Cas individuel (CAS) - Discussion : 2013, Publication : 102ème session CIT (2013)

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

A Government representative, referring to the case of Chea Vichea, Ну Vuthy and Ros Sovannareth (Committee on Freedom of Association, Case No. 2318), indicated that the Prime Minister had recently issued an order (letter No. 397 of 6 March 2013) to establish a Coordinating Committee with the exclusive mandate to coordinate the ministries involved to respond to the questions relating to Case No. 2318. In addition, the Prime Minister had issued a second order (letter No. 1080 of 6 June 2013) to establish a permanent committee which would include all social partners and 20 different ministries and which was mandated to develop the national employment policy and to respond to all questions raised by the ILO. The two orders would be translated and submitted to the Committee of Experts in due course. Concerning the freedom of association issues, his Government respected the principles underlying the Convention and the Cambodian labour legislation gave full effect to its provisions. Professional organizations of employers and workers could freely organize and exercise their rights. To date, there were 12 union chambers, 76 union federations and 2,765 trade unions at the enterprise level, mostly in the garment and shoe sector comprising around 460 enterprises. Moreover, workers’ organizations were playing a crucial role in drafting national legislation and were actively participating in discussions on labour issues. In its effort to address a variety of industrial relations challenges and strengthen social dialogue, the Government had established a tripartite committee to monitor strike actions, another tripartite committee on labour contracts and yet another tripartite committee on minimum wages. These three committees were composed of representatives of employers and workers who were freely elected by their respective organizations.

Moreover, the speaker recalled that a new draft Trade Union Law had been drawn up with the active involvement of social partners and technical assistance from the Office. The new draft legislation was now being considered by the Council of Lawyers of the Council of Ministers. Upon receiving the finalized draft, the Ministry of Labour and Vocational Training would forward it to the Committee of Experts. Furthermore, the Ministry of Justice was instructed to draft the labour court law in consultation with all social partners, as per established practice. In relation with the independence of the judiciary and the Government’s reporting obligations regarding recently developed laws, such as the Anti-Corruption Law, the speaker indicated that one of the newly established committees referred to above would take responsibility for responding to the Committee of Experts’ requests, probably after the general elections of July 2013 and as soon as it had been familiarized with the ILO procedures, in particular the work of the supervisory bodies, and he requested the Office to provide assistance and training in this regard. In addition, the Government had appointed a labour attaché to Cambodia’s diplomatic mission in Geneva who would facilitate communication and dialogue between the Office and concerned bodies in Cambodia. Finally, the Government representative stated that significant progress had been made over the years but as the labour market changed and industrial relations diversified, there was need to continue to respond to the needs of employers and workers through appropriate legislation and social dialogue.

The Worker members recalled that, in its 2007 and 2011 conclusions, the Committee had already referred to the murder of trade unionists, to harassment, to the arrest and disappearance of union leaders, to the inefficiency and lack of independence of the justice system and to the climate of impunity. The Committee of Experts had used the very same words in its comments to the Government ever since 2003. In its latest observation, it noted that the murder of trade unionists Chea Vichea, Ros Sovannareth and Hy Vuthy, had still not been elucidated and once again raised the question of the efficient and independent functioning of the system of justice and of the climate of impunity. Although the Government had been requested to take concrete measures and, specifically, to adopt the draft laws on the status of judges and attorneys and on the functioning of tribunals without delay and to send copies to the Committee, there had been no progress at all. As to the harassment encountered by the members of the Cambodian Independent Teachers Association (CITA), that was a reflection of the more general problem that civil service unions were not covered by the draft Trade Union Law and were treated as ordinary associations. Moreover, as in many countries, the use of temporary contracts and proliferation of short-term contracts in Cambodia directly or indirectly undermined the possibility for workers to join trade unions. All workers without distinction had to be allowed to join the trade union of their choice. The Worker members stressed that the problems referred to were particularly serious in the textile sector, which was an essential part of the Cambodian economy as it accounted for 80 per cent of the country’s exports. Although it employed skilled manpower, the workers’ conditions of pay and employment were bad and workers were under tremendous pressure. The enterprises that imposed the conditions under which they worked were subcontractors to world-famous trade names that were not bothered by such practices. Yet, there was an obvious link between decent working conditions and freedom of association in an enterprise. The climate of violence and corruption that prevailed rendered the trade unions’ task difficult and it was the workers who suffered. A free trade union movement that was not exposed to violence, pressure and threats was essential if the social partners were to conduct an effective dialogue and thus guarantee conditions of employment that were in line with ILO standards. The detention of trade unionists for reasons connected with their activities in defence of the interests of workers constituted a serious interference with civil liberties in general and with trade union rights in particular. The major economic interests of the textile sector would be much better protected if freedom of association was guaranteed.

The Employer members noted that this case constituted a challenge for the Committee because, despite seven observations addressed by the Committee of Experts since 2007, a direct contacts mission in 2008, a double footnote in 2010 and a Conference discussion in 2011, little progress had been made. A law on peaceful demonstrations had been adopted in 2009 but appeared to be at variance with the provisions of the Convention. Issues such as a climate of impunity, a context of violence directed at union leaders and lack of independence of the judiciary remained unresolved. Workers continued to denounce acts of violence and harassment, labour courts still did not exist, and the United Nations (UN) Special Rapporteur on the situation of human rights in Cambodia had recommended that measures should be taken to enhance the independence of the judiciary. The Employer members welcomed the Government’s indication that it had adopted anti-corruption legislation and put in place an anti-corruption unit, and requested it to provide information on the composition and mandate of that unit, together with a copy of the law, to enable the Committee of Experts to better understand the new measures. In addition, the Employer members urged the Government to provide in its next report information on any progress made with regard to the creation of labour courts. They also urged the Government to take steps to provide for an independent and efficient judicial system as a matter of urgency, and adopt without delay the proposed law on the status of judges and prosecutors and the law on the organization and functioning of the courts. The Employer members regretted that the Government was silent with respect to observations about violations of trade union rights, including allegations of serious acts of violence and harassment of trade union members, and requested the Government to provide its views on this matter. They also urged the Government to intensify its efforts, in full consultation with the social partners and with ILO assistance, to ensure that the final draft legislation on freedom of association and trade unions would be in full conformity with the Convention. The Employer members insisted that the Government had to move forward and build on the measures it had taken in order to ensure progress both in law and in practice.

The Worker member of Cambodia referred, first, to the use of short-term or fixed-duration contracts (FDCs), and stated that almost 60 per cent of employers used subcontractors and short-term contracts to avoid the establishment of trade unions in their enterprises, thereby undermining the workers’ rights to freedom of association and collective bargaining. Moreover, short-term contract workers often enjoyed less favourable working conditions, such as lower wages and limited social security benefits. With respect to the assassination of union leaders, the speaker recalled that the actual perpetrators of the murder of Chea Vichea, Ros Sovanareth and Hy Vuthy in 2004 had still not been identified. In another incident, Governor Chhouk Bandith, who shot and seriously injured three striking women workers in February 2012, had not been prosecuted due to the reluctance of the judicial authorities to properly investigate the case. Effective measures were therefore needed to investigate the murders, prosecute the perpetrators to the fullest extent of the law and ensure that justice was done. The speaker referred also to the violence and threats against union leaders and activists, as it happened regularly that persons were hired to attack leaders and members of independent unions. In 2013, there was such a criminal attack on leaders of the Coalition of Cambodian Apparel Workers’ Democratic Union (CCAWDU). In a related development, the number of dismissed union leaders had increased from 40 in 2010 to 45 in 2011 and 116 in 2012. Another matter of concern was the registration of trade unions as all unions wishing to register with the Ministry of Labour had to first give notice to the company while the Ministry of Labour often delayed the provision of the registration certificate, thus preventing the union from functioning properly. On the other hand, political parties and employers occasionally sought to establish unions that could not be regarded as independent, and thereby violating Article 3 of the Convention. As regards the draft Trade Union Law, improvements were necessary as the draft legislation did not cover workers from the public sector (civil servants, teachers, police, air and maritime transportation workers, judges) and domestic workers. The speaker also raised the issue of poor occupational safety and health standards, including insufficient ventilation and unsafe working conditions often resulting in tragic accidents and loss of life.

The Employer member of Cambodia stated that the freedom of association and right to organize was extremely well practised in Cambodia and refuted the reference in the Committee of Experts’ report to a “persistent climate of violence and intimidation towards union members” as being entirely false. Freedom of association was enshrined in article 36 of the Constitution and sections 266–278 of Chapter 11 of the Labour Law. Furthermore, the Labour Law did not require a minimum number of members for one union to be established, therefore one enterprise might have more than one union, sometimes as many as ten unions. Recalling the Committee’s discussion in 2011, she noted that despite the challenging economic environment, progress continued and multiple priorities were being addressed from labour law review to dealing with the increasing number of strikes, establishing commercial arbitration centres, extending social security programmes, diversifying economic strategy, focusing on employment policy and promoting the operation of the new anti-corruption unit. In the speaker’s view, trade unions were not only free but flourishing in Cambodia with 2,765 unions and 76 trade union federations registered in 2012, or a 60 and 90 per cent increase respectively compared to 2011 figures. With regard to strike statistics in the garment sector, the speaker indicated that, in 2012, strikes increased by 255 per cent compared to 2011, while in the period from January to March 2013, there was a 25 per cent increase in strikes compared to the same period in 2012. From an employer’s point of view, the real challenge was the multiplicity of unions and the violent character of demonstrations, signs of a young industrial relations environment and a young union movement that needed maturity, consolidation and more cohesiveness. In relation to the Government’s reporting obligations, the speaker welcomed the establishment of the new inter-ministerial working group bringing together relevant ministries involved in reporting, which would greatly assist in collecting and transmitting information in a timely manner. ILO assistance with building the capacity of the abovementioned group would help the bodies represented in that group to better discharge their responsibilities. With respect to the allegations concerning FDCs, the speaker expressed the view that issues around employment contracts were being taken out of context to push a freedom of association agenda. Both employers and unions agreed that it was necessary to look at the changing economic environment and the challenges of FDCs without blowing this question out of proportion and creating a bad profile for Cambodia’s investment environment. Concerning the forthcoming adoption of the draft Trade Union Law, the speaker stated that the new legislation was initiated and drafted through a truly tripartite process and therefore was not a matter of serious violation of the Convention to be deliberated in this Committee. Using the draft Trade Union Law as a tool for suggesting that there was no freedom of association in Cambodia risked undermining this genuinely tripartite and ground-breaking legislative development. With respect to the deaths of union members, she recognized the seriousness of the matter but hoped that due process would be followed in investigating and delivering justice. Recognizing the challenges that lay ahead, the speaker expressed the hope that the ILO would continue to support the social partners in Cambodia in their endeavours for further strengthening industrial relations systems and mechanisms.

An observer representing Education International (EI) agreed with the Committee of Experts’ previous comments that the draft Trade Union Law did not comply with Convention No. 87 or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Recalling this Committee’s conclusion in 2011 that the Government should intensify its efforts, in full consultation with the social partners and with the assistance of the ILO, the speaker regretted that the final draft Trade Union Law was moving nowhere fast. Although the draft law, which was communicated in 2011, had addressed some of the Committee of Experts’ observations, it was unclear how it might have been modified since then. A critical issue remained the continued exclusion of civil servants, including teachers, from the scope of the draft union law. The Government had again refused to register the Cambodian Confederation of Unions (CCU) as a union confederation because most of their members were teachers, and this illustrated the Government’s failure to abide by the Convention. Unions in the public sector were still denied union rights and had to operate under the Law on Associations and Non-Governmental Organizations, which was also problematic. ILO technical assistance had been provided, yet the Government did not have the will to move forward. The speaker called upon the Government to again take up the draft Trade Union Law, ensure that it complied with international labour standards, including coverage of civil servants, and adopt it immediately.

The Worker member of Indonesia referred to the dramatic rise in the use of FDCs, particularly in the garment industry, which had created substantial employment insecurity, damaged industrial relations, contributed to the increase in plant-level strikes since 2005, and undermined the power of existing trade unions. In most cases, the duration of FDCs was less than three months, and workers feared that their contracts might not be renewed if they participated in union activities or became union members. The Government’s strategy to compete in global markets by using FDC workers and excessive types of precarious work would only result in economic and political vulnerability. Many garment factories were now entirely composed of a workforce with repeatedly renewed short-term FDCs, which, according to the speaker, violated labour law, in particular section 67 of the Labour Law, 1997, limiting the maximum period for an individual labour contract to two years. The Arbitration Council had ruled that this provision imposed a two-year cap on FDC renewals, but the garment manufacturers ignored the ruling. In practice, the shift from undetermined-duration contracts (UDCs) to FDCs undermined freedom of association and collective bargaining. Short-term contracts also provided insufficient time to organize a union or to identify and develop trade union leaders, and this had a serious impact on the efficacy of leadership and the ability of the union to effect change in the workplace. Further, the labour law required union leaders to have one year’s work experience in the factory, which was hard to accrue under FDCs. Many garment factories had converted most, if not all, of their UDCs to FDCs through a variety of tactics including fake factory shutdowns whereby the factory would reopen immediately under a different name and would “rehire” the workforce under FDCs.

The Worker member of Sweden, speaking on behalf of the Worker members of other Nordic trade unions, stated that anti-union discrimination in Cambodia continued to be a serious problem and workers who were fired for their union activity rarely had access to effective remedies. To date, the Arbitration Council remained the only mechanism for the resolution of labour disputes in the absence of a labour court. The Council addressed disputes in a transparent and balanced manner but its decisions were not binding while its continued existence was compromised due to limited funding. There were many examples where employers engaged in anti-union discrimination and simply disregarded the Council’s decisions with impunity. Hence, the Cambodian unions and workers needed an effective remedy against anti-union discrimination. For all its merit, the Arbitration Council was routinely ignored, leaving workers to have to suffer lengthy and expensive legal proceedings or to take to the streets with the hope of defending their rights.

The Worker member of the Philippines stated that freedom of association could only be effectively exercised in a climate free from violence, pressure or threats of any kind against trade union members and leaders, which was not the case in Cambodia. The speaker gave a detailed account of two cases that highlighted the conditions of intimidation, harassment and violence that workers were facing in Cambodia. In the first case, on 20 February 2012, Governor Chhouk Bandith shot and seriously wounded a group of striking workers. He was charged in April 2012 with “unintentional injury” despite overwhelming evidence from over two dozen witness testimonies clearly pointing to an intentional act. The case had been reopened but the victims, unions and human rights organizations were deeply sceptical about the prospects for a fair investigation. The second case involved two individuals, Born Samnang and Sok Sam Oeun, who were convicted in 2005 for the murder of trade union leader Chea Vichea, then president of Cambodia’s Free Trade Union (FTU). Despite concerns about lack of due process and lack of evidence and an order for a retrial by the Supreme Court, the Appeals Court had upheld the original verdict. The Cambodian authorities needed to initiate a thorough, independent and impartial investigation into those cases. Since Chea Vichea’s death, another two FTU activists had been murdered in Phnom Penh, adding to the long series of unjustifiable acts against civil liberties and trade union rights.

The Government representative expressed gratitude for the comments made by the Employer and Worker members reflecting the efforts made by the Government in the implementation of the provisions of Cambodian legislation in line with the Convention. In order to encourage freedom of association, the Government provided all workers with the opportunity to freely organize and exercise their rights. To date, there were 12 union chambers, 76 union federations and 2,765 trade unions at the enterprise level in Cambodia. In 2012 alone, 74 collective bargaining agreements had been registered with the Ministry of Labour and Vocational Training. He further indicated that trade unions had played a crucial role in the drafting of national legislation and in various discussions on labour issues. Trade union representatives had been included in a committee established on 6 June 2013, which was entrusted with the mandate of conducting the coordination and drafting of Cambodia’s Employment Policy and responding to questions raised by the ILO. The Government representative expressed regret about some of the comments made, which did not reflect the real situation in Cambodia and did not recognize the efforts undertaken to pursue the effective implementation of the provisions of Cambodian labour law in compliance with the Convention. He stressed that the Government had continued to respond to the needs of employers and workers and to the changing industrial environment. Lastly, despite having made significant progress over the years, the Government was aware of the need to continue to develop national laws and regulations and to build on an already solid foundation of social dialogue.

The Worker members stated that, in order to redress the deficiencies that had been highlighted in terms of freedom of association and protection of trade union rights, the Government should, without delay: (i) adopt, before the end of 2013, a law on trade unions that was in accordance with the Convention and that covered all private and public sector workers, regardless of their contract type (permanent, temporary, part-time or full-time), in consultation with the representative organizations of workers and employers and with technical assistance from the ILO; (ii) ensure that the perpetrators of acts of violence against trade unionists and workers were prosecuted and punished by the courts promptly and transparently; (iii) convene a tripartite committee to reach agreement on temporary contracts within six months; and (iv) ensure ongoing funding for the Arbitration Council and authorize it to take binding decisions.

The Employer members expressed their wish to see the comments they had made at the opening of this case with regard to the deficiencies in government action, reflected in the Committee’s conclusions. They believed that the case could be summarized in four broad areas that required the Government’s immediate action: the silence of the Government in respect of the situation of freedom of association; the independence and effectiveness of the judicial system; the adoption of the Anti-Corruption Law together with its five-year strategic plan as well as the establishment of an anti-corruption unit; and the engagement of the social partners. The Employer members encouraged the Government to adopt a law dealing with the issue of freedom of association of trade unions and to ensure that violence against workers was not permitted. They urged the Government to guarantee the independence and effectiveness of the judicial system, including by focusing on capacity-building measures and the institution of safeguards against corruption. In that regard, the Employer members also 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 to take measures in order to ensure their full implementation. They requested the Government to provide information on the progress made in this respect and in particular with regard to any measures taken to establish labour courts. Furthermore, they encouraged the Government to provide information on the mandate of the anti-corruption institution and its activities together with a copy of the law, the strategic plan and any other relevant document. The Employer members indicated that they were encouraged by some of the measures taken, for example the Government’s consultation of the social partners with respect to the draft Trade Union Law; however, they noted that it was important that the Government continue to engage the social partners in its efforts to achieve compliance both in law and practice with the Convention. The Employer members expressed the hope that they would be able to note progress in each of the aforementioned four categories.

Conclusions

The Committee took note of the statement made by the Government representative, as well as the discussion that followed.

The Committee noted that the grave issues in this case concerned a climate of impunity in the country and seriously flawed judicial processes with respect to the trials of the presumed authors of the assassinations of three trade union leaders, as well as the need to ensure an independent and effective functioning of the judiciary. Other matters concerned long-standing discrepancies between the legislation and the practice, and the Convention.

The Committee took note of the information provided by the Government representative concerning the establishment of a coordinating committee to coordinate all relevant ministries to respond to the questions relating to the assassinations of trade union members, as well as a permanent committee on employment policy, also charged with responding to questions raised by the ILO. The Government representative also referred to the elaboration of a draft trade union law with the technical assistance provided by the ILO, as well as to the intention of drafting a labour court law.

The Committee deplored the fact that, despite the remand of the Chea Vichea case to the trial court, full, independent and impartial investigations had not been carried out into his assassination and the previously convicted persons had been returned to prison without any new evidence being produced. The Committee further noted with concern the allegations of continuing violence, 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 violent acts against trade unionists and requested it once again to institute independent investigations so as 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. It recalled its previous recommendation urging 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, and expected that the Government would be in a position to report on the progress made in this regard without delay.

The Committee further observed that the legislative reform process was still under way and once again called on the Government to intensify its efforts, in full consultation with the social partners and with the assistance of the ILO, to ensure the rapid adoption of the draft Trade Union Law by the end of 2013 so as to more fully guarantee the rights under the Convention. It also requested the Government to take further measures to ensure freedom of association rights to public service workers and all types of contract workers. It specifically requested the Government to provide the Committee of Experts with the texts of the Anti-Corruption Law and its strategic plan, and expected that the necessary resources would be provided for their effective implementation. Adequate resources should also be allocated for the proper functioning of an independent judiciary. It also requested the Government to transmit to the Committee of Experts all other draft texts referred to so that it would be in a position to comment as to their conformity with the Convention and expected that it would be in a position to observe concrete progress in this regard in the near future.