Get to know your new Labour Code 2019

Discrimination and
sexual harassment
at work
Viet Nam has modernized its Labour Code to better protect workers’
rights, reduce bureaucracy for employers, and help support the Govern-
ment’s drive for international integration, economic growth and
prosperity for all. The new law, which was passed by the National
Assembly in November 2019, is the result of extensive consultations
with experts, national and local stakeholders, and the public at large. It
will come into effect in January 2021.

The new Labour Code clarifies and strengthens protections and duties
addressing discrimination and sexual harrasment at work. This informa-
June 2020 tion sheet is an introduction to these provisions.
What is discrimination at work? The Labour Code also provides protections to
workers in special situations, including relating to
Discrimination occurs when someone ‘draws any pregnancy and family responsibilities. In particular,
distinction, preference or exclusion’ – treats a it prohibits an employer from dismissing a female
person less favourably – because of one or more of employee due to the employee’s marriage, pregnan-
the following attributes of the person: cy, maternity leave or because she is nursing a child
• Sex • Disability under 12 months of age. The Labour Code also
• Colour • Real or perceived HIV status contains provisions on equal pay for work of equal
• Religion • Participation in trade union value (see Information Sheet: Wages).
• Belief activities Race
• Ethnic group • Pregnancy What is not considered discrimination?
• Race • Marital status
• Social origin • Age Treating someone differently is not necessarily
• Gender • Family responsibilities unlawful discrimination. There are three important
• National extraction • Political opinion. points to note here. Firstly, it is only discriminatory if
the difference in treatment is based on one or more
What acts constitute discrimination? of the named attributes (race, sex, age, disability
etc.) It is not discriminatory if the difference in
The Labour Code refers in article 3(8) to ‘any distinc- treatment is for other reasons. For example, it is not
tion, exclusion or preference’ based on one of the discriminatory to pay one worker a higher wage
above attributes. The types of acts that can consti- than another because that that worker has higher
tute discrimination are not listed in the Labour Code qualifications that are useful in the job.
but it makes clear that this covers all acts that affect
equality of opportunity or treatment in employment Secondly, it is not unlawful discrimination for a
or occupation. Such acts will include unfavourable person (usually an employer) to treat someone
treatment affecting: differently based on the requirements of the job. For
• Recruitment • Transfer example, an employer is unlikely to be engaging in
• Wages • Labour discipine unlawful discrimination if they refuse to employ a
• Working conditions • Termination of employment. young person as a bus driver because they do not
• Promotion have a driver’s license. Thirdly, steps can be lawfully
taken to protect groups that face disadvantage in
For example, if someone is denied promotion employment. For example, the employer may offer
because of their race or gender (or for any other of special parking places for workers with disabilities to
the above attributes) this is likely to constitute make it easier for them to take a job.
discrimination.
Who is protected from discrimination at work?

All workers covered by the Labour Code are protect-

ed from discrimination at work. This includes:
• Anyone who is working for an employer under an
agreement, as an employee. The agreement may be
written or verbal, and for a definite or indefinite
term.
• Workers without employment relations.

Discrimination against workers or a group of

workers who participate in trade union activity

The Labour Code strictly prohibits employers from

discriminating against workers, groups of workers,
and officials of workers’ representative organiza-
tions at grassroots level (WROs) because they
establish, join or participate in a trade union/WRO. It
is also prohibited to discriminate between WROs.

In particular, an employer must not:

• Request that a worker join, not join or leave a WRO
as a requirement of recruitment or extension of
their employment contract;
• Dismiss, discipline, or transfer workers due to their
actions relating to the formation, joining or partici-
pation in WRO activities; Equality of opportunity is a right under in the
• Unilaterally terminate, or refuse to extend, work- Constitution of Viet Nam that everyone is
ers’ employment contracts due to their actions entitled to, and this right is reinforced in the
relating to the formation, joining or participation in workplace through the provisions of the Labour
WRO activities; Code as well as through other policy and legal
• Discriminate in wages, working hours and other approaches. Together, these have helped
rights and obligations against workers or officials of ensure that the women of Viet Nam work in
WROs; jobs and businesses in greater numbers that
• Create obstacles and difficulties relating to the many high-performing western economies. In
employment of workers and officials of WROs in 2018, according to the Global Gender Gap
order to undermine the activities of a WRO. Report, Viet Nam was ranked 33rd out of 149
countries globally in ECONOMIC PARTICIPA-
What is sexual harassment at workplace? TION AND OPPORTUNITY dimension.

Sexual harassment at workplace was already a Through the new Labour Code, Viet Nam aims to
prohibited act under the Labour Code of 2012. The address some of the remaining barriers that
new law strengthens this prohibition by introducing hold back growth, by improving the incentives
a clear definition of sexual harassment and setting and opportunities for women to stay in the
out other related rights. workforce and contribute fully to the productivity
of enterprises in Viet Nam. It is estimated that
Sexual harassment occurs when someone engages Viet Nam could add up to 10 per cent to its GDP
in conduct of a sexual nature towards another by 2025, simply by speeding up the implementa-
person (or persons) at a workplace and where that tion of parity measures. However, achieving this
behaviour is ‘unwelcome or unaccepted’ by the depends on businesses having access to all the
recipient(s). A workplace is defined as any place that talent, skill and innovations of Viet Nam’s popu-
a worker works by way of agreement or assignment lation – both women and men. The new Labour
by the employer. Code was drafted to ensure that discrimination
does not hold back individuals, businesses or the
The Labour Code does not detail different types of country at large from reaching this goal.
sexual harassment, but they are commonly known
to include direct and physical harassment (e.g.
sexual touching) or written or verbal acts, such as
A worker who believes they have been discriminated
making suggestive remarks or sending sexualized
against or sexually harassed at work should be able
pictures by email. The acts can be repeated or
to use file a complaint to the employer. The worker
one-off events and both men and women can be
also has the right to file a report with the Head
perpetrators and targets of sexual harassment.
Labour Inspector of the Department of Labour,
Invalids and Social Affairs (DoLISA) of the province.
Under the new Labour Code, employers have an
obligation to develop and implement solutions to
A worker, or a group of workers or officials of WROs,
prevent sexual harassment at their workplaces.
who believe they have been discriminated against
Internal work regulations must address sexual
because of their WRO membership or activities can
harassment at the workplace, and outline proce-
also file a labour dispute under the Labour Code.
dures and processes for dealing with sexual harass-
ment complaints. An employee who engages in
The Labour Code also recognizes the right of an
sexual harassment (as defined in internal work
employee who experiences sexual harassment to
regulations) may be dismissed by their employer.
unilaterally terminate their employment contract
without notice [Article 35(2)(d).
Collective bargaining may address issues of discrimi-
nation and sexual harassment and lead to agree-
What are the remedies and penalties for discrimina-
ment on measures to prevent these types of
tion and sexual harassment?
conduct.
An employer who engages in discrimination at work
What should a worker do if they think they have
may be subject to administrative and/or criminal
been discriminated against or sexually harassed
penalties. These penalties are set out in other
at work?
related regulations.
For more information

This leaflet describes the basic rights and duties provided under the new Labour Code 2019. More details all of the above
matters, are set out in the following provisions in the Labour Code 2021: Chapter I: General Provisions; Chapter VIII:
Labour Disciplinary Regulations and Responsibilities Regarding Equipment; Chapter X: Seperate Provisions Concerning
Female Workers and Ensuring Gender Equality; Chapter XI: Seperate Provisions concernign Minor Workers and Other
Certain Types of Workers; Chapter XIII: Workers Representative Organisation(s) at the Grassroots Level; and Chapter XIV:
Resolution of Labour Disputes.

Ảnh@ILO

This is a product of the New Industrial Relations Framework project. Funding for the New Industrial Relations Framework
project is provided by the United States Department of Labor under cooperative agreement number IL- 29690-16-75-K-11.
One hundred percentage of the total costs of the project or program is financed with Federal funds, for a total of 5.1 million
dollars. This material does not necessarily reflect the views or policies of the United States Department of Labor, nor does
mention of trade names, commercial products, or organizations imply endorsement by the United States Government.

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