This summary of age discrimination law in Cambodia has been prepared by Rajah & Tann Asia, Sok & Heng Law Office https://kh.rajahtannasia.com.
OVERVIEW
The Constitution of the Kingdom of Cambodia does not explicitly address the issue of age discrimination. The Constitution has a general stipulation that accords equal protection to all citizens. Article 66 of the Constitution stipulates:
“The state shall establish a comprehensive and standardized educational system throughout the country that shall guarantee the principles of educational freedom and quality to ensure that all citizens have equal opportunity to earn a living.”
Although the above Article does not primarily address the issue of age discrimination, its purpose was to ensure that all citizens have equal opportunity to earn a living. Aside from the general stipulations in the Constitution, to date, there are no formal regulations designed to address age based discrimination.
The Royal Government of Cambodia (“RGC”) has recognised and sought to address this issue in the Rectangular Strategy Phase 3, the National Strategic Development Plan 2014 – 2018 and the National Population Policy 2016 – 2030. In the beginning of 2018, the RGC put forward the National Aging Policy 2017 – 2030. These policies include plans such as expansion of retirement and pension schemes for workers, place medical professionals trained in geriatrics in every health centre and improve regulations against treating seniors unfavourably.
WHAT ENFORCEMENT/REMEDIES EXIST?
The enforcement mechanism for discrimination cases based on age is not readily available under the current legal instruments. One can only rely on a broad interpretation of Articles 31 and 45 of the Constitution and wordings in Chapter 5 Section 2 of the Criminal Code of Cambodia to bring an age discrimination claim.
WHAT CLAIMS ARE MOST COMMON AND WHAT ARE TRICKIEST ISSUES FOR EMPLOYERS?
Due to the lack of transparency in court cases, it is very difficult to determine how often, if at all, a claim alleging discrimination based on age would be brought before a bench. From our observation, such cases would rarely be brought before a bench as such issue is not actively talked about in the Cambodian society. Furthermore, the opinions and decisions of the Cambodian courts are usually not published or available to the public, and therefore the manner in which age discrimination cases are tried and dealt with is not clear.
ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAW?
Based on Article 271 of the Criminal Code, a few exceptions apply where the discriminatory act:
a. is based on the state of health and its aim is to prevent the risk to physical integrity, incapacity to work or disability;
b. is based on the state of health or disability and the refusal to hire or the termination of employment is based on a medically established incapacity;
c. in hiring is based on gender if the fact of being male or female is the determining factor in the practice of an employment or a profession.
The Labour Law Article 12 stipulates that “Distinctions, rejections, or acceptances based on qualifications required for a specific job shall not be considered as discrimination.”
RETIREMENT AGES
There is no general provision on retirement age. Civil servants shall retire by the age of 55 based on the Law on the Common Statute of Civil Servants. The retirement age may be extended to 60 years by the governing statute of a particular governmental body. The law on National Social Security Fund (“NSSF”) Article 8 (1) stipulated that a member of the NSSF is entitled to receive pension: upon turning 55 years old, is a registered member of NSSF for a minimum of 20 years, and has paid his/her contribution for at least sixty qualifying months for the Social Security Schemes during the period of the last ten years up to the date of the eligibility of the pension.
The law does not specify whether such entitlement is subject to the person having completed his/her wage-paying work. However, in Article 8 (2) and (4), the law considers the loss of a wage-paying job and the completion of a wage-paying job as conditions for to receive the pension.
There is no provision in the law that stipulates expressly the retirement age of employees in the private sector.