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Article 3
"Workers”, within the meaning of this law, are every person of all
sex and nationality, who has signed an employment contract in return
for remuneration, under the direction and management of another
person, whether that person is a natural person or legal entity,
public or private. To clearly determine the characteristics of a
worker, one shall not take into account of neither the
jurisdictional status of the employer nor that of the worker, as
well as the amount of remuneration.
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Article 4
"Domestics or household servants” are those workers who are engaged
to take care of the home owner or of the owner’s property in return
for remuneration.
Article 5
“Employees or helpers” are those who are contracted to assist any
person in return for remuneration, but who do not perform manual
labour fully or who do so incidentally.
Article 6
“Labourers” are those workers who are not household servants or
employees, namely those who perform mostly manual labour in return
for remuneration, under the direction of the employer or his
representative. The status of labourer is independent of the method
of remuneration; it is determined exclusively by the nature of the
work.
Article 7
“Artisans” are persons, who practice a manual trade personally on
their own account, working at home or outside, whether or not they
use the motive force of automatic machines, whether or not they have
a shop with a signboard, who primarily sell the products of their
own work, carried out either alone or with the help of their spouse
or family members who work without pay, or with the help of workers
or apprentices, but the entire workshop is solely under the
direction of their own. The number of non-family workers, who
regularly work for an artisan, cannot exceed seven; if this number
is exceeded, the employer loses the status of artisan.
Article 8
“Apprentices” are those who have entered into an apprenticeship
contract with an employer or artisan who has contracted to teach or
use someone to teach the apprentice his occupation; and in return,
the apprentice has to work for the employer according to the
conditions and terms of the contract.
Article 9
In accordance with the stability of
employment, it is distinguished:
-
Regular workers
-
Casual workers, who
are engaged to perform an unstable job.
-
Regular workers are
those who regularly perform a job on a permanent basis.
-
Casual workers
are those who are contracted to:
-
Perform a specific
work that shall normally be completed within a short period of time.
-
Perform a work
temporarily, intermittently and seasonally.
Article 10
Casual workers are subject to the same rules and obligations and
enjoy the same rights as regular workers, except for the clauses
stipulated separately.
Article 11
In accordance with the method of remuneration, workers are
classified as follows:
-
Workers
remunerated on a time basis (monthly, daily, hourly), who
are paid
-
Daily or at
intervals not longer than fifteen days or one month.
-
Workers
remunerated by the amount produced or piecework.
-
Workers
remunerated on commission.
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Section 2: Non-Discrimination
Article 12
Except for the provisions fully expressing under this law, or in
any other legislative text or regulation protecting women and
children, as well as provisions relating to the entry and stay of
foreigners, no employer shall consider on account of:
-
race
-
colour
-
sex
-
creed
-
religion
-
political opinion
-
birth
-
social origin
-
membership of
workers’ union or the exercise of union activities.
-
to be the invocation
in order to make a decision on:
-
hiring
-
defining and
assigning of work
-
vocational training
-
advancement
-
promotion
-
remuneration
-
granting of social
benefits
-
discipline or
termination of employment contract.
Distinctions, rejections, or acceptances based on qualifications
required for a specific job shall not be considered as
discrimination.
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Section 3: Public Order
Article 13
The provisions of this law are of the nature of public order,
excepting derogations provided expressly. Consequently, all rules
resulted from a unilateral decision, a contract or a convention that
do not comply with the provisions of this law or any legal text for
its enforcement, are null and void.
Except for the provisions of this law that cannot be derogated in
any way, the nature of public order of this law is not obstructive
to the granting of benefits or the rights superior to the benefits
and the rights defined in this law, granted to workers by a
unilateral decision of an employer or a group of
employers, by an employment contract, by a collective convention or
agreement, or by an arbitral decision.
Section 4: Publicity
Article 14
The employer must keep at least one copy of the labour law at
the disposal of his workers and, in particular, of the workers’
representatives in every enterprise or establishment set forth in
Article 1 of this law.
Section 5: Forced Labour
Article 15
Forced or compulsory labour is absolutely forbidden in conformity
with the International Convention No. 29 on the Forced or Compulsory
Labour, adopted on June 28, 1930 by the International Labour
Organization and ratified by the Kingdom of Cambodia on February 24,
1969. This article applies to everyone, including domestics or
household servants and all workers in agricultural enterprises or
businesses.
Article 16
Hiring of people for work to pay off debts is forbidden.
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Chapter 2
Enterprises-Establishments
Section 1: Declaration of the Opening and Closing of the
Enterprise
Article 17
All employers to whom this labour law is applied, shall make a
declaration to the Ministry in charge of Labour when opening an
enterprise or establishment. This declaration, called a declaration
of the opening of the enterprise or establishment, must be made in
writing and be submitted to the Ministry in charge of Labour before
the actual opening of the enterprise or establishment.
Employers who employ fewer than eight workers on a permanent basis
and who do not use machinery, shall make and submit this declaration
to the Ministry in charge of Labour within thirty days following the
actual opening of the enterprise or establishment.
Article 18
For the closing of the enterprise, employers shall also make a
declaration to the Ministry in charge of Labour within thirty days
following the closing of the enterprise.
Article 19
A Prakas of the Ministry in charge of Labour shall define the
formality and procedure of the declarations to follow in each case.
Article 20
Every employer shall establish and neatly keep a register of an
establishment that was numbered and initialled by the Labour
Inspector. The model of the register shall be set by a Prakas of the
Ministry in charge of Labour.
Section 2: Declaration on Movement of Personnel
Article 21
Every employer must make the declaration to the Ministry in charge
of Labour each time when hiring or dismissing a worker. This
declaration must be made in writing within fifteen days at the
latest after the date of hiring or dismissal. This period is
extended to thirty days for agricultural enterprises. The
declaration of hiring and dismissal is not applied to:
Section 3: Internal Regulations of the Enterprise
Article 22
Every employer of an enterprise or establishment, set out in
Article 17 above, who employs at least eight workers shall always
establish an internal regulation of the enterprise.
Article 23
Internal regulations adapt the general provisions of this law in
accordance with the type of enterprise or establishment and the
collective agreements that are relevant to the sector of activity of
the aforementioned enterprise or establishment, such as provisions
relating to the condition of hiring, calculation and payment of
wages and perquisites, benefits in kind, working hours, breaks and
holidays, notice periods, health and safety measures for workers,
obligations of workers and sanctions that can be imposed on
workers.
Article 24
The internal regulations must be established by the manager of
enterprise after consultation with workers’ representatives, within
three months following the opening of the enterprise, or within
three months after the promulgation of this law if the enterprise
already exists. Before coming into effect, the internal regulations
shall be visaed by the Labour Inspector. This visa shall be issued
within a period of sixty days.
Article 25
The articles of internal regulations that suppress or limit the
rights of workers, set forth in laws and regulations in effect or in
conventions or collective agreements applicable to the
establishment, are null and void. The Labour Inspector shall require
the inclusion of enforceable provisions in virtue of laws and
regulations in effect.
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Article 26
An employer can not impose disciplinary action against a worker for
any misconduct of which the employer or one of his representatives
has been awarded for over fifteen days. The employer shall be
considered to renounce his right to dismiss a worker for serious
misconduct if this action is not taken within a period of seven days
from the date on which he has learned about the serious misconduct
in question.
Article 27
Any disciplinary sanction must be proportional to the seriousness of
the misconduct. The Labour Inspector is empowered to control this
proportionality.
Article 28
The employer shall not impose fines or double sanctions for the same
misconduct. These fines mean any measure that leads to a reduction
of the remuneration being normally due for the performance of work
provided.
Article 29
The internal regulations must be diffused and affixed to a suitable
place that is easily accessible, on the premises where work is
carried out and on the door of the premises where workers are hired.
These internal regulations shall constantly be kept in a good state
of legibility.
Article 30
All modifications to the internal regulations must comply with
the provisions governing the enterprise or establishment.
Article 31
In enterprises or establishments, employing less than eight workers,
where there are no internal regulations, the employer may pronounce,
according to the seriousness of the misconduct of the workers
concerned, a warning, a reprimand, a suspension of work without pay
for not more than six days or a dismissal with or without a prior
notice.
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Section 4: Employment Card
Article 32
Every person of Cambodian nationality working as a worker for
any employer is required to possess an employment card. No one can
keep a worker in his service who does not comply with the provision
of the above paragraph.
Article 33
The possession of an employment card is optional for seasonal farm
workers.
Article 34
The employment card is for the purpose of identifying the holder,
the nature of work for which he has contracted, the duration of
contract, the agreed wages and the method of payment, as well as the
successive contracts. It is forbidden to use a worker’s employment
card for purposes other than those for which it is created. When the
worker quits working for the employer, that employer shall not write
any appreciation on the employment card.
Article 35
The employment card is drawn up and issued by the Labour
Inspectors at the request of the worker who presents an identity
card issued by the competent authorities and a certificate of
employment issued by his employer.
Article 36
The issuance of employment card shall be subjected to a fee that
shall be collected and given to the national budget. The fee rate
and the method of collection shall be set by a joint Prakas of the
Ministry of Finance and the Ministry in charge of Labour.
Article 37
The hiring and dismissal of a worker, his wage and wage increase
shall be recorded in his employment card. The above record made by
the employer must be presented, within seven whole days following
the date of entry and departure of the worker, for the visa of the
Labour Inspector.
Article 38
The loss of employment card must be declared to the Labour
Inspectorate. A duplicate shall be issued under the same conditions
as those laid for the issuance of employment card.
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Section 5: Payroll Ledger
Article 39
Every employer of an enterprise or establishment covered by Article
17 above shall constantly keep a payroll ledger whose format shall
be set by a Prakas of the Ministry in charge of Labour. Before being
used, all the pages of the payroll ledger must be numbered and
initialed by the Labour Inspector.
The
payroll ledger must be kept in the Bureau of Cashier or Head Office
of each enterprise so that it is readily available for inspections.
The employer shall keep the payroll ledger for three years after it
has been closed. The Labour Inspector may require to see the payroll
ledger at any time.
Article 40
The payroll ledger shall record:
a) information about each worker employed by the enterprise.
b) all indications concerning the work performed, wage and
holidays.
Article 41
Any enterprises that wish to make the payroll ledger in a
different way but contains the same type of information and the same
method of review, may apply to the Labour Inspectorate.
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Section 6: Company Store
Article 42
The “company store” is defined as any establishment where the
employer directly or indirectly sells his workers or their families
foodstuffs and merchandise of any kind, for their personal
needs. Company stores are authorized under the four conditions as
follows:
-
The workers are not obliged to shop just there.
-
The employer or his attendant is not allowed to make a profit
from the sale of the merchandise.
-
The accounting of each company store is to be entirely
distinctive of that of the enterprise.
-
The price of items on sale is to be displayed visibly.
Article 43
The opening of a company store is determined by a Prakas of the
Ministry in charge of Labour.
The Labour Inspector monitors the operation of company stores whose
management is also shared by the elected representatives of the
concerned workers. The Labour Inspector has the authority to order a
temporary shutdown of a company store until a final decision is made
by the Ministry in charge of Labour.
Section 7: Guarantee
Article 44
The employer cannot subject the signing or the maintaining of
employment contract to a cash guarantee or bond of any form.
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Section 8: Characteristics of Labour Contractor
Article 45
The labour contractor is a sub-contractor who contracts with an
entrepreneur and who himself recruits the necessary work force or
workmen for the execution of certain work or the provision of
certain services for an all-inclusive price. Such a contract must be
in writing.
Article 46
The exploitation or underestimation of workmen by the labour
contractor or sub-contractor is forbidden.
Article 47
The labour contractor is required to observe the provisions of
this law in the same manner as an ordinary employer and assumes the
same responsibilities as the latter.
Article 48
In case of insolvency or default by the labour contractor, the
entrepreneur or the manager of enterprise shall substitute for the
contractor to fulfill his obligations to the workers. The harmed
workers, in such case, may file a case directly against the
entrepreneur or manager.
Article 49
The labour contractor is required to indicate his status, the
name and address of the entrepreneur, by affixing them to a place
that is readily visible in each workshop, storeroom, or work site
where work is performed.
Article 50
The entrepreneur shall constantly keep available a list of labour
contractors with whom he has contracted. This list, indicating the
name, address, and status of the labour contractor as well as the
situation of each workplace, must be sent to the Labour Inspectorate
within seven whole days following the date of signing the labour
contract.
This period is extended to fifteen days for agricultural enterprises
or businesses.
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Chapter 3
Apprenticeship
Section 1: Nature and Form of the Apprenticeship Contract
Article 51
The apprenticeship contract is one in which a manager of an
industrial or commercial establishment, an artisan or craftsman
agrees to provide or is entrusted with complete, methodical and
professional training to another person who contracts, in return, to
work for him as an apprentice under the conditions and for a time
period that have been agreed upon. This time period cannot exceed
two years.
Article 52
The apprenticeship contract must be in form of writing by notarial
deed or by private agreement within a fortnight of its
implementation, otherwise it is considered null.
Article 53
An apprenticeship contract shall be made up according to
customary practices of a profession if there are no rules
established by the Labour Inspectorate, with consent of
representatives of the profession taught. The apprenticeship
contract must contain:
-
The last name, first name, age, profession and address of the
instructor.
-
The last name, first name and address of the apprentice.
-
The last name, first name, profession and address of the
apprentice’s parents guardian or a person authorized by his
parents.
-
The date and duration of the contract, as well as the trade for
which the apprentice is trained.
-
The conditions for the apprentice’s remuneration and, if
applicable, all benefits in kind: food, accommodation or any
other items agreed between both parties.
-
The skill area that the manager of the enterprise is contracted
to teach the apprentice.
-
Indemnity to be paid in case of termination of the contract.
-
The main obligations of the instructor and the apprentice.
The
apprenticeship contract must be signed by the instructor and the
apprentice. In case that the apprentice is a minor, the contract can
be signed by his legal representative and the instructor. The Labour
Inspector shall review, countersign and register the apprenticeship
contract.
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Section 2: Terms of Apprenticeship Contract
Article 54
No one can be an instructor or undertake an apprenticeship if he is
less than twenty-one years of age, and cannot justify having
practiced, for at least two years, the profession to be taught as a
technician, trainer, craftsman or skilled worker.
The
period of practice of his profession can be reduced to one year, if
the instructor has a diploma in theoretical and practical training
from a recognized school or a specialized training centre.
Article 55
No employer, instructor in charge of an apprenticeship can live
in the same house with female minor apprentices. The capacity as an
apprenticeship instructor or a person in charge of apprenticeship is
disqualified for:
-
Individuals who have been convicted of a crime.
-
Individuals who have been guilty of behaving against the local
traditional customs.
-
Individuals who have been imprisoned for stealing, fraud,
misappropriation and corruption.
Article 56
A Prakas of the Ministry in charge of Labour shall determine the
occupation and types of work for which teenagers aged at least
eighteen years are allowed to be an apprentice. Once his vocational
skill training is adequate, the apprentice is no longer treated as
an apprentice but as a worker hereafter.
Article 57
Any enterprise employing more than sixty workers must have the
number of apprentices equal to one-tenth of the number of the
workers in service of that enterprise. The maximum number of
apprentices employed in an enterprise, regardless of the total
number of workers, shall be determined by a Prakas of the Ministry
in charge of Labour in accordance with the possible availability of
personnel and materials.
Derogation of the obligation stated in the first paragraph of this
article can be endorsed by a decision of the Labour Inspector for
enterprises that have requested to pay an apprenticeship tax whose
amount and method of payment shall be set by a Prakas of the
Ministry in charge of Labour.
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Section 3: Duties of Instructors and Apprentices
Article 58
The instructor shall behave in loco parentis towards the apprentice,
that is, watch over his conduct and manners, either at home or
outside, and inform his parents or their representative of any
serious offenses committed by the apprentice or any incorrect
propensity manifested. Moreover, the instructor must also inform the
apprentice’s parents, without delay, in the case of illness, absence
or any other problem, for their intervention. The instructor shall
not employ an apprentice for an overwork or for any work or service
other than those related to the exercise of the apprentice’s
profession.
Article 59
The instructor must progressively and completely teach the
apprentice the occupation that is the subject of the contract, and
where applicable, provide him with every facility or opportunity in
the event of the apprentice wishing to take a course in a vocational
training school.
At
the end of the apprenticeship, a certificate attesting the execution
of the contract by both parties and the professional skill of the
apprentice shall be awarded after an official examination conducted
by a neutral exam panel.
Article 60
The apprentice shall obey and respect his instructor within the
context of apprenticeship. He must assist the instructor in his work
to the best of his ability. He shall keep the professional
confidentiality.
Article 61
Any person who is convinced of having incited an apprentice to
break his contract shall be liable to an indemnity in favour of the
manager of the establishment or of the workshop that the apprentice
has abandoned. The indemnity must, in no case, not exceed the amount
of actual damages suffered by the former employer. Any new
apprenticeship contract made before the fulfilment of all the
obligations or termination of the preceding contract shall be null
and void.
Section 4: Monitoring of Apprenticeship
Article 62
A system for monitoring the apprenticeship, such as determining
programs by trade, supervision during the apprenticeship, final
examination, methods for setting up examination panel, etc., shall
be determined by a Prakas of the Ministry in charge of Labour.
The
Prakas of the Ministry in charge of Labour shall also clearly
determine the regulations regarding the duration of the
apprenticeship, including the trial period, according to the level
of professional skill and technical and conceptual knowledge, as
well as all the apprentice’s previous training and experience or
professional progress made during the course of the apprenticeship.
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Section 5: Termination of Apprenticeship
Contract
Article 63
The apprenticeship contract is terminated lawfully:
-
By the death of the instructor or the apprentice.
-
If the apprentice or the instructor is obliged to serve in the
army.
-
If the instructor or the apprentice is imprisoned for a felony
or misdemeanor.
-
By the closure of workshop or enterprise, specified in the above
articles.
Article 64
An apprenticeship contract may be terminated at the request of one
or both parties, particularly in the following cases:
-
In case either party does not comply with the stipulations of
the contract.
-
In case of serious or regular violation of the provisions in
this chapter.
-
In case the apprentice obstinately does not respect internal
regulations.
-
If the instructor moves his residence to Sangkat (section) or
Khum (commune) other than the one in which he lived at the
signing of the contract. Nevertheless, a request for termination
of contract for this reason is acceptable only within three
months following the day when the instructor moved.
Either party considered to be damaged by the unjustifiable
termination of an apprenticeship contract, can demand for a
compensation from the other party.
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Chapter 4
The Labour Contract
Section 1: Signing and Execution of a
Labour Contract
Article 65
A labour contract establishes working relations between the worker
and the employer. It is subject to ordinary law and can be made in a
form that is agreed upon by the contracting parties. It can be
written or verbal. It can be drawn up and signed according to local
custom. If it needs registering, this shall be done at no cost. The
verbal contract is considered to be a tacit agreement between the
employer and the worker under the conditions laid down by the labour
regulations, even if it is not expressly defined.
Article 66
Everyone can be hired for a specific work on the basis of time,
either for a fixed duration or for an undetermined duration.
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Article 67
-
A labour contract signed with one consent for a specific
duration must contain a precise finishing date.
-
The labour contract signed with one consent for a specific
duration cannot be for a period longer than two years. It can be
renewed one or more times, as long as the renewal does not
surpass the maximum duration of two years. Any violation of this
rule leads the contract to become a labour contract of
undetermined duration.
-
Sometimes, this contract may have an unspecified date when it is
drawn up for
-
replacing a
worker who is temporarily absent;
-
work carried out
during a season; and
-
occasional periods of
extra work or a non-customary activity of the enterprise. This
duration is then finished by:
-
the return to
work of the worker who was temporarily absent or the termination
of his labour contract;
-
the end of the
season; and
-
the end of the
occasional period of extra work or of the non-customary activity
of the enterprise.
-
At the signing of the contract, the employer must inform and
clarify the worker of the eventually sensitive issues and the
approximate duration of the contract.
-
Contracts without a precise date can be renewed at will as many
times as possible without losing their validity.
-
Contracts of daily or hourly workers who are hired for a
short-term job and who are paid at the end of the day, the week
or fortnight period, are considered to be contracts of fixed
duration with an unspecified date.
-
A contract of a fixed duration must be in writing. If not, it
becomes a labour contract of undetermined duration.
-
When a contract is signed for a fixed period of or less than two
years, but the work tacitly and quietly continues after the end
of the fixed period, the contract becomes a labour contract of
undetermined duration.
Article 68
A contract for a probationary period cannot be for longer than the
amount of time needed for the employer to judge the professional
worth of the worker and for the worker to know concretely the
working conditions provided. However, the probationary period cannot
last longer than three months for regular employees, two months for
specialized workers and one month for non-specialized workers.
The
round trip travel costs incurred by a worker during the probationary
period when working far from his habitual residence are to be
covered by the employer.
Article 69
Within the framework of his contract, the worker shall perform all
of his professional activities for the enterprise. Primarily, he
must do the work for which he is hired, and perform it by himself
with due care and attention.
However, outside working hours, the worker can engage in any
professional activities that are not in competition with the
enterprise for which he works or that are not harmful to the agreed
process of performance, unless there is an agreement to the
contrary.
Article 70
Any clause of a contract that prohibits the worker from engaging
in any activity after the expiration of the contract is null and
void.
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Section 2: Suspension of the Labour
Contract
Article 71
The labour contract shall be suspended under
the following reasons:
-
The closing of the establishment following the departure of the
employer to serve in the military or for a mandatory period of
military training.
-
The absence of the worker during obligatory periods of military
service and military training.
-
The absence of the worker for illness certified by a qualified
doctor. This absence is limited to six months, but can, however,
be extended until there is a replacement.
-
The period of disability resulting from a work-related accident
or occupational illness.
-
The leave granted to a female worker during pregnancy and
delivery, as well as for any post-natal illness.
-
Absence of the worker authorized by the employer, based on laws,
collective agreements, or individual agreements.
-
Temporary layoff of a worker for valid reasons in accordance
with internal regulations.
-
The absence of a worker during paid vacations, including an
incidental travel period as well.
-
The incarceration of a worker, without a later conviction.
-
An act of God that prevents one of the parties from fulfilling
his obligations, up to a maximum of three months.
-
When the enterprise faces a serious economic or material
difficulty or any particularly unusual difficulty, which leads
to a suspension of the enterprise operation. This suspension
shall not exceed two months and be under the control of the
Labour Inspector.
An
employer can reinstate a suspended contract provided that the
reasons for the suspension have been remedied and he has given prior
notice in accordance with the law.
Article 72
The suspension of a labour contract affects only the main
obligations of the contract, that are those under which the worker
has to work for the employer, and the employer has to pay the
worker, unless there are provisions to the contrary that require the
employer to pay the worker. Other obligations such as furnishing of
accommodation by the employer, as well as the worker’s loyalty and
confidentiality towards the enterprise, continue to be in effect
during the period of suspension. The suspension of a labour contract
does not leads to a suspension of the union’s mandate or that of
workers’ representative. Unless otherwise specified, periods of
suspension are taken into account when calculating the employment
seniority.
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Section 3: Termination of the Labour
Contract
A. Labour Contracts of Specific
Duration
Article 73
A labour contract of specific duration normally terminates at the
specified ending date. It can, however, be terminated before the
ending date if both parties are in agreement on the condition that
this agreement is made in form of writing in the presence of a
Labour Inspector and signed by the two parties to the contract.
If both parties do not agree, a contract of specified duration can
be cancelled before its termination date only in the event of
serious misconducts or acts of God.
The premature termination of the contract by the will of the
employer alone for reasons other than those mentioned in paragraphs
1 and 2 of this article entitles the worker to damages in an amount
at least equal to the remuneration he would have received until the
termination of the contract.
The
premature termination of the contract by the will of the worker
alone for reasons other than those mentioned in paragraphs 1 and 2
of this article entitles the employer to damages in an amount that
corresponds to the damage sustained.
If the contract has a duration of more than six months, the worker
must be informed of the expiration of the contract or of its
non-renewal ten days in advance. This notice period is extended to
fifteen days for contracts that have a duration of more than one
year. If there is no prior notice, the contract shall be extended
for a length of time equal to its initial duration or deemed as a
contract of unspecified duration if its total length exceeds the
time limit specified in Article 67.
At
the expiration of the contract, the employer shall provide the
worker with the severance pay proportional to both the wages and the
length of the contract. The exact amount of the severance pay is set
by a collective agreement. If nothing is set in such agreement, the
severance pay is at least equal to five percent of the wages paid
during the length of the contract.
If a
contract of unspecified duration replaces a contract of specified
duration upon the latter’s expiration, the employment seniority of
the worker is calculated by including periods of both contracts. In
every case of contract termination, the worker can require the
employer to provide him with an employment certificate.
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B. Labour Contracts of Unspecified Duration
Article 74
The labour contract of unspecified duration can be terminated at
will by one of the contracting parties. This termination shall be
subject to the prior notice made in writing by the party who intends
to terminate the contract to the other party.
However, no layoff can be taken without a valid reason relating to
the worker’s aptitude or behaviour, based on the requirements of the
operation of the enterprise, establishment or group.
Article 75
The minimum period of a prior notice is
set as follows:
-
Seven days,
if the worker’s length of continuous service is less than
six months;
-
Fifteen days, if
the worker’s length of continuous service is from six months to
two years;
-
One month, if the
worker’s length of continuous service is longer then two years
and up to five years.
-
Two months, if the
worker’s length of continuous service is longer than five years
and up to ten years.
-
Three months, if
the worker’s length of continuous service is longer than ten
years. Method for calculating the length of service of workers,
who are not employed on a monthly basis, shall be determined by
a Prakas of the Ministry in charge of Labour.
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Article 76
Any article of a labour contract, of an internal regulation, or any
other individual agreement that sets the prior notice period to be
less than the minimum set forth in this provision shall be null and
void.
Article 77
The termination of a labour contract at will on the part of the
employer alone, without prior notice or without compliance with the
prior notice periods, entails the obligation of the employer to
compensate the worker the amount equal to the wages and all kinds of
benefits that the worker would have received during the official
notice period.
Article 78
The prior notice is the obligation to be observed in enterprises
or establishments set forth in Article 1 of this law, both by the
worker and by the employer when one of them decides unilaterally to
terminate the labour contract. However, the worker laid off for
reasons other than serious misconduct can leave the enterprise
before the end of the notice period if he finds a new job in the
meantime. In such case, the worker will not be required to
compensate the employer.
Article 79
During the notice period, the worker of the enterprise is
entitled to two days leave per week with full payment to look for a
new job. These leave days are paid to the worker at the normal rate
of remuneration, regardless of how it is calculated. This payment
shall include other perquisites.
Article 80
For task-work or piecework, the worker usually cannot abandon
the task that he has been assigned before it has been finished.
However, for a long-term employment that cannot be completed in less
than one month, one of the contracting parties who wishes to release
himself from the obligations of the contract for serious reasons, he
can do so as long as he notifies the other party eight days in
advance.
Article 81
Throughout the notice period, the employer and the worker shall be
bound to carry out the obligations incumbent on them.
Article 82
The contracting parties are released from the obligation of
giving prior notice under the following cases:
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For a probation or an internship specified in the contract.
-
For a serious offense on the part of one of the parties
-
For acts of God that one of the parties is unable to meet his
obligations.
Article 83
The followings are considered to be
serious offenses:
A. On
the part of the employer
-
The use of fraudulent measures to entice a worker into signing a
contract under conditions to which he would not otherwise have
agreed, if he had realized it.
-
Refusal to pay all or part of the wages
-
Repeated late payment of wages.
-
Abusive language, threat, violence or assault.
-
Failure to provide sufficient work to a piece-worker.
-
Failure to implement labour health and safety measures in the
workplace as required by existing laws.
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B. On the part of the worker
-
Stealing, misappropriation, embezzlement.
-
Fraudulent acts committed at the time of signing (presentation
of false documentation) or during employment (sabotage, refusal
to comply with the terms of the employment contract, divulging
professional confidentiality).
-
Serious infractions of disciplinary, safety and health
regulations.
-
Threat, abusive language or assault against the employer or
other workers.
-
Inciting other workers to commit serious offenses.
-
Political propaganda, activities or demonstrations in the
establishment.
Article 84
Pending the creation of the Labour Court, the ordinary court has the
jurisdiction to determine the magnitude of offenses other than those
included in the preceding article.
Article 85
The employer may find himself unable to meet his obligations in the
context of Article 82 - paragraph 3, particularly in the following
cases:
-
The closing of the establishment by public authorities; an
-
Catastrophe (flooding, earthquake, war) that cause material
destruction and make it impossible to resume work for a long
time. For death of the employer that cause the closure of the
establishment, the workers are entitled to an indemnity equal to
that of the notice period.
Article 86
The worker may find himself unable to meet his obligations in the
context of Article 82 - paragraph 3, particularly in the following
cases.
-
Chronic illness, insanity, permanent disability; an
-
Imprisonment.
In
cases cited in the first paragraph above, the employer cannot be
released from his obligation to give the prior notice.
Article 87
If a change occurs in the legal status of the employer, particularly
by succession or inheritance, sale, merger or transfer of fund to
form a company, all labour contracts in effect on the day of the
change remain binding between the new employer and the workers of
the former enterprise.
The contract cannot be terminated except under the conditions laid
down in the present Section.
The closing of an enterprise, except for acts of God, does not
release the employer from his obligations as stated in this section
III. Bankruptcy and judicial liquidation are not considered as acts
of God.
Article 88
In businesses of a seasonal nature, as per list determined by a
Prakas of the Minister in charge of Labour, the layoff of workers at
the end of a work period cannot be considered as dismissal and does
not result in any compensation. However, the lay-off shall be
announced at least eight days in advance by a written notice
conspicuously posted at the main entry of each work site, and if
applicable, on each boat on which there is a work site.
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C. Indemnity for Dismissal
Article 89
If the labour contract is terminated by the employer alone, except
in the case of a serious offense by the worker, the employer is
required to give the dismissed worker, in addition to the prior
notice stipulated in the present Section, the indemnity for
dismissal as explained below:
Seven days of wage and fringe benefits if the worker’s length of
continuous service at the enterprise is between six and twelve
months If the worker has more than twelve months of service, an
indemnity for dismissal will be equal to fifteen days of wage and
fringe benefits for each year of service. The maximum of indemnity
cannot exceed six months of wage and fringe benefits. If the
worker’s length of service is longer than one year, time fractions
of service of six months or more shall be counted as an entire year.
The worker is also entitled to this indemnity if he is laid off for
reasons of health.
Article 90
Indemnity for dismissal must be granted to the worker and, if
applicable, he can also claim damages even though the contract was
not terminated by the employer, but the latter, through his
incitements, pushed the worker into ending the contract himself. If
the employer treats the worker unfairly or repeatedly violates the
terms of the contract, he also has to pay indemnities and damages to
the worker.
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D. Damages
Article 91
The termination of a labour contract without valid reasons, by
either party to the contract, entitles the other party to damages.
These damages are not the same as the compensation in lieu of prior
notice or the dismissal indemnity.
The worker, however, can request to be given a lump sum equal to the
dismissal indemnity. In this case, he is relieved of the obligation
to provide proof of damage incurred.
Article 92
When a worker has unjustly breached a labour contract and takes a
new job, the new employer is jointly liable for damages caused to
the former employer if it is proven that he has encouraged the
worker to leave the former job.
Article 93
Any worker who was engaged to furnish his services may, upon
expiration of the contract, demand from his employer a certificate
of employment containing primarily the starting date of employment,
the date of departure, and the kind of job held, or, if applicable,
the jobs held successively as well as the periods during which the
jobs were held.
The
refusal to supply this certificate will subject the employer to pay
damages to the worker.
The certificates supplied to workers are exempt from all stamp and
registration tax, even if they contain items other than those
mentioned in the preceding paragraph, as long as these items do not
include any bond, receipt or any agreement liable to ad valorem
duties.
The phrase “free from all engagement” and all other terms indicating
the normal expiration of a labour contract, the professional
qualifications and the services rendered are included in this
exemption. Any harmful statement that could prejudice the employment
of a worker are formally prohibited.
Article 94
Without prejudice to the provisions of Article 91, the damages owed
in the case of a breach of the labour contract without valid
reasons, as well as those owed by the employer as per provision of
Article 89 above, are determined by the competent court and based on
local custom, the type and importance of the services rendered, the
worker’s seniority and age, the pay deductions or payments for a
retirement pension, and, in general, on all circumstances that can
justify the existence and the extent of the harm incurred.
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E. Mass Layoff
Article 95
Any layoff resulting from a reduction in an establishment’s activity
or an internal re-organization that is foreseen by the employer is
subject to the following procedures:
-
The employer establishes the order of the layoffs in light of
professional qualifications, seniority within the establishment,
and family burdens of the workers
-
The employer must inform the workers’ representatives in writing
in order to solicit their suggestions, primarily, on the
measures for a prior announcement of the reduction in staff and
the measures taken to minimize the effects of the reduction on
the affected workers.
-
The first workers to be laid off will be those with the least
professional ability, then the workers with the least seniority.
The seniority has to be increased by one year for a married
worker and by an additional year for each dependent child. The
dismissed workers have, for two years, priority to be re-hired
for the same position in the enterprise. Workers who have
priority for re-hire are required to inform their employer of
any change in address occurring after the layoff. If there is a
vacancy, the employer must inform the concerned worker by
sending a recorded delivery or registered letter to his last
address. The worker must appear at the establishment within one
week after receiving the letter.
The
Labour Inspector is kept informed of the procedure covered in this
article. At the request of the workers’ representatives, the Labour
Inspector can call the concerned parties together one or more times
to examine the impact of the proposed layoffs and measures to be
taken to minimize their effects. In exceptional cases, the Minister
in charge of Labour can issue a Prakas to suspend the layoff for a
period not exceeding thirty days in order to help the concerned
parties find a solution. This suspension may be repeated only one
time by a Prakas of the Ministry.
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