Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Viet Nam (Ratification: 1997)

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Article 1 of the Convention. Discrimination based on colour and national extraction. Previously, the Committee requested the Government to provide information on the application of Decree No. 95/2013/ND-CP of 2013 – which establishes administrative penalties for violations on the grounds of discrimination as defined in section 8(1) of the Labour Code – with regard to acts of discrimination on the basis of colour, as well as any other measures taken to ensure equality of opportunity and treatment irrespective of colour. The Committee also requested the Government to provide information on any practical measures taken to ensure the full application of the Convention in relation to equality of opportunity and treatment irrespective of political opinion and national extraction. The Committee notes the Government’s reference to section 7(2) of Decree No. 28/2020/ND-CP of 1 March 2020 which establishes penalties for discrimination based on gender, age, ethnicity, colour, social background, marital status, creed, religion, HIV infection, disability. Concerning discrimination based on political opinion, the Government reports the introduction of “politics” as a prohibited ground of discrimination under section 3(8) of the 2019 Labour Code. In this regard as well as with reference to the ground of national extraction, the Committee refers to its comments above. The Committee asks the government to provide information on any penalties imposed pursuant to section 7(2) of Decree No. 28/2020/ND-CP for cases of discrimination in employment and occupation based on the grounds of colour and ethnicity. It also reiterates it request for information on any steps taken to ensure equality of opportunity and treatment irrespective of colour.

General observation of 2018. With regard to the above issues, and in more general terms, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government's attention to its general observation of 2018 and asks the Government to provide information in response to the questions raised in that observation.

Articles 2 and 3. Equality of opportunity and treatment between women and men. The Committee recalls its previous requests to the Government: (1) to provide more information on measures taken or envisaged to provide women with equal access to higher compensated occupations and professions in the formal sector; (2) to provide specific information on progress made and outcomes achieved through the “Supporting women in vocational training and employment placement” project and the National Target Programme of Poverty Reduction and the National Target Programme of Employment; and (3) to supply information regarding the application of sections 13 and 14 of the Law on Gender Equality, providing for equal treatment between men and women in employment, training and education. The Committee notes the information provided by the Government on a number of measures adopted in favour of women, such as financial support to women’s participation in training programmes covering tuition fees, training costs and travel expenses; provision of distance learning opportunities; and support to job creation. The Government also states that according to the 2019 Population and Housing Census the literacy rate of the population aged 15 and over is 94.6 per cent for women and 97 per cent for men. As regards primary and secondary education level, girls account for 47-48 per cent of the students, and their participation in higher education has increased over the last ten years, from 49.26 per cent to 53.54 per cent. According to the same Census, 20.5 per cent of the female population aged 15 years and older participating in the labour force have professional and technical training of primary level or higher, compared to 25.5 per cent of men. The Committee also notes from the Government’s report on the national-level review of the implementation of the Beijing Declaration and Platform for Action, 1995 (Beijing +25 national report) that gender stereotypes around women's roles and capacities for work, career development and leadership, remain barriers for women to find good jobs and earn higher incomes. According to the Government, the rapid changes in the workplace due to information technology and artificial intelligence, are also raising issues around professional and technical qualifications that affect women. Moreover, women continue to be concentrated in the informal economy, where access to social protection, training opportunities and financial resources are limited. Noting this information, the Committee asks the Government to provide information on the measures taken to tackle the obstacles faced by women in accessing jobs in the formal economy, whether in urban or rural areas, including measures aimed at overcoming gender stereotypes, improving the reconciliation of family and work responsibilities and a fairer distribution of them between men and women, and promoting women’s participation in education and training covering matters like science, technology, engineering and mathematics. In addition, the Committee reiterates its request for information on any violations of sections 13 and 14 of the Law on Gender Equality detected by, or brought to the attention of, the labour inspection services, the sanctions imposed and the remedies provided.

Equality of opportunity and treatment of ethnic minority groups. Previously, the Committee requested the Government: (1) to provide information regarding measures taken to ensure that section 12(2) of the Labour Code of 2012 (stipulating that the State shall assist employers who employ a large number of people from ethnic minorities), is implemented so that the most disadvantaged minority groups benefit equally from this legislative scheme; (2) to provide information on measures taken to ensure that Programmes 134, 135, 143 and other programmes targeting minority groups regarding employment and occupation are implemented so that the most disadvantaged ethnic minority groups are ensured equality of opportunity and treatment in employment and occupation; and (3) to take measures to ensure that the above initiatives are sufficiently monitored, and provide detailed statistics of their impacts. The Committee notes the Government’s reference to a number of programmes on vocational education and employment that target, among other groups, ethnic minorities, including the measures envisaged under the National Employment Fund to create jobs and various initiatives aimed at job placing and career orientation. The Government also informs that “measures are underway to ensure that Programmes 134, 135 and 143 and others in employment and occupation targeting ethnic minorities are implemented to guarantee the most difficult ethnic minority groups equal opportunity and treatment in employment and occupation”. The Committee further notes that the United Nations Human Rights Committee (HRC) expressed concern about the fact the persons belonging to ethnic or religious minorities and indigenous peoples suffer from discrimination, including with regard to education, employment and other public services. It also remained concerned that these communities “are not sufficiently consulted in decision-making processes with respect to issues affecting their rights, such as the seizure and allocation of land, including traditional and ancestral lands, for development projects, or offered appropriate remedies”. The HRC noted that such development projects have a negative impact on the communities’ culture, lifestyle, use of land and resources, and livelihoods, resulting in the exacerbation of socioeconomic inequalities (CCPR/C/VNM/CO/3, 29 August 2019, paragraph 55). In this regard, the Committee wishes to recall the importance of consulting with the social partners and interested groups on the design, monitoring, implementation and evaluation of the measures and plans adopted with a view to ensuring their relevance, raising awareness about their existence, promoting their wider acceptance and ownership and enhancing their effectiveness. In light of all the above, the Committee asks the Government to continue to provide information on the measures adopted to promote equality of opportunity and treatment in respect of employment and occupation for members of ethnic minorities. It also encourages the Government to undertake an evaluation of the results achieved in consultation with the groups concerned and to jointly identify challenges to their enjoyment of equality of opportunity and treatment in employment and occupation, including traditional occupations, and the corrective measures needed, and asks that it provide information in this respect.

Equality of opportunity and treatment of persons with disabilities. In its previous comments, the Committee requested the Government to provide information regarding measures taken to implement section 8(1) of the Labour Code of 2012, the 2010 Law on persons with disabilities and the National Action Plan to Support People with Disabilities 2012–20 to ensure equality of opportunity and treatment in employment and occupation. The Committee also requested the Government to provide relevant statistical data disaggregated by sex, ethnic group and disability status. The Committee notes the Government’s indication that a Committee on People with Disabilities has been established. The Government also reports on some achievements in the promotion of equality of opportunity and treatment of persons with disabilities. The Committee notes in particular that 30 per cent of persons with disabilities in their working age have a job, mostly in agriculture. However, the Government states that less than 10 per cent of them have received vocational training and there is thus a need to fill this gap. In this respect, from 2017 to 2020, 7,167 projects targeting persons with disabilities were funded under the National Target Program on Employment and Vocational Training. Moreover, in 2019, the Vocational College of the Central Association of Victims of Orange/dioxin Agents organized two vocational training classes for 175 children and grandchildren of the victims. The Government also states that it implements a preferential loan policy for disabled workers that provides preferential loans to small and medium enterprises, cooperatives, cooperative groups and business households employing people with disabilities, including incentives on loan amounts and interest rates. Moreover, every year a part of the national budget is allocated to support people with disabilities in restoring their health and working ability and in participating in vocational training, with over 256 vocational training institutions providing vocational training for people with disabilities. Concerning statistical information, the Committee notes that persons with disabilities represent 7.06 per cent of the population aged two or more, of which 58 per cent are women. Nearly 29 per cent of all persons with disabilities are affected by severe forms of disability. The Committee asks the Government to continue to provide information on the measures adopted to promote equality of opportunity and treatment in employment and occupation of persons with disabilities, in rural and urban areas, the results achieved and the main barriers encountered by persons with disabilities in accessing employment or occupation without discrimination, including any measures adopted to improve access to education and to extend the offer of vocational training opportunities. Please also indicate which specific measures have been taken by the Committee on People with Disability to promote the application of the principles of the Convention.

Articles 3 and 5. Prohibition of discriminatory recruitment practices based on sex, and special measures. The Committee recalls its previous requests to the Government: (1) to provide information on the implementation and enforcement of sections 8(1), 153 and 154 of the Labour Code of 2012 – which prohibit discrimination based on gender and require the Government and employers to create employment opportunities for women employees and to promote gender equality in recruitment; and (2) to provide detailed statistical information on the application of sections 18 and 25(2) of Decree No. 95/2013/ND-CP of 2013, which respectively establish a fine of between 5,000,000 and 10,000,000 Vietnamese Dong (VND) for acts of discrimination against, inter alia, gender and marital status, and specify sanctions for the violation of provisions regarding women workers, and any administrative or judicial complaints submitted to the relevant authorities in this respect. The Committee notes with interest that the 2019 Labour Code has expanded Chapter X of the previous Code, changing it from “specific provisions for female workers” to “specific provisions for female workers and ensuring gender equality”, which points, as explained by the Government, to a change in approach from ‘protecting women’ to ensuring gender equality. The Committee notes in particular that section 136 of the 2019 Labour Code lists the following duties of employers: “(1) to ensure gender equality and measures to promote gender equality in recruitment, work arrangements, training, working hours, rest periods, wages and other policies; (2) to consult with female workers or their representatives when making decisions that affect the rights and interests of women; (3) to provide sufficient and appropriate bathrooms and toilets at the workplace; and (4) to assist with and support the building of day care facilities and kindergartens, or to contribute part of the childcare expenses incurred by workers”. The Committee also notes that the 2019 Labour Code aims to reduce the existing differences in retirement age between men and women. Section 169 thus provides that the retirement age for workers in normal working conditions shall be adjusted according to a roadmap of increments until reaching 62 years of age for male workers by 2028 and 60 years of age for female workers by 2035. The Committee asks the Government to provide information on the application in practice of section 136 of the 2019 Labour Code, including examples of measures adopted by the employers and any difficulties encountered. Please also provide information on the roadmap provided for under section 169 of the Labour Code and continue to provide information on the measures taken to raise awareness of the new provisions of the Labour Code concerning gender equality among workers, employers and their respective organizations, as well as public enforcement officials.

Article 4. Measures affecting individuals who are justifiably suspected of, or engaged in, activities prejudicial to the security of the state. The Committee takes note of the Government’s indication that the bans of persons from certain positions apply to periods ranging from one to five years and are consistent with Article 4 of the Convention. The Committee again asks the Government to provide information related to: (i) the rulings banning persons from holding certain posts, practising certain occupations or doing certain jobs; (ii) the offences in connection with which such bans have been imposed; and (iii) the number and nature of the appeals lodged against such bans and their outcomes.

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Article 1(1) of the Convention. Grounds of discrimination. Legislative developments. The Committee notes the adoption of the new Labour Code of 2019 (Law No. 45/2019/QH14) that entered into force on 1 January 2021. It welcomes section 3(8) of the 2019 Labour Code which extends further the list of prohibited grounds of discrimination that were included in the 2012 Labour Code by adding five additional grounds, namely “national origin”, “age”, “pregnancy status”, “politics”, and “family responsibilities”. It notes with interest that the ground of “social class” has been replaced by “social origin”, to bring the text in line with the Convention. The Committee asks the Government to confirm its understanding that the grounds of “politics” and “national origin” correspond to the grounds of “political opinion” and “national extraction” laid down in the Convention. It also asks the Government to provide information on the application in practice of section 8(1) of the Labour Code, including information on any violation detected by the labour inspectors or addressed by courts, the sanctions imposed and the remedies granted. The Committee also asks the Government to provide information on any awareness-raising activities about these provisions undertaken for workers, employers and their respective organizations, as well as public enforcement officials.

Article 1(1)(a). Discrimination based on religion. The Committee notes that, in its report, the Government provides information on the adoption of the Law on Belief and Religion of 2016 that has replaced Ordinance No. 21/2004/PL-UBTVQH11. The Committee notes that section 5 of the Law prohibits, among other things, discrimination and stigmatization of people for their beliefs or religion. The Government states that at present 43 organizations belonging to 16 religions have been recognized by the State and have been granted registration to carry out their religious activities. The Committee notes that the United Nations Human Rights Committee (CCPR) expressed the following concerns: (1) that the Law on Belief and Religion unduly restricts the freedom of religion and belief, such as through the mandatory registration and recognition process for religious organizations and restrictions on religious activities based on vague and broadly interpreted legal provisions related to national security and social unity; and (2) that members of religious communities and their leaders, predominantly unregistered or unrecognized religious groups, ethnic minorities or indigenous peoples, face various forms of surveillance, harassment, intimidation, and property seizure or destruction, and are forced to renounce their faith, pressured to join a competing sect, and subject to physical assaults, which sometimes leads to death (CCPR/C/VNM/CO/3, 29 August 2019, paragraph 43). In light of the above, the Committee asks the Government to provide information on the implementation of the Law on Belief and Religion of 2016, in particular on any cases dealt with by the labour inspectorates or the courts regarding religious discrimination alleged by individuals with unrecognized religious beliefs, as well as their outcome.

Discrimination based on sex. Sexual harassment. In reply to its previous request on the application of the 2012 Labour Code provisions on sexual harassment, the Committee welcomes the fact that the 2019 Labour Code includes a definition of sexual harassment, which did not appear in the previous Code, and that: (1) according to section 3(9) of the Code, “sexual harassment at a workplace is any behaviour of a sexual nature by any person towards another person at a workplace that is not wanted or accepted by the latter person”; (2) section 3(9) clarifies that a workplace is any place where a worker undertakes work as agreed with or assigned by the employer; (3) section 6(2)(d) provides that employers shall develop and implement solutions to prevent sexual harassment at the workplace; (4) section 5(1)(a) recognizes workers’ right to be free from sexual harassment at the workplace; (5) section 118 establishes that employers must issue internal work regulations which shall include “prevention and control of sexual harassment at the workplace” and “Steps and procedures for handling sexual harassment at the workplace”; (6) section 125 provides that dismissal, as a disciplinary measure, may be applied by an employer in the case of a worker who commits sexual harassment at the workplace as defined in the internal work regulations; and (7) section 135 provides that the State shall implement measures to prevent sexual harassment at the workplace.

The Committee notes with interest that section 84 of Decree No. 145/2020/ND-CP of 2020, which supplements the Labour Code, further clarifying the definition provided in the Labour Code by indicating that sexual harassment “may occur in the form of a request, demand, suggestion, threat, [or] use of force to have sex in exchange for any work-related interests; or any sexual act that thus creates an insecure and uncomfortable work environment and affects the mental, physical health, performance and life of the harassed person”. The same section specifies that sexual harassment may include: actions, gestures, or physical contact with the body of a sexual or suggestive nature; sexual or suggestive comments or conversations in person, by phone or through electronic media; body language; and display, description of sex or sexual activities whether directly or through electronic media. Furthermore, section 84 of the Decree specifies that “workplace” under section 3(9) of the 2019 Labour Code means “any location where the employee works in reality as agreed or assigned by the employer, including the work-related locations or spaces such as social activities, conferences, training sessions, business trips, meals, phone conversations, communications through electronic media, shuttles provided by the employer and other locations specified by the employer”.

Concerning the application of the Code of Conduct on Sexual Harassment in the Workplace of 2015, the Committee notes the information provided by the Government concerning awareness-raising and capacity-building activities for labour inspectors. The Government observes that despite the increased awareness among different actors about the phenomenon and the applicable rules, few cases of sexual harassment at work are detected and addressed. According to the Government, this is partially due to the lack of understanding or the hesitation of the victims. However, in the Government’s view the main reason for the few cases detected and handled resides in the lack of specific and clear regulations on sexual harassment in the workplace and effective complaints procedures within enterprises, agencies and organizations. In order to address this weakness, the Decree No. 145/2020/ND-CP of 2020 provides guidance on the application of the relevant provisions of the 2019 Labour Code and the Ministry of Labour, Invalids and Social Affairs is planning to revise the 2015 Code of Conduct on Sexual Harassment in the Workplace. Welcoming all these developments, the Committee asks the Government to provide information on the application of the relevant provisions of the Labour Code and the Decree No. 145/2020/ND-CP, including examples of measures adopted to prevent sexual harassment pursuant to section 135 of the Labour Code and examples of internal regulations setting out measures and procedures to prevent and address cases of sexual harassment at work. The Committee also asks the Government to provide information on any cases of sexual harassment addressed by the labour inspectors and the judiciary, as well as disciplinary measures, including dismissal, applied by employers pursuant to the 2019 Labour Code. The Committee also requests the Government to provide information on the revision of the 2015 Code of Conduct on Sexual Harassment in the Workplace and its outcome.

Article 5. Restrictions on women’s employment. In its previous observation, the Committee requested the Government to provide information on the application of section 160 of the Labour Code of 2012, which prohibits the employment of female workers on work that is harmful to parenting functions, including a list of occupations prohibited under section 160(2) and (3), in addition to the occupations designated in Circular No. 26/2013/TT BLDTBXH of 2013. The Committee also requested the Government to take measures to ensure that future revisions of the above Circular limit its restrictions to women who are pregnant or breastfeeding. The Committee notes with interest that, with the adoption of the 2019 Labour Code, the norms that established a ban on women’s employment in those cases considered harmful to parenting functions have been removed. In this respect, the Committee notes that section 142(1) of the 2019 Labour Code, concerning “occupations and work adversely affecting reproductive and child-nursing functions” provides that the Ministry of Labour, Invalids and Social Affairs shall issue a list of the occupations and works falling under this heading. Section 142(2) provides that the employer has a duty to provide adequate information to all workers about the dangers, risks and requirements of jobs, and to ensure statutory occupational safety and health for workers when requesting them to perform any work included in the list issued by the Ministry of Labour, Invalids and Social Affairs. At the same time, the Government indicates that the new Labour Code places an emphasis on women’s “choice” by establishing, for example, at section 137(2) that “a female worker who performs heavy, hazardous or harmful work or extremely heavy, hazardous or harmful work, or work that adversely affects reproductive and child-rearing functions, when pregnant and having informed the employer, is entitled to be transferred to lighter and safer work by the employer or to have her daily working time reduced by one hour without any reduction in her wages, rights and interests during the period while she is caring for a child less than 12 months old”. Likewise, section 137(1) leaves to the woman the choice to perform night work or overtime work or to go on long-distance work trips. Welcoming these changes, the Committee asks the Government to provide information on the application in practice of both sections 137 and 142 of the 2019 Labour Code, and in particular, regarding: (i) whether the reduction of daily working time provided for in section 137(2) applies to pregnant women; and (ii) whether any awareness-raising activities have been foreseen or undertaken for workers and employers, and their respective organizations, as well as public enforcement officials, regarding these two provisions. The Committee also asks the Government to provide a copy of the list of occupations and work adversely affecting reproductive and child-nursing functions issued by the Ministry of Labour, Invalids and Social Affairs under section 142(1) of the 2019 Labour Code.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments initially made in 2015. The Committee also notes that the Government had been requested to provide information to the Committee on the Application of Standards at the 106th Session of the International Labour Conference for failure to supply reports and information on the application of ratified Conventions.

Repetition

Equality of opportunity and treatment between women and men. The Committee recalls its request for information regarding the impact of the “Supporting women in vocational training and employment placement, 2010–15” project in broadening occupational options to women, the National Target Programme of Poverty Reduction and the National Target Programme of Employment, the preferential policies to enable women to migrate overseas, and sections 13 and 14 of the Law on gender equality. It notes the Government’s indication that with regard to the vocational training project, female workers from disadvantaged groups including ethnic minorities, persons with disabilities, and people who suffer from land recovery are given support to receive vocational training for three months, although the Government does not indicate the types of training courses that are made available under this project. The Committee notes, with regard to the National Target Programme on Employment and Vocational Training 2012–15, that the local governments and social partners of 63 provinces and cities received funds to provide loans towards the creation of employment, 90 per cent of which concentrated in the informal sector, contributing to 20 per cent of the total number of jobs created during that period. The Government indicates that about half of these loans were used to create jobs for female workers. With regard to the preferential policies to enable women to migrate overseas, the Committee notes that awareness-raising activities are undertaken to provide information to implementing staff about gender equality and non-discrimination. The Committee notes that the Government did not provide information regarding the Law on gender equality. The Committee also notes the concluding observations of the Committee on Economic, Social and Cultural Rights (CESCR), which in turn noted that, owing to their role as main caregivers in the family, women work primarily in the informal economy where working hours are more flexible, and that measures taken by the Government perpetuate this discriminatory situation through gender-biased training plans on skills such as sewing and knitting (E/C.12/VNM/CO/2-4, 15 December 2014, paragraph 16), in line with the Committee’s previous comment that the Government is promoting women to jobs in “light industries”. The Committee notes that, overall, vocational training and financing measures provided by the measures mentioned in the Government’s report support women’s employment in the informal economy and light industries. In this regard, the Committee recalls that the Convention expressly addresses equal access to occupations and professions, which requires equal treatment by placement services and other measures promoting employment such as vocational training (see General Survey on the fundamental Conventions, 2012, paragraph 753). In this regard, the Committee requests the Government to provide more information on measures taken or envisaged to provide women with equal access to higher compensated occupations and professions in the formal sector, including through general education, vocational training, and awareness-raising measures that would prepare both women workers and employers for work in professions beyond the informal economy and light industries. The Committee also requests the Government to provide specific information on progress made and outcomes achieved through the policy and programme measures mentioned above, including statistical information disaggregated by sex. The Committee reiterates its previous request for information regarding the application of sections 13 and 14 of the Law on gender equality, and on any violations detected by, or brought to the attention of, the labour inspection services, the sanctions imposed and the remedies provided.

Equality of opportunity and treatment of ethnic minority groups. The Committee notes with interest the Government’s indication that section 12(2) of the Labour Code of 2012 stipulates that the State shall assist employers who employ a large number of people from ethnic minorities. It also notes the Government’s statement that a number of programmes and schemes have been implemented to ensure equality of opportunity and treatment for ethnic minority workers. The Government indicates that these schemes provide investment in infrastructure to promote production in villages in a “difficult” situation; support for housing, water and land for ethnic minority households generally as well as in the Mekong Delta; loans for production activities; price and transportation subsidies to poor people in disadvantaged areas; and socio-economic development in the regions inhabited by the Mang, La Hu, Cong, Co Lao minority groups. The Committee also notes the Government’s indication that Decision No. 449/QD TTg of 12 March 2012 approved a strategy regarding ethnic affairs up to the year 2020. Major tasks include: (i) the improvement of the quality of minority human resources through development of education and vocational training policies at all levels; (ii) capacity building aimed at ethnic minority staff members; and (iii) the promotion of production and acceleration of poverty reduction in ethnic minority regions in light of the economic restructuring resulting in the reduced share of the agricultural sector. It also notes the Government’s indication that Decision No. 755/QD-TTg of 20 May 2013 provides support to ethnic minority households that no longer have land allocated to them for production, such as monetary support to vocational trainees, and subsidies and credit to purchase agricultural equipment. The Committee also recalls from its previous comments that Decision No. 267/2005/QD TTg of 31 October 2005 supports vocational training to ethnic minority groups. The Committee welcomes the legislative and policy measures indicated by the Government in its report. It notes, however, that the World Bank’s report demonstrates that ethnic minorities are not a homogenous group, with the Khmer and Cham having seen the largest decrease in poverty rates between 1998 and 2008, while minorities in the Central Highlands and Northern Uplands such as the Hmong and Dao have not benefited to the same extent (Well Begun, Not Yet Done: Vietnam’s Remarkable Progress on Poverty Reduction and the Emerging Challenges, 2012 Vietnam Poverty Assessment, World Bank, paragraphs 5.7 and 5.8). This report observed that in light of this diversity, poverty reduction and development programmes that target “extremely difficult” geographic areas, or all ethnic minorities as an undifferentiated group, will inevitably benefit some populations more than others (paragraph 5.21). In this regard, the Committee recalls that legislative measures to give effect to the principles of the Convention are important, but not sufficient to achieve its objective, and that monitoring the implementation of plans and policies in terms of results and effectiveness is essential and obligated under Article 3(f) of the Convention (see General Survey on the fundamental Conventions, 2012, paragraphs 856 and 858). The Committee requests the Government to provide information regarding measures taken to ensure that section 12(2) of the Labour Code of 2012 is implemented so that the most disadvantaged minority groups benefit equally from this legislative scheme. The Committee also requests the Government to provide information on measures taken to ensure that Programmes 134, 135, 143 and other programmes targeting minority groups regarding employment and occupation are implemented so that the most disadvantaged ethnic minority groups are ensured equality of opportunity and treatment in employment and occupation. Finally, it requests the Government to take measures to ensure that the above initiatives are sufficiently monitored, and provide detailed statistics of their impacts disaggregated by sex and ethnic group.

Equality of opportunity and treatment of persons with disabilities. The Committee notes that section 8(1) includes disabilities as a prohibited ground of discrimination. It also notes the concluding observations of the CESCR, which noted that persons with disabilities are discriminated against in the enjoyment of the right to work, despite the adoption of the 2010 Law on persons with disabilities and the National Action Plan to Support People with Disabilities 2012–20. It notes that the CESCR recommended to the Government that it allocates sufficient resources towards accessibility and the provision of reasonable accommodation in rural areas, and actively recruit persons with disabilities in the public sector and reinstate the quota system, including in the private sector (E/C.12/VNM/CO/2-4, 15 December 2014, paragraph 15). In this regard, the Committee recalls that the principle of equality of opportunity and treatment between persons with disabilities and other workers falls within the scope of Article 1(1)(b) of the Convention, and that under Article 1(3) of the Convention “employment” and “occupation” include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment (see General Survey on the fundamental Conventions, 2012, paragraph 784), and that the CESCR’s recommendations fall under the scope of the principles of the Convention. The Committee requests the Government to provide information regarding measures taken to implement section 8(1) of the Labour Code of 2012, the 2010 Law on persons with disabilities and the National Action Plan to Support People with Disabilities 2012–20 to ensure equality of opportunity and treatment in employment and occupation, including measures taken to allocate sufficient resources towards accessibility and the provision of reasonable accommodation in rural areas, and actively recruit persons with disabilities in the public sector and reinstate the quota system, including in the private sector. The Committee also requests the Government to provide relevant statistical data disaggregated by sex, ethnic group and disability status.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments initially made in 2015. The Committee also notes that the Government had been requested to provide information to the Committee on the Application of Standards at the 106th Session of the International Labour Conference for failure to supply reports and information on the application of ratified Conventions.

Repetition

Legislative developments. The Committee notes that section 8(1) of the newly amended Labour Code (Law No. 10/2012/QH13 of 18 June 2012) extends the number of prohibited grounds of discrimination. Specifically, regarding the grounds enumerated in Article 1(1)(a) of the Convention, the new Labour Code adds “colour” to the previously prohibited grounds of gender, race, social class, belief or religion.

Regarding the grounds enumerated in Article 1(1)(b) of the Convention, the Committee welcomes the addition in the new Labour Code of “marital status,” “HIV status,” “disabilities”, and “establishing, joining a trade union or participating in trade union activities”. The Committee requests the Government to provide information on the implementation and enforcement of the expanded grounds of discrimination set out in section 8(1) of the amended Labour Code, including any measures taken or envisaged to raise awareness of these provisions among workers, employers and their respective organizations, as well as public enforcement officials, and any administrative or judicial complaints submitted to the relevant authorities in this respect., disaggregated by the type of alleged discrimination.

Article 1 of the Convention. Discrimination based on colour and national extraction. The Committee recalls its previous request to the Government to take practical measures to ensure the application of the Convention with respect to equality of opportunity and treatment irrespective of political opinion, national extraction and colour. In this respect, the Committee notes that, although section 8(1) of the Labour Code of 2012 now includes colour as a prohibited ground of discrimination, it continues to omit “political opinion” and “national extraction”. In this regard, while the Committee notes the Government’s indication that Decree No. 95/2013/ND-CP of 22 August 2013 establishes penalties for administrative violations on the grounds of discrimination, as defined in section 8(1) of the Labour Code, it emphasises that this Decree does not apply to the grounds of political opinion and national extraction. The Committee requests the Government to provide information on the application of Decree No. 95/2013/ND-CP of 2013 with regard to acts of discrimination on the basis of colour, as well as any other measures taken to ensure equality of opportunity and treatment irrespective of colour. The Committee also once again requests the Government to provide information on any practical measures taken to ensure the full application of the Convention in relation to equality of opportunity and treatment irrespective of political opinion and national extraction.

Discrimination based on religion. The Committee recalls its previous request to the Government to provide details of legislative measures that prohibit discrimination in employment and occupation on religious grounds. The Committee notes the Government’s indication that article 24 of the Constitution and section 8(1) of the Labour Code of 2012 include religion as a prohibited ground of discrimination. The Government adds that Decree No. 95/2013/ND-CP of 22 August 2013 imposes fines for acts of discrimination on grounds of religion, and that Decree No. 92/2012/ND-CP of 8 November 2012 provides details regarding the implementation of Ordinance No. 21/2004/PL-UBTVQH11 of 29 June 2004, which prohibits discrimination on religious grounds. However, the Committee notes that section 6(1)(a) of Decree No. 92/2012/ND-CP provides that, in order to obtain registration, the activities of a religious organization must not be in violation of sections 8(2) and 15 of Ordinance No. 21/2004/PL-UBTVQH11. Section 8(2) of the Ordinance prohibits the abuse of the right to belief and religious freedom in contravention of national laws and policies while section 15 provides that religious activities shall be ceased if they adversely affect the unity of the people or national cultural traditions. In this regard, the Committee recalls Directive No. 01/2005/CT TTg concerning protestantism, adopted by the Prime Minister on 4 February 2005, prohibits attempts to force people to follow or to abandon a religion. The Committee notes that taken together the three laws allow for scenarios in which a worker, with a religious belief not recognized by the Government, may face discrimination by the employer in employment and occupation. In this regard, the Committee recalls that the Convention protects the expression and manifestation of religion, and that appropriate measures need to be adopted to eliminate all forms of intolerance (see General Survey on the fundamental Conventions, 2012, paragraph 798). The Committee requests the Government to provide information on the application in practice of Ordinance No. 21/2004/PL-UBTVQH11, Directive No. 01/2005/CT-TTg and Decree No. 2/2012/ND-CP, including information on the measures taken or envisaged to ensure that workers or employers with unrecognized religious views are not subject to discrimination in employment or occupation.

Discrimination based on social origin. The Committee notes that the Labour Code includes “social class” as a ground of discrimination that may have a narrower meaning than the ground of “social origin” contained in Article 1(1)(a) of the Convention. In this regard, the Committee recalls that discrimination and lack of equal opportunities based on “social origin” refer to situations in which an individual’s membership of a class, socio-occupational category or caste determines his or her occupational future, either because he or she is denied access to certain jobs or activities, or is assigned only certain jobs (see General Survey on the fundamental Conventions, 2012, paragraph 802). The Committee requests the Government to clarify how it interprets the term “social class”, and whether in its view this term is consistent with the term “social origin” as provided for in the Convention.

Sexual harassment. The Committee notes that section 8(2) of the Labour Code of 2012 prohibits sexual harassment at the workplace. Section 37 of the Labour Code provides for the right of an employee to unilaterally terminate a contract on the grounds of sexual harassment, and sections 182 and 183 specifically prohibit sexual harassment against domestic workers. However, the Committee also notes that the amended Labour Code still does not provide a definition of sexual harassment. In this regard, the Committee notes that a Code of Conduct on Sexual Harassment in the Workplace was developed in May 2015 by the tripartite Industrial Relations Committee with the support of the ILO, which defines both quid pro quo and hostile environment sexual harassment, as well as the term “workplace”. The Committee also notes that the Code of Conduct applies to all companies in both the public and private sectors, regardless of size, and aims to help employers and workers develop their own sexual harassment policies or regulations. The Committee notes the Government’s indication that Decree No. 04/2005/ND-CP of 11 January 2005 provides guidance on the enforcement provisions for sexual harassment contained in the previous Labour Code and defines the rights and obligations of the complainant and the person being complained against, the jurisdiction, procedures and enforcement of appeal decisions. It notes, however, that an equivalent Decree providing equivalent interpretation for the revised Labour Code has not been submitted by the Government. The Committee requests the Government to provide information on the implementation and enforcement of sections 8(2), 37, 182 and 183 of the Labour Code of 2012, including any measures taken or envisaged to raise awareness of these provisions among workers, employers and their respective organizations, as well as public enforcement officials, along with any administrative or judicial complaints submitted to the relevant authorities in this respect. It also requests the Government to provide specific information on the measures taken or envisaged to facilitate the application of the Code of Conduct on Sexual Harassment in the Workplace by workers and employers in both the public and private sectors, as well as information on any progress made in this regard.

Restrictions on women’s employment. The Committee recalls its request to the Government to take steps to ensure that protective measures restricting women’s employment are limited to maternity protection. The Committee notes the provisions cited by the Government regarding maternity protection, but also notes section 160 of the Labour Code of 2012, which prohibits the employment of female workers on work that is harmful to parenting functions, as specified in the list of types work issued by the Ministry of Labour, Invalids and Social Affairs (MLISA), that is work that requires regular immersion in water and regular underground work in mines. It notes the Government’s indication that the MLISA issued Circular No. 26/2013/TT BLDTBXH on 18 October 2013 which lists 77 job categories in which women are prohibited from working. In this regard, the Committee reiterates that protective measures for women should not go beyond maternity protection, as those aimed at protecting women generally because of their sex or gender are often based on stereotypical perceptions of their suitability, capabilities and appropriate role in society and are contrary to the Convention, and thus constitute obstacles to the recruitment and employment of women. The Committee wishes to point out once again that provisions relating to the protection of persons working in harmful or dangerous jobs should be aimed at protecting the health and safety of both women and men at work. The Committee requests the Government to provide information on the application of section 160 of the Labour Code of 2012, including a list of occupations prohibited under section 160(2) and (3), in addition to the occupations designated in Circular No. 26/2013/TT BLDTBXH of 2013. The Committee once again requests the Government to take measures to ensure that future revisions of the above Circular limit its restrictions to women who are pregnant or breastfeeding.

Articles 3 and 5. Prohibition of discriminatory recruitment practices based on sex, and special measures. The Committee recalls its request to the Government on the measures taken to curb discriminatory practices affecting women in recruitment, such as giving preference to male job applicants and discouraging female applicants by establishing requirements prohibiting marriage and pregnancy during a certain period following recruitment. In this regard, the Committee notes sections 8(1), 153 and 154 of the Labour Code of 2012, which prohibit discrimination based on gender and require the Government and employers to create employment opportunities for woman employees and to promote gender equality in recruitment. It also notes Decree No. 85/2015/ND-CP of 1 October 2015, which contains detailed provisions for the implementation of these sections, as well as specific provisions to improve the working conditions and health-care services available to women employees. The Committee especially welcomes the specific measures outlined in section 5(1)(b) of the Decree, which provides that the State shall ensure equal rights for men and women employees in recruitment through preferential treatment and tax reduction schemes. Section 5(2)(a) provides that the State shall encourage employers to “prioritize females in recruitment and assignment if the job is suitable for both males and females and the applicant is qualified”. The Committee also notes the Government’s indication that section 25(2) of Decree No. 95/2013/ND-CP of 22 August 2013 establishes a fine of between 5,000,000 and 10,000,000 Vietnamese Dong (VND) for acts of discrimination against, inter alia, gender and marital status, and that section 18 of the Decree specifies sanctions for the violation of provisions regarding women workers. The Committee requests the Government to provide information on the implementation and enforcement of sections 8(1), 153 and 154 of the Labour Code of 2012, as supplemented by Decree No. 85/2015/ND-CP of 2015, including any measures taken or envisaged to raise awareness of these provisions among workers, employers and their respective organizations, as well as public enforcement officials. The Committee also requests the Government to provide detailed statistical information on the application of sections 18 and 25(2) of Decree No. 95/2013/ND-CP of 2013, and any administrative or judicial complaints submitted to the relevant authorities in this respect.

Article 4. Measures affecting individuals who are justifiably suspected of, or engaged in, activities prejudicial to the security of the state. The Committee recalls its previous comments in which it noted that persons upon whom a ban under section 36 of the Penal Code has been imposed have the right to appeal the decision within 15 days of the date of conviction, and that the courts had issued various rulings banning persons from holding certain posts, practising certain occupations or doing certain jobs. The Committee recalls the Government’s previous indication that in practice bans can be imposed when a court judges that the continuation of the work by the convicted person may cause a danger for society, and that this could be the case in about 100 acts criminalized by the Penal Code, such as acts infringing the life, health or dignity of a person, acts infringing the freedom of citizens, drug-related crimes, acts infringing public order and security or acts interfering with justice. The Committee notes the Government’s brief reply referring the Committee to aggregated statistics on the numbers of court cases dealing with different types of labour disputes. The Committee notes, however, that this information does not reply to its previous request. The Committee therefore repeats its earlier request to the Government to provide information related to the rulings banning persons from holding certain posts, practising certain occupations or doing certain jobs; the offences in connection with which such bans have been imposed; and the number and nature of the appeals lodged and their outcomes.

The Committee is raising other matters in a request addressed directly to the Government.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Equality of opportunity and treatment between women and men. The Committee recalls its request for information regarding the impact of the “Supporting women in vocational training and employment placement, 2010–15” project in broadening occupational options to women, the National Target Programme of Poverty Reduction and the National Target Programme of Employment, the preferential policies to enable women to migrate overseas, and sections 13 and 14 of the Law on gender equality. It notes the Government’s indication that with regard to the vocational training project, female workers from disadvantaged groups including ethnic minorities, persons with disabilities, and people who suffer from land recovery are given support to receive vocational training for three months, although the Government does not indicate the types of training courses that are made available under this project. The Committee notes, with regard to the National Target Programme on Employment and Vocational Training 2012–15, that the local governments and social partners of 63 provinces and cities received funds to provide loans towards the creation of employment, 90 per cent of which concentrated in the informal sector, contributing to 20 per cent of the total number of jobs created during that period. The Government indicates that about half of these loans were used to create jobs for female workers. With regard to the preferential policies to enable women to migrate overseas, the Committee notes that awareness-raising activities are undertaken to provide information to implementing staff about gender equality and non-discrimination. The Committee notes that the Government did not provide information regarding the Law on gender equality. The Committee also notes the concluding observations of the Committee on Economic, Social and Cultural Rights (CESCR), which in turn noted that, owing to their role as main caregivers in the family, women work primarily in the informal economy where working hours are more flexible, and that measures taken by the Government perpetuate this discriminatory situation through gender-biased training plans on skills such as sewing and knitting (E/C.12/VNM/CO/2-4, 15 December 2014, paragraph 16), in line with the Committee’s previous comment that the Government is promoting women to jobs in “light industries”. The Committee notes that, overall, vocational training and financing measures provided by the measures mentioned in the Government’s report support women’s employment in the informal economy and light industries. In this regard, the Committee recalls that the Convention expressly addresses equal access to occupations and professions, which requires equal treatment by placement services and other measures promoting employment such as vocational training (see General Survey on the fundamental Conventions, 2012, paragraph 753). In this regard, the Committee requests the Government to provide more information on measures taken or envisaged to provide women with equal access to higher compensated occupations and professions in the formal sector, including through general education, vocational training, and awareness-raising measures that would prepare both women workers and employers for work in professions beyond the informal economy and light industries. The Committee also requests the Government to provide specific information on progress made and outcomes achieved through the policy and programme measures mentioned above, including statistical information disaggregated by sex. The Committee reiterates its previous request for information regarding the application of sections 13 and 14 of the Law on gender equality, and on any violations detected by, or brought to the attention of, the labour inspection services, the sanctions imposed and the remedies provided.

Equality of opportunity and treatment of ethnic minority groups. The Committee notes with interest the Government’s indication that section 12(2) of the Labour Code of 2012 stipulates that the State shall assist employers who employ a large number of people from ethnic minorities. It also notes the Government’s statement that a number of programmes and schemes have been implemented to ensure equality of opportunity and treatment for ethnic minority workers. The Government indicates that these schemes provide investment in infrastructure to promote production in villages in a “difficult” situation; support for housing, water and land for ethnic minority households generally as well as in the Mekong Delta; loans for production activities; price and transportation subsidies to poor people in disadvantaged areas; and socio-economic development in the regions inhabited by the Mang, La Hu, Cong, Co Lao minority groups. The Committee also notes the Government’s indication that Decision No. 449/QD TTg of 12 March 2012 approved a strategy regarding ethnic affairs up to the year 2020. Major tasks include: (i) the improvement of the quality of minority human resources through development of education and vocational training policies at all levels; (ii) capacity building aimed at ethnic minority staff members; and (iii) the promotion of production and acceleration of poverty reduction in ethnic minority regions in light of the economic restructuring resulting in the reduced share of the agricultural sector. It also notes the Government’s indication that Decision No. 755/QD-TTg of 20 May 2013 provides support to ethnic minority households that no longer have land allocated to them for production, such as monetary support to vocational trainees, and subsidies and credit to purchase agricultural equipment. The Committee also recalls from its previous comments that Decision No. 267/2005/QD-TTg of 31 October 2005 supports vocational training to ethnic minority groups. The Committee welcomes the legislative and policy measures indicated by the Government in its report. It notes, however, that the World Bank’s report demonstrates that ethnic minorities are not a homogenous group, with the Khmer and Cham having seen the largest decrease in poverty rates between 1998 and 2008, while minorities in the Central Highlands and Northern Uplands such as the Hmong and Dao have not benefited to the same extent (Well Begun, Not Yet Done: Vietnam’s Remarkable Progress on Poverty Reduction and the Emerging Challenges, 2012 Vietnam Poverty Assessment, World Bank, paragraphs 5.7 and 5.8). This report observed that in light of this diversity, poverty reduction and development programmes that target “extremely difficult” geographic areas, or all ethnic minorities as an undifferentiated group, will inevitably benefit some populations more than others (paragraph 5.21). In this regard, the Committee recalls that legislative measures to give effect to the principles of the Convention are important, but not sufficient to achieve its objective, and that monitoring the implementation of plans and policies in terms of results and effectiveness is essential and obligated under Article 3(f) of the Convention (see General Survey on the fundamental Conventions, 2012, paragraphs 856 and 858). The Committee requests the Government to provide information regarding measures taken to ensure that section 12(2) of the Labour Code of 2012 is implemented so that the most disadvantaged minority groups benefit equally from this legislative scheme. The Committee also requests the Government to provide information on measures taken to ensure that Programmes 134, 135, 143 and other programmes targeting minority groups regarding employment and occupation are implemented so that the most disadvantaged ethnic minority groups are ensured equality of opportunity and treatment in employment and occupation. Finally, it requests the Government to take measures to ensure that the above initiatives are sufficiently monitored, and provide detailed statistics of their impacts disaggregated by sex and ethnic group.

Equality of opportunity and treatment of persons with disabilities. The Committee notes that section 8(1) includes disabilities as a prohibited ground of discrimination. It also notes the concluding observations of the CESCR, which noted that persons with disabilities are discriminated against in the enjoyment of the right to work, despite the adoption of the 2010 Law on persons with disabilities and the National Action Plan to Support People with Disabilities 2012–20. It notes that the CESCR recommended to the Government that it allocates sufficient resources towards accessibility and the provision of reasonable accommodation in rural areas, and actively recruit persons with disabilities in the public sector and reinstate the quota system, including in the private sector (E/C.12/VNM/CO/2-4, 15 December 2014, paragraph 15). In this regard, the Committee recalls that the principle of equality of opportunity and treatment between persons with disabilities and other workers falls within the scope of Article 1(1)(b) of the Convention, and that under Article 1(3) of the Convention “employment” and “occupation” include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment (see General Survey on the fundamental Conventions, 2012, paragraph 784), and that the CESCR’s recommendations fall under the scope of the principles of the Convention. The Committee requests the Government to provide information regarding measures taken to implement section 8(1) of the Labour Code of 2012, the 2010 Law on persons with disabilities and the National Action Plan to Support People with Disabilities 2012–20 to ensure equality of opportunity and treatment in employment and occupation, including measures taken to allocate sufficient resources towards accessibility and the provision of reasonable accommodation in rural areas, and actively recruit persons with disabilities in the public sector and reinstate the quota system, including in the private sector. The Committee also requests the Government to provide relevant statistical data disaggregated by sex, ethnic group and disability status.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Legislative developments. The Committee notes with interest that section 8(1) of the newly amended Labour Code (Law No. 10/2012/QH13 of 18 June 2012) extends the number of prohibited grounds of discrimination. Specifically, regarding the grounds enumerated in Article 1(1)(a) of the Convention, the new Labour Code adds “colour” to the previously prohibited grounds of gender, race, social class, belief or religion.

Regarding the grounds enumerated in Article 1(1)(b) of the Convention, the Committee welcomes the addition in the new Labour Code of “marital status,” “HIV status,” “disabilities”, and “establishing, joining a trade union or participating in trade union activities”. The Committee requests the Government to provide information on the implementation and enforcement of the expanded grounds of discrimination set out in section 8(1) of the amended Labour Code, including any measures taken or envisaged to raise awareness of these provisions among workers, employers and their respective organizations, as well as public enforcement officials, and any administrative or judicial complaints submitted to the relevant authorities in this respect., disaggregated by the type of alleged discrimination.

Article 1 of the Convention. Discrimination based on colour and national extraction. The Committee recalls its previous request to the Government to take practical measures to ensure the application of the Convention with respect to equality of opportunity and treatment irrespective of political opinion, national extraction and colour. In this respect, the Committee notes that, although section 8(1) of the Labour Code of 2012 now includes colour as a prohibited ground of discrimination, it continues to omit “political opinion” and “national extraction”. In this regard, while the Committee notes the Government’s indication that Decree No. 95/2013/ND-CP of 22 August 2013 establishes penalties for administrative violations on the grounds of discrimination, as defined in section 8(1) of the Labour Code, it emphasises that this Decree does not apply to the grounds of political opinion and national extraction. The Committee requests the Government to provide information on the application of Decree No. 95/2013/ND-CP of 2013 with regard to acts of discrimination on the basis of colour, as well as any other measures taken to ensure equality of opportunity and treatment irrespective of colour. The Committee also once again requests the Government to provide information on any practical measures taken to ensure the full application of the Convention in relation to equality of opportunity and treatment irrespective of political opinion and national extraction.

Discrimination based on religion. The Committee recalls its previous request to the Government to provide details of legislative measures that prohibit discrimination in employment and occupation on religious grounds. The Committee notes the Government’s indication that article 24 of the Constitution and section 8(1) of the Labour Code of 2012 include religion as a prohibited ground of discrimination. The Government adds that Decree No. 95/2013/ND-CP of 22 August 2013 imposes fines for acts of discrimination on grounds of religion, and that Decree No. 92/2012/ND-CP of 8 November 2012 provides details regarding the implementation of Ordinance No. 21/2004/PL-UBTVQH11 of 29 June 2004, which prohibits discrimination on religious grounds. However, the Committee notes that section 6(1)(a) of Decree No. 92/2012/ND-CP provides that, in order to obtain registration, the activities of a religious organization must not be in violation of sections 8(2) and 15 of Ordinance No. 21/2004/PL-UBTVQH11. Section 8(2) of the Ordinance prohibits the abuse of the right to belief and religious freedom in contravention of national laws and policies while section 15 provides that religious activities shall be ceased if they adversely affect the unity of the people or national cultural traditions. In this regard, the Committee recalls Directive No. 01/2005/CT-TTg concerning protestantism, adopted by the Prime Minister on 4 February 2005, prohibits attempts to force people to follow or to abandon a religion. The Committee notes that taken together the three laws allow for scenarios in which a worker, with a religious belief not recognized by the Government, may face discrimination by the employer in employment and occupation. In this regard, the Committee recalls that the Convention protects the expression and manifestation of religion, and that appropriate measures need to be adopted to eliminate all forms of intolerance (see General Survey on the fundamental Conventions, 2012, paragraph 798). The Committee requests the Government to provide information on the application in practice of Ordinance No. 21/2004/PL-UBTVQH11, Directive No. 01/2005/CT-TTg and Decree No. 92/2012/ND-CP, including information on the measures taken or envisaged to ensure that workers or employers with unrecognized religious views are not subject to discrimination in employment or occupation.

Discrimination based on social origin. The Committee notes that the Labour Code includes “social class” as a ground of discrimination that may have a narrower meaning than the ground of “social origin” contained in Article 1(1)(a) of the Convention. In this regard, the Committee recalls that discrimination and lack of equal opportunities based on “social origin” refer to situations in which an individual’s membership of a class, socio-occupational category or caste determines his or her occupational future, either because he or she is denied access to certain jobs or activities, or is assigned only certain jobs (see General Survey on the fundamental Conventions, 2012, paragraph 802). The Committee requests the Government to clarify how it interprets the term “social class”, and whether in its view this term is consistent with the term “social origin” as provided for in the Convention.

Article 3 of the Convention. Sexual harassment. The Committee notes with interest that section 8(2) of the Labour Code of 2012 prohibits sexual harassment at the workplace. Section 37 of the Labour Code provides for the right of an employee to unilaterally terminate a contract on the grounds of sexual harassment, and sections 182 and 183 specifically prohibit sexual harassment against domestic workers. However, the Committee also notes that the amended Labour Code still does not provide a definition of sexual harassment. In this regard, the Committee notes that a Code of Conduct on Sexual Harassment in the Workplace was developed in May 2015 by the tripartite Industrial Relations Committee with the support of the ILO, which defines both quid pro quo and hostile environment sexual harassment, as well as the term “workplace”. The Committee also notes that the Code of Conduct applies to all companies in both the public and private sectors, regardless of size, and aims to help employers and workers develop their own sexual harassment policies or regulations. The Committee notes the Government’s indication that Decree No. 04/2005/ND-CP of 11 January 2005 provides guidance on the enforcement provisions for sexual harassment contained in the previous Labour Code and defines the rights and obligations of the complainant and the person being complained against, the jurisdiction, procedures and enforcement of appeal decisions. It notes, however, that an equivalent Decree providing equivalent interpretation for the revised Labour Code has not been submitted by the Government. The Committee requests the Government to provide information on the implementation and enforcement of sections 8(2), 37, 182 and 183 of the Labour Code of 2012, including any measures taken or envisaged to raise awareness of these provisions among workers, employers and their respective organizations, as well as public enforcement officials, along with any administrative or judicial complaints submitted to the relevant authorities in this respect. It also requests the Government to provide specific information on the measures taken or envisaged to facilitate the application of the Code of Conduct on Sexual Harassment in the Workplace by workers and employers in both the public and private sectors, as well as information on any progress made in this regard.

Restrictions on women’s employment. The Committee recalls its request to the Government to take steps to ensure that protective measures restricting women’s employment are limited to maternity protection. The Committee notes the provisions cited by the Government regarding maternity protection, but also notes section 160 of the Labour Code of 2012, which prohibits the employment of female workers on work that is harmful to parenting functions, as specified in the list of types work issued by the Ministry of Labour, Invalids and Social Affairs (MLISA), that is work that requires regular immersion in water and regular underground work in mines. It notes the Government’s indication that the MLISA issued Circular No. 26/2013/TT BLDTBXH on 18 October 2013 which lists 77 job categories in which women are prohibited from working. In this regard, the Committee reiterates that protective measures for women should not go beyond maternity protection, as those aimed at protecting women generally because of their sex or gender are often based on stereotypical perceptions of their suitability, capabilities and appropriate role in society and are contrary to the Convention, and thus constitute obstacles to the recruitment and employment of women. The Committee wishes to point out once again that provisions relating to the protection of persons working in harmful or dangerous jobs should be aimed at protecting the health and safety of both women and men at work. The Committee requests the Government to provide information on the application of section 160 of the Labour Code of 2012, including a list of occupations prohibited under section 160(2) and (3), in addition to the occupations designated in Circular No. 26/2013/TT BLDTBXH of 2013. The Committee once again requests the Government to take measures to ensure that future revisions of the above Circular limit its restrictions to women who are pregnant or breastfeeding.

Articles 3 and 5. Prohibition of discriminatory recruitment practices based on sex, and special measures. The Committee recalls its request to the Government on the measures taken to curb discriminatory practices affecting women in recruitment, such as giving preference to male job applicants and discouraging female applicants by establishing requirements prohibiting marriage and pregnancy during a certain period following recruitment. In this regard, the Committee notes sections 8(1), 153 and 154 of the Labour Code of 2012, which prohibit discrimination based on gender and require the Government and employers to create employment opportunities for woman employees and to promote gender equality in recruitment. It also notes Decree No. 85/2015/ND-CP of 1 October 2015, which contains detailed provisions for the implementation of these sections, as well as specific provisions to improve the working conditions and health-care services available to women employees. The Committee especially welcomes the specific measures outlined in section 5(1)(b) of the Decree, which provides that the State shall ensure equal rights for men and women employees in recruitment through preferential treatment and tax reduction schemes. Section 5(2)(a) provides that the State shall encourage employers to “prioritize females in recruitment and assignment if the job is suitable for both males and females and the applicant is qualified”. The Committee also notes the Government’s indication that section 25(2) of Decree No. 95/2013/ND-CP of 22 August 2013 establishes a fine of between 5,000,000 and 10,000,000 Vietnamese Dong (VND) for acts of discrimination against, inter alia, gender and marital status, and that section 18 of the Decree specifies sanctions for the violation of provisions regarding women workers. The Committee requests the Government to provide information on the implementation and enforcement of sections 8(1), 153 and 154 of the Labour Code of 2012, as supplemented by Decree No. 85/2015/ND-CP of 2015, including any measures taken or envisaged to raise awareness of these provisions among workers, employers and their respective organizations, as well as public enforcement officials. The Committee also requests the Government to provide detailed statistical information on the application of sections 18 and 25(2) of Decree No. 95/2013/ND-CP of 2013, and any administrative or judicial complaints submitted to the relevant authorities in this respect.

Article 4. Measures affecting individuals who are justifiably suspected of, or engaged in, activities prejudicial to the security of the state. The Committee recalls its previous comments in which it noted that persons upon whom a ban under section 36 of the Penal Code has been imposed have the right to appeal the decision within 15 days of the date of conviction, and that the courts had issued various rulings banning persons from holding certain posts, practising certain occupations or doing certain jobs. The Committee recalls the Government’s previous indication that in practice bans can be imposed when a court judges that the continuation of the work by the convicted person may cause a danger for society, and that this could be the case in about 100 acts criminalized by the Penal Code, such as acts infringing the life, health or dignity of a person, acts infringing the freedom of citizens, drug-related crimes, acts infringing public order and security or acts interfering with justice. The Committee notes the Government’s brief reply referring the Committee to aggregated statistics on the numbers of court cases dealing with different types of labour disputes. The Committee notes, however, that this information does not reply to its previous request. The Committee therefore repeats its earlier request to the Government to provide information related to the rulings banning persons from holding certain posts, practising certain occupations or doing certain jobs; the offences in connection with which such bans have been imposed; and the number and nature of the appeals lodged and their outcomes.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Equality of opportunity and treatment between women and men. The Committee notes that the Government is continuing to promote better access for women to jobs in “light industries”, including the textile, footwear and traditional handicrafts industries. The Committee also notes that the Government launched the programme “Assisting women in vocational training and employment placement” for the period of 2010–15. The Committee also notes that under the National Target Programme on Employment and the National Target Programme on Poverty Reduction of 5 February 2007, for 2006–10, extended for the period of 2011–20, measures were taken in cooperation with the Vietnam Women’s Union to promote equality of opportunity and treatment between men and women, including offering low-interest loans, offering exemptions or deductions on education fees for female students from lower-income families, offering vocational training courses and organizing job fairs. The Government also indicates that under the National Target Programme on Employment, measures were taken to improve and strengthen the capacity of 40 Employment Service Centres and the National Employment Fund, approved by the Prime Minister, created approximately 250,000–300,000 jobs per year. The Committee recalls its previous comments in which it noted that the Government adopted preferential policies to enable women to migrate overseas for higher income employment. It notes the statistics provided by the Government which indicate that from 2000 to 2010, out of the 687,792 Vietnamese working overseas, 32.6 per cent were women. The Committee also notes that 50 per cent of workers who migrated received vocational training and 90 per cent benefitted from orientation education. The Committee further recalls its previous requests regarding the implementation of sections 13 and 14 of the Law on Gender Equality providing for equal treatment between men and women in employment, training and education. The Committee asks the Government to provide information on the following:

• (i) the programme “Assisting women in vocational training and employment placement” launched for the period of 2010–15, and particularly to indicate whether women’s access to employment in a wider range of occupations and industries is included through a more diversified choice of educational and training opportunities;
• (ii) the impact of the measures taken under the National Target Programme Poverty Reduction and the National Target Programme of Employment with respect to women’s representation in the public and private sectors and the impact that the National Employment Fund has had thereon;
• (iii) the types of occupations undertaken by women and men working overseas and the impact of the preferential policies to enable women to migrate overseas for higher income employment;
• (iv) the application of sections 13 and 14 of the Law on Gender Equality, and on any violations detected by or brought to the attention of the labour inspection services, the sanctions imposed and the remedies provided.

Equality of opportunity and treatment of ethnic minority groups. The Committee notes that section 14(2) of the draft Labour Code provides that the “State shall issue preferential policies on creation of employment in order to attract and employ labour from ethnic minority groups”. The Committee notes that under Decision No. 267/2005/QD/TTg of 31 October 2005, adopted with a view to promoting employment and training for persons of ethnic minorities, financial support, fee exemptions and fee deductions continue to be offered by the Government. The Government indicates that vocational training is offered to ethnic minorities through short or long-term training courses and that out of the students from ethnic minority groups who benefitted from vocational training programmes, many have found stable jobs in remote areas, and thousands have found jobs through the Overseas Employment Programme. Regarding Decision No.134/2004/QD-TTg of 20 July 2004, which aimed to provide access of ethnic minority households to land and water, the Government indicates that during a period of four years, under the supervision of the National Committee for Ethnic Affairs, support for housing was provided to 373,400 households, housing land was rendered to 71,713 households, cultivating land to 83,563 households, and individual water distribution was supplied to 198,702 households. The Committee had also noted that the total number of students belonging to ethnic minority groups and enrolling in secondary technical and vocational institutions remained low (5.5 per cent in December 2007). The Committee notes from the statistics provided by the Government that in 2009, 96,951 persons from ethnic groups received vocational training, of whom 92,971 received funding assistance under the Vocational Training Capacity Building Project. The Committee asks the Government to provide information on the progress in the adoption of section 14(2) of the draft Labour Code, and to indicate the practical measures taken to ensure full application of a national policy promoting equal opportunities and treatment with respect to access to vocational training and education, vocational guidance and placement and access to a wide range of jobs and occupations for ethnic minority groups. The Committee asks the Government to provide more specific information on the types of training provided and the types of occupations and employment promoted under the preferential policies aimed at ethnic minority groups, including under the Overseas Employment Programme and to indicate the number of ethnic minorities employed within different branches of economic activity, in the private and public sectors.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Legislative developments. The Committee notes that the Labour Code is in the process of being amended. The Committee notes that section 9(1) of the draft Labour Code prohibits discrimination based on the grounds of gender, race, social class, belief or religion, and omits the grounds of colour, national extraction and political opinion. The Committee further notes that the prohibition only covers discrimination in employment, the labour relationship and work, and does not cover all aspects of employment and occupation included in the Convention, namely access to vocational training and education, vocational guidance and placement services, recruitment, advancement, security of tenure of employment, remuneration for work of equal value, and terms and conditions of employment. The Committee asks the Government to take the opportunity of the legislative revision process to include provisions in the Labour Code explicitly defining and prohibiting direct and indirect discrimination based on at least all the grounds set out in Article 1(1)(a) of the Convention, namely sex, race, colour, religion, political opinion, national extraction and social origin, in all areas of employment and occupation. Please provide information on the progress made in this regard.

Sexual harassment. The Committee welcomes the Government’s intention to include a specific provision concerning sexual harassment in the Labour Code which is in the process of being revised. The Committee notes however that section 9(2) of the draft Labour Code prohibiting “sexual harassment against employees” does not provide a definition of sexual harassment and does not indicate whether both quid pro quo and hostile environment sexual harassment are covered. The Committee also notes that measures are being taken to raise awareness on sexual harassment, such as launching an information campaign with the participation of the media. The Committee asks the Government to provide information on the adoption of section 9 of the draft Labour Code, prohibiting sexual harassment, and encourages the Government to take steps in order to include a clear definition and prohibition of both quid pro quo and hostile environment sexual harassment in employment and occupation. The Committee also asks the Government to provide more information on the information campaign and other measures taken to raise awareness on sexual harassment amongst workers, employers and their organizations. Please also indicate the relevant procedures and remedies which are currently available under the legislation to address complaints of sexual harassment.

Restrictions on women’s employment. The Committee recalls its previous comments in which it noted that labour laws and regulations are revised on a yearly basis, including the list of occupations from which women are barred. The Committee notes that the Government has provided a list of draft revisions to be brought to Circular No. 3/TT-LB of 28 January 1994, setting out the harmful and dangerous jobs from which women are barred while removing some occupations, the list also adds four new occupations from which all women workers would be barred (operator of cement packing machine, cleaner of a cylinder in a cement factory, operator of a production and bottling of HCI acid and operator of equipment for drying, liquefying and bottling). The Committee notes the Government’s indication that the Circular needs to be revised to prohibit the employment of women when jobs adversely affect female workers more than male workers, as is the case when a female worker is pregnant or feeding a small child, and the harmful or dangerous factors may adversely affect the child. The Government also indicates that the possible use of the general criteria of a job “not suitable to the mental and psychological setting of female workers” is being studied and clarified. The Committee considers that such broad and general restrictions based on a job “not suitable to the mental and psychological setting of female workers” would be discriminatory and contrary to the Convention. The Committee recalls that protective measures for women should not go beyond maternity protection, and that those aimed at protecting women generally because of their sex or gender, based on stereotypical perceptions about their suitability, capabilities and appropriate role in society are contrary to the Convention and constitute obstacles to the recruitment and employment of women. The Committee also notes that provisions relating to the protection of persons working in harmful or dangerous jobs should be aimed at protecting the health and safety of both women and men at work. The Committee asks the Government to take measures in order to ensure that in the upcoming revision of Circular No. 3/TT/LB of 28 January 1994, it is made clear that the restrictions are limited to women who are pregnant or nursing. The Committee also asks the Government to ensure that in the revision of the Labour Code, any protective measures for women are limited to maternity protection.

Discriminatory recruitment practices based on sex. The Committee recalls its previous comments in which it noted the discriminatory practices affecting women in recruitment, such as giving preference to male job applicants and discouraging female applicants by establishing requirements prohibiting marriage and pregnancy during a certain period following recruitment. The Committee notes the Government’s indication that measures have been taken to put an end to the discriminatory practices affecting women in recruitment and employment, such as the inclusion of section 32 in the draft of the revised Labour Code prohibiting employers to “force the worker to comply with such obligations which limit his/her legitimate rights” when an employment contract is being concluded. The Committee also notes that Decree No. 55/2009/ND-CP of 10 June 2009, regulating administrative sanctions on violations of gender equality, sets out in section 8(2)(a) a fine of 5,000,000 to 10,000,000 Vietnamese dong (VND) for employers who “refuse or limit the employment of male or female due to gender reasons, except such that support gender equality, dismiss an employee for gender reasons or pregnancy, maternity leave or having children”. The Committee asks the Government to provide information on the progress of the adoption of section 32 of the draft Labour Code and on the practical application of section 8(2)(a) of Decree No. 55/2009/ND-CP of 10 June 2009, and to take measures in order to monitor their application and to effectively eliminate discriminatory recruitment practices affecting women.

Discrimination based on political opinion, colour and national extraction. The Committee notes the Government’s repeated statement that no discrimination on the basis of political opinion, colour and national extraction exists in Viet Nam. The Committee notes the Government’s indication that article 5 of the Constitution prohibits discrimination based on political opinion and article 54 provides for the right to vote without discrimination based on certain grounds, including national extraction. The Committee also notes that section 9(1) of the draft Labour Code, which prohibits discrimination on certain grounds, omits the grounds of colour, national extraction and political opinion. The Committee emphasizes once again that combating discrimination is an ongoing process and that the absence of discriminatory provisions in the law, and the fact that no complaints have been raised with the authorities, are not indications of the absence of discrimination. The Committee asks the Government to provide information on any practical measures taken to ensure full application of the Convention with respect to equality of opportunity and treatment irrespective of political opinion, national extraction and colour.

Discrimination based on religion. The Committee notes that section 9 of the draft Labour Code includes the ground of religion in the prohibition of discrimination. The Committee had previously requested information on the application of section 8 of the Ordinance No. 21/2004/PL-UBTVQH11 which prohibits discrimination on religious grounds, and more particularly with respect to persons whose religion was not recognized under section 16 of the Ordinance. The Government indicates that Decree No. 22/2005/NP-CP provides detailed instructions on the implementation of the Ordinance. The Committee also notes that Directive No. 01/2005/CT-TTg was adopted by the Prime Minister on 4 February 2005 concerning Protestantism, prohibiting in section 2 attempts to force people to follow or to abandon a religion. The Committee further notes the Government’s indication that approximately 85 per cent of the population follow a religion, which accounts for 25 million people and that 32 religious organizations have been recognized by the Government. The Government also indicates that the main religions in Viet Nam are Buddhism (10 million followers), Catholicism (6 million), Cao Dai (2.4 million), Hao Hao Buddhism (1.3 million), Protestantism (1.5 million), Islam (1.5 million), Tink do Cu sy Buddhism (1.5 million) and Baha’i (7,000). The Committee asks the Government to provide more specific information on Decree No. 22/2005/ND-CP and to indicate whether it gives any instructions on applying section 16 of Ordinance No. 21/2004/PL/UBTVQH11 setting the conditions for religions to be recognized, and to indicate whether any religious organizations have been refused recognition. The Committee also asks the Government to provide information on the application of Directive No. 01/2005/CT-TTg and to indicate any further measures taken to protect persons against discrimination in employment and occupation.

Measures affecting individuals who are justifiably suspected of, or engaged in, activities prejudicial to the security of the State. The Committee recalls its previous comments in which it noted that persons upon whom a ban under section 36 of the Penal Code has been imposed have the right to appeal the decision within 15 days of the date of conviction and that courts had issued various verdicts banning persons from holding certain posts, practising certain occupations or doing certain jobs. The Committee notes the Government’s indication that in practice, bans can be imposed when the court judges that the continuation of the work by the convicted person may cause a danger for the society, and that this could be the case in about 100 acts criminalized by the Penal Code, such as acts to infringe life, health, dignity of a person, acts to infringe freedom of citizens, drug-related crimes, acts to infringe public order and security or acts to infringe juridical activities. The Committee asks the Government to provide information related to the verdicts banning persons from holding certain posts, practising certain occupations or doing certain jobs, the offences in connection with which such bans have been imposed and the number and nature of the appeals lodged and the outcomes thereof.

The Committee is raising other points in a request addressed directly to the Government.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Equality of opportunity and treatment of men and women. In its previous observation, the Committee noted the adoption of the Law on Gender Equality, sections 13 and 14 of which deal with equal treatment of men and women in employment, training and education, and requested the Government to provide information on its implementation. The Committee notes the Government’s indication that no complaints were filed concerning violations of sections 13 and 14 of the Law. It also notes the Government’s statement that labour laws and regulations are revised on a yearly basis, including the list of occupations from which women are barred, and that in this context the principle of equality of opportunity and treatment is taken into account. The Committee further notes that the Ministry of Labour, Invalids and Social Affairs is conducting campaigns for the dissemination of ILO Conventions, including Convention No. 111. The Committee requests the Government as follows:

(i)    to provide information on the outcome of the yearly revision of labour laws and regulations, and the specific amendments that have been made, as they relate to the application of the principle of the Convention, including those enumerating occupations from which women are barred. Please also provide an updated list of the occupations from which women are barred, and an indication of the justification for such prohibitions; and

(ii)   to indicate the target groups of the information campaigns carried out by the Ministry of Labour, Invalids and Social Affairs and whether similar initiatives have been taken or are envisaged to raise public awareness of the relevant legislation, and the procedures and remedies available in cases of discrimination in respect of employment and occupation. Please also continue to provide information on any judicial or administrative decisions relating to the application of sections 13 and 14 of the Law on Gender Equality and on any violations detected by or brought to the attention of the labour inspection services, the sanctions imposed and the remedies provided.

Further to its previous request for information on the action taken to address women’s inequality in the labour market, the Committee notes the Government’s indication that it has created a number of jobs for women in “light industries”, including the textile, footwear and traditional handicrafts industries. The Government also implemented the National Target Programme on Poverty Reduction and the National Target Programme on Employment, and adopted preferential policies to enable women to migrate overseas for higher income employment. In addition, the Government facilitated women’s access to credit and training. The Committee requests the Government to provide information on the specific measures taken or envisaged under the National Target Programme on Poverty Reduction and the National Target Programme on Employment to promote and ensure equality of opportunity and treatment between men and women in respect of employment and occupation. The Committee also requests the Government to take appropriate measures to promote women’s access to employment in a wider range of occupations and industries, including through a more diversified choice of educational and training opportunities, and to supply information in this respect. The Committee further asks for statistical data indicating the distribution of men and women in the different sectors of economic activity, occupational categories and positions, in both the public and private sectors, as well as information on the percentage of women and men workers migrating overseas.

Discriminatory recruitment practices based on sex. In its previous comments, the Committee noted the existence of widespread discriminatory recruitment practices affecting women, such as giving preference to male job applicants and discouraging female applicants by establishing requirements prohibiting marriage and pregnancy during a certain period following recruitment. The Committee requested the Government to take urgent measures to put an end to these practices. In this regard, the Committee notes that the Government refers to section 111(3) of the Labour Code prohibiting dismissal of a female employee for reasons of marriage, pregnancy, taking maternity leave, or raising a child under 12 months old, and indicates that no complaints were lodged under this provision. The Committee notes that the reported discriminatory practices affect women’s access to employment while section 111(3) addresses dismissal on discriminatory grounds. The Committee therefore once again requests the Government to take urgent measures to put an end to discriminatory practices affecting women’s access to work and to provide full information on the steps taken and the progress made in this regard.

Sexual harassment. The Committee notes the Government’s indication that no cases of sexual harassment were brought to the attention of the competent bodies either under section 111(1) of the Labour Code or under section 121 of the Penal Code. The Committee also notes the Government’s statement that it will study the possibility of incorporating sexual harassment provisions in the legislation. Recalling its 2002 general observation on this issue, the Committee encourages the Government to take appropriate measures to raise awareness of workers and employers and their organizations about sexual harassment at the workplace, and the relevant procedures and remedies currently available under the legislation. It also encourages the Government to incorporate in the legislation specific provisions defining, prohibiting and preventing sexual harassment at the workplace. Please provide information on any progress made in this regard.

Equality of opportunity and treatment of ethnic minority groups. In its previous comments, the Committee noted that a number of policies had been adopted with a view to promoting employment and training for persons of ethnic minority origin, including Decision No. 267/2005/QD-TTg of 31 October 2005 regarding vocational training for ethnic minority groups and Decision No. 134/2004/QD-TTg of 20 July 2004 regarding access of ethnic minority households to land and water, and it sought information from the Government on the implementation of these policies and on the measures taken to consult with the groups concerned in connection with their development and implementation. The Committee notes the Government’s indication that under Decision No. 267/2005/QD-TTg all ethnic minority graduates from boarding secondary schools or high schools are exempted from school fees and entrance exam fees for boarding vocational schools and that they also qualify for scholarships and social welfare. The Committee notes that by December 2007 only 5.5 per cent of the total number of students enrolling in secondary technical and vocational institutions belonged to ethnic minority groups. The Committee also notes that a special preferential programme to promote ethnic minority students’ access to secondary technical schools has been implemented since 2001. According to the Government, ethnic minority workers with secondary technical education are a pool of candidates for recruitment as government employees in ethnic minority areas. The Committee requests the Government to provide information on the type of training provided and the kind of occupations and employment promoted under the preferential policies aimed at ethnic minority groups, as well as indications as to the number of ethnic minority workers employed by the Government and in which jobs. It also requests the Government to provide information on the measures taken or envisaged to implement Decision No. 134/2004/QD-TTg of 20 July 2004 regarding access of ethnic minority households to land and water. Further, it again requests the Government to provide information on the measures taken to consult with the groups concerned when developing and implementing the abovementioned programmes and policies.

Discrimination based on political opinion, religion, colour and national extraction. In its previous comments, the Committee noted the Government’s statement that discrimination on the basis of political opinion, colour and national extraction did not exist in Viet Nam. It emphasized that combating discrimination is an ongoing process and that the absence of discriminatory provisions in the law and the fact that no complaints have been raised with the authorities are not indications of the absence of discrimination. The Committee also stressed that the application of the Convention is a permanent process that requires continuing vigilance and action to promote and ensure equality of opportunity and treatment in respect of all the grounds enumerated in Article 1(1)(a) of the Convention. In the absence of the information previously solicited, the Committee again requests the Government to provide information on the measures taken or envisaged to ensure the full application of the Convention in law and practice with respect to equality of opportunity and treatment irrespective of political opinion, national extraction and colour. It also reiterates its request for information on the application of section 8 of Ordinance No. 21/2004/PL-UBTVQH11 which prohibits discrimination on religious grounds, indicating the manner in which it provides protection against religious discrimination in employment, including in respect of persons whose religion does not correspond to any of the religious organizations recognized under section 16 of the Ordinance.

Measures affecting individuals who are justifiably suspected of, or engaged in, activities prejudicial to the security of the State. In its previous comments, the Committee requested the Government to provide information on the application of section 36 of the Penal Code, pursuant to which a ban from holding certain posts, or bans from practising certain occupations or doing certain jobs can be imposed when it is deemed that to allow the sentenced persons to hold such posts, practice such occupations or do such jobs, may cause harm to society. The Committee notes the Government’s indication that the persons on whom a ban under section 36 has been imposed have the right to appeal the decision within 15 days of the date of conviction. The Committee also notes that the courts have issued various verdicts banning persons from holding certain posts, practising certain occupations or doing certain jobs. The Committee requests the Government to indicate the offences in connection with which such bans have been imposed, and the number and nature of the appeals lodged and the outcomes thereof.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Equality of opportunity and treatment of women and men

1. Legislative developments. The Committee notes with interest the adoption of the Law on Gender Equality in November 2006 which entered into force on 1 July 2007. The Law has a broad scope of application covering state institutions, a wide range of organizations, including enterprises, and individuals. Section 10 prohibits all forms of gender discrimination which is defined as any “act of restricting, excluding, not recognizing or not appreciating the role and position of men and women leading to inequality” (section (5)(5)). Sections 13 and 14 deal with equal treatment in the field of labour and in training and education respectively. While welcoming these provisions in the new legislation, the Committee regrets that the opportunity was not taken to introduce a definition of discrimination in employment and occupation in accordance with Article 1 of the Convention, including an explicit definition and prohibition of direct and indirect discrimination, including unintentional discrimination. The Committee requests the Government to provide detailed information on the measures taken to ensure the effective implementation of the Law on Gender Equality, including information on the following points:

(a)   progress made in reviewing laws and regulations concerning the employment of women from a gender equality perspective, including the list of occupations from which women are barred by reason of physical burden or hazardousness;

(b)   the number, nature and outcome of any complaints received and addressed by the competent authorities pursuant to sections 13 and 14 of the Law on Gender Equality;

(c)   any measures taken or envisaged to provide training to relevant target groups, including public officials, workers’ and employers’ organizations, concerning the meaning and implications of the principle of equality of opportunity and treatment in employment and occupation, as established by the Convention.

2. Situation of women in employment and occupation. The Committee notes from the Government’s report that under the National Action Plan for the Advancement of Women (2001–10) ministries and government agencies at all levels have established action plans which contribute to the creation of jobs for women. According to the report, a large number of women work in sectors such as the garment and footwear industries and in traditional crafts. Between 2001 and 2005, the Government was able to create jobs for 7.54 million persons, 46 per cent of whom were women. Women’s urban unemployment rate decreased from 6.98 per cent to 6.14 per cent, compared to a decrease in the overall urban unemployment rate from 6.28 per cent to 5.31 per cent. During the same period, some 5,326 persons received vocational training, 33 per cent of whom were women. The Committee also notes from the Vietnam Country Gender Assessment prepared in 2006 by the World Bank, the Asian Development Bank, the United Kingdom’s Department for International Development and the Canadian International Development Agency that, according to a 2004 survey, 26 per cent of working women had their main job in wage employment, compared to 41 per cent of men, and that women have fewer training and career opportunities. The Committee encourages the Government to continue to take measures to address women’s inequality in employment and occupation and requests it to provide in its next report information on the action taken and the results achieved, including on measures taken to increase the access of women, particularly in rural areas, to training and employment in a wider range of sectors and occupations, and to credit services. The Committee also requests the Government to provide detailed statistical information on the participation of men and women in training and employment and work, including in high-level positions (in the private and public sectors, as well as the informal economy).

3. Discriminatory recruitment practices based on sex. Recalling its previous comments concerning the existence of employment practices that discriminate against women, such as giving preference to male job applicants and discouraging female applicants by establishing requirements prohibiting marriage or pregnancy during a certain period following recruitment, the Committee notes that widespread discriminatory recruitment practices were also reported by the abovementioned 2006 Vietnam Country Gender Assessment. The Committee requests the Government to take urgent measures to end such practices and to report on the measures taken to this end in its next report.

4. Sexual harassment. The Committee notes the Government’s indication that the legislation does not provide for a formal definition of sexual harassment. However, section 111(1) of the Labour Code prohibits any discriminatory conduct against a female employee, as well as conduct degrading her dignity and honour. In addition, a worker can bring a case under section 121 of the Penal Code (“humiliating other persons”). The Committee requests the Government to indicate whether any cases of sexual harassment have been addressed under the abovementioned provisions, and whether any activities to raise awareness concerning this issue are being undertaken. Noting that the Law on Gender Equality does not explicitly address sexual harassment, the Committee urges the Government to consider the inclusion of specific legislative provisions defining, prohibiting and preventing sexual harassment at the workplace.

Equality of opportunity and treatment of ethnic minority groups

5. The Committee notes from the 2006 Vietnam Country Gender Assessment that nearly twice as many ethnic minority heads of household work in agricultural self-employment and they are half as likely to be in wage employment. In its report, the Government indicates that it has been implementing a number of policies to promote better employment and vocational training for persons of ethnic minority origin. The Government states that under Decree No. 39/2003/N§-CP of 8 April 2002, the Committee on Ethnic Minority Affairs and the Ministry of Labour, Invalids and Social Affairs are responsible for proposing preferential policies concerning the employment of ethnic minority workers. In addition, the Government refers to Decision No. 267/2005/QD-TTg of 31 October 2005 relating to vocational training for ethnic minority groups, and Decision
No. 134/2004/QD-TTg of 20 July 2004 which addresses issues relating to the access of ethnic minority households to land and water. The Government also reports that many programmes and projects had been implemented in areas where ethnic minority groups live to support vocational training and employment creation under the respective provincial plans, including through improving access to labour market information. The Committee requests the Government to provide detailed information on the implementation of the abovementioned measures and policies, including statistical information on the participation of ethnic minorities in training, education and employment. It also requests the Government to provide more information on the programmes and projects implemented in ethnic minority areas, indicating the type of training provided, the kind of occupations and employment promoted, as well as the measures taken to consult with the groups concerned in the process of developing and implementing these programmes.

Discrimination based on political opinion, religion,
colour and national extraction

6. Recalling its previous comments concerning the absence of any legal provisions prohibiting discrimination based on political opinion, colour and national extraction, and noting the Government’s statement that such discrimination did not exist in Viet Nam, the Committee draws the Government’s attention to the fact that since combating discrimination is an ongoing process, it does not accept statements to the effect that discrimination is non-existent in a given country. The absence of discriminatory provisions in the law and the fact that no complaints are being raised with the authorities are not considered to be an indication of the absence of discrimination altogether. The Committee stresses that the application of the Convention is a permanent process that requires continuing vigilance and action to promote and ensure equality of opportunity and treatment in relation to all the forms of discrimination covered by the Convention. The Committee, therefore, requests the Government once again to provide information on any measures taken or envisaged to ensure the Convention’s application, in law and in practice, with respect to equality of opportunity and treatment irrespective of political opinion, national extraction and colour. In the absence of a reply from the Government, the Committee also reiterates its previous request for information on the application of section 8 of Ordinance No. 21/2004/PL-UBTVQH11 regarding religious beliefs and religious organizations, which prohibits discrimination on religious grounds, indicating the manner in which it provides protection against religious discrimination in employment.

Measures affecting individuals who are justifiably suspected of,
or engaged in, activities prejudicial to the security of the State

7. In its previous comments, the Committee sought information from the Government on the application of section 36 of the Penal Code under which a ban from holding certain posts, or bans from practising certain occupations or doing certain jobs can be imposed when it is deemed that to allow the sentenced persons to hold such posts, practice such occupations or do such jobs, may cause harm to society. The Committee has requested this information in order to assure itself that section 36 is not unduly limiting the protection intended by the Convention, particularly from discrimination based on grounds such as religion or political opinion. Noting that no information has been provided by the Government on this matter, the Committee once again requests the Government to provide information on the application of section 36 of the Penal Code in practice, indicating the number of bans imposed under it, as well as the offences in connection to which such bans where imposed. The Committee also requests the Government to indicate whether the persons on whom a ban under section 36 has been imposed have the right to appeal to an independent body.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

1. Article 1 of the Convention. Sexual harassment. The Committee draws the Government’s attention to its 2002 general observation under the Convention on the issue of sexual harassment. Noting that the Government has not yet provided any information in reply, the Committee invites the Government to supply the requested information with its next report.

2. Discrimination on the ground of political opinion, colour and national extraction. The Committee recalls that the prohibited grounds of political opinion, colour and national extraction are neither mentioned in the Constitution nor in the Labour Code. In this regard, the Government states that under the Constitution all citizens are equal before the law (article 52) and that work is a right and duty of every citizen (article 55). It also states that the grounds of national extraction and colour could be read into the ground of race contained in section 5(a) of the Labour Code, and that social origin mentioned in the same provision could be interpreted as covering the ground of political opinion.

3. The Committee notes that while the principle of equality of all citizens before the law may provide certain protection from discrimination, the Convention is intended to provide specific protection from discrimination in employment and occupation on the grounds listed in its Article 1(1)(a). With regard to the Government’s views as stated above, the Committee notes that citizens of a foreign national extraction may not always distinguish themselves from other citizens in respect to race; and persons of the same race may be lighter or darker in complexion. The Committee therefore observes that the ground of race does not provide protection from discrimination on the grounds of national extraction and colour in all instances. Further, the Committee cannot share the Government’s interpretation of the criteria of political opinion and social origin as it contradicts their distinct meaning under the Convention. Under the Convention, equality of opportunity and treatment in employment and occupation on the basis of political opinion means that nobody should be subject to any distinction, exclusion or preference because of one’s political opinions or views, including activities expressing or demonstrating opposition to the established political principles, or simply a different opinion. By contrast, the problem of discrimination on the basis of social origin arises when an individual’s membership in a class, socio-occupational category or caste determines his or her occupational future by denying him or her certain jobs or activities. The Committee therefore requests the Government to provide information on any measures taken or envisaged to ensure the Convention’s application, in law and practice, in respect to equality of opportunity and treatment on the basis of political opinion, national extraction and colour.

4. Discrimination on the ground of religion. The Committee notes that the Standing Committee of the National Assembly adopted an Ordinance No. 21/2004/PL-UBTVQH11 regarding religious beliefs and religious organizations on 18 June 2004. Section 8 of the Ordinance states that discrimination on the grounds of religious belief and religious organization that violates a citizen’s freedom of religious belief and religious organization is not allowed. Please provide information on the application of this provision indicating the manner in which it provides protection against religious discrimination in employment.

5. Article. 2. Equality of opportunity and treatment of men and women. The Committee notes the Government’s indication that stereotypical views concerning women’s abilities and traditional roles remain obstacles to women’s equal access to employment. The Government indicates that the National Action Plan for the Advancement of Women by the Year 2010 contains targets regarding women’s employment and training. The Government also states that that amendments to Decree No. 23/CP 1996 which further implements the Labour Code’s provisions on women’s employment are being studied, including with regard to training of female workers for a reserve job and the financial and tax benefits offered to enterprises employing many women. The Government is requested to provide the following information in its next report:

(a)  information on any progress made in the implementation of the employment related targets of the National Action Plan for the Advancement of Women 2010, and information on the progress made in reviewing Decree No. 23/CP 1996;

(b)  indications on any consideration given to the conclusions and recommendations regarding gender equality contained in the study entitled "Equality, Labour and Social Protection for Women an Men in the Formal and Informal Economy in Vietnam: Issues for Advocacy and Policy Development" published by the Research Centre for Female Labour and Gender of the Ministry of Labour, Invalids and Social Affairs (MoLISA) in cooperation with the ILO;

(c)  information on any measures taken to address discrimination against women in the context of hiring as well as their terms and conditions of employment, such as prohibitions by the employer to get married or have children for a certain period after recruitment;

(d)  information on the measures taken to improve women’s skill’s levels and equal access to micro credit facilities, including in rural areas.

6. The Committee further notes that the 2002 amendments to the Labour Code (Law No. 35-2002-QH10 of 2 April 2002) introduced section 145(1a) providing that female employees who are 55 years of age and who have paid social insurance contributions for 25 years and male employees who are 60 years of age and who have paid social insurance contributions for 30 years shall be entitled to the same maximum rate of monthly pension as stipulated by the Government. Please indicate whether any consideration is being given to providing an equal retirement age of men and women, in view of the principle of equality and in order to enable women to access to higher-level positions.

7. Equality of opportunity and treatment of ethnic minorities. The Committee would appreciate receiving information on any measures taken to promote equality of opportunity and treatment in employment and occupation of ethnic minorities, including with regard to access to training.

8. Article 3(a). Cooperation with workers’ and employer’s organizations. The Committee notes that equality issues have been covered by the general briefings on labour legislation for workers and employers organized by MoLISA, as well as workers’ and employers’ organizations. Please continue to provide information on any educational programme to promote the observance and acceptance of the national policy on equality of opportunity and treatment in employment and occupation.

9. Article 4. Measure affecting individuals who are justifiably suspected of, or engaged in, activities prejudicial to the security of the State. The Committee notes under section 36 of the Penal Code a ban from holding certain posts, or bans from practicing certain occupations or doing certain jobs can be imposed when it is deemed that to allow the sentenced persons to hold such posts, practice such occupations or do such jobs, may cause harm to society. The Government is asked to provide information on the application of this provision in practice, indicating the number of bans imposed under section 36 of the Penal Code, as well the offences in connection which such bans where imposed. The Committee also requests the Government to indicate whether the persons on whom a ban under section 36 has been imposed have the right to appeal to a competent independent body.

10. Article 5. Special measures. The Committee notes the list of types of work which are prohibited for women by reason of the excessive physical burden or hazardous nature of work. The Committee recommends that the Government, in consultation with representatives of workers’ and employers’ organizations, reviews the list in order to assess whether these restrictions for women’s employment are still necessary, in view of the principle of equality, improvements in conditions of work and changing attitudes.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the information provided by the Government in its first report on the application of the Convention. It requests the Government to provide further information in its next report, particularly on the following points.

1. Article 1 of the Convention. The Committee requests the Government to indicate the manner in which protection is afforded against discrimination in employment on grounds of political opinion and national extraction, in view of the fact that these two criteria are mentioned neither in the Constitution nor in the Labour Code as grounds on which discrimination is prohibited. The same question arises with regard to the criterion of colour, which is not referred to in the Labour Code.

2. The Committee notes that section 5 of the Labour Code provides for the right to work and the free choice of occupation and vocational training without discrimination on grounds of race, social origin, faith or religion. Article 1, paragraph 3, of the Convention covers access to employment and to particular occupations, and terms and conditions of employment. The Committee requests the Government to indicate whether it intends to extend the protection against discrimination to all the criteria set out in Article 1, paragraph 1, of the Convention and to all terms and conditions of employment, within the meaning of Article 1, paragraph 3, of the Convention.

3. Article 63 of the Constitution and section 109 of the Labour Code set forth the principle of equality of rights between men and women in all aspects of political, economic, cultural, social and family life, and particularly equality "in all respects" between men and women with regard to the right to work. The Committee notes the indication in the Government’s report concerning the difficulties still encountered by women with regard to recruitment. It requests the Government to indicate the measures that have been taken or are envisaged, particularly under section 109 of the Labour Code, to promote the employment of women in practice, as well as measures intended to guarantee that selection in recruitment is based on the real requirements of the job to be filled and not on sexist prejudices or stereotypes which traditionally attribute certain types of work to men and others to women.

4. The Committee notes Circular No. 19/LDTBXH-TT of 1996 respecting "replacement" vocational training reserved for women workers. It requests the Government to provide additional information on the application in practice of this Circular. It also notes the Government’s statement in its report that this measure works against women in recruitment in view of the financial burden that it represents for employers. It requests the Government to indicate the measures taken to remedy these negative effects. It notes with interest in this respect the financial benefits, such as those envisaged by Degree No. 23/CP of 1996 respecting women’s work, low-interest loans and tax incentives. It would be grateful if the Government would provide information on the number of enterprises which have benefited from these measures, or have applied for them, and if it would forward any study available on the impact of these measures on the promotion of women’s employment. It also requests the Government to provide the list of types of work which are to be prohibited for women by reason of the excessive physical burden or hazardous nature of the work.

5. With regard to religion, articles 4 and 70 of the Constitution, taken together, as well as the information contained in the report of the Special Rapporteur of the United Nations Human Rights Commission (doc. E/CN.4/1999/58/Add.2) reveals that freedom of creed and religion is subject to restrictions and is limited by the policy of the State, but that the new policy currently being adopted is more open to freedom of religion. The Committee requests the Government to indicate the measures which have been taken or are envisaged to ensure non-discrimination on grounds of religion in employment and occupation.

6. Article 2. With reference to the fact that the Constitution and the Labour Code do not fully cover the seven prohibited grounds of discrimination (in particular, the criteria of political opinion and national extraction are not covered by the legislation), nor all terms and conditions of employment, the Committee requests the Government to provide information on any national policy programmes as such, apart from the provisions of the Constitution and the Labour Code, intended to promote equality of opportunity and treatment in employment and occupation.

7. Article 3. The Committee requests the Government to provide information in future reports on the manner in which the opinions and views of the social partners are reflected in political and administrative bodies, with particular reference to issues relating to discrimination. Noting the information provided in the Government’s report to the effect that information and training campaigns on labour legislation are organized for officials of the Ministry of Labour, War Invalids and Social Affairs (MOLISA), as well as for workers and employers, it would appreciate receiving further information on these education campaigns and on other methods of disseminating information on the issue of discrimination and equality.

8. The Committee notes the Government’s statement that, in accordance with the labour legislation, the contracts of employment of persons who are convicted by a court of law to a sentence of imprisonment are rescinded, and that persons engaged in activities prejudicial to the security of the State are judged in courts of law. The Committee requests the Government to provide information with its next report on any legislative or administrative measures, or any national practice applying to the employment or professional activities of persons who are justifiably suspected of engaging in activities prejudicial to the security of the State, or who are proven to have engaged in such activities, and on the recourse available to such persons.

9. The Committee would also be grateful if the Government would provide information on the manner in which the Ministry of Labour, War Invalids and Social Affairs discharges the function of inspection and supervision in relation to discrimination at work.