The present Labor Law of Cambodia (hereinafter called the “Labor Law”) was promulgated and has become effective since 1997. The Labor Law is known as the replica of the Labor Code promulgated in 1972 and the Labor Code promulgated in 1992 since many provisions of the Labor Law have been adopted or written based on many provisions of the two labor codes. The Labor Law was firstly amended in 2007 with regard to Article 139 and Article 144 on night works. The second amendment to the Labor Law was made in 2018 with regard to Article 87, Article 89, Article 91, Article 94, Article 110, Article 120 and Article 122 replacing dismissal indemnity with seniority payment.
The Labor Law covers employment and labor relations in Cambodia. In other words, the Labor Law governs both individual employment relation and collective labor relation in Cambodia. Please note that laws and regulations of Cambodia are officially written in Khmer language. The Labor Law has been unofficially translated into English for information only. In the case where the Khmer text and English text are inconsistent, it is generally understood that Khmer text will prevail over the English text. Unless otherwise specifically stated in this text, the Article mentioned herein refers to Article of the Labor Law.
This text aims to finger out and highlight only a few features of the Labor Law of Cambodia. This is because understanding of these features helps students and people who are interested in employment and labor laws of Cambodia better understand the Labor Law. Students and people who have interest in the Labor Law should understand these features before reading the provisions or texts of the Labor Law.
The features of the Labor Law are as follows:
- The Labor Law is not the Labor Code of Cambodia.
The first feature of the Labor Law we need to be aware of is that the Labor Law is not the Labor Code of Cambodia. What does Labor Code mean? Labor Code means the codification of laws and regulations governing the labor and employment relations in Cambodia. Historically speaking, Cambodia had its first Labor Code in 1972 adopted during the regime of Khmer Republic (1970 to 1975). Thereafter, during the regime of Democratic of Kampuchea better known as Pol Pot regime (1975 to 1979), the Code was not put into practice. After the collapse of Pol Pot Regime in 1979, Cambodia adopted its second Labor Code in 1992 during the regime of the State of Cambodia (1989 to 1993). The adoption of the present Constitution of Cambodia in 1993 led to the adoption of the Labor Law in 1997 to govern the employment and labor relations in compliance with free market economy system and the constitutional rights of workers enshrined and provided by the said Constitution.
The decision of the lawmakers to name the new employment and labor laws as “Labor Law” might be based on the purpose or expectation that laws governing employment and labor relations will not be limited to the Labor Law, but to other laws in the future in order to cope with the rapid and flexible growth and development of the labor markets and nature of employment and labor relations in Cambodia. This is evident by the fact that after the adoption and promulgation of the Labor Law in 1997, the Law on National Social Security Schemes for Persons Defined by the Provisions of the Labor Law was promulgated in 2002 (This Law was later replaced by the Law on Social Security Schemes which was adopted on 08 October 2019). Thereafter, the Law on Trade Unions was promulgated in 2016 and the Law on Minimum Wage was promulgated in 2018. Hence, we can conclude that the Labor Law of Cambodia of 1997 is not the Labor Code to the extent that there are several other laws adopted and (might be adopted in the future) in order to govern the employment and labor relations in Cambodia.
Despite above assumption that Labor Law is not the Labor Code of Cambodia, we cannot deny the fact that comparatively the Labor Law is the fundamental law or the source of law upon which other laws, namely Law on Trade Unions and the Law on Minimum Wage were adopted. If we carefully review these two laws, we can say that several provisions stipulated in both laws are the addition, modification, revision and clarification to provisions of the Labor Law.
2. Provisions of the Labor law are public orders.
The second feature of the Labor Law of Cambodia is that in general the provisions of the Labor Law are of the nature of public orders. Employment and labor relations are contractual relations in which the workers are treated and considered socially and economically inferior to the employers. To avoid unfair contractual terms or working conditions which are unilaterally decided by the employer, the provisions Labor Law provide the minimum standard rules which are of the nature of public orders. Accordingly, both employer and worker cannot enter into the contract or agree to the contractual clauses or working conditions that provide benefits to the worker to be less than the benefits provided by the provisions of the Labor Law. This reflects how provisions of the Labor Law with the nature of public orders limit the principle of the private autonomy or the freedom of contract where the parties have freedom to decide the terms and conditions of their contracts. In consideration to the enhancement of the workers’ rights and benefits, the employer and workers are allowed to conclude the contract or agree to the terms and conditions that provide benefits to the workers than those provided under the Labor Law.
To understand more about the second feature of the Labor Law as mentioned above, we can read Article 13 of the Labor Law. The said article provides that the provisions of the Labor Law are of the nature of public order, excepting derogations provided expressly. Consequently, all rules resulted from a unilateral decision, a contract or a convention that do not comply with the provisions of the Labor Law or any legal text for its enforcement, are null and void. Except for the provisions of the Labor Law that cannot be derogated in any way, the nature of public order of the Labor Law is not obstructive to the granting of benefits or the rights superior to the benefits and the rights defined in the Labor Law, granted workers by a unilateral decision of an employer or a group of employers, by an employment contract, by a collective convention or agreement, or by an arbitral decision.
3. Labor Law governs individual employment relations and collective labor relations.
The third feature of the Labor Law is that the Labor Law governs both individual employment relation and collective labor relation. Individual employment relation refers to the relationship between an employer and one or more employees on a case-by-case basis and relates to the rights and obligations set forth in the employment contract, internal regulations of the enterprise, collective agreements or provisions of the Labor Law.
Collective labor relation is labor relation between one or more employers with some of workers or group of workers, or an internal relationship between and among the employers, or an internal relationship between and among the workers which related to the rights and obligations of the parties under the laws, future interest or benefit of the workers, workers’ representatives, professional organizations such as employers’ associations and trade unions, collective bargaining, collective agreements, strikes and lockouts. With the adoption of Law on Trade Unions, several aspects of the collective labor relation are now not governed by the Labor Law.
4. Labor law is private and public law:
The fourth feature of the Labor Law is that the Labor Law is both private and public law. Under the Labor Law, if a provision is of nature of private law, the party whose rights have been violated must take action on their own by seeking a means of settlement of disputes in court or the competent authority to resolve disputes. For example, Article 74 and Article 75 of the Labor Law are of the nature of private law. Article 74 deals with the requirement that employer provides prior notice of dismissal to the worker and presents a valid reason for dismissal. Article 75 regulates the minimum period of prior notice of contract termination.
If provisions of the Labor Law are of nature of public or administrative law, there will be intervention or involvement of labor inspector or labor controller to oversee the implementation of provisions of the Labor Law and impose penalties on those who violate them. For example, Article 359 of the Labor Law provides that those guilty of violating the provisions of the articles in Chapter XVI of the Labor Law must be fined or imprisoned or both. Such mechanism is in addition to the actions to be taken by the party whose rights have been violated or infringed by the other party. For example, Article 113 on direct payment of wage, Article 114 on prohibition of employer’s restricting the freedom of workers to using his or her wage, Article 115 on place and form of wage, and Article 116 on frequency of wage payment in a month are provisions with nature of public or administrative law. This is because Article 365 of the Labor Law provides that without prejudice to any civil liability, those guilty of violating the provisions of articles 113, 114, 155 and 116 are liable to a fine of 31 to 60 days of the base daily wage.
In conclusion, one of the effective ways to read and understand the Labor Law of Cambodia is to understand its key features. This text only highlights a few of the features. Other features of the Labor Law will be discussed later.