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Tuesday, July 7, 2009

Garment Industry: Working Hours and Overtime

Cambodian Garment Industry

Working Hours and Overtime

Sophal CHEA, 3 November 2004

Content

I. Normal Working Hours
II. Suspension of weekly time off
III. Confusing rules for flexible hours- Saturday Afternoon
IV. Young Employees
1. How many hours do young employees work?
2. Can young employees work at night?
V. Overtime
1. Is night work considered as normal work or overtime work?
2. In what conditions the overtime is applied
VI. Final Words

Working Hours & Overtime
The general working conditions in the garment industry consists of wage, hours of work, overtime, night work, weekly time off, paid holidays, paid annual leave, special leave, and child labour. There is still controversial issue on the application of those above issues; therefore there is a need to look into the issues of working hours such as normal working hours, weekly time off, flexible hours, night work and overtime.

I. Normal Working Hours
The normal working hours should not generally be more than 8 hours a day or 48 hours a week[1]. However, the management of the enterprises especially the garment enterprises asked the workers to work more than 8 hours. The problematic section is that causal workers who are not regular workers work most of time over 8 hours. So, the garment management should ensure that normal working hours do not exceed 8 hours per day, 6 days per week. There should be a clearly written payroll or pay-slip indicating the starting time, the finishing time and the exact number of overtime work.

According to the Annex of Notice 004/00 issued by the Ministry of Labour, the apprentices shall work only 6 hours per day, 5 days per week. The enterprise management finds that they lose profit if they apply this rule because apprentices work only 6 hours per day and only 5 days. Therefore, instead of doing so, they hire workers as probationary works who work 8 hours per day.

II. Suspension of weekly time off
It is prohibited to make employees work over 6 days per week[2]. This means the employees must get at least one full day (24 hours) off per week. This should normally be a Sunday. It is quite difficult for the garment enterprises to set Sunday as a weekly day off when they have to keep their enterprises running every day. Then the factory has to employ shift workers to rotate from one shift to another one. The application of Sunday as weekly day off will not be functioning any more. The law should not specify only Sunday as the weekly day off. The weekly day off can be on any day as long as the employees have 24 consecutive day off.

There are some exceptions that the weekly day off can be suspended when the factory has urgent tasks to do. The suspension can be sought from the Labour Department in Phnom Penh and the Labour Offices in the other municipalities/ provinces. Those Labour Department and Offices give permission for suspending the weekly day off as long as it is exceptional. That means suspension cannot be made every week or every month. In practice, some factory enterprises did not ask for permission from the Labour Department to suspend the weekly break. To avoid this problem, the factory management should get permission from the Labor Inspector before suspending the weekly break[3].

III. Confusing rules for flexible hours- Saturday Afternoon
Employers may set the normal working hours so that employees get Saturday afternoon, as well as Sunday, off[4]. However, the employer must not extend the normal working day beyond 9 hours in order to do this. Taking into consideration of the 8-hour normal working hours, the normal working hours will be increased to 9 hours per day. This is confusing as Art 137 of Labour Law set the 8 working hours per day. It is also confusing for the calculation of overtime rate for 150% normal day from Monday to Saturday. To make it clear, there should not be provision on flexible hours for Saturday afternoon off. If any work works more than 8 hours the work will be considered as overtime work.

IV. Young Employees
1. How many hours do young employees work?
Minors may not work more than 8 hours per day and they must be given at least 13 consecutive hours off between shifts[5]. The minimum age for young employees to work for the garment industry is 15 years of age. There is no Government mechanism to verify exact number of hours for minors who are working this industry as well as the factories did not classify the category of ages. To avoid this problem some factories started to employ the workers who are over 18 years.

2. Can young employees work at night?
Minors are not allowed to work at night in a garment factory. The one exception to this rule is 16-18 year old[6], who are allowed to work at night in iron and steel factories, glass factories, paper factories, sugar factories, or refineries. Minors are allowed to work at night in certain those sorts of above-listed factories only for the purpose of training.

V. Overtime
1. Is night work considered as normal work or overtime work?
The law is unclear as to what night work is and what pay rates apply for night work. If the overtime hours are worked at night or during weekly time off, the rate of increase shall be one hundred percent[7]. According to this Article, it is obviously seen that work at nighttime and during weekly time off is considered as the overtime work.

Current industry practice is to pay normal and overtime work at night (between 22:00 and 05:00) at 200% of the normal day rate. This is accepted by the Garment Manufacturers Association of Cambodia (GMAC) and the Ministry of Labor. Artcle 144 of the Labor Law says that the term “night means a period of at least 11 hours including the period 22:00-05:00.” According to the Arbitration Council[8], this means that an enterprise must set aside a period of at least 11 hours to be night: (e.g., 20:00-07:00 or 19:00-06:00) and that any work during this period is night work.

If employees finish work at night the employer must provide them with a place to sleep or transport home[9]. The Ministry of Labour, Unions Representatives and GMAC should work together closely to deal with this issue of night work. It is shown that if the night work is still considered as the overtime work with 200 % pay, the garment industry are reluctant to expand their work for the night work.

2. In what conditions the overtime is applied
Overtime work is work done in excess of normal working hours[10]. In this sense, overtime is only allowed for exceptional and urgent work. Therefore, overtime must be exceptional (not for every day) and urgent. Overtime must be voluntary[11]. Employees must be allowed to choose to work overtime or not. Employers must not impose any penalty or wage reductions on an employee who chooses not to work overtime. Maximum overtime is of 2 hours a day[12]. According to overtime authorization letters issued by the Ministry of Labor overtime is usually limited to 2 hours per day. Permission for overtime is required from the Ministry of Labor[13]. Employers must obtain permission from the Ministry of Labor before giving employees overtime work. The management should ensure that overtime does not exceed 2 hours, is voluntary and exceptional.

VI. Final words
Based on the above observations, I would personally think that the provisions on night work, night work payment, and overtime frequency should be amended because the payment for night work is too high for the industry to gradually go. However, the government still needs more time to cope with this gap.

PS: The author, Sophal CHEA, was a graduated student from Pannasastra University of Cambodia.

References
[1] Labour Law Art. 137
[2] Labour Law Art 146
[3] Labour Law, Art 160; Prakas 100/02
[4] Labour Law, Art 141; Prakas 143/02
[5] Prakas 144/02
[6] Prakas 144/02
[7] Labour Law, Art. 139
[8] AC Award 47/04
[9] Notice 014/99
[10] Labour Law Arts 137-140; Prakas 80/99; Notice 014/99
[11] Labour Law Art 139
[12] Prakas 80/99
[13] Prakas 80/99

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