Consultants to Develop Framework Regulations for Operating Labour Mediation and Labour Arbitration Mechanisms

Terms of Reference

 For 02 consultants to develop Framework Regulations for operating labour mediation and labour arbitration mechanisms

The technical assistance initiative provided by the ILO to Department of Industrial Relations and Wage [DIRWA, Ministry of Labour Invalids and Social Affairs of Viet Nam]

Aiming at enhancing effectiveness of Labour Dispute Resolution System with three pilot provinces including Binh Duong, Dong Nai and HCM city

I. Background & Rationale

The revised Labour Code 2019 passed by the National Assembly of Vietnam on November 20, 2019 has come into force from January 2021.The Code has introduced many new regulations governing labor relations in Vietnam, including provisions on labor dispute settlement in Chapter XIV from Article 179 to Article 211.

With anticipation that industrial relations in the coming years will be more dynamic and diverse with the emergence of new actors in the labor relations, including the workers’ organizations at enterprise level, enhancing the efficiency of the labor dispute resolution system under BL2019 becomes crucial than ever.The Secretariat of the Party Central Committee has also issued Directive 37-CT-TW on strengthening leadership and direction in building harmonious, stable and progressive labor relations in the new situation[3]. One of the key tasks -Task 5 is to ensure proper settlement of labor disputes and strikes.

Within the framework of cooperation with tripartite partners in Vietnam, the New Industrial Relations Framework Programme of the ILO has been developed and implemented since 2018 with the national project owner being the Ministry of Labour, Invalids and Social Affairs, aiming at “Promoting the development of a new industrial relations framework that ensures respect for the ILO’s Declaration on Fundamental Principles and Rights at Work” is sponsored by the US Department of Labor, the Government of Japan and others.In addition, the Trade for Decent Work Project - Promoting the application of basic ILO Conventions within the framework of the EU-Vietnam Free Trade Agreement, through improving the quality ofindustrial relations and working conditions, funded by the EU, also pursues this goal.All of these initiatives do consider the LDR system as one among key building blocks for obtaining its ultimate goals on promoting application of the concerned ILO conventions and Declarations.    

In order to support some provinces/cities where many enterprises operate and the situation of labor disputes is diverse, the ILO and the Wage and Labor Relations Department [MOLISA] discussed with 03 provinces/Citiesincluding Binh Duong, Dong Nai and Ho Chi Minh City and agreed to implement a pilot technical assistance initiative to enhance the efficiency of the labor dispute resolution system in the three provinces/cities mentioned above.

The overall goal of the pilot is to strengthen capacity of the DIRWA in performing their technical assistance roles to provincial level and promoting effective implementation of the Labor Code 2019 and related regulations on labor dispute settlement. At the same time, the pilot will provide direct support to03 provinces/cities including Binh Duong, Dong Nai and Ho Chi Minh City for implementing their specific solutions to enhance the efficiency of labor dispute resolution system, contributing to the development of harmonious, stable and progressive industrial relations in each province.

Key expected outputs and targets of this pilot is presented in the LDR pilot Log frame.

One of the expected outputs set out in the Log frame indicate that a framework regulations for mediation and arbitration are produced as guidance for the three provinces to develop their provincial operation regulations for their mediation and arbitration mechanisms.

This ToR is to specify the requirements and qualifications of a team of 02 experts working to support DIRWA to develop the framework regulations. 

II. Objective/purposes of the consultancy

As a part of the overall efforts to improve LDR system, this consultancy is designed to support DIRWA to develop a practical framework regulations for operating mediation and arbitration mechanisms in line with LC2019, Decree 145/ND-CP guiding the implementation of 2019 Labour Code and other applicable regulations.

III. Expected results

The team composed by two independent consultants will work in a team to deliver the following products.

For consultant #1:

• A draft framework regulation which will serve as a guidance for provinces to develop operations manual for operating their mediation mechanism, submitted by the consultant to DIRWA and ILO by 10^th October  2021
• A final draft of the framework regulation submitted by the consultant to DIRWA and ILO by 31^st  Oct. 2021

For consultant #2:

• A draft framework regulation which will serve as a guidance for provinces to develop operations manual for operating Labour Arbitration Council submitted by the consultant to DIRWA and ILO by 10^th October 2021
• A final draft of framework regulation for operating arbitration council submitted by the consultant to DIRWA and ILO by 31^st  Oct. 2021

IV. Scope of work,  Tasks and Methodology

For consultant #1: Expert working on framework regulations on mediation mechanism

[See Annex 1 for key questions for framework regulations on mediation mechanism]

• Working with DIRWA, ILO and the three provinces to understand expectations and the existing practices of operating mediation and arbitration mechanisms
• Gathering and conducting desk review of all relevant examples from provincial level and other related agencies
• Developing the outline of the document and holding discussion with technical team of DIRWA and ILO for improvement [5 days]
• Developing full version of the framework regulation for mediation [10days]
• Facilitating technical consultation with three provinces, and [5 days]
• Revising the draft framework regulations accordingly and presenting the final draft to ILO and DIRWA team for further improvement and acceptance [10days].

Sub-total: 30 workdays

For consultant #2: Expert working on framework regulations for operating Labour Arbitration Council

[See Annex 2 for key questions for framework regulations on LAC]

• Working with DIRWA, ILO and the three provinces to understand expectations and the existing practices of operating mediation and arbitration mechanisms
• Gathering and conduct desk review of all relevant examples from provincial level, the court system, trade arbitration system and other related agencies
• Developing the outline of the document and holding discussion with technical team of DIRWA and ILO for improvement [7 days]
• Developing full version of the framework regulation for operating arbitration council[12 days]
• Facilitating technical consultation with three provinces, and [6 days]
• Revising the draft framework regulations accordingly and presenting the final draft to ILO and DIRWA team for further improvement and acceptance [5days].

Sub-total: 30 workdays

V. Timeline and supervision

Time: September 2021 to October 2021

Supervision: ILO technical team will work closely with DIRWA to provide technical backstopping for these consultants. The team will have regular meetings with DIRWA’s and ILO’s technical personnel to discuss the draft outline and  various draft versions of the framework regulations.

VI. Desired Qualifications of the consultants

VII. Application

Interested candidates are invited to submit an application package in English including the following documents by email to huong[email protected]by 9 September as the latest.

1. A  clear statement indicating whether you wish to be considered for Consultancy #1 , Consultancy (#2), or either one. 
2. Half page (150 words) briefly highlighting experience relevant to the requirements set by the TOR.
3. Full CV including comprehensive list of publications. 
4. Confirmation of availability during the contract period.
5. Your proposed daily fee or fee range [for 30-day consultancy for Consultant#1/; and 30-day for Consultant#2.    

Only submissions with complete documents stated here above before the deadline will be considered. We regret that detailed screening results will not be released and only shortlisted candidates will be contacted.

Annex 1:

Based on 2019 Labour Code and related decrees and regulations, key questions for framework regulations on operating mediation mechanism should include but not limited to the following:

1.       How can mediation service be positioned in the linkage with labour administration system? How can labour administration system support and enable the mediation service  to work effectively?

• Role of mediation services vs role of labour administration system
• Types of enabling conditions and supporting services that labour administration system can provide to mediation work: investigation, preparing dossiers for the cases, workspaces, financial incentives, etc.

2.       How can the mediators be well coordinated at provincial level by the Focal Point Unit but also function effectively to meet the demand of districts and IZs in resolving individual disputes [and collective disputes, if possible]?

• Roles of full time mediators vs part-time mediators; Govt’s vs non-govt mediators
• Effective coordination and management in the context of decentralization between the provincial level and district level
• Assigning mediators
• Reporting and monitoring system

3.       What are the key processes and workflows for mediation of individual disputes. Examine and reflect on the possible differences in procedures of mediation for individual disputes and collective disputes/

4.       How can mediation mechanism work to promote a better referral rate to arbitration services?

Annex 2:

Based on 2019 Labour Code and related decrees and regulations, key questions for framework regulations on operating LAC  include but are not limited to the following:

1.       How can arbitration service be positioned in the linkage with labour administration system? How can labour administration system can support and enable  arbitration to work effectively?

• Work of arbitration services vs work of labour administration system
• Types of enabling conditions that labour administration system can provide to arbitration work: investigation, preparing dossiers for the cases, workspaces, financial incentives, etc.
• Roles and monthly specific tasks of the LAC’s secretariat in providing effective assistance and coordination to LAC’s work and to the labour dispute resolution system as a whole. This includes a possible creation and management of a monthly roster of arbitrator’s time availability, etc.

2.       How Labour Arbitration Panel to be established for resolving individual disputes [and collective disputes, if possible]:

• Methods of selection of arbitrators for a specific case: How each member of LAP should be selected to ensure, to the extent possible, the consensus is reached at the end of arbitration process, e.g. some options allowing one party to select an arbitrator from the list of the arbitrators nominated by the other party to reduce risks of having two extreme arbitrators in the panel where the consensus would not be able to reached.
• How to ensure the LAP/LAC’s decision will reflect a high level of quality
• Reporting and monitoring system

3.       What are the key processes and workflows for arbitration of individual disputes [and collective disputes, if possible]?

• Procedures for both parties to agree to use arbitration service and thus to commit themselves to respect LAC’s decision later on
• How each case should be processed from receiving, investigation to organizing hearing sessions
• How the LAC’s decision should be looked like, learning from the good practices of court and trade arbitration system?

Notes: Running a labour arbitration process is relatively new to Viet Nam, therefore, it is a must that the consultant will  study international good practices and also the practices of trade arbitration and court system to make proper suggestions for LAC.