Report in which the committee requests to be kept informed of development - Report No 338, November 2005

Case No 2374 (Cambodia) - Complaint date: 02-AUG-04 - Closed

Allegations: The complainant alleges anti-union discrimination through the dismissal of striking workers and interference by employers in the establishment of a union at the Raffles hotels in Phnom Penh; and the existence of a non-binding arbitration procedure in relation to such complaints

494. The complaint is contained in a communication dated 2 August 2004 from the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF), on behalf of its affiliated organization in Cambodia, the Cambodian Tourism and Service Workers’ Federation (CTSWF).

1. 495. As a consequence of the lack of a response on the part of the Government, at its June 2005 meeting [see 337th Report, para. 10], the Committee launched an urgent appeal and drew the attention of the Government to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it may present a report on the substance of this case even if the observations or information from the Government in question have not been received in due time. To date, the Government has not sent its observations.
2. 496. Cambodia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 497. In its communication dated 2 August 2004, the complainant stated that following a legal and peaceful strike on 5-10 April 2004, the management of the Raffles hotels in Phnom Penh and Siem Reap had refused to allow striking workers to return to work at the two hotels, and instead had dismissed some 293 workers (97 in Phnom Penh, 196 in Siem Reap) for “serious misconduct”.
2. 498. The complainant explained that although the Tripartite Arbitration Council had found unanimously that the dismissals were illegal, the hotel management had refused to accept the decision, considering that it was “non-binding”. The complainant reported that the Arbitration Council had also found that “within two weeks of improperly dismissing 97 union members, including all of the union leadership, the Raffles Hotel Le Royal had organized an unlawful election of worker delegates and entered into a collective agreement with the group. These actions revealed a clear intent on behalf of the ownership and management of the Hotel Le Royal to bypass the union, which had the sole right to represent workers in the collective bargaining process. In pursuing this strategy, the employer party had shown a flagrant disregard for the right to freedom of association and the right to bargain collectively”.
3. 499. The complainant added that the Raffles general manager had refused to submit documents to the Arbitration Council relating to the alleged election of a new union at the Hotel Raffles Le Royal and collective agreement he had signed with it. During a management raid on the union office at the Raffles Hotel Le Royal, the hotel personnel manager had deliberately torn up and destroyed the government certificate establishing the union as the representative trade union for its employees.
4. 500. According to the complainant, the Cambodian Government did not provide for any effective protection of the fundamental rights of freedom of association and collective bargaining that are guaranteed both in national legislation and by the ILO Conventions if the employer chose not to accept the findings of the Arbitration Council. Management’s mass dismissals and promotion of its controlled “union” and “collective bargaining agreement” violated basic trade union rights and the enforcement of these rights should not be left to non-binding arbitration. The notoriously slow and corrupt municipal courts provided no effective legal recourse, leaving the legitimate union no option but a prolonged strike.
5. 501. The complainant considered that the Ministry of Social Affairs, Labour, Vocational Training and Youth Rehabilitation (MOSALVY), which is charged with the enforcement of Cambodian Labour Law, disregarded its responsibilities under Prakas (ministerial order) No. 305 (“regarding the representativeness of professional organizations of workers at the enterprise or establishment level and the right to collective bargaining for the conclusion of collective agreements at that level”), as this law calls for the protection of union representatives against dismissal (articles 3 and 4) and for the determination of most representative union status and a prohibition on employer interference in union affairs (articles 5 and 6). Moreover, article 280 of the basic Cambodian Labour Law specifically prohibits management interference in union affairs.
6. 502. The complainant further reported that despite the findings of the tripartite Arbitration Council, MOSALVY had not only failed to enforce the law, but the Deputy Director of its Labour Inspection had been quoted in the press that the Ministry supported the “illegal” collective agreements reached with the “management-controlled” unions at both hotels. MOSALVY refused to respond to the request from the CTSWF regarding its position on union recognition status at the hotel and the registration of collective bargaining agreements.

B. The Committee’s conclusions

1. 503. The Committee deeply regrets that, despite the time which has elapsed since the presentation of the complaint, to date the Government has not responded to the allegations made by the complainant, although the Committee has urged it to send its observations or information on the case on several occasions, including through an urgent appeal made at the Committee’s June 2005 meeting. Under these circumstances, in accordance with the procedure established in paragraph 17 of its 127th Report as approved by the Governing Body, the Committee stated that it would present a report on the substance of this case at its next session, even if the observations or information requested had not been received in due time.
2. 504. The Committee recalls that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating, for objective examination, detailed replies concerning allegations made against them.
3. 505. The Committee notes that the allegations in this case concern: acts of anti-union discrimination due to the dismissal of striking workers; interference by the management in the establishment of a union at the Raffles Hotel in Phnom Penh; and the existence of a non-binding arbitration procedure in relation to such complaints.
4. 506. With respect to the dismissal of workers on strike (97 in Phnom Pen, including all of the union leadership, and 196 in Siem Reap), the Committee notes from the allegations that these dismissals occurred following a legal and peaceful strike that took place in April 2004. It must recall that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests and that the dismissal of workers because of a legitimate strike constitutes discrimination in employment [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 475 and 704]. The Committee also notes that Articles 3 and 4 of Prakas (ministerial order) No. 305 (“regarding the representativeness of professional organizations of workers at the enterprise or establishment level and the right to collective bargaining for the conclusion of collective agreements at that level”) require the protection of union representatives against dismissal. The Committee emphasizes that this protection is particularly important since, in order for trade union officials to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions [see Digest, op. cit., para. 724]. Recalling that the basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed, [see Digest, op. cit., para. 739], and in the light of the position taken by the tripartite Arbitration Council established by law which determined that the dismissals were illegal, the Committee urgently requests the Government to ensure in cooperation with the employer that the workers dismissed as a result of their legitimate trade union activities are reinstated without loss of wages and without delay or, if it is found by an independent judicial body that reinstatement in one form or another is not possible, that they are paid adequate compensation along with penalties against the employer in conformity with applicable national legislation, which would represent sufficiently dissuasive sanctions for such anti-trade union actions. The Committee requests the Government to keep it informed of any developments in this regard.
5. 507. Concerning the question of alleged interference by management in the establishment of a union at the Raffles Hotel in Phnom Penh, the Committee notes from the information provided by the complainant that the Arbitration Council found that within two weeks of dismissing 97 union members, including all of the union leadership, the Raffles Hotel Le Royal organized an unlawful election of worker delegates and entered into a collective agreement with them. According to the Arbitration Council, these actions revealed a clear intent on behalf of the ownership and management of the Hotel Le Royal to bypass the union; in pursuing this strategy the employer party had shown a flagrant disregard for the right to freedom of association and the right to bargain collectively.
6. 508. The Committee notes from the complainant’s allegations that the Raffles general manager allegedly refused to submit documents to the Arbitration Council relating to the election of a new union at the Hotel Raffles Le Royal and the collective agreement he had signed with it and that during a management raid on the union office at the Raffles Hotel Le Royal, the hotel’s personnel manager deliberately tore up and destroyed the government certificate establishing the CTSWF as the representative trade union for its employees. The Committee also notes the allegations that the MOSALVY supported the new trade union to the detriment of the CTSWF.
7. 509. The Committee recalls that Article 2 of Convention No. 98 establishes the total independence of workers’ organizations from employers in exercising their activities and that these organizations should enjoy adequate protection against any acts of interference by employers in their establishment, functioning or administration [see Digest, op. cit., para. 759]. In this connection it observes that articles 5 and 6 of Prakas No. 305 (“regarding the representativeness of professional organizations of workers at the enterprise or establishment level and the right to collective bargaining for the conclusion of collective agreements at that level”) provide for the determination of most representative union status and a prohibition on interference by employers in union affairs, and that article 280 of the Labour Code specifically prohibits management interference in union affairs. The Committee recalls once again that the basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed [see Digest, op. cit., para. 739). With respect to the alleged support of MOSALVY for the new trade union, the Committee has considered on many occasions that the attitude of public authorities that consists in favouring or discriminating against one or more trade union organizations, for instance by means of public statements or by refusing to recognize the leaders of certain organizations in the performance of their legitimate activities, jeopardizes the right of workers set out in Convention No. 87, Article 2, to establish and join organizations of their own choosing [see Digest, op. cit., para. 306]. In view of the foregoing, and emphasizing that, in accordance with the principles of freedom of association, both the government authorities and employers should refrain from any discrimination between trade union organizations [see Digest, op. cit., para. 307], the Committee urges the Government to take all necessary measures, in conformity with the conclusions drawn by the tripartite Arbitration Council, to put an end to the acts of anti-union discrimination and interference in this case. The Committee requests to be kept informed in this respect.
8. 510. Finally, with respect to the allegations that the enforcement of trade union rights was left to non-binding arbitration, the Committee notes that, according to the allegations, the employer is reported to have refused to accept the Arbitration Council’s decision. The Committee recalls the need to ensure by specific provisions accompanied by civil remedies and penal sanctions the protection of workers against acts of anti-union discrimination at the hands of employers. The Committee also emphasizes that no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and that it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest, op. cit., paras. 746-748]. The Committee considers that the protection of workers’ trade union rights needs to be accompanied by efficient and enforceable procedures and requests the Government to ensure that all workers who suffer acts of anti-union discrimination have access to procedures which lead to final and binding decisions. In the present case, the Committee requests the Government to take the necessary steps urgently to ensure that the rights of the workers and union leaders concerned are effectively protected.

The Committee's recommendations

1. 511. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee deeply regrets that the Government has not replied to the allegations despite the fact that it was invited to do so on several occasions, including by means of an urgent appeal, and urges it to reply promptly.
   • (b) The Committee urgently requests the Government to ensure in cooperation with the employer that the workers dismissed as a result of their legitimate trade union activities are reinstated without loss of wages and without delay or, if it is found by an independent judicial body that reinstatement in one form or another is not possible, that they are paid adequate compensation along with penalties against the employer in conformity with applicable national legislation, which would represent sufficiently dissuasive sanctions for such anti-trade union actions. The Committee requests the Government to keep it informed of any development in this regard.
   • (c) Concerning the question of alleged interference by management in the establishment of a union at the Raffles Hotel in Phnom Penh, the Committee urges the Government to take all necessary measures so as to put an end to any acts of anti-union discrimination and interference in this case. The Committee requests to be kept informed in this respect.
   • (d) With respect to the allegations that the enforcement of trade union rights were left to non-binding arbitration, the Committee considers that the protection of workers’ trade union rights needs to be accompanied by efficient and enforceable procedures and requests the Government to ensure that all workers who suffer acts of anti-union discrimination have access to procedures which lead to final and binding decisions. In the present case, the Committee requests the Government to take the necessary steps urgently to ensure that the rights of the workers and union leaders concerned are effectively protected.