Freedom to Join and Form a Union
Constitution and labour law provide for freedom of association and allow workers and employers to join and form unions regardless of their gender, age and nationality. This right is regulated by the labour law.
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. 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 joined earlier.
Article 36 of the Constitution provides that "Khmer citizens of either sex shall have the right to form and to be member of trade unions". The Labour Law regulates the formation of trade unions and provides that "all workers, regardless of sex, age, nationality are free to be a member of the trade union of their choice".
Union members are free to elect their representatives and formulate their work program. They may draw up their own statutes and administrative regulations, as long as these are not contrary to laws in effect and public order.
The unions must get registered with the Ministry by filing their statutes and list of names of those responsible for management and administration. A trade union is considered registered if the Ministry of Labor does not reply within two months after receipt of the registration form. Filing of registration form has to be done again in case of any change in statutes and administration.
An employer is not allowed to interfere in a trade union's affair and to support a union that is under the control of the employer or an employer's organization. Employer may deduct union dues from the wages of the members only after their written consent. Discriminatory behavior is prohibited for the employer on the basis of union affiliation or participation in union activities.
Under the 2016 Law on Trade Unions, workers and employers have the right to form a union or an employer association of their own choice. There cannot be any discrimination in trade union or employer association membership on the ground of race, color, sex, creed, religion, political opinion, nationality, social origin or health status. Workers are aslo free not to join a union or withdraw from a union. At least 10 workers are required to form a union.
Employers are prohibited from discriminating against workers on the basis of their involvement in holding the office and leadership in union or participation in union activities when making decisions concerning the recruitment, leadership, assignment, promotion, position, remuneration and benefits, disciplinary measures and contract termination, including for the dismissal and non-renewal of the employment contract that are subsequently [found to be] against the established procedures.
Sources: §36 of the Constitution of the Kingdom of Cambodia, of 21 September 1993 (as amended in 1999); §266-278 of the Labour Law, promulgated by Royal Order No. CS/RKM/0397/01 of 13 March 1997 (amended in 2007); Law on Trade Unions, 2016
Freedom of Collective Bargaining
Right to collective bargaining is recognized and regulated by Labour Law. Collective bargaining is a written agreement between a group of employees and one or more employers about wages and working conditions. A CBA usually provides better benefits to the worker than those provided in the law. If a CBA has provisions which are less favourable than those provided under the law, it cannot be enforced.
A CBA may be concluded for definite or indefinite time period. The duration of a CBA signed for definite time period may not exceed 3 years. A CBA of indefinite term may be cancelled by giving a cancellation notice of one year.
While signing a CBA, employees are generally represented by a union when negotiating a CBA. The union must be representative of employees in that enterprise. The Ministry of Labour gives an official decision as to whether a union is representative. In case there is no union in a workplace, shop stewards may negotiate a CBA with the employer however such CBA can't be signed for a term of more than one year,
Collective agreements also 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.
In order to bargain collectively, employer must agree to the reasonable rules for bargaining and respond to proposals made by the union in a reasonable way. Employer must also provide reasonable resources and information to unions involved in collective bargaining.
A collective bargaining agreement, written in khmer, must be registered with the Ministry of Labour and posted in the workplace. The CBA comes into effect 1 (one) day after it has been registered.
Labour Advisory Committee is the tripartite body with representation from government and social partners. LAC has to study problems related to labour, the employment of workers, wages, vocational training, the mobility of labour force in the country, migrations, the improvement of the material and moral conditions of workers and the matter of labor health and safety. It formulates recommendations on the guaranteed minimum wage; render advice beforehand in order to extend the scope of a collective agreement or, if there is no collective agreement, give advice eventually on any regulation concerning the conditions of employment in a given profession or in a certain sector of activity. The Labour Advisory Committee is chaired by the Minster of Labour, has a formal composition of seven trade union representatives, seven employer representatives, and 14 government representatives.
The LAC must meet at least twice per year.
Sources: §96-101 and 351-358 of the Labour Law, promulgated by Royal Order No. CS/RKM/0397/01 of 13 March 1997 (amended in 2007); Prakas on registration procedure, advertisement, and observation on the collective bargaining agreement (287/2001); Law on Trade Unions, 2016
Right to Strike
Right to peaceful strike is recognized under the Constitution and is regulated under the Labour Law.
Labour law defines strike as a stoppage of work (by the 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. Peaceful strike is allowed only after all the methods of dispute resolution (negotiation, conciliation and arbitration) fail.
Members of union must approve strike by secret ballot and inform the employer and the Ministry of Labour at least 7 days prior to the proposed date of strike. Strikers are not allowed to force other workers to participate in strike and they have the right to return to work without any punishment once the strike is over.
Strikers must not threaten non-strikers. Strikers cannot stop other employees who want to go to work during a strike from doing so. Employers are not obliged to pay the workers on strike. Cambodian law maintains a list of essential services where minimum service must be maintained if strike action is initiated. The Labour Law requires employers not to punish the striking workers and prohibits hiring of replacement workers.
Strike is considered illegal if it is not peaceful and does not comply with the provisions of labour law. It is illegal to start strike in order to force an employer to revise a CBA or arbitral award which is still in force. Only courts can declare a strike as illegal.
Employers also have the right to lockout workers. This right is subject to the same rules and restrictions as the right to strike. If an employer conducts an illegal lockout, he is required to pay the employees' salaries during the lockout along with penalties.
The employer is admonished in writing for workers to participate in a lawful strike or by exerting threat against workers who have participated in a lawful strike. Failure to comply with the admonishment is subject to a transitional fine not exceeding 5,000,000 (five million) riel.
Sources: §37 of the Constitution of the Kingdom of Cambodia, of 21 September 1993 (as amended in 1999); §318-377 of the Labour Law, promulgated by Royal Order No. CS/RKM/0397/01 of 13 March 1997 (amended in 2007); Law on Trade Unions, 2016
Regulations on Trade Unions
Labour Code, 1997
Constitution of the Kingdom of Cambodia, 2012