Report in which the committee requests to be kept informed of development - Report No 377, March 2016

Case No 3064 (Cambodia) - Complaint date: 30-MAY-13 - Closed

1. 200. The complaint is contained in a communication from the International Trade Union Confederation (ITUC) dated 30 May 2013.
2. 201. The Government sent its observations in a communication dated 22 May 2015.
3. 202. 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 complainants’ allegations

1. 203. In its communication dated 30 May 2013, the complainant points to the deficiencies of the current trade union law and indicates that the most troubling issue is the continued exclusion of civil servants (including teachers), police, air and maritime transportation workers, judges and domestic workers from the right to freedom of association. As an example, the complainant asserts that the Government refused to register the Cambodian Confederation of Unions (CCU) as a union confederation because most of their members were teachers and that this non-registration was a failure of the Government to abide by Convention No. 87. To support its point, the ITUC indicates that the Committee of Experts on the Application of Conventions and Recommendations (CEACR) had also previously noted that the existing law regulating trade unions remained far out of compliance with Conventions Nos 87 and 98 and that at the 100th International Labour Conference, the Conference Committee on the Application of Standards urged the Government to approve a new Trade Union Law in full consultation with social partners, which would be consistent with its obligations under Conventions Nos 87 and 98. According to the complainant, the new draft trade union law would permit the mentioned groups of workers and others to finally be able to exercise their trade union rights but the complainant claims that although the law had been completed since November 2011, the Government made no effort to ensure its adoption.
2. 204. The complainant also alleges a dramatic increase in the use of fixed-duration contracts (FDCs), particularly in the garment industry. According to the complainant, the decision by the industry to shift from undetermined-duration contracts (UDCs) to FDCs has created substantial employment insecurity for many workers, has damaged industrial relations and has had the unintended effect to avoid the formation of new trade unions or to undermine the power of existing trade unions in the garment industry. Citing a report from Yale University, the complainant indicates that this trend reflects a decision by the garment industry as a whole to reclassify the workers who are hired on repeatedly-renewed short term FDCs. According to the ITUC, although this practice violates article 67 of the Labour Law of 1997, it is widely permitted in practice and has numerous legal implications, including fewer rights and benefits for workers under FDCs, easier dismissal and shorter notice periods, difficulties in proving anti-union retaliation and lesser compensation upon termination of contract than would be due a worker with a UDC. Furthermore, the complainant affirms that the move to FDCs is undermining freedom of association and collective bargaining, as it creates great instability for workers, who reasonably fear that their contracts will not be renewed if they fail to obey the employer, including by joining a trade union. The complainant also observes that due to their short term character, FDCs negatively affect the organization of a trade union, election of trade union leaders and their efficacy. The ITUC indicates that in 2012 a new Memorandum of Understanding was reached between the Garment Manufacturers Association in Cambodia (GMAC) and several trade unions, which included a commitment to reach a separate agreement on the issue of fixed-duration contracts but that no movement to initiate such negotiations was taken.

B. The Government's reply

1. 205. In its communication from 22 May 2015, the Government recalls the development of the draft Trade Union Law, which began at the end of 2010 with a long series of tripartite consultations, facilitated by the ILO, between representatives of trade unions, representatives of employers and the Ministry of Labour and Vocational Training. The ILO was also asked to provide comments on the draft and workers as well as employers were consulted at various stages of the drafting process thus showing its thoroughness and inclusiveness. The Government submits that the draft law is currently under a soon-to-be completed discussion of the inter-ministerial meeting and its adoption is important to create the elements of the tripartite partnership, respect, understanding and trust, which are the foundation of a meaningful social dialogue and sustainable industrial relations. Furthermore, according to the Government, the draft trade union law aims at defending the rights and interests of workers and employers, guaranteeing the right to collective bargaining between workers and employers, improving industrial relations and ensuring employment and national development. While expressing its continuous commitment to promoting freedom of association, the Government also states that the new draft law was not developed for employers or workers but to serve the common interest of the country and to ensure industrial peace and stability.
2. 206. In relation to FDCs, the Government acknowledges the concerns raised by the complainant but clarifies that under article 65 of the Labour Law of 1997, employers can enter into any type of employment contract, FDC or UDC, depending on their agreement. The Government further states that legally speaking, the Labour Law provides the same benefits to workers regardless of the type of their employment contract and that a workers’ job security is protected more by their behaviour and work performance than by UDCs, as it is unlikely that an employer would terminate the contract of a high-performing worker while a worker who has committed serious misconduct or has low-level performance would be subject to termination even though he or she is employed under a UDC. The Government further adds that it may even be easier to terminate the contract of a worker if he or she is employed under a UDC as it only requires prior notice and a valid reason relating to the workers’ behaviour or professional capacity, whereas FDCs cannot be terminated before the end date of the contract unless the contract is fully paid out according to the law and unless there is consent from the worker, serious misconduct or an Act of God. In addition, the Government asserts that the Ministry of Labour and Vocational Training does not allow employers to use FDCs for ill purposes and that article 12 of the Labour Law prohibits employers to use union membership as a reason to hire, define or assign work, grant social benefits, take disciplinary action or terminate an employment contract of any worker. Other provisions of the Labour Law also provide protection to trade unions and workers.

C. The Committee’s conclusions

1. 207. The Committee notes that this case concerns allegations of lack of progress by the Government in ensuring the adoption of the draft trade union law, thus perpetuating the exclusion of civil servants (including teachers), police, air and maritime transportation workers, judges and domestic workers from the right to freedom of association, as well as claims of an increase in the use of FDCs in the garment industry creating employment insecurity and undermining freedom of association and collective bargaining.
2. 208. With regard to the adoption of the draft Trade Union Law, the Committee notes that according to the complainant, the Government made no effort to ensure the adoption of the law even though it had already been completed in November 2011. The Committee further observes that, as indicated by the complainant, the Conference Committee on the Application of Standards, at the 100th International Labour Conference, urged the Government to approve a new trade union law, which would be consistent with its obligations under Conventions Nos 87 and 98.
3. 209. The Committee welcomes the Government’s greater engagement in the Committee’s procedures following the hearing in June 2015 by virtue of paragraph 69 of its procedures and notes the Government’s detailed observations on the development of the draft legislation, especially the various tripartite consultations and the multiple invitations to employers and workers to submit comments on the draft as well as the consultations with the ILO. It also observes that, according to the Government, the drafting process was thorough and inclusive and the new draft reflects many ILO recommendations and is aimed at defending the rights and interests of workers and employers, guaranteeing the right to collective bargaining, improving industrial relations and ensuring employment and national development. The Committee also notes the Government’s commitment to continuously promote freedom of association and to ensure industrial peace and stability.
4. 210. Although welcoming the Government’s recourse to tripartism and the inclusiveness of the social partners in the drafting process of the new draft Trade Union Law, the Committee regrets the prolonged delay in its adoption. The Committee also recalls that according to Articles 2 and 9 of Convention No. 87, all workers, with the sole exception of members of the armed forces and the police, should have the right to establish and join organizations of their own choosing. Therefore, civil servants, teachers, judges, air and maritime transport workers and domestic workers, like all other workers, should benefit from the right to freedom of association, whether through the draft Trade Union Law or other relevant legislative measures. The Committee firmly expects that the Government will take all necessary steps to expedite the adoption of the draft Trade Union Law and requests the Government to provide a copy of the latest draft of the law to the CEACR for examination of its application of ratified Conventions Nos 87 and 98.
5. 211. In relation to the alleged widespread use of FDCs, especially in the garment industry, the Committee notes the complainants’ allegations about the negative impact of such contracts on employment security, industrial relations, and formation and functioning of trade unions. In particular, the Committee observes the complainant’s assertion that although this practice violates article 67 of the Labour Law of 1997, it is widely permitted in practice and has numerous legal implications, including fewer rights and benefits for workers under FDCs, easier dismissal and shorter notice periods, difficulties in proving anti-union retaliation and lesser compensation upon termination of contract than would be due a worker with a UDC. The Committee especially notes that the complainant considers that the move to FDCs is undermining freedom of association and collective bargaining, by creating great instability for workers, who fear that their contracts will not be renewed if they fail to obey the employer, including by joining a trade union. Due to the short-term nature of the contracts, further concerns are raised by the complainant relating to the organization and functioning of a trade union, including election of trade union leaders and their efficacy. The Committee notes that a commitment was made by the GMAC in 2012 to reach a separate agreement on the issue of FDCs but that no movement to initiate such negotiations was taken.
6. 212. The Committee observes that the Government acknowledges the complainants’ concerns with regard to FDCs but emphasizes that: the Labour Law of 1997, provides the same benefits to workers regardless of their contract; under article 65 of the Labour Law employers and workers can enter into any type of contract; and in any case, the Ministry of Labour and Vocational Training does not allow employers to use FDCs for ill-purposes. The Committee further notes the Government's indication that the Labour Law provides protection to all workers, article 12 of which prohibits employers to use union membership as a reason to hire, define or assign work, grant social benefits, take disciplinary action or terminate an employment contract of any worker.
7. 213. The Committee recalls that fixed-term contracts should not be used deliberately for anti-union purposes and that, in certain circumstances, the employment of workers through repeated renewals of fixed-term contracts for several years can be an obstacle to the exercise of trade union rights [see for instance 375th Report, Cases Nos 3065 and 3066 (Peru), para. 481 and 374th Report, Case No. 2998 (Peru), para. 723]. Observing the complainants’ concerns that fixed-term contracts have had an important negative impact on trade union rights and that this issue was recognized by the GMAC and several trade unions which agreed to reach a separate agreement on the matter, the Committee encourages the Government to take all appropriate measures to promote these negotiations between the parties with a view to arriving at an agreement on the use of FDCs and to follow-up the situation so as to ensure that workers in the garment industry are able to exercise their trade union rights freely. The Committee requests the Government to keep it informed of any developments in this regard.

The Committee’s recommendations

1. 214. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee firmly expects that the Government will take all necessary steps to expedite the adoption of the draft Trade Union Law and requests the Government to provide a copy of the latest draft of the law to the CEACR for examination of its application of ratified Conventions Nos 87 and 98.
   • (b) The Committee recalls that fixed-term contracts should not be used deliberately for anti-union purposes and that, in certain circumstances, the employment of workers through repeated renewals of fixed-term contracts for several years can be an obstacle to the exercise of trade union rights. Observing the complainants’ concerns that fixed-term contracts have had an important negative impact on trade union rights and that this issue was recognized by the GMAC and several trade unions which agreed to reach a separate agreement on the matter, the Committee encourages the Government to take all appropriate measures to promote these negotiations between the parties with a view to arriving at an agreement on the use of FDCs and to follow up the situation so as to ensure that workers in the garment industry are able to exercise their trade union rights freely. The Committee requests the Government to keep it informed of any developments in this regard.