LABOUR DISPUTE ADJUDICATION

Transcription

1 DRAFT LAW ON PROCEDURES OF LABOUR DISPUTE ADJUDICATION Ministry of Labour and Vocational Training 25 August 2017 Page 1 of 15

2 GENERAL PROVISIONS Article 1: This law has a purpose to: - ensure the just, transparent, effective and fast process of labour dispute settlement; - guarantee the delivery of justice for all kinds of labour complaints in order to protect the legitimate rights and interests of all persons who fall within the provisions of the labour law; and - ensure the harmonisation of industrial relations, the better environment for investment and job creation. Article 2: This law has an objective to: - establish the procedures for settlement of labour disputes at the enterprise or establishment level, for settlement of labour disputes by the Ministry in charge of Labour and for settlement of labour disputes by the Arbitration Council; and - establish the labour procedures for settlement of all kinds of labour complaints within a jurisdictional labour system. Article 3: - This law covers all disputes and complaints in the labour sector. Article 4: The key terminologies used in this law have the following definitions: - A labour dispute refers to a right or interest dispute that arises from the employment relationship between workers and employer and this dispute can be either an individual dispute and a collective labour dispute. - An individual dispute is one that arises between the employer and one or more workers or apprentices individually, and relates to the interpretation or enforcement of the terms of an employment contract or apprenticeship contract, or the provisions of a collective agreement as well as laws in effect. - A collective dispute is one that arises between one or more employers and a certain number of their workers over working conditions, the exercise of the recognised rights of a professional organization, the recognition of a professional organization within the enterprise, and issues vis-à-vis relations between employers and workers, and this dispute may adversely affect the normal operation of the enterprise or may jeopardize the social peace. Page 2 of 15

3 - A right-based dispute is one pertinent to the legitimate rights of workers that are stipulated in laws, other paperwork, employment contracts and collective bargaining agreements. - An interest-based dispute is one pertinent to the benefits of workers that are not stipulated in laws, other paperwork, employment contracts or collective bargaining agreements. - A labour complaint refers to a dispute complaint that arise from labour disputes or application of law and regulations. - Strike refers to a concerted work stoppage by a group of workers that takes place within an enterprise or establishment for the purpose to obtaining a fair settlement for their demand from the employer as a condition of their return to work. - A lock-out refers to a total or partial closing of an enterprise or establishment by the employer during a labour dispute. CHAPTER 2: SETTLEMENT OF LABOUR DISPUTES AT THE ENTERPRISE OR ESTABLISHMENT LEVEL Article 5: All labour disputes shall be resolved at the greatest extent possible at the enterprise or establishment level, prior to filing a complaint to the labour conciliator. The employer shall arrange a settlement of labour dispute within 7 (seven) working days at the latest after the dispute has happened. Article 6: After the conclusion of settlement the parties to the dispute shall prepare a joint report on the results of the settlement which confirm an agreement reached or disagreement for any points of the dispute. The report shall be signed by the parties. Article 7: The parties shall settle the labour dispute at the enterprise or establishment level with the respect for the principle of integrity, honesty, peace and mutual understanding. Page 3 of 15

4 Article 8: After the completion of the settlement procedure at the enterprise or establishment level, the parties may file a complaint to the labour conciliator to continue resolving the points of the dispute for which the parties have failed to reach an agreement Article 9: The parties are entitled to assign a representative to participate in the settlement of the labour dispute at the enterprise or establishment level and at the ministerial level. Representatives of the parties must be the persons who have suitable qualifications, pursuant to the provisions of Civil Code and laws in effect. CHAPTER 3 SETTLEMENT OF LABOUR DISPUTES AT THE MINISTERIAL LEVEL Article 10: SECTION 1: PROCEDURES FOR SETTLEMENT OF INDIVIDUAL DISPUTES The labour conciliator shall write to invite all the parties to providing information and evidential documents as a basis for conciliation within 7 (seven) working days upon receipt of the complaint by any party. A separate inquiry session shall be held. The labour conciliator shall take the official minutes of the session, which are signed by the labour conciliator and the informant party, and the copy thereof is provided to the latter. Article 11: A party to the individual dispute or the representative thereof shall be present and provide information at the invitation of the labour conciliator. In the event where the complainant or the representative thereof fails to be present and provide information, without valid reasons, by the deadline or within seven (7) working days at the latest from the deadline, the complaint is considered null and void. In the event where the respondent or the representative thereof fails to appear, without valid reasons, by the deadline or within seven (7) working days at the latest from the Page 4 of 15

5 deadline, the dispute is considered non-conciliated, and the respondent is considered atfault as being explicitly accused of wrongdoing by the complainant. Article 12: After the inquiry and the collection of information and documents, the labour conciliator shall write to invite both parties to conciliation on the basis of relevant laws, regulations, collective bargaining agreements or employment contracts. The labour conciliator shall conciliate an individual dispute within three (3) weeks at the latest upon receipt of a complaint. Article 13: The labour conciliator shall take the official minutes of the conciliation meeting, with a clear statement of conciliated points and non-conciliated points. The official minutes shall be signed by the labour conciliator and the two parties, and the copy thereof is provided to the latter. Article 14: An agreement made before the labour conciliator is enforceable by law. Article 15: In the event of non-conciliation, the labour conciliator shall notify the parties of their rights to file a complaint to the Arbitration Council. The labour conciliator shall prepare an official report of the non-conciliated individual dispute as a reference for the parties concerned to lodge a complaint to the Arbitration Council. Article 16: SECTION 2: PROCEDURES FOR SETTLEMENT OF COLLECTIVE DISPUTES A collective dispute shall be resolved in accordance with the labour dispute settlement procedures as stipulated in collective bargaining agreements. In the event where there is no such provision in a collective bargaining agreement or where there is no such collective bargaining agreement at an enterprise or establishment, Page 5 of 15

6 the parties shall notify the labour conciliator of the collective dispute for conciliation in accordance with the procedures set out in this law. Article 17: Only the most representative status union has the exclusive right to represent all workers and to resolve collective disputes with an employer or employer association at the enterprise or establishment level or at the occupational level or at the economic activity or sectoral level. In the event where there is not a most representative status union, a settlement of collective dispute shall be pursued through a bargaining council. In the event where there is no union in an enterprise or establishment, conciliators are obliged to assign a worker representative in a settlement of collective dispute. Article 18: Upon conclusion of the settlement at the enterprise or establishment level, either party to the collective dispute shall file a complaint to the labour conciliator for further resolution of the disputing points that the parties have failed to reach an agreement. Upon receipt of the complaint, the labour conciliator shall proceed to conciliate the dispute in accordance to the conciliation procedures within forty eight (48) hours. The parties must attend a conciliation meeting, providing information, at the invitation of the conciliator. In the event that any party fails to attend the meeting, the conciliator shall report on the absence to the Minister in charge of Labour. In the course of the conciliation meeting the parties shall not leave at all prior to the conclusion of the meeting. Article 19: A conciliatory agreement, signed by the parties and the conciliator, has the same force and effect as a collective bargaining agreement between the parties. The conciliator shall submit a report of conciliation to the Minister in charge of Labour within seven (7) days upon conclusion of the conciliation. Page 6 of 15

7 Article 20: In the absence of an agreement, the conciliator shall record and indicate all the key points of non-conciliation and shall write a report of the dispute. The conciliator shall submit such dossier to the Minister in charge of Labour within forty eight (48) hours at the latest upon conclusion of the conciliation. The Minister in charge of Labour shall refer the case to the Arbitration Council within three (3) working days at the latest upon receipt of the dossier from the conciliator. Article 21: The Minister in charge of Labour shall assign a conciliator for immediate conciliation and for carrying out an inquiry and conciliation on-the-spot with regard to collective disputes that the parties have failed to communicate to the labour inspector or that may have or cause an adverse effect on the security and the public order. In this case the dispute shall be settled in the same way as in the case there were a dispute that would have referred to, or as it would be informed to the conciliator CHAPTER 3: SETTLEMENT OF LABOUR DISPUTES BY THE ARBITRATION COUNCIL SECTION 1: PROCEDURES FOR SETTLEMENT OF LABOUR DISPUTES BY THE ARBITRATION COUNCIL Article 22: The Arbitration Council has jurisdiction to settle individual and collective disputes after the conciliation attempts have failed in the conciliatory process undertaken by the Ministry in charge of Labour. The preceding paragraph 1 of this Article is not prejudiced against an arbitration procedure provided for in the collective bargaining agreement, if any; or any other procedure agreed upon by all the parties to the dispute. An arbitration council can be established at some regions or provinces as necessary. In the absence of the arbitration council in a region or province, labour disputes in that region or province shall be settled at the Arbitration Council at the capital city. Page 7 of 15

8 Article 23 Members of the Arbitration Council are comprised of: a) One-third nominated by the Ministry in charge of Labour; b) One-third nominated by the employer party, who are full members of the Labour Advisory Committee; and c) One-third nominated by the worker party, who are full members of the Labour Advisory Committee. The Arbitration Council has a secretariat that is borne by the Ministry in charge of Labour. The organisation and functioning of the Arbitration Council shall be determined by Prakas (Ministerial Regulation) of the Ministry in charge of Labour. Article 24: The Arbitration Council shall inevitably have a session within three (3) working days upon receipt of the case from the Minister in charge of Labour with regard to the collective dispute or upon receipt of the complaint with regard to the individual dispute. All sessions of the Arbitration Council must be secretly held. Article 25: All labour disputes that have been referred to the Arbitration Council shall be settled by a panel of arbitrators (Arbitration Panel) that is established exclusively for a settlement of that particular dispute. The Arbitration Panel shall consist of a tripartite composition Article 26: An individual labour dispute is settled by a panel of three (3) arbitrators that the parties have chosen from the following lists of arbitrators: a) One (1) member from the employer nominated list and that is selected by the employer or his or her representative that is a party to the dispute; b) One (1) member from the union nominated list and that is selected by the union or worker representative or worker (s) that are a party to the dispute; and c) One (1) member, serving as the chair of the arbitration panel, from the Ministry s nominated list with an agreement of the two arbitrators above. In the event where there is no agreement reached to select the third arbitrator of the arbitration panel the selection shall be made by lottery among the composition as provided for in a) of Article 23 of this law. Page 8 of 15

9 Article 27 The settlement of collective disputes at the Arbitration Council is proceeded with 2 (two) hearings. The first hearing is held with a panel of 3 (three) arbitrators as indicated in Article 26 of this law. The second hearing is held with a panel of five (5) arbitrators that the parties have chosen from the following lists of arbitrators: a) Two (2) members from the employer nominated list, who are selected by the employer or his/her representative that is a party to the dispute; b) Two (2) members from the union nominated list, who are selected by the union or worker representative or or worker(s) that are a party to the dispute; and c) One (1) member to serve as the chair of the arbitration panel of this second hearing, from the Ministry s nominated list with an agreement of the above 4 members of the Arbitration Council. In the event where there is no agreement reached to select the arbitrator of the arbitration panel the selection shall be made by lottery from among the composition as provided for in a) of Article 23 of this law. Article 28 The second hearing can proceed when there is an agreement by disputing parties. The second hearing process is the same as that of the first hearing unless there are provisions to the contrary. Article 29: The arbitration panel shall invite the parties to an oral interpretation of their claims before the arbitration panel and to submit other necessary information and documents. The parties may be present in person before the arbitration panel or may be represented by a representative, who have suitable qualifications pursuant to the provisions of the Code of Civil Procedures. In the event that any party who has duly received the invitation, but failed to be present before the arbitration panel without valid reasons, the arbitration panel may proceed its hearing in the absence of that party or may conclude the arbitration proceeding with the issue of an arbitral award. Page 9 of 15

10 Article 30: The parties are required to attend the hearing at the invitation of the Arbitration Council. In the course of the arbitration process the parties shall stop all industrial actions such as strikes or lock-outs or other industrial actions which may exacerbate the situation. The two parties are required to attend all sessions to which the Arbitration Council have invited. In the event that a worker is required to attend an arbitration hearing during the working hours his/her employer shall allow the worker to do so, without prejudice to the labour rights bestowed on the worker. Article 31: The Arbitration Council has no duty to examine issues other than those specified in the non-conciliation report or matters, which arise from events subsequent to the report, are merely the direct consequence of the current dispute. The Arbitration Council legally hears the disputes concerning the interpretation and enforcement of laws or regulations or of a collective agreement. The Council resolves all other disputes equitably. Members of the Arbitration Council shall perform with full independence within their jurisdiction. No one is allowed to give instructions to the Arbitration Council and its members in regard to the settlement of labour disputes. The members must remain neutral at all the time. Each member must withdraw themselves from the arbitration panel for which they are selected, on the occasion of alleged doubt about their impartiality or their independence. This includes a closely personal or professional relationship with any other member of the arbitration panel or with any other party, personal interests or professional interests as a direct result of the case. Pursuant to this provision, the withdrawal may justify the application of a stipulation pertinent to the rejection of an arbitral award as provided for in paragraph 2, Article 36 of this law Article 32: The Arbitration Council has the right and power to require the parties to pay full compensation for the violation of provisions stipulated in laws and various labour standards, Page 10 of 15

11 collective bargaining agreements or other obligations that are emanating from the industrial relations between employers and workers. Within the scope of relevant laws and labour standards the Arbitration Council has the right and power to require the parties to pay civil compensation or damages in a just and fair manner, including for the following: a) An order to reinstate a dismissed worker to the old position or a proper one; b) An order to urgently pay any money due; c) An order to immediately stop a strike or lock-out that is being staged by a party to the dispute; d) An order to immediately stop unlawful or prohibitive acts, including with revenge and other proscriptions; e) An order to negotiate for a definite resolution; f) The development of terms and conditions for a collective bargaining agreement; and g) Other damages where appropriate. The Arbitration Council may notify the directorate of labour inspection or the municipal or provincial department of labour of its arbitral award for enforcement. Article 33: SECTION 2: ARBITRAL AWARD The Arbitration Council shall report in writing on its arbitral award to the Minister in charge of Labour within fifteen (15) working days from the date the Council received a case of collective dispute. The Minister in charge of Labour shall immediately arrange to notify the parties of the arbitral award by providing them each with a certified copy thereof. The Arbitration Council shall notify in writing of its arbitral award to the parties, by providing them each with a certified copy thereof, within fifteen (15) working days from the date the Council received a complaint of individual dispute. In the event that the process of a case is concluded without any arbitral award the Arbitration Council shall notify the Minister in charge of Labour and the parties of the conclusion of the process. Page 11 of 15

12 Article 34: The parties can file an objection to the arbitral award within eight (8) working days upon receipt of the notification of the arbitral award. For individual disputes, parties can object to the arbitration award by lodging a complaint with the competent court. For collective disputes, parties can also file an objection to the arbitral award of the first hearing by: 1. Requesting for the second hearing by the Arbitration Council as provided in Article 28 of this law. 2. Logding a complaint with the competent court. The arbitration council award of this second hearing shall be binding upon the parties. Paragraph 1 of this Article is not applicable in the event where parties to the dispute have agreed in writing to a binding arbitral award prior to the notification thereof or where the parties are obliged to comply with a collective bargaining agreement that has a clause of no-objection to any arbitral award. If neither party files an objection to the arbitral award within the time limit as set in paragraph 1 of the current Article, the award comes into effect and is enforceable immediately. The parties have an obligation to abide by the arbitral award in effect. The arbitral award is not enforceable when either party to the dispute files an objection. The Arbitration Council s resolution of collective disputes that becomes enforceable must be filed and registered the same way as a collective bargaining agreement. Article 35 The arbitral award for a settlement of interest-based disputes will replace a collective bargaining agreement and is valid for one (1) year from the date it takes effect, except that the parties have agreed on a new collective bargaining agreement to replace the arbitral award. The arbitral award remains valid beyond this 1-year period if either party fails to give a 3-month notice to the other that they will not comply with the award any more. When the arbitral award has completely replaced a collective bargaining agreement, the award shall be filed and registered in accordance with the procedure for a collective bargaining agreement. Page 12 of 15

13 Article 36 If the time limit for objection has lapsed and one party refuses to comply with the arbitral award, the other party can request the Labour Court of First Instance to recognise and to enforce the award. The party that makes such a request shall submit to the Court a certified copy of the arbitral award. One party may avoid the recognition and enforcement of a concluding and binding award in the event that the party presents to the Labour Court of First Instance evidence that the arbitral award is not fair on the grounds that: a) The party has not duly selected an arbitrator or has not duly received a notification of the arbitration process or has been unjustly restricted to present a substantive interpretation of their case. b) It has not followed the procedures as provided for in laws and labour standards with regard to the issue of the award. c) The Arbitration Council has issued the award that is beyond its powers as given by laws, labour standards and other relevant regulations. Article 37: CHAPTER 5: LABOUR DISPUTE ADJUDICATION BY THE LABOUR COURT Any labour complaint shall be lodged with the competent court and is adjudicated in accordance with the law on Organization of the Court Page 13 of 15

14 CHAPTER 6: ADMINISTRATIVE MEASURES AND PENALTIES Article 38: Any person who attempts with ill-will to represent the worker party in the settlement of a collective dispute is liable to a fine of no more than five (5) million Khmer riel. Article 39: Any employer who breaches Paragraph 2, Article 5 of this law is liable to a fine of no more than five (5) million Khmer riel. Article 40: Any person who breaches Article 7 of this law is liable to a fine of no more than five (5) million Khmer riel. Article 41: Any party who fails to appear, without valid reasons, by the invitation of the labour the conciliator or the Arbitration Council, throughout the dispute settlement processes laid down in this law, is liable to a fine of no more than ten (10) million Khmer riel. Article 42: Any person who attempts to obstruct the process of labour dispute settlement procedure at all levels is liable to a fine of no more than ten (10) million Khmer riel. Article 43: CHAPTER 7 TRANSITIONAL PROVISIONS The existing Arbitration Council shall continue its work until a new arrangement is made in conformity with this law. A labour complaint shall be referred for an adjudication by the Civil Court until after an official launch of the Labour Court by Prakas (Ministerial Regulation) of the Minister of Justice. Page 14 of 15

15 CHAPTER 8: FINAL PROVISIONS Article 44: Provisions that are contrary to this law shall be abrogated. Article 45: Entry into Force This law shall be declared as a matter of urgency. This law is adopted by the National Assembly of the Kingdom of Cambodia on [DATE] at the Session of the 5 th Legislature of the National Assembly. Phnom Penh, [DATE] President of the National Assembly Samdech Akka Moha Ponhea Chakri Heng Samrin Page 15 of 15