In Cambodia, there is a practice in which workers have to go through probation for a certain period before beginning defined employment relations with their employers. What is the purpose of having probationary period? Probationary period is an agreed period needed for the employer to judge the professional worth of the worker and for the worker to know concretely the working conditions provided. (Article 68 of the Labor Law) Employment during the probationary period is fragile relationship because either a worker or an employer can terminate the contract at any time. (Article 82 of the Labor Law) Since there are only a very few provisions of the Labor Law regulating probationary contract or probationary period, this text answers to the question “what are the rights and obligations of the worker during the probationary period or under the probationary contract?
1. Obligations to work and the right to wages:
A probationary contract is also a type of employment contract. Therefore, during the probationary period, the worker is obliged to provide labor or service to the employer who, in return, is obliged to pay the worker for the said labor or service. Since probation has not yet become defined employment relationship, there is difference in the wages of workers during and after the probationary period. In other words, wages during probationary period might be less than those after probationary period.
Pursuant to Prakas No. 303/20 dated 10 September 2020 of the Ministry of Labor and Vocational Training on the determination of the minimum wage for textile, garment and footwear workers for the year 2021, Clause 1, paragraph 1, sets the minimum wage for probationary workers at $187 per month. At the end of the probationary period, workers becoming a regular worker receives a minimum wage of $192 per month.
Can the parties to the probationary contract agree to set the wage during the probationary period to be equal to the wage when the worker becomes a regular worker? In the event that there is such an agreement, the employer must pay the worker equally during and after the probationary period. The law recognizes private agreement that provides better benefits to workers than those provided by the law. (Article 13 of the Labor Law)
2. Obligations of workers to respect the supervision and management of the employer in exchange for the rights to receive safety care from the employer:
Even during the probationary period, probationary workers have the same obligations to respect the supervision and management of their employers as regular workers do. Obedience to the supervision and management of the employer is the obligation of all types of workers as defined in Article 3 of the Labor Law. As consideration for the said obligation, the law requires employers to pay attention to the safety of workers. Article 666 of the Civil Code stipulates that the employer has the obligation to take care of the health of workers.
3. Obligation of workers to perform their own works carefully and not to compete with employers:
Article 69 of the Labor Law provides that within the framework of the employment contract, the worker must perform all of his or her professional activities for the enterprise. Primarily, he or she must do the work for which he or she is hired, and perform it by himself or herself with due care and attention. However, outside working hours, the worker can engage in any professional activities that are not in competition with the enterprise for which he or she works or that are not harmful to the agreed process of performance, unless there is an agreement to the contrary. Since probationary contract is also a type of employment contract, probationary workers must fulfill the above-said obligations in the same way as regular workers do.
4. Obligation of workers to be honest and to safeguard confidential information of the enterprise:
The principle of good faith and honesty, which is a general principle in Article 5 of the Civil Code, stipulates that the exercise of rights and the performance of duties must be done in good faith based on honesty. Based on this general principle and based on the fact that the probationary contract is also an employment contract, we can conclude that the probationary worker also has the obligation to be honest and to keep confidential information of the enterprise as the regular worker does.
5. Right to weekly time off, paid public holiday, paid annual leave and special leave:
Pursuant to Article 147 of the Labor Law, weekly time off must last for a minimum of 24 consecutive hours. All workers must be given in principle a day off on Sunday. In addition, based on Article 146 of the Labor Law, employer is prohibited from using the same worker for more than 6 days per week. Therefore, we can conclude that probationary worker also has the same weekly time off as regular worker does.
Paid public holidays for workers of all enterprises must be determined annually by Prakas of the ministry in charge of Labor. (Article 161 of the Labor Law) Therefore, all types of workers, including probationary workers, must also have the right to these public paid holidays.
Paid annual leave is given to all workers, including probationary workers. Article 166 of the Labor Law provides that unless there are more favorable provisions in collective agreements or individual labor contracts, all workers are entitled to paid annual leave to be given by the employer at the rate of one and a half work days of paid leave per month of continuous service. Any worker who has not worked for 2 continuous months is entitled, at the termination of his or her labor contract, to compensation for paid leave calculated in proportion to the amount of time he or she worked in the enterprise. For jobs that are not performed regularly throughout the year, a worker is considered to have met the condition of continuous service if he or she works an average of 21 days per month.
In addition, according to Article 167 of the Labor Law, worker can only be entitled to this annual leave until he or she has worked for one year. In case of termination or expiration of the contract before the worker has acquired the right use paid leave, the indemnity must be paid to the worker.
Therefore, the probationary period must also take into account the number of annual leave under Article 166 above. However, probationary workers cannot exercise the paid annual leave during probation. In the event of termination of this probationary contract, the worker is entitled to an indemnity in lieu of the annual leaves.
Special leave is a leave that allows workers to take day off, especially in the event of an event that directly affects workers and their families. In the event that the worker has not yet exercised all of his or her annual leave, the employer may deduct the above special leave from the worker’s annual leave. In case where the worker has already used his or her annual leave, the employer cannot deduct the above special leave from the annual leave for the next year of the worker. Because workers, including probationary workers need to be absent from work in the event that directly affects the worker and his or her family, such as marriage or child death, the death of a parent, as an interpretation, we can conclude that probationary worker also has the right to special leave and also the right to request the employer to deduct the number of special leave with the number of annual leave in accordance with Article 166 of the Labor Law.
6. Workers’ rights at the end of the probationary period or in the event that the employment contract is not continued at the end of the probationary period:
Article 68 of the Labor law provides that a contract for a probationary period cannot be for longer than the amount of time needed for the employer to judge the professional worth of the worker and for the worker to know concretely the working conditions provided. However, the probationary period cannot last longer than three months for regular employees, two months for specialized workers and one month for non-specialized workers. Although Article 68 sets the maximum duration of the probationary contract, such as 1 month, 2 months or 3 months, depending on the type of worker, it is interpreted that the probationary contract is not a fixed duration contract. In addition, there are some cases where the parties do not specify the period of probation. In that case, we also cannot conclude that the probationary contract is an undetermined contract.
A probationary contract is another type of contract and different from fixed duration contract and undetermined duration contract. Therefore, we cannot use the rules of termination of fixed duration contract or undetermined duration contract for the case of termination of probationary contract. This above said interpretation is also based on Article 82 of the Labor Law, which stipulates that in the case of probationary period, the parties are not required to give prior notice.
In conclusion, upon termination of the probationary contract, the worker is entitled to wages and indemnity in lieu of annual leave which have not been paid.
Please note that this article is not legal opinion or legal advice. If you experience any issues mentioned above, please seek legal advice from a lawyer.