour issue is mentioned in
both Agreements and referred ILO standards. Accordingly, responsibility on ensuring
labour rights are not limited to a specific group of labourers, instead they should be widely
provided. This point of view is shared in many ILO documents. It is mentioned that work
insecurity must include (i) employment, (ii) earning, (iii), (working) hours, (iv) occupational,
safety and health, (v) social security, (vi) training, (vii) representation and other
fundamental principles and rights at work.598 Then, for the purpose of sustainable
development, national labour regulations need to approach in a general way to ILO
standards rather than focus on protecting labour rights of some specific groups of workers.

<b>4. Proposals </b>

With the purpose of adapting this new context, this writing provides some proposals
for amending labour regulations.

594

<i> Aelim Yun, Reconstructing Labour Law Actors beyond, International Journal of Comparative Labour Law and Industrial </i>

Relation 34, no. 4(2018), p. 435-456.

595<i>_{Adrián Todoli-Signes, The End of the Subordinate Worker? The On-Demand Economy, the Gig Economy, and the Need for}</i>
<i>Protection for Crowdworkers, International Journal Comparative Labour Law and Industrial Relation 33, no. 2(2017), 241-268. </i>
596

EVFTA, article 13.4, para. 1.

597

TPP, Chapter 19, articles 19.3 và 19.4.

598<i>_{ILO, Non-standard employment around the world, Understanding challenges, shapping prospects ISBN}</i>

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<i><b>4.1. Supplementing new elements of working environment </b></i>

As above analyzed, the lack of regulations on new working conditions shall create a
legal gap which in turn leads to difficulty in determining legitimate rights and responsibilities
of parties getting involved in working activities. On the one hand, new technologies need to
be encouraged to develop for the purpose of achieving the goal to be an industrialized country
of Vietnam. On the other hand, labour regulations need to coincide with such development by
predicting working risks and improving the protection for labour force.

Recently, in Vietnam, new above-mentioned working conditions have not been yet
regulated. In addition to Labour Code, Law on Occupational Safety and Hygiene is an
important legal document mentioning rights and responsibilities of parties in protecting labour
force. Its personal scope is more extensive than ones of Labour Code 2012, accordingly,
workers without employment contract are also protected in term of working conditions.599
This approach suggests that new working conditions can be supplemented and such
supplementation shall provide not only employee but also other workers with the protection

from new types of risks caused by new technologies. Furthermore, in addition to traditional
working condition, new provisions on rights and responsibilities of both employers and
workers in cyber environment are also recommended to be supplemented. Accordingly,
employers should be in charge of ensuring protecting measures, include but not limit to,
technologies for appropriate working conditions for worker in a high-technology and cyber
working environment.

In details, regulations on working conditions need to recognize risks in future which
are potentially occur and harm worker from both technical and legal perspectives. In term of legal
perspective, both employer and producer of applied technology – the party which understand and
have ability to design safety solutions for user of technology – are responsible for providing
occupational safety solution. This responsibility should be extensive even after the termination of
contract and/or after the use of such technology. This legal requirement shall also at the first step
enhance the awareness of parties in protecting labour force in new context.

<i><b>4.2. Determining criteria for the classification of working forms </b></i>

The emergence of new forms of work and the goal of sustainable development in
labour also require a general recognition and protection for all worker in general.

In this field, in a similar way to some legal systems, Vietnam does not regulate the
nature of each form of work, then, the determination of working form mainly depends on the
concept of ‗employee‘ in accordance to Labour Code 2012. Accordingly, employee is
determined as ‗a person of at least 15 years-old who has ability of working, work with an
employment contract, is paid and is under the management of employer‘.600

Then, the
traditional elements of employment contract and management of employer are main criteria

599_{Law on Occupational Safety and Hygien no 84/2015/QH13 issued by National Assembly on 25 June 2015, Article 2.}
600

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for the determination of employee. As a result, only employees are included within the
personal scope of Labour Code 2012. In addition, this Code also mentions some other criteria for
other forms of work such as ‗working with least than 03 months‘, ‗part-time work‘, but these
forms are still a version of working with an employment contract.601 Beside this form, the
concept of ‗worker without employment contract‘602

is also mentioned in other labour regulations,
which in turn leads to the understanding that the second form of work is working without
employment contract. Then, in comparison to multi-forms of work as above-mentioned, this
classification and recognition of working forms in Vietnam are still simple, which only include
two groups ‗employee with employment contract‘ and ‗worker without employment contract‘.
As a result, all forms of work which are not created through employment contract are
considered as informal work and the person who take this working form is not regulated by
Labour Code. Therefore, only one part of labour force is protected by Labour Code. This fact
becomes more serious when, in accordance to official statistic, worker without employment
contract in informal sector is more vulnerable from the perspective of labour rights.603

In order to effectively deal with this issue, Vietnamese labour regulations should
consider the determination of other criteria for classifying forms of working without
employment contract. The purpose of this classification is a better recognition of these forms,
and then, consider worker of which form(s) is/are closer to employee, and then, provide them
with similar level of protection on labour rights. In other words, in addition to the criterion on
‗the subordination of employee to employer‘, some other criteria need to be supplemented to a
better determination of working status, and then, some groups of workers are able to be
entitled to more labour rights. These criteria could include the cohesion between supplier of
and user of labour force which is estimated by frequency and longevity of this use. In details,
even in the case of a seasonal work or on-call work, if a worker spends almost of his or her

working time for one single user of labour force, this user must take some responsibility of
employer toward the worker concerned. In a similar way, in the context of cyber labour
market, despite of coded information about user and supplier of labour force, the system is
still able to collect information about frequency and longevity of using labour force between
them, which create a base for the determination of rights and responsibility of each party.

<i><b>4.3.Enhancing the value of sustainable development in labour regulations </b></i>

Sustainable development is a general issue which play an important role in many

601

In accordance to article 16.2, Labour Code 2012, employer and employee can join verbal employment contract for
working in temporary job with least than 03 months. Then, employment contract is still a main criterion for the
determination of formal working forms. In a similar way, in article 34, Labour Code 2012, part-time employee is
considered as employee working with less working hours but still need to join employment contract.

602

Law on Occupational Safety and Hygien no 84/2015/QH13 issued by National Assembly on 25 June 2015, article 2.3.

603

<i> See Ministry of Labour, War Invalid and Social Affairs and General Statistics Office of Vietnam, Report on Labour </i>

<i>Market Vietnam, no 18, 2018, available at </i>

(last visisted on 17/7/2019) vaf ILO,

<i>2016 report on informal employment in Vietnam, available at website </i>

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eco-social issues and also legal development. In the process of building up legal system, this
element is absorbed in many legal documents on labour issue, which express an expectation
of protecting labour force from the worst form of working and creating promotion for all
worker. The CPTPP and EVFTA once again require a sustainable development in labour issue.
In details, it requires a more extensive protection of labour regulations as well as an harmony
between labour issue and other issues such as investment and trade.

From this perspective, Vietnam is not the only country who is finding a solution for such
harmony. In some recent research on possible new approaches to labour law, it is suggested that
traditional bases of labour law which is on countervailing force to the inequality of bargaining
power inherent in the employment relation need to be supplemented.604 In this context, labour
law is expected to develop in a more flexible way. For adapting this requirement, the capabilities
approaches are examined to be an additional bases of labour law. Accordingly, the ultimate goal
of labour law should be the protection and promoting capacity and creating working
opportunities for people who have working ability.605 With this new approach, labour
regulations shall not only protect employment relationship but also other legal relations which
relate to labour for obtaining the goal of development of labour force. In connection with above
analyzed facts on working insecurity and recommendation (4.1 and 4.2), labour regulations
should classify workers into different groups, and then, provide each group with the protection
of labour rights which is correspondent to their involvement to labour market. Accordingly,
employee with employment contract is full protected in term of labour rights while core labour
rights of all other workers will be improved. In the context that Vietnam will not extend the
personal scope of Labour Code in short term, the implementation of this recommendation is
expected to extend legal protection to all workers regardless their working status.

<b>5. Conclusion </b>

In conclusion, this writing highlights some changes in new context due to the

development of eco-social activities and technology, then presents some main effects of these
changes to labour regulations. These changes jointly create new demand for the development
of labour law such as the extension and effectiveness of protection toward worker. The
amendment of labour law is no longer on a traditional way but needs to adapt new approach.
Some proposals at the end of the writing are expected to contribute for an improvement of
labour regulations to adapt with new changes in new context.

604

<i> Horacio Spector, Philosophical foundation of labour law, Florida State University Law Review số 33 (2006), p. 1120 – </i>
1150.

605<i>_{Riccardo Del Punta, Labour law and the Capacibility Approach, International Journal of Comparative Law and}</i>

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