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Legal Consciousness and Workers’ Resistance in Đồng Nai Province, Vietnam

Published online by Cambridge University Press:  16 October 2017

Tu Phuong NGUYEN Open the ORCID record for Tu Phuong NGUYEN [Opens in a new window]
Tu Phuong NGUYEN*
Affiliation:
Australian National University, Australia tu.nguyen@anu.edu.au
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Abstract

This article examines how labour law contributes to labour resistance in Vietnam through an empirical case study of the ‘core workers’ in Đồng Nai Province. These core workers are factory workers who have undergone legal training and who provide legal aid to factory workers in need. They have, at the same time, deployed their legal knowledge to demand access to justice for themselves and the factory workers. This article demonstrates that the core workers’ legal consciousness is shaped by their mobilization of the law and their own workplace experiences. It then investigates in detail a core worker’s engagements with individual and collective disputes, and discusses his views on legal aid, labour law, and workplace relationships. This article argues that the core workers’ resistance is not only a fight against illegal practices, but that it also embodies a call for the management’s moral obligations towards its workers.

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Type
Articles
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Asian Journal of Comparative Law , Volume 12 , Issue 2 , December 2017 , pp. 311 - 333
Copyright
© National University of Singapore, 2017 

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Footnotes

*

PhD candidate, Department of Political and Social Change, Coral Bell School of Asia Pacific Affairs, Australian National University (Australia). I wish to thank Tamara Jacka, Wendy Baker, and two anonymous reviewers for their valuable comments on earlier drafts.

References

1. Bộ Luật Lao Động [Labour Code] (Law No. 10/2012/QH13).

2. Chan, Anita (ed), Labour in Vietnam (Institute of Southeast Asia Studies 2011)Google Scholar; Pringle, Tim and Clarke, Simon, The Challenge of Transition: Trade Unions in Russia, China and Vietnam (Palgrave 2011)Google Scholar.

3. Angie, Trần Ngọc, Ties that Bind: Cultural Identity, Class, and Law in Vietnam’s Labor Resistance (Cornell University Press 2013)Google Scholar.

4. ibid 243.

5. Vietnam General Confederation of Labour, Decision 785/2004/QĐ-TLĐ on the organization and activities of the union’s legal aid.

6. Legal Aid Centre, ‘The project of mobile legal consultation for migrant workers in Long Bình ward, Biên Hòa city, Đồng Nai province’ (Number 20/DA-TVPL, 2009).

7. Information obtained by the author at the ‘Conference on experience sharing and developing models of support for migrant employees’ (Organized by Centre of Research – Consultation for Social Work and Community Development and Southern Institute of Social Sciences, Hồ Chí Minh City, Vietnam, 17 December 2015).

8. See Gillespie, John, ‘Social Consensus and the Meta-Regulation of Land-Taking Disputes in Vietnam’ (2014) 9(3) Journal of Vietnamese Studies 91 CrossRefGoogle Scholar; Gillespie, John, ‘Narrating Land Disputes in Three Vietnamese Communities’ in Hualing Fu and John Gillespie (eds), Resolving Land Disputes in East Asia: Exploring the Limits of Law (CUP 2014)CrossRefGoogle Scholar.

9. This will be discussed at length in the next section.

10. Lee, Ching-Kwan, Against the Law: Labor Protests in China’s Rustbelt and Sunbelt (University of California Press 2007)Google Scholar; Chan (n 2); Trần (n 3); Friedman, Eli, Insurgency Trap: Labor Politics in Post-Socialist China (ILR Press 2014)Google Scholar; Leung, Parry, Labor Activists and the New Working Class in China: Strike Leaders’ Struggles (Palgrave 2015)Google Scholar.

11. Gallagher, Mary, ‘Mobilizing the Law in China: “Informed Disenchantment” and the Development of Legal Consciousness’ (2006) 40(4) Law & Society Review 783 Google Scholar; Becker, Jeffrey, Social Ties, Resources and Migrant Labor Contention in Contemporary China: From Peasants to Protesters (Lexington Books 2014)Google Scholar.

12. Gallagher (n 11); Friedman, Eli, ‘External Pressure and Local Mobilization: Transnational Activism and the Emergence of the Chinese Labor Movement’ (2009) 14(2) Mobilization: An International Journal 199 CrossRefGoogle Scholar; Becker (n 11).

13. Friedman (n 12); Becker (n 11).

14. Chan, Chris King-chi, ‘Community-based Organizations for Migrant Workers’ Rights: The Emergence of Labour NGOs in China’ (2012) 48(1) Community Development Journal 6 Google Scholar.

15. Lee, Ching Kwan, ‘From the Specter of Mao to the Spirit of the Law: Labor Insurgency in China’ (2002) 31(2) Theory and Society 189 Google Scholar; Chen, Feng, ‘Individual Rights and Collective Rights: Labor’s Predicament in China’ (2007) 40 Communist and Post-Communist Studies 59 Google Scholar; Froissart, Chloe, ‘Using the Law as a “Harmonious Weapon”: The Ambiguities of Legal Activism in Favour of Migrant Workers in China’ (2014) 10(3) Journal of Civil Society 255 Google Scholar.

16. Chen, Feng and Xu, Xin, ‘“Active Judiciary”: Judicial Dismantling of Workers’ Collective Action in China’ (2012) 67 The China Journal 87 Google Scholar.

17. Becker (n 11) 167.

18. A pseudonym.

19. Friedman (n 12) 208-11.

20. ibid 210.

21. ibid 210-11.

22. ibid 211.

23. Hui, Elaine Sio-Ieng and Chan, Chris King-Chi, ‘The “Harmonious Society” as a Hegemonic Project: Labour Conflicts and Changing Labour Policies in China’ (2012) 44(2) Labour, Capital and Society 153 Google Scholar; Gallagher, (n 11).

24. Wong, Linda, ‘Chinese Migrant Workers: Rights Attainment Deficits, Rights Consciousness and Personal Strategies’ (2011) 208 The China Quarterly 870 Google Scholar, 873.

25. ibid 877-82.

26. Gallagher (n 11).

27. ibid 787.

28. ibid 783.

29. ibid 803-4

30. ibid 806.

31. Albiston, Catherine, ‘Legal Consciousness and Workplace Rights’ in Benjamin Fleury Steiner & Laura B Nielsen (eds), New Civil Rights Research: A Constitutive Approach (Ashgate Press 2006) 56 Google Scholar.

32. Ewick, Patricia and Silbey, Susan S, ‘Conformity, Contestation, and Resistance: An Account of Legal Consciousness’ (1992) 26 New England Law Review 731 Google Scholar, 734.

33. Engel, David, ‘How does Law Matter in the Constitution of Legal Consciousness?’ in Bryant G. Garth and Austin Sarat (eds), How Does Law Matter? (Northwestern University Press 1998)Google Scholar; Ewick, Patricia and Silbey, Susan, The Common Place of Law: Stories from Everyday Life (University of Chicago Press 1998)Google Scholar.

34. Art 22, Labour Code.

35. ibid.

36. ibid.

37. Art 90, Labour Code.

38. Art 91, Labour Code.

39. Nghị định 103/2014/NĐ-CP Quy định mức lương tối thiểu vùng đối với người lao động làm việc ở doanh nghiệp, hợp tác xã, tổ hợp tác, trang trại, hộ gia đình, cá nhân, và các cơ quan, tổ chức có thuê mướn lao động theo hợp đồng [Decree 103/2014/NĐ-CP on regulations of the regional minimum wages for employees working in enterprises, cooperatives, group work, farms, households, as individuals, and in organizations and agencies that employ labour according to the labour contract] (2014).

40. Arts 119 and 120, Labour Code.

41. Chapter XIV, Labour Code.

42. Section 2, Chapter XIV, Labour Code.

43. Art 3.9, Labour Code

44. Art 3.8, Labour Code

45. See Section 3 on ‘the resolution of collective labour disputes’ and Section 4 on ‘Strikes’, Chapter XIV, Labour Code 2012.

46. Siu, Kaxton and Chan, Anita, ‘Strike Wave in Vietnam, 2006-2011’ (2015) 45(1) Journal of Contemporary Asia 71 CrossRefGoogle Scholar; Pringle, Tim and Clarke, Simon, The Challenge of Transition: Trade Unions in Russia, China and Vietnam (Palgrave 2011)Google Scholar.

47. Lee, Chang-Hee, ‘Recent Industrial Relations Developments in China and Vietnam: The Transformation of Industrial Relations in East Asian Transition Economies’ (2006) 48(3) Journal of Industrial Relations 415 Google Scholar.

48. These are VGCL branches established at district levels or in industrial zones. VGCL branches at the city and provincial levels are called the city/provincial Labour Federation.

49. Legal Aid Centre (n 6).

50. ibid.

51. Luật Bảo Hiểm Xã Hội [Law on Social Insurance] (Law No. 71/2006/QH11).

52. Fieldwork for this research was conducted from December 2014 to March 2015 and from December 2015 to February 2016. To ensure confidentiality, I will be using pseudonyms when referring to participants.

53. Information obtained by the author from the ‘Conference on experience sharing and developing models of support for migrant employees’ (n 7).

54. Legal Aid Centre (n 6).

55. Author’s observation at the legal session (Đồng Nai province, Vietnam, March 2015).

56. Interviews with 24 ordinary workers (Đồng Nai province, Vietnam, 20 December 2014, 28 December 2014, 14 February 2015, 8 March 2015, 17 April 2015, 13 December 2015, and 31 January 2016) and fourteen core workers (Đồng Nai province, Vietnam, 22 January 2015, 30 January 2015, 5 February 2015, 18 March 2015, 11 April 2015, and 28 December 2015; Hồ Chí Minh City, Vietnam, 27 February 2015, 22 March 2015). Identities of the ordinary workers have been withheld to ensure confidentiality.

57. Author’s observation at the legal session (n 55).

58. ibid.

59. Interview with core worker Nam (Đồng Nai province, Vietnam, 7 May 2015).

60. Interviews with core workers Lê and Hải (Đồng Nai province, Vietnam, 5 February 2015 and 28 February 2015).

61. Interview with core worker Anh (Đồng Nai province, Vietnam, 18 January 2016).

62. ibid.

63. ibid.

64. Interview with core worker Hải (Đồng Nai province, Vietnam, 28 February 2015).

65. Scott, James, Weapons of the Weak: Everyday Forms of Peasant Resistance (Yale University Press 1985)Google Scholar.

66. Interview with core worker Hải (n 64).

67. ibid.

68. The people referred to here are different from informal strike leaders who mobilize workers around certain complaints and sometimes may be asked to get involved in the process of strike resolution.

69. Interview with core worker Nhân (Đồng Nai province, Vietnam, 18 March 2015).

70. Pringle and Clarke (n 2).

71. Interviews with core workers Hải, Nhân, and Minh (Đồng Nai province, Vietnam, 28 February 2015, 18 March 2015, and 11 April 2015).

72. Art 31 of the Labour Code specifies the conditions and obligations of an employer with regard to the temporary transferral of an employee to perform a task that is different from the one agreed on in the labour contract.

73. Interview with core worker Hải (n 64).

74. Interview with core worker Phú (Đồng Nai province, Vietnam, 11 April 2015).

75. The name of the company is not disclosed to ensure confidentiality.

76. I have withheld the reference to the news to protect Anh’s identity.

77. Interview with core worker Anh (Hồ Chí Minh City, Vietnam, 27 February 2015).

78. ibid.

79. Interview with core worker Anh (Hồ Chí Minh City, Vietnam, 22 March 2015).

80. Interview with core worker Anh (Hồ Chí Minh City, Vietnam, 27 February 2015).

81. ibid.

82. ibid.

83. ibid.

84. ibid.

85. The letter was signed by Anh, who shared it with the author and fourteen co-workers. The letter is undated.

86. Interview with core worker Anh (Đồng Nai province, Vietnam, 27 December 2015).

87. The company’s efforts to re-employ Anh took me by surprise. Anh did not know exactly why: ‘I don’t know how or why the company knew that it was in the wrong. Maybe because the company was afraid that I would later take it to the court. It could be because of our petition letters. Maybe the labour bureau called the company and asked about me. The municipal labour bureau has known me well through my legal aid to other workers.’

88. Interview with core worker Anh (Hồ Chí Minh City, Vietnam, 14 January 2016).

89. Ewick and Silbey (n 32) 47.

90. Chan, Anita and Siu, Kaxton, ‘Chinese Migrant Workers: Factors Constraining the Emergence of Class Consciousness’ in Beatriz Carrillo and David S G Goodman (eds), China’s Peasants and Workers: Changing Class Identities (Edward Elgar 2012)Google Scholar; Stephanie Chok, ‘Labour Justice and Political Responsibility: An Ethics-Centred Approach to Temporary Low-Paid Labour Migration in Singapore’ (PhD dissertation, Murdoch University 2013).