ច្បាប់ការងារនៃប្រទេសកម្ពុជា ជំពូក 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.
Workers' unions and employers' associations have the right:
- to draw up their own statutes and administrative regulations, as long as they are not contrary to laws in effect and public order;
- to freely elect their representatives;
- to formulate their work program.
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.
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.
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
All workers, regardless of sex, age, nationality are free to be a member of the trade union of their choice.
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.
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.
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.
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.
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:
allocation of seats in certain organizations provided for in the labor law, competence in matters of collective bargaining (negotiation), nomination of candidates in the first round of elections for shop stewards.
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.
Protection of trade union freedom
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.
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:
Workers covered by Article 1 - paragraph 3 of this law have the right to elect shop stewards, but the provisions for implementation shall be determined by a separate Anukret (sub-decree).
Personnel serving in the air or sea transportation industries also abide by the provisions of the present Section.
However, for elections of shop stewards, they must be grouped into one or more specific electoral colleges with their own shop stewards within their enterprises.
This Section 3 does not apply to domestic or household servants.
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.
The missions of the shop steward are as follows:
- to present to the employer any individual or collective grievances relating to wages and to the enforcement of labor legislation and general labor regulations as well as collective agreements applicable to the establishment;
- to refer to the Labor Inspector all complaints and criticism relating to the enforcement of the labor legislation and labor regulations that the Labor Inspector is responsible for monitoring;
- to make sure the provisions relating to the health and safety of work are enforced;
- to suggest measures that would be beneficial to contribution towards protecting and improving the health, safety and working conditions of the workers in the establishment, particularly in case of work-related accidents or illnesses
The shop steward must be consulted and put forward a written opinion on the draft of internal regulations provided for in
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.
- The number of shop stewards is set in proportion to the number of workers in the establishment as follows:
- from 8 to 50 workers: one official shop steward and one assistant shop steward;
- from 51 to 100 workers: two official shop stewards and two assistant shop stewards;
- more than 100 workers: one extra shop official steward and one extra assistant shop steward for each group of one hundred workers.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.