Date of publication: 21-09-2018
Category: Legal updates
Repealing Prakas No.286 dated 5 November on Shop Stewards, the MLVT issued a Prakas on Shop Stewards of Enterprise, Institution on 02nd July 2018.
1. The establishment of shop stewards within the enterprise, institution
The Prakas provides that every enterprise, institution covered under Article 3 of the Trade Union Law, hiring 8 employees or more shall elect an official shop steward and an assistant shop steward who are going to be the employees' representatives in the enterprise, institution for 2 (two) years following the election.
2. Format and procedures of the election
The election must be held during the working hours within 6 months upon the opening of the enterprise, institution. Additionally, the election must be kept confidential and must include at least half of the employees registered to vote ("the quorum"). In that matter, if the total votes amount to less than half of the registered voters, the employer must organize the re-election within 15 (fifteen) days after the first election, and this time, the quorum will not be necessary.
With regards to the formalities in order for an employee to stand as a shop steward candidate, the Prakas sets a distinction between an enterprise which has or which has not a trade union. Indeed, in the case where an enterprise does not have a trade union, any employee of the enterprise has the full right to register his/her name on the list of shop steward candidates.
In the case where an enterprise does have a trade union, members of the said trade union can appoint their candidates depending on the numbers of seats of the shop steward and the assistant of the shop steward. Employees who are not members of the trade union can also stand as candidates. The employer must then discuss with those trade unions and the representative of the employees about the voting procedures, the election date as well as the seats to be distributed.
However, and in the case where an enterprise does not have any trade union or any employee willing/unable to register on the list of shop steward candidates, the Minister of MLVT shall settle the issue. With regard to the election procedure, the Prakas provides that the election shall be made in one-same procedure but it shall be made separately if any agreement, rules or collective bargaining agreement (CBA) require any type of election to be organized separately.
Moreover, if the enterprise or the institution has more than 51 employees, the electoral body shall be divided in two bodies, the first one representing normal employees and the second one representing directors, managers and those with at least undergraduate degrees and high-level expertise.
However, if the numbers of voters in the second electoral body are less than 8 people, then the election will proceed within one-same electoral body. Furthermore, an enterprise or institution with more than one branch, each of which hiring at least 8 employees, must hold separate shop steward election for each branch.
3. Obligations of the shop steward
Shop stewards, as legal representatives of the employees, undergo several obligations to fulfill in good faith such as to deliver the complaint to the employer, to inform a labour inspector about any complaint concerning the non-compliance to Labour Law and relevant regulations, to be responsible for the implementation of the rules on health and security, and to discuss with the employer on the draft of the enterprise's internal rules, the dismissal plan of employees, and to conclude a CBA with employer in the event that the enterprise does not have a trade union.
In any case, the presence of the shop steward in the enterprise does not impede the right for an employee to directly complain to the employer or to the shop steward.
4. Obligations of the employees and the employer
An employer of the enterprise bears the full responsibility for the election. Indeed, the employer must make all the arrangements either material, financial or moral, in order to conduct the election of the shop steward. Moreover, the employer shall create a record of the election result within 8 (eight) days after the said election.
Afterward, the employer, of an enterprise located in Phnom Penh, will have to send the record to the department of labour dispute of the MLVT. Otherwise, the employer, of an enterprise located in the province, will have to send the said record to the Department of Labour and Vocational Training of the same province.
In addition, the employer must provide to the shop steward, any workplace, meeting place or any working material deemed suitable for posting information. The employer must also grant 2 hours every week to the shop steward for fulfilling his/her representative work. The employer must maintain the wage and additional benefit as the same and in special circumstances, with the consent from the employer, each shop steward can exceed their working period above the set duration.
5. Termination and new term election
Employees have the right to remove the shop steward before the end of their term in case that the shop steward does not fulfill his/her duty. The decision to remove the shop steward must be made in the same form and procedure the shop steward was elected and must be notified within 3 days after the decision making.
In the event of the removal of the official shop steward, the assistant of the shop steward must fulfill the job of the former shop steward until the new term election is conducted, which is within 15 (fifteen) days before the end of the old term.
6. Dispute settlementFinally, the Prakas provides that any complaint arising from the election, the right to vote or the inaccuracy of the election shall be deferred to the labour court.