Imminent Freedom of Association in Vietnam: A Catalyst or Mirage for the Future Protection and Development of Labor Rights?
Vol. 43 Associate Editor
International labor law scholars and commentators have largely praised the recent efforts of the Government of the Socialist Republic of Viet Nam (hereinafter “Vietnam”) for its adoption of foundational labor standards promulgated by the International Labour Organization (“ILO”), particularly with respect to the freedoms to collectively bargain and freely associate with labor organizations. Critics have rightfully questioned whether Vietnam intends to substantively effectuate labor reforms embodying the spirit of these international labor standards. Some observers have even argued that the Government’s recent wave of cooperation with the ILO constitutes mere window dressing motivated by a desire to feign compliance, as opposed to a genuine motivation to institute reform. An evaluation of current commentary on Vietnam’s commitment to adopting crucial association and collective bargaining rights demonstrates, however, that this cynicism neglects to consider the unprecedented nature of the country’s cooperation with the ILO. While judgment should be reserved until implementation of reforms is effectuated, the current state of affairs represents a great deal of hope for the future of labor relations in Vietnam. Since its founding, the ILO has played a central role in promoting international labor rights, particularly with respect to the freedom of association and the right to collective bargaining. ILO Conventions No. 87 and No. 98 – which formally pertain to Freedom of Association and the Protection of the Right to Organise and Collective Bargaining, respectively – have constituted institutional pillars of the ILO since its founding in 1919 and two of the eight “fundamental core” labor conventions enumerated in the ILO Declaration on Fundamental Principles and Rights at Work.  Moreover, the United Nations (“U.N.”) Universal Declaration of Human Rights stipulates that the freedom of association is a fundamental human right.  The ILO has explained that the right to freely associate constitutes “the enabling right to allow effective participation of non-state actors in economic and social policy,” which is intimately linked with the complementary freedom to collectively bargain. In response to Vietnam’s recent efforts, the ILO has lauded the Government of Vietnam for its significant cooperation and adoption of these international labor standards. In July 2019, Vietnam ratified ILO Convention No. 98, which requires that signatory Member States ensure that workers “enjoy adequate protection against acts of anti-union discrimination” and prevent “acts of interference” with worker and employer associations. This decision came in response to the ILO’s support and input during negotiations for the European Parliament’s ratification of the European-Vietnam Free Trade Agreement, pursuant to which Vietnam agreed to implement the core ILO conventions on collective bargaining and freedom of association. Given the longstanding dominance over labor relations maintained by the Vietnam General Confederation of Labor’s (“VGCL”), the only trade union previously authorized by law to participate, collectively bargain, or otherwise represent workers at the shop floor, factory, sectoral, regional and national levels, a commitment to effectuate protection for collective bargaining rights in Vietnam marks the potential for a sea of change in workers’ rights. In May 2021, Vietnam’s Ministry of Labour, Invalids and Social Affairs and the ILO announced a Memorandum of Understanding to spur the advancement of international labor standards throughout the forthcoming decade, during which the nation has agreed to ratify fifteen more ILO conventions. Importantly, pursuant to the agreement, Vietnam has committed to finally ratify ILO Convention No. 87, which protects the freedom of association. The ratifications represent, on the one hand, a remarkable success for the ILO and Vietnam in securing a baseline commitment to promote crucial international labor standards. Commentators have justifiably commended Vietnam’s demonstrated commitment to implementing these essential principles underpinning international labor rights, particularly given that many sectors within the economy of Vietnam have long been characterized by hostile employment relations. The potential for a dual system of worker representation under which workers have the right to representation by the worker representative organizations (“WROs”) and/or the VGCL is incredibly significant in large part due to the nature of the VGCL. The adoption of collective bargaining and association rights stands, at least in theory, to address head on several endemic issues. The opportunity to associate with a trade union of choice and bargain without employer animus, if realized, upends the standing monolithic trade union whose mission is lobbying at the national level rather than worker representation of interests at the shop-floor. Although the right to strike is recognized in Vietnamese law, burdensome administrative procedures mean in practice that legally unauthorized “wildcat strikes” are the only last resort available to workers. In short, while the VGCL has historically held a great deal of power in collective bargaining and lobbying at the national level, the trade union has never played a significant role in factory-level bargaining and disputes manifesting in strikes. Thus, many observers within international labor law have applauded the advent of WROs to address the dearth of grassroots-based representation available to workers. In assessing outcomes within international labor law, it is critical to consider not only surface-level indicators of compliance, such as a whether a country has ratified an ILO core convention or not, but also other indicia of the spirit of implementation. As well observed by Professor Lance Compa, “the key analytical question for compliance is whether the state is leaving workers alone to exercise [fundamental international labor] rights,” such as of collective bargaining and freedom of association. In formulating an answer to this question, however, it is plainly insufficient to consider the state’s bestowal of “negative rights” — for example, the right to enjoy adequate protection against acts of anti-union discrimination — because there are also necessary “‘positive rights’ requiring governments to act affirmatively to afford the rights.” Therefore, “[t]he state must protect the rights by providing effective recourse and remedies for violations” and “ILO ratifications [form a crude at best] indicator of respect workers’ freedom of association.” So far, Vietnam has continually delayed measures to practically institute WROs at the factory level, thereby allowing the VGCL to retain a de facto monopoly over labor and employment relations. Some commentators also warn that a desire to assert control over workers has truly motivated the decision to enact a collective bargaining regime. The practical linkage between the rights to freely associate and strike further threatens to undermine the genuine implementation of the freedom of association in Vietnam, at least once ILO Convention No. 87 is officially ratified. The state’s history of resistance to legalizing strikes in collective bargaining has buttressed a strategy to prevent any legal support for the public demonstration of worker discontent. As explained by Janice R. Bellace, the right to freedom of association is completely undermined without a concomitant right to strike because the last resort to strike is the foundation of workers’ bargaining power, without which workers “often decline to join a union on the grounds that it would be futile to do so as the union will achieve nothing.” Accordingly, even if Vietnam abides by its ILO commitments and enacts the legal right to form and participate in WROs, the lack of any indication of a corresponding advent of the right to strike could undermine the implementation of the Convention’s spirit. At this stage, Vietnam’s commitment to adopting international labor standards should nonetheless be applauded. As supported by Compa, ratification of core international labor standards formulated by the ILO is not a per se reliable indicator of commitment to the right to freely associate, nor is it a necessary prerequisite. While correct to raise concerns about the effective implementation of crucial freedom of association and collective bargaining reforms, critics overlook the fact that Vietnam’s present, unprecedented cooperation with the ILO it is a positive first step in the country’s further integration into the international labor regime, pursuant to which Vietnam will be subject for the first time to a certain degree of oversight and monitoring with respect to implementation of the Conventions’ principles. This should be welcomed as the key foundations for the ultimate recognition of crucial workers’ rights in Vietnam, which stand to fundamentally alter the character of labor and employment relations.
 See Anita Chan, Vietnam has Ratified ILO C98. How about China?, 26 Int’l Union Rts., no. 3, 2019, at 4, 4–5 (2019); see also Hung Chau Quoc, Collective Bargaining Complexity in Vietnam, 27 Int’l Union Rts., no. 4, 2020, at 8, 8–9 (2020); Hoang Van Nghia, Nguyen Minh Hang & Le Thi Thu Mai, Vietnam and the Implementation of International Commitments and Obligations on Human Rights, 24 J. Legal, Ethics & Regul. Issues, no. 4, 2021, at 1, 1–12.  See Joe Buckley, Freedom of Association in Vietnam: A Heretical View, 12 Glob. Lab. J., no. 2, 2021, at 79; For a fantastic and in-depth overview of many of the issues historically characterizing Vietnam’s system of labor relations, see Angie Ngoc Tran, Ties That Bind (Cornell University Press 2013).  Buckley, supra note 2, at 88–89.  See Int’l Labour Org. [ILO], ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up (2010) (adopted by the International Labour Conference at its Eighty-sixth Session, Geneva, 18 June 1998, with an annex revised 15 June 2010).  G.A. Res. 217(III)A, Universal Declaration of Human Rights (Dec. 10, 1948).  Int’l Labour Org. [ILO], Decent Work for Sustainable Development (DW4SD) Resource Platform: Freedom of Association and Collective Bargaining, Int’l Labour Org., https://www.ilo.org/global/topics/dw4sd/themes/freedom-of-association/lang–en/index.htm (last visited Oct. 25, 2021).  See Int’l Labour Org. [ILO], Vietnam Ratifies the Collective Bargaining Convention, Int’l Labour Org., https://www.ilo.org/global/standards/subjects-covered-by-international-labour-standards/collective-bargaining/WCMS_713933/lang–en/index.htm (last visited Oct. 22, 2021).  See id.  Int’l Labour Org. [ILO], ILO Welcomes European Parliament’s Approval for Free Trade Deal with Viet Nam, https://www.ilo.org/hanoi/Informationresources/Publicinformation/Pressreleases/WCMS_736139/lang–en/index.htm (last visited Oct. 21, 2021).  See, e.g., Quynh Chi Do, The Regional Coordination of Strikes and the Challenge for Union Reform in Vietnam, 48/5 Dev. & Change 1052–68 (2017).  See Int’l Labour Org. [ILO], Viet Nam Join Force to Promote International Labour Standards and Decent Work for All, https://www.ilo.org/hanoi/Informationresources/Publicinformation/Pressreleases/WCMS_793248/lang–en/index.htm (last visited Oct. 19, 2021).  Id.  See Buckley, supra note 2, at 79.  See Do, supra note 10, at 1054–66.  See, e.g., Chan, supra note 1, at 4.  Lance Compa, Assessing Assessments: A Survey of Efforts to Measure Countries’ Compliance with Freedom of Association Standards, 24 Comp. Lab. L. & Pol’y J. 283, 284 (2002).  Id.  Id. at 283–86.  Joe Buckley, Vietnam Gambles on Workers’ Rights, Jacobin (Jul. 7, 2019), https://jacobinmag.com/2019/07/vietnam-workers-rights-international-labour-organisation.  Id. Janice R. Bellace, ILO Convention No. 87 and the Right to Strike in an Era of Global Trade, 39 Comp. Lab. L. & Pol’y J. 495, 528 (2018).  Id.  See Compa, supra note 16.