Asia employment law bulletin 2021
This article has been prepared in collaboration with Sarin & Associates, an association of Cambodian admitted attorneys-at-law, working in a commercial relationship with DFDL.
Developments in the light of COVID-19
Working from home
Working from home is not specifically regulated in Cambodia and is typically an arrangement mutually agreed upon between the employer and its employees. Cambodian Labour Law stipulates that the employer is entitled to exercise “direction and supervision” over its employees as long as the direction and supervision is reasonable and in accordance with the law. Based on this provision, the employer may make necessary arrangements including, amongst others, working from home arrangements. However, if the working from home arrangements affect any terms and conditions of the employment contract, for instance, if it results in a reduction of an employee’s benefits, prior consent from the employee is required.
In light of these health and safety concerns, Cambodian Labour Law requires employers to provide a safe working environment to their employees. If an employer is deemed to have intentionally or negligently infringed its duty of care, the employer may be held liable under tort provisions for damages, sustained by the employee.
Testing of employees and other measure that employers should take to prevent the spread of COVID-19
Employers must use all reasonable efforts to ensure that they strictly comply with the guidelines issued by all relevant authorities to prevent the spread of COVID-19, which include:
- to immediately report to the competent authorities if any of their employees have COVID-19 symptoms or are suspected to be COVID-19 positive; and
- to establish an Occupational Health and Safety (OSH) Committee or COVID-19 Committee in the workplace to regularly disseminate information, instruct employees on personal hygiene measures and advise on preventative measures to avoid the spread of COVID-19.
Employers may formally adopt employee COVID-19 testing measures as part of their health and safety rules to protect the health and safety of all employees at the workplace. Such rules should also include applicable disciplinary actions for non-compliance. The rules should be acknowledged and accepted by all employees in writing. However, any disciplinary action taken against an employee for failure to comply with the internal work rules must be proportionate to the magnitude of the employee’s misconduct.
New measures to mitigate the impact of COVID-19
The Royal Government of Cambodia (RGC) issued in 2020 a number of measures aimed at mitigating the impact of COVID-19, including:
- a government subsidy of up to USD 40 per month during a contract suspension approved by the Ministry of Labour and Vocational Training (MLVT) from January to March 2021 for employers of several industries, such as: the garment, textile, footwear, travel products and bags, and for the tourism sector;
- that enterprises may suspend monthly contribution payments to the National Social Security Fund during the suspension of its operations;
- the MLVT has continued to delay implementation of the pension scheme for another six months, until July 2021; and
- the MLVT continues to defer Back Pay of seniority payments (prior to 2019), and New Pay of seniority payments (from 2019 onward) applicable in 2020 and 2021 but payable in 2022 for any sectors inside or outside of the garment manufacturing sector (as listed above). However, the MLVT issued Notice No. 003 dated 21 January 2021 which provided that for factories and manufacturing sectors, Back Pay of seniority payments (prior to 2019) and New Pay of seniority payments applicable in 2020 and 2021 are implemented in 2021.
Finally, earlier in 2020, the MLVT organised a tripartite consultation-seminar on amendments to the Labour Law. This seminar discussed and proposed certain amendments including:
- amendments to provisions concerning shift work in factories, enterprises and establishments where more than one shift regularly occurs, including revised rates of payment for night work;
- expansion of the Arbitration Council’s jurisdictional scope to cover individual disputes to enhance the effectiveness of labour dispute resolution mechanisms; and
- cancellation of substitute days for public holidays falling on a Sunday to enhance labour productivity.
In light of these anticipated changes, employers are advised to be vigilant. This is because, if the proposed amendments are accepted, they will likely require affected employers to modify the terms and conditions of their employment contracts and policies, including those in relation to night shift work, paid public holidays, etc.
Marion Carles-Salmon, DFDL
Vansok Khem, DFDL
Chris Robinson, DFDL
Raksa Chan, DFDL