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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Cambodia (Ratification: 1999)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) dated 4 and 31 August 2011, which refer, in particular, to serious and numerous acts of anti-union discrimination and interference. The Committee further notes the comments made by the Cambodian Labour Confederation (CLC) on 31 August 2011, indicating, in particular, that independent trade unions face many risks such as discrimination, and mostly dismissals, and that employers create “yellow unions” to interfere with the independent unions activities. Lastly, the Committee notes the comments made by Education International (EI) on 31 August 2011, indicating that teachers and civil servants were denied both the right to freedom of association and the right to collective bargaining. The Committee urges the Government to send its observations on all the issues raised by the ITUC, the CLC and IE.

Articles 1 and 3 of the Convention. Protection against anti-union discrimination. In its previous observation, the Committee had underlined the need to take steps without delay to adopt an appropriate legislative framework in full consultation with the social partners to ensure adequate protection against all acts of anti-union discrimination, dismissals and other prejudicial acts, including by means of sufficiently dissuasive sanctions. The Committee notes that the Government indicates in its report that the Labour Law ensures the rights of unions and that when the Law on Trade Union will be enforced these rights will be further promoted. The Committee also notes that, in their comments, both the ITUC and the CLC report severe cases of anti-union discrimination and anti-union dismissals. Against this backdrop, the Committee urges the Government to ensure, in full consultation with the social partners, that adequate protection against all acts of anti-union discrimination, dismissals and other prejudicial acts, including by means of sufficiently dissuasive sanctions, will be provided for in the Trade Union Law which will be adopted. It requests the Government to provide information on developments in this regard.

Article 4. Recognition of trade unions for purposes of collective bargaining. In its previous observation, the Committee requested the Government to amend section 1 of Prakas No. 13 of 2004, which provides that the Ministry of Social Affairs, Labour, Vocational Training and Youth Rehabilitation may refuse to grant most representative status to a trade union when an objection is put forward from a member of the Labour Advisory Committee, or from enterprises, institutions or a concerned third party. The Committee considered in this respect that permitting the objections of third parties as grounds for refusing a union most representative status ran counter to the principle of promoting collective bargaining expressed in Article 4 of the Convention. The Committee notes that the Government indicates in its report that when the Trade Union Law is promulgated, its provisions will apply in this respect. The Committee also notes that the ITUC, the CLC and the EI, in their 2011 comments, express concerns about a number of provisions of the draft Trade Union Law, in particular in relation to the modalities for designation of the most representative union. The Committee recalls that the determination of the most representative organizations must be based on objective, pre-established and precise criteria so as to avoid any possibility of bias or abuse (see General Survey on freedom of association and collective bargaining, 1994, paragraph 97). The Committee requests the Government to ensure, in the framework of the adoption of the Trade Union Law, that this principle will be upheld, and that the new legislation suppresses the possibility for third parties to put forward objections to the granting of the most representative status to a trade union. The Committee requests the Government to provide information in this regard.

Articles 4 and 6. Right to collective bargaining of public servants. The Committee had previously noted that according to section 1 of the Labour Law, certain categories of workers, which include persons appointed to a temporary or a permanent post in the public service, are not covered by this legislation. On numerous occasions, both the Committee on Freedom of Association (see Case No. 2222, 334th and 356th Reports) and the Committee requested the Government to take the necessary measures to amend the laws pertaining to all public sector workers, so as to ensure the right to collective bargaining for all public servants, with the sole exception of those engaged in the administration of the State. More particularly, the Committee urged the Government to immediately take the necessary measures to amend the Common Statute of Civil Servants so as to guarantee fully the right to collective bargaining. The Committee notes from the information provided by the Government in its report that no progress have been made in this respect. Concerning the application of the Convention in practice, it notes with concern the comments made by the ITUC, the CLC and EI, recalling that civil servants’ associations are not recognized as trade unions and do not enjoy collective bargaining rights. It further notes that the ITUC, the CLC and EI, express concerns about the scope of application of the draft Trade Union Law. The Committee requests the Government to indicate whether the right to collective bargaining of public servants is an issue addressed within the framework of the drafting of the Trade Union Law. If that is the case, it requests the Government to ensure that the final draft legislation on trade unions guarantees the right to collective bargaining for all public servants, including teachers, with the sole exception of those engaged in the administration of the State. If that is not the case, the Committee urges the Government to take the necessary measures to amend the laws pertaining to all public sector workers, and more particularly the Common Statute of Civil Servants, so as to bring them in conformity with the Convention. The Committee requests the Government to provide information regarding any developments in this respect.

Consultations on the draft Trade Union Law. The Committee notes that the CLC indicates in its comments that in the course of the drafting process of the Trade Union Law 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 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. In general, the Committee urges the Government to take the necessary measures to ensure meaningful consultation with the social partners with respect to any labour law reform and to ensure their full and equal participation in all relevant social dialogue forums. Furthermore, the Committee expresses the firm hope that the final draft legislation on trade unions will take into account all its comments. The Committee requests the Government to provide information on these matters and in particular on the adoption of the Trade Union Law.

Application of the Convention in practice. The Committee notes that the Government indicates in its report that 55 collective agreements have been registered and that these agreements are attached to its report. However, the Committee notes that the documents received as attachments to the Government’s report are not collective bargaining agreements. Noting the comments made by the ITUC according to which collective bargaining is rare and difficult, the Committee expresses its concern about this information and reiterates its request to the Government to communicate in its next report statistics on the collective agreements (workers and sectors covered in the different regions, and number of genuine collective agreements).

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