Last November, the Vietnamese National Assembly took a long-awaited decision on a demand that came from both inside and outside the country: to authorise independent trade unions from 2021. The measure, included in a reform of the labour code, was accompanied by two others that might have been fought against by (independent) unions had they already been allowed to exist: the retirement age will gradually increase to 62 for men and 60 for women (currently 60 and 58 years, respectively) to counteract the ageing of the population; and the working week will stay fixed at 48 hours, although some political leaders are calling for it to be reduced to 40.
While it remains to be seen how it will be implemented, freedom of association is a major milestone in a society where the Communist Party, in power since 1975, stifles any attempt at civil association, while freedom of expression is increasingly restricted. Trade unions already exist in Vietnam, but they all are under the umbrella of the Vietnam General Confederation of Labour (VGCL), a body linked to the Communist Party and therefore disinclined to support actions that upset the government.
“At present the unions work for the Party. Instead of defending workers’ rights, they side with employers to protect their interests,” says Vu Quoc Ngu, director of the dissident organisation Defend the Defenders.
The country’s gradual opening up to trade in the last 25 years led some activists to believe that they could establish independent unions, especially following the entry of Vietnam into the World Trade Organisation (WTO) in 2006, but the communist regime showed it was not yet willing to accept that. The most notable attempts were those of the Independent Trade Union of Vietnam in 2006 under the leadership of Nguyen Khac Toan, and the Organisation of Independent Farmers, created in the same year by Do Cong Thanh. Both groups were dismantled within months of their creation and their leaders were imprisoned, accused of propaganda against the state.
So what has changed to make Vietnam now agree to accept independent trade unions? According to most analysts, it was a combination of internal and external pressures. Within the country, despite the new laws against freedom of expression, dissenting voices were making themselves heard more and more loudly, especially since the rise in popularity of social networks such as Facebook. In addition to these dissenting views, which still result in dozens of activists being sent to jail, in recent years workers have grown increasingly bold, stepping up the number of so-called ‘wildcat’ or unapproved strikes, especially in foreign companies (South Korean, Taiwanese, Chinese and Japanese, mainly), according to government data.
Vietnamese law has allowed strikes since 1994, but the slowness of the bureaucratic procedures imposed and the failure of the state trade union to act have led workers to opt for strikes outside the law. One of the most notorious took place last year, when thousands of workers protested for several days outside a factory and blocked roads in a province near Ho Chi Minh City, the most populous city in the country. Such movements are partly due to the lack of collective bargaining mechanisms, a deficiency that according to Professor Nguyen Duc Loc, of the Social Research Institute of Ho Chi Minh, will be corrected with the existence of independent unions, in which workers will feel more represented.
“It will allow employees to organise themselves and appoint their own delegates,” he tells Equal Times. In addition, according to Nguyen, the emergence of these new groups will have a strong impact on self-employed workers, hitherto completely unprotected. “There is no legal status for them, so independent unions can be key to protecting them,” he explains.
Together with the domestic factors, the new regulation is also for many analysts a result of Vietnam’s opening up to the international economy. Authorising independent trade unions was a fundamental part of the negotiations between Vietnam and the United States on the Trans-Pacific Economic Partnership Agreement (TPP), a condition finally weakened by the United States’ withdrawal from that treaty (negotiated by 12 states).
The last major agreement signed by Vietnam was the free trade agreement (FTA) with the European Union (EU), ratified on 12 February by the European Parliament, which includes a section on sustainable development with the commitment to conform to international standards on human rights. The International Labour Organization (ILO) welcomed it because “it creates the necessary legal environment for employment in modern Vietnam and for its industrial relations.”
The more critical commentators however say the agreement with the EU is too vague and highlight the lack of sanctions in case Vietnam does not fulfil its commitments on human and labour rights. In addition, they doubt that they will actually allow free trade unions. “Unless the Communist Party wants to carry out far-reaching political reforms, it will not allow the formation of independent unions that would threaten its political monopoly,” says Vu Quoc Ngu of Defend the Defenders. Along the same lines, Claudio Francavilla, a Brussels-based expert from the human rights organisation Human Rights Watch, points out that Vietnam’s criminal code would continue to limit freedom of association even if independent organisations are authorised. “The criminal code criminalises peaceful criticism. Maybe you can form a union that has some kind of activity, but you can go to jail for criticising a law,” he says.
Although Vietnam has ratified ILO Convention 98 on collective bargaining and is committed to “making efforts” to comply with Convention 105 on the abolition of forced labour and Convention 87, which protects freedom of association, by 2023, Francavilla underlines the lack of guarantees.
“The self-imposed deadline of 2023 gives the government time to strengthen its control over independent trade unionists and can also postpone its implementation indefinitely without violating the FTA. In addition, some articles of the penal code make it impossible to enjoy the rights contained in the ILO conventions,” he adds.
One of the most sceptical voices on freedom of association and the trade agreement with the EU has been that of Pham Chi Dung, president of the Association of Independent Journalists of Vietnam, a group fighting for freedom of expression in the country. Dung has remained in prison since his arrest last November, a few days after publishing an open letter to MEPs in which he asked them to vote against the FTA to force Vietnam to improve human and labour rights. In his letter, Dung said that the new labour code does not open the door to independent unions but to “a complicated process for those who want to establish non-state unions.” This old image of the Communist Party explains one of the reasons why it would be reluctant to allow freedom of association: the Hanoi government considers the unions “reactionary” because of the memory of the Solidarnosc union in Poland, which played a decisive role in the fall of the communist system in 1989.