Master’s Programme
MASTER’S THESIS
Pham Thi Hang
Swedish Anti-discrimination Legislation regarding Women at Work and some Legislative Lessons for Vietnam
Supervisors:
Dr. Nguyen Kim Phung
Prof.Dr. Birgitta Nyström
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Preface and Acknowledgements
The law on anti-discrimination of women at work is a very broad and complicated field invloving various law branches such as consitutional law, labor law, administrative and eve criminal law. It is difficult for the author to carry out a comprehensive and profound research only this piece of law. However, due to the importatance and applicability of this topic for Vietnam nowaday, and given to the encouragement and support of my supevisors, I have made and my graduation thesis on the topic in hope to contribute, as much as possible, to solving issues of anti-discrimination against women at work in Vietnam. It is worthy noticing that studies and application in context of Vietnam of the legistaltive experiences of Sweden, the country that has achieved great success in this area of law, will be of big interest in Vietnam.
I would like to give my deep thanks to professor Birgitta Nyström, LundUniversity and doctor Phung Nguyen Kim, Deputy-Dean of the Department of Post-Graduation of Hanoi Law Univversity, for their kind and invaluable guidances and remarks made throughout my studies on the topic. I also want to thank the librarians of LundUniversity and HanoiLawUniversity for helping me to collect the necessary materials, my colleagues and friends for giving me thoughtful comments on the contents of the thesis and inspiring to perfrom this research.
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Table of Content
Preface and Acknowledgements
Table of Content...... 2
Abbreviations...... 3
Executive Summary...... 4
1.Introduction...... 6
2.Comparison of Swedish and Vietnamese legislation on anti-discrimination of women at work 10
2.1Defining the concepts ...... 10
2.1.1Introductory remark...... 10
2.1.2The concept of equality...... 11
2.1.3The concept of discrimination...... 13
2.1.4The concept of anti-discrimination...... 16
2.2Development of the Swedish on anti-discrimination law regarding women at work 21
2.2.1.The period before 1995 ...... 21
2.2.2The period from 1995 until present...... 25
2.3The fundamental issues of the current Swedish anti-discriminationlaw regarding women at work in comparison with those of Vietnam 29
2.3.1.Anti-discrimination of women at work...... 29
2.3.2.The current legislation of Sweden and Vietnam...... 31
3.Improving Vietnamese legislation in the light of Swedishexperiences...48
3.1Some Swedish experiences of anti-discrimination legislation regarding women at work 48
3.2The demand to improve for Vietnamese anti-discrimination law regarding women at work 49
3.3Some proposals for improving Vietnamese legislation...... 51
3.3.1Some proposals on the content of legal provisions...... 52
3.3.2The improvement alternative...... 54
4.Conclusion...... 55
Table of Statutes and other Legal Instruments...... 57
Bibliography...... 59
Abbreviations
Art. / ArticleCEDAW / The Convention on Elimination of Discrimination Against Women
CEEP / Centre European des Enterprises Publiques
EC / Euopean Community
EU / European Union
ILO / International Labour Organization
JämO / The Swedish Equal Opportunities Ombudsman
TUC / Trade Union Congress
UN / United Nations
UNICE / Union of Industrial and Employers Confederation of Europe
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Executive Summary
Law on anti-discrimination of women at work is a necessary instrument for ensuring equality of women in work, and hence their equality in the society and in famili life. Swedish and Vietnamese Governments have adopted many laws and regulations on this matter. These law and regulations produce good effect in handling the issues relating to discrimination against women at work. However, the laws and regulations, the mechanism of implemetation and supervision in Sweden and in Vietnam differ from each other in many aspects due to various political, socio-economic factors. Swedish legislation on anti-discrimination of women at work is even though has been established later than that in some other countries in European Union, for instance, United Kingdom, France, but compared to Vietnam it is more concrete and effective. Issues of discrimination against women at work are governed in specific laws rather concentrated in the Labour Code as in case of Vietnam. It is worthy noting that Vietnam has achieved big steps forward in advancing its law on anti-discrimination against women at work. However, laws and regulation of Vietnam on this issue are still general and vagues. The implementation of provisions on discrimination against women at work is not so effective due to various reasons among which the complexity of law system, the effectiveness of enforcement bodies should be listed firstly. Vietnam law system is characterized with diversity of legal normative acts and delegation mechanism of implementation. More concretely, when a law is adopted, its implementation depends on a guidance decree of the Government since many important issues of the subject-matter of the law the National Assembly delegates to the Government to provide for. In its turn, the Government often delegates to the Minister and Chairmen of the People’s Committees to guide implementation of its decree. So, when adopted, the provisions of a law that already effective may not be applied soon after.
Sweden in country that has been rated by many international organizations and experts as the country with high level of enssuring equaliy of women, including the effective protection of woman-laborer at work. Not doubt this echievement has grear contribution of law on anti-discrimination of women at work . Which are good points or weaknesses in Swedish legislation on anti-discrimination of women at work? Analysis of these these points is very usefull for Vietnam om improving its law on this issue. The purpose of this research is to explore the legislative experiences of Sweden in effective ensuring equality of women at work in particular and ithe the society in general, and possibility of their application in context of Vietnam. The results of the research on this issue has big value nowaday since Vietnam is going to improve the legal system to more effectively ensure equality, democratic rights and freedoms of the people according to the Resolution No 48/NQ-TW on Strategy on building up and improvement of the legal system adopted on May 24, 2005. Furthermore, the National Assembly has recently adopted law on Gender Equality and is going to adopt new Labor Code. Implementation of Law on gender Equality and prepartion of New Labor Code will touch upon a lot of issue relating to anti-discrimination of woment at work. For the above-mentioned reasons the choice of topic “Swedish legislation on anti-discrimination of women at work”will bring some value for Vietnamese law-drafters.
The research, due to its scope focuses mainly on Swedish and Vietnamese regulations on anti-discrimination of women at work. Thus, the general legislative regulations on anti-discrimination are not the subject and scope of this thesis. They may be cited to emphasize the conclusions and findings of the research.
On basis of the designated purpose and study scope as indicated above, the author uses comparative and analysis and the main research methods. These methods are approrirate in exploring and showing the similarities and differences in regulations of Sweden and Vietnam on issues relatiing to discrimination of women at work as well as in proposing suggestion to improve the law and regulations of Vietnam on basis of experiences gained from Sweden case and the weaknesses and limitations explored in case of Vietnam. In addition, other methods are also used appropriately in dealing with each concrete issue.
The structure of the thesis consists of Introduction Part, Conclusion Part, and two chapters. In Chapter 1, the author focuses on two major issue: firstly, concept of equality, discrimination, anti-discrimination with purpose to explore the nature of the subject-matter, its reflections in theoretical aspect; and analysis and evaluation of the current legal provisions of Sweden and Vietnam on anti-discrimination of women at work in comparative perspective with purpose to deeper understand the actual state of the law of the two countries on anti-discrimination of women at work. In Chapter 2, the author analyzes some characteristics of law and regulations of Sweden and Vietnam on anti-discrimination of women at work, weaknesses and limitations in this area of law. On basis of the findings, the author proposes some suggestions to improve Vietnamese legislation on anti-discrimination of women at work.
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Improving Vietnamese Legislation in the light of Swedish experience
1.Introduction
1.1General remark
Woman-laborers are an important part of the labour force in any country. Woman-laborers participate almost in all industries as employees. However, woman-laborers faced in the past and now being faced with various kinds of discriminations on ground of sex. The prejudice and under-evaluation of women’s role in the family, at work and the social life exist in any community. Because of this factor, women are easily exposed to different forms of discrimination. In fact, employers always would recruit man-workers rather than woman-workers even though they adequate health, qualification and skills. The man-workers have more employement opportunities than woman-workers and hence may have more voice in the family life and in the society. This state of affairs exists everywhere in the world, even in th developed countries. Discrimination against women is damaging socio-economic development in any country. Therefore, the protections of women from any discrimination and ensuring their equality are the precondition for development of any community. The Sweden and Vietnam are not an exception. It is not a surprise that Sweden and Vietnam have paid great attention to improve the legal framework for protection of women from disrimination at work as well as in other areas of the social life. In Sweden, law on anti-discrimination consists of separate lgal acts, such as the Equal Opportunities Act, or the Parental Leave Act and etc. In Vietnam, issues relating to protection of women from discrimination at work are governed by the Labour Code, especially the part titled “The particular provisions for working women”[1] and some decrees of the Governments.
This thesis will examine the provisions of Vietnamese and Swedish law on protection of women from discrimination at work and supervisory mechanism for ensuring the equality between men and women at work .
1.2Purpose
The aim of this thesis is to analize the provisions on anti-discrimination of women at work in Sweden and Vietnam in comparative approach for finding out their good points and weaknesses that helped to formulate some proposal for improving the Labour law of Vietnam governing this issue.
Equality between men and women workers is a basis legal principle of the Labour law. It is stated and carried our differently in States. Within the graduation thesis, it is impossible to cover the legislation of many States on this issue. Therefore, as the case study, the author tries to analyze and compare the legal systems of the two countries namely Sweden and Vietnam.
1.3Limitations
This thesis aims at analysing and comparing the provisions Sweden and Vietnam on anti-discrimination of women at work for finding out some expereinces and lessons that may be applicable to improve Vietnamese law on this issue. Following this goal, the thesis narrows itself mainly with labor law of Sweden and Vietnam. However, since discrimination against women at work relates to many fields, the author also referer to some other law areas that directly impact working women’s rights and interests.
1.3.1Swedish legislation
The legal provisions regarding to anti-discrimination of women at work which are examined in this thesis are:
Declaration in the Article 16 of the Instrument of Government. This is a fundamental act on protection of citizens from the unfavourable treatment on ground of gender.
Equal Opportunities Act. This Act was enacted in 1979 and was replaced by the 1991 Act. It contains prohibitions against discrimination, active measures to be taken by the employer, and enforcement mechanisms and procedures.
The Parental leave Act also is a legal instrument pertaining to anti-discrimination of women at work. It regulates parental leave issue which is one of working conditions to ensure equality between the mother-employee and father-employee.
1.3.2Vietnamese legislation
Protection of women from discrimination at work in Vietnam is governed directly in ten articles in the Labor Code called ‘The Separate Provisions on Female Employees’. The Code was adopted in 1994 with some subsequent amendments. Implementation of these articles is guided in the Decree No. 23/CP of the Government and the Circular No. 03-LDTBXH/TT of the Ministry of Labour, Invalids and Social Welfare. These legal acts are the major law that the thesis analyzes.
The 2006 Law on Gender Equality is other important law source for protection of women from discrimination. This Law defines the concept of gender equality (Article 5) deals with equality between men and women in the labour area (Article 13). The provisions of the Law are also analyzed in the thesis.
To some extend, various provisions of the 1998 Ordinance of Civil Servants Ordinance of 1998 are also examined in this thesis.
1.4Method
In order to achieve the above-mentiond purpose as mentioned and find out some recommendations applicable for improvement of the Vietnamese Labour Law on anti-discrimination of women, the author uses different methods depending on the nature of each issue to be explored an analyzed. The following methods are used in the thesis.
The comparative and analytic study of legal provisions are the main methods used in this thesis. These methods help to find out the similarities and differences between two legal systems as Sweden and Vietnam.
Synthetic and evaluation method are used in the thesis for pointing out good points and weaknesses of the Swedish and Vietnamese law on protection of women from discrimination at work. They are also used to formulation some suggestions for improvement of Vienamese legislation governing this issue.
In addition, the thesis also uses historical and statistical method for and exploring development of law in Sweden and Vietnam governing protection of women from discrimination at work.
1.5Structure
The first part of this thesis focuses on introducing the subject-matter and purpose of the research. Methodology and scope limitation are discussed in this part to give more profound understanding the thesis approach.
The second part will deal with three matters. First, it discusses the concepts of equality, discrimination and anti-discrimination. These concepts are analyzed in context of the law of the two States and a some relating International Conventions. Thenext part discusses the development of Swedish laws on anti-discrimination of women at work. This development is divided in the two following periods, namely before and after 1995 when Sweden became a Member European Union. Last part focuses on the current provisions of Swedish law and Vietnamese law on the issue in comparative approach, and then identifies the good points and weakness of the two legal systems in regard of protection of women from discrimination at work.
The third part evaluates the good points and weaknesses of the Swedish laws with arguments as what lessons and experiences are appropriate for Vietnam. In this part, some recommendations are made to reform the Vietnamese legislation on anti-discrimination of women at work.
Finally, in the conclusion part, the author summarizes different points of view on the core issues of the thesis. Conclusions in this part are that the Swedish legislation on anti-discrimination of women at work has both the good points and weaknesses. All they are the experienced lessons for Vietnamese legislation on anti-discrimination of women at work for application or avoiding.
2.Comparison of Swedish and Vietnamese legislation on anti-discrimination of women at work
2.1Defining the concepts
2.1.1Introductory remark
Anti-discrimination at work ensures equality between men and women at the workplace in order to achieve economic equality between the sexes in employment generally. All participants in the labour relation tried to achieve equality and liquidate any discrimination between men and women in employment by way of legal regulations and state supervision. If working women are not discriminated against, they will gain equality both in the mind and in practice. They will gradually reject the social prejudices and the ingrained traditional ideas that the care of children and the family are women’s responsibility; or that women are not suited to social labour, etc. If working women have equality, men will share with them the responsibility of housework and child care. Moreover, they will be free join in any social activity and have full opportunities to affirm their ability. Further, once working women have equality where employment and income are concerned, they will not be mere dependents of others. Working women have the right to fully paid work so as to improve their needs and conditions as well as their family life.
Active anti-discrimination activities will bring everyone equality and justice in so it is necessary in any society. It will impact favourably on every area of society, and will, for example, balance the relations between employees and employers in employment and ensure equality between the sexes in the distribution of benefits.