A common concern among investors is the difficulty they may encounter in employing
foreign workers. This issue can only be answered by looking at several different
laws.
The Labor Law, passed and signed into effect by the National Assembly on August 11,1992
is quite specific about the employment of foreigners.
Any foreigner working for a business must have a labor card and a labor book issued
by the Ministry of Labor, must have entered Cambodia legally and hold a valid passport,
be a legal resident of Cambodia with no criminal record, must have the necessary
physical qualifications for the occupation, and not be suffering from a communicable
disease. The employer must have legal labor cards for their enterprises.
Enterprises are mandated to give priority to Cambodian nationals for employment purposes
and a March 16,1995 decree states that foreign office employees cannot represent
more than three percent of the total number of employees in a branch, specialists
cannot be more than six percent and non-specialists cannot be more than one percent.
If an enterprise will exceed these percentages, it must obtain permission from the
Ministry of Labor in advance of doing so.
Permanent resident foreigners are also addressed in the Immigration Law, enacted
by the National Assembly on August 26, 1994. Under this law, permanently resident
foreigners must: have qualifications relevant to various specialized fields, deposit
sufficient money to guarantee return passage and living expenses while in Cambodia,
have the requisite physical qualifications for their field with a medical certificate
and written employment contract, have a clearance certificate from their home country,
and meet all conditions of national security. The permit to stay granted under these
provisions is two years, although a visit to the Ministry of Interior confirmed that
these visas are normally issued for one year, renewable annually.
For those investors with companies registered solely with the Ministry of Commerce,
foreign employees receive a one year residency permit upon presenting to the Department
of Foreigners, Ministry of Interior, documentary proof that the company is registered
with the Ministry of Commerce and proof of the Ministry's authorizing the company
to do business.
For permanent resident foreigners working for private investors that have received
an investment permit from the Council for the Development of Cambodia, the employee
and his/her family may stay in Cambodia permanently or for the time specified in
the investment permit. A sub-decree to define the procedural enforcement of this
provision has not yet been promulgated and, in practice, the procedure is the same
as for those companies doing business only under the aegis of the Ministry of Commerce.
In the Foreign Investment Law, enacted August 4,1994, one investment incentive available
to investors is the ability to bring in foreign nationals who are management personnel
and experts, technical personnel, skilled workers and their families. Under the Foreign
Investment Law investors can hire foreigners in compliance with the immigration and
labor laws. This does not clearly supersede the Ministry of Labor's Decree regarding
percentages but does offer some flexibility since the Foreign Investment Law also
states that foreigners can be hired provided that their qualifications and expertise
are not available in Cambodia.
Documents and resumes to support this contention may be required. Given the dearth
of highly educated and experienced Cambodians, this proviso does allow investors
the ability to bring in a relatively large number of foreign employees.
However, investors are required to provide adequate and consistent training to their
Cambodian employees and must promote Cambodian employees over time to senior positions.
Finally, some investors are interested in foreign employees who may want to establish
Cambodian citizenship, especially as only Cambodian citizens are allowed to own land.
However, in the absence of a law on naturalization, it is not yet possible to determine
what the requirements will be to establish Cambodian citizenship.
A draft naturalization law provides for citizenship only if: the applicant has a
good attitude and ethics; has never been convicted of a crime; has been living in
Cambodia for five years under proper immigration procedures and is living in Cambodia
at the time of seeking naturalization; speaks and writes Khmer and can live harmoniously
in Khmer culture; and does not have physical or mental disabilities that would cause
a danger or become a burden to Cambodia. In the same draft law, the five year residency
requirement could be shortened to two years for a foreigner born in Cambodia or one
awarded a Cambodian Development Council investment license with a capital of at least
$500,000.
Since this draft law has not yet been acted upon, and there is no reliable way to
know when it will be enacted and what its final form will be, it is currently impossible
to predict what the naturalization requirements will be.
- (Roberta Thami is an attorney associated with Dirksen, Flipse, Doran &
Le, an international law firm with regional offices in Vientiane, Phnom Penh and
Ho Chi Minh City.)
