MINUTE ON INDUSTRIAL RELATIONS WORKING GROUP (8TH WORKING GROUP) I. Introduction The Meeting on Industrial Relations Working Group (8 th Working Group) was conducted on the 27 th of August 2015, at 2:00 5:00 PM, and continued on the 10 th of September 2015, at 9:00 11:00 AM, at VIP Meeting Hall of Ministry of Labour and Vocational Training, under presidency of H.E. Ith Sam Heng, Minister of Labour and Vocational Training. II. Participants The participants include Lok Oknha Van Sou Ieng, President of Cambodian Federation of Employers and Business Associations (CAMFEBA), Lok Oknha D. Nang Sothy, Board Member of CAMFEBA and as a Co-Chairman of Industrial Relations Working Group, members of Industrial Relations Working Group, representatives from other ministries, technical officers of secretariat of CAMFEBA, and representatives from companies/enterprise (employers) who are members of CAMFEBA. The agenda of the meeting is as the followings: 1. Lok Oknha Dr. Nang Sothy read the issues in Matrix 2. Responses from Ministry of Labor and Vocational Training 3. Concluding remarks by H.E. Dr. Ith Sam Heng III. Purposes of the Meeting The purpose of the meeting is to harmonize the industrial relations among private sectors, providing them opportunity to bring issues they encounter, concern and suggestion to the government represented by related ministries including Ministry of Labour and Vocational Training, which is the co-chairman of Industrial Relations Working Group to urgently address those issues effectively. IV. Result of the Meeting Issue 1: Request Ministry of Labour and Vocational Training to clarify Article 139 New and 144 New of law on amendment of Article 139 and 144 of labour law dated July 20, 2007 regarding
Page 2 of 8 determination of period (hour) and wage rate of night work and OT ratio from 22h00 5h00 so that labour law is effectively implemented for private sector. Response: Ministry of Labour and Vocational Training (MoLVT) made a response to the meeting that article 144 New of the labour law clearly points out the difference between the word night and night work. The word night means a period of at least consecutive 11 hours which shall include the period from 10 pm 5 am, while the word night work is considered from 10 pm 5 am. The period to be considered as night work is clearly spelt out in Point 1 of Circular No. 185 on Wage of Night Work. Therefore, according to Article 144 New and Circular No. 185, the night work the worker shall be entitled to 130 % of normal wage is counted from 10 pm 5 am; that is, it is NOT to count from 7 pm which was interpreted by the Arbitration Council in case No. 127/14. Regarding the wage rate of night work and of overtime work, according to Point 1 of Circular No. 185, the calculation shall be based on the rate of normal working wage, i.e. the wage rate of overtime work at night is 200% of normal working wage. MoLVT added that Article 139, 144 and Circular No. 185 is clear already, so other regulation to clarify this issue is not necessary. Anyway, MoLVT cannot issue any instruction to the Arbitration Council since the Arbitration Council is an independent institution. Should the Arbitration Award is non-binding; the parties can object the award if they disagree. H.E. Ith Sam Heng suggested there have a meeting between MoLVT and the Arbitration Council and Better Factory in Cambodia (BFC) to discuss this misinterpretation while there already have law and circular. The result of this meeting will be sent to Labour Advisory Committee to review this interpretation. H.E. Sok Chenda also suggested that a letter be issued to Cambodian Federation of Employers and Business Associations (CAMFEBA) and GMAC to inform about the interpretation of the labour law. In addition, Lok Oknha Nang Sothy raised concern on misinterpretation of the Arbitration Council in case No. 127/14, which might happen again in other cases in the future. Therefore, MoLVT should have other methods so as to satisfy employers as well as to show MoLVT s concern on this issue. H.E. Ith Sam Heng clarify that to issue letter on this issue to the Arbitration Council is not a difficult thing to do, but he still suggested to have meeting between MoLVT and the Arbitration Council and BFC, and we will implement resolutions of the meeting accordingly. Lok Oknha Van Sou Ieng agreed with this meeting; however, timeframe should be set for resolution. In here H.E. Ith Sam Heng added that gentle method is still a better solution; that is, the meeting is a suitable way to alert to the Arbitration Council to be aware in interpretation of labour law, and to BFC to consult with MoLVT in law interpretation. Anyway, Lok Oknha Nang Sothy asked permission to H.E. Ith Sam Heng for CAMFEBA to issue a statement on misinterpretation of the case 127/14 by the Arbitration Council. In response, H.E. Ith Sam Heng agreed with this request since it is the right to express opinion of CAMFEBA.
Page 3 of 8 Issue 2: Request Ministry of Labour and Vocational Training to implement the resolutions raised by the ministry during the 8th Working Group meeting on April 3, 2015. Response: H.E. Ith Sam Heng expressed that MoLVT have successfully implemented most of the agreed resolutions, but the thing is the dissemination of information from MoLVT to private sectors. Regarding lighting in factory, on 14 th August 2015 MoLVT conducted a meeting with BFC on clarification of lighting standard. As a result, it was agreed to implement according to Prakas on Lighting. Regarding Leave, MoLVT has already provided regulations to CAMFEBA, and they can be accessed at http://www.mlvt.gov.kh Moreover, MoLVT urged other related ministries to provide regulations to CAMFEBA as soon as possible. With reference to Prakas No. 248 on Paid Public Holiday 2015, MoLVT has already clarified that only the public holiday falls on Sunday, workers/employee will have another substitute following day as a day off. Department of Labour of Ministry of Labour and Vocational Training will manage to issue the notification on Pchum Ben Public Holiday. Pchum Ben Public Holiday will be on 11-12-13 October, in which 11 October falls on Sunday, so the workers/employees will have another day off as substitution day. Regarding Sick Leave, Department of Labour Inspector has set the policy and will discuss with ILO and implement Article 382 of the labour law. It is required that enterprise/establishment should include sick leave as paid leave into their internal rule: for sick leave for 1 st month, worker is entitled to full wage (100%); for 2 nd and 3 rd month, worker is entitled to wage of 60 %, for 4 th 6 th month, no wage is paid, but the seniority is maintained. Concerning Electric Form, MoLVT has already prepared, and is pending for policy. It is expected to be implemented in early 2016. Lok Oknha Van Sou Ieng expressed that sick leave is unpaid leave, according to the labour law; however, ILO and MoLVT suggested wage be provided based on sick leave period. May the company reserve right to include its internal rule based on the labour law? Anyway, is worker entitled to wage during 7-day sick leave? In response, MoLVT has discussed with ILO and agreed that all internal rules shall include sick leave as paid leave (for sick leave for 1 st month, worker is entitled to full wage (100%); for 2 nd and 3 rd month, worker is entitled to wage of 60 %, for 4 th 6 th month, no wage is paid, but the seniority is maintained.), or else, MoLVT would not approve internal rule. MoLVT added for the time being, company is responsible for sick leave; however, once Health Care Scheme is implemented, such matter is responsible by NSSF. Moreover, MoLVT would issue Prakas to implement regarding sick leave.
Page 4 of 8 Issue 3: Request to clarify: 1. Employment card and work permit for foreigner when he/she come to work or do business in two different company or more in Cambodia; 2. Employer or foreign employee have office at another country but is responsible for work in Cambodia. Employer or shareholder who carry company Patent or certificate registered in Cambodia come to Cambodia once in a while. Response: H.E. Ith Samheng responded that MoLVT acknowledged this problem and General Department of Labour shall issue the instruction about the implementation regarding foreign employees including those who work for one company or more than one in Cambodia and those who work temporarily. Issue 4: Improving public service of MoLVT as well as Department of Labour and Vocational Training, and Requesting to have exemption from punishment from labour inspectors of foreign labour when the company is processing work permit and employment card Response: H.E. Seng Sakada said that foreigners who work in Cambodia shall comply not only the Labour Law, but also Immigrant Law; to implement this Immigrant Law, the Ministry of Interior has released the sub-degree 75 to govern immigrants. So far, MoLVT did not fine any foreign employees working in Cambodia without employment book. However, as stated in the sub-degree 75 from the Ministry of Interior, if the foreign employees found working without employment book, fine will be imposed. Regarding the duration of the application for work permit and employment book, H.E. Seng Sakada acknowledged MoLVT is slow in implementation, and said that MoLVT is reforming the procedure of application using technology which is expected to begin in 2016. H.E. Ith Samheng also added that MoLVT will release an announcement on the request of Quota and once there is late response from MoLVT officers, company may make a complaint letter to MoLVT. Lok Oknha Van Sou Ieng requested MoLVT to issue invoice of the application of work permit and employment book as evidence to prove to labour inspector that the company has complied the law. H.E. Seng Sakada agreed with the issuance of invoice. MoLVT has already discussed with the General Department of Immigrant and all agreed that the company will not be fined as long as they have the invoice.
Page 5 of 8 Issue 5: Request for formal clarification on Article 67 (2) of Cambodian Labour Law relate to definition of Specified Duration Contract. Response: H.E. Ith Samheng accepted the request of Cambodian Federation of Employers and Business Association (CAMFEBA) and will hold a meeting attended by the related parties. But primarily, MoLVT would have an internal meeting; if its result require the amendment of this labour law, MoLVT would apply for the amendment of the law. Issue 6: Request MoLVT to issue a formal regulation or guideline in order to set the principle for enterprises and establishments to implement and protect them from the accusing in the registration with NSSF. Response: Regarding this issue H.E Seng Sakada provided that on 8 th September 2015, NSSF had conducted a meeting on Determination of Identity of NSSF s Members attended by employers and trade unions. As a result, solutions were found out: 1. An Instruction will be issued by MoLVT to determine the identity of NSSF s member again without putting pressure or punishment to employer or worker; 2. It is to establish committee or working group to implement this instruction; 3. It is to disseminate the instruction to public via radio or TV. H.E. Ith Samheng added that the identity of employees is very important and we cooperating with the Ministry of Interior shall release an instruction, and if needed we shall issue a joined- Prakas or joined-circular as well. Moreover, regarding the seniority of the employee, when there is a re-identification, we shall thoroughly study about the law and the reality, and include it in that instruction. He added General Department of Labour and NSSF shall cooperate with each another. Issue 7: Documents of Cambodian worker to apply for job abroad through recruitment agency company. Response: H.E. Ith Sam Heng stated that it takes risks to ask for only one personal document from the employees like passport as it may affect the national security governance. However, MoLVT also take the request from the company into consideration. MoLVT will hold a meeting with Ministry of Interior; also, General Department of Labor of MoLVT will have a discussion with the Department of Identification of the Ministry of Interior. We will be waiting for the result of this meeting whether there will have any solutions for this problem.
Page 6 of 8 Issue 8: Apprenticeship Response: Regarding the apprenticeship, as stated in Chapter 3 of the labour law, any enterprise stated in article 1 of the labour Law employing more than 60 workers shall have the apprentices and Prakas No. 004 on Apprenticeship also spelt out concerning this issue. However, H.E. Ith Sam Heng also considered the concern and request from the company, and said that there will be an amendment of the labour law in the future, but large amount of time is needed. Regarding the type of enterprises and the procedure of the implementation of Prakas No. 004, we will issue an instruction where certain provisions would be set for certain types of enterprise whether apprentice is required. Issue 9: Prakas of MoLVT on the Authorization (Name of Recruitment Agency) to recruit, train, send and manage the Khmer workers to work abroad. Response: MoLVT accepted the request from the private sector regarding the issuance of licence (Prakas) to recruitment agency company in form of Certificate and MoLVT will print license in form of certificate with owner s photo. Issue 10: Urging the proper implementation of union establishment of persons who get special protection in accordance with the Labour Law. Response: H.E. Ith Sam Heng clarified that MoLVT will instruct trade union regarding the legal procedure of the trade union formation, and if needed, more announcement will be issued to trade union to ensure that the employers get to know about trade union registered at the Ministry and persons who shall be protected by law. The minster also added that MoLVT still respect freedom of trade union and vocational organization, but it is also obliged to reduce the opportunist activities which use the right of the trade union for their own interest. Furthermore, this problem will be solved based on the Trade Union Law after it is passed. Issue 11: Request to fire Administration Manager or factory s management by strikers Response: Responding to this issue, H.E. Ith Sam Heng suggested that GMAC or private sector have a training course for their administration or management team especially foreigner (as the administration mostly run by the foreigner) to help them understand Cambodian culture with the aim of improving the relationship and the better understanding between the company and employees; Department of Labour shall cooperate with this.
Page 7 of 8 Moreover, when the disputes occur, besides having a negotiation between the related party, the Committee on Strike and Demonstration Resolution, and Committee on Labour Dispute Resolution shall investigate and study on the demand of the employees whether or not those demands are acceptable. Additionally, this dispute resolution will be stated in Trade Union Law, which provides the procedure of dispute settlement, and which will be passed very soon. Issue 12: Slow response from local authorities during the strike. Response: H.E. Ith Sam Heng requested to the company and factory where the disputes occur to provide evidence to Committee on Labour Dispute Resolution in order to put measure in accordance with the law. Furthermore, MoLVT is now preparing a circular on the establishment of the industrial relation groups in the factory, where this group shall are able to contact directly with the local authority, and this group shall consist of factory s administration, production team leader, and trade union of the factory. Issue 13: Foreign workers inspection from inspectors (Case of Top Summit Garment). Response: H.E. Ith Sam Heng provided solutions as the followings: 1. MoLVT will impose punishment to those MoLVT officers who made technical mistakes like wrongly writing the name of foreign worker on their passport and employment card; 2. An Announcement will be issued to determine that only the inter-inspector (between MoLVT and Ministry of Interior) is responsible in inspection of foreign worker; 3. MoLVT will issue invoice to company who are processing work permit/employment card to show to labor inspector; 4. One-window-service office will be established in MoLVT. Issue 14: Strike leading and unrest provoked by unregistered union (Case of Zhen Tai Garment (Cambodia) Co., Ltd.) Response: H.E. Ith Sam Heng provided that the problems regarding the unregistered trade union will be solved based on Trade Union Law which its draft will be done by next week and will be passed by the senate at the end of this year. Moreover, the minister encouraged the company which were bothered shall provide evidence to the Committee on Labour Dispute Resolution in order to put measure in accordance with the law.
Page 8 of 8 V. Concluding Remarks H.E. Ith Sam Heng thanked all participants for their valuable time in this meeting. VI. Action Plan H.E. Ith Sam Heng requested the secretary of MoLVT to make report of what MoLVT resolved in this meeting, and the related departments of MoLVT shall urgently take action in accordance with the resolution of this meeting. He added MoLVT officers shall report of what MoLVT has successfully implemented based on MoLVT s resolutions before the next meeting begins. Seen and Approved Ms. CHREA Dalya Legal Manager CAMFEBA Phnom Penh, 14 th September 2015 Reporter Mr. LEANG Seang Meng Legal and Information Officer CAMFEBA