Report in which the committee requests to be kept informed of development - Report No 383, October 2017

Case No 3121 (Cambodia) - Complaint date: 27-FEB-15 - Follow-up

Allegations: The complainant organization denounces the refusal to register a trade union at a garment factory; acts of anti–union discrimination following a strike, including dismissals, forced transfers, suppression of benefits and false criminal charges; the use of military force on striking workers; and alleges that section 269 of the Labour Act imposes excessive requirements for the determination and election of union leadership

1. 105. The Committee last examined this case at its November 2016 meeting, when it presented an interim report to the Governing Body [see 380th Report, paras 118–142, approved by the Governing Body at its 328th Session].
2. 106. The Government provided its observations in a communication dated 30 May 2017.
3. 107. 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. Previous examination of the case

1. 108. At its November 2016 meeting, the Committee made the following recommendations [see 380th Report, para. 142]:
   • (a) The Committee requests the Government to take the necessary measures to ensure the swift registration of the factory trade union in line with the mentioned principles and to keep it informed of any developments in this regard. The Committee trusts that the Government will avoid creating additional administrative obstacles to registration and will ensure that legislative reform or the issuance of implementing regulations does not have the effect of suspending or considerably delaying registration of trade unions in the future.
   • (b) The Committee urges the Government, in consultation with all social partners concerned, to review section 269 of the Labour Act and section 20 of the new Act on Trade Unions and take all necessary steps to ensure that the law does not infringe workers’ right to elect their officers freely, and to report back on any measures taken in this regard. The Committee urges the Government to take all necessary measures to ensure in the future that the notification requirement in section 3 of the Prakas No. 305 does not amount to a requirement for authorization by the employer to create a trade union or is not otherwise misused to halt trade union formation.
   • (c) Observing on the basis of the information provided by the Government that the new Act on Trade Unions and the Labour Act have different approaches to certain issues regarding freedom of association, the Committee requests the Government to provide information in this respect, including on the relationship between these laws, to the Committee of Experts on the Application of Conventions and Recommendations, to which it refers the legislative aspects of this case.
   • (d) The Committee urges the Government to inform it without delay of any outcome of the investigations into the allegations of killings, physical injury and arrest of striking workers and of any measures taken as a result, particularly with regard to the three mentioned committees. The Committee requests the Government to promote in the future social dialogue and collective bargaining as preventive measures aimed at restoring confidence and peaceful industrial relations and trusts that the Government will ensure that the use of police and military force during strikes is strictly limited to situations where law and order are seriously threatened.
   • (e) In light of the circumstances of the case, as well as the alarming statistical information provided by the complainant, the Committee requests the Government to take the necessary measures to ensure that trade union members and leaders are not subjected to anti-union discrimination, including dismissal, transfers and other acts prejudicial to the workers, or to false criminal charges based on their trade union membership or activities, and that any complaints of anti-union discrimination are examined by prompt and impartial procedures.
   • (f) The Committee regrets that it had to examine this case without being able to take account of the observations of the enterprise concerned and requests the Government to obtain information from the enterprise on the questions under examination through the relevant employers’ organization.
   • (g) The Committee draws the Governing Body’s attention to the serious and urgent nature of this case.

B. The Government’s reply

1. 109. In its communication dated 30 May 2017, the Government indicates that it has never banned or delayed any trade union registration, that unions with properly completed and submitted applications containing all required documents are considered as having been registered and that, if there is a mistake in the application, the Registrar notifies the applicant of the need to make a rectification, which should not, however, be considered as a barrier for trade union registration. Furthermore, with the adoption of the 2016 Act on Trade Unions, the procedure for registration was reformed and simplified, in particular: (i) the registration period has been shortened from 60 to 30 days and a trade union will thus be considered as duly registered if the applicant does not receive any information from the Registrar within 30 days following the application; (ii) the Prakas No. 249 on Registration of Trade Unions and Employers’ Associations, issued on 27 June 2016, provides the details of the procedure, as well as a list of required documents and templates; and (iii) the authority to register trade unions has been delegated from the Ministry of Labour and Vocational Training (MLVT) in Phnom Penh to every Provincial Department of Labour and Vocational Training, which aims at saving the time and expenses of the applicants. The Government adds that the new Act on Trade Unions is aimed at protecting the legal rights of all interested persons covered by the Labour Act, including personnel working in the air and maritime transportation, ensuring the right to collective bargaining, promoting harmonious labour relations and contributing to the development of decent work and enhancement of productivity and investment. In order to ensure proper understanding of the law, a number of training courses for employers and workers have been conducted by the MLVT in collaboration with trade unions and employers’ associations.
2. 110. With regard to the registration of the Cambodian Alliance of Trade Unions (CATU) at the Bowker Garment Factory (Cambodia) Co. Ltd., the Government informs that the application for registration was received on 10 March 2015 and the trade union was registered on 29 April 2015, within the time limit provided by law. Concerning the alleged termination of CATU leaders, the Government states that on 29 November 2016, the Labour Disputes Department of the MLVT held a meeting with the four workers concerned and the employer’s representatives in order to seek their explanation on the reasons for their termination and found out that although the workers had been terminated together with some other workers during a mass lay-off when the factory had less order, they had been reinstated with back-pay on 24 February 2014 and are currently working at the factory without any intimidation from the employer.
3. 111. The Government reaffirms that the exercise of freedom of association in Cambodia is free and without any intimidation and that the MLVT has been working very closely with all the stakeholders to promote harmonious labour relations and decent work through various platforms. The Government, therefore, asked the Committee to withdraw this case from the list of pending cases.

C. The Committee’s conclusions

1. 112. The Committee recalls that the complainant in this case denounces the refusal to register a trade union at a garment factory; acts of anti-union discrimination following a strike, including dismissals, forced transfers, suppression of benefits and false criminal charges; the use of military force on striking workers; and excessive requirements for the determination and election of union leadership.
2. 113. With regard to the alleged obstacles to registration and the refusal to register a trade union at the factory level (recommendation (a)), the Committee notes the Government’s indication that the application for registration of CATU at the garment factory was received in March 2015 and the trade union was successfully registered in April 2015 within the time limit prescribed by law. The Committee welcomes this development and requests the Government to confirm that the concerned workers were duly informed of the union’s successful registration and that they can exercise legitimate union activities freely and without any interference. Further noting the Government’s statement that, with the adoption of the Act on Trade Unions, 2016 and the Prakas No. 249 on Registration of Trade Unions and Employers’ Associations, the registration procedure has been improved, simplified and made more accessible to the applicants, the Committee expects that this legislative reform will contribute to ensuring a simple, objective, transparent and rapid procedure for trade union registration in practice and will prevent the formulation of additional administrative obstacles. The Committee invites the Government to provide a copy of the Prakas No. 249 and refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.
3. 114. In its previous examination of the case, having noted that both section 269 of the Labour Act and section 20 of the new Act on Trade Unions required potential candidates for trade union office, albeit in different wording, not to have been convicted of any crime, the Committee urged the Government to review these provisions and take the necessary measures to ensure that the law did not infringe workers’ right to elect their officers freely (recommendation (b)). Regretting that the Government failed to provide any information on this matter, the Committee once again emphasizes that conviction on account of offences the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the exercise of trade union functions should not constitute grounds for disqualification from holding trade union office, and any legislation providing for disqualification on the basis of any offence is incompatible with the principles of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 422]. The Committee urges the Government once again to take the necessary measures to review the relevant provisions, in consultation with the social partners, in order to ensure that the law does not infringe workers’ right to elect their officers freely. Furthermore, in the absence of any information from the Government in reply to its previous recommendation relating to the Prakas No. 305, the Committee once again requests it to take all necessary measures to ensure in the future that the notification requirement in section 3 does not amount to a requirement for authorization by the employer to create a trade union or is not otherwise misused to halt trade union formation. The Committee refers the legislative aspects of this case to the Committee of Experts.
4. 115. Regarding the alleged use of military force on striking workers in January 2014 (recommendation (d)), the Committee recalls that according to the complainant, five workers were shot and killed, 40 wounded and 23 arrested as a result of the military intervention and violence against striking workers is a widespread occurrence in the country. The Committee regrets that the Government does not provide any information in this regard and recalls that these allegations have been examined by both the Committee of Experts and the Conference Committee on the Application of Standards. In particular, in its latest observation, the Committee of Experts noted the Government’s indication that the strike action had turned violent, that security forces had had to intervene in order to protect private and public properties and restore peace and that the three committees set up following the incidents had been transformed and assigned more specific roles and responsibilities: (i) the Damages Evaluation Commission concluded that the total amount of damages was not less than US$75 million including damages on public and private properties in Phnom Penh and some other provinces; (ii) the Veng Sreng Road Violence Fact-Finding Commission concluded that the incident was a riot instigated by some politicians by using the minimum wages standards as the propaganda, and did not fall under the definition of a strike action under international labour standards since demonstrators blocked public streets at midnight, hurled burning bottles of gasoline and rocks at the authorities and destroyed private and public properties; and (iii) the Minimum Wages for Workers in Apparel and Footwear Section Study Commission was transformed into the existing Labour Advisory Committee, which is tripartite and advises on promoting working conditions including minimum wage setting. The Committee of Experts also noted the ITUC allegations that the committees were not credible, an independent investigation into the events was still necessary and those responsible for the acts of violence – which led to the death of five protesters and the wrongful arrest of 23 workers – must be held accountable.
5. 116. The Committee understands from the above information that, due to its violent character, the January 2014 demonstration has not been considered as a strike action by the fact finding commission and that the ongoing investigations do not seem to address the specific allegations of killings, physical injury and arrest of protesting workers. In this regard, the Committee expresses concern at the acts of violence on both sides and recalls that while the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike [see Digest, op. cit., para. 667], freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed. In cases in which the dispersal of public meetings by the police has involved loss of life or serious injury, the Committee has attached special importance to the circumstances being fully investigated immediately through an independent inquiry and to a regular legal procedure being followed to determine the justification for the action taken by the police and to determine responsibilities [see Digest, op. cit., paras 43 and 49]. The Committee, therefore, urges the Government to clarify whether the specific allegations of killings, physical injury and arrest of protesting workers following the January 2014 demonstrations are being investigated in the context of the mentioned fact-finding committees and if so, to provide the specific findings of the committees in this regard. Should the ongoing investigations not cover this issue, the Committee urges the Government to institute an independent inquiry into the serious allegations without delay and to inform it of the outcome and the measures taken as a result.
6. 117. As regards the Committee’s recommendation that the Government take the necessary measures to ensure that trade union members and leaders were not subjected to anti-union discrimination, or to false criminal charges based on their trade union membership or activities, and that any complaints of anti-union discrimination were examined by prompt and impartial procedures (recommendation (e)), the Committee notes the Government’s statement with respect to the alleged termination of CATU leaders that a meeting had been organized by the MLVT with the workers concerned and the employer’s representatives, which confirmed that although the workers had been terminated during a mass lay-off, they had since been reinstated with back-pay and are currently working at the factory without any intimidation from the employer. The Committee observes that the Government does not however address the broader issue of the alleged widespread practice of anti-union discrimination, including dismissals and filing of false criminal charges, allegations which the Committee had noted during its last examination were corroborated with alarming statistical information. Recalling that anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions [see Digest, op. cit., para. 769], the Committee requests the Government to keep it informed of any specific measures taken or envisaged to address these allegations and, in particular, to ensure that trade union members and leaders are not subjected to anti-union discrimination, including dismissals, transfers and other acts prejudicial to the workers, or to false criminal charges based on their trade union membership or activities, and that any complaints of anti-union discrimination are examined by prompt and impartial procedures.

The Committee’s recommendations

1. 118. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee welcomes the registration of the factory trade union and requests the Government to confirm that the concerned workers were duly informed of the union’s successful registration and that they can exercise legitimate union activities freely and without any interference. The Committee expects that the adoption of the new Act on Trade Unions, 2016 and the Prakas No. 249 on Registration of Trade Unions and Employers’ Associations will contribute to ensuring a simple, objective, transparent and rapid procedure for trade union registration in practice and will prevent the formulation of additional administrative obstacles. The Committee invites the Government to provide a copy of the Prakas No. 249 and refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.
   • (b) The Committee urges the Government once again to take the necessary measures to review section 269 of the Labour Act and section 20 of the new Act on Trade Unions, in consultation with the social partners, in order to ensure that the law does not infringe workers’ right to elect their officers freely. The Committee requests the Government once again to take all necessary measures to ensure in the future that the notification requirement in section 3 of the Prakas No. 305 does not amount to a requirement for authorization by the employer to create a trade union or is not otherwise misused to halt trade union formation. The Committee refers the legislative aspects of this case to the Committee of Experts.
   • (c) The Committee urges the Government to clarify whether the specific allegations of killings, physical injury and arrest of protesting workers following the January 2014 demonstrations are being investigated in the context of the mentioned fact-finding committees and if so, to provide the specific findings of the committees in this regard. Should the ongoing investigations not cover this issue, the Committee urges the Government to institute an independent inquiry into the serious allegations without delay and to inform it of the outcome and the measures taken as a result.
   • (d) The Committee requests the Government to keep it informed of any specific measures taken or envisaged to address the allegations of widespread anti-union discrimination and, in particular, to ensure that trade union members and leaders are not subjected to anti-union discrimination, including dismissals, transfers and other acts prejudicial to the workers, or to false criminal charges based on their trade union membership or activities, and that any complaints of anti-union discrimination are examined by prompt and impartial procedures.
   • (e) The Committee once again draws the Governing Body’s attention to the serious and urgent nature of certain aspects of this case.