Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Cambodia (Ratification: 1999)

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC), dated 4 and 31 August 2011, and by the Cambodian Labour Confederation (CLC) and Education International (EI), in two communications both dated 31 August 2011. The Committee notes that these comments refer to serious acts of violence and harassment against trade union leaders and members and other violations of the Convention, as well as concerns over the increase in use of fixed duration contracts which could undermine the enjoyment of freedom of association and collective bargaining rights. The Committee urges the Government to send its observations on all the issues raised by the ITUC, the CLC and EI, as well as on the 2010 comments by the ITUC and the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC).

In addition, the Committee notes the conclusions and recommendations of the Committee on Freedom of Association concerning the murders of trade union leaders Chea Vichea, Ros Sovannareth and Hy Vuthy and the continuing repression of unionists (Case No. 2318). As regards the impunity prevailing in these three murders, the Committee noted, in its previous observation, that the convictions of Sok Sam Oeun and Born Samnang for the murder of Chea Vichea had been remanded to the Appeal Court by the Supreme Court and that they had been released on bail; that Thach Saveth who had been convicted for the murder of Ros Sovannareth had been awaiting a review of his conviction by the Supreme Court for several years; and that no information had been provided in relation to the murder of Hy Vuthy. The Committee notes the information provided by the Government in its report, according to which: (1) an investigation was being conducted in the case of the murder of Chea Vichea, following which the case would be sent to the Appeal Court for re-processing; (2) the Supreme Court ordered on 2 March 2011 the provisional release of Thach Saveth on bail; and (3) the case of the murder of Hy Vuthy has been sent to the prosecutor of Phnom Penh Municipal Court on 2 September 2010 for processing. The Committee expresses the firm hope that the reopening of these three cases by the judiciary will allow full and independent investigations into the murders of the abovementioned Cambodian trade union leaders to be conducted so as to bring to justice the actual murderers and perpetrators of these heinous crimes as well as the instigators. Recalling its previous comments and the conclusions of the Committee on Freedom of Association concerning the total absence of due process in relation to the trials of Sok Sam Oeun, Born Samnang and Thach Saveth, the Committee requests the Government to provide information of any steps taken to compensate them for damages.

Finally, the Committee takes note of the discussions on Cambodia in the Conference Committee on the Application of Standards (June 2011). It notes in particular that the Conference Committee urged the Government to: (1) adopt without delay the proposed law on the status of judges and prosecutors and the law on the organization and functioning of the courts and ensure their full implementation; (2) provide information on the progress made in this regard, as well as in respect of the creation of labour courts; (3) intensify its efforts, in full consultation with the social partners and with the assistance of the ILO, to ensure that the final draft legislation on trade unions would be fully in conformity with the Convention; and (4) transmit the draft texts to the Committee of Experts so that it would be in a position to comment as to their conformity with the Convention.

Trade union rights and civil liberties. In its previous observations, the Committee urged the Government to take all the necessary measures to ensure that the trade union rights of workers were fully respected and that trade unionists were able to engage in their activities in a climate free of intimidation and risk. The Committee takes note of the comments made by the ITUC and the CLC, concerning serious acts of violence and harassment against trade union leaders and members, such as a violent attack against the president of the FTUWKC or the arrest of another union leader, as well as of the discussion during the Conference Committee, regarding the persistent climate of violence and intimidation towards union members. The Committee is bound to recall, once again, that freedom of association can only be exercised in a climate that is free from violence, pressure or threats of any kind against leaders and members of workers’ organizations and that detention of trade unionists for reasons connected with their activities in defence of the interests of workers, constitutes a serious interference with civil liberties in general and with trade union rights in particular. The Committee further recalls that workers have the right to participate in peaceful demonstrations to defend their occupational interests. In light of the above, the Committee once again urges the Government to take all the necessary measures, in the very near future, to ensure that trade union rights of workers are fully respected and that trade unionists are able to engage in their activities in a climate free of intimidation and risk to their personal security and their lives as well as that of their families, in accordance with the abovementioned principles.

Independence of the judiciary. In its previous observations, the Committee, noting the conclusions of the ILO direct contacts mission of April 2008, referring to serious problems of capacity and lack of independence of the judiciary, requested the Government to take concrete and tangible steps, as a matter of urgency, to ensure the independence and effectiveness of the judicial system, including capacity-building measures and the institution of safeguards against corruption. The Committee notes that the Government indicates in its report that an anti-corruption law was adopted together with a five year strategic plan (2011–15) and that an anti-corruption institution has been established. The Committee requests the Government to provide information on the composition and mandate of the anti-corruption institution and on its activities, together with a copy of the law, the strategic plan and any other relevant document.

With regard to the proposed laws on the Status of Judges and Prosecutors and on the Organization and Functioning of the Courts, in the absence of any further information, the Committee requests the Government to indicate whether these laws have been adopted. If this is the case, it reiterates its request to the Government to provide a copy of these laws. If not, it urges the Government to adopt them without delay.

Furthermore, in the absence of any further information on the creation of labour courts, the Committee is bound to reiterate its request to the Government to provide information on the progress made in this regard.

The draft Trade Union Law. In its previous observation, the Committee noted that the Government indicated that it was working with the cooperation of the ILO on a draft Trade Union Law. The Committee notes that the ITUC, the CLC and EI, in their 2011 comments, express concerns over a number of provisions of the draft Trade Union Law, in particular in relation to the scope of application of the law, the requirements for a local union to be registered, the possibility for the Ministry of Labour to suspend the registration of a union, the qualifications imposed for trade union leadership, and the sanctions on trade union leaders and members for the commission of unfair labour practices. Moreover, the CLC indicates that in the course of the drafting process the Government only took into consideration comments from the employers’ organizations. EI further indicates that the Cambodian Independent Teachers’ Association had not been consulted. The Committee also notes that the Conference Committee trusted that the new legislation would ensure, in particular, that civil servants, teachers, air and maritime transport workers, judges and domestic workers are fully guaranteed the rights under the Convention. The Committee has also been informed that a draft of the Trade Union Law has been sent to the Office and that the Government has benefited from the Office’s assistance on the draft law. The Committee requests the Government to ensure that full consultation with the social partners on the draft Trade Union Law take place. Furthermore, the Committee expresses the firm hope that the final draft legislation on trade unions will take into account all its comments and in particular that civil servants, teachers, air and maritime transport workers, judges and domestic workers will be fully guaranteed the rights under the Convention. It requests the Government to provide information on the adoption of the Trade Union Law.

The Committee is raising other points in a request addressed directly to the Government.