Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

The Committee notes the Government’s response to the concerns expressed by the International Trade Union Confederation (ITUC) in 2011, over the increased use of fixed duration contracts which could undermine the enjoyment of freedom of association and collective bargaining rights. The Government indicates that this longstanding issue has been the subject of tripartite consultations on the basis of draft amendments to the legislation, which had been prepared by the Ministry of Labour and Vocational Training, but that no consensus was reached. It adds that the issue would be the subject of further consultations in the tripartite Labour Advisory Committee in the near future.

The Committee notes with regret that the Government fails to respond to other comments submitted by the ITUC, by the Cambodian Labour Confederation (CLC) and by Education International (EI) in 2011, as well as to the 2010 comments by the ITUC and the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC), which referred in particular to serious acts of violence and harassment against trade union leaders and members. Moreover, the Committee notes with concern the new comments submitted by the ITUC, in a communication dated 31 July 2012, and by EI and the Cambodian Independent Teachers’ Association (CITA), in a communication dated 31 August 2012, which refer again to serious acts of violence and harassment against trade union leaders and members. The Committee urges the Government to send its observations on all the issues raised in 2010, 2011 and 2012, by the ITUC, the CLC, EI and CITA, and the FTUWKC.

The Committee notes the latest conclusions and recommendations of the Committee on Freedom of Association in Case No. 2318, concerning the murders of trade union leaders Chea Vichea, Ros Sovannareth and Hy Vuthy and the continuing repression of unionists, which had to be examined in the absence of a response from the Government, and was considered as an extremely serious and urgent case (365th Report, November 2012, paragraphs 286–290). In its previous comments concerning these murders, the Committee had noted that: (1) 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 they had been released on bail; (2) an investigation was being conducted, before the case of the murder of Chea Vichea would be referred to the Appeal Court for reprocessing; (3) the Supreme Court had ordered on 2 March 2011 the provisional release on bail of Thach Saveth who had been convicted for the murder of Ros Sovannareth and had been awaiting a review of his conviction for several years; and (4) the case of the murder of Hy Vuthy had been sent to the prosecutor of Phnom Penh Municipal Court on 2 September 2010 for processing. In the case of the murder of Chea Vichea, the Appeals Court had announced that there was insufficient evidence to charge the two persons who had served jail sentences, indicated that the charges against them should be dropped and referred the case for further investigation. The Committee had expressed the firm hope that this would 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. Furthermore, in view of the above and the total absence of due process in relation to the trials of Sok Sam Oeun, Born Samnang and Thach Saveth, the Committee had requested the Government to provide information on any steps taken to compensate them for damages. The Committee notes the Government’s indication in its report that the Ministry of Labour and Vocational Training sent a letter to the Ministry of Justice, and that information would be provided upon receipt of the latter’s response. The Committee urges the Government to provide the information previously requested in relation to the compensation to be granted to Sok Sam Oeun, Born Samnang and Thach Saveth.

Trade union rights and civil liberties. In its previous observations, the Committee urged 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. The Committee notes with regret that the Government remains silent on these matters in its report, particularly when the comments made by a number of workers’ organizations allege serious acts of violence and harassment against trade union leaders and members, and the discussion on Cambodia in the Conference Committee on the Application of Standards in June 2011 relates to 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. It 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. The Committee requests the Government to provide information in this regard.

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. In this regard, the Committee recalls that in 2011 the Conference Committee on the Application of Standards 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; and (3) 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. The Committee notes that none of these texts have been received. It once again requests the Government to indicate whether these laws have been adopted, and, if so, to provide a copy of these laws. If this is not the case, the Committee urges the Government to adopt them without delay.

The Committee further requests the Government to provide in its next report information on any progress made concerning the creation of labour courts.

Furthermore, in relation to the Government’s previous indication that an anti-corruption law had been adopted together with a five-year strategic plan (2011–15) and that an anti-corruption unit (ACU) had been established, the Committee notes from the Government’s statement before the ILO Governing Body at its 316th Session that the ACU was established as a part of its commitment to legal and judicial reform in combating impunity, and requests the Government 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.

The draft Trade Union Act. In its previous observation, the Committee noted that the ITUC, the CLC and EI, in their 2011 comments, expressed concerns over a number of provisions of the draft Trade Union Act, 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. The Committee had also noted that the Government had benefited from the Office’s assistance on the draft law. The Committee recalls that in 2011 the Conference Committee on the Application of Standards urged the Government to: (1) 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 (2) transmit the draft text to the Committee of Experts so that it would be in a position to comment as to its conformity with the Convention. The Committee notes the information provided by the Government in its report that many consultations have been conducted on the draft which has been finalized in August 2011 and was sent to the Council of Ministers for review. The Government adds that it hopes that the relevant institutions to which it would be sent afterwards would then review the draft to improve it. The Committee notes that no copy of the final draft legislation on trade unions has been received. It once again requests the Government to provide information on the steps taken towards the adoption of the Trade Union Act, and expresses the firm hope that the social partners will be fully consulted throughout the process, and that the final draft legislation 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 enshrined in the Convention.

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