Determination of eligibility to participate in the proceedings of grassroots trade unions in disputes over termination of labor contracts - Legal gaps and recommendations for completion

The current law has not established clear enough criteria to determine the eligibility to participate in the proceedings of grassroots trade union organizations, and at the same time, it has not determined the subjects participating in the proceedings as trade union organizations or individual members of the leadership board. From there, the article asks three questions: (i) in what capacity should the grassroots trade union participate in the proceedings and what are the delimitation criteria; (ii) whether the participant is an organization or an individual, with what are the procedural consequences when those individuals no longer have labor relations; (iii) and in what direction it is necessary to guide and develop case law.

The article is limited to individual labor disputes on the termination of labor contracts under the jurisdiction of the Court according to civil procedures.

1. Legal framework and gaps

1.1. Provisions of law over the periods

Clause 7, Article 192 of the Labor Code 2012 compels the employer to reach a written agreement with the Executive Committee of the grassroots trade union or the superior trade union when unilaterally terminating the labor contract or dismissing the employee who is a part-time trade union official.

The 2019 Labor Code changes its approach. Acknowledging the parallel existence of grassroots trade unions and employees' organizations at enterprises, the Code uses the general concept of "grassroots employee representative organization" and "leadership" of that organization. This change broadens the scope of the subject but blurs the line between "the organization" and the "leading body of the organization" - a direct consequence for the proceedings.

The Law on Trade Unions 2024, effective from July 1, 2025, is amended and supplemented by Law No. 97/2025/QH15, which defines the Vietnam Trade Union system as consisting of three levels: the central level, the grassroots superior trade union and the grassroots trade union. The legislation of this structure provides a basis for determining the successor when the grassroots trade union ceases to operate, and at the same time creates an objective verification address independent of the sued enterprise.

Guideline No. 92/HD-TLD determines that Trade Unions can participate in civil proceedings with three groups of status: involved parties, representatives and defenders of the legitimate rights and interests of the involved parties. Two noteworthy details: the subjects mentioned throughout are the "Trade Union", "Grassroots Trade Union", that is, the organization, not each member of the executive committee; and the status of a person with related rights and obligations is expressed according to the mechanism of offer-acceptance, that is, the result of a specific assessment and not the default for all labor cases.

1.2. Five legal gaps

Firstly, the criterion of "related to rights and obligations" has not been quantified. Clause 4, Article 68 of the Civil Procedure Code (CCP) 2015 states the criteria but does not define the content, making the application depend on the subjective will of the person conducting the proceedings rather than on objective reality. Meanwhile, misdetermining procedural status is also a serious violation of procedural procedures - that is, determining excess and danger is no less dangerous than determining underdetermination.

Secondly, it is not clear whether the subject is the organization or the leadership. The 2019 Labor Code stipulates the obligation to exchange opinions with "grassroots employee representative organizations" (Articles 42, 44), but when protecting trade union officials, the concept of "leadership" of that organization is used (Article 177), while the civil procedure law does not provide for the transformation of "leadership" into a defined procedural subject. This is the origin of the practice of summoning each member of the board of directors individually.

Third, there is no mechanism to handle when the management no longer has labor relations. Article 74 of the CCP 2015 only regulates the inheritance of procedural rights and obligations upon the death of an individual or when the organization is dissolved, consolidated, merged, divided, separated or transformed. The common situation in labor disputes is out there: the grassroots trade union still exists but the entire management has terminated labor relations, or the grassroots trade union has ceased to operate in practice without a formal dissolution decision.

Fourth, there is a lack of guidance on service for people who have left the business. Chapter X of the CCP 2015 stipulates service at the place of residence of an individual or the head office of an organization, but does not envisage the situation in which the participant in the proceedings is determined by the title associated with an enterprise that they no longer work there. The practice of sending procedural documents through the sued enterprise itself is convenient but raises issues of validity and conflicts of interest.

Fifthly, there is a lack of consistency in terminology: the CCP in 2015 still uses "representative organization of labor collectives", while the Labor Code in 2019 has standardized it into "representative organization of employees at the grassroots", forcing law enforcers to deduce that the two concepts refer to the same subject.

2. Eligibility to participate in proceedings of grassroots trade union organizations: streams of views and criteria for delimitation

2.1. The first stream of viewpoints: grassroots trade union organizations are persons with related rights and obligations

This is a common view in the current trial practice, this view gives the following grounds:

Firstly, the second paragraph of Clause 4, Article 68 of the CCP 2015 sets out the proactive obligation: if no one proposes to bring a relevant person to participate in the proceedings, the Court must bring them in. When in doubt, the Judge must choose between the risk of omission and the risk of redundancy, while the law only specifies the consequences of the first risk.

Secondly, in many cases, the Court must not only consider the minutes of the exchange of opinions as a document but also assess the legality of the activities carried out by the trade union itself: the order of convening the meeting of the executive committee, the authority of the signatory, the validity of the congress, etc the value of the recognition decision issued by the superior trade union. When the judgment concludes that a trade union activity is invalid, that conclusion affects the reputation, the validity of the issued documents and the organization's internal autonomy.

Thirdly, the status of a witness allows to present what he knows, while the status of a litigant allows access to records, make requests, argue and appeal. If the legality of the operation of an organization is assessed and that organization only has the status of a witness, the right to self-defense is not fully guaranteed. In addition, Guideline No. 92/HD-TLD has recognized the status of persons with related interests and obligations of the Trade Union as an official status.

Case law No. 70/2023/AL is a direct demonstration of this stream of views. The plaintiff is Mr. Vuong Quoc A - Chairman of the Executive Committee of the grassroots Trade Union - initiated a lawsuit against K Vietnam Limited Liability Company for the termination of the labor contract. Notably, in terms of proceedings, the Company's Trade Union is identified as a person with related interests and obligations and has presented opinions on the order and procedures of the congress; regarding the content, the Court concluded that the election to the title of Chairman of the Executive Committee and the recognition decision of the superior trade union were invalid in terms of the criteria for candidates and winners. The case also showed that the assessment was not consistent between the trial levels on the issue of costs: the first-instance judgment rejected the lawsuit request, the appellate judgment corrected the entire and forced the enterprise to pay more than 216 million VND, then the appellate judgment was annulled according to cassation procedures; The entire cycle lasts from 2016 to 2022. Thus, the first stream of views is correct for the group of cases where the legality of the trade union's activities becomes the object of judgment evaluation.

2.2. The second stream of viewpoints: grassroots trade union organizations do not participate in the proceedings as litigants

The second stream of viewpoints quantifies the criteria in Clause 4, Article 68 of the CCP 2015 with a specific test: The Court needs to anticipate whether or not the subject is entitled to any rights or obligations to other involved parties when accepting or not accepting a lawsuit request; in other words, whether they become judgment creditors or judgment debtors. Otherwise, the trade union organization has no procedural status in the case. Article 77 of the CCP 2015 defines a witness as "a person who knows the facts related to the content of the case", and the corresponding obligations in Article 78 are designed for individuals, so the trade union itself cannot be a witness; Only individuals who directly know the event are witnesses, while documents issued by the Trade Union are valid as documents and evidence. [10]

Applying the test to the group of cases where the labor contract is terminated for reasons of structural change, technology or economic reasons, the result is usually that: all obligations arising from the judgment under Article 41 of the Labor Code 2019 belong to the employer, the part of the decision does not determine the benefits, obligations of the trade union organization. This view is also based on the argument of procedural costs: each subject is brought in as a litigant while simultaneously creating an obligation to serve, a possibility to postpone the trial and a subject with the right to appeal.

2.3. Author's point of view: three-step functional criteria

Both streams of opinion have a basis and the common weakness is to find a single answer to a group of situations that are not homogeneous. The problem is not whether the grassroots trade union "always" or "never" is the litigant, but the determination of the decisive variable. According to the author, that variable is: whether the legality of the operation of the trade union organization becomes the subject of evaluation in the judgment or not. On that basis, the author proposes a three-step functional criterion.

Step 1 - Check the object of assessment: does the settlement of the case require the Court to conclude on the legality, validity or legal validity of an activity or a document issued by the trade union organization? If so, the grassroots trade union participates as a person with related interests and obligations.

Step 2 - Check private interests: if not in Step 1, does the trade union organization have an independent request or has any material or property interests that may be affected by the ruling? If so, the status of the involved parties is appropriate.

Step 3 - Determining the remaining status: if it does not fall into both of the above steps, the grassroots trade union does not participate in the proceedings in any capacity; documents issued by the trade union are still used as a source of evidence, and individuals who directly know about the incident can be summoned as witnesses according to Article 77 of the CCP 2015.

This criterion can be applied right at the stage of preparation for trial, based on the request to initiate a lawsuit and the opinion of the defendant. The boundary that needs to be further clarified lies in Step 1, where the level of "legality assessment" can be perceived differently among Judges – and also the content that a law application guide can standardize.

2.4. Subjects participating in the proceedings: trade union organizations or each member of the executive committee

The Executive Committee of the grassroots trade union is the leading body of the grassroots trade union organization between the two congresses, not a set of independent legal subjects; the representative of the grassroots trade union in the procedural relationship is the president of the grassroots trade union or a legally authorized person. Both Case Law No. 70/2023/AL and Guideline No. 92/HD-TLD are consistent: the subjects named are organizations, not individual members of the executive committee.

The two ways of identifying the subject create two completely different consequences when there is a change in personnel. If the subject is an organization, the termination of the labor contract by the members of the executive committee does not terminate the status of the involved parties; the organization still exists, the only problem is to re-determine the current legal representative - this is a change of representative, not inheritance of procedural rights and obligations under Article 74 of the CCP 2015, and in principle is not enough to interrupt the trial. On the contrary, if the subject is an individual, their "related" status is built on a foundation of fact that has disappeared: they sign documents as members of the executive committee, now no longer have that status and no longer have labor relations; What remains of them is a personal understanding of the events that have occurred, i.e., the characteristics of the witness.

From there, the situation mentioned in the introduction can be read as a diagnostic test: the resignation of the entire executive committee causing serious consequences to postpone the trial is an indication that the record has been built in the direction of personalization of the subject. This is a point that needs to be prioritized to overcome, because from any point of view, the subject of the proceedings must still be the grassroots trade union organization. Only when this organization has actually been dissolved, terminated or merged will the issue of inheritance of procedural rights and obligations be raised, with the inheritor being the grassroots superior trade union.

3. Procedural consequences of determining eligibility to participate in proceedings

3.1. Validity of the summons

The entire mechanism for handling absences in Articles 227 and 228 of the CCP 2015 is built on the assumption that the summons is valid; If this assumption is not satisfied, any calculation of the first or second time loses its basis.

According to Chapter X of the CCP 2015, procedural documents are served at the place of residence of the individual or the head office of the organization. When the Court determines that each member of the executive committee is a participant in the proceedings, the summons is usually sent to the address of the sued enterprise. This approach poses two problems when those people have quit their jobs: the business is no longer a legal address to serve people who no longer have labor relations; and the enterprise is a party with opposing interests, so assigning one involved party the task of transferring the summons to another participant in the proceedings is a conflict of interest that needs to be identified. Therefore, the most correct proposal that a lawyer can make is not a "request to postpone" or "a request to continue the trial", but to request the Trial Panel to announce the result of service.

3.2. The absence of the involved parties and the regime of postponement of the court hearing

Clause 1, Article 227 of the CCP 2015 stipulates that: when the Court duly summons for the first time, if the involved parties or their representatives are absent, the Trial Panel must postpone the court hearing, unless there is a written request for trial in absentia. The law uses the word "postponed" with only one exception, and does not give the Trial Panel the authority to assess the impact of the absence. At the second valid summons, the mechanism shifts to a flexible direction according to Clause 2, Article 227: if a person with related interests and obligations does not have an independent request but is absent and has no representative, the trial court shall be absent from them.

From this, it is possible to draw comments on the priority order: the question "whether this absence affects the settlement of the case or not" is legitimate, but must be raised at the stage of preparation for trial, when the Court can also adjust the eligibility to participate in the proceedings; by the time of the opening of the trial, all qualifications have been established and the order mechanism of Clause 1, Article 227 has been activated. It is necessary to distinguish it from the suspension of the court session under Article 259: the suspension of the composition of the trial panel and the resumption of the procedures already carried out are not required, but when the direct basis is the absence of the involved parties who have been duly summoned for the first time, Clause 1 of Article 227 is a specialized norm. are imperative and are prioritized for application.

Precedent No. 12/2017/AL settles cases where the reason for postponement is not due to the fault of the involved parties: when the court session is reopened, the involved parties who are duly summoned are still absent, it must be determined that this is absent at the first valid summons. Given the situation under discussion, if the trial is reopened but these people continue to be duly summoned but are still absent, this is in principle the second time and the Trial Panel can try them in absentia - provided that the service this time is really valid.

3.3. Consequences of incorrect determination of the status of the involved parties

The incorrect determination of the status of a participant in the proceedings may lead to the annulment of the first-instance judgment under Clause 3, Article 308 and Article 310 of the CCP 2015, or being protested according to cassation procedures when there is a serious violation of the procedural procedures that make the involved parties unable to exercise their rights. procedural obligations. This risk is two-way: omitting a participant in the proceedings is a violation, but overdetermining is also a wrong determination. In terms of time costs, the comparison between the two options is clear: a decision to postpone the trial lasts up to 01 month, while an annulled judgment can bring the case back to the starting point after many years.

4. Recommendations

4.1. Proposals to improve the law and guide the application of the law

Firstly, it is proposed that the Council of Judges of the Supreme People's Court promulgate a resolution guiding the application of Clause 4, Article 68 of the CCP 2015 in the direction of: a subject is included in the proceedings as a person with related interests and obligations when the settlement of the case may arise, change or terminate their rights or obligations towards other involved parties, or when the Court has to conclude on the legality and validity of activities or documents issued by them; at the same time, it is clearly stated that the determination of the excess status of the involved party is also an incorrect determination.

Secondly, it is proposed to supplement specialized guidance for labor disputes: when an organization representing employees at the grassroots participates in the proceedings, the participant is that organization, which is carried out by the legal representative or an authorized person; not to summon each member of the Board of Directors individually as involved parties, unless their individual rights and obligations are directly set out in the case.

Thirdly, propose the Supreme People's Court to develop a case law on determining the eligibility to participate in proceedings of grassroots employee representative organizations, because Case Law No. 70/2023/AL only resolves the content issue, but has not yet formed a legal solution to the issue of procedural status.

Fourthly, it is proposed to supplement the guidance on service when the participant in the proceedings is identified by the title associated with an enterprise that no longer works there: The Court verifies the place of residence and serves directly, not using other involved parties in the same case as a channel for transferring procedural documents.

Fifthly, it is proposed that the Presidium of the Vietnam General Confederation of Labor supplement Guidance No. 92/HD-TLD, clarify the responsibilities of the grassroots superior trade union in confirming the operation status, the list of executive committees and representatives of the grassroots trade union at the request of the Court. as well as the responsibility to receive the inheritance status when the grassroots trade union terminates its operation.

4.2. Professional recommendations to courts, lawyers, enterprises and grassroots trade union organizations

For the Court, the determination of the status of participants in the proceedings should become a mandatory item in the minutes of the meeting to examine the handover, access, disclosure of evidence and conciliation according to Articles 208 and 210 of the CCP 2015. Right from the stage of preparation for trial, it is necessary to collect the decision on establishment or recognition of the grassroots trade union, the decision on recognition of the executive committee at the time of termination of the labor contract and the document of the superior trade union on the basis confirming the current operation status; The residence of those who have quit their jobs should be verified before bringing the case to trial.

For lawyers, it is necessary to give a definitive answer before the opening date of the court hearing: who is being determined as a person with relevant rights and obligations and what grounds; that status satisfies the criteria in Clause 4, Article 68 or is actually the status of a witness; The subject to be summoned is an organization or an individual; Does the grassroots trade union still exist and who is the current legal representative; whether the dossier has a valid service receipt or listing record. It should be noted that there is a professional limitation: Article 70 of the CCP 2015 compels the involved parties to exercise their rights in good faith. Review of eligibility to participate in professional proceedings; Using the procedure as a deferral tool is another.

For enterprises and grassroots trade unions, it is necessary to fully archive records of exchange of opinions, clearly stating the full name, title, date and signature of each participant; When the executive committee changes or the executive committee member terminates the labor contract, it shall make a record of handover, report to the superior trade union at the grassroots level and keep the contact information of the person who has resigned.

Conclusion

Clause 4, Article 68 of the CCP 2015 sets out a correct but not specific enough criterion to operate and in labor disputes, that gap encounters a second gap from labor law: the lack of clarity between the "grassroots employee representative organization" and the "leadership" of that organization. Where the two gaps meet, practice forms a habit that is easy to understand but has not been fully verified: to bring the entire grassroots trade union executive committee into the case as a person with related rights and obligations.

The article does not argue that grassroots trade unions are always just witnesses. Precedent No. 70/2023/AL shows that there is a group of cases in which the status of the involved parties of the trade union organization is completely grounded, that is, when the legality of the organization's activities becomes the object of judgment evaluation. What the author proposes is a functional criterion that allows the delineation of two groups of situations right from the stage of trial preparation. On another level, less controversial but more important in terms of practice, is the distinction between the grassroots trade union organization and the individual members of the executive committee: when practice deviates from this point, a normal personnel fluctuation is enough to interrupt a trial. Standardizing the criteria for determining eligibility to participate in the proceedings, therefore, is both a requirement for the accuracy of the procedure and a direct measure to shorten the time to settle labor cases. The next research direction is a quantitative survey on the judgment sample published from January 1, 2021 to the present to measure the level of inconsistency between the Courts.

Lawyer NGUYEN DOAN HUNG (Managing Director - HTC Vietnam Law Firm, Hanoi Bar Association)

Article published at: https://tapchitoaan.vn/xac-dinh-tu-cach-tham-gia-t...

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