Report in which the committee requests to be kept informed of development - Report No 376, October 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. 225. The Committee has already examined the substance of this case on numerous occasions, most recently at its March 2015 meeting where it issued an interim report, approved by the Governing Body at its 323rd Session [see 374th Report, paras 129–141].
2. 226. The Committee, 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, invited the Government to come before it to provide information on the steps taken in relation to the pending matters. The Government provided information in a written communication dated 22 May 2015 and made an oral presentation before the Committee during its May 2015 session.
3. 227. 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. 228. In its previous examination of the case, the Committee made the following recommendations [see 374th Report, para. 141]:
   • (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.

B. The Government’s reply

1. 229. In its communication dated 22 May 2015, the Government indicated, in relation to the dispute involving the Authority for the Protection and Management of Angkor and the Region of Siem Reap (APSARA), that the case concerned the termination of three union leaders – namely Mr Breng Barn, Mr Yarn Nol and Mr Nhib Sokum – who claimed that the termination of their employment contracts was due to union discrimination. The Government further indicated that it was a collective labour dispute, under article 302 of the Cambodian Labour Law, which should be settled according to the procedure provided for by Chapter XII, section 2 of this Law, Prakas No. 317 MoSALVY dated 29 November 2001 on the Collective Labour Dispute Resolution and Prakas No. 099 MoSALVY dated 21 April 2004 on the Arbitration Council.
2. 230. While explaining that this case had gone through due process at the enterprise, ministerial and at the Arbitration Council level according to the labour dispute settlement procedure, the Government also specified that the parties opted for a non-binding award procedure, which allows any party who is dissatisfied with the arbitral decision reached by the Arbitration Council to lodge an objection with the Ministry of Labour and Vocational Training within eight days from the day the award is issued in order to invalidate it. According to the Government, following the Arbitration Council’s award (No. 175/09-APSARA) issued on 5 February 2010, the award was objected to by the employer’s side. As a result, the other party – the workers’ side – had to consider either to send the case to court for judgment or to go on strike. However, the Government stated that in this case none of these two alternative actions has been taken by the workers’ side so far.
3. 231. The Government further indicated that the Ministry of Labour and Vocational Training strongly encouraged the workers, through Letter No. 1111 MLVT dated 26 June 2014, to exercise their right to send the case to court. The Government explained that, under the circumstances exposed, it could not do anything more about the case.
4. 232. In relation to the dispute involving the Japan–APSARA Safeguarding Angkor (JASA) Authority, the Government indicated that, according to the facts provided in the arbitral award, the 42 workers involved in the dispute were those who used to work for the Japanese Government Team for Safeguarding Angkor (JSA) – a project established by the Japanese Government with funding from UNESCO and the Japanese Government for the purpose of maintaining and safeguarding the Angkor temple. These workers were employed by JSA on the project basis. In February 2005, the JSA terminated the contracts of all workers because the project ended. According to the Government, the workers were properly provided with termination benefits according to the Cambodian Labour Law.
5. 233. The Government further indicated that in early 2006, another project was launched by the Royal Government of Cambodia through the APSARA authority in collaboration with the Japanese Government. Being due to end in 2010, this new project was implemented by a new organization named the Japan–APSARA Safeguarding Angkor Authority. The Government explained that since JASA was a completely new organization which did not have anything to do with the JSA, JASA had the right under the Labour Law to recruit any worker so long as the decision was made without any discrimination.
6. 234. In respect of the implementation of the arbitral award concerning this case (No.177/09-JASA) which had rejected the claim for re-employment of the 42 workers, the Government merely indicated that the Authority has ceased to exist since the end of the project in 2010.
7. 235. Finally, with respect of the Angkor Golf Resort’s case, the Government indicated that, according to Letter No. 1224 mkb dated 21 December 2009 from the Siem Reap Provincial Labour Department to the Secretary of State of the Ministry of Labour and Vocational Training reporting on the conciliation of the labour dispute at the Angkor Golf Resort, after receiving the complaint from the workers the Provincial Labour Department had tried to conciliate the dispute on several occasions, without any success. The case was then submitted to the Ministry of Labour and Vocational Training on 21 December 2009 for further action. The case was referred to the Arbitration Council by the Minister of Labour and Vocational Training according to the labour dispute settlement procedure.
8. 236. However, according to the Government, while it was under the arbitral proceedings, on behalf of the Building and Wood Workers Trade Union of Angkor Golf Resort, the Building and Wood Workers Trade Union Federation of Cambodia (BWTUC) wrote a letter dated 19 January 2010 to the Arbitration Council to withdraw the complaint and ask the Council to close the case. The request was accepted by the Arbitration Council.

C. The Committee’s conclusions

1. 237. The Committee recalls that it has been considering this case which concerns acts of anti-union discrimination at three workplaces, including dismissals of trade union leaders and activists, on several occasions due to the absence of reply from the Government for some years. This situation has led the Committee to have recourse to paragraph 69 of its procedure and invite the Government to come before it to expose the steps taken regarding the long-standing matters for which the Government had not been providing the information requested.
2. 238. While regretting that it had to decide to apply a measure of special nature to obtain information from the Government on the present case, the Committee welcomes the constructive engagement of the Cambodian Government which provided a written communication and made an oral presentation. The Committee recalls the importance for all governments of providing within a reasonable time frame complete replies concerning allegations made against them or in follow-up to the Committee’s recommendations.
3. 239. As a general remark, while underlining the considerable length of time that has elapsed since the dismissals of the workers concerned in the present case – respectively, in February 2005 (as to the dispute involving the JASA authority, December 2006 (as regards the dispute involving the APSARA authority) and April 2007 (as to the Angkor Golf Resort), the Committee cannot but observe the great 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 to the Arbitration Council (respectively on 22 December 2009 and 11 January 2010). In this regard, the Committee has recalled on many occasions the importance it attaches to legal proceedings being concluded expeditiously, as justice delayed is justice denied. The Committee expects that the Government will take all necessary measures to ensure that labour disputes, especially those involving dismissals of trade union leaders and activists, are concluded expeditiously in the future.
4. 240. With regard to the dispute involving the APSARA which concerned the termination of employment of three union leaders, namely Mr Breng Barn, Mr Yarn Nol, and Mr Nhib Sokum, the Committee recalls that it had previously noted the Arbitration Council’s award (No. 175/09-APSARA), issued on 5 February 2010, which ordered the APSARA authority to reinstate three workers it had dismissed. The Committee takes due note of the Government’s indication that in this case the parties had opted for a non-binding award procedure, which allows any party who is dissatisfied with the arbitral decision reached by the Arbitration Council to lodge an objection with the Ministry of Labour and Vocational Training within eight days from the day the award is issued in order to invalidate it. The Committee further notes the indication that the award issued on 5 February 2010 was objected to by the employer’s side.
5. 241. The Committee notes that despite the Government’s advice to the union to send the case to court – most recently through Letter No. 1111 MLVT dated 26 June 2014 – as provided by the Labour Law, the workers’ side has not taken any action so far. In these circumstances, and in the absence of any additional information from the complainant organization on this issue since the filing of the complaint in 2008, despite earlier requests from the Committee, the Committee will not pursue its examination of this matter.
6. 242. With regard to the dispute involving the JASA authority, the Committee recalls that it had previously noted that an arbitration award (No. 177/09-JASA) of 22 January 2010 rejected the workers demand for re-employment. The Committee had then requested information on any appeal lodged by the workers in relation to the arbitration decision. The Committee takes due note of the Government’s indication that there has been no follow-up to the arbitration award since the JASA ceased to exist in 2010. The Committee urges the complainant organization to indicate whether workers have appealed the arbitration award of 22 January 2010 and any result of such appeal. In the absence of a reply from the complainant organization, the Committee will not pursue its examination of this matter.
7. 243. In respect of the Angkor Golf Resort’s case, the Committee had previously noted that the parties reached an agreement. The Committee takes due note of the Government’s indication that while the case was under the arbitral proceedings, on behalf of the Building and Wood Workers Trade Union of Angkor Golf Resort, the Building and Wood Workers Trade Union Federation of Cambodia (BWTUC) wrote a letter dated 19 January 2010 to the Arbitration Council to withdraw the complaint and ask the Council to close the case. The request was accepted by the Arbitration Council. The Committee considers that this aspect of the case does not call for further examination.

The Committee’s recommendations

1. 244. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) While regretting that it had to decide to apply a measure of special nature to obtain information from the Government on the present case, the Committee welcomes the constructive engagement of the Cambodian Government which provided a written communication and made an oral presentation. The Committee recalls the importance for all governments of providing within a reasonable time frame complete replies concerning allegations made against them or the Committee’s recommendations.
   • (b) The Committee expects that the Government will take all necessary measures to ensure that labour disputes, especially those involving dismissals of trade union leaders and activists, are concluded expeditiously in the future.
   • (c) With regard to the dispute involving the JASA authority, the Committee urges the complainant organization to indicate whether workers have appealed the arbitration award of 22 January 2010 and any result of such appeal. In the absence of a reply from the complainant organization, the Committee will not pursue its examination of this matter.