KINGDOM OF CAMBODIA NATION RELIGION KING. ARBITRAL AWARD (Issued under Article 313 of the Labour Law)

Transcription

1 KINGDOM OF CAMBODIA NATION RELIGION KING RkumRbwkSaGaCJakNþal THE ARBITRATION COUNCIL Case Number and Name: 264/15 Capitol Co., Ltd. Date of Award: 07 December 2015 ARBITRAL AWARD (Issued under Article 313 of the Labour Law) ARBITRAL PANEL Arbitrator chosen by the employer party: Ouk Ry Arbitrator chosen by the worker party: Ann Vireak Chair Arbitrator (chosen by the two Arbitrators): Kong Phallack DISPUTANT PARTIES Employer party: Name: - Capitol Co., Ltd. Address: #14 AEo, Street 182, Boueng Pror Let Commune, Pram Pi Makara District, Phnom Penh Telephone: Fax: N/A Representatives in the hearing: 1. Mr. Khiev Van Lawyer 2. Mr. Phou Kokvan Employer s Representative 3. Mr. Phou Kokkhay Employer s Representative Worker party: -1-

2 A. Name: - Cambodian Labour Confederation (CLC) Address: #2.3G, Street 26 BT, Tnot Chrum Village, Boeung Tum Pon Commune, Mean Chey District, Phnom Penh Telephone: Fax: N/A Representatives in the hearing: 1. Mr. Chim Kheng CLC Legal Officer 2. Mr. Nin Kosal CLC Dispute Officer 3. Mr. Prit Sokout CLC Dispute Officer 4. Mr. Van Narong Driver 5. Mr. Lonh Ratha Driver 6. Mr. Kong Sombo Driver 7. Mr. Teb Vuthy Driver 8. Mr. Sao Rom Driver 9. Mr. Hin Moeun Driver 10. Mr. Ly Hong Driver 11. Mr. Kong Bunthoeun Driver 12. Mr. Sim Sokha Driver 13. Mr. Sok Sereyvuth Driver 14. Mr. Ean Kimhung Driver 15. Mr. Kim Thy Driver 16. Mr. Nou Pov Driver 17. Mr. Mom Bunthoeun Driver 18. Mr. Ngim Bunthy Driver 19. Mr. Vith Chomroeun Driver 20. Mr. Korng Sopheap Driver 21. Mr. Mai Sona Driver ISSUES IN DISPUTE (From the non-conciliation report of the Ministry of Labour and Vocational Training (MoLVT)) 1. The workers demand that the employer increase wages by 10% every year in addition to the current wages. -2-

3 2. The workers demand that the employer cease requiring workers to pay a deposit before commencing their employment and return the deposits to those workers that have already paid a deposit. 3. The workers demand that the employer pay entitlements that have not been paid to workers from the commencement of their employment until now. These entitlements are payment in lieu of annual leave, wages on holidays and Sundays and wages received for working overtime. 4. The workers demand that the employer reinstate Mr. Van Narong, Mr. Sok Sereyvuth, Mr. Hin Moeun, Mr. Mom Bunthoeun, Mr. Lonh Ratha, Mr. Sao Rom and Mr. Mai Sona to their previous roles and duties, and provide back pay them from the date of termination to the date of reinstatement. 5. The workers demand that the employer reinstate Mr. Kong Sopheap and Mr. Hak Vuthy according to the order for provisional relief no. 462 dated 31 July 2015 issued by Phnom Penh Court of First Instance, pay them wages and provide them with back pay from the date of termination to the date of reinstatement. 6. The workers demand that the employer assign cars to the workers who previously drove them and refrain from discrimination assigning two drivers to an old car and providing unequal driving shifts for drivers who were involved in the protest. JURISDICTION OF THE ARBITRATION COUNCIL The Arbitration Council derives its power to make this award from Chapter XII, Section 2B (Article 309 to 317) of the Labour Law (1997); the Prakas on the Arbitration Council no. 099 dated 21 April 2004; the Arbitration Council Procedural Rules which form an Annex to the same Prakas; and the Prakas on the Appointment of Arbitrators no. 321 (Thirteenth Term) dated 27 June An attempt was made to conciliate the collective dispute that is the subject of this award, as required by Chapter XII, Section 2A of the Labour Law. The conciliation was unsuccessful, and non-conciliation report no dated 18 September 2015 was submitted to the Secretariat of the Arbitration Council (SAC) on 30 September HEARING AND SUMMARY OF PROCEDURE -3-

4 Hearing venue: The Arbitration Council, no. 72, Street 592 (corner of Street 327) (Opposite Indra Devi High School), Sangkat Boeung Kak II, Khan Tuol Kork, Phnom Penh Date of hearing: 27 October 2015 at 08:30 A.M. Procedural issues: On 14 August 2015 the Department of Labour and Vocational Training received the complaint no. 135/15 from the CLC demanding 6 improved working conditions. Having received the claim, the Department of Labour and Vocational Training assigned an expert officer to resolve the labour dispute and the last conciliation was held on 18 September 2015, with no resolution. The non-conciliated issues, comprising of 6 issues, were referred to the SAC on 30 September 2015 through the conciliation report no. 1171, dated 23 September Upon receipt of the case, the Arbitration Panel members were formed on 1 October The SAC summoned the employer and the workers to the hearing and conciliation over these 6 non-conciliated issues on 27 October 2015 at 08:30 A.M. Both parties were present in the hearing. The Arbitration Council figured out facts and further conciliated these 6 non-conciliated issues, resulting in only one issue, issue 6 being resolved. Therefore, the Arbitration Council considered the remaining non-conciliated issues: #1, #2, #3, #4, and #5. The parties chose a non-binding award. In the hearing, the Arbitration Council set 6 November 2015 as evidence submission due date and 11 November 2015 as evidence objection due date. Both parties agreed to delay the arbitral award due date from 27 October 2015 to 7 December The Arbitration Council considered the issue in dispute based on the following evidence and facts. Evidence Witnesses and experts: N/A Documents, exhibits and other evidence considered by the Arbitration Panel have been omitted in the English version of this arbitral award. For further information regarding evidence please refer to the Khmer version. Facts - Having examined the report on collective labour dispute resolution; -4-

5 - Having listened to the statements of the representatives of the employer and the workers; and - Having reviewed the additional documents; The Arbitration Council finds that: - Capitol Co., Ltd. is a transportation company which received commercial registration certificate Co KH/2007 dated 26 March It employs approximately 250 workers. - Democratic Workers Union (DWU) in Capitol Co., Ltd. received the receipt of the union registration on 08 October The CLC is the claimant in this case through an authorization letter dated 11 September 2015 solicited by 53 workers working for Capitol Co., Ltd. - There were 03 CLC officers and 17 drivers who were present in the hearing. Those 17 drivers were: (1) Mai Sona, (2) Hin Moeun, (3) Ly Hong, (4) Kong Bunthoeun, (5) Sim Sokha, (6) Sok Sereyvuth, (7) Van Narorng, (8) Lonh Ratha, (9) Kong Sombo, (10) Teb Vuthy, (11) Sao Rom, (12) Kim Thy, (13) Nou Pov, (14) Mom Bunthouen, (15) Ngim Bunthy, (16) Vet Chomrouen, and (17) Korng Sopheap. - The workers who attended at the hearing had authorized the CLC to act on their behalf and were included in the 53 workers who had provided written authorization. Issue 1: The workers demand that the employer increase wages by 10% every year in addition to the current wages. - The workers clarified in the hearing that this demand is not stated in the Law or the Collective Bargaining Agreement (CBA). - The workers argued that the average wages of drivers is between US$ 160 to US$ 240 per month. Besides their wages, they receive a 50,000 riel driving allowance for driving to a province and then back to Phnom Penh; this takes around 2 days. The workers claimed that the drivers would drive to the provinces around 7 to 8 times per month. - The employer responded stating that the wage the drivers receive ranges between US$ 160 to US$ 275 per month and is based on their achievements, work performance compliments from the customers and their seniority. Other than this wage, the drivers receive other benefits as follows: o The driving allowance would range from between 40,000 riel to 60,000 riel for each return trip from Phnom Penh due to the distance. - The workers clarified that the employer provided a 80,000 riel travelling allowance to workers during the strike action that took place from 22 July 2015 to 08 August

6 - The employer responded that it did provide this payment, however this increase was temporary. The employer terminated this increase on 8 August The employer added that Clause 5 of the Internal Work Rule, which has been officially approved by the MoLVT dated 10 June 2015, states that the employer pays wages based on achievements, capacities, and outputs of each worker. The employer will examine the compliance with the disciplines and the achievements of each worker and its ability to pay. Usually, if the drivers satisfy the abovementioned conditions, the employer increased their wages by 10%. The employer has an evaluation team that evaluates the work of the drivers; however, the employer never lets the drivers know of the existence of this team. This is because they were concerned that if they knew they would only work hard in front of the evaluation team. - The workers clarified their reasons for their demand as follows: o The demand is based on Article 104, Article 105, and Article 107 of the Labour Law. o The demand is made due to their needs and daily expenses. - The employer responded that it cannot provide the wage increase as demanded for the following reasons: o The employer runs a company that provides land transportation services. If the drivers wages are increased by 10% annually, the employer will then have to increase wages for other workers too. The result of this will be an increase in ticket prices which as a result will affect the people who use the transportation services. o Even though the employer states how and when wage increases will occur in Clause 5 of the Internal Work Rule, the decision whether or not to increase the wages depends only on the progress of the business. If the employer cannot make a profit, it cannot increase the wages. o The employer makes its base on Clause 5 and the Labour Law. Issue 2: The workers demand that the employer cease requiring workers to pay a deposit before commencing their employment and return the deposits to those workers who have already paid a deposit. - Both parties acknowledged that the employer requires drivers to pay a security deposit before they commence their employment. When their employment contracts end, the employer returns the deposit to them. The amount that workers have to deposit is as follows: -6-

7 o Drivers who drive VIP cars - US$ 500; o Drivers who drive buses - US$ 300; and o Drivers assistants - US$ The employer stated that the reason it requires the drivers to pay a deposit, is to ensure the drivers are careful and obey the law while driving. - The workers stated that the drivers are responsible for any damages which are the result of any problem or traffic accidents. - The employer responded that as it had insurance, it is the employer who will pay for any damage as long as the traffic accidents are not the result of the drivers negligence. Where the accident is the result of the workers negligence, the employer will pay for drivers expenses, however it will then seek reimbursement of these expenses from the worker by taking the money from their deposit.. Once the employment relationship between the employer and the worker ends, the employer will return the driver s deposit as long as they do not owe the employer. Where a worker does owe the employer, the worker will not get their full deposit back, rather their initial deposit less the amount owed to the employer. - The workers stated that their reason for this demand is that the requirement to pay a security deposit before commencing employment is against Article 44 of the Labour Law. - The employer responded that it cannot meet this demand according to the Civil Code [the employer was unable to state which Article] and the Traffic Law. - The workers in response, stated that both the Civil Code and the Traffic Law do not apply to this case because the deposit is a condition that the employer establishes before getting a job, and doing so violates Article 44 of the Labour Law. Issue 3: The workers demand that the employer pay entitlements that have not been paid to the workers from the commencement of their employment until now. These entitlements are payment in lieu of annual leave, wages on holidays and weekly time-off. and wages received for working overtime. - The workers clarified their demand that the employer pay payment in lieu of annual leave, wages on holidays and weekly time-off and wages received for working overtime, which have not yet been paid by the employer for the last three years to 53 drivers. - The workers clarified that the drivers work seven days per week without enjoying annual leave, holidays and weekly time-off. If the drivers take leave, the employer deducts their wages on a percentage basis according to the number of leave days taken. One driver, who appeared in the hearing, clarified that he has been working for this company for five -7-

8 years. When his mother passed away he took 6 days off and as a result, the employer deducted US$ 30 for the duration of his leave. - The employer responded stating that it increase wages by US$ 20 to US$ 30 for drivers who work on holidays. The workers acknowledged that they do receive a wage increase when they work on holidays, yet they understood this payment to be an incentive rather than payment for work on a holiday. - The employer stated that it is the company s practice not to set an actual work shift for drivers as with other workers. Rather, the employer assigns the departure schedules to drivers one day in advance and the driver must ensure that they are at the departure location one hour before the departure time. Generally, the drivers take 8 hours to drive to remote provinces which include the trip from Phnom Penh to Poi Pet. However, it takes less than 8 hours to reach other provinces. - The workers responded that they do not just arrive one hour before their scheduled departure; rather they arrive at the company in the morning for the whole month. This is because they are afraid of a change to the schedule which may occur if another driver is unable to work. Whilst driver s whose houses are located close to the company can be on standby at home and wait for phone calls from the employer to depart [drive], those who live far away arrive at the company every day meaning they are present at work for the whole month. - The employer responded by stating that it does not require the workers to come to the company if they do not have a scheduled departure. The employer will contact any driver not listed on the schedule if required. This is done to determine whether or not that driver is available to work. If that contacted driver is busy and cannot drive, the employer will not force him and will not deduct his wages, either. - The employer added that it will not provide an hour of overtime wage to drivers who are on standby before departure. Generally, the drivers do not work more than 8 hours per day. In the event they do, the employer does not provide overtime wages either. This is because some days they work less than 8 hours per day. - In the hearing, the workers provided a list outlining the payment in lieu of annual leave, of wages on holidays, and of wages on weekly time-off for the last three years which the employer has to back pay. The list only contained the names of 51 drivers only. The employer objected to this document. They promised to review this document and respond later. -8-

9 - The employer submitted evidence to the Arbitration Council on 6 November 2015 stating that it had already paid overtime wages and wages on holidays to 51 drivers. There are 32 drivers who have not yet fully utilized their annual leave. The workers fully objected to the employer s statements and evidence. Issue 4: The workers demand that the employer reinstate Mr. Van Narong, Mr. Sok Sereyvuth, Mr. Hin Moeun, Mr. Mom Bunthoeun, Mr. Lonh Ratha, Mr. Sao Rom, and Mr. Mai Sona to return to their previous roles and duties and provide back pay to them from the date of termination to the date of reinstatement. - Both parties accepted that (1) Van Narong, (2) Sok Sereyvuth, (3) Hin Moeun, (4) Mom Bunthoeun, (5) Lonh Ratha, (6) Sao Rom, and (7) Mai Sona work for the company as drivers. All have undetermined duration contracts. Cases of (1) Van Narong, (2) Sok Sereyvuth, (3) Hin Moeun, (4) Mom Bunthoeun, and (5) Lonh Ratha - The workers clarified: o Van Narong commenced his work on 1 October o Sok Sereyvuth commenced his work on 20 October o Hin Moeun commenced his work on 4 July o Mom Bunthoeun commenced his work on 7 March o Lonh Ratha commenced his work on 25 October The workers claimed that the workers organized the DWU local union leader election in the company on 8 July The election results were, Van Narong President, Sok Sereyvuth Vice-President, and Hin Moeun Secretary. - The workers claimed that they provided notification of the results of the local union leader election on 9 July 2015 at 11:00 P.M. - The workers clarified their reason for this demand is because the employer terminated these 5 people on 9 July 2015 based on the grounds of union discrimination and that this termination was against Article 266 and Article 279 of the Labour Law and International Labour Organization (ILO) Convention no The employer responded that it terminated them on 9 July 2015 at 06:00 A.M. due to the following reasons: o The company has small numbers of passengers as the number of customers has decreased. This means there is no work for the workers to do. o The company s profits have reduced and subsequently, it wishes to make workers redundant. -9-

10 o These 5 workers argue with passengers and do not pick them up from the company s branches. o These 5 workers secretly pick up passengers along the route. o The Company has received complaints from passengers about the poor performance of these 5 workers. - The employer further stated that it terminated these 5 drivers of its will and it will pay termination compensation according to the Labour Law. - The workers objected the employer s assertion and said that the employer did not terminate them at 06:00 A.M on 9 July Whilst the employer signed the termination letters at that time, these 5 drivers did not receive the termination letters until 10 July Moreover, the workers objected the employer s assertion that they argue with passengers and stated that not one of these 5 drivers have had arguments with passengers. If this has occurred, the employer will need to show the evidence. - The workers objected that the employer did not make workers redundant as asserted. The employer is currently recruiting new workers. - The employer rejected the workers claim and stated that it is not recruiting new workers. - According to the request for adding complaint objectives submitted to the Arbitration Council on 6 November 2015, the Arbitration Council found that the employer requested the Phnom Penh Court of First Instance to render its ruling to terminate employment contracts of (1) Van Narong, (2) Sok Sereyvuth, (3) Hin Moeun, (4) Mom Bunthoeun, (5) Lonh Ratha to be effective from 09 July 2015 hereafter. Cases of Sao Rom and Mai Sona - The workers claimed that Mai Sona commenced his work on 15 April 2010 while Sao Rom commenced his work on 05 July Both parties acknowledged that on 10 July 2015, Sao Rom, Mai Sona, and other 10 local union members refused to depart [drive the cars] from Siem Reap in order to make a demand for having (1) Van Narong, (2) Sok Sereyvuth, (3) Hin Moeun, (4) Mom Bunthoeun, and (5) Lonh Ratha reinstated. - The employer clarified that on that day, it issued a notification ordering them to return to work by 11 July Any driver who does not obey this notification shall be considered unilaterally resigned. The workers claimed that upon the issuance of this notification, all drivers returned to work while Sao Rom and Mai Sona did not. - The workers argued that Sao Rom and Mai Sona do not receive the notification stating they must return to work rather the team leader asks them to leave the company. -10-

11 - The employer responded that the team leader sent the notification to both of them, but they refused to receive it. The employer added that Sao Rom and Mai Sona abandoned their work on 11 July The workers clarified their reason for this demand is because the employer terminates Sao Rom and Mai Sona during the strike action and this termination is against Article 333 of the Labour Law. - The employer claimed that it will not reinstate them because they threw car keys away and resigned from work. The employer added that Sao Rom and Mai Sona committed serious misconduct in not complying with the return to work notification and violating Clause 6 of the Internal Work Rule. The employer claimed that these 2 workers have abandoned their work. Therefore, the employer will pay termination compensation that only includes outstanding wages and payment in lieu of annual leave. - Clause 6 of the Internal Work Rule sates: Unauthorized leave shall be deemed mistakes as defined below: o Minor mistake: take leave less than two days per month. o Medium mistake: take leave less than six days per month. o Job abandonment: take leave more than six days per month or six days consecutively. Issue 5: The workers demand that the employer reinstate Mr. Kong Sopheap and Mr. Hak Vuthy according to the order for provisional relief no. 462 dated 31 July 2015, issued by Phnom Penh Court of First Instance, pay them wages and provide them with back pay from the date of termination to the date of reinstatement. - The employer clarified that Mr. Hak Vuthy has already agreed and accepted the termination compensation. - The workers clarified that they do not demand for the reinstatement of Mr. Hak Vuthy. - The workers clarified their demand that the employer reinstates Mr. Kong Sopheap and back-pay wages to him from the date of termination to the date of reinstatement. If the employer does not reinstate him, the employer has to pay termination compensation according to the Labour Law. The termination compensation includes outstanding wages, compensation in lieu of prior notice, payment in lieu of annual leave, indemnity for dismissal, damages, and wages on holidays and on weekly time-off. - The workers clarified that Mr. Kong Sopheap commenced his work on 15 July 2014 under an undetermined duration contract. -11-

12 - The workers clarified their reasons for this demand as follows: o The order for provisional relief no. 462 ordered all drivers to return to work, except 7 workers including (1) Van Narong, (2) Sok Sereyvuth, (3) Hin Moeun, (4) Mom Bunthoeun, (5) Lonh Ratha, (6) Sao Rom, and (7) Mai Sona. o The employer terminated him without reason. - The employer clarified that it will not reinstate Mr. Kong Sopheap because he violated Clause 6 of the Internal Work Rule. He resigned from work effective from 28 July 2015 without submitting a resignation letter or suspension letter. - Clause 6 of the Internal Work Rule sates: Unauthorized leave shall be deemed mistakes as defined below: o Minor mistake: take leave less than two days per month. o Medium mistake: take leave less than six days per month. o Job abandonment: take leave more than six days per month or six days consecutively. - The workers argued that Mr. Kong Sopheap took part in strike action for three days on 22, 28 and 29 July In addition Mr. Kong Sopheap has never committed any mistake or received any warning from the employer. - The employer responded that whilst Mr. Kong Sopheap returned the car key to the employer on 28 July 2015, he did not submit a leave form like other drivers did. Since then, he has not shown up at the company. - The workers responded that Mr. Kong Sopheap submitted the leave form to the employer, but the employer refused to accept it. - The employer responded that it will not accept this letter because his signature was different to his previous one. The employer suggested that he resend a new letter ensuring his signature or thumbprint is same to his previous one. But, he denied this suggestion instead resigning. The workers did not object to this assertion. - The workers clarified that Mr. Kong Sopheap wished to return to work and arrived at the company for work on 7 August However, the General Manager did allow him to work and said to him that he had been automatically terminated. On the same day, he also met the employer s assistant. - The employer accepted that Mr. Kong Sopheap did meet with them on this occasion. The employer also required him to come to the premises on one other occasion in order to receive the remaining termination compensation. Since then, the employer has not -12-

13 heard from or seen him. The workers, in response, acknowledged that he has not been to the employer s premises since 8 August The employer responded that it will not reinstate Mr. Kong Sopheap because he has already abandoned his job. The employer will pay termination compensation including outstanding wages and the remaining payment in lieu of annual leave. Issue 6: The workers demand that the employer assign cars to the workers who previously drove them and refrain from discrimination two drivers for an old car and dividing unequal driving shift for drivers who were involved in the protest. Both parties acknowledged in the hearing that the employer will equally divide the work shift and properly provide cars to drivers to drive. - Therefore, the Arbitration Council will not consider this issue. REASON FOR DECISION Issue 1: The workers demand that the employer increase wages by 10% every year in addition to the current wages. The Arbitration Council will consider whether or not the employer has an obligation to increase wages by 10% every year. Clause 5 of the Internal Work Rule, which has been officially approved by the MoLVT, dated 10 June 2015, states that the employer pays wages based on achievements, capacities and outputs of each worker. The employer will examine the compliance with the disciplines and the achievements of each worker and its ability to pay. The employer stated that based on Clause 5 of the Internal Work Rule above, usually if the drivers satisfy the abovementioned conditions, the employer increases their wages by 10%. The employer has an evaluation team that evaluated the work of the drivers; however the employer never lets the drivers know of the existence of this team. This is because they were concerned that if they knew, they would only work hard in front of the evaluation team. Moreover, the employer s decision to make the increase depends on whether it makes a profit or not. In this case, the workers demanded the employer increase wages by 10% each year in order to meet their needs and daily expenses. The workers stated that their demand is not found in either the law or any collective bargaining agreement. The Arbitration Council in this case found that the workers demand is not based on Clause 5 of the Internal Work Rule which requires performance evaluation and that is based on the profits the employer have gained. Furthermore, the Arbitration Council found that there is no any provision of the Labour Law, collective bargaining agreement, internal work rule, employment contract, mutual agreement or past practice determining the employer s obligation -13-

14 to increase wages by 10% every year in addition to their current wages. Therefore, the Arbitration Council found that as the workers demand is the demand for benefit which is beyond the Labour Law, this demand concerns an interest dispute. The Arbitration Council will consider interest dispute issues as follows: Article 96 of the Labour Law (1997), Paragraph 2 states: The collective bargaining agreement is a written agreement relating to all of the provisions referred to in Article 96.1 or to only one or more of them and signed between: A. an employer, a group of employers or one or more organizations that represent employers; and B. One or more trade union organizations representative of workers Furthermore, Clause 9 of Prakas no. 305 dated 22 November 2001 on The Representative Status of Professional Organizations of Workers in the Enterprises and Establishments and the Right of Collective Negotiation and to Conclude a Collective Agreement for Enterprises and Establishment, issued by MoLVT dated 22 November 2001, states that the union having most representative status has the right to request the employer to negotiate a collective bargaining agreement which applies to all workers represented by that union. For this reason, the employer has an obligation to negotiate with the local union. With respect to the Article 96 of the Labour Law and Clause 9 of Prakas no. 305/01 above, generally, regarding an interest dispute, the Arbitration Council always considers the MRS of the local union as the Arbitration Council is of the view that the MRS provides the local union with right to negotiate a CBA and the right to bright the case to the AC for settlement. Clause 43 of the Prakas no. 99 on The Arbitration Council dated 21 April 2004, issued by the Ministry of Social Affairs, Labour, Vocational Training and Youth Rehabilitation states that an arbitral award which settles an interest dispute shall replace a CBA and shall remain in effect for one year from the date on which it becomes final unless the parties agree to make a new CBA replacing the award. With respect to the above Clause 43 of the Prakas no.99, the Arbitration Council finds that an arbitral award which settles an interest dispute will become a CBA which applies to all workers and eliminates the right of workers to make the same demand concerning that interest in the future. The Arbitration Council will settle an interest dispute as long as the union that brings the case to the Arbitration Council holds the MRS or has a total number of members greater than 51 percent of the total number of workers within the enterprise. (See Arbitral Award -14-

15 no. 81/04-Evergreen, reasons for decision, issue 4, and Arbitral Award no. 98/04-Great Union, reasons for decision, issue 3.) Where the union to the labour dispute did not hold the MRS, the Arbitration Council declined to consider the workers demands in interests disputes as was seen in case no. 169/11- Fortune Teo Garment, reasons for decision, issue 5. (See Arbitral Award no. 02/11- Pu Yean, reason for decision, issue 2, and Arbitral Award no. 66/11-In Han Sung, reasons for decision, issue 1.) The Arbitration Council in this case agrees with the interpretations in the previous cases. Pursuant to the above interpretations, there are 53 workers who are the claimants in this case and who have authorized the CLC to act on their behalf. The Arbitration Council found that the claimant is not the union holding the MRS. As a result, the Arbitration Council found that the claimant does not have any legal basis allowing it to bring the interest dispute to the Arbitration Council for its consideration. The Arbitration Council declines to consider the workers demand that the employer increase wages by 10% every year in addition to the current wages. Issue 2: The workers demand that the employer cease requiring drivers to pay a deposit before commencing their employment and return the deposits to those workers who have already paid a deposit. The Arbitration Council will consider whether or not the employer has an obligation to cease requiring drivers to pay a deposit before commencing their employment and return the deposits to workers who have already paid a deposit. Article 44 of the Labour Law stipulates that the employer cannot subject the signing or the maintaining of employment contract to a cash guarantee or bond of any form. Article 127 of the Labour Law states: None of the balance can be made, in favor of the employer, between the workers wage and the employer s claim for diverse supplies of whatever kind with the exception of: 1. Tools and equipment required for the work and that are not returned by the workers upon his departure. 2. Items and materials under the control and usage of the workers. 3. Amount advanced to acquire the said items. 4. Amount owed to the company store. In the previous cases, the Arbitration Council found that the Labour Law does not support the deduction of wages or the payment of wages prior to the commencement of -15-

16 employment of the workers. (See Arbitral Award no. 21/03-Loyal, reasons for decision, issue 7, Arbitral Award no. 86/06-Kingsland, reasons for decision, issue 3, and Arbitral Award no. 04/09- E-Garment, reasons for decision, issue 2.) As per the fact finding, parties acknowledged that prior to commencing their work, the employer requires them to pay a security deposit, and the amount of the deposit required is as follows: divers who drive VIP cars - US$ 500; drivers who drive buses - US$ 300; and drivers assistants - US$ 100. The employer claimed that the reason that it requires the drivers and drivers assistants to pay a deposit is to ensure that the drivers are careful and obey the Traffic Law while driving. The employer will return their deposits to them once their employment contracts end. Article 44 of the Labour Law outlined above, clearly states that the employer cannot require workers to pay a deposit at any stage of their employment, including when they commence their work. In this case, the employer requires drivers and all drivers assistants to pay deposits which ensure that the drivers will drive carefully, and to compensate for damages resulting from traffic accidents which are caused by their negligence. The Arbitration Council found that the payment of the deposit is a condition of the driver obtaining a job with the company. Therefore, this requirement to pay the deposits violates Article 44 of the Labour Law. Clause 34 of Prakas no. 99 on The Arbitration Council, dated 21 April 2004 states:...in matters referred to the Arbitration Panel, the Panel shall have the power and authority to it has the power and authority to provide any civil remedy or relief which it deems just and fair, including (A) Order to reinstate dismissed employees to their former or any other appropriate position; (B) Order to the immediate payment of back pay Therefore, the Arbitration Council orders the employer cease requiring workers to pay a deposits before commencing work and under clause 34 return deposits that have already paid by the workers. Issue 3: The workers demand that the employer pay entitlements to 53 workers that have not been paid since the commencement of their employment. These entitlements are payment in lieu of annual leave, wages on holidays and weekly time-off and wages received for working overtime. In the hearing, the workers submitted a list outlining the demand for back payment for wages for 51 drivers only. Therefore, the Arbitration Council will consider this issue for those 51 drivers only. -16-

17 The Arbitration Council will consider whether or not the employer has an obligation to pay payment in lieu of annual leave, wages on holidays, wages on weekly time-off, and overtime wages which have not yet been paid by the employer to the 51 workers for three years. A. Compensation in lieu of annual leave Article 166 of the Labour Law, Paragraph 1 states that all workers are entitled to paid annual leave to be given by the employer at the rate of one and a half work days of paid leave per month of continuous service. Article 166 of the Labour Law, Paragraph 4 stipulates that the length of paid leave as stated above is increased for seniority at the rate of one day per three years of service. According to both paragraphs of Article 166 of the Labour Law (1997), the Arbitration Council found that all workers are entitled to one and a half days of paid leave for one month of work at the enterprise. Therefore, the workers will receive 18 days of paid annual leave for one year of work at the enterprise. The number of days of paid annual leave will increase by one day for every three years of work at the enterprise. (See Arbitral Award no. 127/13-Quint Major Industrial Co., Ltd. (QMI), reasons for decision, issue 7.) Article 167 of the Labour Law, Paragraph 2 states that if the contract is terminated or expires before the worker has acquired the right to use his paid-leave, an indemnity calculated on the basis of Article 166 above is granted to the worker. According to Article 167 of the Labour Law, Paragraph 2 above, payment in lieu of the remaining annual leave to workers can be paid only when the employment contract is terminated or ends. This Article cannot apply to any worker who employment contract. Article 167 of the Labour Law, Paragraph 3 states that apart from this, any collective agreement providing compensation in lieu of paid leave, as well as any agreement renouncing or waiving the right to paid annual leave, shall be null and void. This Article forbids the paying of payment in lieu of annual leave while the workers are employed by the employer. In the previous Arbitral Awards, the Arbitration Council found that a demand for compensation in lieu of annual leave is contradictory to Article 167, Paragraph 3 of the Labour Law. Such demand shall be regarded as inappropriate and unreasonable. (See Arbitral Award no. 94/04-Eternity Apparel, reasons for decision, issue 2, Arbitral Award no. 45/05-B & N Cambodia, reasons for decision, issue 1, Arbitral Award no. 71/09-Hytex Garment, reasons for decision, issue 9, Arbitral Award no. 72/08-Yung Wah 2, reasons for decision, issue 1, and Arbitral Award no. 06/10-Yakjin (Cambodia) Inc., reasons for decision, issue 4.) The Arbitration Council in this case agrees with the interpretations in the previous cases. -17-

18 In this case, the workers demanded the employer to pay payment in lieu of annual leave to 51 workers. The Arbitration Council found that except for (1) Van Narong, (2) Sok Sereyvuth, (3) Hin Thoeun, (4) Mom Bunthoeun, and (5) Lonh Ratha, the other workers are still working for the employer; the employment relationship for those 46 workers has not ended. For these five drivers stated above, the employer filed a complaint on the merit of the case concerning the request for the termination against them to Phnom Penh Court of First Instance. Other than this complaint, the Arbitration Council found that there was no document provided by the employer proving the Court s decision ordering the employer to terminate these five drivers. Therefore, the Arbitration Council found that their employment relationship with the employer had not yet been terminated. The Arbitration Council found that it is against Article 167 of the Labour Law, to demand for payment in lieu of annual leave, even though the employer had failed to pay annual leave for the last three years, when a workers employment contract had not naturally ended. Therefore, the Arbitration Council rejects the workers demand that the employer backpay payment in lieu of annual leave the employer had failed to pay for the last three years to 51 drivers. B. Wages on holidays, wages on weekly time-off and overtime wages Article 164 of the Labour Law states: In establishments or enterprises where work cannot be interrupted because of the nature of their activities requiring the workers to occupy with working during holidays; those workers shall be entitled to an indemnity in addition to wages for the work performed. The amount of this indemnity to be paid by the employer shall be set by a Prakas of the Ministry in charge of Labour. Clause 4 of Prakas no. 10 on Payment for Work on Paid Holidays, dated 04 February 1999, issued by the Ministry of Social Affairs, Labor, Vocational Training and Youth Rehabilitation, states that workers working on holidays have the right to get the same payment as the payment of work on a normal working day. The Arbitration Council in case no. 113/14-Sun Jin, reasons for decision, issue 8 interpreted: Based on Clause 4 of Prakas no. 10, dated 04 February 1999 above, the Arbitration Council found that holidays refer to days in which workers are already entitled to wages. If they perform work on holidays, they are entitled to a remuneration equivalent to their pay on a normal working -18-

19 day. (See Arbitral Award no. 205/13-E-Garment, reasons for decision, issue 1, and Arbitral Award no. 179/14-Mengda Footwear Industry Co., Ltd., reasons for decision, issue 5.) The Arbitration Council in this case agrees with the interpretation in the previous cases. Article 137 of the Labour Law states: In all establishments of any nature, whether they provide vocational training, or they are of a charitable nature or liberal profession, the number of hours worked by workers of either sex cannot exceed eight hours per day, or 48 hours per week. In case no. 259/14-Phnom Penh International Airport-CAMS, reasons for decision, issue 2, the Arbitration Council interpreted Article 137 to mean that a workers normal working hours cannot exceed eight hours per day or 48 hours per week. Therefore, where an employer has already set work hours for a week and the workers work beyond the defined normal work hours, the Arbitration Council considered that those hours will be considered as overtime work. The Arbitration Council in this case agrees with the interpretation in the previous cases. Article 139 (new) of the Law on the Amendment of Article 139 and Article 144 of the Labour Law states: In case of special urgency which requires workers to work overtime other than the usual working hours, the overtime hours shall be paid at an increased rate of 50% (fifty percent). Working overtime at night between 10:00 P.M. to 05:00 A.M., and weekly time-off shall be additionally paid at an increased rate of 100% (one hundred per cent). Clause 5 of Prakas no. 80 on Overtime Works besides Regular Working Hours issued by the Ministry of Social Affairs, Labour, Vocational Training and Youth Rehabilitation, dated 01 March 1999 states: The Owner or manager of enterprise establishment shall pay overtime wages to workers as outlined below: A). an amount equal to 150 percent (or time and a half) of wages during normal working hours for overtime work on normal working days. B). an amount equal to 200 percent (or double time) of wages during normal working hours for overtime work performed at night time (from 10:00 P.M. to 5:00 A.M.). -19-

20 In this case the workers claimed that the drivers work seven days per week without enjoying annual leave, holidays and weekly time-off. The Arbitration Council found that a party who makes a claim or allegation has the burden of proof. (See Arbitral Award no. 79/05-Evergreen Apparel, Arbitral Award no. 101/08- DGM Enterprise, reasons for decision, issue 1 & 2, Arbitral Award no. 168/09-Teoktla Plaza, reasons for decision, issue 2, Arbitral Award no. 115/10-G-Foremost Co., Ltd, reasons for decision, issue 18, and Arbitral Award no. 148/11-Dai Young.) In the previous arbitral awards, the Arbitration Council rejected the workers demand if the party who makes demand(s) does not have clear evidence to support their demand(s). (See Arbitral Award No. 63/04-Shine Well Garment, reasons for decision, issue 4, Arbitral Award No. 99/06-South Bay Garment, reasons for decision, issue 5, Arbitral Award No. 33/07-Goldfame Enterprises, reasons for decision, issue 4, and Arbitral Award No. 51/07-Goldfame Enterprises, reasons for decision, issue 3.) In the hearing, the workers submitted lists which outlined the number of days drivers did not enjoy their holidays, annual leave or weekly time-off, as well as the total number of overtime work, which the employer has failed to give to 51 drivers within the last three years. The employer objected to these lists. Both parties acknowledged that it is the company s practices to set departure schedules for drivers one day in advance and those drivers have to ensure their cars are ready one hour before the scheduled departure. Generally, it takes the drivers 8 hours to drive to remote provinces; this includes driving from Phnom Penh to Poi Pet. However, they spend less than 8 hours to reach other provinces. The employer does not require the drivers to come to the company if they do not have a scheduled departure. The employer will contact any driver who is not listed on the schedule if the employer needs to check whether or not that driver can drive in the event a scheduled driver is unavailable. If that contacted driver is busy and cannot drive, the employer does not force that person to drive and will not deduct their wages. The workers accept this assertion. Also, if the employer requires drivers to work on holidays, the employer increases their wages by around US$ 30 to US$ 40. The workers accepted that they do receive these additional wages [around US$ 30 to US$ 40] when they work on holidays, but they regard this amount as an incentive, rather than payment for working on a holiday. In the hearing, the employer submitted evidence on the number of days of annual leave which have not yet been utilized along with the number of days of annual leave actually used by the 51 drivers. The workers objected to this evidence, but failed to provide any statement or evidence to prove otherwise. The Arbitration Council found that the workers did not fulfill their obligation to satisfy the burden of proof to support their demand. The Arbitration Council -20-

21 therefore, found no evidence or any clear statement to make a consideration of the workers demand. In conclusion, the Arbitration Council rejects the workers demand that the employer pay payment in lieu of annual leave, wages on holidays, wages on weekly time-off and overtime wages, which have not yet been paid by the employer for the last three years to 51 workers. Issue 4: The workers demand that the employer reinstate Mr. Van Narong, Mr. Sok Sereyvuth, Mr. Hin Moeun, Mr. Mom Bunthoeun, Mr. Lonh Ratha, Mr. Sao Rom, and Mr. Mai Sona to their previous roles and duties and provide them with back pay from the date of termination to the date of reinstatement. According to the request for adding complaint document submitted to the Arbitration Council, the Arbitration Council found that the employer requested the Phnom Penh Court of First Instance to render its ruling to terminate employment contracts of (1) Van Narong, (2) Sok Sereyvuth, (3) Hin Moeun, (4) Mom Bunthoeun, (5) Lonh Ratha to be effective from 9 July As the complaints against these five workers are under the process of the Court and while the Court has not yet decided on the merits of this case, the Arbitration Council will not consider this demand for these five workers. Therefore, the Arbitration Council will only consider this issue for two drivers: Sao Rom and Mai Sona. The Arbitration Council will consider whether or not the employer has an obligation to reinstate Sao Rom and Mai Sona to their original roles and duties and provide them with back pay from the date of termination to the date of reinstatement. Article 38 of the Constitution of the Kingdom of Cambodia states that the rights to strike and to organize peaceful demonstrations shall be implemented and exercised within the framework of law. Article 319 of the Labour Law states that the right to strike and to a lock out is guaranteed. The Arbitration Council found that the workers have the right under both the Constitution and the Labour Law to conduct a strike. Furthermore, Article 332 of the Labour Law, Paragraph 2 states that the worker shall be reinstated in his job at the end of the strike. Article 333 of the Labour Law states that the employer is prohibited from imposing any sanction on a worker because of his participation in a strike. Such sanction shall be nullified and the employer shall be punishable by a fine in the amount set in Article 369 of Chapter XVI. Arbitral Award no. 01/06-Goldtex Hing Shing, reasons for decision, issue 7, Arbitral Award no. 337/14-Jin Chen Yuan (Cambodia), reasons for decision, issue 1 & 4 state that -21-

22 terminating the employment contract of a worker based on the ground of participating in strike action is illegal. As per the fact finding, both parties acknowledged that on 10 July 2015, Sao Rom, Mai Sona, and other 10 local union members refused to depart [drive the cars] from Siem Reap in order to make a demand for (1) Van Narong, (2) Sok Sereyvuth, (3) Hin Moeun, (4) Mom Bunthoeun, and (5) Lonh Ratha to be reinstated. The employer claimed that on that day, it issued a notification ordering them to return to work by 11 July Any driver who does not obey this notification shall be considered unilaterally resigned. The employer added that Sao Rom and Mai Sona committed serious misconduct by not obeying the notification to return to work and violated Clause 6 of the Internal Work Rule. This meant they abandoned their jobs on 11 July Clause 6 of the Internal Work Rule stipulates: Unauthorized leave shall be deemed mistakes as defined below: o Minor mistake: take leave less than two days per month. o Medium mistake: take leave less than six days per month. o Job abandonment: take leave more than six days per month or six days consecutively. The Arbitration Council found that the Clause 6 of the Internal Work Rule above intends to control what sanction will be imposed on workers who take leave without authorization. In the arbitral award no. 104/14-Phnom Penh Soriya, reasons for decision, issue 4 & 5, the Arbitration Council found: While the divers are exercising their right to strike, which is guaranteed by both the Labour Law and the Constitution, the employer can request the striking drivers to return to work. This is considered to be a resolution and the restoration of the status quo. However, the notification on the request for striking workers to return to work includes a condition that they must return to work by a specified date. If they do not return to work by the specified date, they will be considered to have abandoned their jobs. This notification is a restriction and a rule that was not valid and is unenforceable in identifying that failure to follow this notification is serious misconduct as laid out in Article 337 of the Labour Law. The Arbitration Council found that only the court has the power to order the striking drivers to return to work upon its declaration saying that the strike action is illegal. The employer has no right to order the striking drivers to return to work; therefore the employer should not use the reason of not complying with the notification which is in the nature of order as an excuse to terminate employment contracts of the striking workers. -22-