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Effect of Strike Without Following Procedure 

CLEC - 2011-12-22

The right to participate in strikes is a fundamental necessity for workers and is guaranteed in both national and international laws and regulations. Its existence enables two other rights to be enjoyed by workers, the right to form and participate in unions and the right to collective bargaining, both of which seek to protect and enhance workers' interests. It is, however, necessary for a strike shall be conducted in peaceful manner and in accordance with existing laws and regulations, or else it risks being decried as illegal.

In this issue, the Community Legal Education Center will outline the consequences that follow a strike that does meet legal requirements. The Center is not actively encouraging any form of strike, even those that adequately follow legal procedure, as It is only seeking to discuss legal aspects for the purpose of knowledge building

What are consequences for those that participate in strikes which do not follow Legal Procedure?

To provide greater understanding about the effect of the strikes that do not follow legal process, it is first necessary to provide further detail on what that process is.

Article 323 of Cambodian Law on Labour 1997 states that "a strike shall be declared according to the procedures set out in the union's statutes, which must state that the decision to strike is adopted by secret ballot."  It is therefore necessary that prior to any strike that there should be a meeting between union affilated workers to seek agreement regarding the conditons of the strike. If the majority of the members do not agree then a strike may not proceed. A union's leader is thus prohibited from making a unilateral decision or forcing worker members to strike.

Article 324 says: "a strike must be preceded by prior notice of at least seven working days and be filed with the enterprise or establishment. If the strike affects an industry or a sector of activity, the prior notice must be filed with the corresponding employer's association, if any. The prior notice must precisely specify the demands which constitute the reasons for the strike.  The prior notice must also be sent to the Ministry in Charge of Labor." Workers must hence ensure that all revelant bodies have been informed of their intentions within the stipulated time periods for a strike to be considered legal.

Article 337 of the Law on Labor states the Labor Courts have sole jurisdiction to determine the legality or illegality of a strike. In the absence of Labor Courts, the common courts will determine this issue. The same article also states that if the strike is declared illegal, strikers must return to work within forty-eight hours from the time of the ruling being passed.  A worker who, without valid reason, fails to return to his employment duties by the end of this period is considered to guilty of a serious misconduct. This in turn allows an employer to terminate the employment contract within 7 days of the wrong occuring. After this period of 7 days has expired, the employer has in effect waived their right to dismiss, however disciplinary action may still be taken for non-serious misconduct.  ILO and the Arbitration Council's interpretations of serious misconduct should also be noted. Both bodies state that even if a strike is considered illegal, it cannot be considered serious misconduct on behalf of the workers unless they do not return to work within forty-eight hours after the court's declaration is given out.

An employer is also prohibited from imposing sanctions on any worker if the strike is legal. Article 333 provides 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 16."

In conclusion, the court can declare that workers shall stop the strike and return to work if the strike does not follow the procedures of; prior notice; majority vote for the strike; or is the strike is conducted with force or threats and without peaceful means. A striker may be sacked if he/she does not return to work, without good reason, within 48 hours after the declaration of the court. A striker may not be issued a more serious punishment if they do not commit acts of violence or crimes. On the contrary, they can broadly exercise their right to strike without interference from the local authorities if the strike follows the procedure and is non-violent. However, a strike is not a good way of ensuring a good industrial relation. Engaging in further social dialogues with  employers is a better strategy.

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