Freedom of association / Right to organise

Freedom of association

Anti-Union discrimination

Restrictions on trade unions’ right to organise their administration

Restrictions on the right to elect representatives and self-administer in full freedom

Section 20 of the TUL, as amended in 2019, sets out the eligibility criteria for union leaders, managers and those responsible for the administrative affairs of unions. Cambodian nationals are still required to be at least 18 years age, while foreign nationals, must be literate in Khmer, have been working in the Kingdom of Cambodia for a minimum of two years and have the right to reside and have a permanent residence in the Kingdom of Cambodia.

Categories of workers prohibited or limited from forming or joining a union, or from holding a union office

Other civil servants and public employees

The Labour Code does not apply to civil servants, including teachers and judges.

Domestic workers

Section 3 and Section 10 of the Trade Unions Law limit their scope only to persons covered by Labour Law, which excludes domestic workers.

Others categories

Section 3 and Section 10 of the Trade Unions Law limit their scope only to persons covered by Labour Law, which excludes workers in small enterprises, workers in the informal economy (e.g. market vendors, tuk-tuk drivers and hawkers) and members of the judiciary

Barriers to the establishment of organisations

Excessive representativity or minimum number of members required for the establishment of a union

The Labour Law requires a minimum of 10 workers to create a union.

Restrictions on the right to freely organise activities and formulate programmes

Under sections 17 and 27 of the TUL, union must provide details of their bank accounts, even if they supply an audit from a certified auditor. Unions are required to provide information on changes of bank accounts and membership numbers within 15 days of the modification.

Administrative authorities’ power to unilaterally dissolve, suspend or de-register trade union organisations

Paragraph 2 of section 28 of the TUL provides that a union is automatically dissolved in the event of a complete closure of the enterprise or establishment. Section 29, as amended in 2019, still allows a “concerned party” to file a complaint to the Labour Court for dissolution of the organisation. The phrase “concerned party” is not defined. Further, Section 29 still provides for broad grounds to request dissolution by a Court, including in case where the activities of the union contravene the law or the statutory objectives. In addition, when section 17 is read in conjunction with section 18, the law effectively empowers the Ministry of Labour to revoke union registration if the union has not fulfilled obligations stipulated by regulators in two warning notifications.

Restrictions on trade unions’ right to establish branches, federation and confederation or to affiliate with national and international organisations

According to section 10 of the Trade Unions Law, a minimum of seven local unions is required to form a federation. The minimum is set at five federations to form a confederation.

Sanctions imposed for organising or joining an organisation not officially recognised

The Trade Unions Law provides that trade unions may not enter into any legal arrangements prior to being registered (section 14). The unions who operate without registration receive an initial admonishment and subsequently a maximum fine of 5,000,000 Khmer Riel for failure to comply with the admonishment (Art. 80).

Other formalities or requirements which excessively delay or substantially impair the free establishment of organisations

The Trade Union Law requires the submission of addresses for keeping of financial books and records, affidavits guaranteeing provision of bank account details within 45 days of receipt of registration, minutes of the election establishing the union and name lists of members (Article 12). Prakas 249/16 on Registration of Trade Unions and Employer Associations also requires the submission of photos and personal information of leaders and declarations of literacy and lack of criminal convictions, as well as information regarding their families.

Right to collective bargaining

Right to collective bargaining

Barriers to the recognition of collective bargaining agents

Possibility to by-pass representative trade unions and bargain directly with workers’ representatives

Each workplace with over eight employees must have a shop steward, who has the duty to present employers with issues related to grievances and wages, and to enforce the labour law and collective agreements. The Labour Code fails to provide similarly legally enforceable rights to trade union leaders, and thus extends to stewards functions that should belong to elected union leaders.

Previous authorisation or approval by authorities required to bargain collectively

Article 56 requires unions to request certification of most representative status from the Ministry in charge of Labour, pursuant to the implementing procedures and formalities to be set out in Prakas of the Minister in charge of Labour. A decision will be issued by the Minister within 30 days (Article 57).

Absence of criteria or discretionary, unclear or unreasonable criteria for determining representative organisations

Under sections 54 and 55 of the amended TUL, to obtain most representative status, a union must have a list with the most due-paying members that are 30% or more of the total number of workers in the occupation, economic activity or sector. The amended section still provides exclusive rights in collective dispute resolution to the most representative union. Section 59 allows minority unions to represent their own members, but only for collective labour disputes that do not stem from a collective agreement.

Absence of recourse to an independent body responsible for declaring whether an organisation may negotiate or not

The determination is to be made by the Minister in charge of Labour (art. 59).

Restrictions on the principle of free and voluntary bargaining

Imposition of fixed and unreasonable procedural requirements (e.g. short time-limits for reaching an agreement)

Article 65(e) of the Trade Union Act prohibits trade unions from interrupting the process of collective bargaining. As currently drafted, this prohibition potentially impedes the freedom of the parties to collective bargaining.

Restrictions on the scope of application and legal effectiveness of concluded collective agreements

Restrictions on the duration, scope of application or coverage of collective agreements

Article 69 of the Trade Union Act requires collective agreements to specify one of four possible geographical scopes. These scopes do not permit an agreement to cover more than one enterprise or establishment, but less than a province or municipality. This impedes the right of trade unions to bargain collectively across multiple enterprises or establishments.

Other limitations

Other limitations

Minority unions violating section 59 of the TUL (on their right to represent members in collective bargaining) are subject to admonishments and a maximum fine of five million riels .

Right to strike

Right to strike

Barriers to lawful strike actions

Obligation to observe an excessive quorum or to obtain an excessive majority in a ballot to call a strike

Article 13 of the Trade Unions Law requires the statutes of a trade union to stipulate a set quorum by absolute majority (at least 50 per cent + 1 member) of the union’s total members for a decision-making meeting on strike, that a secret ballot is to be cast by at least 50 per cent + 1 of members participating in the decision-making meeting on strikes.

Limitations or ban on strikes in certain sectors

Discretionary determination or excessively long list of "services of public utility" in which a minimum operational service is can be imposed in the event of strikes

A minimum service is imposed in all enterprises, regardless of whether they are public utilities or not, and regardless of whether the minimum service exceeds the need to comply with statutory safety requirements. Workers who are required to provide a minimum service but stay out on strike are considered guilty of serious misconduct.

Compulsory recourse to arbitration, or to long and complex conciliation and mediation procedures prior to strike actions

The conciliation procedure to be fulfilled for holding legal strikes is cumbersome. Disputes must first be subjected to labour conciliation conducted by an inspector of the Ministry of Labour and Vocational Training, who has 15 days to seek a settlement. If there is no mutually satisfactory result, the dispute must be submitted to the tripartite Arbitration Council for investigation. A decision from the Council must come within 15 days of the dispute being referred to it.

Ban or limitations on certain types of strike actions

Restrictions with respect to type of strike action (e.g. pickets, wild-cat, working to rule, sit-down, go-slow)

Article 65 of the Law on Trade Unions provides that it is unlawful for a trade union or its representatives to cause a congestion or block an entrance and exit gate in the premises of the enterprise or establishment or to violently incite or threaten or prevent or coerce, through all means, non-striking workers not to work and close public streets; or to lead a strike or demonstration that contravenes the legal procedures.

Undermining of the recourse to strike actions or their effectiveness

Other legal provisions undermining the right to strike

The Law on Trade Unions imposes admonishments and a maximum fine of five million Khmer Riel on any person who coerces workers to participate in a strike (Article 89). The word of “coerce” is vague and undefined. No distinction is made between legal strikes, illegal strikes, peaceful strikes or violent strikes, with only the general word “strikes” used.

Excessive civil or penal sanctions for workers and unions involved in non-authorised strike actions

The Law on Trade Unions imposes admonishments and a maximum fine of five million Khmer Riel on any person who coerces workers to participate in a strike (Article 89). The word of “coerce” is vague and undefined. No distinction is made between legal strikes, illegal strikes, peaceful strikes or violent strikes, with only the general word “strikes” used.