The Labor Court has jurisdiction over the settlement of labor disputes and any issues indicated by labor laws. Labor laws here refer to all laws and regulations governing employment and labor relations, including the Labor Law promulgated in 1997, the Trade Union Law promulgated in 2016 and the Minimum Wage Law promulgated in 2018. This article briefly discusses jurisdictions of the Labor Court in Cambodia.
Assessment of serious misconduct
First, the Labor Court has jurisdiction over the assessment of serious misconducts of the parties to the employment contract. Serious misconduct of a worker is a valid reason that allows his or her employer to dismiss him or her while serious misconduct of an employer is reasonable ground that allows the worker to unilaterally terminate the employment contract. Therefore, an assessment or determination of a serious misconduct is essential for unilateral termination of an employment contract by either employer or worker. The Labor Law does not provide conditions that constitutes serious misconduct, but it lists down serious misconducts of both workers and employers.
Article 83, point A of the Labor Law describes the serious misconducts of the employer as follows:
- Deceptive tactics used to entice a worker to enter into a contract on a condition that the worker would not have agreed to if he or she had not been deceived.
- Refusal to pay wages in whole or in part.
- Repeated late payment of wage.
- Insults, threats, violence, or assault.
- Failure to provide sufficient worker to a peace-worker.
- Failure to comply with the labor health and safety measures set out in the existing laws in force.
Article 83, point B of the Labor Law describes the serious misconducts of the workers as follows:
- Stealing, misappropriation, embezzlement.
- Fraudulent acts committed at the time of signing (presentation of false documentation) or during employment (sabotage, refusal to comply with the terms of the employment contract, divulging professional confidentiality).
- Serious infractions of disciplinary, safety, and health regulations.
- Threat, abusive language or assault against the employer or other workers. 5. Inciting other workers to commit serious offenses.
- Political propaganda, activities or demonstrations in the establishment.
Article 84 of the Labor Law stipulates that before the Labor Court is established, the ordinary court must have the jurisdiction over the assessment of serious misconducts other than those stipulated in Article 83 of the Labor Law. Therefore, in addition to the serious conducts of workers and employers mentioned in Article 83 above, there are other serious misconducts to be determined by the Labor Court.
Determination on legality of strike
Second, the Labor Law has the jurisdiction in determining the legality of the strike. A strike is a concerted work stoppage by a group of workers which takes place in an enterprise or establishment in order to obtain a just solution to their demands from their employer as a condition of their return to work. (Article 318 of the Labor Law) Determining the qualification of a strike as legal or illegal is the exclusive jurisdiction of the Labor Court or the ordinary court if there is no Labor Court. If the strike is declared illegal, the strikers must return to work within 48 hours of the announcement. Workers who do not return to work before the 48-hour deadline and do not have a valid reason are considered to commit serious misconduct. (Article 337 of the Labor Law)
The Trade Union Law, in particular Article 92, also clarifies the jurisdiction of the Labor Court in determining the qualifications of strike. This article defines illegal strike as strike carried out by strikers after the Labor Court has ruled that strike is illegal. A written warning must be given to the person leading the illegal strike. Failure to comply with the above warning must result in a transactional fine of not more than five million riels.
Determination on legality of lockout
Third, the Labor Court has jurisdiction in determining the legality of lockout. A lockout is the closure of an enterprise or establishment, in whole or in part, by the employer in the event of a labor dispute. (Article 318 of the Labor Law) Illegal lockout is lockout that is continued by the employer after the Labor Court has ruled that the lockout is illegal. (Article 93 of the Law on Trade Unions)
Dissolution of professional organizations
Fourth, the Labor Court has jurisdiction over dissolution of professional organizations. Formation of professional organizations is the right and choice of workers and employers. That is, workers have the right to form unions without the prior permission of the employer, while employer has the right to form associations without the prior consent of the workers.
The professional organization of the workers and the employers may be formed only for the purpose of studying, promoting the interests and protection of rights, as well as the collective and individual spiritual and material interests of the persons to whom the statute of the organization apply. (Article 266 of the Labor Law) In the event that the leader or manager of a professional organization or union of professional organizations that leads those organizations to act contrary to their purpose as described above, that leader or manager must be punished by a fine of 61 Days to 90 days of base daily wage (currently based daily wage is 40,000 Riel or 10$).
The dissolution of a professional organization or union of professional organizations must be declared by the Labor Court in the event that those organizations have acted in violation of the above paragraph or in case of serious and repeated violations of laws and regulations, especially in the field of professional relations. (Article 378 of the Labor Law) The jurisdiction of the Labor Court in dissolving the professional organizations contained in this Labor Law is also reiterated in the Trade Union Law. Article 28 of the Trade Union Law stipulates the dissolution of a union or employers’ association can be dissolved in any of the following ways:
- A union or employers’ association is dissolved in accordance with the statutes of each union or employers’ association.
- A union is automatically dissolved in the event that the enterprise or establishment is permanently closed.
- Unions or employers’ associations are dissolved by the court.
The Trade Union Law, Article 29, provides that stakeholders or members equal to 50% of the total membership of a union or employers’ association have the right to sue in the Labor Court to dissolve that union or employers’ association. Unions or employers’ associations must be dissolved by the Labor Court for any of the following reasons:
- The formation or activities of unions or employers’ associations are contrary to the laws or objectives of the unions or employers’ associations as stated in the statute.
- Unions that are no longer independent of their employers and in fact can no longer regain their independence.
- Leaders, managers and those in charge of administration are found guilty of serious misconduct on behalf of a union or employers’ association.
The Labor Court may set a time frame for the union or the employers’ association to correct any deficiencies as stated above before issuing its decision.
Resolution of individual labor dispute
Fifth, the Labor Court has the competent authority to resolve individual labor disputes. Article 387 of the Labor Law requires for the establishment of the Labor Court to adjudicate individual disputes arising between workers and employers as a result of the execution of an employment contract or an apprenticeship contract. An individual dispute is a dispute that arises between employer and one or more workers or apprentices individually and relates to the interpretation or implementation of the terms of the employment contract or the apprenticeship contract, or the provisions of a collective agreement as well as regulations or laws in effect.
Before filing a lawsuit in the Labor Court, an individual dispute can be referred for a preliminary conciliation, at the initiative of one of the parties, to the Labor Inspector of his or her province or municipality. (Article 300 of the Labor Law)
Resolution over dispute on election of shop stewards
Sixth, the Labor Court has the authority to resolve complaints on the results of the election of shop stewards or staff delegates. The Labor Court has jurisdiction in resolving disputes related to the election, the right to stand for election and the inaccuracy of the election of staff representatives. (Article 47 of the Law on Trade Unions)
In addition to the jurisdictions mentioned above, the Labor Court has many other important competencies and roles in enforcing the labor laws. Due to the fact that there is currently no Labor Court, all labor disputes or issues of labor relations that are under the jurisdiction of the Labor Court are resolved by the ordinary court.