Interim Report - Report No 374, March 2015

Case No 2655 (Cambodia) - Complaint date: 16-JUN-08 - Closed

Allegations: Unfair dismissals, acts of anti union discrimination and the refusal to negotiate with the trade union concerned by restoration authorities: the Authority for the Protection and Management of Angkor and the Region of Siem Reap (APSARA), the Japan–APSARA Safeguarding Angkor Authority (JASA), and the Angkor Golf Resort

1. 129. The Committee has already examined the substance of this case on five occasions, most recently at its March 2014 meeting where it issued an interim report, approved by the Governing Body at its 320th Session [see 371st Report, paras 213–221].
2. 130. As the Government has not replied, the Committee has been obliged to adjourn its examination of this case on several occasions. At its October–November 2014 meeting [see 373rd Report, para. 6], the Committee made an urgent appeal to the Government indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of the case at its next meeting, even if the observations or information requested had not been received in due time. To date, the Government has not sent any information.
3. 131. 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). It has not ratified the Workers’ Representatives Convention, 1971 (No. 135).

A. Previous examination of the case

1. 132. In its previous examination of the case, regretting the fact that, despite the time that had elapsed, the Government had not provided any observation, the Committee made the following recommendations [see 371st Report, para. 221]:
   • (a) The Committee deeply regrets that the Government has not provided the information requested, or adopted the measures requested, and urges the Government to be more cooperative in the future and to provide information without delay on the measures taken to implement the Committee’s recommendations.
   • (b) The Committee urges the Government and the complainant to provide information on the implementation of the Arbitration Council’s award (No. 175/09-APSARA), issued on 5 February 2010, in relation to the dispute involving the APSARA authority, as well as on any appeal that may have been made to the courts by the workers in relation to the JASA arbitration decision (No. 177/09-JASA) of 22 January 2010.
   • (c) The Committee once again recalls that acts calculated to make the employment of a worker subject to the condition that he or she not join a union, or shall relinquish their trade union membership, constitutes a violation of Article 1 of Convention No. 98, and strongly urges the Government to ensure that any infringement found in this respect will be sufficiently and appropriately sanctioned.
   • (d) As to the elections in the JASA union, the Committee once again urges the Government to take the necessary measures, including the issuance of appropriate on-site instructions, to ensure that the union may elect its representatives in full freedom, and that the workers may participate in these elections free from fear of dismissal or reprisal of any kind, and to indicate the steps taken in this regard and to inform it as to when the elections of the union officers were held.
   • (e) Furthermore, the Committee strongly urges the Government to take the necessary measures to ensure that both the APSARA and the Angkor Golf Resort engage in good faith negotiations with their respective unions, and to keep it informed in this regard.
   • (f) Finally, the Committee strongly urges the Government to take steps without delay to adopt an appropriate legislative framework to ensure that workers enjoy effective protection against acts of anti-union discrimination, including through the provision of sufficiently dissuasive sanctions and rapid, final and binding determinations. The Committee once again invites the Government to further avail itself of the technical assistance of the Office in this respect.
   • (g) The Committee firmly urges the Government to provide information without delay on the measures taken to implement these recommendations and, given that the allegations refer to enterprises, to solicit information from the employers’ organization concerned with a view to having at its disposal the organization’s views, as well as those of the enterprise concerned on the questions at issue. The Committee further invites the Government to accept an ILO technical assistance mission to facilitate the resolution of the pending matters in this case.

B. The Committee’s conclusions

1. 133. The Committee deeply deplores that, despite the time that has passed since the last examination of the case, the Government has not provided the information requested, despite being invited to do so, including by means of an urgent appeal. The Committee urges the Government to be more cooperative in the future. The Committee reminds the Government of the possibility to avail itself of the technical assistance of the Office.
2. 134. Under these circumstances, and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee finds itself obliged to present a report on the substance of the case without the benefit of the information which it had expected to receive from the Government.
3. 135. The Committee once again reminds the Government 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 [see the Committee’s First Report, para. 31].
4. 136. The Committee deeply regrets that this is the fifth time in succession it has been obliged to consider this case in the absence of any response from the Government despite the seriousness of the alleged acts (acts of anti-union discrimination at three workplaces, including dismissals of trade union leaders and activists).
5. 137. The Committee underlines the considerable length of time that has elapsed since the dismissals of the workers concerned – respectively, in February 2005 (as to the dispute involving the Japan–APSARA Safeguarding Angkor Authority (JASA)), December 2006 (as regards the dispute involving the Authority for the Protection and Management of Angkor and the Region of Siem Reap (APSARA)) and April 2007 (as to the Angkor Golf Resort). The Committee further observes the length of time that has elapsed since the Department of Labour Dispute and Siem Reap Provincial Department of Labour and Vocational Training had submitted the disputes involving the APSARA authority and the JASA organization, as well as the case concerning the Angkor Golf Resort, to the Arbitration Council (respectively on 22 December 2009 and 11 January 2010).
6. 138. The Committee recalls that in March 2012 it had noted the Arbitration Council’s award (No. 175/09-APSARA), issued on 5 February 2010, in relation to the dispute involving the APSARA authority, as well as arbitration decision (No. 177/09-JASA) of 22 January 2010 in relation to the JASA authority. The Committee noted in particular that the Arbitration Council ordered the APSARA authority to reinstate three workers it had dismissed, while in relation to the JASA case, the Council rejected the workers demand for re-employment. Since March 2012, the Committee has been requesting the Government and the complainant to provide information on the implementation of the Arbitration Council’s award in relation to the APSARA authority, and on any appeal lodged by the workers in relation to the JASA arbitration decision. In March 2014, the Committee acknowledged that the parties reached an agreement with respect to the Angkor Golf Resort’s case.
7. 139. The Committee further notes that during the discussion on the implementation by Cambodia of Convention No. 87 before the Committee on the Application of Standards (CAS) of the International Labour Conference in May–June 2014, the Government had indicated that representatives of the Building and Wood Workers Trade Union of Cambodia (BWTUC) – affiliated to the BWI – met with the Ministry of Labour and Vocational Training twice in 2014 and requested more time to review the allegations.
8. 140. Taking into account the absence of a reply from either the Government or the complainant in respect of its previous requests for information, the Committee once again reiterates its previous recommendations and requests both the Government and the complainant to keep it informed of any developments relating to the pending matters.

The Committee’s recommendations

1. 141. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee deeply deplores that, despite the time that has passed since the last examination of the case, the Government has not provided the information requested, despite being invited to do so, including by means of an urgent appeal. The Committee urges the Government to be more cooperative in the future. The Committee reminds the Government of the possibility to avail itself of the technical assistance of the Office.
   • (b) In light of the continuing failure of the Government to provide the information requested by the Committee in the present case, the Committee invites the Government, by virtue of its authority as set out in paragraph 69 of the Procedures for the examination of complaints alleging violations of freedom of association, to come before the Committee at its next session in May 2015 so that it may obtain detailed information on the steps taken by the Government in relation to the pending matters.
   • (c) The Committee urges the Government and the complainant to provide information on the implementation of the Arbitration Council’s award (No. 175/09-APSARA), issued on 5 February 2010, in relation to the dispute involving the APSARA authority.
   • (d) The Committee urges the Government to take the necessary measures to ensure that both the APSARA and the Angkor Golf Resort engage in good faith negotiations with their respective unions, and to keep it informed in this regard.
   • (e) Given that the allegations in this case refer to enterprises, the Committee urges the Government to solicit information from the employers’ organization concerned with a view to having at its disposal the organization’s views, as well as those of the enterprise concerned on the questions at issue.
   • (f) Taking into account the absence of a reply from either the Government or the complainant in respect of its previous requests for information, the Committee once again reiterates its previous recommendations and requests both the Government and the complainant to keep it informed of any developments relating to the pending matters.