Legal Regulations To Protect Female Workers: Hanoi University Faculty of Management and Tourism - O0o
Legal Regulations To Protect Female Workers: Hanoi University Faculty of Management and Tourism - O0o
Abstract
The issue of legal regulation to protect female workers has always been a concern by the
government. This research gives information about legal regulations to protect the female
worker. In particular, three aspects are mentioned, including the content of legal regulations for
female workers protection in Labor Code 2012, its differences compared with that of Labor Code
2019, and the legal regulation for female workers protection in Foreign Laws. The findings of
research indicate that though legal regulations for female workers are provided clearly, many
female workers do not know to apply it. Therefore, some particular cases including measures
have been given to help female workers. All in all, the paper draws the conclusion that each
individual should have knowledge of the law to protect themselves.
Contents
I. Introduction................................................................................................................................2
II. Legal regulation for women workers protection (Theories).................................................2
1. Labor Code 2012...................................................................................................................2
2. Labor Code 2019...................................................................................................................4
3. Comparison............................................................................................................................7
III. Current situations 8
Case 1: Sexual harassment in the workplace .............................................................................8
1.1.Legal scope............................................................................................................................8
1.1.1 Definition of sexual harassment...................................................................................8
1.1.2 Labor Code 2012...........................................................................................................8
1.1.3. Labor Code 2019..........................................................................................................8
1.2. Application:.........................................................................................................................9
Case 2: Pregnant employees can unilaterally terminate or postpone labor contracts...........9
2.1. Legal scope:.........................................................................................................................9
2.1.1. Unilateral termination of labour contract:................................................................9
2.1.2. Prior notice period for employers:..............................................................................9
2.1.3.Right of pregnant employees to unilaterally terminate or postpone labor contracts.........10
2.2. Application....................................................................................................................................10
2.2.1. The benefits for pregnant female worker when unilaterally terminating the legal contract
...........................................................................................................................................................10
IV. Foreign legal regulation for women workers protection:...............................................................11
V. Conclusion...........................................................................................................................................11
References................................................................................................................................................13
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I. Introduction
According to the Central Propaganda Department of the Communist Party of Vietnam, the
number of women of working age in Vietnam is 22.3 million people, accounting for 45.6% of
the labor force. However, the female labor force in Vietnam is facing many issues related to
discrimination about salary or compensation and sexual harassment. Therefore, the Vietnam
Government has amended and supplemented laws to protect female workers in particular Labor
Code 2019, which will take effect in 2021. The sad reality is that many women, especially
female workers, do not fully understand the labor code and do not know how to apply it to
protect themselves in the workplace. This research, based on Labor Code 2012, Labor Code
2019 and other secondary data, is aimed at raising awareness about legal regulations for female
workers protection including content of the legal regulation as well as cases for applying the
legal regulation.
II. Legal regulation for women workers protection (Theories)
1. Labor Code 2012:
Chapter X
SEPARATE PROVISIONS FOR FEMALE EMPLOYEES
Article 153. State policies toward female employees
1. To protect the female employees’ right to employment equality.
2. To encourage employers to create conditions for female employees to have regular
employment, and to extensively implement systems of flexible working hours, part-time work or
home-based work for female employees.
3. To introduce measures to create employment opportunities, improve working conditions, raise
vocational qualifications and healthcare, and increase material and spiritual welfare for female
employees in order to assist them in effectively bringing into play their vocational capacity and
harmoniously combining their working lives with family lives.
4. To formulate policies on tax reductions for employers using many female employees in
accordance with tax laws.
5. To develop various forms of training which are favorable for female employees to acquire
standby vocational skills suitable to their physical and physiological characteristics and their
motherhood function.
6. The State shall develop plans and measures to organize crèches and kindergartens in areas
with large numbers of female employees.
Article 154. Obligations of employers toward female employees
1. To ensure gender equality and implement measures to promote gender equality in recruitment,
employment, training, working time, rest time, wages and other policies.
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2. To consult female employees or their representatives when taking decisions on issues related
to the rights and interests of women.
3. To ensure sufficient bathrooms and appropriate toilets in the workplace.
4. To assist and support in building crèches and kindergartens, or cover part of childcare
expenses at crèches and kindergartens incurred by female employees.
Article 155. Protection of maternity for female employees
1. An employer may not mobilize female employees to work at night, work overtime or go on a
long working trip in the following cases:
a/ The employee is in her seventh month of pregnancy, or in her sixth month of pregnancy in
case of working in a mountainous, remote, distant, border or island area;
b/ The employee is nursing a child under 12 months of age.
2. A female employee who performs heavy work, upon reaching her seventh month of
pregnancy, is entitled to be transferred to a lighter work or have her daily working time reduced
by 1 hour while still receiving her full wage.
3. An employer may neither dismiss a female employee nor unilaterally terminate the labor
contract with a female employee for the reason of her marriage, pregnancy, maternity leave, or
that she is nursing a child under 12 months of age, except the case in which the employer is an
individual who dies, or is declared by a court to have lost his/her civil act capacity, or to be
missing or dead, or the employer is an institution that ceases operation.
4. Labor disciplinary measures may not apply to a female employee during the time of pregnancy
or maternity leave as provided by the law on social insurance, or nursing a child under 12 months
of age.
5. A female employee in her menstruation period is entitled to a 30-minute break in every
working day; a female employee nursing a child under 12 months of age is entitled to a 60-
minute break in every working day with full wage as stated in the labor contract.
Article 156. Right of pregnant employees to unilaterally terminate or postpone labor
contracts
In case a pregnant employee has a certificate of a competent health establishment which states
that continued work will adversely affect her pregnancy, she may unilaterally terminate the labor
contract or temporarily postpone the performance of the labor contract. The period for the female
employee to give advance notice to the employer depends on the period determined by the
competent health establishment.
Article 157. Maternity leave
1. A female employee is entitled to 6 months of prenatal and postnatal leave.
In case a female employee gives birth to twins or more babies, counting from the second child
upward, for each child the mother is entitled to 1 more month off.
Prenatal leave must not exceed 2 months.
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2. During maternity leave, a female employee is entitled to maternity policies provided by the
law on social insurance.
3. After the maternity leave period stipulated in Clause 1 of this Article, if a female employee
wishes, she may take additional leave without pay as agreed upon with the employer.
4. Before the expiration of her maternity leave stipulated in Clause 1 of this Article, a female
employee may return to work if she so wishes and the employer so agrees provided that she has a
certificate from a competent health establishment that early resumption of work will not
adversely affect her health and she has taken at least 4 months of maternity leave.
In this case, the female employee continues to receive the maternity allowance as provided by
the law on social insurance, in addition to the wage paid by the employer for her working days.
Article 158. Guarantee of employment for female employees after maternity leave
A female employee shall be guaranteed the old employment when she returns to work after
taking the maternity leave as provided in Clauses 1 and 3, Article 157 of this Code. In case the
old employment is no longer available, the employer shall arrange another employment for her
with a wage not lower than that paid to her before her maternity leave.
Article 159. Allowances for leave for caring a sick child, for pregnancy checks-up and for
applying contraceptive measures
When taking leaves for pregnancy check-up, miscarriage, abortion, dead or diseased fetus in
womb, for applying contraceptive measures, caring a sick child who is under 7 years of age or
for nursing an adopted child under 6 months of age, a female employee is entitled to social
insurance allowance in accordance with the law on social insurance.
Article 160. Prohibited work for female employees
1. Work that is harmful to child bearing and nursing functions as specified in the list of jobs
issued by the Ministry of Labor, War Invalids and Social Affairs in coordination with the
Ministry of Health.
2. Work that requires the body constantly immersed in water.
3. Regular underground work in mine.
2. Labor Code 2019
CHAPTER X
SEPARATE REGULATIONS FOR FEMALE EMPLOYEES AND GENDER EQUALITY
Article 135. Policy of the State
1. To ensure equal rights of female and male workers, take measures to ensure gender equality
and to prevent and combat sexual harassment at the workplace.
2. To encourage employers to create conditions for female and male workers to have jobs, to
widely apply the flexible schedule work regime, to work part-time, and to work from home.
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3. To take measures to create jobs, improve working conditions, improve professional
qualifications, take care of health, and enhance the physical and spiritual well-being of female
workers in order to help female workers promote Effective professional capacity, harmonious
combination of working life and family life.
4. The State shall adopt plans and measures to organize kindergartens in areas where there are
many laborers. To expand various types of training to facilitate female workers to have more
backup jobs and to suit the physical, physiological and maternal characteristics of women.
5. The Government shall detail this Article.
1. Ensure the implementation of gender equality and measures to promote gender equality in
recruitment, placement, employment arrangement, training, working time, rest time, wages and
other regimes.
2. To consult female workers or their representatives when deciding issues related to women's
rights.
3. Make sure there are enough suitable bathrooms and toilets at the workplace.
4. Helping and supporting the construction of kindergartens or a part of childcare expenses for
employees.
a) Being pregnant from the 7th month or from the 6th month if working in highland, remote,
border or island areas;
b) Being nurturing a child under 12 months old, unless otherwise agreed by the employee.
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4. A female employee, who is in her menstrual period, is entitled to a 30-minute break a day,
while nursing a child under 12 months old, is entitled to 60 minutes a day off during her work
time. Break time is still entitled to the full salary under the labor contract.
Article 138. The right to unilaterally terminate or suspend the labor contract of the
pregnant female employee
1. The pregnant female employee if certified by a competent medical facility that continuing to
work will adversely affect the fetus, has the right to unilaterally terminate the labor contract or
suspend the performance of the contract.
In case of unilaterally terminating the labor contract or postponing the performance of the labor
contract, the employer must be notified with the certification of the competent medical facility to
continue working that will adversely affect the fetus.
1. A female employee is entitled to 6 months maternity leave before and after giving birth; The
prenatal period of time must not exceed 02 months.
In case a female employee gives birth to twins or more, counting from the second child onwards,
the mother is entitled to 01 additional month off for each child.
2. During maternity leave, a female employee is entitled to the maternity regime in accordance
with the law on social insurance.
3. At the end of the maternity leave period specified in Clause 1 of this Article, the female
employee can take an additional period of unpaid leave after reaching an agreement with the
employer.
4. Before the end of the maternity leave period specified in Clause 1 of this Article, the female
employee can return to work after taking at least 4 months of leave but the employee must give
notice to the employer. Beside, the female employee has a certification from a competent
medical facility that early employment is not harmful to the employee's health. In this case, in
addition to the salary for working days paid by the employer, the female employee is still entitled
to a maternity allowance in accordance with the law on social insurance.
5. Male employees whose wife is pregnant or gives birth, employees adopting children under 06
months of age, female employees who are surrogate mothers and workers who are mothers
asking for surrogacy are entitled to take leave to enjoy the maternity regime in accordance with
the law on social insurance.
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Article 140. Job security for employees on maternity leave
Employees are guaranteed their old jobs when they return to work after their time off according
to the provisions of Clauses 1, 3 and 5, Article 139 of this Code without having their wages and
benefits reduced compared to before maternity leave; In case the old job no longer exists, the
employer must arrange another job for them with a salary not lower than the salary level before
maternity leave
Article 141. Allowances for the time of taking care of sick children, maternity and
contraceptive measures
Time off work when taking care of sick child under 07 years old, prenatal check-up, miscarriage,
curettage, abortion, stillbirth, pathological abortion, implementation of contraceptive measures,
sterilization, employees are entitled to subsidies in accordance with the law on social insurance.
Article 142. Occupation and work adversely affect reproductive functions and child rearing
1. The Minister of Labor, War Invalids and Social Affairs shall issue a list of occupations and
jobs that adversely affect reproductive and child-rearing functions.
2. The employer must provide sufficient information on the dangerous nature, risks and
requirements of the job for the employee to choose and must ensure occupational safety and
sanitation conditions for employees when using them to do work on the list specified in Clause 1
of this Article.
3. Comparison
Both 2 Labor Codes specify the rights and obligations of female employees as well as the rights
and obligations of employers. However, the 2019 Labor Code has added and detailed more than
the 2012 Labor Code in a number of laws. For example, in Article 137 / LC 2019, a female
employee does a heavy, hazardous or dangerous job or does a job that adversely affects
reproductive function and child bearing while pregnant and has reported let the employer know,
the employer can switch to lighter, safer work or reduce 1 hour of daily work without any
reduction in wages, rights and benefits until the end of the period. time to raise children under 12
month9s old.
In addition, in Article 138 (2019 LC), the right to unilaterally terminate or suspend the labor
contract of the pregnant female employee has added the following provisions: In case of
unilateral termination of the labor contract or the suspension of the contract performance The
employee must notify the employer with the certification of the competent medical facility that
the continuation of the work will adversely affect the fetus. In case of postponement of
performance of labor contracts, the time of suspension shall be agreed by the employee with the
employer but must be at least equal to the time specified by the competent medical facility. In
case a competent medical facility has not been instructed about the temporary leave period, the
two parties shall agree on the duration of the labor contract suspension. After maternity leave,
female employees are still guaranteed the same salary, rights and benefits as before pregnancy
(article 140 / 2019 LC)
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Last but not least, the government has also emphasized the issue of gender equality in this
revision by introducing additional provisions on maternity leave for male workers whose wife is
pregnant or gives birth (Article 139, LC 2019). This helps to reduce the burden on women and
shows the state's concern for female workers and the country's future generations.
After studying and pointing out the differences between the two laws, it can be seen that the
State and the Government are gradually paying more attention to issues related to female
workers to help protect their rights and interests. By revising and detailing relevant issues to help
female workers and female employers easily follow and execute.
III. Current situations
Case 1: Sexual harassment in the workplace
Ngoc Han, living in District 12, Ho Chi Minh City immediately got a job at a technology
company, with a good income right after graduating more than a year ago. Han told, in
communication, male colleagues often joke like "you look so attractive, so sexy!" or comment on
body measurements, what size clothes her wearing, ... of female staff, especially young women
workers. Moreover, a colleague touched her like passing Han and squeezing her shoulder to ask
her if she was tired when exchanging, touching her body. Someone even said other "offensive"
words to her. Can that be considered sexual harassment? Can such acts be punished by law?
1.1. Legal scope
1.1.1 Definition of sexual harassment
Currently, in the Labor Code 2012, sexual harassment is only indirectly regulated in some terms,
and this is only one of the bases for the company to unilaterally terminate the labor contract. And
the Labor Code 2019, there is no specific provision on acts that are considered sexual harassment
at the workplace. The draft Decree prescribes policies for female employees and ensures gender
equality explained in Article 12 as follows: Sexual harassment in the workplace is the sexual act
of any person towards another person in the workplace that is not expected or accepted by that
person, including sexual actions or sexual verbal form.
1.1.2 Labor Code 2012
According to Article 8 of the Labor Code, prohibited acts including "employee mistreatment,
sexual harassment at the workplace". The Labor Code 2012 also stipulates the right to
unilaterally terminate the labor contract of the employee (Point c, Clause 1, Article 37) “The
employee works under fixed-term labor contracts, labor contracts according to seasonal or under
a certain job with a term of fewer than 12 months, having the right to unilaterally terminate the
labor contract ahead of schedule in the following cases suffering from mistreatment, sexual
harassment, forced labor ” but the employee must inform to employer 3 days before.
1.1.3. Labor Code 2019
The Labor Code 2019 allows sexually harassed workers to take immediate leave (unilaterally
terminate employment contracts) without prior notice to employers. Also, The Labor Code 2019
allows the company has the right to fire employees who have sexual harassment behavior. The
form of disciplinary action for dismissal is applied by the employer in the case: "... sexual
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harassment at the workplace is specified in the labor regulations".Therefore, if detecting that
employees have sexual harassment behavior in the workplace, the company has the right to fire
them. However, it should be noted that in the company's labor regulations, there must be a clear
provision on prevention of sexual harassment at the workplace; order and procedures for
handling sexual harassment at the workplace (Clause 2dd Article 118 of the Labor Code 2019)
1.2. Application
In this case, Han was physically touched her body when she did not want to and received rude
comments about her body. Han in this case can be concluded that she is being sexually harassed
by male employees at her workplace. Therefore, according to the Labor Code 2012, Ngoc Han
can unilaterally terminate the labor contract with the company, but her have to inform her
employer 3 days before, while under the 2019 Labor Code, which takes effect in 2021, Ngoc
Han can unilaterally terminate the employment contract with the company without prior notice.
Moreover, the company has the right to fire an employee who has sexually harassed the
workplace.
Case 2: Pregnant employees can unilaterally terminate or postpone labor contracts
N.X.Hoa. became pregnant for 6 months. Hoa went to the district hospital and was told that it
was not healthy to continue working again. Therefore, she wanted to proactively terminate the
Labor Contract with the garment company, in which she was working. Meanwhile, according to
the signed contract, she still had 1 year before her contract expiration. In order not to violate the
labor law, does she want to know when she can notify the company to terminate her contract?
Benefits can be received when terminated in accordance with the law.
2.1. Legal scope
2.1.1. Unilateral termination of labour contract
According to Article 37/LC 2012, equivalent to Article 35/ LC 2019 stipulates that employees
working under fixed-term labor contracts, seasonal labor contracts or a certain job with a term of
less than 12 months have the right to unilaterally terminate the labor contract without prior
notice; in which indicates detailedly in Article 37.1.f/LC2012: “A female employee who is
pregnant and must take leave as prescribed by a competent health establishment;” and Article
35.2.dd/ LC2019: “ is pregnant and has to stop working in accordance with clause 1 Article 13 of
this Labor Code.”
2.1.2 Prior notice period for employers
Clause 2, Article 37 of the 2012 Code, also stipulates that when unilaterally terminate the labor
contract, the employee must notify the employer in advance:
"a/ At least 3 working days in advance, in the case specified at Point a, b, c or g, Clause 1 of this
Article;
b/ At least 30 days in advance for a definite-term labor contract; at least 3 working days for a
seasonal or work-specific labor or a specific job of under 12 months in the case specified at Point
d or e, Clause 1 of this Article;
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c/ In the case specified at Point f, Clause 1 of this Article, a prior notice should be given to the
employer in accordance with Article 156 of this Code.."
This laws are adjusted at Article 35.1/LC 2019:
“a) at least 45 days in case of an indefinite-term employment contract;
b) at least 30days in case of an employment contract with a fixed term of 12-36 months;
c) at least 03 working days in case of employment contract with a fixed term of under 12 months;
d) the notice period in certain fields and jobs shalle specified by the government.”
2.1.3. Right of pregnant employees to unilaterally terminate or postpone labor
contracts
Article 156/LC 2012 pointed out Right of pregnant employees to unilaterally terminate or
postpone labor contracts: “In case a pregnant employee has a certificate of a competent health
establishment which states that continued work will adversely affect her pregnancy, she may
unilaterally terminate the labor contract or temporarily postpone the performance of the labor
contract. The period for the female employee to give advance notice to the employer depends on
the period determined by the competent health establishment.”. LC 2019 specified more at
Article 138, detailing that: The right of pregnant female employees to unilaterally terminate or
suspend their employment contracts:
“1. Where a female employee is pregnant and obtains a confirmation from a competent health
facility which states that if she continues to work, it may adversely affect her pregnancy, she
shall have the right to unilaterally terminate or suspend the employment contract In case of
unilateral termination or suspension of the employment contract, a notification enclosed with the
aforementioned confirmation from the health facility shall be submitted to the employer.
2. In case of suspension of the employment contract, the suspension period shall be agreed by the
employer and the employee and must not be shorter than the period specified by the health
facility. If the rest period is not specified by the health facility, both parties shall negotiate the
suspension period.”
Totally, Labour Code 2019 has been many new adjustments, which are more specific, flexible
and applied more favorably than similar provisions in the 2012 one.
2.2. Application
Based on the above legal bases, together with the provided information, it can be seen that Hoa's
labor contract is a fixed-term contract. In addition, Hoa is a pregnant woman who has to take
leave as directed by a competent medical facility, so Hoa belongs to the case of Point e, Clause
1, Article 37/LC 2012 or Article 35.2.dd/LC 2019 mentioned above. Therefore, the reason for
Hoa’s leave is legal. However, in order to gain the benefits of unilaterally terminating the
contract term, Hoa needs to comply with the prior notice period prescribed by law. That Article
156/ LC 2012 or Article 138/LC 2019 above has specified the advance notice period depending
on the period indicated by the medical examination facility. Thus, if the medical facility has
explicitly asked to leave work immediately to protect the health of mother and fetus, Hoa should
immediately notify the company of her situation. When giving notice, Hoa should bring her own
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medical examination and treatment form and doctor's appointment as a legal basis to unilaterally
terminate the contract.
2.2.1. The benefits for pregnant female worker when unilaterally terminating the
legal contract
When the employee unilaterally terminates the labor contract according to the above reasons and
at the same time notifies the employer in advance according to the legal time limit, the employee
is entitled to salary during the working time as agreed in the contract and severance allowance in
accordance with the law.
IV. Foreign legal regulation for women workers protection
To protect the privileges of female workers in the workplace, numerous countries have
constructed legislation to protect them recently. Vietnam is one of the countries that enact the
female labor rights into practice. The substance of the law is the same among different countries.
However, the specific content is not exactly the same. The purpose of this section is to point out
the similarities as well as the discrepancies of Vietnam’s provisions for female employees and
gender equality with some other countries in the world, Belgium and Britain to be more specific.
In general, both Vietnam, Belgium and Britain have created clauses to guarantee the equality
between gender, nevertheless, British does not have specific laws about equality at the workplace
but general ones in Equality Act, employment fairness is a part of this Act. In all three countries,
necessary actions are enforced to consolidate the evenness of male and female workers, to
prevent unequal pay and to protect sexual harassment in workplace. Vietnamese National
Assembly hopes to create an equal working environment for female workers such as creating
employment opportunities, improving working conditions, developing occupation skills, caring
for health, recruiting, job assignment, working hours, rest periods, salaries, strengthening
physical and mental welfare . Belgium has the same will but still there are some differences.
Female labor is protected in these fields: conditions to enter desired job, career development,
relationship with colleagues, working conditions, caring for health, welfare and felicity, contract
termination procedures, severance pay and rights to reach the complementary social security
schemes. Unfortunately, Britain does not have a detailed law for gender equality in the
workplace. They just state that they shall ban unfair treatment and help to reach equality in the
workplace and other aspects in society.
Three countries have policies for maternity leave but the difference in rest time is clearly seen. In
Vietnam, a female employee has a total of 6 months of prenatal and postnatal leave, the prenatal
leave period must not surpass 2 months. In case of multiple birth, the leave will be increased by 1
month for each child. Belgium allows female workers to have 6 weeks of prenatal leave, she will
be able to have 8 weeks of maternity leave in case of multiple birth. Pregnant workers have the
privilege to turn a part of prenatal leave with a maximum number of five or seven weeks into
postanal leave. Meanwhile, British female employees are entitled to obtain 6 months of ordinary
maternity leave and 6 months of additional maternity leave. They also are given at least 2 weeks
of postnatal leave. Both two European countries and Vietnam provide paternity leave for fathers
to help female workers take care of the newborn child. In Belgium, every father has a total of 10
paternity leave in the first four months subsequent to the child’s birth, meanwhile in Britain, the
paternity leave for fathers lasts for one to two weeks. However, in Vietnam, there is no specific
regulation about the time of paternity leave for male employees. The VietNam Government also
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provides more Articles to protect pregnant female employees. Maternity protection, job
guarantee for employees after maternity and lists of dangerous jobs for child-bearing and
parenting are typical examples.
V. Conclusion
In summary, legal regulations for female worker protection are specified in both Labor Code
2012 and Labor Code 2019, especially in section X of each. However, in the comparison with
the previous version, law No.45/2019/QH14 has made significant adjustments as well as
supplemented the necessary laws to match with the current working scene, typically with clearer
provisions on the law of sexual harassment, labor discrimination. This has opened up many job
opportunities for female employees and partly ensured an increase in respect and equality among
the genders in Vietnam's potential labor market. Moreover, after analyzing some actual cases
based on both laws, we discover and compare the female worker protection regulations given by
Belgium and Britian to compare similar and different article points among the three countries.
Although each country has a separate strict law due to regional differences and economic
development, they meet the same aim at fostering work conditions for all genders, which
includes women labor. The assessment and comparisons in this article are based on verified laws,
which are the foundation of reliable information.
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