Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

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

The Committee notes the observations of the ITUC, received on 21 September 2020, alleging that the December 2019 amendments to the Trade Unions Law failed to bring it in conformity with the Convention and arguing in particular that anti-union discrimination sanctions remain far too low to be dissuasive. The Committee requests the Government to provide its comments in this respect.

Not having received other supplementary information, the Committee reiterates its comments adopted in 2019 and reproduced below.

The Committee notes the observations of the International Trade Union Confederation (ITUC) dated 1 September 2019 referring to matters examined in this comment.

The Committee takes note of the comments of the Government in reply to the 2016 and 2017 ITUC observations. Concerning the allegations of extended use of short-term contracts to terminate employment of trade union leaders and members and weaken active trade unions, the Government states that the Law on Trade Unions (LTU) provides remedies for both dismissal or non-renewal of fixed-term contracts due to anti-union discrimination and, if verified, the labour inspectors instruct the employer to reinstate the workers or impose a substantial fine. The Government adds that, to avoid misinterpretation of legal provisions concerning fixed-term contracts, the Ministry of Labour and Vocational Training (MLVT) conducted consultations with the social partners and other actors, such as the Arbitration Council, and that a common understanding was reached that the maximum duration of fixed-term contracts would be four years and, if exceeding this maximum period, the contract would be considered as having unfixed duration. This was reflected in an Instruction on determination of the type of employment contract, issued by the MLVT on 17 May 2019. While taking due note of the information provided, the Committee requests the Government to ensure that all measures are taken to monitor, in consultation with the social partners, that fixed-term contracts are not used for anti-union purposes, including through their non-renewal, and to continue to provide information in this respect.

Articles 1 and 3 of the Convention. Adequate protection against anti-union discrimination. For many years, several workers’ organizations, in particular the ITUC – including in its most recent observations, have been denouncing serious and numerous acts of anti-union discrimination in the country. The Committee notes that the Government indicates in this regard that the MLVT: (i) issued an administrative letter on 31 May 2019 to all employers and their associations to ensure strict and effective implementation of the provisions relating to anti union discrimination; (ii) invited employers’ representatives from 50 companies to disseminate information on the special protections against anti-union discrimination; and (iii) met with the representative of the Cambodia Labour Confederation (CLC) on two different occasions (13 June and 18 July 2019) to follow-up on its 44 cases before the courts (the Government informs that 11 of these were resolved with acquittal of charges and that the MVLT is working closely with the Ministry of Justice to review the remaining cases). While welcoming the steps undertaken for the effective implementation of the protections against anti-union discrimination, the Committee observes that, other than the reference to two meetings with the CLC, it has not received more detailed information on the numerous and grave allegations of anti-union discrimination laid out in previous observations of workers’ organizations. The Committee requests the Government to provide detailed information on the handling of the allegations of anti-union discrimination laid out in the observations of the ITUC in 2014, 2016 and 2019, and recalls the need to take all necessary measures to ensure that anti-union discrimination allegations are investigated by independent organs that enjoy the confidence of the parties and that, whenever such allegations are verified, adequate remedies and sufficiently dissuasive sanctions are applied.

Furthermore, in its previous comments, the Committee urged the Government to ensure that national legislation provided adequate protection against all acts of anti-union discrimination, such as dismissals and other prejudicial acts against trade union leaders and members, including sufficiently dissuasive sanctions. The Committee had taken note, in this respect, of the ITUC’s observations that penalties provided for under the LTU for anti-union practices by employers were too low (a maximum of 5 million Cambodian riels (KHR), equivalent to US$1,250) and may not be sufficiently dissuasive. The Committee was of the view that fines for unfair labour practices provided for in the LTU may be a deterrent for small and medium-sized enterprises, but would not appear to be so for high-productivity and large enterprise cases. The Committee had thus invited the Government to assess, in consultation with the social partners, the dissuasive nature of sanctions in the LTU or any other relevant laws. The Committee notes that the Government replies by affirming that the existing legal mechanisms set out adequate protection against anti-union discrimination. The Government indicates that: (i) in addition to the application of the provisions and remedies in the LTU concerning anti-union discrimination (Chapter 15), the LTU itself acknowledges (section 95) that other criminal laws may be applied to punish these actions (violence and discrimination against worker unions being criminal offences under sections 217 and 267 of the Penal Code) and that the employer could thus even face imprisonment, for example if the actions entailed violence; (ii) in addition to the fines imposed by the LTU, those affected can also claim compensation; (iii) the MLVT has never received complaints or grievances from trade unionists regarding existing sanctions; and (iv) the Government is committed to further strengthening the capacity of labour inspectors and raising the awareness of workers on their rights. The Committee observes, on the other hand, that, while several consultation meetings were held on the review and amendment of the LTU, the Government does not indicate that, as recommended by the Committee, these tripartite fora were used to assess the effective and dissuasive nature of the protections against anti-union discrimination. Moreover, the Committee notes that the ITUC observations, in addition to the concrete cases noted above, denounce in general a lack of action and adequate protection against rampant anti-union discrimination. The Committee requests the Government to provide detailed statistical information on the application of the different mechanisms to protect against anti-union discrimination, including as to sanctions and other remedies effectively imposed, for example reinstatement or compensation. The Committee further requests the Government to assess, in light of such data, and in consultation with the social partners, the appropriateness of existing remedies, in particular the dissuasive nature of sanctions; and to provide information on any development in this regard.

Article 4. Recognition of trade unions for purposes of collective bargaining. In its previous observation, noting that the Government’s statement that by lowering the most representative organisation threshold to 30 per cent, the law encouraged the increase of collective agreements, the Committee had invited the Government to assess the impact of the implementation of the LTU by providing statistics on: (a) the number of representative organizations identified based on their having secured at least 30 per cent of workers’ support without an election, and the number of collective agreements concluded by these representative organizations; and (b) the number of separate elections organized based on no union having secured 30 per cent support, and the number of collective agreements concluded by the organizations so elected. The Committee notes that the Government provides the following information: (i) the number of representative organizations having secured at least 30 per cent of workers’ support without election were four unions in 2018 (all in the garment sector, covering 3,226 workers) and 15 unions in 2019 (11 in the garment sector, covering 11,070 workers and four in the hotel sector, covering 890 workers); and (ii) the number of collective bargaining agreements concluded in 2018 and 2019 was seven (in 2018, four collective bargaining agreements were concluded between the employer and the shop steward; and, in 2019, three collective bargaining agreements between the employer and a most representative status union). The Government indicates that the information concerning point (b) above will be provided in its next report. The Committee further observes that the March 2017 direct contacts mission (DCM) recommended the Government to take the necessary measures, including issuing instructions to the competent authorities, to ensure that most representative status are recognized without delay and without the exercise of arbitrary discretion to workers’ organizations or coalitions of organizations meeting the minimum threshold. In this respect, while noting that the Government indicates that it issued an Instruction on the Facilitation for the Most Representative Status Certification and that one of the objectives of the amendments to the LTU is to facilitate the requirements to obtain most representative status, the Committee observes that the number of organizations having secured at least 30 per cent of workers’ support without election, as well as the number of collective bargaining agreements concluded, for 2018 and 2019, were very low. The Committee requests the Government to keep on providing information on the number of organizations recognized as having the most representative status, and the number of collective agreements in force, indicating the parties that concluded the agreement (in particular, if a most representative union, a bargaining council or a shop steward), the sectors concerned and the number of workers covered by these agreements; as well as information on any additional measures undertaken to address the issues noted by the DCM concerning the recognition of most representative status organizations, and to promote the full development and utilization of collective bargaining under the Convention.

Articles 4, 5 and 6. Right to collective bargaining of public servants not engaged in the administration of the State. In its previous comments the Committee had urged the Government to take the necessary measures, in consultation with the social partners, to ensure that public servants not engaged in the administration of the State, including teachers, who are governed by the Law on the Common Statute of Civil Servants and the Law on Education with regard to their right to organize, enjoy collective bargaining rights under the Convention. The Committee notes that, in its reply, the Government indicates that civil servants, including teachers, can form associations in accordance with the Law on Associations and Non-Governmental Organizations (LANGO), but does not provide any information on measures to ensure that public servants not engaged in the administration of the State can exercise the right to collective bargaining. Regretting the lack of progress in this respect, the Committee urges once again the Government to take the necessary measures, in consultation with the social partners, to ensure that public servants not engaged in the administration of the State, including teachers, enjoy collective bargaining rights under the Convention. The Committee requests the Government to report on any measures taken or envisaged in this regard and recalls that it may avail itself of the technical assistance of the Office.