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Report/Press release

Cambodia’s Labor Migration: Analysis of the legal framework

Date

2011

Abstract

Section 1: Introduction
The Royal Government of Cambodia (RGC) continues to develop policies concerning the migration of the Cambodian workforce overseas as a way of increasing domestic economic growth and combating unemployment. The primary destinations for Cambodian workers are South Korea, Malaysia and Thailand. As regular migration for labor increases so does irregular migration. The Report focuses on the migration of women to Malaysia (for domestic work) and men to Thailand (to work in agribusiness), analyzing the rules that govern regular migration while identifying legislation that can be employed to protect those who become victims during irregular migration and be used against those who perpetrate and profit from it. The stories ofSamneang (a Khmer man migrating to Thailand) and Sopheap (a woman recruited to work inMalaysia) are used toillustrate different processes of labor migration and how the relevant laws can be applied in these contexts. The characters have been created to serve the purposes of the report and, while based on the experiences of actual migrants, do not refer directly to specific individuals.

Section 2: Licensing Recruitment Agencies (RAs)
In Section 2 the requirements for regulation and licensing for recruitment agencies by the ministry of Labor and Vocational Training (MoLVT) are considered. Sub-decree 57 (on the export of Khmer Labor to Work Overseas, 1995) is the primary source for licensing requirements. This section concludes that it is reasonable to conclude that brokers who are employed by or operating under the auspices of an RA, create civil liabilities under the RA’s license (in the event that the broker is not independently licensed) and that, in any event, when a crime is committed by a broker, liability may fall to both the individual broker and the RA.
Section 3: Contracting/Recruiting Workers
This section is split into two parts, the first of which identifies the laws that apply to the contracting and recruiting of regular migrant through licensed RAs (however, the Report’s case study also looks at the subject with the added element of recruiting underage workers). Section 3, Part 1 finds that where a contract is draft with an illegal premise at its heat, e.g where the workers is not yet 18 (as required by Sub-decree 57), the contract can be considered void from inception (under-Sub-decree 38) on the Law Referring to Contracts and other liabilities, 1988). There are also other argument that can assist a worker in voiding illegal, fraudulent or impossible contractual terms, including the argument that a provision that contractually binds a person to confinement, should be considered illegal and void. Article 3, Sub-decree 57 requires that all candidates for working overseas be at least 18 years of age. In the circumstances, where a minor is removed from their parents’ (or other guardians’) legal custody (by an RA broker) without legal justification or in a manner considered unlawful, the perpetrator may be liable to criminal charge under the Law on Suppression of Human Trafficking and Sexual Exploitation (2008) (LSHTSE) or Penal Code (2009).
The second part of Section 3 considers Samneang’s story and considers the point at which a voluntarily irregular migrant can be considered a victim of Trafficking in Persons (TIP), concluding that a worker’s knowledge and intention to enter into the irregular migrant workforce does not preclude them from pursuing a TIP prosecution when the exploitation becomes clear at a later date. The relevant LSHTSE articles are considered in this section.

Section 4: Training/Accommodation/Transport

Section 4 considers the laws applicable to the training, accommodation and transport of regular and
irregular migrant workers. The section identifies the provisions of Sub-decree 57 and Prakas 108 (2006) that state the RA is responsible for training workers on the work system, customs and traditions, and basic laws of the country in which they will be working, as well as health issues, safe migration and labor rights. The section also shows that where a worker has their freedom of movement restricted (during training for example), the perpetrator of the restriction may be guilty of the crime of confinement under the Penal Code. In addition, and in Samneang’s case, the LSHTSE criminalizing the act of harboring or transporting victims of TIP. In the event, therefore, that a guesthouse owner or driver can be shown to have known of the trafficked nature of the worker or the ultimate exploitative employment, they may be criminally liable.

Section 5: Transit to/Arrival in Receiving Country

This section identifies the criminal laws that may be employed in the event that a worker migrates using a forged or fraudulantly obtained passport. The section also looks at the domestic laws and those in receiving countries that provide a framework for labor migration, e.g. Sub-decree 39 (2009), which provides that all labor migrants in Cambodia are eligible for a fast-track passport. Even with the correct documents, many migrants choose irregular methods of migrating in order to avoid the costs associated with official channels.Ultimately, however, for those migrants who have travelled via irregular means and/or those with illegitimate documents, they will arrive in the receiving countries on the wrong side of the immigration laws. This may lead to arrest, detention and even punishment (which can include caning in Malaysia) and eventually deportation (often at the expense of the

Section 6: Conditions of Work in Receiving Country

Section 6 considers the conditions of work in the receiving countries, in particular as the Cambodian
Labor Law (1997) does not apply to domestic workers in Cambodia or protect Cambodian migrant workers. Sub-decree 57 provides some terms that should be included in an employment contract, but there are very few minimum standards applied and little monitoring of conditions in receiving countries. The section goes on to consider that there may be civil and criminal claims that the worker can pursue against the RA in the event that the conditions of employment in the receiving country are significantly worse than those represented by the R
A and there is evidence that the RA was aware of the actual conditions.

Section 7: Repatriation to Cambodia

Section 7 looks at repatriation of workers to Cambodia, primarily considering who is obliged to pay for repatriation in different scenarios. In the case of regular migration, the RA is obligated to noti
fy the MoLVT 45 days before the worker is to return and the cost is to be borne by the RA or employer (albeit ultimately deducted from the worker’s wages). However, whether the worker initially migrated through irregular channels or left regular employment (voluntarily or not), there are large numbers of undocumented migrants who are arrested and detained as illegal immigrants under the laws of the receiving countries. Little is done to identify undocumented workers who are victims of TIP, and while there are an increasing number of domestic and bilateral commitments designed to protect victims of TIP, most only assist women and children, who are broadly identified as being the most
vulnerable of victims.

Section 8: Claim: Procedure/Remedies

Section 8 considers the different paths that a claim may take, including a claim for compensation from the $100,000 surety under Sub-decree 57. The section also considers the reality that many workers with valid claims are dissauded from pursuing their claims (whether criminal or civil), as the RAs argue that the workers (or their families) had knowledge of, or were complicit in, an element of the irregularity, e.g. providing false identification documents. The RAs will also often allege that because the families still owe them money, it is the RAs that have the claim for compensation. This section looks at the criminal and civil laws that may be employed to counter these arguments in cases where the worker has genuinely suffered a loss and/or where the vulnerability of them/their family can be shown to have been exploited by the RA.

Section 9: Conclusion

The legal framework in Cambodia is struggling to keep up with the rapid evolution of labor migration
trends, leaving thousands of migrant workers without the critical protections that robust monitoring and regulation should provide. As such, people are increasingly taking advantage of the growing space in which irregular migration can be pursued with little or no risk. For those workers keen to pursue this perceived path to economic stability, the lack of information and hidden pitfalls mean that few migrants are able to take steps to comprehensively protect themselves from dangerous situations or exploitation. The RGC has promised a new Sub-decree on migrant work (draft forthcoming), which is likely to enter the statute books shortly and the new Civil Code (2007) recently became enforceable. These two pieces of legislation will have a great impact on the protection of migrant workers. The Sub-decree is hoped to standardize the recruitment of migrants, in providing standard contract terms, training requirements and complaints procedures; the Civil Law will introduce the tort of negligence, which may be employed against those whose negligent recruiting or training causes harm to migrant workers. Stronger bilateral agreements with receiving countries and more coherent structures of monitoring and evaluation would also ensure that Cambodian workers are treated fairly and properly once they have left the country.

Section 10: Legal Framework – Flowchart & Table of Legislation

Each section of the Report starts with a flowchart showing the variables and activities that occur within that stage of the migration process, while identifying the various laws (civil, criminal and international) applicable thereto. Section 10 contains a master flowchart, which brings all of the section specific flowcharts together. The table that follows includes further information about each of the laws cited in the Flowchart. The table and flow chart are intended to create a quick guide for those readers looking to identify which laws may be applicable to scenarios at different stages in the migration process. Appendix B contains a A3 version of the master flowchart for further use in this regard.

Number of pages

3-69

Responsible institution

The Asian Foundation

Place published

Phnom Penh, Kingdom of Cambodia

Links

Keywords

Cambodia, Legal Framework Analysis

Economic sectors

General relevance - all sectors

Content types

Policy analysis and Support initiatives

Target groups

Policymakers and Researchers

Geographical focuses

Cambodia

Spheres of activity

Law

Languages

English