Cas individuel (CAS) - Discussion : 2011, Publication : 100ème session CIT (2011)

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

A Government representative stated that the Government, in phase two of the “Rectangular Strategy” for Growth, Employment, Equity and Efficiency, had defined “Private Sector Development and Employment” as a strategic driving force for job creation, the improvement of working conditions and economic growth. The union movement had grown exponentially in tandem with the growth of the garment, hotel and tourism industry. The Government was strongly committed to address the objective of efficiency and protection of rights and the freedom and dignity of the people within the context of the Strategy. Legal and judicial reform formed a core component of the Strategy, which included the strengthening of the judicial capacity relating to fundamental labour rights, including freedom of association and collective bargaining, as well as training on industrial relations. With regard to the investigation of the three cases relating to the murders of former trade union leaders, the Government stated that no updated information existed since the release on bail of the two suspects by the Supreme Court. The Government would provide the ILO with information in the event of any new developments. In the context of the immature industrial relations in the country and the growth of the garment industry, the number of trade unions and labour disputes, the Government with the assistance of the ILO, had established the Council of Arbitration through which labour disputes were resolved peacefully. As a result, the number of strikes had been halved during the last three years. The Government was also actively preparing a draft Union Law, which was expected to guarantee the right of workers to organize and bargain collectively. The draft law would also promote collective bargaining through harmonizing the rules for certifying unions with the most representative status and minority unions, creating a legal framework for collective bargaining agreements and specifying unfair labour practices of both employers and workers. The speaker hoped that the Committee would continue to cooperate with the Government to further improve industrial relations and the application of freedom of association through institutional capacity building.

The Worker members emphasized that there was a general climate of anti-trade union activity in Cambodia. It included anti-trade union harassment, intimidation and dismissals of trade unionists as well as discriminatory measures against free trade unions. The report of the Committee of Experts also referred to police violence, cases of assault and murders of trade unionists. The report mentioned the names of trade unionists for whose murder the perpetrators had never been punished. The Committee of Experts had requested precise information from the Government and that had not been sent so far. In general, steps had to be taken to ensure the independence and effectiveness of the judicial system. That point had been taken up, not only by the Committee of Experts, but also by the United Nations (UN) Special Rapporteur on the situation of human rights in Cambodia. Furthermore, the Government had announced the forthcoming vote on a labour court law and a trade union law, the latter having been sent to the ILO and in connection with which the Government was receiving technical assistance from the Office. With regard to the labour court, Cambodia had an Arbitration Council which derived from the labour legislation. The Worker members, while not denying the usefulness of such a body, observed nevertheless that it could not replace a genuine judicial body. Moreover, they had noted that the employers, particularly in cases of anti-union discrimination, often decided not to implement arbitration awards. With regard to the draft trade union law, it was essential that it was discussed with all the social partners. But according to the information in the workers’ possession, such dialogue was occurring only between the Government and the private sector employers, the workers only having observer status. It also appeared that the law presented a number of problems of conformity with the Convention. For that reason, it was necessary to consult the trade unions before continuing with the draft law.

The Employer members expressed their disappointment about the statement by the Government, which had shown that no significant action had been taken and which had provided no new information. They felt that they could have the same discussion as last year. They indicated that this was the fifth time this serious case was discussed, which involved the violation of civil liberties, assassinations of trade unionists, death threats, a climate of impunity, repression and lack of trade union law. It was a double-footnoted case last year. After the observations of the Committee of Experts in 2007 and 2008 and the direct contact mission in 2008, the Law on Peaceful Demonstration had been adopted in 2009, but this law was in breach of the Convention, which had to be rectified. They regretted that there had been little progress made in the field of freedom of association and the right to organize. The International Trade Union Confederation (ITUC) had reported on acts of violence and harassment against trade unionists. The Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC) continued to struggle to be recognized by the Government as a valid social partner. Investigations on the murder of trade union leaders were insufficient. Functional labour courts were not yet established. The UN Special Rapporteur on the human rights situation in Cambodia had recommended that measures be taken to enhance the independence and effectiveness of the judiciary. In summary, this case was “dead in the water” and progress could not be seriously discussed. They emphasized, therefore, that technical assistance had to be provided to the Government.

The Employer member of Cambodia expressed the view that progress achieved since the ratification of the Convention in 1999 was remarkable in many ways. Based on the register of the Ministry of Labour and Vocational Training, 1,725 unions, 41 federations of trade unions, seven confederations of trade unions covering all industries and a National Union Alliance of Cambodia had been registered in 2010. Some 80 to 90 per cent of trade unions belonged to the garment industry, which meant that approximately 1,380 to 1,553 unions existed in an industry with approximately 300 factories. This indicated that workers were free to organize. In addition, the Labour Law allowed multiple unions in one enterprise. Many workers belonged to multiple unions at an enterprise. Employers thus faced practical problems with these unions, including the problem of double counting of members, and competition and fighting among unions. The employers had to negotiate with several of these unions at a time. It was widely acknowledged by all social partners that the union movement was disorganized and fragmented. She indicated that the employers sought to cooperate with a most representative union and encouraged better structures and representativeness of unions, in order to ensure constructive and meaningful dialogue. She hoped that this would become a reality with the adoption of the draft Trade Union Law. She mentioned that article 36, paragraphs 5 and 6, of the Constitution guaranteed the citizens the right to form and join unions, and that sections 266 to 278 of the Labour Law provided for freedom of association. She further mentioned several tripartite mechanisms that existed in the country. She referred to the eight public–private tripartite working groups, which had not been mentioned previously by the supervisory mechanism. The eighth working group dealt with labour and social affairs and had prepared the draft Trade Union Law. She also mentioned that the social partners were represented in the governing structures of the ILO Better Work programmes, the Labour Arbitration Council, the National Social Security Fund and the Employer Youth Employment Programme. She reiterated that the principle of freedom of association was practiced in Cambodia. She regretted the murders of trade union leaders.

The Worker member of Indonesia deplored the continuing anti-union discrimination practices in Cambodia. In 2010, as a direct result of trade union activities, over 1,000 workers had been dismissed from their jobs, 35 workers had been injured and 11 had been arrested. Workers were threatened by employers or black listed as a result of union activities. In September 2010, 817 workers had been suspended or dismissed, 10 workers had been arrested and 28 workers had been injured for taking part in a national strike in which hundreds of thousands of workers had asked for an increase in minimum wage. Paho Sak, the president of FTUWKC, had also been violently attacked. The speaker was concerned with the arrest and detention of Sous Chanta, a trade union leader of the United Apparel Garment Factory, as the arrest seemed to have been fabricated to punish him for his trade union activities. These were just some examples of anti-union violence and intimidation that had taken place since the Committee had last considered this case. In order to prevent workers from exercising their right to organize, employers made recourse to numerous tactics, including the increasing use of short term contracts, subcontracting, outsourcing and yellow unions. The speaker called upon the Government to ensure that workers could freely associate, workers’ rights were respected and perpetrators of anti-union violence were held accountable.

The Worker member of Finland expressed deep concern over the continuing failure of the Government to bring its law and practice in compliance with the Convention. Notwithstanding the repeated calls by the ILO supervisory bodies, the Government after seven years had still not exonerated those wrongly convicted for the murders of the trade union leaders and had not ensured impartial investigations to bring the real perpetrators to justice. A culture of impunity continued to prevail and those who instigated violence against trade unionists had little to fear from the authorities. Employers often appealed against the decisions of the Arbitration Council to the courts or simply ignored them. Workers who sought the enforcement of their rights were forced to take legal action in civil or criminal courts, which was costly and lengthy. The judicial system in the country was corrupt, and lacked capacity and impartiality. It was critical for the Government to take action in this area and she, therefore, urged the Government to adopt and fully implement its proposed Law on the Status of Judges and Prosecutors and the Law on the Organisation and Functioning of the Courts. While underlining the seriousness of the case, the speaker deplored the lack of commitment of the Government and urged it to take concrete steps to ensure genuine freedom of association for Cambodian workers.

An observer representing Education International said that there was no teachers’ union in Cambodia, as no public employee enjoyed freedom of association in the country. The Labour Law of 1997 did not authorize them to establish a union or to have access to collective bargaining procedures. Indeed, public officials were governed by a law of 1994 which provided that all aspects governing the industrial relations of public officials were to be determined by law, without negotiation. In that respect, the Committee on Freedom of Association had emphasized the incompatibility of the Common Statute of Civil Servants with the Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Despite the recommendations made by the Committee on Freedom of Association in 2004, no amendment had been made. She indicated that the Cambodian Independent Teachers Association (CITA) and its members were the victims of discrimination and harassment. In 2009, the CITA had submitted a new complaint relating to intimidatory measures by members of the authorities and the police forces. High-level government officials had used their position to bring pressure to bear on teachers to dissuade them from joining the CITA or to leave the association. As they were appointed by the Government, the directors of educational establishments and authorities were effectively obliged to show allegiance to the regime. In 2010, CITA had submitted to the Ministry 34 individual cases of teachers who had suffered discrimination because of their trade union activities. The cases related to prejudice in relation to promotion, wage cuts, transfers or dismissals. Only 14 of the cases had been resolved. She concluded that, despite the reiterated calls made to the Government of Cambodia to amend the Common Statute of Civil Servants so as to guarantee in full the right to organize and to collective bargaining of public officials, the workers feared that the current legislative amendments were not going in the right direction, as emphasized by other Worker members.

The Worker member of the United States indicated that while the Government had engaged in consultations with trade unions regarding the adoption of a new Trade Union Law, he was deeply concerned about the quality of those consultations and their outcome. The current draft law reflected few of the recommendations made by the trade unions, but largely reflected the priorities of garment sector employers. This draft law had to be substantially amended prior to its eventual adoption, otherwise, it would only perpetuate the current dysfunction. Amongst other things, this draft law continued the previous law’s exclusion of civil servants, police, air and maritime workers, judges and domestic workers; it imposed qualifications for trade union leadership which were inconsistent with the principles of freedom of association; it allowed the administrative authorities to suspend or cancel a trade union’s registration; and it gave sole bargaining rights to a union that represented far less than the majority of workers in the workplace. He urged the Government to take into account the views of the trade unions on all these issues.

The Government representative clarified that the cases concerning the former trade union leaders were not yet finalized, as all necessary information was still being collected. He assured that justice would be served soon. He reiterated the willingness of the Government to improve freedom of association and collective bargaining and pledged that the situation would improve with the promulgation of the draft Trade Union Law. False information had been used by the ITUC, since the alleged black list referred to did not exist. The Government would take into account the comments and recommendations made during the discussion of the case.

The Employer members argued that there was a serious problem of understanding within the Committee as to the standing of the case, which was illustrated by the significant disconnect between the statements made by the Government and the employer member of Cambodia. The ILO had to assist the Government to provide the Committee of Experts with a comprehensive report of the situation in law and practice, which also had to include a copy of the draft trade union law. This would enable the Committee of Experts to clearly delineate the legal situation as regards the right to freedom of association and collective bargaining and to make observations on the draft law. The Employer members insisted that the case had to move forward and, for this purpose, ground work had to be done by the Government in cooperation with the ILO in order for the Conference Committee to engage in a real dialogue with the Government next year.

The Worker members emphasized that they could not understand why the Government had not acted or taken little action to resolve situations involving serious violations of freedom of association in Cambodia. The Government needed to take all the necessary measures as soon as possible to bring to an end violations of the rights of workers engaged in a trade union organization. With respect to the judicial authority, they observed that the Government still had much more to do, especially in terms of the legislative amendments to guarantee the independence of the judiciary. The draft Trade Union Law was not in conformity with the Convention. Any modification of Cambodian legislation needed to be made in consultation with the trade unions. In conclusion, they called on the Government to request ILO technical assistance.

Conclusions

The Committee took note of the statement made by the Government representative, as well as the discussion that followed. 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, concerns about the independent and effective functioning of the judiciary, 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 representative concerning the growth of the trade union movement and the evolution of freedom of association in the country. He referred to the “Rectangular Strategy” adopted by the Government to ensure growth, employment, equity and efficiency. This included plans for legal and judicial reform and training of the judiciary in the fundamental rights of organizing and collective bargaining. The Government welcomes the technical assistance of the Office in this regard, as well as with respect to the preparation of a draft trade union law aimed at guaranteeing the right to organize and promoting collective bargaining.

The Committee deplored the fact that full, independent and impartial investigations had still not been carried out into the assassination of the trade unionists Chea Vichea, Ros Sovannareth and Hy Vuthy. It further noted with concern the allegations of threats and intimidation suffered by trade union leaders and members. Recalling 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 bring an end to impunity in relation to such violent acts against trade unionists and to ensure that the perpetrators and the instigators of these heinous crimes are brought to justice.

The Committee noted the concerns raised with respect to the judicial system by the Committee of Experts and the 2010 report of the UN Special Rapporteur on the situation of human rights in Cambodia. It urged the Government to adopt without delay the proposed law on the status of judges and prosecutors and the law on the organization and functioning of the courts and ensure their full implementation. It requested the Government to provide information on the progress made in this regard, as well as in respect of the creation of labour courts.

The Committee observed that a legislative reform process was under way and considered that the Government should intensify its efforts, in full consultation with the social partners and with the assistance of the ILO, to ensure that the final draft legislation would be fully in conformity with the Convention. In particular, the Committee trusted that the new legislation would ensure that civil servants, teachers, air and maritime transport workers, judges and domestic workers are fully guaranteed the rights under the Convention. It requested the Government to transmit the draft texts to the Committee of Experts so that it would be in a position to comment as to their conformity with the Convention.

The Committee requested the Government to provide a full report on all measures taken in this regard, and provide data by industry on the number of unions, affiliation, number of collective agreements and their coverage, to the Committee of Experts at its meeting this year. The Committee 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.