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Non-Governmental Organizations are major employers in Cambodia, particularly of foreign staff. This guide aims to help NGOs and their employees better understand and comply with the employment laws of Cambodia.

It integrates the major sources of law – laws, executive regulations, and Arbitration Council decisions – into a single easy-to-use booklet.

Our aim has been to compile and translate the often technical and difficult to understand rules into plain English. Where appropriate, we also go beyond the text of the law to offer practical advice on issues commonly faced by NGOs.

Over the next few weeks, we’ll be serializing the most important portions of this report. While the publication is aimed at NGOs, many of the rules are the same for private sector employers.

In response to a series of reported abuses involving labor recruitment agencies, the Ministry of Labor recently finalized a sub-decree tightening the way they’re regulated. Though the text of the sub-decree has not been widely circulated, the Post reports that agencies will be required to put up a US$100,000 deposit, which would be used to assist laborers abroad should problems arise. A government official expects the rules to be approved by the government by early next year, according to the article.

It is estimated that almost 5% of the Cambodian population has at least one disability. On average, persons with disabilities earn less, and have a greater difficulty finding jobs – a common occurrence throughout the world. Following on 2009’s Disability Law, the Council of Ministers recently passed a sub-decree aiming to better integrate persons with disabilities into the workforce.

The regulation sets out certain hiring and reporting requirements, along with incentives and penalties, for employers of a certain size. Counting from 2010, they’ll have three years to fully meet their quotas.

Private-sector employers of more than 100 employees must have at least 1% of their workforce be of disability. The quota is set at 2% for public-sector employers of over 50 employees. The sub-decree establishes a scaling system, whereby a full-time employee with a serious disability counts as two disabled persons, whereas a part-time employee of low to medium disability counts as half.

Covered employers will need to report annually to the Ministry of Social Affairs, Youth and Rehabilitation and also to the Ministry of Labor and Vocational Training on their compliance. Failure to meet the quota will incur a mandatory contribution to a disability charity fund of 40% of the employer’s minimum monthly salary.

Employers falling below the minimum-size thresholds are not required to hire disabled persons, but will receive an incentive (to be determined later) for doing so.

The sub-decree also contains a short article requiring employers to accommodate disabled employees by making changes to the work conditions, training, environment, procedures, and materials. This could include, for instance, access to a handicap accessible bathroom, or speech-software for blind employees. While the sub-decree does not spell out what sort of accommodations are required, beyond excluding those which would be “serious” burden on the employer.

When fully implemented, these quotas will hopefully go a long way to providing jobs and income for persons with disabilities.

Yesterday’s Koh Santepheap Daily (Offline Khmer edition only) reported on a seizure of Heineken beer for “infringement of monopoly rights”. The term “monopoly rights” might make you think of trademark infringement, and that this was some sort of fake Heineken brew. From my reading of the article, the beers are not fakes, but interestingly enough, they are infringing Heineken’s trademarks.

How can this be? Parallel imports, my friend. Let me explain.

According to the article, the Attwood Import-Export Company has the exclusive rights to the Heineken brand within Cambodia. Some other unnamed company has the rights to Heineken in Vietnam. Though I haven’t seen their contracts, I’d venture that they prevent Attwood and the Vietnamese distributor from selling into each others’ territories. But that doesn’t prevent some enterprising chap from buying a few cases in Ho Chi Minh City and trucking them over to Phnom Penh, assuming it’s cheaper on the Vietnamese side. That’s because the contracts only bind the parties to the agreement – and the enterprising chap never signed the contract. For all the Vietnamese distributor knows, he’s just another domestic customer.

So how then would the Cambodian authorities be able to legally seize the shipment? After all, these cans were made by Heineken and sold legally in Vietnam.

The Cambodian trademark law grants mark owners the exclusive right to sell products bearing the mark within Cambodia. Because this rule would also prohibit second-hand sales of trademarked goods (think about how much your car would be worth if Toyota could sue you for reselling it), trademark rights are exhausted upon their first authorized sale in Cambodia. Those last two words are key to the whole parallel imports issue. It means that an authorized sale in Vietnam does not exhaust the trademark rights in Cambodia. For better or worse, it allows companies to price and market their goods differently in different countries.

And that’s why Heineken from Vietnam is nothing like the Heineken from Cambodia, at least according to trademark law.

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The work of a handful of attorneys at BNG Legal, this blog's mission is to keep the world up-to-date on legal issues in the Kingdom of Cambodia.

Questions and feedback can be emailed directly to us at info@bnglegal.com.

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