3.1. Overview of the Arbitration Hearing Process
- Appointment of Arbitration Panel
- Overview of Hearing Process
- Arbitral Award
- Binding and Non Binding Award
When a labour dispute arises, if the parties are not able to settle the matter among themselves, the Ministry of Labour will attempt to conciliate the dispute. If the Ministry is unable to conciliate the dispute, the dispute is forwarded to the Arbitration Council via the Secretariat of the Arbitration Council.
Appointment of Arbitration Panel
A panel of three Arbitrators is selected to hear the dispute (the Arbitration Panel).
Each party must choose an Arbitrator from their list to hear the case by completing an Arbitrator Selection Form
- The worker party selects an Arbitrator from the Employee List
- The employer party selects an Arbitrator from the Employer List.
- The two arbitrators selected by the parties select the third Arbitrator from the Ministry List.
The Secretariat will then schedule the hearing date and notify the parties of the date.
Overview of the hearing process
Both the employer party and worker party are required to attend the arbitration hearing, as well as any other sessions called by the Arbitration Panel. Persons directly involved in a dispute and any relevant witnesses for either party should also attend the hearing.
The style of each Arbitration Panel may vary, but in general the arbitration hearing takes between two to four hours. However it may take longer than this if there are many issues or they are particularly complex. The Arbitration Panel will sometimes schedule a second or third hearing.
The hearing will include the following steps:
- The Arbitrators explain his/her role and the manner in which the hearing is to be run.
- The Arbitrators will ask each party to introduce themselves briefly.
- The Arbitration Panel tries to help parties resolve their dispute by agreement during an informal voluntary conciliation.
- If no settlement can be reached during the conciliation, then the Arbitration Panel proceeds to formal mandatory arbitration.
- The Arbitration Panel can require the parties to provide additional evidence or information and will set a deadline or additional hearing for the submission of such information.
All sessions of the Arbitration Council are closed to the general public, unless there is agreement to allow observers.
What is conciliation?
Conciliation is a process whereby the Arbitration Panel gives the parties assistance to try and resolve the issues in dispute by agreement.
During conciliation, the Arbitration Panel can allow or ask questions.
The Arbitration Panel may meet with each party separately.
If a settlement can be reached, the Arbitration Panel may help in drafting the parties’ agreement. Any agreement is a private matter between the parties.
If all issues are conciliated then no decision is published on the website.
If the parties fail to reach agreement by conciliation, the Arbitration Panel will proceed to arbitration.
What is arbitration?
Arbitration is a process whereby the Arbitrators hear arguments and review evidence to decide on the merits of a case by issuing a decision, the Arbitral Award.
Arbitrators ask parties whether they choose in advance to be bound by the Arbitral Award. (Please see section below entitled “Arbitral Awards.”)
Arbitrators ask questions to parties about their case and may examine witnesses or documents.
Parties should present their arguments and submit evidence to support their case.
The Arbitral Award
An Arbitral Award is the official name for the final written decision of the Arbitration Council. The final decision of an Arbitration Panel regarding a labour dispute case becomes the Arbitral Award of the Council.
Generally, an Arbitral Award is issued within 15 working days from the date the Council receives a case.
Binding or Non-Binding Arbitral Awards
During the arbitration hearing process, before the Arbitration Panel begins the formal mandatory arbitration, the Panel will ask the parties whether they choose a binding or non-binding Arbitral Award.
- If both parties agree to a binding Arbitral Award, then the decision of the AC is immediately enforceable. This means that, by law, the parties must follow the terms of the Arbitral Award once it is issued.
- If both parties do not agree to a binding Arbitral Award (for example, one or both parties choose a non-binding Award), this means that the decision of the AC is not immediately enforceable; instead, either party can file an opposition to the Arbitral Award with the SAC within eight calendar days of the date the Award is issued.
o If either party files an opposition within the eight day limit, then the Arbitral Award will not be enforceable.
o If neither party files an opposition to the Arbitral Award within the eight day limit, then the Award will become enforceable.
3.2. Step-by-Step Guide to Preparing for Hearing
This guide briefly explains the steps you need to take to prepare your case for proceedings at the Arbitration Council.
You should also consult the Labour Law (1997) and regulations, including the Prakas on the Arbitration Council No. 099 dated 21 April 2004.
Further information is available in the booklet “The Arbitration Council. Questions and Answers” and “The Arbitration Council and the Process for Labour Dispute Resolution in Cambodia” published by the ILO-Labour Dispute Resolution Project in Cambodia.
These publications are available from the Secretariat of the Arbitration Council.
Role of Arbitrators
Three Arbitrators compose the Arbitration Panel and preside over the arbitration process.
The Arbitrators are independent and neutral. This means that each Arbitrator will hear your case on its merits without bias towards either party.
The parties can only speak to the Arbitrators during a hearing. Any communication between the parties and the Arbitrators outside of a hearing shall take place through the Secretariat of the Arbitration Council.
Role of Secretariat
The Secretariat’s role is to facilitate the labour dispute resolution of the Arbitration Council. The Secretariat can give you assistance with the procedure to follow but they cannot give you legal advice.
The Secretariat is a neutral office. They act without bias towards either party.
Party Representative
If you are going to be represented by a lawyer who is a member of the Bar Association of the Kingdom of Cambodia or by another person, that lawyer or person must be authorized in writing by you to appear for them.
Example
- If you are the representative for a Company, you will need a written authority from the Owner of the Company.
- If you are not a Registered Union, you will need a written authority from each Worker you represent.
- If you are a Registered Union, you will need a written authority from each Worker you represent who is not a Union Member. (If you are a Registered Union, you will not need a written authority from the Workers who are Union Members.)
The representative must be a person with a good understanding of the labour dispute and with the authority to make agreements with the other party.
The form of letter of authority for representation can be obtained from the Secretariat.
It is very important that the authority for representation is given to the Secretariat before the hearing begins. If the authority is not available the hearing may be delayed.
Argument
Your argument is the reason why you believe the Arbitration Council should decide the case in your favour and not in favour of the other party.
At the hearing, the Arbitrators will hear your argument and will hear the other party’s argument.
At the hearing, you should be ready to talk about your argument for each issue that is in dispute.
Example
- What happened and any other relevant facts? (Know the key events and dates)
- What is your demand or what is your response to the other party’s demand?
- What is an acceptable compromise for you?
- Why do you believe the demand should be accepted or rejected by the Arbitration Council?
Evidence
Evidence is something that supports your argument about an issue in dispute and proves what the real facts in a case are. In some cases, facts are in dispute (for example, parties do not agree about what really happened); in those cases, evidence can help to resolve the disputed facts.
The Arbitration Council will decide if the evidence is acceptable or not, if it is important and if it is enough to support your argument.
If both you and the other party agree that certain facts are not in dispute, then you should tell the Arbitrators about your agreed facts.
Evidence can be a written document that supports the argument you are putting in your case.
Example
- A Collective Bargaining Agreement can be evidence of the agreement between an Employer and a Worker about the working conditions.
- A payroll or payslips can be evidence of the amount of money paid by the Employer to Workers.
Generally, the following documents are to be provided before a hearing date:
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By Employer
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- Brief statement of agreed facts
- Certificate of business registration
- Statute, Memorandum of the Company
- Company internal work rules
- Agreement or Collective Bargaining Agreement between employer and workers
- Other documents related to the labour dispute
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By Union
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- Brief statement of agreed facts
- Certificate of union registration and union statutes
- Agreement or Collective Bargaining Agreement between employer and workers
- Other documents related to the labour dispute
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The Arbitration Council may require you to provide additional documents.
The Secretariat will advise you if the Arbitration Council requires further documents. The Secretariat will also advise you when the documents must be given to the Secretariat.
Documents given to the Secretariat on the day of the hearing may delay your case.
Evidence can be a spoken statement from a witness who knows what is true.
At a hearing, a witness can give oral evidence by telling the truth to the Arbitration Council.
At the hearing the Arbitrators can question the witness. You and the other party are also entitled to question the witness. The other party is entitled to bring their own evidence that may dispute or contradict your evidence.
Copies of documents
If you are required to give documents to the Arbitration Panel, you need to give to the Secretariat the following number of documents:
- One copy for each Arbitrator (three copies)
- One copy for the Secretariat file
- One copy for each other party
Example
- If the Arbitration Panel directs you to submit a Certificate of Business Registration or a Certificate of Union Registration, you need to give to the Secretariat 5 copies of the document.
If you do not give the Secretariat enough copies of your document, the hearing may be delayed.
The documents should be given to the Secretariat prior to the day of the hearing.
If you need more information you can contact the Secretariat of the Arbitration Council at:
#72, Street 592 corner of 327, Sangkat Boeung Kok II, Khan Tuol Kok, Phnom Penh, Cambodia.
Tel: 023 881 814; 023 881 815
SAC Fax: 023 881 824
Þ Arbitrator Selection Form
Þ Authorisation Form
Þ Request to stop industrial action
Þ Arbitral Award Objection Form
3.4. Hearing Rules and Policy
Internal Rules for Persons Attending the Hearing
The Arbitration Council is honoured to inform His Excellency, Lok Chumteav, and all persons who attend a hearing at the Arbitration Council, to implement and follow the following rules:
Clause 1: Weapons or explosive devices should not be brought into the Arbitration Council premises especially into the hearing room.
Clause 2: Cameras, or mobile phones that have a camera function, should not be brought into the hearing room without prior permission.
Clause 3: Audio recorders, or mobile phones that have an audio recorder function, should not be brought into the hearing room without prior permission.
Clause 4: Mobile phones must be turned off in the hearing room. In cases where a mobile phone cannot be turned off, it can be left with an officer of the Secretariat of the Arbitration Council. The Secretariat officer will relay any important messages directly to the person concerned.
Clause 5: Those persons, who violate the above rules, shall be barred from the Hearing Room.