The Government of Cambodia, Cambodian Labour Law (1997)1
The Government of Cambodia, Sub-Decree 57 on Sending Khmer Migrants to Work Abroad (1995)2
The Government of Cambodia, Sub-Decree 190 on The Management of the Sending of Cambodian Workers Abroad Through Private Recruitment Agencies (2011)3
Government Agencies in charge of Monitoring Recruitment Practices
Employment of Cambodian Nationals Overseas
Article 2 of the Cambodian Government’s Sub-Decree Number 57 (1995) (“Sub-Decree 57 on Sending Khmer Migrants to Work Abroad”) stipulates:
The sending of Khmer workers to work abroad and the management [of] these workers is under the competence of the Ministry of Social Affairs, Labour and Veterans’ Affairs. The Ministry of Social Affairs, Labour and Veterans’ Affairs can permit through the ministerial order (PEAKAS), any company to take Khmer workers for working overseas. If necessary, the Ministry of Social Affairs, Labour and Veterans’ Affairs shall issue furthermore the rule implementing in questions. The Ministry of Social Affairs, Labour and Veterans’ Affairs shall cooperate with the Ministry of Interior in complying with formalities such as issuing passports for the workers, and with the Ministry of Foreign Affairs and International Cooperation in monitoring them.
Article 5 of Sub-Decree 190 also states:
The Ministry of Labour and Vocational Training shall be the competent ministry to manage the sending of Cambodian workers abroad in cooperation with the Ministry of Foreign Affairs and International Cooperation and the Ministry of Interior.
There are thus a total of four ministries tasked with managing the labour migration of Cambodian citizens overseas, in addition to two Inter-Ministerial Committees that are also involved with labour migration issues. These are the Ministry of Labour and Vocational Training (MoLVT), the Ministry of Interior, the Ministry of Foreign Affairs and International Cooperation, and the Council of Ministers. The Inter-ministerial Committees are the Inter-Ministerial Working Group for Implementation of the Memorandum of Understanding (MOU) with Thailand, and the Inter-Ministerial Taskforce for Migration (IMTM).4
The Sub-Decree ‘considers the ministry in charge (now MoLVT) as the providing party and a recruitment company/agency as the receiving party’.5 There are two other legal documents relating to labour migration in addition to Sub-Decree 57:
[…] Prakas 108 issued in May 2006 on “Education of HIV/AIDS, Safe Migration and Labour Rights for Cambodian Workers Abroad” and Subdecree 70, issued in July 2006 on “The Creation of the Manpower Training and Overseas Sending Board”. The latter is designed to specifically regulate sending workers to Korea.6
The ILO states that according to the Cambodian Government’s Sub-Decree 52 and MoVLT’s Declaration No 062/07, the responsibilities of the Department of Labour and Manpower include:
1) Study and propose measures to develop and protect employment
2) Manage, issue work permits, work books, and provide working visas to Cambodian workers in-country and overseas
3) Check and issue work permits, work books, to foreigners working in the Kingdom of Cambodia
4) Prepare legal procedures on all measures to be implemented and monitored
5) Set up Employment Offices in Provincial/ Municipal Departments of Labour and Vocational Training
6) Develop statistics on employment and manpower in-country and overseas for all levels of economic activities
7) Prepare regulations on the management of foreigners working in the Kingdom of Cambodia and on the management of Cambodian labour and workers who migrate to work overseas
8) Manage foreigners working in the Kingdom of Cambodia and Cambodian workers overseas in cooperation with concerned ministries in the case that many Cambodian workers request labour assistance
9) Seek employment markets for Cambodian labour to work overseas
10) Implement other duties given by the Ministry. 7
The Department of Employment and Manpower (DEM) is mandated to oversee ‘both out- and in-labour migration as well as employment in the country. It manages the registration and sending of Cambodian migrant workers and issues work permits to foreign workers in Cambodia’.8
Employment within Cambodia
Article 258 of the Cambodian Labour Law states that: ‘Any person looking for employment can request to be registered with the Placement Office of the Ministry in Charge of Labour or with the Employment Office of his province or municipality’. Employers should notify the Placement Office of the Ministry in Charge of Labour or the provincial or municipal Employment Office when they have vacancies requiring the placement of new staff .
Types of Agencies and Regulations
Employment of Cambodian Nationals Overseas
Sub-Decree 190 on ‘The Management of the Sending of Cambodian Workers Abroad Through Private Recruitment Agencies’ stipulates under Article 6 that: ‘Any agency recruiting Cambodian workers to work abroad shall obtain an authorisation for free according to the PRAKAS of the Ministry of Labour and Vocational Training except otherwise specified by other regulations’. As of November 2010, there were 32 private recruitment agencies operating with a licence from the Cambodian Government to recruit, train and send Cambodian migrant workers abroad.9
Article 7 of Sub-Decree 190 states:
To obtain authorisation, the recruitment agencies shall fulfill the following requisite conditions:
a) Have an office with clear address and sufficient staff, office materials, communication and transportation means;
b) Have a training center with appropriate size, which consists of:
- a building equipped with materials and equipment for vocational and language training to meet the standard skills and demand of the job market and for pre-departure orientation training in accordance with the guidelines;
- proper accommodation and dining areas that ensure good health, sanitation and safety; and
- internal rules to be recognized by the Ministry of Labor and Vocational Training.
c) Have language teachers to provide language training that meets the skills standards and demand of the worker receivers;
d) Enter into a contract with the Ministry of Labour and Vocational Training on the duty and procedures of job placement service operation;
e) Deposit a guaranty money properly according to the guidelines as stipulated in Articles 8 and 10 of this Sub-Decree; and
f) Have a permanent representative in the receiving country.
According to Article 13 of Sub-Decree 190:
The recruitment agencies shall cooperate with the Ministry of Labour and Vocational Training and the Ministry of Foreign Affairs and International Cooperation to explore and research the demand of workforce and job skills in order to create employment opportunities for the Cambodian people.
Employment within Cambodia
At the moment, there are no recruitment agencies that operate in recruiting Cambodian workers inside the country. However, the Cambodian Labour Law (1997) mandates the MoLVT (Placement Office) to place and recruit workers.
Article 258 of the Cambodian Labour Law stipulates:
Any person looking for employment can request to be registered with the Placement Office with the Ministry in Charge of Labour or with the Employment Office in his/her province or municipality. All employers are required to notify the placement office with the Ministry in Charge of Labour or with the Employment Office in his/her province or municipality of any vacancies in his/her enterprise or any new need for personnel. An employer can directly recruit workers for his/her enterprise, but he/she must meet the requirement mentioned in Article 21 of this law.
Recruitment Procedures, Fees and Regulations
Employment of Cambodian Nationals Overseas
Article 1 of Sub-Decree 57 provides:
In order to access the higher standard of living and to upgrade vocational skills, and generate the national revenue the Royal Government allows the sending of Khmer workers to work abroad while the domestic labour market is unable to absorb totally the unemployed and under employed persons. Khmer workers of both sexes of at least 18 years of age, who have submitted their application forms for the job to the Ministry of Social Affairs, Labour and Veterans’ Affairs, are considered to be candidates for selecting and sending to work abroad.
According to Article 3 of Sub-Decree 57, candidates for overseas employment can be of either sex, must be over 18 years of age, and must submit an application form for a job to the Ministry of Social Affairs, Labour and Veterans’ Affairs. Article 5 specifies that the main criteria must be set out by the receiving party in a proposal/request for employees, including the date of commencement and termination of the work, location of the job, salary and other benefits, the numbers of workers and the skills required, and the transportation of workers to and from the workplace.
Article 5 of Sub-Decree 57 then stipulates:
Aft er receiving the proposal, the providing party shall reply to the receiving party within 45 days stating whether the workers can be totally or partly provided or cannot be provided, or if it is needed to discuss in greater detail. The receiving party shall reply to the providing party within 30 days stating whether all or a proportion of the workers are needed. If the deadline of 30 days is exceeded and there is no further discussion, the providing party considers that the receiving party is no longer interested in those workers.
If permission is granted to the receiving party then they shall deposit guarantee money equivalent to an amount of USD 100, 000 into the account of the providing party [Article 7, Sub-Decree 57; Article 8, Sub-Decree 190]. Failure to do so will render the permission null and void. This guarantee money may be used to pay workers where the employer fails to do so. The deposit will be returned to the receiving party when the employment contract is ‘achieved defi niti vely’ [Arti cle 7, Sub-Decree 57].
Article 22 of Sub-Decree 190 states:
All advertisements of the recruitment agencies shall be appropriate and comprehensive according to the facts regarding selection requirements, working conditions and benefits to be entitled during the employment without lying or cover-up.
An employment contract is then to be drafted in both Khmer and either French or English, signed by the workers and receiving party, and authorised by the labour inspector [Articles 11 and 12, Sub-Decree 57]. The contract must not exceed a period of two years and must contain clear details of the names and addresses of each party, the workers’ salary and allowances, date of commencement and termination of work, hours of work, holidays, leave, transportation, social security, required skills, location of work, and the provision of accommodation, medical care, meals and clothing [Article 9, Sub-Decree 57].
Article 21 of Sub-Decree 190 declares:
The recruitment agencies shall be responsible for the working conditions and living conditions before recruiting workers for overseas work such as types of work, workplace, working hours, skills, salary, benefits, health insurance, accommodation, transport, security and safety within the working and accommodation areas.
Article 14 of Sub-Decree 57 specifies that prior to an employee leaving to work overseas, the providing party and receiving party must conduct a training course on the system of work in the receiving country, and the life-style, customs, laws and traditions of the host country. According to Article 15 of Sub-Decree 57, each worker will be taxed by the Cambodian Government. Recruitment agencies in Cambodia are also responsible for filling out the relevant application forms and providing a health check up if required for Cambodian nationals going overseas to work, per Article 19 of Sub-Decree 190.
Article 16 of Sub-Decree 57 stipulates that the providing party will send officials from time to time to monitor the implementation of the employment contract, the expenses of which must be borne by the receiving party. Additionally, Article 18 of Sub-Decree 57 states that the date of the repatriation of the workers shall be jointly agreed by the receiving and providing parties and, ‘the receiving party shall notify the sending party within 45 days before the real date of the repatriation of the workers’.
Article 26 of Sub-Decree 190 stipulates:
When the employment contracts of the workers expire and are not to be renewed, the recruitment agencies shall make proper arrangements for the repatriation of workers by officially notifying the embassy or representative mission of the Kingdom of Cambodia to the receiving country and the Ministry of Labour and Vocational Training at least 30 (thirty) working days prior to each repatriation by clearly specifying the number and names of workers, and the time and border gates where the workers will cross.
Furthermore, Article 27 of Sub-Decree 190 provides that recruitment agencies ‘shall provide appropriate services in order to ensure that workers return to the Kingdom of Cambodia safely’. Finally, pursuant to Article 20 of Sub-Decree 57, any person who sends Khmer workers to work overseas in violation of Sub-Decree 57 will be committing an offence and be liable to punishment in accordance with existing law.
Employment within Cambodia
Article 259 of the Cambodian Labour Law specifies that: ‘No employer is required to accept a worker who has been referred to him by the Placement Office. The priority for accepting certain categories of workers will be determined by special provisions and regulations’. Article 260 also prohibits Placement Office personnel from demanding or accepting ‘any payment whatsoever for the placement of a worker’.
Article 263 additionally stipulates that: ‘Enterprises of any kind and professionals such as lawyers, bailiffs, and notaries who need to recruit staff to work in their profession must appeal to Cambodians as a first priority’.
Employment of Foreign Labourers / Labour within Cambodia
Pursuant to Article 261 of the Cambodian Labour Law, foreign workers must possess a valid work permit and employment card issued by the Ministry in Charge of Labour. They must also meet the following conditions:
• Employers must beforehand have a legal work permit to work in the Kingdom of Cambodia; must have legally entered the Kingdom of Cambodia; must possess a valid passport; must possess a valid residency permit;
• These foreigners must be fit for their job and have no contagious diseases. These conditions must be determined by a Prakas (ministerial order) from the Ministry of Health with the approval of the Ministry in Charge of Labour.
Article 261 states: ‘The work permit is valid for one year and may be extended as long as the validity of extension does not exceed the fixed period in the residency permit of the person in question’. Under Article 262 a work permit may be revoked by the Ministry in Charge of Labour where the holder is competing with Cambodian job seekers, or where ‘the holder is unemployed for more than one month or is hired by another employer’.
The Ministry in Charge of Labour, ‘shall issue a Prakas for the issuance of work permits and employment cards to foreign workers’ and a joint Prakas of the Ministry in Charge of Labour and the Ministry of Economics and Finance ‘shall set the rate of the fee for issuing such work permits and employment cards’ [Article 262]. According to Article 264, the maximum allowable percentage of foreign workers who can be employed in each enterprise at any one time shall be determined by ministerial order based on these three categories: office personnel, specialised personnel and non-specialised personnel. Furthermore, each enterprise is also required to justify ‘during the entirety of its existence, that each of the three categories of personnel specified above include at least the minimum percentage of workers of Cambodian nationals as already provided’ [Article 264]. However, in exceptional cases, Article 265 permits the percentage of foreigners to be exceeded above the limit set by ministerial order in order to allow the employment of specialists ‘indispensable to the operation of the enterprise’.
1 Cambodian Labour Law, 1997, available at http://www.gocambodia.com/laws/labor_ law.asp (accessed 16/05/11).
2 Sub-Decree 57 on Sending Khmer Migrants who Work Abroad, 1995 available as an appendix to Sophal, Chan, Review of labour migration management, policies and legal framework in Cambodia / Chan Sophal ; ILO/Japan Project on Managing Cross-border Movement of Labour in Southeast Asia ; ILO Regional Office for Asia and the Pacific. - Bangkok: ILO, 2009 xi, 44 p. (ILO Asia-Pacific working paper series), pp. 37-40.
3 Sub-Decree 190 on The Management of the Sending of Cambodian Workers Abroad Through Private Recruitment Agencies, 2011, available at http://caramcambodia.org/ uploads/subdecree190%20on%20management%20of%20sending%20workers%20 abroad_eng.pdf (accessed 20/10/2011).
4 Chan, Supra, pp. 11-12.
5 Ibid, p. 6.
7 Ibid, p. 13.
8 Ibid, p. 14.
9 List of recruitment agencies in Cambodia issued by the Department of Employment and Manpower of the Ministry of Labour and Vocational Training (MOLVT 11/2010)