Bun & Associates LABOR UPDATE

Transcription

1 Bun & Associates LABOR UPDATE

2 * This LABOR UPDATE is part of our publication series updating developments in the Cambodian labor regulations and arbitration council awards. Subsequent publications can be subscribed for at

3 LABOR REGULATIONS Study on Minimum Wage Establishment of a Tripartite Working Group Accompanied by Relevant Partners for the Purpose of Studying the Appropriate Minimum Wage Issue for Employees #LR Ref: Decision of the Government No. 012 KKTV on the establishment of a tripartite working group and accompanied relevant partners for the purpose of studying the appropriate minimum wage for employees, dated August 07, 2013 The Royal Government of Cambodia decided to establish a tripartite working group with accompanied relevant partners, including the government, employers and trade unions, in order to keep studying the appropriate minimum wage issue for employees. The objective of this group is to maintain researching into the minimum wage issue for employees once per year, or whenever necessary. This decision came into effect from August 07, 2013 onwards. Right to Strike Non-Recognition of the Right to Strike in the Freedom of Association and Protection of the Right to Organize Convention (Convention No. 87) #LR Ref: Comments of the International Organization of Employers (IOE) according to Article 23.2 of the ILO Constitution, Application of Convention No. 87 in Cambodia, dated August 30, 2013 and also in response to the Report of the Committee of Experts on the Application of Conventions and Recommendations (CEACR) in 2013 The right to strike is not provided for in Convention No. 87, which relates only to the right to freedom of association. Proposals for an amendment aimed at incorporating a guarantee for the right to strike, were declared inconceivable, as they were not in the scope of the Convention. CEACR has no authority to set international labor regulations by its recognition of the right to strike as protected under Convention No. 87. Besides this, with regards to trade union rights and civil liberties, CEACR recalls allegations by employees organizations of a persistent climate of violence and intimidation directed towards union members in Cambodia; which according to the Cambodian Federation of Employers and Business Associations (CAMFEBA) and IOE, is not true in its entirety. The right to freedom of association is assured in the Constitution of the Kingdom of Cambodia and in the Labor Law. The existence of freedom of association can be seen by the increase in the number of trade unions, federations of trade unions, union chambers and strikes. CAMFEBA also draws attention to the fact that the picture that CEACR paints is not true and that all matters in their infancy stage of discussion, such as fixed duration contracts and trade union laws, should not be used against the Cambodian authorities. NATIONAL SOCIAL SECURITY FUND REGULATION There are no legal regulations to be updated. 1

4 ARBITRATION AWARDS The Arbitration Council (AC) is an independent, national institution with quasi-judicial authority derived from the Labor Law. Established in 2003 with the support of the Ministry of Labor, employers and unions, the Arbitration Council is empowered to assist parties in resolving collective labor disputes in Cambodia. Arbitral awards spell out the basis for each decision of the Arbitration Council, whereby legal reasoning is applied to resolve the issues in a case. Procedure Arbitration Council Rights Disputes and Interests Disputes #A ACA143/13- Cambodia Beer Production Enterprise, dated August 13, 2013, Issue #4 & 6 ACA 145/13- CS Gold Way Textile (Cambodia), dated August 05, 2013, Issue #1 ACA 146/13- CS Gold Way Textile (Cambodia), dated August 05, 2013, Issue #1 ACA 147/13- Sino Garment Industrial, dated August 01, 2013, Issue #14 ACA 148/13- DTV-Star, dated August 15, 2013, Issue #3 ACA 150/13- Te Yong (Cambodia), dated August 14, 2013, Issue #1&18 ACA 153/13- Cambrew, dated August 30, 2013, Issue #3, 4, 5, 6, 7 &8 ACA154/13-Bowker Garment Factory, dated August 20, 2013, Issue #8 ACA 155/13- Kar Tat, dated August 14, 2013, Issue #2 &7 ACA 156/13- Pou Yuen, dated August 28, 2013, Issue #6, 7, 11 &13 ACA 158/13- S H International, dated August 28, 2013 ACA 159/13- Samudra Plastic Packaging (Cambodia), dated August 22, 2013, Issue #1 & 2 (Legal Ref. Art. 96 Labor Law on, Clause 9, Prakas No. 305 SKBY, dated November 22, 2001, Clause 43, Prakas No. 099 SKBY, dated April 21, 2004) (Ref. Precedent: #A , ACA 05/11 #1 & 5, ACA 13/11 #1 & 2, ACA 14/11 #4, ACA 31/11 #4, ACA 62/11 #1) In order for the Arbitration Council to declare its jurisdiction over a complaint, the first preliminary question which the Arbitration Council has to consider is whether the complaint is a rights or interests dispute. The Arbitration Council confirmed its decisions held in previous cases by stating that rights disputes are those related to legal rights which result from or are included in contracts, collective bargaining agreements or provisions of law. Interests disputes however are those relating to a benefit in the future and not to rights resulting from or stated in contracts, collective bargaining agreements or provisions of law. In the event that the qualification falls into the scope of the interests dispute category, the Arbitration Council, as confirmed in its previous decisions, will not have the competence to make a decision if the dispute is brought by a union without the most representative status. For interests disputes, the Arbitration Council may make a ruling based on principles of equity. 2

5 Res Judicata #A ACA154/13-Bowker Garment Factory, dated August 20, 2013, Issue #1 (Ref. Precedent: ACA 10/06, ACA 24/06 #4, ACA 106/06 # 5, ACA 42/07 #1, ACA 45/07#2, ACA 48/07 #1, ACA 61/07 #3, ACA 111/07 #1, ACA 14/08 #1, ACA 43/08, ACA 49/08 #9, ACA 153/08 #4, ACA 64/09 #1, ACA 95/09#3, ACA 81/11 #1, ACA 32/12 #1) The Arbitration Council confirmed that when the same claim/issue is brought by parties to a court, which has already issued a decision on such a dispute, the court has sole discretion to deny reconsideration of the claim/issue, unless otherwise prescribed by applicable laws and regulations. The Council ruled that a claim/issue will be denied reconsideration if it fulfills 3 (three) conditions set out as follows: i. identical parties have previously participated in such a claim/issue; ii. identical claim/issue was brought to the Arbitration Council; and iii. the Arbitration Council has already decided on the merits of such a claim/issue. The Arbitration Council further explained that the purpose of denying reconsideration of an identical claim/issue is to prevent future judgments from contradicting earlier ones and also to ensure that the claim/issue is settled by a final decision. Representation before the Council of Arbitration #A ACA 146/13- CS Gold Way Textile (Cambodia), dated August 05, 2013 ACA 148/13- DTV-Star, dated August 15, 2013 ACA 153/13- Cambrew, dated August 30, 2013 ACA 155/13- Kar Tat, dated August 14, 2013 ACA 156/13- Pou Yuen, dated August 28, 2013 ACA 157/13- Asia Dragon (Garment), dated August 21, 2013 (Legal Ref. Clause 19, Prakas No. 099 SKBY, dated April 21, 2004) (Ref. Precedent: #A ) The Arbitration Council confirmed that the disputing parties may be represented by other persons before the Arbitration Council, only if those persons are expressly authorized to do so in writing. Absence of a Party at a Hearing #A ACA 155/13- Kar Tat, dated August 14, 2013 (Legal Ref. Clause 21, Prakas No. 099 SKBY, dated April 21, 2004) (Ref. Precedent: #A ) When a party has been properly notified about the hearing schedule but is not present in the hearing before the Arbitration Council and does not provide any valid reason for his/her absence, then the Arbitration Council can decide to continue the process of the hearing in the absence of that party. Future Dispute #A ACA149/13-C I I D G, dated August 01, 2013, Issue #1 ACA 155/13- Kar Tat, dated August 14, 2013, Issue #4 (Ref. Precedent: ACA 10/03 #2, ACA 68/04 #4, ACA 29/05 #3, ACA 14/06 #2, ACA 36/06 #5, ACA 122/07 #4, ACA 17/08, ACA 27/08, ACA 141/08 #3, ACA 70/09 #3, ACA 123/09 #1, ) The Arbitration Council confirmed its previous decision that it has been established to solve labor disputes and that it has no jurisdiction over a dispute which has not occurred. 3

6 Reasons for Dismissal-Burden of Proof #A ACA 161/13- Xin Chang Shing Garment (Cambodia), dated August 22, 2013 (Legal Ref. Art. 74 Labor Law) (Ref. Precedent: ACA 51/08, ACA56/13 #3, ACA 102/13#1) The Arbitration Council confirmed that by virtue of Article 74 of the Labor Law, the employer cannot dismiss any employee without reasonable grounds. The employer shall bear the burden of proof for proving that the dismissal is based on the fault of the employee. Through failing to provide such evidence, the Arbitration Council ordered the employer to reinstate the dismissed employee. Collective Rights Trade Union Registration of Trade Unions #A ACA 153/13- Cambrew, dated August 30, 2013 ACA 156/13- Pou Yuen, dated August 28, 2013 ACA 157/13- Asia Dragon (Garment), dated August 21, 2013 (Legal Ref. Art. 268 Labor Law) (Ref. Precedent: ACA 62/06 #2, ACA 30/08, ACA 31/08, ACA 128/08, ACA 94/09, ACA 06/11) The Arbitration Council confirmed that a professional organization is entitled to the rights and benefits identified within the Labor Law, as soon as it is registered with the Ministry of Labor and Vocational Training and the list of its management team is also recognized by the said ministry. Any change to the union s statute or management shall be registered again. The Arbitration Council also confirmed that those rights and benefits include the union s right to represent its members when bringing disputes to the Arbitration Council. Protected Employees Reinstatement of Protected Employees #A ACA154/13-Bowker Garment Factory, dated August 20, 2013, Issue #1 ACA 156/13- Pou Yuen, dated August 28, 2013, Issue #2 ACA 158/13- S H International, dated August 28, 2013, Issue #3 (Legal Ref. Art. 293 Labor Law, Clauses 3 &4, Prakas No. 305 SKBY, dated November 22, 2011) (Ref. Precedent: #A , #A ) Firstly, the Arbitration Council confirmed that in order for employees to be entitled to special protection according to the law, the 3 (three) following conditions must be fulfilled: i. employees are those who are under special protection as set forth in Prakas No. 305; ii. iii. the dismissal of the employees falls within the period of protection; and the employees must have notified the employer about their identities as protected employees by any reliable means. Secondly, if the 3 (three) conditions above are cumulatively fulfilled in order to dismiss the protected employees, the employer shall obtain prior permission from the labor inspector in accordance with the applicable procedure. The dismissal of protected employees without prior permission of the labor inspector will be rendered null and void. The Arbitration Council expressly ordered the employer to reinstate the dismissed protected employees and to compensate their full benefits from the dismissal date. 4

7 Lastly, the Arbitration Council confirmed that within the employer s management rights recognized by the law, the employer has the right to change his/her legal act relating to the employment contract, but only to an extent that such a change shall be rendered legal and reasonable. The Council considered the fact that the employer had changed his/her legal act from dismissal to suspension of protected employees as unreasonable, because the employer was able to avoid obtaining prior permission from the labor inspector in order to dismiss any protected employees. The Council concluded that the employer has no right to change his/her legal act regarding an employment contract from cancellation to suspension of the protected employees. Procedure-Wage Burden of Proof #A Individual Rights ACA143/13-Cambodia Beer Production Enterprise, dated August 13, 2013, Issue #9 ACA 148/13- DTV-Star, dated August 15, 2013, Issue #2 ACA 153/13- Cambrew, dated August 30, 2013, Issue #1 ACA 154/13-Bowker Garment Factory, dated August 20, 2013, Issue #2 ACA 155/13- Kar Tat, dated August 14, 2013, Issue #1, 5 &6 ACA 156/13- Pou Yuen, dated August 28, 2013, Issue #5 &9 ACA 161/13- Xin Chang Shing Garment (Cambodia), dated August 22, 2013 (Ref. Precedent: ACA 63/04 #4, ACA 79/05, ACA 99/06 #5, ACA 33/07 #4, ACA 45/07 #4, ACA 51/07 #3, ACA 148/07, ACA 101/08 #1 &2, ACA 168/09 #2, ACA 115/10 #18, ACA 34/11 #7, ACA 148/11, ACA 155/11 #1, ACA 122/13 #1, ) The Arbitration Council confirmed its previous decisions by declaring that the plaintiff has the obligation to provide evidence to support his/her complaint, otherwise the Arbitration Council will reject the complaint. The plaintiff therefore bears the burden of proof for proving the claim. However, for any complaints relating to wages, the employer shall bear the burden of proof on payment of the wage. Wages Increasing Wages vs. Seniority #A ACA 148/13- DTV-Star, dated August 15, 2013, Issue #5 ACA 153/13- Cambrew, dated August 30, 2013, Issue #7 (Legal Ref. Art. 2 Labor Law) (Ref. Precedent: ACA 62/06 #5, ACA 108/06, ACA 33/07 #3, ACA 119/09 #4 &5) There is no legal provision under the applicable laws and regulations which declare that the wage shall be increased, based on the employee s seniority or at a fixed rate for a regular period. The wage review is under the sole discretion of the employer, based on the criteria as agreed on in the agreement, the Collective Bargaining Agreement or the internal rules of the employer. Wage for the 13 th Month #A ACA 148/13- DTV-Star, dated August 15, 2013, Issue #7 (Legal Ref. Art. 103 Labor Law) The Arbitration Council interpreted Article 103 of the Labor Law to determine that the profit sharing provided by the employer to the employees is considered as part of the standard wage. However, by virtue of this provision, the employer has no obligation to 5

8 provide such profit sharing or a wage for the 13 th month to the employees, unless otherwise agreed on in the labor agreement, Collective Bargaining Agreement or internal rules of the employer. Change of the Type of Wage (Fixed Wage vs. Commission Rate) #A ACA 153/13- Cambrew, dated August 30, 2013, Issue #2 (Legal Ref. Art. 311 Civil Code) It is very important to note that the Arbitration Council judges the issue of changing the type of wage based on an article from the Civil Code. The Arbitration Council has confirmed that any formation, change or cancellation of any obligation of a contract shall be made by mutual consent of the parties to the contract. In other words, one party cannot obligate the others to modify any conditions of the contract contrary to the latter s will. The Council further confirmed that the wage is a main condition of the employment contract. Therefore, an employee is not able to change the type of wage without the employer s consent. Compensation for Working on a Public Holiday #A ACA 145/13- CS Gold Way Textile (Cambodia), dated August 05, 2013, Issue #1 (Legal Ref. Art. 137, 139 new, 164 Labor Law, Clauses 2 and 4, Prakas No. 10 SKBY, dated February 04, 1999) (Ref. Precedent: ACA 115/08 #4) The Arbitration Council confirmed in its previous decision that working on a public holiday does not constitute overtime work (although this is not necessarily applicable in every case). Therefore, if an employee works on a public holiday, he/she is entitled to 100% (one hundred per cent) of his/her daily wage, in addition to the 100% (one hundred per cent) of his/her daily wage which he/she automatically receives on a public holiday. Compensation for Break Time #A ACA 157/13- Asia Dragon (Garment), dated August 21, 2013, Issue #1 (Legal Ref. Art. 102 Labor Law) (Ref. Precedent: ACA107/13 #4) The Arbitration Council agreed that by virtue of Article 102 of the Labor Law, the employer shall pay a wage to the employee in consideration of the exact work performed by such an employee for the employer. In other words, the employee is not entitled to any compensation for his/her break time. Therefore, in the event that the employer agrees to pay half of the salary for the break time of the employee, this practice will be rendered duly valid as it provides benefits superior to what is provided under the applicable law. The employee has no right to demand full payment of his/her break time. Other Benefits Regular Attendance Bonus vs. Lateness #A ACA 145/13- CS Gold Way Textile (Cambodia), dated August 05, 2013, Issue #5 (Legal Ref. Point 2, Notification No. 230 KB/SCN, dated July 25, 2012) (Ref. Precedent: ACA 60/06 #3, ACA 48/07 #8, ACA 94/07 #1) The Arbitration Council confirmed that regular attendance includes the punctuality of the employee as determined by the employer. Therefore, an employee is not entitled to a regular attendance bonus if he/she does not come to work regularly on time on each working day. The practice of the employer, which consists of the employee no longer being 6

9 entitled to a regular attendance bonus for occurrences of lateness constituting more than 30 (thirty) minutes in each month, is more favorable than the laws and regulations in force. Therefore, this practice is considered valid. Payment of an Overtime Meal Allowance #A ACA 146/13- CS Gold Way Textile (Cambodia), dated August 05, 2013, Issue #14 ACA154/13-Bowker Garment Factory, dated August 20, 2013, Issue #4 (Legal Ref. Point 2, Notification No. 044/11 KB/SCN, dated March 07, 2011) (Ref. Precedent: ACA 47/07 #5, ACA 79/07 #5, ACA 76/11 #2, ACA 03/12 #3, ACA 244/12 #3) Even though the notification on the overtime meal allowance does not specify the exact time of payment of the meal allowance, based on the purpose of the provision which states that a free meal shall be provided to employees for each day in which overtime is performed, the Arbitration Council agreed that the overtime meal allowance should be also paid on the day that the overtime work is performed. If the employer cannot manage a daily payment, he/she has to make the payment at another appropriate time (weekly or monthly) in order for the employee to manage such an allowance to buy food for his/her overtime work. Therefore, in the event that the employee shows necessity in requiring such an overtime meal allowance to be paid every week, the employer shall arrange such a payment accordingly. Seniority Bonus Overtime Meal Allowance - Transport and Accommodation Allowance #A ACA 148/13- DTV-Star, dated August 15, 2013, Issue #3, 4 & 6 ACA 153/13- Cambrew, dated August 30, 2013, Issue #8 (Legal Ref. Notification No. 230 KB/SCN, dated July 25, 2012, Notification No. 041/11 KB/SCN, dated March 07, 2011) (Ref. Precedent: ACA 31/09 #1 & 2) The Arbitration Council confirmed that the seniority bonus, overtime meal allowance and transport and accommodation allowance provided under the notifications in force, are applicable to employees in the textile, garment and footwear sectors only. In other words, employees in other fields are not entitled to such benefits, unless otherwise agreed on in the employment contract, internal rules or Collective Bargaining Agreement between the employees and the employer. Attendance Bonus Pro-Rata Deduction of the Regular Attendance Bonus #A ACA 157/13- Asia Dragon (Garment), dated August 21, 2013, Issue #1 (Legal Ref. Art. 13, 71, 72 Labor Law, Notification No. 230/12 KB/SCN, dated July 25, 2012) (Ref. Precedent: #A ) The Arbitration Council confirmed that the employee shall be entitled to 100% (one hundred per cent) of the regular attendance bonus if he/she takes leave under the Labor Law. This includes annual leave, special leave, maternity leave, public holiday and weekly days off. The Arbitration Council further confirmed that if the employee takes leave other than the above specified types of leave and he/she has obtained prior approval from his/her employer, then the regular attendance bonus shall be deducted on a pro-rata basis. Moreover, other deduction formulas provided under any unilateral decisions, agreements or Collective Bargaining Agreements, which grant benefits inferior to the benefits provided under the applicable law and regulations, shall be rendered null and void. 7

10 Paid Leave Special Leave #A ACA 148/13- DTV-Star, dated August 15, 2013, Issue #2 (Legal Ref. Art. 2, 171 Labor Law, Clause 2, Prakas No. 267 SKBY, dated October 11, 2001) (Ref. Precedent: ACA 62/06 #5, ACA 108/06, ACA 33/07 #3, ACA 119/09 #4 &5) Special leave which is not deducted from annual leave and does not require any make-up work, requires an additional allowance provided by the employer. Therefore, such special leave is under the sole discretion of the employer who is duly entitled to regulate through the internal rules, the number of days provided per year for such special leave. The maximum number of days that each employee can take as special leave is seven days per year. Employment Contracts Status of the Employee #A ACA143/13-Cambodia Beer Production Enterprise, dated August 13, 2013, Issue #13 (Ref. Precedent: ACA 73/13 #9) The Arbitration Council interpreted Article 3 of the Labor Law as follows Employees are every person who has signed the employment contact and work under direction and management of another person in return of remuneration. Therefore, if any person falls under the scope of the interpretation outlined above, he/she will be considered as an employee of the employer and consequently he/she is entitled to the same benefits and allowances provided under the internal rules of the employer as other employees, unless expressly stated otherwise. Fixed Duration Contracts or Unspecified Duration Contracts #A ACA 156/13- Pou Yuen, dated August 28, 2013, Issue #2 (Legal Ref. Art. 67 &73 Labor Law) (Ref. Precedent: ACA 10/03 #1) Note: The Arbitration Council interpreted Article 67 of the Labor Law to mean that if the total duration of the working relationship exceeds 2 (two) years, then the employer s fixed duration contract will be automatically transformed into an unspecified duration contract. The Arbitration Council further confirmed that a fixed duration contract also will be transformed into an unspecified duration contract, if there is no prior notice of its termination. In the event that an employee has entered into consecutive fixed duration contracts, which have total durations exceeding 2 (two) years, he/she is automatically placed under the unspecified duration contract regime. Hence, the cancellation of such a transformed contract does not constitute a renewal of a fixed duration contract, but instead is a termination of an unspecified duration contract. 8

11 Minimum Duration of a Fixed Duration Contract #A ACA154/13-Bowker Garment Factory, dated August 20, 2013, Issue #7 (Legal Ref. Art. 65, 73 Labor Law, Art. 311, 336, and 664 Civil Code) The Arbitration Council explained that Article 73 of the Labor Law establishes a condition by which an employee of a fixed duration contract of at least 6 (six) months is entitled to prior notice for the termination of an employment contract. However it does not set a minimum duration for a fixed duration contract. In other words, a fixed duration contract for a duration of less than 6 (six) months will also be considered valid. An employee has no right to force the employer to enter into a fixed duration contract for a duration of more than 6 (six) months. Rights Demanding the Cancellation of Other s Employment Contracts #A ACA154/13-Bowker Garment Factory, dated August 20, 2013, Issue #3 (Legal Ref. Art. 65 Labor Law, Art. 31 Civil Code) (Ref. Precedent: ACA 04/03, ACA 14/03 #1, ACA 17/03 #4. ACA 18/03 #4, ACA 15/04 #1, ACA 16/04 #1, ACA 32/04 #1, ACA 34/04 #1, ACA 87/04 #2, ACA 116/07 #3, ACA 29/08 #2, ACA 54/08 #5, ACA 108/08 #4, ACA 129/09 #1, ACA 116/10 #1, ACA 123/10, ACA 130/10, ACA 83/12 #1) Referring to Article 65 of the Labor Law and Article 311 of the Civil Code, the Arbitration Council confirmed in its previous decisions that only the parties to an employment contract, being the employer and the employee, have the right to terminate the contract. A third party to an employment contract, including other employees, do not have the right to demand the employer to dismiss any other employees. However this is unless the third party can prove that such an employee is a dangerous person who should not be allowed to enter into the establishment or factory, and therefore continuing the person s employment could harm the workplace. Changing Conditions of a Contract #A ACA 156/13- Pou Yuen, dated August 28, 2013, Issue #11 (Legal Ref. Art. 311 Civil Code) The Arbitration Council made its decision based on the grounds of the Civil Code in regards to the issue of changing conditions of an agreement between an employer and the employees. The Arbitration Council confirmed that any formation, change or cancellation of any obligations of a contract, shall be made by mutual consent of the parties to the contract. In other words, one party cannot obligate the others to modify any conditions of the contract, which is contrary to the latter s will. Work Suspension Work Suspension - Effects #A ACA 155/13- Kar Tat, dated August 14, 2013, Issue #1 (Legal Ref. Art. 71, 72 Labor Law) (Ref. Precedent: #A ) Note: By virtue of the disposition of the Labor Law, the suspension of an employment contract affects only the main obligations of the contract in which the employee has to work for the employer, and the employer has to pay the employee. However, the Arbitration Council confirmed in its previous interpretation that the employer may not 9

12 suspend the employment contracts for the reason of serious economic or material difficulty, unless these 2 (two) conditions are fulfilled: i. the suspension shall be under the control of the labor inspector who needs to provide prior permission to the employer; and ii. the suspension shall not exceed 2 (two) months. In the event that an employer suspends the employment contract without prior permission of the labor inspector, such an employer shall provide 100% (one hundred per cent) of the wage to the employee for the illegal suspension period. Women and Family Milk Allowance #A ACA 153/13- Cambrew, dated August 30, 2013, Issue #5 (Legal Ref. Art. 186 Labor Law) (Ref. Precedent: #A ) There are no applicable laws and regulations which obligate the employer to provide a milk allowance to female employees, unless otherwise agreed on between the employer and the employee through the employment contract, internal rules or Collective Bargaining Agreement. Nursing Room and Daycare Center #A ACA 156/13- Pou Yuen, dated August 28, 2013, Issue #12 (Legal Ref. Art. 186 Labor Law) (Ref. Precedent: #A ) Managers of enterprises employing a minimum of 100 (one hundred) women shall set up, within their establishments or nearby, a nursing room and a daycare center. Alternatively the employer shall pay for the charges of any daycare center where female employees can keep their children who are over 18 months old, in receipt of payment. Occupation Safety and Health Canteen #A ACA 147/13- Sino Garment Industrial, dated August 01, 2013, Issue #8 (Ref. Precedent: ACA 35/04 #2, ACA 55/07 #2, ACA 81/07 #8, ACA 96/11 #3) The Arbitration Council confirmed its previous decisions which held that the employer shall arrange an appropriate canteen for employees, based on the agreement between employees and the employer and the internal rules of the employer. The Arbitration Council further confirmed its previous decision that the employer shall finish the construction of the canteen within 6 (six) months from the date on which the judicial awards came into force. Employer s Management Rights vs. Employees Sanitation #A ACA 148/13- DTV-Star, dated August 15, 2013, Issue #7 (Legal Ref. Art. 2 and 229 Labor Law) The Arbitration Council confirmed that it is the right of an employer to set the model of the work clothes to be provided to the employees. However, in the event that such work clothes do not provide adequate hygiene and sanitation conditions to the employees who 10

13 are wearing them while performing their work, the employer has an obligation to change them in order to make them more hygienic and better sanitized, as demanded by the employees. Permanent Infirmary #A ACA 155/13- Kar Tat, dated August 14, 2013, Issue #3 (Legal Ref. Art. 238, 242 Labor Law, Prakas No. 330 SKBY, dated December 06, 2000) (Ref. Precedent: ACA 24/03 # 7, ACA 143/09 #2, ACA 62/08 #2, ACA 31/12 #7) The Arbitration Council ordered employers employing at least 50 (fifty) employees to properly prepare a permanent infirmary on the premises of the establishment. The number of physicians and nurses shall be arranged based on the number of employees in the establishment according to Prakas No Moreover, with such a permanent infirmary, the employer shall make available all sufficient medical equipment and medicine as required by Prakas No Disclaimer: The B&A LABOR UPDATE is published for the purpose of notifying readers of changes in the labor regulations. This is not an academic text, nor is it intended to be relied upon while making legal decisions. Bun & Associates accepts no responsibility for use of this information. Bun & Associates LABOR UPDATE For more information, please contact: info@bun-associates.com 11

14 Labor Practice Group: Contact: Dr. Antoine Fontaine, PhD, Member of Paris Bar Head of Labor Practice Group Phone: +855 (0) Ms. Both Sorya, LLM Mr. Oem Sam Ann, LLM Ms. Katherine Lowe, LLB Ms. Hing Vandanet, LLB Bun & Associates #29, St. 294, P.O. Box 2326 Phnom Penh, Cambodia Phone: +855 (0) Fax: +855 (0)