The Procedures For Settlement Of Salary Disputes

In individual labor disputes, salary disputes are one of the most common disputes between an employee and an employer. Lac Duy & Associates synthesize this dispute resolution procedure so that employees and employers have useful information to protect themselves.

More: New Wages Regulation 2020

Regarding the jurisdiction of salary disputes resolution

A salary dispute is a type of individual labor dispute. Accordingly, agencies, organizations and individuals that are competent to settle salary disputes include: Labor Conciliators and The People’s Courts. Individual labor disputes must go through the conciliation conducted by labor conciliators before going to a court for settlement, except the following labor disputes:

• Disputes over disciplinary measures of dismissal or unilateral termination of labor contract.

• Disputes on compensation for damage and allowance upon termination of labor contract.

• Disputes between a domestic employee and his/her employer.

• Disputes over social insurance in accordance with the law on social insurance, over health insurance in accordance with the law on health insurance.

• Disputes on compensation between employees and enterprises or non-business units sending employees to work abroad under contracts.

Therefore, in addition to the above disputes, persons whose rights and interests are violated can choose to resolve labor disputes through the Labor Conciliators or through a competent Court. For salary disputes, the parties are required to go through the conciliation conducted by labor conciliators before going to a court for settlement.

In addition, salary disputes for which the litigant is located abroad or assets abroad or which need to be entrusted to the competent authority abroad fall under the jurisdiction of The provincial-level People’s Court.

Statute of limitations for requesting settlement of salary disputes

• The statute of limitations for requesting a labor conciliator to settle an individual labor dispute is 6 months, counting from the date of discovering an act which is claimed by each disputing party to infringe upon its legitimate rights and interests.

• The statute of limitations for bringing an individual labor dispute to a court is 1 year, counting from the date of discovering an act which is claimed by each disputing party to infringe its rights and legitimate interests.

Settlement of salary disputes by labor conciliators

• Within 5 working days from the date of receiving a conciliation request, the labor conciliator shall complete the conciliation.

• Both disputing parties must be present at the conciliation meeting. The disputing parties may authorize their representatives to attend the conciliation meeting.

• The labor conciliator shall instruct the parties to negotiate.

• In case the two parties can reach an agreement, the labor conciliator shall prepare a minute of successful conciliation.

• In case the two parties cannot reach any agreement, the labor conciliator shall recommend a solution to the parties for consideration. In case the two parties do not agree with the recommended solution or one of the disputing parties is absent without a plausible reason after having been duly summoned for two times, the labor conciliator shall prepare a minute of unsuccessful conciliation.

Note that the minute of conciliation must have the signatures of the present party and the labor conciliator. Copies of the minute of successful or unsuccessful conciliation must be sent to both disputing parties within 1 working day from the date the record is prepared.

Settlement by a court

Each disputing party may request settlement by a court if

• The conciliation is unsuccessful
• Either party does not implement the agreement written in the minute of successful conciliation
• The conciliation duration expires but the labor conciliator fails to conduct the conciliation.

Under the provisions of Articles 35, 39 and 40 of The Code of Civil Procedure 2015: The petitioner must file the petition at the People’s Court of the district where the defendant resides or is based. If the plaintiff is the employee, it is possible to choose The People’s Court of the district where he / she resides in the salary dispute.

Attached to the petition, the petitioner must attach documents proving the existence of an employment relationship and a salary dispute. At the same time, the petitioner must prove that conciliation has been conducted at the Labor Conciliators.

Under the provisions of Point a, Clause 1, Article 12 of the Resolution No. 326/2016/NQ-UBTVQH14 dated December 30, 2016 of the Standing Committee of the National Assembly on the rates of collection, exemption, reduction, collection, payment, management and using court costs and court fees, the employees who initiate lawsuits to claim salaries are exempt from court fee advances and court fees.

After fully submitting the petition, the Court will consider and proceed to accept the case.

Time limit for preparation for the first-instance trial of the labor case is 2 months from the date of acceptance of the case. For complicated cases or due to objective obstacles, the time limit for trial preparation is extended for one more month.

The time limit for opening a court hearing is 1 month from the date the decision to bring the case to first-instance trial. In case of a plausible reason, the time limit is 2 months.

New points in the Labor Code 2019

The Labor Code 2019 stipulates basically the same as the one on competence, statute of limitations, order and procedures for settling individual labor disputes just analyzed above. However, there are a few new points to mention according to the provisions of Articles 187, 188 and 190 of Labor Code 2019:

Add a competent dispute settlement body, the Labor Arbitration Councils, along with the method of dispute resolution through the Labor Arbitration Councils: specifically,

in case one of the parties does not perform the agreements in the minutes of successful conciliation; where it is not required to go through conciliation procedures;

in case the statutory conciliation period expires but the labor conciliator fails to conduct the conciliation or the conciliation fails, the disputing parties may choose to request the Labor Arbitration Councils or the Court to settle.

• The statute of limitations for requesting settlement: In addition to the case of requesting settlement of the Labor Arbitration Councils, the time limit to request a Labor Arbitration Councils to settle an individual labor dispute is 09 months from the date on which a party discovers the act of infringement of their lawful rights and interests. And if the requester is able to prove it because of a force majeure event, unfortunate event or other reasons as stipulated by law, but cannot request it on time as prescribed in this Article, the time of the force majeure event such resistance, obstacles or reasons are not included in the statute of limitations for requesting settlement of individual labor disputes.

• Amend, supplement several cases of labor disputes that are not required through conciliation procedures, including disputes:

• Unemployment insurance according to the provisions of the law on employment, the insurance of occupational accidents and diseases in accordance with the law on occupational safety and hygene.

• Compensation for damage between employees and enterprises, organizations sending employees abroad under the contract.

• Between the dispatching employee and the dispatching agency.

Above are the legal provisions on salary dispute resolution procedure. Readers can contact Lac Duy & Associates to receive timely advice and support on other information such as: unilateral labor contract termination disputes, labor discipline disputes, insurance disputes, job transfer disputes, dismissal disputes … or information about excellent labor consulting lawyers, salary consulting lawyers, insurance consulting lawyers …