CHAPTER
VIII
HEALTH
AND SAFETY OF WORKERS
SCOPE
OF APPLICATION
The provisions of the present Chapter shall
apply to all enterprises of any kind, as stated in Article 1 of this law.
However, excluded from them are workshops
where only family members are employed under the direction of the father, the
mother, or guardian as long as the work is not performed using a boiler or
mechanical or electric motors or the industry is not classified as dangerous or
unsanitary.
Section
1
General
provisions
All establishments and work places must
always be kept clean and must maintain standards of hygiene and sanitation or
generally must maintain the working conditions necessary for the health of the
workers.
The Ministry in Charge of Labor and other
relevant ministries shall prepare a Prakas (ministerial order) to monitor the
measures for enforcing this article in all establishments subject to the
provisions of this Chapter, particularly regarding:
Article 230:
All establishments and work places must be
set up to guarantee the safety of workers. Machinery, mechanisms, transmission
apparatus, tools, equipment and machines must be installed and maintained in
the best possible safety conditions. Management of technical work utilizing
tools, equipment, machines, or products used must be organized properly for
guaranteeing the safety of workers.
The Prakas covered in Article 229, shall also
determine the measures for enforcing this article, particularly regarding:
Article 231:
Without prejudice to the provisions in
Articles 229 and 230 and the regulation for their enforcement, and if
necessary, the Ministry in Charge of Labor can issue other Prakas in order to
enforce the same legislative measures regarding the special regulations for
certain professions or certain types of work.
Article 232:
The Prakas described in Articles 229 to 231
shall be issued after having consulted with the Labor Advisory Committee.
Section
2
Inspections
Article 233:
Visits to establishments and inspections of
the enforcement of the legislative provisions and regulations regarding health,
working conditions and safety shall be made by Labor Inspectors and Labor
Controllers. Labor Medical Inspectors and experts in work safety shall
collaborate to achieve these inspection missions.
After inspection, if infractions are found,
the Labor Inspector shall serve notice on the manager of the establishment by
indicating all points that do not conform to the provisions of Chapter VIII of
this labor law and the Prakas for its implementation.
Article 234:
Before drawing up an official report, the
Labor Inspectors and Controllers must serve notice on the managers of the
establishments to conform to the provisions of Prakas for implementing Articles
229 to 231, when this procedure is required.
By derogation of this rule, the Labor
Inspectors and Controllers can, without serving prior notice, write up an
official report when they have identified a serious or imminent danger to the
health or safety of the workers.
Article 235:
The procedure of serving notice must also be
used when a dangerous situation is identified and resulted from an infraction
of the general provisions even if they have not yet been the subjects of
specific provisions for implementation.
Article 236:
Serving notice must be done in writing,
either in the register of the establishment or by recorded delivery or
registered letter with acknowledgement of receipt. Serving notice shall be
dated and signed, with specification of the infractions or identified dangers,
and set a deadline for remedying them.
If the infraction has not been remedied by
the deadline, the Labor Inspector or Controller can write up an official
report.
Article 237:
Before the expiration of the deadline, the
employer can lodge a complaint to the Ministry in Charge of Labor. This
complaint does not conflict with serving notice. The Minister can give a ruling
on this within 30 days, with the clear justification. If there is no written
notification of this ruling within the time allowed, the complaint is deemed
accepted.
Section
3
Labor
health service
Article 238:
Enterprises and establishments covered by Article 1 of this law must provide the primary health care to
their workers.
Article 239:
The Labor Health Service shall be led by one
or more physicians who are called Labor Physicians and whose curative and
preventive role consists in avoiding a deterioration of workers' health that is
adversely affected by their work. In particular, they monitor the hygienic
standards of the work, the risks of contagion and the workers' state of health.
Health records of the workers collected by
medical personnel are confidential, and the information contained in the
records cannot be given to the employer, to a union, or to any third party in a
manner that could identify the employee. However, data extracted from the files
that do not identify the individuals can be used for the purposes of research
on labor health or public health.
The provisions of the preceding paragraph do
not prevent the files from being given to the Labor Health Inspector or to the
Labor Inspector, who can have access to these files at any time upon request.
Depending on the necessity of the enterprise,
the labor health service can serve a single enterprise or jointly serve several
enterprises.
The cost of organizing and operating the
labor health service is borne by the employer. For inter-enterprise services,
the costs are distributed proportionally based on the number of employees at
each enterprise.
Article 241:
As of the date set by a joint Prakas
(ministerial order) of the Ministry in Charge of Labor and the Ministry of
Health, there shall be physicians specialized in labor health necessarily
taking up the positions of Labor Physicians.
Article 242:
All enterprises and establishments covered by
Article 238 of this law and employing at least fifty workers shall have a
permanent infirmary on the premises of the establishment, workshop, or work
site.
This infirmary shall be run by a physician
assisted by one or more male or female nurses, based on the number of workers.
During working hours, both day and night,
there shall always be at least one male or female nurse present.
The infirmary shall be supplied with adequate
materials, bandages and medicines to provide emergency care to workers in the
event of accidents or occupational illness or sickness during work.
Expenses incurred in organizing and operating
this infirmary are the responsibility of the employer.
Article 243:
When an enterprise covered by Article 228 has one or more branches or work sites that employ a
total of at least fifty workers and are located more than five kilometers from
the main work site, the employer is required to provide the branches or work
sites with the same means as the main work site to assist and to treat workers.
This includes medical personnel, buildings, materials, bandages and medicines.
Article 244:
When there are more than 200 workers, the
infirmary must include, in addition to medicines and bandages, areas for
hospitalizing the injured and sick before they are transferred to a hospital or
isolated if necessary. These areas must be able to handle two per cent of the
personnel employed at the site.
Care, treatment, and food for the injured and
sick persons hospitalized in the infirmary are the responsibility of the
employer.
Article 245:
Apart from the measures in the preceding
articles, the employer is required to cover these expenses:
1) the service of
chemical prophylaxis on their sites;
2) vaccination
against epidemics.
In the case of an epidemic, the Minister of
Health can order extraordinary preventive measures at work sites.
Article 246:
The Ministry in Charge of Labor and the
Ministry of Health shall issue a joint Prakas to determine:
a) the
organization and operation of the labor health services;
the maximum time
that the labor physician must devote to personnel at the establishments in
question based on the size of their work force and the nature of their
activities, as well as the physician's mandatory tasks;
c) the frequency
and the content of the reports to be filed by the manager of the enterprise or
by the representatives of the inter-enterprise services with regard to the
organization, operation and financial management of the health service.
Article 247:
The Ministry in Charge of Labor shall issue a
Prakas to determine:
a) the conditions
under which pre-employment, re-employment, periodical, and special physical
exams are given;
b) the number,
qualifications, and the duties of the medical personnel to be employed;
c) the conditions
under which employers are required to establish and provide at their expense:
1) the infirmary
specified in Article 242;
2) a bandaging
room for a work force of 20 to 50 workers;
3) a first aid
kit for a work force of fewer than 20 workers, and with particular regard to
the infirmary, the number of rooms, the area space, the equipment and their
purpose based on the number of workers employed when medical exams are
conducted at the enterprise, whether or not the enterprise has an autonomous
medical service;
4) the medical
exams of workers as stipulated in point a) of this article.
WORK-RELATED
ACCIDENTS
Article 248:
An accident is considered to be work related,
regardless of the cause, if it happens to a worker working or during the
working hours, whether or not the worker was at fault; it is the accident
inflicted on the body of the worker or on an apprentice with or without wage,
who is working in whatever capacity or whatever place for an employer or a
manager of an enterprise.
Equally, accidents happening to the worker
during the direct commute from his residence to the work place and home are
also considered to be work-related accidents as long as the trip was not
interrupted nor a detour made for a personal or non-work-related reason.
All occupational illness, as defined by law,
shall be considered a work-related accident and shall be remedied in the same
manner.
Managers of enterprise are liable for all
work-related accidents stipulated in the Article above regardless of the
personal status of each worker.
The same liability applies to:
Apart from the categories expressly mentioned
in the preceding paragraph, any person who engages the services of a worker for
a specific, occasional work is required to make reparation for accidents that
victimized the worker during the work.
Article 250:
Every manager of enterprise shall manage or
have someone take all appropriate measures to prevent work-related accidents.
Article 251:
Laborers who normally work alone are not
subject to the provisions of the present Chapter or to applicable regulations
if they just take one or more fellow laborers to occasionally work with them.
Article 252:
The victim or his beneficiaries are entitled
to compensation from the manager of enterprise or the employer in the event of
work-related accidents inflicting on him and resulting in temporary
incapacitation. However, this compensation can be paid on the condition that
the accidents cause incapacitation for longer than four days. If the
work-related accidents lead to a temporary incapacitation of four days or less,
the victim is entitled to his regular wage.
The victim who intentionally causes an
accident shall receive no compensation.
The competent tribunal can:
Compensation for fatal accidents or for
accidents causing permanent disability is paid to the victim or his
beneficiaries as an annuity.
Supplementary compensation is granted to a
victim who requires constant care from another person.
In the event of incapacitation, compensation
shall be paid no later than the fifth day after the accident.
Article 254:
Victims of work-related accidents shall be
entitled to medical assistance (benefits in kind, medical treatment and
medicament as well as hospitalization) and to all surgical assistance and
prostheses deemed necessary after the accident.
Article 255:
Notwithstanding the preceding provisions,
victims of work-related accidents can benefit from more favorable conditions if
there is such an agreement between the parties.
Article 256:
A general insurance system obligatory for
work-related accidents shall be set up. This system shall be managed under the
insurance of the National Social Security Fund (Caisse Nationale de la Sécurité
Sociale, CNSS).
Article 257:
Current regulations continue to be in effect
until the promulgation of regulatory text or regulations on social insurance
for occupational risks.
Nevertheless, during the transitional period,
the Ministry in Charge of Labor can issue a Prakas (ministerial order) to
determine how to enforce the present Chapter, notably:
1. The method for
declaring and investigating accidents.
2. Guarantees and
other necessary provisions.
The level of disability and the amount of
compensation.
CHAPTER
X
PLACEMENT
AND RECRUITMENT OF WORKERS
Section
1
Placement
Article 258:
Any person looking for employment can request
to be registered with the Placement Office of the Ministry in Charge of Labor
or with the Employment Office of his province or municipality.
All employers are required to notify the
Placement Office of the Ministry in Charge of Labor or the provincial or
municipal Employment Office of any vacancies in his enterprise or any new need
for personnel.
An employer can directly recruit workers for
his enterprise, but he must meet the requirement mentioned in Article 21 of
this law.
Article 259:
No employer is required to accept a worker
who has been referred to him by the Placement Office. The priority for
accepting certain categories of workers will be determined by special
provisions and regulations.
Personnel of a Placement Office are
prohibited from demanding or accepting any payment whatsoever for the placement
of a worker.
Section
2
Employment
of foreign labor
Article 261:
No foreigner can work unless he possesses a
work permit and an employment card issued by the Ministry in Charge of Labor.
These foreigners must also meet the following conditions :
Employers must beforehand have a legal work
permit to work in the Kingdom of Cambodia;
These foreigners must have legally entered
the Kingdom of Cambodia;
These foreigners must possess a valid
passport;
These foreigners must possess a valid
residency permit;
These foreigners must be fit for their job
and have no contagious diseases. These conditions must be determined by a
Prakas (ministerial order) from the Ministry of Health with the approval of the
Ministry in Charge of Labor.
The work permit is valid for one year and may
be extended as long as the validity of extension does not exceed the fixed
period in the residency permit of the person in question.
Article 262:
The Ministry in Charge of Labor can revoke a
work permit in the following cases :
When the holder does not fulfil one of the
conditions laid in paragraph 2 – point a), b), c), d), and e) of Article 161
above.
When the job to be extended by the holder in
the Kingdom of Cambodia is competing with Cambodian job seekers in the country.
This revocation is carried out upon the expiration of the work permit that may
be re-issued or extended in favor
When the holder is unemployed for more than
one month or is hired by another employer.
The Ministry in Charge of Labor shall issue a
Prakas for the issuance of work permits and employment cards to foreign
workers.
A joint Prakas of the Ministry in Charge of
Labor and the Ministry of Economic and Finance shall set the rate of fee for
issuing such work permits and employment cards.
Article 263:
Enterprises of any kind and professionals
such as lawyers, bailiffs, and notaries who need to recruit staff to work in
their profession must appeal to Cambodian as a first priority.
Notwithstanding the provisions of Article 261
above, the maximum percentage of foreigners who can be allowed to employ in
each of the enterprises covered by Article 263 above shall be determined by a
Prakas (ministerial order) of the Ministry in Charge of Labor based on each of
the categories of personnel as follows :
Office personnel.
Specialized personnel.
Non-specialized personnel.
Each enterprise is required to justify,
during the entirety of its existence, that each of the three categories of
personnel specified above include at least the minimum percentage of workers of
Cambodian nationals as already provided.
Article 265:
In exceptional cases, in order to allow the
employment of specialist indispensable to the operation of the enterprise, the
percentage of foreigners can be exceeded the above limit with the authorization
of the Minister in Charge of Labor at the suggestion or proposal of the Labor
Inspector.
CHAPTER
XI
TRADE
UNION FREEDOM AND WORKER
REPRESENTATION
IN THE ENTERPRISE
The
right to form a trade union
Workers and employers have, without
distinction whatsoever and prior authorization, the right to form professional
organizations of their own choice for the exclusive purpose of studying,
promoting the interests, and protecting the rights, as well as the moral and
material interests, both collectively and individually, of the persons covered
by the organization's statutes.
Professional organizations of workers are
called "workers' unions".
Professional organizations of employers are
called "employers' associations".
For the purposes of this law, trade unions or
associations that include both employers and workers are forbidden.
Article 267:
Workers' unions and employers' associations
have the right:
In order for their professional organization
to enjoy the rights and benefits recognized by this law, the founders of those
professional organizations must file their statutes and list of names of those
responsible for management and administration, with the Ministry in Charge of
Labor for registration. All requests for registration shall be appended with
the statement of constitution of the organization.
If the Ministry in Charge of Labor does not
reply within two months after receipt of the registration form, the
professional organization is considered to be all ready registered.
A copy of the statutes and the list of names
of those responsible for management and administration shall be sent to the
Labor Inspector's Office where the organization was established, as well as to
the Office of the Council of Ministers, to the Ministry of Justice and to the
Ministry of Interior.
The filing will be renewed when there are
changes in the statutes or management.
Article 269:
The members responsible for the
administration and management of a professional organization shall meet the
following requirements:
1) be at least 25
years of age;
2) be able to read
and write Khmer;
3) not have been
convicted of any crime;
4) have engaged in
the profession or the job for at least one year.
Article 270:
Foreigners who are eligible to be candidates
for the election of the management of a professional organization of employers
must meet the following requirements:
1) be at least 25
years of age;
2) have the right
to permanent residence in accordance with the Immigration Law of the Kingdom of
Cambodia;
3) have worked for
at least two consecutive years in the Kingdom of Cambodia.
Foreigners who are eligible to be candidates
for the election of the management of a professional organization of workers
must meet the following requirements:
1) be at least 25
years of age;
2) be able to read
and write Khmer;
3) have the right
to permanent residence in accordance with the Immigration Law of the Kingdom of
Cambodia;
4) have worked for
at least two consecutive years in the Kingdom of Cambodia
Article 271:
All workers, regardless of sex, age,
nationality are free to be a member of the trade union of their choice.
Article 272:
All members of a trade union can participate
in the management and administration of the union if they meet the requirements
laid in Articles 269 and 270 above. The union's statutes, however, can possibly
limit the conditions for participation of retirees in these functions.
The trade union freedom of individuals also
implies freedom of not joining a workers' union or employers' association and
freedom of withdrawing at any time from the organizations in which they join.
Article 274:
The professional organizations covered by Article 266 have the civil status (civil rights). They have the
right to sue in court and to acquire personal property or real estate without
authorization, for free or for payment. More generally, they have the right to
enter into contract.
Article 275:
The professional organizations of workers and
of employers set out in Article
266 can freely consult each other
about the study, research, promotion and protection of their moral and material
interests. The provisions of Articles 266, 267, 268, 269, and 270 are also applicable to Unions of professional
organizations on the condition that the Unions must acknowledge the names and
headquarters of all their constituent unions or associations, as provided for
in Article 268.
Article 276:
In case of dissolving a professional
organization of workers and of employers, the assets of the organization are
allotted as prescribed in the statutes or, if there are no such statutory
provisions, are allotted according to the rules determined by the General
Assembly. If there are no such statutory provisions and no decision from the
General Assembly, the organization's assets can only be transferred in form of
donation to another similar, legally constituted organization or to relief
associations or to social providence.
Article 277:
The representativeness of a professional
organization or a union of professional organizations is recognized in the
framework of geography or profession or, if necessary, by the type for which
the union was registered to operate. The representativeness is determined by
the following criteria:
a) be legally
registered as provided for in Article 268 above;
b) have more
members holding valid membership cards than the others. Any trade unions having
the largest number of members in the order of the first and the second majority
will be considered to be the representative unions within the enterprise.
However any trade union whose number of members is over 51 percent of the total
number of workers in the enterprise shall be considered as the most
representative union;
c) receive dues
from at least 33 percent of its members;
d) have programs
and activities indicating that the union is capable of providing professional,
cultural and educational services to its members, as provided for in Article 266 of this law.
Within sixty days at the latest after receipt
of the form requesting recognition of the representativeness of the
professional organization, the Ministry in Charge of Labor shall give an
official decision on the recognition of the representativeness of the
professional organization that has met the criteria mentioned in paragraph 1
above.
Provisions of the labor law can attach the
representativeness of professional organization recognized by the Ministry in
Charge of Labor, in conformance with the criteria established in paragraph 1 of
the present article, to the benefit of certain advantages relating to:
If it is necessary to determine the
representative nature of a professional organization or to verify its
sustainability, the Minister in Charge of Labor can conduct an investigation.
The professional organization in question is
required to provide any proof documents at request of the competent official.
When the proof documents are not available or
these documents are not sufficient, the recognition of representativeness can
be rejected or suspended until the necessary information is obtained. The
advantages pertaining to the representativeness which every professional
organization deserves are consequently cancelled or suspended.
In all enterprises or establishments
employing eight or more workers, the representative union can appoint a shop
steward from among the official shop stewards or alternate to represent it as
the union representative to the manager of enterprise or establishment. He has
sufficient authority to conclude and sign a collective agreement with the
enterprise or establishment on behalf of the organization who appointed him.
This appointment is valid for the entire term of office of the shop steward.
Section
2
Protection
of trade union freedom
Article 279:
Employers are forbidden to take into
consideration union affiliation or participation in union activities when
making decisions concerning recruitment, management and assignment of work,
promotion, remuneration and granting of benefits, disciplinary measures and
dismissal.
Article 280:
Acts of interference are forbidden. In the
senses of the present article, acts of interference are primarily measures
tending to provoke the creation of worker organizations dominated by an
employer or an employers' organization, or the support of worker organizations
by financial or other means, on purpose to place these organizations under the
control of an employer or an employers' organization.
All employers are forbidden to deduct union
dues from the wage of their workers and to pay the dues for them.
Union stewards or former union stewards who
relinquished their position for less than six months are entitled to benefits
provided for in the provisions of Articles 292, 293 and 294 regarding the dismissal, re-assignment or transfer of
shop stewards. In the recommendation on request for an authorization to dismiss
or appeal, the Labor Inspector or the Minister in Charge of Labor shall examine
whether the measure is involved with the mandate of the incumbent union steward
or the former one.
Representation
of workers in the enterprise
In every enterprise or establishment where at
least eight workers are normally employed, the workers shall elect a shop steward
to be the sole representative of all workers who are eligible to vote in the
enterprise or establishment.
The scope of present Section is the same as
the scope of application defined in Article 1 of
this Labor Law, except:
Acknowledgement that there are several
distinct establishments within any enterprise, having the above-required number
of workers, does not have effect on excluding a number of workers from abiding
by this provision.
If there is no agreement between the employer
and the representative union organizations in the enterprise on the number of
distinct establishments required for the election for shop stewards, such a
dispute shall be submitted to the Labor Court, which has jurisdiction to
acknowledge the nature of a distinct establishment.
Article 284:
The missions of the shop steward are as
follows:
The shop steward must be consulted and put
forward a written opinion on the draft of internal regulations provided for in Article 24 of this labor law, or on draft of modification to
these regulations.
The shop steward must also be consulted and
put forward a written opinion on the measure for redundancy due to a reduction
in activity or an internal reorganization of the enterprise or establishment.
Article 285:
The number of shop stewards is set in
proportion to the number of workers in the establishment as follows:
Article 286:
Workers of either sex who are at least 18
years old and who have worked for the enterprise for at least three months and
have not incurred in forfeiture of their right to vote, as set forth in
Electoral Law, are eligible to vote.
Voters who are at least 25 years old and who
have seniority of at least six months in the enterprise shall be eligible to be
candidates. In addition to these conditions, a foreigner who is eligible to be
a candidate must have the right to reside in the Kingdom of Cambodia in
conformance with the provisions of Immigration Law until the end of the term
solicited.
Article 287:
The election shall take place during working
hours. The ballot is secret. The election of official shop stewards and
assistant shop stewards shall be organized with separate ballots, but at the
same time. If there is a pre-electoral agreement or a collective agreement or a
regulatory provision applicable to the discrete professional categories that
entail distinct electoral polls, then the election shall be organized
separately in different places.
Article 288:
The shop stewards are elected from the
candidates nominated by the representative union organizations within each
establishment.
A union organization cannot nominate more
candidates than the seats available for the prospective shop stewards to fill,
and if necessary, this must apply to each electoral body.
Article 289:
Any candidates who obtain the larger number
of votes are declared elected up to the number of seats to fill. In case only
one seat remains to be filled and several candidates received the same number
of votes, this seat is allocated to the older of the candidates. The ballot is
valid only if the number of voters is at least equal to half of the number of
those registered.
Article 290:
In case of contradiction to Article 289 above
or if the representative union organizations did not nominate any candidates
within the allotted time, a new ballot shall be organized within fifteen days
later in which the voters can vote for any candidate whether or not nominated
by the union organization. No quorum is required for this second ballot to be
valid.
The official shop stewards and assistant shop
stewards are elected for two years term and can be re-elected. Their functions
are terminated by death, resignation and termination of the labor contract.
When an official shop steward leaves office or is temporarily absent, he is
replaced by an assistant shop steward from the same electoral body, and the
priority for replace is given to the assistant shop steward who has been
nominated by the same union organization and who received the largest number of
votes.
It is the duty of the employer to organize
elections. In case that there are no shop stewards, the employer shall set a
date for the elections and publicize it within fifteen days upon receipt of the
request of a worker, a union, or the Labor Inspector. The elections shall be
organized within 45 days upon receipt of the request.
If there is an election to elect all new shop
stewards, the balloting must take place in the fifteen days period preceding
the expiration of the current term.
Article 293:
The dismissal of a shop steward or a
candidate for shop steward can take place only after authorization from the
Labor Inspector. The same protective measures apply to former shop stewards
three months following the end of their terms and to unelected candidates
during three months following the proclamation of the results of the ballot.
Any reassignment or transfer that would end the shop steward's term is subject
to the same procedure.
The Labor Inspector, who has been referred a
request to authorize the dismissal of a worker covered by the present article,
shall give his decision to the employer and to the worker in question as well
as to the union organization to which the worker belongs, within one month at
the latest upon receipt of the case.
On receipt of the decision, the employer, the
worker in question, or the union organization to which the worker belongs has a
period of two months to appeal to the Minister in Charge of Labor. The Minister
in Charge of Labor can cancel or reverse the decision of the Labor Inspector.
If there is no notification of the Labor
Inspector's decision within the allotted time, or if there is no notification
of the decision of Minister in Charge of Labor within two months upon receipt
of the appeal, the case and the appeal are considered to be rejected.
Article 294:
When the Minister in Charge of Labor or the
Administrative Chamber of the Court of Appeal revokes an administrative
decision authorizing the dismissal of a shop steward, the latter is entitled to
resume his previous position or an equivalent position, if he has made an
appeal within two months after receipt of notification of the administrative
decision. The shop steward shall be reinstated in his term if it does not
expire. In the contrary case, the shop steward enjoys the rights by the
procedures laid in Article 293 until the next elections for shop stewards.
Article 295:
In the case of serious misconduct, the
manager of enterprise can render the decision to instantly suspend the party in
question pending the Labor Inspector's decision. If the Labor Inspector turns
down the dismissal, the suspension is annulled and its effects are cancelled
lawfully.
The employer must, within eight days
following the elections, make an official report on the results of the
elections of shop stewards to the Labor Inspector's Office. Furthermore, the
employer must post another copy of the official report in the establishment for
information.
Article 297:
The presence of the shop steward in the
enterprise or establishment is not an obstacle to the workers' right to present
their own grievances directly to the employer or his representatives.
Article 298:
Disputes relating to the election,
eligibility and the fairness of the elections of shop stewards shall be
referred to the Labor Court, or to the common court that has jurisdiction to
rule promptly without the possibility of appeal recourse if the Labor Court
does not exist.
Article 299:
The Ministry in Charge of Labor shall issue a
Prakas (ministerial order) to determine the mode of enforcement of the present
section, particularly regarding:
a) The development
of voting procedure and the division of the workers into electoral colleges.
b) The conditions
under which the shop stewards are recognized by the employer or his
representative.
c) The means for
the shop stewards, including the number of working hours, to carry out their
duties.
d) The conditions
under which an electoral body can remove a shop steward from office.
SETTLEMENT
OF LABOUR DISPUTES
Section
1
Individual
disputes,
Preliminary
conciliation of individual disputes
Article 300:
An individual dispute is one that arises
between the employer and one or more workers or apprentices individually, and
relates to the interpretation or enforcement of the terms of a labor contract
or apprenticeship contract, or the provisions of a collective agreement as well
as regulations or laws in effect.
Prior to any judicial action, an individual
dispute can be referred for a preliminary conciliation, at the initiative of
one of the parties, to the Labor Inspector of his province or municipality.
Article 301:
On receipt of the complaint, the Labor
Inspector shall inquire of both parties to elicit the subject of the dispute
and then shall attempt to conciliate the parties on the basis of relevant laws,
regulations, or collective agreements, or the individual labor contract.
To this effect, the Labor Inspector shall set
a hearing that is to take place within three weeks at the latest upon receipt
of the complaint.
The parties can be assisted or represented at
the hearing.
The results of the conciliation shall be contained
in an official report written by the Labor Inspector, stating whether there was
agreement or non-conciliation. The report shall be signed by the Labor
Inspector and by the parties, who receive a certified copy.
An agreement made before the Labor Inspector
is enforceable by law.
In case of non-conciliation, the interested
party can file a complaint in a court of competent jurisdiction within two
months, otherwise the litigation will be lapsed.
Section
2
Collective
labor dispute
Conciliation
Article 302:
A collective labor dispute is any dispute
that arises between one or more employers and a certain number of their staff
over working conditions, the exercise of the recognized rights of professional
organizations, the recognition of professional organizations within the
enterprise, and issues regarding relations between employers and workers, and
this dispute could jeopardize the effective operation of the enterprise or
social peacefulness.
Article 303:
If there is no planned settlement procedure
in a collective agreement, the parties shall communicate the collective labor
dispute to the Labor Inspector of their province or municipality. However, the
Labor Inspector can take legal conciliation proceedings upon learning of the
collective labor dispute even though he has not been officially notified.
Article 304:
The Minister in Charge of Labor shall
designate a conciliator within forty-eight hours from the moment he is apprised
or himself learns of the dispute.
Article 305:
Conciliation shall be carried out within
fifteen days from the designation by the Minister in Charge of Labor. It can be
renewed only by joint request of the parties to the dispute.
During the period of conciliation, the
parties to the dispute must abstain from taking any measure of conflict. They
must attend all meetings to which the conciliator calls them. Unjustified
absence from any such meeting is punishable by a fine set in the rules of Chapter XVI.
Article 307:
A conciliatory agreement, signed by the
parties and [visaed] by the conciliator, has the same force and effect of a
collective agreement between the parties and the persons they represent.
However, when the party representing workers is not a trade union, the
agreement is neither binding on such union nor on the workers it represents.
Article 308:
In the absence of an agreement, the
conciliator shall record and indicate the key points where the conciliation
failed and shall prepare a report on the dispute. The conciliator shall send
such record and report to the Minister in Charge of Labor within forty-eight
hours at the latest after the conclusion of conciliation.
B. Arbitration
Article 309:
If conciliation fails, the labor dispute
shall be referred to settle:
a) by any
arbitration procedure set out in the collective agreement, if there is such a
procedure; or
b) by any other
procedure agreed on by all the parties to the dispute; or
c) by the
arbitration procedure provided for in this Section.
Article 310:
In a case covered by paragraph c) of Article
309 above, the Minister in Charge of Labor shall refer the case to the Council
of Arbitration within three days following the receipt of the report from the
conciliator as specified in Article 308 above.
The Council of Arbitration must inevitably
meet within three days following the receipt of the case.
Article 311:
Members of the Council of Arbitration shall
be chosen from among magistrates, members of the Labor Advisory Committee, and
generally from among prominent figures known for their moral qualities and
their competence in economic and social matters. These persons shall be
included on a list prepared each year by a Prakas (ministerial order) of the
Ministry in Charge of Labor.
Article 312:
The Council of Arbitration has no duty to
examine issues other than those specified in the non-conciliation report or
matters, which arise from events subsequent to the report, are the direct
consequence of the current dispute.
The Council of Arbitration legally decides on
disputes concerning the interpretation and enforcement of laws or regulations
or of a collective agreement. The Council's decisions are in equity for all
other disputes.
The Council of Arbitration has the
considerable power to investigate the economic situation of the enterprises and
the social situation of the workers involved in the dispute.
The Council has the power to make all
inquiries into the enterprises or the professional organizations, as well as
the power to require the parties to present any document or economic,
accounting, statistical, financial, or administrative information that would be
useful in accomplishing its mission. The Council may also solicit the
assistance of experts.
Members of the Council of Arbitration must
keep the professional confidentiality regarding the information and documents
provided to them for examination, and of any facts that come to their attention
while carrying out their mission.
All sessions of the Council of Arbitration
shall be held behind closed doors.
Article 313:
Within fifteen days starting from the date of
its receipt of the case, the Council of Arbitration shall communicate its
decision to the Minister in Charge of Labor. The Minister shall immediately
manage to notify the parties. The latter have the right to appeal this arbitral
decision by informing the Minister by registered mail or by any other reliable
method within eight calendar days from the date of receiving the notification.
Article 314:
The final arbitral decision which was not
appealed by either party shall be implemented immediately.
The arbitral decision which was already
implemented shall be filed and registered the same way that a collective
agreement is.
Article 315:
The reports on conciliation agreements and
arbitral decisions, which have not been appealed, shall be posted in the
workplace of the enterprise involved in the dispute and in the office of the
relevant provincial and municipal Labor Inspector's Office.
Article 316:
The procedure for conciliation and
arbitration shall be carried out free of charge.
Article 317:
The Ministry in Charge of Labor shall issue a
Prakas (ministerial order) to determine the mode of enforcement of the present
section.
CHAPTER
XIII
STRIKES
- LOCKOUTS
Section
1
General
provisions
Article 318:
A strike is a concerted work stoppage by a
group of workers that takes place within an enterprise or establishment for the
purpose of obtaining the satisfaction for their demand from the employer as a
condition of their return to work.
A lockout is a total or partial closing of an
enterprise or establishment by the employer during a labor dispute.
Article 319:
The right to strike and to a lockout are
guaranteed. It can be exercised by one of the parties to a dispute in the event
of rejecting the arbitral decision.
Article 320:
The right to strike can also be exercised
when the Council of Arbitration has not rendered or informed of its arbitration
decision within the time periods prescribed in Chapter XII.
It can also be exercised when the union
representing the workers deems that it has to exert this right to enforce
compliance with a collective agreement or with the law.
It can also be exercised, in a general
manner, to defend the economic and socio-occupational interests of workers.
The right to strike can be exercised only
when all peaceful methods for settling the dispute with the employer have
already been tried out.
Article 321:
The right to strike cannot be exercised when
the collective dispute results from the interpretation of a juridical rule
originating from the existing law, or the collective agreement, or the rule
relating to an arbitral decision accepted by the concerned parties.
It also cannot be exercised for the purpose
of revising a collective agreement or reversing an arbitral decision accepted
by the parties, when the agreement or the decision has not yet expired.
Article 322:
The right to a lockout shall be exercised
under the same provisions as the right to strike.
Section
2
Procedures
prior to the strike
Article 323:
A strike shall be declared according to the
procedures set out in the union’s statutes, which must state that the decision
to strike is adopted by secret ballot.
A. Prior Notice
Article 324:
A strike must be preceded by prior notice of
at least seven working days and be filed with the enterprise or establishment.
If the strike affects an industry or a sector of activity, the prior notice
must be filed with the corresponding employer's association, if any. The prior
notice must precisely specify the demands which constitute the reasons for the
strike.
The prior notice must also be sent to the
Ministry in Charge of Labor.
Article 325:
During the period of prior notice, the
Minister in Charge of Labor shall actively seek all means to conciliate between
the parties to dispute, including soliciting the collaboration of other
relevant ministries. The parties are required to be present at the summons of
the Minister in Charge of Labor.
B. Minimum Service
During the period of prior notice, the
parties to the dispute are required to attend the meeting in order to arrange
the minimum service in the enterprise where the strike is taking place so that
protection of the facility installations and equipment of the enterprise will
be assured. If there is no agreement between the parties, the Ministry in
Charge of Labor shall determine the minimum services in question.
A worker who is required to provide minimum
service covered by this Article and who does not appear for such work is
considered guilty of serious misconduct.
C. Essential Services
Article 327:
If the strike affects an essential service,
namely an interruption of such a service would endanger or be harmful to the
life, safety, or health of all or part of the population, the prior notice
mentioned in Article 324 shall be extended to a minimum of fifteen working
days.
Article 328:
During the period of such prior notice, the
Minister in Charge of Labor shall determine the minimum essential service to be
maintained so as not to endanger the life, health or safety of persons affected
by the strike. The workers' union that has declared the strike shall be asked
to give its views as to which services to be maintained.
A worker who is required to provide the
minimum essential service covered by this Article and who does not appear for
such work is considered guilty of serious misconduct.
Article 329:
The list of enterprises that provide
essential services in the sense of Article 328 shall be established by a Prakas
(ministerial order) of the Ministry in Charge of Labor. All disputes concerning
the qualification for an essential service shall be settled by the Labor Court,
or in the absence of a Labor Court, by a common court.
Section
3
Effects
of a strike
Article 330:
A strike must be peaceful. Committing violent
acts during a strike is considered to be serious misconduct that could be
punished, including work suspension or disciplinary layoff.
Freedom of work for non-strikers shall be
protected against all form of coercion or threat.
Article 332:
A strike suspends the labor contract. During
a strike, the allowance for work is not provided and the salary is not paid.
The worker shall be reinstated in his job at
the end of the strike.
The mandate of workers' representatives shall
not be suspended during the strike so that they can maintain contact with
representatives of the employer.
Article 333:
The employer is prohibited from imposing any
sanction on a worker because of his participation in a strike. Such sanction
shall be nullified and the employer shall be punishable by a fine in the amount
set in Article 369 of Chapter XVI.
Article 334:
During a strike, the employer is prohibited
from recruiting new workers for a replacement for the strikers except to
maintain minimum service provided for in Articles 326 and 328 if the workers who are required to provide such service do not appear
for work. Any violation of this rule obligates the employer to pay the salaries
of the striking workers for the duration of the strike.
Article 335:
A lockout undertaken in violation of these
provisions obligates the employer to pay the workers for each day of work lost
thereby.
Section
4
Illegal
strikes
Article 336:
Illegal strikes are those that do not comply
with the procedures set out in this Chapter.
Non-peaceful strikes are also illegal.
Article 337:
The Labor Courts or, in the absence of the
Labor Courts, the common courts, have sole jurisdiction to determine the
legality or illegality of a strike.
If the strike is declared illegal, the
strikers must return to work within forty-eight hours from the time when this
declaration is given out. A worker who, without valid reason, fails to return
to work by the end of this period is considered guilty of serious misconduct.
CHAPTER
XIV
LABOUR
ADMINISTRATION
Section
1
General
provisions
Article 338:
The Labor Administration is primarily
responsible for preparing, implementing, coordinating, supervising, and
evaluating national labor policy. Particularly within the realms of public
administration, it is the tool for formulating and enforcing legislation in
order for this policy to materialize.
The Labor Administration consistently studies
the situation of employed, unemployed or under-employed persons in light of the
national laws and practices regarding working conditions, employment and
professional life. It pays attention to inadequacies and abuses in this area
and puts forward a proposal and request a decision on method for remedy.
The Labor Administration offers its advisory
service to employers and to workers, as well as to their respective
organizations, in order to promote consultation and real cooperation between
the authorities or public institutions and employers or workers, as well as
between employers' and workers' organizations.
The Labor Administration responds to requests
for technical assistance from employers and workers, as well as from their
respective organizations.
The Labor Administration offers conciliatory
services to employers and workers, as well as to their organizations, in order
to help settle individual or collective disputes.
Article 339:
The Labor Administration must permanently
maintain enough personnel, material, means of transportation, offices and
premises to meet the needs of the service that is conveniently accessible to
all interested persons.
Agents of the Labor Administration must be
acquired with adequate training for carrying out their respective functions.
Relevant measures are taken by Prakas (ministerial order) of the Ministry in
Charge of Labor to ensure that permanent training is provided to these agents
during their employment.
Article 340:
The agents of the Labor Administration must
have the sufficient qualifications to perform their assigned functions, have
access to the necessary training in carrying out their functions and be free
from all undue external influence.
All this personnel shall be granted with
material means and financial resources required to effectively perform their
statutory duties.
Article 341:
The Ministry in Charge of Labor shall issue a
Prakas to determine the structure of the Labor Administration and, for each
service, specify:
Article 342:
The special statutes and conditions of
service for the various categories of personnel in the Labor Administration
shall be determined by an Anukret (sub-decree).
Section
2
Labor
inspection
The tasks of the Labor Inspection are assumed
by Labor Inspectors and by Labor Controllers.
Before their appointment, Labor Inspectors
and Controllers must solemnly swear allegiance to fulfilling their duties and
to not revealing, even after having left their post, any manufacturing or trade
secrets or operating methods that they learned of during the course of their
work.
Article 344:
The Labor Inspection shall have the following
missions:
a) to ensure
enforcement of the present Labor Law and regulatory text that is provided for,
as well as other laws and regulations that are not yet codified and that relate
to the labor system;
b) to provide
information and technical advice to employers and to workers on the effective
ways of observing the legal provisions;
c) to bring to the
attention of the competent authority any improprieties or abuses that are not
specifically covered by the existing legal provisions;
d) to give advice
on issues relating to the arrangement or restructuring of enterprises and
organisms that have been authorized by the administrative authorities and
covered by Article 1 of this law;
e) to monitor the
enforcement of the legal provisions regarding the living conditions of workers
and their families.
Article 345:
Labor Inspectors and Controllers can ask for
assistance from duly qualified experts and technicians from relevant ministries
or outside, who are specialized in medicine, mechanics, electricity, chemistry
and environment, in order to ensure enforcement of the legal provisions
regarding the health and safety of workers in carrying out their duties, and to
inquire about the effectiveness of the methods applied, the materials used, and
the regulations on the health and safety of workers. This technical assistance
shall be exerted under the monitoring of the Labor Inspector or the Labor Controller
in cooperation with relevant ministries.
The experts and technicians, who cooperate
with the Labor Inspector or the Labor Controller in enforcing the legal
provisions on the labor health and safety, must take an oath. They have the
same powers granted the Labor Inspectors as per Articles 346 and 347 below.
The expenses incurred from this assistance
shall be paid by the Ministry in Charge of Labor.
Labor Inspectors and Controllers possessing
the proper identification are authorized:
a) to freely enter
any enterprise within the jurisdiction of their inspection, without prior
notification of the time, whether day or night;
b) to enter in the
daytime workplaces that they could rationally assume to be subject to
inspection of their Inspector's Office;
c) to conduct any
examinations, inspections and investigations considered to be necessary to
ensure that the provisions are effectively observed, and, in particular,
· to question,
either alone or in the presence of witnesses, the employer or the staff about
any matter relating to the enforcement of the law;
· to demand
access to all books, ledgers, and documents that must be kept by the employer
as prescribed by the legislation relating to working conditions so as to verify
whether they (the papers) conform to the legislation; as well as to have the
right to copy or take extracts from the books or ledgers;
· to demand the
posting of notices or papers that are required to be affixed by law;
· to take, for
the purposes of analysis, samples of materials or substances used or mixtures
provided that the employer or his representative is aware that the materials or
substances were taken for this purpose.
During each inspection, the Labor Inspector
or Controller must inform the employer or his representative of his presence,
unless he thinks that doing so will prejudice the effectiveness of the
inspection.
The Labor Inspector and Controller may need
to be accompanied by one or more shop stewards during inspection.
Article 347:
In performing their duties, Labor Inspectors
and Controllers have the power:
1) to make
observations to the employer or his representative and to the workers;
2) to serve notice
on the employer or his representative to observe the legislation within a
certain time period;
3) to note with an
official report the non-observance of certain legal provisions that must, until
proved otherwise, be credited;
4) to order that
immediate measures be taken when they have every reason to believe or conclude
that there is an imminent and serious danger to the health or safety of the
workers.
5. to inflict the
fine on those guilty of violating the provisions of this law and any
enforcement-related text of these provisions.
Article 348:
Labor Inspectors, Labor Medical Inspectors
and Labor Controllers cannot have any interest whatsoever in the enterprises
within the jurisdiction of their inspection.
They must keep the source of any complaint,
referred to them, about any default in the facility or a violation of the law
strictly confidential and must not reveal to the employer or his representative
that the inspection was the result of a complaint.
Section
3
Labor
medical inspection
Article 349:
The Labor Medical Inspection permanently
operates for the purpose of protecting the health of workers at the workplace.
The tasks of this inspection are assigned to Labor Medical Inspectors who place
great emphasis on the organization and operation of labor medical services.
The Labor Medical Inspectors work in
conjunction with the Labor Inspectors and cooperate with them in enforcing
regulations regarding the health of workers.
Article 350:
Within the framework of their mission, the
provisions relating to the powers and obligations of Labor Inspectors provided
for in Articles 343 -
paragraph 2, 346 and 347 - points 1, 2, 3, 4 of this law, are also extended to the Labor Medical
Inspectors.
CHAPTER
XV
THE
LABOUR ADVISORY COMMITTEE
Article 351:
A Labor Advisory Committee shall be formed
under the Ministry in Charge of Labor.
It consists of:
It elects two vice-chairpersons, one from
among the workers' representatives and the other from among the employers'
representatives.
Article 352:
The composition and functions of the Labor
Advisory Committee shall be determined by an Anukret (sub-decree).
Article 353:
The Labor Advisory Committee must meet at
least twice per year. However, it can be convoked at any time by the Minister
in Charge of Labor at his own initiative or at the request of one of the
vice-chairpersons.
The chairperson sets the agenda of each
session of the Labor Advisory Committee in consultation with the
vice-chairpersons.
Article 354:
The Labor Advisory Committee shall have a
permanent secretariat, which is under charge of the Ministry in Charge of
Labor.
Article 355:
At the request of the Chairperson or of one
of the vice-chairpersons, duly qualified officers or prominent figures who are
competent primarily in the areas of economics, medicine, social or cultural
matters can be invited to attend the meetings of the Labor Advisory Committee
for consultations.
Article 356:
The post of member of the Labor Advisory
Committee is unpaid.
The employer whose worker is a member of the
Labor Advisory Committee is required to give the worker the necessary time to
attend the meetings.
This meeting period is paid as normal work
time and considered as such for the calculation of seniority and the right to
take leave.
The workers who are members of the Labor
Advisory Committee are subject to the same protection granted by this law to
union stewards and union leaders.
Article 357:
The Labor Advisory Committee has the mission
primarily to study problems related to labor, the employment of workers, wages,
vocational training, the mobility of labor force in the country, migrations,
the improvement of the material and moral conditions of workers and the matter
of labor health and safety.
The Labor Advisory Committee has the
following duties:
Article 358:
Participation of the Kingdom of Cambodia in
activities of the International Labor Organization shall be in consultations
with representatives of employers and workers who are members of the Labor
Advisory Committee.
PENALTIES
Article 359:
Those guilty of violating the provisions of
the articles in Chapter XVI of this law shall be fined or imprisoned or both.
Fines are imposed by the Labor Inspector and
the Labor Controller.
Article 360:
Fines are set in multiples of the base daily
wage. The base daily wage is the minimum wage set by a joint Prakas
(ministerial order) of the Ministry in Charge of Labor and the Ministry of
Justice.
Article 361:
Those guilty of violating the provisions of Articles 14, 20,
22, 24, 29, 30, 34, 37, 42,
43, 72, 112, 134, 187, 214, 222, 253, and 255
are liable to a fine of ten to thirty days of the base daily wage.
Article 362:
Employers who eliminate or suspend the weekly
time off of their workers or who provide this time off under conditions
contrary to the provisions of Section 4 of Chapter VI of the present Labor Law or Prakas instructing
enforcement of this law are liable to a fine of ten to thirty days of base
daily wage.
These penalties also apply to employers who
suspend this time off without the necessary authorization, or who do not
provide their workers with compensatory time off under the conditions laid in
the aforesaid provisions.
Article 363:
Those guilty of violating the provisions of Articles 21, 28, 44,
45, 49, 50, 57, 59, 106, 139, 144, 162, 163, 164, 166, 167, 168, 169, 170, 179, 180 - paragraphs 1 and 2,
182 - paragraphs 2 and
3, 184, 194, 198, 200, 204, 205, 206, 210, 249, 296, and 306 are liable to a fine of
thirty-one to sixty days of the base daily wage.
Article 364:
The employer who neglects or refuses to grant
an employment certificate under the conditions laid in Article 93
is liable to a fine of thirty-one to sixty days of the base daily wage.
Article 365:
Without prejudice to any civil liability,
those guilty of violating the provisions of Articles 113, 114, 115 and 116 are liable to a fine of thirty-one to sixty days of
the base daily wage.
Article 366:
Offsetting, installments, deductions from
wages by the employer in violation of the rules imposed by Articles 127, 128 and 129 are liable to a fine of thirty-one to sixty days of
the base daily wage.
Article 367:
Employers who employ staff under conditions contrary to the provisions of Articles 137, 138 - paragraph 2, 140 and 141 regarding hours of work or the Prakas instructing enforcement of these articles are liable to a fin