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Jul 04, 2017

Creating a Cohesive Workplace Environment - An Overview from the Trade Union Law Perspective

By Vanarith Vo

This article first appeared on B2B Cambodia.

“Employees do not work merely for salary. They are contributing their expertise and service to ensure smooth operations within the work place.”

There are a number of regulations requiring the Employer to cooperate and consult with the staff representative (including trade union and shop steward) on a regular basis. Although, the existing Trade Union Law (“TUL”) does not stipulate that the formation of a Trade Union is compulsory in every enterprise, having a Shop Steward is required for those enterprise/establishment where at least 8 employees are normally employed.

It is the Employer’s duty to organize a shop steward election together with the preparation of official minutes for submission to the Ministry of Labor and Vocational Training.  The shop steward is elected from among the candidates nominated by either the Union (in those enterprises where a Union has been formed) or from the non-union members who volunteer to be candidates within the framework of each establishment. 

Registered staff representatives will be key in the dialogue with the Employer representing legitimate rights and interests of all their members within the enterprise to promote, protect and ensure smooth industrial relations.

The shop steward must be consulted and should put forward a written opinion:

- on the draft internal regulations according to provisions in the labor law or
- on any planned modifications to these internal regulation and
- on any planned measure for lay-offs due to a reduction in activities or an internal reorganization of the enterprise.

In an enterprise where a Union is not yet established, the shop steward can enter a transitional collective bargaining agreement (“CBA”) for a term of not more than two years with the Employer. The latter CBA will take precedence over and replace prior CBAs which have lower benefits to employees.

Where there is only one Union or a Union formed by 30 percent or more of the total employees in a given enterprise (referred to as Most Representative Status: “MRS Union”), that Union can appoint one of its members to be a Union delegate. This union delegate has sole discretion to make a decision and sign a collection bargaining agreement with Employer. Such union delegate can perform the same mission as a shop steward, is appointed for a two year term and which may be renewed.

To ensure a good standard of working condition, as well as providing safety to its workers, unions can oversee the enforcement of provisions relating to occupational safety and health. Applicable safety and work remedies can be recommended for work-related accident or occupational diseases prevention.

Unions also have a responsibility to inform the labor inspector of all complaints and criticisms relating to the enforcement of labor regulations.  The Union can present to the Employer individual or collective grievances relating to wages, enforcement of the labor code and general labor regulations as well as collective bargaining agreement applicable to the enterprise.

The Employer is required to inform the staff representative in writing to solicit their suggestions on a prior announcement of the staff reduction and appropriate measures to minimize negative effects on the affected employees.

The MRS Union has a primary duty to engage with Employers in good faith in representing the interests of their members with regard to the terms and conditions of employment and the enterprise’s compliance. This duty of good faith includes an obligation to meet and convene promptly and expeditiously to resolve problems or collectively negotiate the execution of a collective bargaining agreement in accordance with the labor law, trade union and applicable labor standards.

Employers must consider proposals for adjusting grievances or questions arising under the collective bargaining agreement. The Employer’s duty includes making concessions and protect with reasonable consideration. Their obligation also includes cooperation with the MRS Union to give full effect to rights secured through collection bargaining agreement with the Employer. For the purpose of the collective bargaining agreement or collective labor dispute resolution, the MRS Union has the exclusive right to negotiate.

Where the enterprise includes members of multiple unions, unions with minority representation among the workforce   may also represent their own members in an individual labor dispute, provide literacy training on legal and professional matters and practical advice to its members and other measure deemed necessary for their members.

Sciaroni & Associates’ Labor Practice Group has demonstrated expertise advising our clients in all aspects of labor and human resource law in the Kingdom of Cambodia. Our team of expatriate and national advisors and paralegals can help by drafting and reviewing employment policies and agreements and assisting in document registration with the Ministry of Labor and Vocational Training in the Kingdom of Cambodia. Sciaroni & Associates advises across a broad range of labor and corporate compliance issues while advising on corporate structures that are in keeping with international best practices and prevailing law in Cambodia. 

Sciaroni & Associates, one of Southeast Asia’s leading professional services and investment advisory firms, has been providing skilled counsel and knowledgeable business insights for over two decades. Based in Cambodia with legal offices in  Laos and Myanmar, our experienced team of advisors brings considerable general and sector-specific expertise to the challenges confronting companies doing business in emerging markets.  We are proud that our clients comprise many of the world’s premier companies, banks, financial institutions, governments and global development organizations.

For more information please visit www.sa-asia.com or contact us at info@sa-asia.com

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Sciaroni & Associates is a leading professional and investment advisory firm doing business in Southeast Asia since 1993. Based in Cambodia with legal offices in Laos and Myanmar, we provide experienced advice and business insights to many of the world’s leading companies, governments, economic think tanks, global development funds, international NGOs and the Royal Government of Cambodia in accordance with strict international standards.
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