Cambodia Legal Update January 2018

CORPORATE & COMMERCIAL

LABOUR

LICENSING REQUIREMENTS FOR PRIVATE AGENCIES PROVIDING LOCAL RECRUITMENT SERVICES IN CAMBODIA,

Prakas № 463 of the Ministry of Labour and Vocational Training (“MLVT”), dated 28 October 2016.

Prakas 463 aims to regulate private agencies providing local recruitment services in Cambodia (“Private Agency”). This Prakas applies to all types of Private Agencies. For the purpose of this Prakas, an entity will be deemed to be a Private Agency if it performs any of the following services: (1) matching job vacancies with job seekers, in which the Private Agency is not a party to the employment relationship; (2) introducing a job seeker to a third party, either an individual or an entity, which will manage and supervise the work; or (3) providing other services related to recruitment in accordance with the Labour Law and other applicable regulations

This Prakas imposes requirements upon entities involved in ‘local’ recruitment services in Cambodia to obtain a licence from the MLVT in form of a Prakas and a certificate confirming the MLVT’s authorization to the Private Agency to perform local recruitment services. This license is valid for a period of five years and can be renewed. In the case of an extension, the application must be filed with the MLVT within 30 days prior to the expiry date.

This Prakas imposes further obligations on the Private Agency, including the obligation to ensure confidentiality, document retention, notice to the local administration in which the recruitment services are performed, disclosure of recruitment data, and reporting of the work results to the relevant labour authorities.

Following the issuance of this Prakas, the MLVT recently issued Notification No. 001/18 dated 9 January 2018 to remind Private Agencies of their obligations to comply with this licensing requirement.

DRAFT PRAKAS ON DETERMINATION OF FIXED DURATION CONTRACTS,

dated 14 December 2017, from the Ministry of Labour and Vocational Training.

This draft Prakas aims to amend certain key provisions related to Fixed Duration Contracts (“FDC”) under the Labour Law. The draft Prakas includes but is not limited to, the initial duration of the FDC which must be no less than six months and can last for up to two years at a maximum. The FDC can be renewed one or more times on the condition that (i) the period of renewal stays within the two-year cap; and (ii) the total period of employment does not exceed four years.

The draft Prakas also addresses severance pay. Article 73 of the Labour Law does not clearly stipulate when the severance pay should be paid (which is normally 5% of the total contract value) to an FDC employee, whether at the end of each FDC or at the latest FDC. According to the draft Prakas, an employer must make severance pay at the end of each FDC, even if the FDC is renewed.

COMMERCIAL TRANSACTIONS

DIGITAL SIGNATURES,

Sub-Decree № 246, dated 29 December 2017.

This Sub-Decree aims to regulate and promote the use of digital signatures in Cambodia. A “Digital signature” is defined as the data which is linked to an electronic message used to confirm the identity of the digital signatory and to verify the original status of the electronic message. To be considered as a digital signature, it must properly and specifically affirm the identity of the digital signatory, confirm the original status of the electronic message, and certify the time and date that the digital signature was executed. This will include other requirements to be determined by the Ministry of Posts and Telecommunications (“MPTC”).

The Sub-Decree provides that an electronic message linked to a digital signature as verified by a certifying authority has the same legal equivalence as a written letter. A “certifying authority” that issues a digital signature certificate, must obtain a license of digital signature certification from the General Department of Information and Communication Technology (“GDICT”) upon receiving approval from the minister of the MPTC. An entity wishing to obtain a license of digital signature certification must possess the technical competence, financial resources, business security deposit, appropriate information-technology equipment, and other qualifications as determined by the MPTC. The digital signature certification license is valid for ten years and renewable. General procedures regarding the license are stated in the Sub-Decree and further details will be determined by the MPTC.

It is important to note that under this Sub-Decree, all financial transactions via online systems must now use a digital signature in accordance with this Sub-Decree. This is unless otherwise determined by the joint Prakas between the Ministry of Economy and Finance, the MPTC, and the National Bank of Cambodia. It is incumbent upon the certifying authority and the owner of the digital signature certificate to keep the creation key for digital signatures secret and secure. Publication of a digital signature creating key, or any violation of particular obligations under this Sub-Decree will be subject to penalties and fines.

REAL ESTATE

AMENDMENT OF THE LAW ON FISHERIES ANNOUNCED BY ROYAL KRAM,

No. NS/RKT/0506/011 issued on 21 May 2006.

  • Articles 6, 41, 42, 43, and 95 of the Law on Fisheries were amended;
  • The Fisheries Administration is a Government authority, under the Ministry of Agriculture, Forestry and Fisheries responsible for the management of fisheries and fishery resources based on the National Fishery Policies.
  • The Fisheries Administration has an organizational structure which is divided into national and provincial levels.
  • The following action will be prohibited: mid-level and industrial-scale fishing during the closed season; industrial fishing in open access areas; fishing activities in an open access area by using any types of fishing gear on fishing barriers more than 50 meters long, or more than two thirds the length of the watercourse, or other barriers that obstruct navigation passage ; using fishing nets, seines or metal strips of less than 4 cm of mesh size as a barrier or instead of a bamboo fence; and fishing by bag nets or freshwater prawn Dai nets in locations that are not allowed for Dai fishing or freshwater prawn Dai nets.
  • Bamboo trap fencing will be allowed for fishing in the open access area of Tonle Sap lake from 1 February to 20 May. This installation must not disturb the passage of any vessel. This bamboo trap fencing at any location must be completely removed before 31 May.
  • Mid-scale fishing will be allowed if the seine net is less than: 300 meters in open access areas outside Tonle Sap Great Lake; and 600 meters in open access areas inside Tonle Sap Great Lake.

Lastly, it is prohibited to use fishing nets within the area reserved for local people which may cause disturbances to the finishing lot business, and in areas where line-fishing is commonly practised.

*The information provided is for information purposes only and is not intended to constitute legal advice. Legal advice should be obtained from qualified legal counsel for all specific situation.

For further inquiries, please contact cambodia@dfdl.com.

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