한국법제연구원 KLRI

Global trade liberalization has led to freer flows of labor worldwide, created new opportunities for human resource development of many countries, including a favorable labor movement between countries to meet their skills shortages, increase incomes, and improve new working experiences for their workers. For the Association of South-East Asian Nations (ASEAN) Member States, the year of 2015 marked a milestone when the ASEAN Economic Community (AEC) was established. It is suggested that Vietnam can reap huge benefits from integration into the AEC with golden-age population and booming economic growth. 

 

Vietnam has long formulated development strategy on labor export with a view to address unemployment rate and advance skills of its citizens. The number of Vietnamese guest workers in 2017 was over 134,700, exceeding the target by 28.3%, including a growing proportion of female workers.  It is estimated that 540,000 Vietnamese guest workers are working overseas remitting more than 3 billion U.S. dollars annually.  Taiwan, Japan, South Korea, and Malaysia, among others, are major countries of destination for Vietnamese guest workers.  Between 1992 and 2010, the Republic of Korea (hereinafter referred to as Korea) has received more than 120,000 Vietnamese workers, the majority of whom working in manufacturing sectors, and some others in agriculture, fishing, construction, etc.  In 2017, more than 4,300 guest workers from Vietnam travelled to Korea for employment, and 10% of them were female workers. 

 

In general, the number of Vietnamese women migrating has increased steadily over the last decade, from less than 20% in the mid-1990s to 30-35% of the total outgoing labor force since 2010.  It could signify a positive, albeit slow, towards a more gender-balanced shift in Vietnam’s labor export industry. 

 

However, it should be noted that Vietnamese guest workers, particularly women, are still faced with various issues in all migratory stages in countries of origin, transit, and destination. Gender-related discriminatory practices, such as forced marriage, domestic violence, may drive women to leave their country of origin. Exorbitant informal fees and limited access to information on migration are two among numerous difficulties faced by guest workers. Women’s situation is worsened given their financial dependency and vulnerability in Vietnam’s social construction. In countries of destination, Vietnamese women are more likely to be employed for factory work, domestic work and caregiving, in which gender-based discrimination and stereotypes are pervasive. Such jobs are accorded low status and underpaid and especially are not under labor protection in certain countries and territories. Further, women often face violations of their right to maternal protection during their time working abroad under contract. 

 

Vietnam has demonstrated a strong commitment to promoting gender equality in all aspects. This is evidenced in Vietnam’s ratifications of various human rights treaties, including the Convention on the Elimination of all Forms of Discrimination Against Women, International Labor Organization (ILO) Equal Remuneration Convention and Discrimination (Employment and Occupation) Convention. In 2006, the National Assembly of Vietnam adopted the Law on Gender Equality  and the 2006 Law on Vietnamese Guest Workers No.72 (hereinafter the Law No. 72), which governs activities of sending Vietnamese workers abroad under contract as well as rights and obligationsof those guest workers.  One of the fundamental statutory principles on gender equality is to ensure the mainstreaming of gender equality issue in law formulation and implementation. 

 

However, since its implementation, the Law No.72 and related by-laws have shown inadequacies in addressing quick changing practical issues on labor export. There is a lack of focus on female migrant workers in Vietnam’s legal documents. They may include negative family perception towards females working abroad, discrimination based on gender during the recruitment process and in workplaces, psychological, and physical abuse by recruiters and employers, labor exploitation, pregnancy discrimination as well as difficulties in re-integration and access to public services and employment when they return home.  Indeed, the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 2015 stated in its recommendation to Vietnamese government that female migrant workers are at a high risk of exploitation, often victimized by fraudulent labor export service enterprises (hereinafter referred to as service enterprises) and brokers.

 

Therefore, it is in interest of this research paper to revise overarching legal framework for labor export of Vietnam, including but not limited to the Law No.72, with a view to ensure gender sensitivity and responsiveness to the specific needs of Vietnamese female migrant workers.