ច្បាប់ការងារនៃប្រទេសកម្ពុជា ជំពូក XIII
STRIKES - LOCKOUTS
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.
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.
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.
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.
The right to a lockout shall be exercised under the same provisions as the right to strike.
Procedures prior to the strike
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
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.
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
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.
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.
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.
Effects of a strike
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.
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.
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.
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.
A lockout undertaken in violation of these provisions obligates the employer to pay the workers for each day of work lost thereby.
Illegal strikes are those that do not comply with the procedures set out in this Chapter.
Non-peaceful strikes are also illegal.
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.