What is special leave?
Special leave or personal leave refers to one of the paid leaves taken by the worker for a period not more than 7 days per year on the occasion that there is any event directly affecting the worker’s immediate family, which include (1) his or her marriage, (2) his wife delivering baby, (3) his or her child’s marriage, (4) husband, wife, father, or mother’s sickness or death. (Article 171 of the Labor Law and Article 1 of Prakas No. 267 dated 11 October 2001 on Special Leave, issued by the Ministry of Labor and Vocational Training)
How can a worker take special leave?
Pursuant to Article 171 of the Labor Law and Article 2 of Prakas No. 267, the employer may deduct the special leave from the worker’s annual leave if the concerned worker has not yet taken all his or her annual leave or may require the worker to work in order to make up the working hours lost during special leave if the concerned worker has used all his or her annual leave.
Therefore, there are four requirements in order for a worker to take special leave. First of all, a worker needs to have valid reason for taking special leave. Secondly, he or she has not used all his or her annual leaves. Thirdly, he or she has not used all his or her special leave entitlement. Fourthly, the worker is required to work in order to make up the working hours lost during the special leave.
We can further examine the following three main scenarios in order to better understand implementation of special leave.
The first scenario is the case where the worker still has annual leave and special leave. For example, the annual leave available for the worker for this year is 18 days. The worker wishes to take 3 days off on the occasion of his marriage. Because marriage is valid reason for special leave, the worker can take 3 days as special leave. Therefore, worker’s remaining annual leave is 15 days while the worker’s remaining special leave is 4 days.
The second scenario is the case where the worker has used all his annual leave, but he still has special leave. For example, the annual leave for this year has been all used by the worker. The worker wishes to take 3 days off on the occasion of his marriage. Because marriage is valid reason for special leave, the worker can take 3 days as special leave and employer can require the worker to work in order to make up the working hours lost during special leave, within 90 days after the special leave was taken. The make-up work must be done by the worker during the normal working days and in the condition that the total working hours will not exceed 10 hours per days or 56 hours per week. (Article 3 of Prakas No. 267) The worker who performs the make up work is paid according to the normal hourly rate. (Article 4 of Prakas No. 267)
The third scenario is the case where the worker has used all his annual leave and special leave. For example, the worker wishes to take 3 days off on the occasion of his marriage. In this case, the employer may allow the worker to take leave for his marriage, but the employer has no obligation to pay the worker during these 3 days off. In other words, 3-day leave is unpaid leave.
Can the parties to contract agree to rule or arrangement of special leave which is different from the Labor Law?
Pursuant to Article 13 of the Labor Law, any agreement which has conflicted with the provision of the Labor Law is void; however, 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 such agreement. Accordingly, if parties enter into an agreement which provides more benefits than those provided to worker under the Labor Law, such agreement is valid. However, if the such agreement provides worker with less benefits than those provided under the Labor Law, such agreement is invalid.
In conclusion, we can see that special leave in Cambodia is part of annual leave from the view point that special leave is deduct from annual leave, meanwhile we can see that special leave is another benefit provided to the worker in addition to annual leave from the view point that if worker takes all annual leave he can still take special leave.
Please note that this article is not legal opinion or legal advice.