How Arbitration Council decides whether a labor dispute is individual or collective

By Phy • July 4th, 2008

For your background information, the Arbitration Council (AC) is a tripartite body that arbitrate labor disputes in Cambodia. It was established in May 2003 in accordance with the 1997 Labor Law (Art. 310-17). Although Cambodia is in the process of establishing an arbitration body for commercial disputes, the AC is now the only body doing arbitration. (For more info about the AC, click here.)

The 1997 Labor Law classifies labor disputes into collective and individual (Chapter XII). According to Prakas 099 on the Arbitration Council, the AC’s jurisdiction is restricted to cases referred to it by the ministry in charge of labor (the Ministry) (Clause 32).

Whether it’s a collective or individual disputes is arguable in some cases. So let’s find out the AC’s jurisprudence with regard thereto with reference to these cases: #10/03-Jacqsintex Garment, #02/04 - Hotel Cambodiana and #103/04-Joeu Star (cases available online here).

Basically, the AC reasons that it comes under the jurisdiction of the Labor Inspector of the Ministry to determine whether a issue is classified as a individual or labor dispute and therefore assumes that all cases the Ministry refers to it belie the collective nature of labor dispute.

Article 302 of the Law sets out three elements for an issue to be regarded as collective dispute:

the parties: one or more employers and a group of workers;
the subject matter: the issue at dispute relating to working conditions, the exercise of the rights of professional organizations, the recognition of professional organizations or problems in the relationship between employers and workers; and
the consequences: the dispute possible to result in the disruption of the enterprise or threaten social peace.

In its analysis of the article, the AC puts the emphasis on union role. Just with a union involved, the first condition is met. The second condition is so broad that it be interpreted to cover almost (if not all) labor issues. In #10/03-Jacqsintex Garment and #103/04-Joeu Star, it is reckoned that a trade union is capable of provoking industrial actions which could “jeopardize the effective operation of the enterprise or social peacefulness (Art. 302)”, therefore fulfilling the last condition.

It may be inferred from the AC’s jurisprudence that trade unions play an crucial role in having labor disputes arbitrated by the AC, which is well known for being independent, transparent and fair in its dispute resolution process and for being capable of providing better access to labor justice in Cambodia in the absense of a reliable court system [Lejo Sibbel, Arbitration Council Review, 3 (ILO June 2005)].