Suggestions for improvement in Vietnam employment laws in the context of gender equality

or female 
workers to take prenatal and postnatal leave so that mothers 
can restore their health and have a good source of milk for 
their children. But from the perspective of gender equality, 
the father also needs to share the nursing of young children, 
so Article 155 of the 2012 Labour Code (Article 137 of the 
2019 Labour Code) needs to be revised and/ or 
supplemented in the direction of stipulating that the father - 
the male worker also has the right to take leave to care for 
his wife and children at a certain time; and at the same time 
allows the husband to take a break in lieu of his wife, after 
the wife has left a certain time to recover her health. 
Secondly, employers are encouraged to participate in 
organising kindergartens and partly support the costs of 
sending children to kindergartens of workers. The cost of 
the employer when implementing these measures and other 
measures to ensure and promote gender equality are entitled 
to the preferential policies of the State under the tax law. 
Employers are obliged to help and support the construction 
of kindergartens and the cost of sending children to 
kindergartens of workers. At the same time, adding clear 
regulations, when implementing measures to ensure and 
promote gender equality, employers are entitled to the 
State’s support policies. The costs of the enterprise 
supporting the construction of kindergartens or part of the 
costs of sending children to kindergartens for workers are 
counted as reasonable operating expense in production and 
business. 
Thirdly, the State is responsible for creating plans and 
measures to establish kindergartens in places where there 
are many workers with comprehensive regulations and 
guidelines. This is a problem that has not been clearly 
reflected in the Labour Code, but has been stipulated in the 
Education Law 2006 (amended in 2009), the 2016 Law on 
Children and National Strategies, Plans and Economic 
Development Plans. Local authorities must include the 
goals of children into mandatory contexts of local 
strategies. The State should have more policies to 
encourage participation in the private sector, considering it 
is a conditional business under the 2019 Education Law, 
and the 2020 Investment Law. Especially, if employers 
themselves spend money building kindergartens for their 
workers, these expenses will be considered to be reasonable 
expense to be entitled to tax incentives from the 
Government. 
Fourthly, the addition of “installing room for collecting and 
storing milk’ to the new Labour Code aims to ensure higher 
enforcement and consistency with the provisions of the 
2016 Law on Children, ‘Children have the right to be cared 
for and nurtured to develop comprehensively” [4]; “The 
Government encourages agencies, organisations, families 
and individuals to support and take care of children and 
disadvantaged children. Organisations and individuals that 
provide care services to children shall receive support 
policies on land, taxes and credits” [5]. Moreover, that 
“Employers install a room for collection and storage of 
breast-milk that is suitable to the actual conditions in their 
workplace, the needs of female workers and the ability of 
employers, help female workers (who raise children over 12 
months of age) to collect and store breast-milk at work” 
should be added into Decrees or Circulars guiding the 2019 
Labour Code. 
Finally, lawmakers also need to review the regulations that 
female employees who are pregnant have to dismiss their 
jobs because ‘labour contract expires’, making it more 
suitable to current practice. Because, once the labour 
Đại học Nguyễn Tất Thành 
Tạp chí Khoa học & Công nghệ Số 11 
92 
contract expires at the time that the female employee is 
pregnant, no enterprise will negotiate and enter into a new 
contract because the health and quickness of pregnant 
employees during this period decrease. Legislators should 
resurrect the Article 111(3) of the 1994 Labour Code
i
: 
during pregnancy, women are granted to postpone 
unilaterally termination of labour contract, even if the 
employer has reasons (specified in Article 38) to 
unilaterally terminate the labour contract. This regulation is 
very humane and suitable for the protection of women 
rights in accordance with the nature of the Labour Code. 
2.2 Improving anti – sexual harassment regulations. 
The concept of sexual harassment in the workplace needs to 
be improved as well. According to Research Report 
“Sexual Harassment at the workplace in Viet Nam: An 
Overview of the Legal Framework” [6], it is important for 
the Government to initiate a legal document guiding the 
implementation of the relevant articles of Labour Code that 
relate to sexual harassment at work. 
Article 3(9) of the 2019 Labour Code is concerned with the 
definition of sexual harassment, which is “a sexual act of a 
person against another person in the workplace against the 
latter’s will. When encountering this behaviour, the victim 
has the right and obligation to actively collect, provide and 
hand over documents and evidence to competent state 
authorities and prove his/her request is valid and legal”. In 
practice, however, this behaviour is not easy to prove and 
even if there is evidence, it is difficult to apply the laws to 
handle. Therefore, it is proposed that the burden of proof 
should be transferred from employees to the employer, and 
the employee is only responsible for informing that there is 
a sexual harassment behaviour in the workplace as 
adversarial system countries. 
When the Government issues new decrees defining and 
providing guidance on the implementation of a number of 
contents of the 2019 Labour Code, they should include 
regulations that focus on protecting victims of sexual 
harassment from retaliation, especially hiding their 
confidential information and sensitive images. 
2.3 Minimum wage. 
Firstly, the current Labour Code stipulates that the 
minimum wage must ensure minimum living needs of the 
i
An employer is prohibited from this missing a female employee 
or unilaterally terminating the labour contract of a female 
employee for reason of marriage, pregnancy, taking maternity 
leave, or raising a child under twelve (12) months old, except 
where the enterprise ceases its operation. During pregnancy, 
maternity leave, or raising a child under twelve (12) months old, a 
female employee shall be entitled to postponement of unilateral 
termination of her labour contract or to extension of the period of 
consideration for labour discipline, except where the enterprise 
ceases its operation. 
employees and their family. However, it is difficult to 
determine the minimum living needs. Therefore, this article 
should be, “Minimum wage is the lowest payment for an 
employee who performs the simplest work in normal 
working conditions”. Furthermore, it is necessary to study 
and assess the minimum wages applied in countries in the 
world with the same level of development as Vietnam, and 
on that basis, calculate the minimum wage for Vietnamese 
employees to ensure the equality between domestic 
employees and the employees around the world. The 
minimum wage should be determined and adjusted based 
on these factors: Minimum living standards of employees 
and their families, correlation between the minimum wage 
and common salary of employees on the market, consumer 
price index, economic growth rate, labour supply and 
demand relations, employment and unemployment, labour 
productivity and affordability of businesses
ii
. 
Secondly, the sanctions for handling violations of wages in 
general and the minimum wage in particular are not really 
effective, leading to the handling of violations facing many 
difficulties. The current level of sanctions (from 20,000,000 
VND to 75,000,000 VND) in Article 16(3) of Decree No. 
28/2020/ND-CP[7] does not really protect workers, 
therefore a change in sanctions is required to deal with the 
current issue. Increasing the sanction level higher than the 
current one will ensure that employers rule the law. A 
specific monitoring mechanism should be developed in 
enterprises, such as: The lowest salary within the enterprise, 
strengthening the functions of the monitoring organisations 
in the enterprise, and building a compensation mechanism 
for employees if violations happen. 
Thirdly, it is necessary to clearly define the responsibilities 
of the authorities in the process of implementing 
regulations on minimum wage. Specifically, there should be 
regulations on the responsibilities, tasks and authority of the 
Government, management authorities and the National 
Wage Council in guiding the implementation of the 
minimum wage policy. There should be regulations on the 
responsibility of local authorities and relevant authorities in 
supervising the implementation of laws in the localities. 
Lastly, the 27-NQ/TW Resolution [8] stated that, from 
2021, the government will not directly intervene in the 
salary policy of enterprises. The role of the Trade Union 
will also change to receive adequate wages. The 
government will gradually reduce direct intervention in 
salaries for employees, which is a progressive trend in the 
market mechanism. Minimum wage is only the lowest rate, 
iiIf a minimum wage exceeds the affordability of the business, it 
will not create productivity, competitiveness between markets, 
between businesses. Therefore, the adjustment of the minimum 
wage must also take into account the affordability of businesses. 
Đại học Nguyễn Tất Thành 
93 Tạp chí Khoa học & Công nghệ Số 11 
so it needs to be negotiated to be in accordance with labour 
prices. The role of Trade Unions must be further enhanced, 
the biggest of which is wage negotiation through collective 
bargaining discussion agreements. Next, the employees 
themselves must be aware that they have the right to 
negotiate wages, which are written in the employment 
contract. For a long time, workers have not realised their 
value; when recruited, they do not dare to bargain about 
salary but agree with the level given by enterprises. In order 
for employees to reach a satisfactory salary, they also need 
the assistance of the Trade Union in providing information, 
rights and obligations. 
2.4 Right to work. 
Female workers should be entitled to make their own 
decisions about choosing jobs that adversely affect child-
bearing and parenting functions provided that they are fully 
informed about these jobs. Ensuring this right will create 
many economic benefits for both workers and social 
insurance as it does not have a tremendous impact on the 
state and businesses. At the same time, it helps businesses 
pave the way for recruiting workers at work in accordance 
with the law and reduce violations. In sub-laws guiding the 
new Labour Code, gender equality should be amended in 
the way that regulations on employment will not prohibit 
female employees from performing their tasks that may be 
detrimental to child-bearing and parenting functions in 
order to ensure all the right to choose jobs. Currently, the 
Ministry of Labour, Invalids and Social Affairs is collecting 
comments on the Draft Circular to issue a list of 
occupations and jobs that adversely affect child-bearing and 
parenting functions after the 2012 Labour Code was 
amended and The CEDAW (The Convention on the 
Elimination of All Forms of Discrimination against 
Women) Committee recommended Vietnam to review and 
reduce the list of occupations prohibited to women in 
Circular No. 26/2013/TT-BLDTBXH [9]. 
However, in term of heavy and toxic occupations that may 
adversely affect child-bearing and parenting functions, 
legislators may have to make separated regulations, 
creating the best conditions for women to have a choice. 
3 Conclusion 
Overall, promoting sustainable jobs and better income for 
women and men in a free, equal, safe and respectful dignity 
environment are two of the main priorities of the ILO 
Sustainable Employment and Economic Development 
(SEED) programme (its target is to lessen strifes by 
improving employment and economic prospects and 
focusing on the young and women in insecure areas). 
Integrating gender issues into promotion and job creation 
will help improve efficiency for productivity and economic 
growth, human resource development, sustainable 
development and reduce poverty. Advances in increasing 
female labour force and narrowing the income gap between 
men and women have been taking place worldwide over the 
past decades. However, we still need to make more efforts 
to bring gender equality in employment into reality. 
References 
1. Hồ Chí Minh toàn tập (7) (2011), Hà Nội, NXB Chính trị Quốc gia, 340 - 342. 
2. Labour Code 2012, art 159. 
3. The Law on Social Insurance 2014, art 31(1)(e). 
4. Law on Children 2016, art 15. 
5. Law on Children 2016, art 42(2). 
6. MOLISA and ILO, Research Report “Sexual Harassment at the workplace in Viet Nam: An Overview of the Legal 
Framework” (Ha Noi, March 2013) <https://www.ilo.org/wcmsp5/groups/public/---asia/---ro-bangkok/---ilo-
hanoi/documents/publication/wcms_206106.pdf> accessed on August 28
th
 2019. 
7. The Government, Decree No. 28/2020/NĐ-CP on Penalties for Administrative Violations against Regulations on Labour, 
Social Insurance, and Overseas Manpower Supply, March 1, 2020. 
8. Party Central Committee, Resolution on the Reform of Salary Policy for Civil Servants, Public Employees, the Armed 
Forces, and Workers of Enterprises, May 21, 2018. 
9. The Ministry of Labour, War Invalids and Social Affairs Circular, No. 26/2013/TT-BLDTBXH on Promulgating the list 
of jobs in which the employment of female workers is prohibited, October 18, 2013. 
Đại học Nguyễn Tất Thành 
Tạp chí Khoa học & Công nghệ Số 11 
94 
Một số kiến nghị hoàn chỉnh pháp luật lao động Việt Nam về bình đẳng giới 
Trần Nguyễn Quang Hạ 
Khoa Luật – Đại học Nguyễn Tất Thành 
tnqha@ntt.edu.vn 
Tóm tắt Cải thiện bình đẳng giới ở nơi làm việc là một nhiệm vụ cấp bách đối với Đảng và Chính phủ Việt Nam. Mặc dù 
Chính phủ đã phê chuẩn các công ước quốc tế về lao động, quyền của phụ nữ, cũng như sửa đổi luật pháp có liên quan, tuy 
nhiên, có vẻ như các điều khoản đã không thỏa mãn các yêu cầu đặt ra để chống phân biệt đối xử trong công việc đối với phụ 
nữ. Thông qua bài viết này, tác giả muốn đề xuất một số kiến nghị để cải thiện qui định pháp luật lao động về bảo vệ quyền 
của lao động nữ dựa trên Bộ luật Lao động 2012 (được sửa đổi và bổ sung bởi Bộ luật Lao động 2019), các luật liên quan và 
các văn bản dưới luật. 
Từ khóa bình đẳng giới, pháp luật lao động, lao động nữ, Bộ luật Lao động, Việt Nam