Effect given to the recommendations of the committee and the Governing Body - Report No 389, June 2019

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

Effect given to the recommendations of the committee and the Governing Body

1. 25. The Committee last examined this case, in which the complainant organization denounced the refusal to register a trade union at a garment factory, acts of anti-union discrimination following a strike, the use of military force on striking workers and excessive legislative requirements for the determination and election of union leadership, at its October 2017 meeting [see 383rd Report, paras 105–118, approved by the Governing Body at its 331st Session]. On that occasion, the Committee made 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.
2. 26. In its communication dated 1 October 2018, the Government indicates that following the adoption of the 2016 Law on Trade Unions (LTU), the registration procedure has been simplified and reformed and that Prakas No. 249 on Registration of Trade Unions and Employers’ Associations, 2016, ensures a simple, objective, transparent and rapid procedure for trade union registration. In particular, it contains detailed information and assistance for newly established trade unions on how to obtain registration and provides a list of required documents and templates as samples and guidelines. The Government clarifies that the requirements listed in the Prakas should not be considered as additional administrative obstacles or a burden in the exercise of the right to freedom of association since by providing certain information, such as social security numbers and employment book numbers, the Ministry of Labour and Vocational Training (MLVT) can ensure that each worker is properly registered with the Ministry and the National Social Security Funds, so as to provide workers with full protection under the labour law. The Government also states that the simplification and reform under the LTU have resulted in an increase in the number of trade union registrations in 2017, both for local unions and for workers’ federations and confederations.
3. 27. Concerning the right of workers to elect their officials freely, the Government informs that section 269 of the Labour Act was abrogated and that section 20 of the LTU provides for new, more favourable conditions to be elected as a union’s leader: the age of eligible candidates was reduced from 25 to 18 years of age, the required expertise of at least one year of work was removed and the requirement to produce a criminal record was replaced with a simple clarification from the candidate.
4. 28. With regard to section 3 of Prakas No. 305, the Government clarifies that the provision does not amount to an authorization from the employer to create a union but simply requires the union to notify the employer about the candidates to be elected in order to obtain, after the election, 45 days of special protection. Furthermore, Prakas No. 305 was abrogated and replaced by Prakas No. 303 in 2018 in accordance with the LTU. The Government further indicates in this regard that section 5 of the LTU stipulates that any formation of a worker union or an employer association, which includes both employers and workers therein shall be prohibited and that section 63 provides a list of prohibited unfair labour practices by the employer, which include, among others, interference in any way with the worker in exercising their right to self-organization of a worker union, imposition of a working condition or an employment renewal condition that requires a worker not to join a worker union or to withdraw from the worker union to which he or she belongs, and contracting out services or functions being performed by worker union members when such operation may interfere in the exercise of the rights of workers to self-organization of a worker union.
5. 29. Concerning the alleged widespread practice of anti-union discrimination, the Government refers to the adoption of the LTU and to the above-mentioned section 63 to affirm that it is committed to combating all forms of union discrimination which is contrary to both the country’s Constitution and the ratified international labour Conventions. It indicates that the LTU stipulates special protection to union leaders, as well as unelected candidates and founding members, during the establishment of a trade union and during, before and after the election.
6. 30. As to the alleged use of force on protesting workers during the January 2014 demonstrations, the Government reiterates that Cambodia is a country based on the rule of law and that whoever commits an offence shall be held responsible before the law. The incidents of 2014 are currently before the Court, as an independent body separate from the Government, and the Government will thus report once the result is produced by the Court.
7. 31. Finally, the Government reaffirms that there is no intimidation and interference in the exercise of freedom of association in the country and that the MLVT has always relentlessly addressed issues that alter freedom of association in close cooperation with all stakeholders. The Government, therefore, requests the Committee to withdraw this case from the list of pending cases.
8. 32. With regard to the procedure for registering trade unions (recommendation (a)), the Committee notes the Government’s indication that the registration procedure has been reformed and simplified through the adoption of the Law on Trade Unions (LTU) and Prakas No. 249, as a result of which trade union registration at local, federation and confederation levels has increased considerably in 2017, and that Prakas No. 249 aims at facilitating registration and ensuring full protection of workers by providing detailed information and a list of required documents and templates that should, however, not be considered as additional administrative obstacles. As to its request to review section 269 of the Labour Act and section 20 of the LTU in order to ensure that the law does not infringe workers’ rights to elect their officers freely (recommendation (b)), the Committee notes the Government’s indication that with the adoption of the LTU, the eligibility criteria for union officials were simplified: the age of eligible candidates was reduced from 25 to 18, the required expertise of at least one year of work was removed, and the requirement to produce a criminal record was replaced with a simple clarification from the candidate. The Government also indicates that Prakas No. 305 was abrogated and replaced by Prakas No. 303 and affirms that it is not applied in a manner that would subject trade union formation to an authorization by the employer.
9. 33. While taking due note of the information provided, the Committee recalls that it had previously decided not to pursue the examination of the legislative aspects of the complaint concerning registration of trade unions (recommendation (a)), and excessive legislative requirements for the determination and election of union leadership (recommendation (b)), as it had referred these aspects to the Committee of Experts on the Application of Conventions and Recommendations. The Committee observes that, in its latest comments, the Committee of Experts did indeed address these issues and invites the Government to provide any further relevant information on the pending matters to the Committee of Experts.
10. 34. The Committee further notes that the Government did not confirm whether the concerned workers from the Cambodian Alliance of Trade Unions (CATU) were duly informed of the union’s successful registration at the garment factory back in April 2015 and whether they can freely exercise legitimate trade union activities (part of recommendation (a)). Nevertheless, in the absence of any information to the contrary from the complainant and in view of the Government’s commitment to address any issues limiting freedom of association, the Committee trusts that this was indeed the case and that the trade union can, at present, exercise legitimate union activities freely and without any interference.
11. 35. Regarding the alleged use of military force on striking workers in January 2014 (recommendation (c)), the Committee recalls from its previous examination of the case that three fact-finding committees had been set up following the incidents but that it was unclear from the information provided by the Government whether the specific allegations of killings, physical injury and arrest of protesting workers denounced by the complainant were also being investigated in the context of these committees. In this regard, the Committee notes the Government’s general statement that the incidents of January 2014 are before the Court and that it will report on the outcome once it receives the Court’s judgments. While taking due note of this information, the Committee regrets that more than five years after the alleged incidents, the Government has not provided any concrete information on the outcome of the investigations into the serious allegations of killings, physical violence and arrests of protesting workers and that the Government once again failed to clarify whether these serious allegations are indeed being investigated or addressed by the judicial authorities or whether the pending judicial cases refer to other matters. In these circumstances, the Committee recalls once again that 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 Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, op. cit., para. 104]. The Committee requests the Government to provide concrete information on the results of the fact-finding committees investigating the allegations of killings, physical violence and arrests of protesting workers and expects any pending court proceedings looking into these matters to be concluded without delay and the concerned workers fully compensated for any damage suffered. The Committee expects the Government to be able to report progress on this matter without delay.
12. 36. The Committee further notes that in a communication dated 5 April 2019, the Government informs that six trade union leaders who led the general strike in December 2013 were sentenced to a suspended two-and-a-half year imprisonment and ordered to jointly pay 35 million Cambodian Riels (US$8,661) as compensation to the plaintiffs for instigating intentional violence with aggravating circumstances, instigating acts of causing damage with threats and obstructing road traffic. The Government reiterates that in line with Convention No. 87, violent actions during strikes are not protected by national legislation and indicates that the cases of the six trade unionists are currently pending before the Court of Appeal. The Committee recalls in this regard that it had previously expressed concern at the acts of violence on both sides during the December 2013 and January 2014 demonstrations and emphasized that while the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike [see Compilation, op. cit., para. 965], 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 [see Compilation, op. cit., para. 82]. The Committee requests the Government to provide information on the outcome of the appeal proceedings concerning the six trade unionists, including a copy of the judgment once rendered, and trusts that no trade unionist will be sanctioned for having exercised their trade union activities.
13. 37. With regard to the alleged widespread practice of anti-union discrimination in the country (recommendation (d)), the Committee notes the Government’s commitment to combat all forms of anti-union discrimination, including through the adoption of the LTU and the protection it offers, and its affirmation that there is no intimidation or interference in the exercise of freedom of association in Cambodia. Recalling, however, the alarming statistical information previously provided by the complainant to corroborate this allegation, the Committee wishes to remind the Government 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. A free and independent trade union movement can only develop in a climate free of violence, threats and pressure, and it is for the Government to guarantee that trade union rights can develop normally [see Compilation, op. cit., paras 1072 and 87]. In view of the above, the Committee trusts that, in line with its commitment, the Government will continue to take measures to create and maintain an environment in which freedom of association rights can develop freely without any interference, and where allegations of anti-union discrimination are speedily addressed and remedied by the appropriate authorities.