The Comprehensive and Progressive Agreement for the Trans-Pacific Partnership (“CPTPP”) was signed by 11 member states, namely Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam in March 2018. The CPTPP took effect in Vietnam on 14 January 2019.
One of Vietnam’s outstanding commitments under the CPTPP is the creation of new opportunities for employees. As a participant in the CPTPP, Vietnam agreed to follow the commitments covered in Chapter 19 regarding labor. Particularly, Vietnam as well as other parties of the CPTPP must adopt and maintain in its statutes and regulations, and practices thereunder, the following rights as enshrined in the International Labor Organization (“ILO”) issued in 1998:
- freedom of association and the effective recognition of the right to collective bargaining;
- the elimination of all forms of forced or compulsory labor;
- the effective abolition of child labor, a prohibition on the worst forms of child labor and other labor protections for children and minors; and
- the elimination of discrimination in respect of employment and occupations.
On the State management side, the Vietnamese government issued Decision 121/QD-TTg dated 24 January 2019 approving the plan to implement the CPTPP (“Decision 121”). Accordingly, the legal system will be improved to bring labor relations and labor standards into conformity with international standards, commitments and conventions. According to Decision 121, Vietnam will implement guidelines and policies to trade-unions and employee organizations at the grassroots level in enterprises across Vietnam from 2019 to 2020, as follows:
- Complete the legislative system which governs labor relationships, labor standards compliance with international standards, and commitments and conventions entered into by Vietnam.
- Coordinate with the Vietnam General Confederation of Labor (“VGCL”) and trade-unions to propose specific policies and methods so that the VGCL may be reinforced, increase its prominence and achieve operational efficiency.
- Increase the effective management and operation of organizations representing employees at enterprises to:
- protect the employees’ legal rights and legitimate interests;
- facilitate enterprises in running their businesses stably and successfully; and
- operate smoothly under Vietnam law, be compliant with the rules of the ILO, operate without political purposes as well as maintain social and political stability
- Strengthen the organization of State bodies which has as its main functions the management of establishment and operation of organizations representing employees in enterprises.
In particular, the Labor Code 2012 will be modified in accordance with the roadmap stipulated in the CPTPP. So far, the fifth-amendment draft of the Labor Code 2012 has supplemented the right to establish an organization representing employees in the labor relationship and detail the functioning of the organization representing employees. This indicates that the Vietnamese government is trying to complete local regulations on work conditions to ensure that employees and employers enjoy their fair share of economic gains.
The Thai Personal Data Protection Act (“PDPA”) is the first consolidated law in Thailand concerning personal data protection. It was published in the Royal Gazette on 27 May 2019, and will become effective one year after its publication, i.e. 27 May 2020, allowing businesses to familiarize themselves with the new PDPA requirements and ensure appropriate data protection measures are put in place before the deadline. The scope of the PDPA covers the collection, use/processing, disclosure, and transfer of data pertaining to individuals, which includes data of employees.
In principle, prior consent shall be obtained from any individual for lawful collection of his/her data, but this principle contains a number of exceptions. Pursuant to Section 26 (6), the employer may collect the employees’ personal data without their consent provided that such data is collected for purpose of compliance with applicable laws and regulations (e.g. labour protection, social security registration, tax return). The employer shall also be entitled to collect the employees’ data without their consent if that is necessary for the performance of a contract to which the employee is a party (provided that the use of the information is only for the purpose of performing obligations under the contract) (Section 26 (3)). Data collection could prove to be necessary to fulfil certain obligations stipulated in an employment contract for instance. However, to this date, further clarification from the Personal Data Protection Committee is awaited as to the extent of these exemptions to obtain an individual’s consent.
In addition, an employee’s sensitive data (e.g. ethnicity, political opinions, criminal record, health records, disability, labour union) may be collected without obtaining his/her prior consent provided that it is necessary for the employer or the employee to comply with applicable laws related to labour protection, social security, national health security scheme and benefits of medical treatment (Section 26 (5) (c)). It is further specified that appropriate measures shall be put in place to ensure protection of the employee’s fundamental rights in situations where sensitive data are processed.
Any individual whose data is processed benefits from a number of rights over their data. Hence, an employer must implement appropriate technical measures and organizational measures to ensure capacity to meet an employee’s request to exercise his/her rights, as the case may be, with undue delay. In brief, employees have the right to (i) request access to and copy of their data, (ii) data portability where technically possible, (iii) object to the use of their data or request a suspension of such use in specific situations and (iv) ask for rectification in cases of inaccuracy of their data held by the employer. Employees shall also be entitled to request the employer to delete all data relating to them under certain circumstances. In addition, the employer must ensure that it deletes the employees’ personal data after the expiry of the legal retention period for storage of the same, or when the data is no longer necessary for the purpose for which it was used initially, or as per an employee’s request to exercise his or her right to be forgotten (under certain circumstances).
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