KRAM
DATED MARCH 13, 1997
ON
THE LABOR LAW
We,
His Majesty Norodom Sihanouk,
King of Cambodia,
promulgate;
the Labor Code adopted by the National
Assembly on January 10, 1997 during the 7th Session of the First Legislature,
the text of which is as follows:
CHAPTER
I
GENERAL
PROVISIONS
Section
1
Scope
of application
Different Categories of Workers in the
Kingdom of Cambodia
Article 1:
This law governs relations between employers
and workers resulting from employment contracts to be performed within the
territory of the Kingdom of Cambodia, regardless of where the contract was made
and what the nationality and residences of the contracted parties are.
This law applies to every enterprise or
establishment of industry, mining, commerce, crafts, agriculture, services,
land or water transportation, whether public, semi-public or private,
non-religious or religious; whether they are of professional education or
charitable characteristic as well as the liberal profession of associations or
groups of any nature whatsoever.
This law shall also apply to every personnel
member who is not governed by the Common Statutes for Civil Servants or by the
Diplomatic Statutes as well as officials in the public service who are
temporarily appointed.
This law shall not apply to:
a) Judges of the
Judiciary.
b) persons
appointed to a permanent post in the public service.
c) personnel of
the Police, the Army, the Military Police, who are governed by a separate
statute.
d) personnel
serving in the air and maritime transportation, who are governed by a special
legislation. These workers are entitled to apply the provisions on freedom of
union under this law.
e) domestics or
household servants, unless otherwise expressly specified under this law. These
domestics or household servants are entitled to apply the provisions on freedom
of union under this law.
Article 2:
All natural persons or legal entities, public
or private, are considered to be employers who constitute an enterprise, in the
sense of this law, provided that they employ one or more workers, even
discontinuously.
Every enterprise may consist of several
establishments, each employing a group of people working together in a defined
place such as in factory, workshop, work site, etc., under the supervision and
direction of the employer.
A given establishment shall be always under
the auspices of an enterprise. The establishment may employ just one person. If
this establishment is unique and independent, it is both considered as an
enterprise and an establishment.
Article 3:
"Workers", in the sense of this
law, are every person of all sex and nationality, who has signed an employment
contract in return for remuneration, under the direction and management of
another person, whether that person is a natural person or legal entity, public
or private. To clearly determine the characteristics of a worker, one shall not
take into account of neither the jurisdictional status of the employer nor that
of the worker, as well as the amount of remuneration.
Article 4:
"Domestics or household servants"
are those workers who are engaged to take care of the homeowner or of the
owner’s property in return for remuneration.
Article 5:
"Employees or helpers" are those
who are contracted to assist any person in return for remuneration, but who do
not perform manual labor fully or who do so incidentally.
Article 6:
"Laborers" are those workers who
are not household servants or employees, namely those who perform mostly manual
labor in return for remuneration, under the direction of the employer or his
representative.
The status of laborer is independent of the
method of remuneration; it is determined exclusively by the nature of the work.
Article 7:
"Artisans" are persons, who
practice a manual trade personally on their own account, working at home or
outside, whether or not they use the motive force of automatic machines,
whether or not they have a shop with a signboard, who primarily sell the
products of their own work carried out either alone or with the help of their
spouse or family members who work without pay, or with the help of workers or
apprentices, but the entire workshop is solely under the direction of their
own.
The number of non-family workers, who
regularly work for an artisan, cannot exceed seven; if this number is exceeded,
the employer loses the status of artisan.
Article 8:
"Apprentices" are those who have
entered into an apprenticeship contract with an employer or artisan who has
contracted to teach or use someone to teach the apprentice his occupation; and
in return, the apprentice has to work for the employer according to the
conditions and term of the contract.
Article 9:
In accordance with the stability of
employment, it is distinguished:
Regular workers are those who regularly
perform a job on a permanent basis.
Casual workers are those who are contracted
to:
Article 10:
Casual workers are subject to the same rules
and obligations and enjoy the same rights as regular workers, except for the
clauses stipulated separately.
Article 11:
In accordance with the method of
remuneration, workers are classified as follows:
Section 2
Non-discrimination
Except for the provisions fully expressing
under this law, or in any other legislative text or regulation protecting women
and children, as well as provisions relating to the entry and stay of
foreigners, no employer shall consider on account of:
To be the invocation in order to make a
decision on:
Distinctions, rejections, or acceptances
based on qualifications required for a specific job shall not be considered as
discrimination.
Section
3
Public
order
Article 13:
The provisions of this law are of the nature
of public order, excepting derogations provided expressly. Consequently, all
rules resulted from a unilateral decision, a contract or a convention that do
not comply with the provisions of this law or any legal text for its
enforcement, are null and void.
Except for the provisions of this law that
cannot be derogated in any way, the nature of public order of this law is not
obstructive to the granting of benefits or the rights superior to the benefits
and the rights defined in this law, granted workers by a unilateral decision of
an employer or a group of employers, by an employment contract, by a collective
convention or agreement, or by an arbitral decision.
Section
4
Publicity
The employer must keep at least one copy of
the labor law at the disposal of his workers and, in particular, of the
workers' representatives in every enterprise or establishment set forth in
Article 1 of this law.
Section
5
Forced
labor
Forced or compulsory labor is absolutely
forbidden in conformity with the International Convention No. 29 on the forced
or compulsory labor, adopted on June 28, 1930 by the International Labor
Organization and ratified by the Kingdom of Cambodia on February 24, 1969.
This article applies to everyone, including
domestics or household servants and all workers in agricultural enterprises or
businesses.
Hiring of people for work to pay off debts is
forbidden.
CHAPTER II
ENTERPRISES - ESTABLISHMENTS
Section
1
Declaration
of the opening and closing of the enterprise
All employers to whom this labor law is
applied, shall make a declaration to the Ministry in Charge of Labor when
opening an enterprise or establishment. This declaration is called a
declaration of the opening of the enterprise or establishment, that must be
made in writing and be submitted to the Ministry in Charge of Labor before the
actual opening of the enterprise or establishment.
Employers who employ fewer than eight workers
on a permanent basis and who do not use machinery, shall make and submit this
declaration to the Ministry in Charge of Labor within thirty days following the
actual opening of the enterprise or establishment.
Article 18:
For the closing of the enterprise, employers
shall also make a declaration to the Ministry in Charge of Labor within thirty
days following the closing of the enterprise.
Article 19:
A Prakas (ministerial order) of the Ministry
in Charge of Labor shall define the formality and procedure of the declarations
to follow in each case.
Every employer shall establish and neatly
keep a register of an establishment that was numbered and initialed by the
Labor Inspector. The model of the register shall be set by a Prakas of the
Ministry in Charge of Labor.
Section
2
Declaration
on movement of personnel
Every employer must make the declaration to
the Ministry in Charge of Labor each time when hiring or dismissing a worker.
This declaration must be made in writing
within fifteen days at the latest after the date of hiring or dismissal.
This period is extended to thirty days for
agricultural enterprises.
The declaration of hiring and dismissal is
not applied to:
Section
3
Internal
regulations of the enterprise
Article 22:
Every employer of an enterprise or
establishment, set out in Article
17 above, who employs at least eight
workers shall always establish an internal regulation of the enterprise.
Article 23:
Internal regulations adapt the general
provisions of this law in accordance with the type of enterprise or
establishment and the collective agreements that are relevant to the sector of
activity of the aforementioned enterprise or establishment, such as provisions
relating to the condition of hiring, calculation and payment of wages and
perquisites, benefits in kind, working hours, breaks and holidays, notice
periods, health and safety measures for workers, obligations of workers and
sanctions that can be imposed on workers.
The internal regulations must be established
by the manager of enterprise after consultation with workers' representatives,
within three months following the opening of the enterprise, or within three
months after the promulgation of this law if the enterprise already exists.
Before coming into effect, the internal
regulations shall be [visaed] by the Labor Inspector. This visa shall be issued
within a period of sixty days.
Article 25:
The articles of internal regulations that
suppress or limit the rights of workers, set forth in laws and regulations in
effect or in conventions or collective agreements applicable to the
establishment, are null and void.
The Labor Inspector shall require the
inclusion of enforceable provisions in virtue of laws and regulations in
effect.
Article 26:
An employer can not impose disciplinary
action against a worker for any misconduct of which the employer or one of his
representatives has been aware for over fifteen days.
The employer shall be considered to renounce
his right to dismiss a worker for serious misconduct if this action is not
taken within a period of seven days from the date on which he has learned about
the serious misconduct in question.
Article 27:
Any disciplinary sanction must be
proportional to the seriousness of the misconduct. The Labor Inspector is
empowered to control this proportionality.
The employer shall not impose fines or double
sanctions for the same misconduct. These fines mean any measure that leads to a
reduction of the remuneration being normally due for the performance of work
provided.
The internal regulations must be diffused and
affixed to a suitable place that is easily accessible, on the premises where
work is carried out and on the door of the premises where workers are hired.
These internal regulations shall constantly
be kept in a good state of legibility.
Article 30:
All modifications to the internal regulations
must be conformable to the provisions governing the enterprise or
establishment.
Article 31:
In enterprises or establishments, employing
less than eight workers, where there are no internal regulations, the employer
may pronounce, according to the seriousness of the misconduct of the workers
concerned, a warning, a reprimand, a suspension of work without pay for not
more than six days or a dismissal with or without a prior notice.
Section
4
Employment
card
Article 32:
Every person of Cambodian nationality working
as a worker for any employer is required to possess an employment card.
No one can keep a worker in his service who
does not comply with the provision of the above paragraph.
Article 33:
The possession of an employment card is
optional for seasonal farm workers.
The employment card is for the purpose of
identifying the holder, the nature of work for which he has contracted, the
duration of contract, the agreed wages and the method of payment, as well as
the successive contracts.
It is forbidden to use a worker's employment
card for purposes other than those for which it is created.
When the worker quits working for the
employer, that employer shall not write any appreciation on the employment
card.
Article 35:
The employment card is drawn up and issued by
the Labor Inspectors at the request of the worker who presents an identity card
issued by the competent authorities and a certificate of employment issued by
his employer.
Article 36:
The issuance of employment card is incurred
in a fee that shall be collected and given to the national budget. The fee rate
and the method of collection are to be set by a joint Prakas (ministerial
order) of the Ministry of Finance and the Ministry in Charge of Labor.
The hiring and dismissal of a worker, his
wage and wage increase shall be recorded in his employment card.
The above record made by the employer must be
presented, within seven whole days following the date of entry and departure of
the worker, for the visa of the Labor Inspector.
Article 38:
The loss of employment card must be declared
to the Labor Inspector's Office. A duplicate shall be issued under the same
conditions as those laid for the issuance of employment card.
Section
5
Payroll
ledger
Every employer of an enterprise or
establishment covered by Article
17 above shall constantly keep a
payroll ledger whose format shall be set by a Prakas (ministerial order) of the
Ministry in Charge of Labor.
Before being used, all the pages of the
payroll ledger must be numbered and initialed by the Labor Inspector.
The payroll ledger must be kept in the Bureau
of Cashier or Head Office of each enterprise so that it is simply available
immediately for inspections. The employer shall keep the payroll ledger for
three years after it has been closed.
The Labor Inspector may require to see the
payroll ledger at any time.
Article 40:
The payroll ledger shall record:
a) information
about each worker employed by the enterprise.
b) all indications
concerning the work performed, wage and holidays.
Article 41:
Any enterprises that wish to make the payroll
ledger in a different way but contains the same type of information and the
same method of review, may apply to the Labor Inspector's Office.
Section
6
Company
store
The "company store" is defined as
any establishment where the employer directly or indirectly sells his workers
or their families foodstuffs and merchandise of any kind, for their personal
needs.
Company stores are authorized under the four
conditions as follows:
1. The workers are
not obliged to shop just there.
2. The employer or
his attendant is not allowed to make a profit from the sale of the merchandise.
3. The accounting
of each company store is to be entirely distinctive of that of the enterprise.
4. The price of
items on sale is to be displayed visibly.
Article 43:
The opening of a company store is determined
by a Prakas (ministerial order) of the Ministry in Charge of Labor.
The Labor Inspector monitors the operation of
company stores whose management is also shared by the elected representatives
of the concerned workers. The Labor Inspector has the authority to order a
temporary shutdown of a company store until a final decision is made by the
Ministry in Charge of Labor.
Section
7
Guarantee
The employer cannot subject the signing or
the maintaining of employment contract to a cash guarantee or bond of any form.
Section
8
Characteristics
of labor contractor
Article 45:
The labor contractor is a sub-contractor who
contracts with an entrepreneur and who himself recruits the necessary work
force or workmen for the execution of certain work or the provision of certain
services for an all-inclusive price.
Such a contract must be in writing.
The exploitation or underestimation of
workmen by the labor contractor or sub-contractor is forbidden.
Article 47:
The labor contractor is required to observe
the provisions of this law in the same manner as an ordinary employer and
assumes the same responsibilities as the latter.
Article 48:
In case of insolvency or default by the labor
contractor, the entrepreneur or the manager of enterprise shall substitute for
the contractor to fulfill his obligations to the workers.
The harmed workers, in such case, may file a
case directly against the entrepreneur or manager.
The labor contractor is required to indicate
his status, the name and address of the entrepreneur, by affixing them to a
place that is simply visible in each workshop, storeroom, or work site where
work is performed.
Article 50:
The entrepreneur shall constantly keep
available a list of labor contractors with whom he has contracted. This list,
indicating the name, address, and status of the labor contractor as well as the
situation of each workplace, must be sent to the Labor Inspector's Office
within seven whole days following the date of signing the labor contract.
This period is extended to fifteen days for
agricultural enterprises or businesses.
CHAPTER
III
APPRENTICESHIP
Section
1
Nature
and form of the apprenticeship contract
Article 51:
The apprenticeship contract is one in which a
manager of an industrial or commercial establishment, an artisan or craftsman
agrees to provide or is entrusted with complete, methodical and professional
training to another person who contracts, in return, to work for him as an
apprentice under the conditions and for a time period that have been agreed
upon. This time period cannot exceed two years.
Article 52:
The apprenticeship contract must be in form
of writing by notarial deed or by private agreement within a fortnight of its
implementation, otherwise it is considered null.
Article 53:
An apprenticeship contract shall be made up
according to customary practices of a profession if there are no rules
established by the Labor Inspector's Office, with consent of representatives of
the profession taught.
The apprenticeship contract must contain:
1. The last name,
first name, age, profession and address of the instructor.
2. The last name,
first name and address of the apprentice.
3. The last name,
first name, profession and address of the apprentice's parents or guardian or a
person authorized by his parents.
4. The date and
duration of the contract, as well as the trade for which the apprentice is
trained.
5. The conditions
for the apprentice's remuneration and, if applicable, all benefits in kind:
food, accommodation or any other items agreed between both parties.
6. The skill areas
that the manager of the enterprise is contracted to teach the apprentice.
7. Indemnity to be
paid in case of termination of the contract.
8. The main
obligations of the instructor and the apprentice.
The apprenticeship contract must be signed by
the instructor and the apprentice. In case the apprentice is a minor, the
contract can be signed by his legal representative and the instructor. The
Labor Inspector shall review, countersign and register the apprenticeship
contract.
Section
2
Terms
of apprenticeship contract
Article 54:
No one can be an instructor or undertake an
apprenticeship if he is less than twenty-one years of age, and cannot justify
having practiced, for at least two years, the profession to be taught as a
technician, trainer, craftsman or skilled worker.
The period of practice of his profession can
be reduced to one year, if the instructor has a diploma in theoretical and
practical training from a recognized school or a specialized training center.
Article 55:
No employer, instructor in charge of an
apprenticeship can live in the same house with female minor apprentices.
The capacity as an apprenticeship instructor
or a person in charge of apprenticeship is disqualified for:
1. Individuals who
have been convicted of a crime.
2. Individuals who
have been guilty of behaving against the local traditional customs.
3. Individuals who
have been imprisoned for stealing, fraud, misappropriation and corruption.
Article 56:
A Prakas (ministerial order) of the Ministry
in Charge of Labor shall determine the occupation and types of work for which
teenagers aged at least eighteen years are allowed to be an apprentice.
Once his vocational skill training is
adequate, the apprentice is no longer as an apprentice but as a worker
hereafter.
Any enterprise employing more than sixty
workers must have the number of apprentices equal to one-tenth of the number of
the workers in service of that enterprise.
The maximum number of apprentices employed in
an enterprise, regardless of the total number of workers, shall be determined
by a Prakas of the Ministry in Charge of Labor in accordance with the possible
availability of personnel and materials.
Derogation of the obligation stated in the
first paragraph of this article can be endorsed by a decision of the Labor
Inspector for enterprises that have requested to pay an apprenticeship tax
whose amount and method of payment shall be set by a Prakas of the Ministry in
Charge of Labor.
Section
3
Duties
of instructors and apprentices
Article 58:
The instructor shall behave in loco parentis
towards the apprentice, that is, watch over his conduct and manners, either at
home or outside, and inform his parents or their representative of any serious
offenses committed by the apprentice or any incorrect propensity manifested.
Moreover, the instructor must also inform the apprentice's parents, without
delay, in the case of illness, absence or any other problem, for their
intervention.
The instructor shall not employ an apprentice
for overwork or for any work or service other than those related to the
exercise of the apprentice's profession.
Article 59:
The instructor must progressively and
completely teach the apprentice the occupation that is the subject of the
contract and, if applicable, provide him with every facility or opportunity in
the event of the apprentice wishing to take a course in a vocational training
school.
At the end of the apprenticeship, a
certificate attesting the execution of the contract by both parties and the
professional skill of the apprentice shall be awarded after an official
examination conducted by a neutral exam panel.
Article 60:
The apprentice shall obey and respect his
instructor within the context of apprenticeship. He must assist the instructor
in his work to the best of his ability. He shall keep the professional
confidentiality.
Article 61:
Any person who is convinced of having incited
an apprentice to break his contract shall be liable to an indemnity in favor of
the manager of the establishment or of the workshop that the apprentice has
abandoned. The indemnity must, in no case, not exceed the amount of actual damages
suffered by the former employer.
Any new apprenticeship contract made before
the fulfillment of all the obligations or termination of the preceding contract
shall be null and void.
Section
4
Monitoring
of apprenticeship
Article 62:
A system for monitoring the apprenticeship,
such as determining programs by trade, supervision during the apprenticeship,
final examination, methods for setting up examination panel, etc., shall be
determined by a Prakas (ministerial order) of the Ministry in Charge of Labor.
The Prakas of the Ministry in Charge of Labor
shall also clearly determine the regulations regarding the duration of the
apprenticeship, including the trial period, according to the level of
professional skill and technical and conceptual knowledge, as well as all the
apprentice's previous training and experience or professional progress made
during the course of the apprenticeship.
Section
5
Termination
of apprenticeship contract
Article 63:
The apprenticeship contract is terminated
lawfully:
1. By the death of
the instructor or the apprentice.
2. If the
apprentice or the instructor is obliged to serve in the army.
3. If the
instructor or the apprentice is imprisoned for a felony or misdemeanor.
4. By the closure
of workshop or enterprise, specified in the above articles.
Article 64:
An apprenticeship contract may be terminated
at the request of one or both parties, particularly in the following cases:
1. In case either
party does not comply with the stipulations of the contract.
2. In case of
serious or usual violation of the provisions in this chapter.
3. In case the
apprentice obstinately does not respect internal regulations.
If the instructor moves his residence to
Sangkat (section) or Khum (commune) other than the one in which he lived at the
signing of the contract. Nevertheless, a request for termination of contract
for this reason is acceptable only within three months following the day when
the instructor moved.
Either party considers to be damaged by the
unjustifiable termination of apprenticeship contract, can demand for
compensation from the other party.
CHAPTER
IV
THE
LABOUR CONTRACT
Section
1
Signing
and execution of a labor contract
Article 65:
A labor contract establishes working
relations between the worker and the employer. It is subject to common law and
can be made in a form that is agreed upon by the contracting parties.
It can be written or verbal. It can be drawn
up and signed according to local custom. If it needs registering, this shall be
done at no cost.
The verbal contract is considered to be a
tacit agreement between the employer and the worker under the conditions laid
down by the labor regulations, even if it is not expressly defined.
Article 66:
Everyone can be hired for a specific work on
the basis of time, either for a fixed duration or for an undetermined duration.
Article 67:
A labor contract signed with consent for a
specific duration must contain a precise finishing date.
The labor contract signed with consent for a
specific duration cannot be for a period longer than two years. It can be
renewed one or more times, as long as the renewal does not surpass the maximum
duration of two years.
Any violation of this rule leads the contract
to become a labor contract of undetermined duration.
Sometimes, this contract may have an
unspecified date when it is drawn up for:
· replacing a
worker who is temporarily absent;
· work carried out
during a season;
· occasional
periods of extra work or a non-customary activity of the enterprise;
This duration is then finished by:
· the return to
work of the worker who was temporarily absent or the termination of his labor
contract;
· the end of the
season;
· the end of the
occasional period of extra work or of the non-customary activity of the
enterprise
At the signing of the contract, the employer
must inform the worker of the eventually sensitive issues and the approximate
duration of the contract.
Contracts without a precise date can be
renewed at will as many times as possible without losing their validity.
Contracts of daily or hourly workers who are
hired for a short-term job and who are paid at the end of the day, the week or
fortnight period, are considered to be contracts of fixed duration with an
unspecified date.
A contract of a fixed duration must be in
writing. If not, it becomes a labor contract of undetermined duration.
When a contract is signed for a fixed period
of or less than two years, but the work tacitly and quietly continues after the
end of the fixed period, the contract becomes a labor contract of undetermined
duration.
Article 68:
A contract for a probationary period cannot
be for longer than the amount of time needed for the employer to judge the
professional worth of the worker and for the worker to know concretely the
working conditions provided. However, the probationary period cannot last
longer than three months for regular employees, two months for specialized
workers and one month for non-specialized workers.
The round travel costs incurred by a worker
during the probationary period when working far from his habitual residence are
to be covered by the employer.
Article 69:
Within the framework of his contract, the
worker shall perform all of his professional activities for the enterprise.
Primarily, he must do the work for which he is hired, and perform it by himself
with due care and attention.
However, outside working hours, the worker
can engage in any professional activities that are not in competition with the
enterprise for which he works or that are not harmful to the agreed process of
performance, unless there is an agreement to the contrary.
Article 70:
Any clause of a contract that prohibits the
worker from engaging in any activity after the expiration of the contract is
null and void.
Section
2
Suspension
of the labor contract
Article 71:
The labor contract shall be suspended under
the following reasons:
1. The closing of
the establishment following the departure of the employer to serve in the
military or for a mandatory period of military training.
2. The absence of
the worker during obligatory periods of military service and military training.
3. The absence of
the worker for illness certified by a qualified doctor. This absence is limited
to six months, but can, however, be extended until there is a replacement.
4. The period of
disability resulting from a work-related accident or occupational illness.
5. The leave
granted to a female worker during pregnancy and delivery, as well as for any
post-natal illness.
6. Absence of the
worker authorized by the employer, based on laws, collective agreements, or
individual agreements.
7. Temporary
layoff of a worker for valid reasons in accordance with internal regulations.
8. The absence of
a worker during paid vacations, including an incidental travel period as well.
9. The
incarceration of a worker, without a later conviction.
10. An act of God
that prevents one of the parties from fulfilling his obligations, up to a
maximum of three months.
When the enterprise faces a serious economic
or material difficulty or any particularly unusual difficulty, which leads to a
suspension of the enterprise operation. This suspension shall not exceed two
months and be under the control of the Labor Inspector.
An employer can terminate a suspended
contract provided that the reasons for the suspension have been remedied and he
has given prior notice in accordance with the law.
The suspension of a labor contract affects
only the main obligations of the contract, that are, those under which the
worker has to work for the employer, and the employer has to pay the worker,
unless there are provisions to the contrary that require the employer to pay
the worker.
Other obligations such as furnishing of
accommodation by the employer, as well as the worker's loyalty and
confidentiality towards the enterprise, continue to be in effect during the
period of suspension.
The suspension of a labor contract does not
lead to a suspension of the union's mandate or that of workers' representative.
Unless otherwise specified, periods of
suspension are taken into account when calculating the employment seniority.
Section
3
Termination
of the labor contract
A. Labor Contracts of Specific Duration
Article 73:
A labor contract of specific duration
normally terminates at the specified ending date. It can, however, be
terminated before the ending date if both parties are in agreement on the
condition that this agreement is made in form of writing in the presence of a
Labor Inspector and signed by the two parties to the contract.
If the both parties do not agree, a contract
of specified duration can be canceled before its termination date only in the
event of the serious misconduct or acts of God.
The premature termination of the contract by
the will of the employer alone for reasons other than those mentioned in
paragraphs 1 and 2 of this article entitles the worker to damages in an amount
at least equal to the remuneration he would have received until the termination
of the contract.
The premature termination of the contract by
the will of the worker alone for reasons other than those mentioned in
paragraphs 1 and 2 of this article entitles the employer to damages in an
amount that corresponds to the damage sustained.
If the contract has a duration of more than
six months, the worker must be informed of the expiration of the contract or of
its non-renewal ten days in advance. This notice period is extended to fifteen
days for contracts that have a duration of more than one year. If there is no
prior notice, the contract shall be extended for a length of time equal to its
initial duration or deemed as a contract of unspecified duration if its total
length exceeds the time limit specified in Article 67.
At the expiration of the contract, the
employer shall provide the worker with the severance pay proportional to both
the wages and the length of the contract. The exact amount of the severance pay
is set by a collective agreement. If nothing set in such agreement, the severance
pay is at least equal to five percent of the wages paid during the length of
the contract.
If a contract of unspecified duration
replaces a contract of specified duration upon the latter's expiration, the
employment seniority of the worker is calculated by including periods of the
both contracts.
In every case of contract termination, the
worker can require the employer to provide him with an employment certificate.
B. Labor Contracts of Unspecified Duration
Article 74:
The labor contract of unspecified duration
can be terminated at will by one of the contracting parties. This termination
shall be subject to the prior notice made in writing by the party who intends
to terminate the contract to the other party.
However, no layoff can be taken without a
valid reason relating to the worker's aptitude or behavior, based on the
requirements of the operation of the enterprise, establishment or group.
Article 75:
The minimum period of a prior notice is set
as follows:
Method for calculating the length of service
of workers, who are not employed on a monthly basis, shall be determined by a
Prakas (ministerial order) of the Ministry in Charge of Labor.
Article 76:
Any article of a labor contract, of an
internal regulation, or any other individual agreement that sets the prior
notice period to be less than the minimum set forth in this provision shall be
null and void.
Article 77:
The termination of a labor contract at will
on the part of the employer alone, without prior notice or without compliance
with the prior notice periods, entails the obligation of the employer to
compensate the worker the amount equal to the wages and all kinds of benefits
that the worker would have received during the official notice period.
Article 78:
The prior notice is the obligation to be
observed in enterprises or establishments set forth in Article 1 of
this law, both by the worker and by the employer when one of them decides
unilaterally to terminate the labor contract. However, the worker laid off for
reasons other than serious misconduct can leave the enterprise before the end
of the notice period if he finds a new job in the meantime. In such case, the
worker will not be required to compensate the employer.
Article 79:
During the notice period, the worker of the
enterprise is entitled to two days leave per week with full payment to look for
a new job.
These leave days are paid to the worker at
the normal rate of remuneration, regardless of how it is calculated. This
payment shall include other perquisites.
Article 80:
For task-work or piecework, the worker
usually cannot abandon the task that he has been assigned before it has been
finished.
However, for a long-term employment that
cannot be completed in less than one month, one of the contracting parties who
wishes to release himself from the obligations of the contract for serious
reasons, he can do so as long as he notifies the other party eight days in
advance.
Article 81:
Throughout the notice period, the employer
and the worker shall be bound to carry
out the obligations incumbent on them.
The contracting parties are released from the
obligation of giving prior notice under the following cases:
1. For probation
or an internship specified in the contract.
2. For a serious
offense on the part of one of the parties.
3. For acts of God
that one of the parties is unable to meet his obligations.
Article 83:
The following are considered to be serious
offenses:
A. On the part of the employer
1. The use of
fraudulent measures to entice a worker into signing a contract under conditions
to which he would not otherwise have agreed, if he had realized it;
2. Refusal to pay
all or part of the wages;
3. Repeated late
payment of wages;
4. Abusive
language, threat, violence or assault;
5. Failure to
provide sufficient work to a piece-worker;
6. Failure to
implement labor health and safety measures in the workplace as required by
existing laws.
B. On the part of the worker
1. Stealing,
misappropriation, embezzlement;
2. Fraudulent acts
committed at the time of signing (presentation of false documentation) or
during employment (sabotage, refusal to comply with the terms of the employment
contract, divulging professional confidentiality).
3. Serious
infractions of disciplinary, safety, and health regulations.
4. Threat, abusive
language or assault against the employer or other workers.
5. Inciting other
workers to commit serious offenses.
6. Political
propaganda, activities or demonstrations in the establishment.
Article 84:
Pending the creation of the Labor Court, the
common court has the jurisdiction to determine the magnitude of offences other
than those included in the preceding article.
Article 85:
The employer may find himself unable to meet
his obligations in the context of Article 82 - paragraph 3, particularly in the
following cases:
1. The closing of
the establishment by public authorities.
2. Catastrophe
(flooding, earthquake, war) that cause material destruction and make it
impossible to resume work for a long time. For death of the employer that
causes the closure of the establishment, the workers are entitled to an
indemnity equal to that of the notice period.
Article 86:
The worker may find himself unable to meet
his obligations in the context of Article 82 - paragraph 3, particularly in the following cases.
1. Chronic
illness, insanity, permanent disability;
2. Imprisonment.
The cases cited in the first paragraph above,
the employer cannot be released from his obligation to give the prior notice.
Article 87:
If a change occurs in the legal status of the
employer, particularly by succession or inheritance, sale, merger or
transference of fund to form a company, all labor contracts in effect on the
day of the change remain binding between the new employer and the workers of
the former enterprise.
The contracts cannot be terminated except
under the conditions laid down in the present Section.
The closing of an enterprise, except for acts
of God, does not release the employer from his obligations as stated in this
section III. Bankruptcy and judicial liquidation are not considered as acts of
God.
Article 88:
In businesses of a seasonal nature, as per
list determined by a Prakas of the Minister in Charge of Labor, the layoff of
workers at the end of a work period cannot be considered as dismissal, and does
not result in any compensation. However, the lay-off shall be announced at
least eight days in advance by a written notice conspicuously posted at the
main entry of each work site, and if applicable, on each boat on which there is
a work site.
C. Indemnity for Dismissal
If the labor contract is terminated by the
employer alone, except in the case of a serious offense by the worker, the
employer is required to give the dismissed worker, in addition to the prior
notice stipulated in the present Section, the indemnity for dismissal as
explained below:
The worker is also entitled to this indemnity
if he is laid off for reasons of health.
Article 90:
Indemnity for dismissal must be granted to
the worker and, if applicable, he can also claim damages even though the
contract was not terminated by the employer, but the latter, through his evil
actions, pushed the worker into ending the contract himself. If the employer
treats the worker unfairly or repeatedly violates the terms of the contract, he
also has to pay indemnities and damages to the worker.
D. Damages
Article 91:
The termination of a labor contract without
valid reasons, by either party to the contract, entitles the other party to
damages.
These damages are not the same as the
compensation in lieu of prior notice or the dismissal indemnity.
The worker, however, can request to be given
a lump sum equal to the dismissal indemnity. In this case, he is relieved of
the obligation to provide proof of damage incurred.
Article 92:
When a worker has unjustly breached a labor
contract and takes a new job, the new employer is jointly liable for damages
caused to the former employer if it is proven that he has encouraged the worker
to leave the former job.
Any worker who was engaged to furnish his
services may, upon expiration of the contract, demand from his employer a
certificate of employment containing primarily the starting date of employment,
the date of departure, and kind of job held, or, if applicable, the jobs held
successively as well as the periods during which the jobs were held.
The refusal to supply this certificate
obliges the employer to pay damages to the worker.
The certificates supplied to workers are
exempt form all stamp and registration tax, even if they contain items other
than those mentioned in the preceding paragraph, as long as these items do not
include any bond, receipt or any agreement liable to ad valorem duties.
The phrase "free from all
engagement" and all other terms indicating the normal expiration of a
labor contract, the professional qualifications and the services rendered are
included in this exemption.
Any harmful statement that could prejudice
the employment of a worker is formally prohibited.
Article 94:
Without prejudice to the provisions of
Article 91, the damages owed in the case of a breach of the labor contract
without valid reasons, as well as those owed by the employer as per provision
of Article 89 above, are determined by the competent court and
based on local custom, the type and importance of the services rendered, the
worker's seniority and age, the pay deductions or payments for a retirement
pension, and, in general, on all circumstances that can justify the existence
and the extent of the harm incurred.
E. Mass Layoff
Any layoff resulting from a reduction in an
establishment's activity or an internal reorganization that is foreseen by the
employer is subject to the following procedures:
The employer establishes the order of the
layoffs in light of professional qualifications, seniority within the
establishment, and family burdens of the workers.
The dismissed workers have, for two years,
priority to be re-hired for the same position in the enterprise.
Workers who have priority for re-hire are
required to inform their employer of any change in address occurring after the
layoff.
If there is a vacancy, the employer must
inform the concerned worker by sending a recorded delivery or registered letter
to his last address. The worker must appear at the establishment within one
week after receiving the letter.
The Labor Inspector is kept informed of the
procedure covered in this article. At the request of the workers'
representatives, the Labor Inspector can call the concerned parties together
one or more times to examine the impact of the proposed layoffs and measures to
be taken to minimize their effects.
In exceptional cases, the Minister in Charge
of Labor can issue a Prakas (ministerial order) to suspend the layoff for a
period not exceeding thirty days in order to help the concerned parties find a
solution. This suspension may be repeated only one time by a Prakas of the
Ministry.
CHAPTER
V
COLLECTIVE
LABOUR AGREEMENTS
The purpose of the collective agreement is to
determine the working and employment conditions of workers and to regulate
relations between employers and workers as well as their respective
organizations. The collective agreement can also extend its legally recognized
roles to trade union organizations and improve the guarantees protecting
workers against social risks.
The collective agreement is a written agreement
relating to the provisions provided for in Article 96 - paragraph 1. The
collective agreement is signed between:
a) one part: an employer, a group of
employers, or one or more organizations representative of employers; and
b) the other part: one or more trade union
organizations representative of workers. With derogation of the above
principle, during the transitional periods that there is no trade union
organization representative of workers in an enterprise or establishment, a
collective agreement can be made between the employer and the shop stewards who
have been duly elected as per the conditions of Section 3, Chapter XI.
The collective agreement is concluded for a
definite term or for an indefinite term. When it is for a definite term, this
term may not exceed three years. At its expiration, it shall remain in effect
unless it has been cancelled, on the condition of keeping a three months'
notice, by either party. When the collective agreement is concluded by shop
stewards under the exceptional conditions laid in paragraph 2 of this article,
the term of such agreement is not to exceed one year. When the collective
agreement is concluded for an indefinite term, it can be cancelled, but it
continues to be in effect for a period of one year to the party that forwarded
a complaint to cancel it. The notice of cancellation does not prevent the
agreement from being implemented by the other signatories.
Collective agreements shall specify their
scope of application. This can be an enterprise, a group of enterprises, an
industry or branch of industry, or one or several sectors of economic
activities.
Article 97. –
The provisions of a collective agreement
shall apply to employers concerned and all categories of workers employed in
the establishments as specified by the collective agreement.
Article 98:
The provisions of collective agreements can
be more favorable toward workers than those of laws and regulations in effect.
However, the collective agreements cannot be contrary to the provisions on the
public order of these laws and regulations.
Any provisions of labor contracts between
employers and workers, already covered by a collective agreement, that are less
favorable than the provisions provided for in this collective labor agreement
shall be nullified and must be replaced automatically by the relevant
provisions of the collective agreement.
A collective agreement of an enterprise or an
establishment can adapt to the provisions of a collective agreement covering
the wider scope of application that is applicable to the enterprise under the
special conditions of the enterprise or the establishment in question. The
collective agreement of the enterprise or establishment can include new
provisions and clauses that are more favorable to workers.
In the event of agreements covering the wider
scope of application applicable to an enterprise or establishment, the
provisions of these agreements must be adapted accordingly by the collective
agreement of the enterprise or establishment.
Article 99:
At request of a professional organization of
workers or employers that is representative in the relevant scope of
application, or on its own initiative, the Minister in Charge of Labor, after
consultation with the Labor Advisory Committee, may extend all or some of the
provisions of a collective agreement to all employers and all workers included
in the occupational area and scope of this agreement.
Article 100:
In the absence of a collective agreement, the
Ministry in Charge of Labor, after having received the approval from the Labor
Advisory Committee, can issue a Prakas (ministerial order) to lay the working
conditions for a particular occupation.
Article 101:
The Prakas of the Ministry in Charge of Labor
shall determine:
a) the conditions
and methods for implementing the procedure for extending the scope of
application as specified in Article 99;
b) the conditions
and methods for implementing the regulatory procedure set out in Article 100;
c) the methods for
registering, filing, publishing and posting the collective
agreements;
d) the methods for monitoring the enforcement of those agreements, in case of necessity.