1. What is a Strike?
According to Article 318 of the 1997 Labor Law, a strike is work stoppage by a group of workers in an enterprise or establishment in order to obtain a fair solution to their demands from the employer as a condition to return to work. To understand strike, it is also important to briefly discuss about lock-out and demonstration.
2. What is Lock-out?
A lockout refers to 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) Strike is action of workers while lockout is action of employer after a labor dispute arises in an enterprise or establishment.
3. What is a demonstration?
Article 37 of the 1993 Constitution of the Kingdom of Cambodia states that the right to strike and to demonstrate peacefully must be exercised within the framework of the law. Pursuant to Article 4 of the Law on Peaceful Demonstration promulgated in 2009, peaceful demonstration refers to the gathering or march of a group of people to protest or publicly express their group’s sentiments, opinion or will in the form or other means peacefully. Article 3 of the same law stipulates that the Law on Peaceful Demonstration applies to all gatherings or peaceful demonstrations and marches in the Kingdom of Cambodia, but does not apply to:
- Meetings or rallies or marches in any election campaign;
- Gatherings inside and outside the fence of factories or enterprises or institutions related to labor disputes that must be included in the scope of application of labor laws;
- Marching, parade, funeral procession and other gatherings for the purpose of serving religion, arts, culture, customs, national traditions and educational activities for the benefit of society.
4. Exercise of the right to strike
The right to strike is guaranteed and this right can be exercised as follows:
- This right may be exercised by any of the parties to the labor dispute in the event of rejecting the arbitral decision. (Article 319 of the Labor Law)
- The right to strike may also be exercised when the Arbitration Council does not issue or notify the arbitral decision within the time limit set forth in Chapter 12 of the Labor Code. (Article 320 of the Labor Law) Article 313 of Chapter 12 of the Labor Law states that within 15 days from the date of receipt of the case, the Arbitration Council must communicate its decision to the Minister in charge of Labor and the Minister in charge of Labor must manage to notify to the parties immediately.
- The right to strike is also exercised when a union representing a worker deems it necessary to exercise this right to enforce compliance with collective agreements or laws.
- This right generally applies to the protection of the economic and socio-occupational interests of workers.
The right to strike can only be exercised if all means have been already used to resolve disputes peacefully with the employer. When a collective labor dispute arises from the interpretation of a legal rule originating from a law or from a collective agreement or a rule relating to an arbitration settlement that the parties have agreed to, the right to strike cannot be exercised. This right also cannot be exercised if it is done for the purpose of revising the collective agreement or the resolution of the arbitrator agreed upon by the parties and when the collective agreement or resolution of the arbitrator has not yet expired.
5. Pre-strike procedures
Despite the workers’ right to strike, there are certain conditions that must be met before a strike can take place. In principle, strike must be declared in accordance with the procedures set forth in the union statute. This statute must determine the approval by secret ballot on the decision to strike.
- Prior notice
Strikes must be notified at least 7 working days in advance and must be kept within the enterprise or establishment. If the strike affects industry or sector of activities, prior notice must be kept with the respective employers’ association, if any. Prior notice must specify the demands of the workers that are the cause of the strike.
This notice must also be sent to the Ministry in charge of Labor. During the prior notification period, the Minister in charge of Labor must actively seek all means, including cooperation with the relevant ministries, to reconcile the parties to the dispute. All parties must be present at the invitation of the Minister in charge of Labor. (Article 325 of the Labor Law)
- Minimum service
During the prior notice period, the parties to the dispute must attend a meeting to arrange for the establishment of a minimum service in the enterprise to ensure the protection of the enterprise’s properties and facilities. Without the agreement of the parties, the Ministry in charge of Labor must set this minimum service.
Workers who are required to provide the minimum services as stated above and who do not show up for work are considered to have committed serious conduct. (Article 326 of the Labor Law) Serious misconduct is a ground for a disciplinary action such as work suspension without payment or dismissal.
- Essential Services
If the strike significantly affects the service, that is, the suspension of the service may endanger or possibly endanger the life, security or health of the entire population, or in part, the advance notice of the strike must be limited to at least 15 working days. (Article 327 of the Labor Law)
During the prior notice period, the Minister in charge of Labor determines the minimum essential services that will be maintained to prevent any danger to life, health or safety of people caused by the strike. The unions that declared the strike were invited to comment on the services to be maintained.
Workers who are required to provide this minimum essential service and who do not show up for work are considered to have committed serious misconduct. (Article 328 of the Labor Law)
The list of enterprises that must have essential services as mentioned above must be determined by a Prakas of the Ministry in charge of Labor. Decisions on all disputes relating to the qualification of any service as essential services are the competence of the labor court or the ordinary court if there is no labor court. (Article 329 of the Labor Law)
6. Effect of strike
Strikes must be peaceful. Violence during a strike is considered a serious offense and may result in disciplinary action, including suspension or dismissal. (Article 330 of the Labor Law)
The freedom of strike of non-striking workers is protected against coercion or other threats. (Article 331 of the Labor Law) Therefore, non-striking workers are not threatened by requiring them to join a strike, to stop working or to take any action contrary to the will of the non-striking workers. (Article 331 of the Labor Law)
According to Article 89 of the Law on Trade Unions of 2016, there must be a written warning to individual who, by all means, compels workers to join a strike or prevents non-striking workers from working. In case of non-compliance with the above warning, a fine of not more than 5,000,000 (five million) Riels must be imposed on such individual.
The employment contract is suspended at during the time of strike. During the strike, work is not performed and wage is not paid. Workers were reinstated at the end of the strike. The mandate of workers’ representatives is not suspended during the strike so that those representatives can maintain contact with employer representatives. (Article 332 of the Labor Law)
During the strike, employers are prohibited to recruit other workers to replace all strikers, unless the recruitment is to ensure minimum service and workers recruited in this service do not show up to work. Any violation of this rule requires the employer to pay the salaries of all striking workers during the strike. (Article 334 of the Labor Law)
7. Illegal strikes
Illegal strikes are strikes that occur without fulfilling adherence to rules described above. Non-peaceful strikes are also illegal. (Article 336 of the Labor Law)
Determining the qualifications of a strike as legal or illegal is the exclusive jurisdiction of the labor court or the ordinary court if there is no such 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 have no valid reason must be deemed not to have committed a serious offense. (Article 337 of the Labor Law)
According to Article 92 of the 2016 Law on Unions, illegal strike is strike carried out by strikers after the labor court has ruled that previous strikes were illegal. A written warning must be given to the person leading the strike illegally. In case of non-compliance with the above warning, a fine of not more than 5,000,000 (five million) Riels must be imposed on such person.
This article is not a legal opinion or legal advice.
- Constitution of the Kingdom of Cambodia 1993
- Labor Law 1997
- Trade Union Law 2016
- Law on Peaceful Demonstration 2009