Cas individuel (CAS) - Discussion : 2010, Publication : 99ème session CIT (2010)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Cambodge (Ratification: 1999)

A Government representative stated that the matters raised were considered as key in the ongoing process of development, in which the implementation of the “Rectangular Strategy” for Growth, Employment, Equity and Efficiency played an important role. Since 1996 the trade union movement had grown in tandem with the growth of the garment, hotel and tourism industry. The Government had made great efforts to address the issues raised by the supervisory bodies relating to respect for freedom of association and collective bargaining, in line with the policies and objectives of the Rectangular Strategy. The Government strongly believed in the establishment of a legal and institutional basis for development towards the promotion of individual rights and dignity, private ownership and free market mechanisms. Based on this vision, the Government had enacted numerous laws and made efforts to enhance the legal and judicial system, as well as good governance. The legal and judicial reform formed a core part of the Rectangular Strategy. The Government was aware of the need to enhance the capacity of the judiciary to ensure and protect fundamental labour rights, including the right to organize and bargain collectively, as well as the need to provide training on industrial relations. To this end, his Government welcomed the ILO’s technical assistance.

With regard to the investigation of the three cases concerning trade union leaders, some progress had been made. In the case of Chea Vichea, the two persons who had been convicted earlier had been released on bail after the Supreme Court found inadequacies in the criminal procedure, particularly as regards the evidence. In the case of Ros Sovannareth, the appeal against the conviction of Thach Saveth by the Appeal Court in April 2009 was still pending before the Supreme Court. The case of Hy Vuthy was still being investigated. The Government was making efforts to address these cases in line with its policy of ensuring accountability through the overall reform of the legal system. In addition, many other cases were still in the process of being investigated and the Government also suspected that at least some of the cases (for example, Case No. 2318 of the Committee on Freedom of Association) had been brought as a result of anti-union rivalry and ordinary crime.

The efforts of the Government had to be considered in the context of the growing development of the garment industry, the considerable growth of trade unions, as well as the immature state of industrial relations and labour disputes. The Arbitration Council, which had been established with the assistance of the ILO, had settled labour disputes peacefully and, due to its existence, the number of strikes had been reduced by about half over the past three years. In cooperation with the ILO, the Government was working on a draft Trade Union Law to be adopted by Parliament in 2011. The Government expected the Law to guarantee the right of workers and employers to organize and bargain collectively through the streamlining of rules for the certification of the union with the most representative status and the minority union, the creation of a legal framework for collective bargaining agreements and the definition of unfair labour practices by employers and workers. In view of the evolving progress, the Government was considering the creation of a labour court in accordance with international standards.

In the context of the public administration reform policy, and as part of the Rectangular Strategy, the Government was considering guaranteeing the right of freedom of association and collective bargaining to public personnel. Public servants had already benefited from an increase in their monthly salary and the Government was committed to continuing efforts to increase the base salary. In conclusion, he emphasized the cooperation of his Government to enhance the living standards of workers and hoped that the ILO would continue to provide technical assistance to strengthen capacity building in Cambodia, particularly in the field of freedom of association and industrial relations.

The Employer members noted that this was a “double-footnoted” case concerning one of the fundamental Conventions. They observed that the Government had provided information on various points, but that it was only partially related to the points raised in the comments of the Committee of Experts. This was the second occasion on which the case had been discussed since 2007 and the Committee of Experts had still not been provided with sufficient information. They recalled that the main issues in this case concerned the assassination of trade unionists, death threats, the climate of impunity, the allegation of irregularities in trials, corruption, and systematic violence and repression. However, the Government had not specifically commented on these points. They referred to the conclusions of the direct contacts mission that had visited Cambodia in April 2008, mentioned in the 2009 observation of the Committee of Experts, which had reported the lack of capacity and independence of the judiciary, the procedural irregularities in the trial for the murder of trade unionists, and the absence of Government action for review of the outstanding cases.

In the 2009 direct request, the Committee of Experts had, in relation to Article 2 of the Convention, called on the Government to take appropriate measures to ensure that judges and temporarily and permanently appointed officials in the public service enjoyed the right to establish and join organizations. They were of the opinion that the Government needed to provide a comprehensive report on these points, as it had not addressed them in its statement to the Conference Committee. With respect to the right of workers to establish organizations without previous authorization, the Committee of Experts had requested the Government to indicate whether workers’ and employers’ organizations could be refused registration and the permissible grounds for such refusal. This was a normal part of the supervisory process. Regarding Article 3 of the Convention, the Committee of Experts had requested the amendment of section 269(3) of the Labour Law, which disqualified persons convicted of any crime from holding office in trade unions, and section 269(4) of the Law, which required that trade union members had to be engaged in the profession for at least one year before being elected to trade union office. They called on the Government to respond to these comments, as it had not yet done so. With respect to the right to strike, they indicated that the Government should address the issue in light of its national circumstances. Concerning the issue of affiliation with international organizations, they recalled that the Government had indicated that there were no legal obstacles for unions of professional organizations to affiliate with international organizations. If the practice was in place, it was in effect the policy.

Finally, they were of the view that this was a serious case because the Government was not fulfilling its constitutional obligations to report to the ILO and to respond to the requests of the Committee of Experts. The Government was also failing to discharge the international obligation that it had taken on voluntarily to implement the Convention in law and practice. This needed to be remedied as an urgent matter.

The Worker members stressed that the non-respect for Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), was aggravated by the continuous lack of the submission of reports by the Government. In the case of Convention No. 87, they recalled that the observations concerned the assassination of trade union leaders in 2004 and the legal consequences of these murders, namely the conviction of two innocent men. More generally, they referred to a climate of violence and intimidation towards union members, including death threats, suppression of the right to strike, anti-trade union discrimination, false accusations and pay docking. The Independent Workers Union of the Kingdom of Cambodia was the systematic target of repression. All of those acts remained unpunished, primarily because of lapses in the Cambodian legislation. There was, in fact, no means for resolving conflicts because the tribunals provided for by law had not yet been established, and intimidation and corruption replaced any legal means of conflict resolution. In addition, recognition of the most representative trade unions could be refused by the Ministry of Labour for arbitrary reasons. The right to collective bargaining was not recognized for judges, teachers and civil servants. Furthermore, the Cambodian Independent Teachers’ Association (CITA) was not recognized as a trade union. The Worker members recalled that the Government had accepted a direct contacts mission in April 2008. At the end of 2008, the Supreme Court had ordered the release of two persons accused of the murder of a trade union leader. The Government had done nothing to ensure respect for trade union rights, guarantee the independence of the legal system, establish labour tribunals or revise the law on trade unions. The Worker members noted the announcement by the Government of a new draft law on trade unions, and they expressed their strong hope that the new law would be in full compliance with the principles contained in Conventions Nos 87 and 98.

The Worker member of Cambodia referred, first, to the murder of the three trade union leaders, Chea Vichea, Ros Sovannareth and Hy Vuthy, for which the murderers had not yet been found. He called on the ILO to urge the Government to take decisive action to investigate the three cases as soon as possible and to ensure that the murderers were found and brought to justice. He also called upon the Government to stop threats, and violence against and killings of trade union leaders and activists. Second, he indicated that since the global financial crisis of 2007, there had been numerous cases of violence against trade unionists and of dismissals of trade union leaders. He claimed that many employers, approximately 60 per cent, used subcontractors and short-term contracts to avoid unions in their company, thereby destroying freedom of association. Under short-term contracts, the rights of the staff were curtailed, especially the freedom to join a union and the right to maternity leave, years of service and annual leave. He added that employers had dismissed 230 union leaders since early 2009 and threatened that if they continued their union activities, they would dismiss workers or take them to court for incitement of violence, which was a criminal offence in Cambodia. He referred to numerous cases of dismissed union activists, including 58 workers of the Naga company, 169 workers in 14 garment factories and three union leaders in the TTP Company, and emphasized that union leaders always lost their cases in Cambodian courts. He called on the ILO to appeal to the Government to respect and apply the legislation and ILO Conventions, to ensure that employers complied with them, stopped dismissals, violence and threats, and reinstated all workers involved in trade union activities. Finally, he indicated that trade unions did not have equal rights to participate in the Eighth Working Group, a body for social dialogue. He called for full rights to be given to trade unions in this body so that the Eighth Working Group was truly tripartite.

The Employer member of Cambodia stated that freedom of association was strongly promoted by the Government of Cambodia. The Cambodian employers welcomed the right to freedom of association and collective bargaining. A high number of trade unions existed in Cambodia, mostly in the garment industry. Cambodian labour law allowed for multi-enterprise unions, which caused many practical problems for employers. Most garment factories had at least three or more unions and many workers belonged to more than one union at one enterprise. As a result, various demands came from various unions, operations were often disrupted and many strikes took place, which were illegal because the legal procedures had not been followed. He regretted that in Cambodia strikes were often used as a first, instead of a last, resort for dispute settlement. The Cambodian employers welcomed a trade union movement, but one which was consolidated and genuine. The ILO Better Factories Cambodia was an example of a programme in which trade union rights were fully respected. In response to the allegation made by the Worker member of Cambodia that there was no mechanism for the settlement of disputes, he recalled that the Arbitration Council which dealt with freedom of association had already been in existence for five years. The revision of the Trade Union Law was currently being studied by employers and workers and was expected to be passed by Parliament in 2011. With regard to the murder of trade union leaders, he expressed his regret at the loss of human lives, but asserted that employers were not involved, and hoped that justice would be done.

The Worker member of the Philippines expressed his concern over the restrictions on trade unionists in Cambodia. While the 1997 Labour Code provided that workers were free to form and join trade unions, the law, in practice, did not apply to officials working at the local and national levels, judges and teachers, contrary to Conventions Nos 87 and 98. In particular, he emphasized the crucial role of teachers, whose working conditions remained unsatisfactory, with their monthly salaries ranging from US$20 to 40, making it difficult to fulfil their tasks of educating children and young persons who would shape the future of the country. The fact that 10 per cent of Cambodian teachers were organized under the CITA showed that there was an urgent need and a wish to improve their working conditions. The CITA, however, was not recognized as a trade union. Therefore, the Government had to explain the measures taken to remove continued obstruction of the activities of the CITA, as well as of the Cambodian Independent Civil Service Association (CICSA). The Committee on Freedom of Association (CFA) in its 334th Report had already requested the Government to amend the Common Statutes of Civil Servants so as to guarantee the right to collective bargaining of civil servants not engaged in the administration of the State. He therefore requested the Government to use the current process of drafting a trade union law to include relevant provisions ensuring this right.

The Worker member of France emphasized that the Cambodian Government had much to explain. He recalled the latest developments in the three murder cases, which had intimidated the trade union movement in Cambodia and silenced its legitimate leaders. First, there had been no serious investigation to find the murderers of Chea Vichea. The charges against Born Samnang and Sok San Oeun, who had been wrongfully imprisoned for five years, were still pending and no new developments had occurred since the Court of Appeal had sent a list of specific points for the investigation of Chea Vichea’s murder to the Phnom Penh Municipal Court in the autumn of 2009. Second, on 21 February 2009, the Court of Appeal had upheld the 15 year prison sentence of Thach Saveth for the murder of trade union leader Ros Sovannareth in a trial that had been marked by procedural irregularities, which had cast doubt on the conviction. An appeal to the Supreme Court had been lodged, but there was no news as to its status. Third, no investigation had been made into the killing of Hy Vuthy, a union leader of the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC), in 2007. Evidence had disappeared and witnesses had been intimidated. An impartial investigation into these three murders needed to be carried out and the Government should be requested to report on this to the ILO next year. Thach Saveth should be released and the charges against Born Samnang and Sok San Oeun dropped. He urged the Government to finally give an undertaking to the victims and their families that justice would be done and to work towards the establishment of a climate free from fear for genuine trade unionists.

The Worker member of the United States shared the concerns expressed by the previous speakers with regard to the culture of impunity in Cambodia which enabled the intimidation and violent repression of trade unionists to continue. The absence of an effective system to prosecute and convict the intellectual and material authors of such violence and repression needed to be addressed. Cambodian workers were also subject to blacklisting, illegal wage deductions and exclusions from promotion due to their trade union activity. The Labour Ministry rarely took legal action against violators, instead advising workers to go to court, which was costly and ineffective, or to accept a cash settlement. Given their low pay, labour inspectors were especially vulnerable to bribery. The Committee of Experts had called on the Government to solve this judicial and administrative corruption, which had hampered the establishment of truly effective labour courts, employment generation, job security and decent work in general. Efforts to eliminate impunity were therefore not only essential for the protection of trade union rights, but also for the creation of an atmosphere of stability and certainty for employers and foreign investors. At this critical moment, it was important for Cambodia to save its reputation as a source country that was improving its compliance with international labour standards by means of the contributions already made under the ILO’s Better Work Programme. He urged the Government to use ILO technical assistance to ensure that the new law on trade unions was in full compliance with Conventions Nos 87 and 98. In this respect, the new law should overhaul article 269 of the Labour Code, and enable trade unions to freely elect representatives of their own choosing and freely administer their own system of internal governance. The new law should also prohibit the establishment of yellow and employer controlled organizations, such as the Khmer Youth Federation Trade Union, and should guarantee full legal trade union status and collective bargaining for teachers and civil servants.

The Government representative of Cambodia thanked the Employer and Worker members for their contributions to the debate. Despite the challenges his Government was facing, he reiterated that the Government was committed to promoting the rights and dignity of all people, including workers. This objective was also incorporated in the Rectangular Strategy referred to earlier. Impunity was not the policy of the Government and the legal and judicial system was undergoing reform. He regretted the death of the trade union leaders and reiterated the Government’s commitment to bringing those responsible to justice. The reality was that the Government was not only currently engaged in a reform process, but was also dealing with the effects of the economic crisis. Moreover, the international community should acknowledge the progress made by the Government so far.

The Employer members, while appreciating the additional information provided by the Government, indicated that it remained unclear whether its report submitted to the Office contained replies to the requests made by the Committee of Experts and whether the legislation under consideration would fill the gaps identified. In any case, the Committee of Experts would provide its observations on this report at its next session. He suggested that it might be useful for the Government to provide the draft legislation to the Office for its technical advice so that the legislation adopted would fully meet the requirements of Convention No. 87. He indicated that the adoption of a right policy was only the first step and its implementation in practice had to follow.

The Worker members had noted the Government’s intention to give priority to the competitiveness of the Cambodian economy, even at the cost of disregarding the ILO’s fundamental standards. The Worker members insisted therefore on the Government’s obligation to comply with those standards. They called on the Government once and for all to complete the legal proceeding surrounding the killing of trade unionists and, specifically, to release Thach Saveth and drop all charges against Born Samnang and Sok Sam Oeun, and to take all necessary steps to apply Conventions Nos 87 and 98. They requested, specifically, that the Government guarantee judges, teachers and public officials the right to form and join trade unions and to bargain collectively and that, with the technical assistance of the ILO, it finalize the drafting of the new laws on trade unions and labour courts. They appealed to the Government to ensure that there was genuine social dialogue and, above all, that trade unions participated on an equal footing in meetings of the Eighth Working Group on Industrial Relations, where important labour issues were discussed.

Conclusions

The Committee took note of the statement made by the Government representative, as well as the discussion that took place thereafter. The Committee recalled that the Committee of Experts had referred to the climate of impunity in the country within the context of the assassination of three trade union leaders, as well as certain discrepancies between the legislation and the practice, and the Convention.

The Committee took note of the information provided by the Government concerning the efforts made to strengthen the legal and institutional framework in the country, emphasizing legal and judicial reform as a core element of its strategy. The Government also referred to the preparation of a draft trade union law and the consideration being given to the creation of labour courts. The Government highlighted the importance of capacity-building for the country and welcomed ongoing ILO technical assistance in relation to all of these efforts.

The Committee deplored the continued failure on the part of the Government to provide full reports to the Committee of Experts. The Committee observed that the recurrence of reporting difficulties appeared to be the result of serious institutional shortcomings and expected that the necessary technical cooperation would be provided to the Government to ensure that these difficulties would be rapidly overcome. While the Government’s reports have now been received, the Committee must now await their assessment by the Committee of Experts.

The Committee regretted the lack of information relating to the long-awaited independent investigations to be carried out into the assassinations of the trade unionists Chea Vichea, Ros Sovannareth and Hy Vuthy. The Committee, like the Committee of Experts, recalled that the freedom of association rights of workers and employers could only be exercised in a climate free from violence, pressure and threats of any kind. It urged the Government to take the necessary measures to ensure respect for this fundamental principle and bring an end to impunity by taking the necessary steps as a matter of urgency to ensure full and impartial investigations into the murders of the abovementioned Cambodian trade union leaders and to bring, not only the perpetrators, but also the instigators of these heinous crimes to justice. Given the serious flaws observed in the judicial process to date, as already observed by the Supreme Court, it expected that the criminal charges against those earlier convicted for these murders would be immediately dropped and that the Supreme Court would rapidly review the appeal by Thach Saveth and ensure his release.

As regards the legislative discrepancies remaining, the Committee trusted that the reform process would bring the legislation into greater conformity with the Convention and requested the Government to transmit any draft texts to the ILO for an informal opinion in this regard. It expressed the hope that the necessary measures would be taken in the near future to ensure freedom of association rights for teachers, judges and the public service and called upon the Government to ensure full consultation with the social partners concerned with respect to labour law reform and to ensure their full and equal participation in all relevant social dialogue forums.

The Committee requested the Government to provide a full report on all measures taken in this regard to the Committee of Experts at its next meeting in November 2010 and expressed the firm hope that it would be in a position to see significant progress with respect to all of these matters at its next session.