Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

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

The Committee notes the observations submitted by the International Trade Union Confederation (ITUC) received on 1 September 2014, which refer in particular to serious acts of anti-union discrimination, and the observations made by Education International (EI) and its affiliate, the National Educators’ Association for Development (NEAD) received on 10 September 2014, referring to anti-union discrimination and denial of the right to collective bargaining for teachers and civil servants.

Articles 1 and 3 of the Convention. Protection against anti-union discrimination. In its previous observation, the Committee had urged the Government to ensure adequate protection against anti-union discrimination. The Committee notes that the Government refers to provisions in the Labour Law 1997 regulating dismissal for violation of laws and regulations, and requiring the labour inspector’s authorization for dismissal of “shop stewards”. The Committee notes that pursuant to Prakas No. 305 of 22 November 2001 and article 373 of the Labour Law, sanctions for anti-union discrimination include a fine equivalent to 61–90 days of the base daily wage and/or imprisonment for six days to one month. Emphasizing that anti-union discrimination may jeopardize the very existence of trade unions, the Committee once again requests the Government to ensure adequate protection against all acts of anti-union discrimination, dismissal and other prejudicial acts against trade union leaders and members, including sufficiently dissuasive sanctions, and requests the Government to provide information on developments in this regard whether through the forthcoming Trade Union Law or other relevant legislation. The Committee requests the Government to provide its observations on the comments of the NEAD and the ITUC alleging dismissals, threats and discrimination, particularly in the context of increased use of fixed-duration contracts, against public sector and other workers on account of their trade union membership or activities. The Committee further requests the Government to provide information on the number of complaints, the outcome of judicial and administrative proceedings and copies of court judgments.

Article 4. Recognition of trade unions for purposes of collective bargaining. In its previous observation, the Committee had addressed the means of determining representativeness for the purposes of collective bargaining. Noting the Government’s indication that the draft Trade Union Law is expected to be adopted by early 2015, the Committee trusts that the new legislation will respect the principle that representative organizations should be determined on the basis of objective, pre-established and precise criteria, and that third parties are no longer able to object to the granting of most representative status to a trade union. The Committee requests the Government to provide a copy of the law on its adoption.

Articles 4 and 6. Right to collective bargaining of public servants. In its previous observation, the Committee had requested that the Government ensure that public servants not engaged in the administration of the State enjoy the right to collective bargaining. The Committee recalls that a distinction must therefore be drawn between, on the one hand, public servants who by their functions are directly employed in the administration of the State (for example, in some countries, civil servants in government ministries and other comparable bodies, and ancillary staff), who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the government, by public enterprises or by autonomous public institutions, who should benefit from the guarantees provided for in the Convention (General Survey on fundamental Conventions, 2012, paragraph 172). The Committee notes the Government’s indication that the new Trade Union Law will not cover public servants. The Committee encourages the Government to take the necessary steps to ensure that the right to collective bargaining is guaranteed in law and practice to all public servants, including teachers, with the sole exception of those engaged in the administration of the State.

Application of the Convention in practice. In its previous observation, the Committee had requested the Government to provide statistics on collective agreements. The Committee notes that the Government has indicated that collective bargaining has not been highly valued by the parties because of a lack of trust, willingness and sincerity and a lack of workplace cooperation, and provides numbers of collective agreements from 1999 to 2013. The Committee notes however that the Government does not detail the number of workers covered, the time periods to which they relate, or their genuineness in the context of the Committee’s previous concerns. The Committee once again requests the Government to provide the aforementioned information and to take the necessary steps to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and trade unions.

Consultations on the draft Trade Union Law. In its previous observation, the Committee had requested the Government to ensure full consultation with the social partners on the draft Trade Union Law, which it hoped would take into account its comments. The Committee notes that the Government indicates that one of the three workshops on the draft law held in 2014 was tripartite. The Committee emphasizes that the Government should take steps to ensure that meaningful consultation takes place with the social partners with respect to all labour law reform and to ensure their full and equal participation in all relevant social dialogue forums.

The Committee invites the Government to ensure full conformity with the provisions of the Convention, in particular with regard to the questions raised above, and requests it to provide information on steps taken to this end, whether through the forthcoming Trade Union Law or other relevant legislative measures. The Committee reminds the Government that it may avail itself of technical assistance from the Office in this regard.

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