Civil Code and Labor Law

An employment relation derives from employment contract. The employment contract is governed by the Labor Law promulgated in 1997 and the Civil Code of Cambodia promulgated in 2011. This article briefly discusses how Civil Code and Labor Law relate to each other in terms of the labor sector.

  1. General law and special law

Although the Civil Code was adopted and promulgated after the Labor Law, Civil Code is recognized as general or basic law governing private relations in general sense, while the Labor Law is known as a special law that governs only employment relation, which is one of the private relations. For example, Article 668 of the Civil Code stipulates that employment contract is governed by the provisions set out in the Civil Code. Other than these provisions in the Civil Code, the employment contract is governed by the provisions of the Labor Law. The Labor Law, Article 65 states that an employment contract is a contract that establishes an employment relation between a worker and an employer. The employment contract is subject to general rules and may be made in the form agreed by the parties. Therefore, in case where there is any problem in the employment relation, the provisions or rules of the Labor Law will be applied to solve the problem. However, in cases where the Labor Law does not address this issue, the provisions contained in the Civil Code apply.

  1. Respect for private autonomy

As mentioned above, since the employment relation derives from the free will of the worker and the employer, the provisions of the Labor Law regarding the employment contract are also adherent or parallel with the principle of private autonomy defined in Civil Code. Article 3 of the Civil Code states that the Civil Code respects the free will of the individuals and provides for equal legal relations between private individuals, including legal entities. Based on this principle, Article 664 of the Civil Code states that an employment contract is formed by the promise of one party to work for the other party and the other party to pay wages for that work. The party that promises to work is called the worker, and the other party is called the employer.

According to the principle of private autonomy, the parties are free to conclude or not to conclude the contract, are free to choose the parties to the contract, are free to determine the content of the contract and are free to determine the form of their contract. However, the principle of private autonomy is only applicable in the situation where the parties have equal status or position. Since, in most case of the employment relation, the worker is deemed to be in lower economic and social status than the employer, the Labor Law has amended the principle of private autonomy in order to balance the interests of the workers and employers.

The examples of amendment to principle of private autonomy are as follows. Article 12 of the Labor Law which prohibits employers from discriminating in hiring the workers, is an amendment to the freedom to choose the parties which is one of freedoms in the principle of private autonomy. Article 13, which defines the provisions of the Labor Law as public orders, is an amendment to the freedom in determining the content of the contract. According to this Article 13, the agreement between the employer and the worker that provides benefits to the worker less than what is provided by the Labor Law is void. On the other hand, Article 67 (7) of the Labor Law, which requires a fixed-term employment contract to be made in writing, is an amendment to the freedom of parties in determining the form of the employment contract.

  1. Prohibition of abuse of rights

In an employment relation under an employment contract, the employer has the right to manage and direct the enterprise as well as his or her workers (Articles 2 and 3 of the Labor Law). The exercise of this right must be subject to the general rules of the Civil Code, unless otherwise specified in the Labor Law. Article 4 of the Civil Code prohibits the abuse of right by stating that even right, if it is used beyond the scope of the protection originally anticipated, the use or exercise of such right is void.

In an employment relation, the parties can choose the type of contract that best suits their relation. That is, fixed-term employment contract is used for short-term employment relation, whereas undetermined duration contract is used for long-term employment relation. To avoid the arbitrary exercise of rights by employers in the use of fixed-term contract for long-term employment relation, the Labor Law establishes a mechanism that converts fixed-term contract into undetermined duration contract if the employment relation exceeds the maximum period specified by the labor law. For example, Article 67 (2) of the Labor Law states that an employment contract entered into by agreement with an actual duration cannot exceed two years. This contract can be renewed one or more times, as long as the renewal period does not exceed two years. Any use of fixed duration contract which is contrary to the above rules would result in the employment contract becoming an undermined duration contract.

  1. Implementation of the principles of good faith and honesty

Many of the provisions of the Labor Law are consistent with the principles of good faith and honesty set out in the Civil Code. Article 5 of the Civil Code stipulates that the exercise of rights and the performance of duties must be conducted in good faith and honesty. Based on this principle, Article 666 of the Civil Code states that employers have a duty to take care of body and health of the worker, especially to protect worker from accident where the workers are assigned to work. In addition, Article 667 of the Civil Code states that without the consent of the worker, the employer cannot assign his or her right to a third party. Similarly, without the consent of the employer, the worker cannot have a third party to perform work or service on his or her behalf.

Along with the above provisions of the Civil Code, the Labor Law in Article 69 states that within the framework of the employment contract, the worker must perform all of his professional activities to the enterprise. The workers have to do the work they are hired to do and perform the work by themselves with due care and attention. However, outside of working hours, the worker may engage in professional activities that do not compete with the enterprise he or she serves or that is not harmful to the agreed process unless otherwise agreed.

In conclusion, the Civil Code is closely related to the Labor Law. This article discusses only some of the provisions of the Labor Law, and in fact there are many other relevant provisions that reflect the relationship between the Civil Code and the Labor Law.

Categories Employment and Labor Laws

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