Cas individuel (CAS) - Discussion : 2014, Publication : 103ème session CIT (2014)

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



A Government representative emphasized that the Cambodian national Constitution and its labour law both provided for freedom of association. In addition, the Government was currently drafting a Trade Union Act. The Ministry of the Interior had issued guidelines for the registration of associations and non-governmental organizations (NGOs) and had to date registered 4,003 such organizations. The Ministry of Labour and Vocational Training (MLVT) had to date registered 12 union confederations, 80 union federations, 3,026 enterprise-level trade unions and seven employers’ associations. Associations and NGOs had participated in drafting the laws and regulations. The Government clearly respected the right of freedom of association. Concerning accusations by the international community that Cambodia was violating Convention No. 87, he provided updates on three important cases. First, Chhouk Bandith had been sentenced by the appeals court to 18 months in prison and required to pay 38 million Cambodian riels (KHR) in compensation to the three victims; the police were currently searching for him. Second, the two suspects accused of the murder of trade union leader Chea Vichea had been released and the case had been re-opened. Third, on Case No. 2655 of the Committee on Freedom of Association, the Vice-President of the Building and Woodworkers Trade Union of Cambodia (BWTUC) and three of its other leaders had met representatives of the MLVT twice in 2014. Due to the fact that the leaders of the BWTUC changed frequently, the Vice-President had requested more time to review the allegation. The Committee would be kept informed of progress on the cases. The Trade Union Act was being reviewed with the assistance of the ILO, and the MLVT was committed to adopting it by the end of 2014 or early 2015. The National Assembly was currently preparing an additional three laws on the establishment of the judicial organization, the organizing and functioning of the judges’ council and the status of judges and prosecutors. Lastly, the MLVT was planning to amend the national labour law, including its provisions relating to fixed-term contracts.

The Employer members recalled that this case had been considered by the Committee the previous year and that, in its conclusions, the Committee had noted the grave issues of impunity and flawed judicial processes and had requested the Government to take measures to remedy the lack of independence and effective functioning of the judiciary, to provide information on the proposed law on the status of judges and prosecutors and to intensify efforts to ensure the rapid adoption of the draft trade union law by the end of 2013. They observed that the Committee of Experts had noted with regret that no information had been received from the Government. Noting that elections had taken place in July 2013, the Employer members felt encouraged by the information provided by the Government that three draft laws were pending adoption by the National Assembly, namely the law on the organization of the courts (establishing labour courts), the law on the supreme council of judges and the law on the status of judges and prosecutors. They further understood that an inter-ministerial council including employers and workers had been established to facilitate reporting to the ILO and encouraged the ILO to provide, and the Government to continue to accept technical assistance relating to the establishment and working of the Council. The Employer members also understood that the Government was working together with the social partners on the draft trade union law to be reviewed by the ILO. They encouraged the Government to continue progress in that regard and to consult the social partners when preparing the draft legislation. There was a need to ensure that the legislation concerning trade unions was balanced in terms of the accountability of both the employer and the trade unions regarding unfair labour practices and in terms of a clear prohibition of violence. Certain national challenges should also be taken into account, such as a difficult economic environment, the multiplicity of trade unions in an enterprise and the occurrence of violence in trade union demonstrations. The Employer members also considered that the Committee should note the progress made by the Government in the promotion of freedom of association since the ratification of Convention No. 87. They encouraged the Government to report without further delay on the progress made to date and the measures that were being implemented, and to continue to request ILO technical assistance if it was considered helpful.

The Worker members expressed disappointment at the fact that the current case had been discussed four times in the past five years, and that the situation had steadily deteriorated year by year. There was hope, however. Global unions and some of the world’s largest apparel brands had jointly forged a roadmap that urged the Government to take action on various issues. Sustainable industrial relations would only be possible in Cambodia if they were founded on respect for the right to freedom of association and collective bargaining. On 2 and 3 January 2014, the Government had used overwhelming violence to quash spontaneous demonstrations by garment workers, which had erupted after the Government had announced a new minimum wage rate that was far below the rate that its own research had indicated was adequate to meet basic needs. Heavily armed soldiers and police had mobilized and had been responsible for six deaths to date, and approximately 40 hospitalizations for bullet wounds. Rather than heeding the calls of the United Nations Special Rapporteur on the situation of human rights in Cambodia to establish an independent committee to investigate the violence, the Government had set up a hand-picked committee, and had publicly praised its security forces for their efforts. The Government had not provided any compensation to the victims or their families. Twenty-three workers had been arrested for participating in the demonstrations. They had been unfairly tried and had been sentenced to four or five years in prison. However, due to intense international pressure, their sentences had been suspended. The Worker members were deeply concerned that the sentences, although suspended, would be used as threats, limit or prohibit the exercise of the right to associate.

Following the demonstrations of 2 and 3 January, the Government had repeatedly used force to break up rallies on labour issues and had imprisoned trade union leaders for their participation in such events. Without any legal basis, it had frozen the registration of new independent trade unions during the crisis, and had subsequently erected ad hoc requirements that hindered the registration of new unions. The Government had failed to respect the deadline set by the present Committee for the adoption of a new Trade Union Act in conformity with Convention No. 87. The current Bill marked a step backwards relative to the existing Labour Code. If it was not significantly changed, and if it did not incorporate the recommendations of the ILO and trade unions, it would be better to scrap it entirely, as it would only serve to further strangle the right to freedom of association for workers in Cambodia. The Government had failed to address a number of issues raised in the report of the Committee of Experts: it had still not conducted an independent investigation into the murders of union leaders Chea Vichea, Ros Sovannareth and Hy Vuthy; and no serious efforts had been made to apprehend Chhouk Bandith, convicted of shooting several garment workers in 2012. The judicial system remained deeply corrupt. In May 2014, the National Assembly, composed entirely of members of the Cambodian People’s Party (CPP), had swiftly passed three laws that would ostensibly bring national legislation into line with international standards on the administration of justice. However, the laws had been drafted secretly and rights groups had warned that, if approved by the Senate, they would reinforce the Government’s control over judges and prosecutors, seriously threatening the rule of law. Lastly, the cause of the current conflict in Cambodia was minimum wage setting, the subject of the 2014 General Survey. A study commissioned by the Cambodian Government in August 2013 had found that the appropriate minimum wage would be between US$157 and US$177 a month. However, the Government had then set the minimum wage at US$95, and later US$100 a month. International unions and garment brands had together called on the Government to immediately provide workers with a living wage, a right enshrined in the Cambodian Constitution and appropriate in an industry that generated US$5.5 billion annually.

The Employer member of Cambodia believed that certain Worker members had deliberately exceeded the remit of this case and called for such interventions to be removed from the record. With regard to the independence of the judiciary, progress had been made with the adoption of the three abovementioned laws which satisfied the requests of the Committee of Experts. She therefore requested that this issue no longer be considered by the Conference Committee and acknowledged that capacity building of the judiciary would take time. The Government should be encouraged to further strengthen the judicial system, including commercial and labour arbitration. In terms of freedom of association, she denounced the inaccuracy of the information supplied by the International Trade Union Confederation (ITUC). She reiterated that there had been an increase of 60 per cent in the number of trade unions in 2013, which brought their number to a total of 3,026 in 2013, of which 3,000 were in the garment sector (in 800 factories); an increase of 80 per cent in the number of federations (80) and an increase in the number of strikes by 255 per cent in 2012 and 21 per cent in 2013. These numbers illustrated that trade unions were not operating in a climate of fear and were granted many rights and freedoms in law and practice. The reality on the ground was characterized by a proliferation of unrepresentative minority and violent trade unions which hindered harmonious industrial relations, which were a precondition for harmonious growth. The national legislation failed to establish a minimum membership requirement for the establishment of a trade union. She raised the question of how employers were supposed to negotiate collectively with 17 mostly unrepresentative trade unions in one and the same factory. She believed that, rather than tabling accusations that did not reflect reality, the Committee should recognize and discuss the real practical challenges. The freedoms granted by national legislation were misused. The violence in January 2014 had started in the trade union movement with trade unionists destroying hospitals that were currently being rebuilt, damaging workplaces and disabling public officials. Violence was detrimental to the rule of law and sustainable enterprises, and should be condemned by all parties. Furthermore, the enforcement of law and order, including the requirement of an appropriate registration of trade unions, instead of their automatic registration, and of accountability for violence and non-compliance with the law should not be considered as infringements of freedom of association. It was essential for the new draft trade union law to address the needs of Cambodia, such as the need to attract investment and create jobs, as well as stability and peace. The law was currently in the drafting phase, being discussed and negotiated by the social partners, and it was inappropriate to examine specific provisions of a draft law in a direct request addressed to the Government. She called for the removal of the case of Cambodia from the list and for conclusions focusing on the issues at hand and which did not go beyond the remit outlined in the Committee of Experts’ observation.

The Government member of Greece, speaking on behalf of the European Union (EU) and its Member States, as well as the former Yugoslav Republic of Macedonia, Montenegro, Iceland, Serbia, Albania, Norway, Ukraine and Republic of Moldova, expressed commitment to promoting the universal ratification and implementation of the eight ILO core labour standards which were important international tools for ensuring democracy, the rule of law and respect for human rights. Their implementation supported the development of human potential and each country’s economic growth. In January 2014, the EU had voiced concern about the violent demonstrations in Cambodia and the excessive use of force to quell them, calling on all parties involved to use all possible means to find a peaceful solution. She welcomed the release on 30 May 2014 of the trade unionists and garment workers who had been charged in relation to the demonstrations, and hoped that it signalled a positive shift with regard to the situation of freedom of assembly in Phnom Penh, which had recently been deteriorating. The Government should accelerate the restoration of workers’ fundamental rights and should release the results of the investigation into the January killings. She called on all stakeholders to develop constructive dialogue on improving industrial relations. Regarding the issues raised in the Committee of Experts’ report, she urged the Government to provide the information requested on the outcomes of the investigations into the murders of trade union leaders. It should also ensure full respect for workers’ trade union rights and ensure that they were able to engage in their activities in a climate free from intimidation or risk. The Government should demonstrate how its planned legislative reform would promote the independence and effectiveness of the judicial system. It should intensify its efforts to adopt rapidly the Trade Union Act in full consultation with the social partners. Lastly, she called on the Government to avail itself of ILO technical assistance and to comply with its reporting obligations.

The Worker member of the Republic of Korea said that human and civil rights were easily infringed in the absence of freedom of association, as the bloody suppression of peaceful workers’ demonstrations in January 2014 had shown. On 2 January, in front of the headquarters of a Korean company, special forces had been deployed to suppress the protesting workers, ten of whom had been arrested by the military. Thirty-eight protesters had been seriously wounded, and some had been killed. In response to the violence, the Korean Confederation of Trade Unions (KCTU) and other Asian labour and civil organizations had sent a fact-finding mission to Cambodia. Interviews with workers who had participated in the protests or witnessed the arrests revealed that during the crackdown soldiers had been armed with rifles, slingshots, knives and iron pipes, although the workers were protesting peacefully. Soldiers had arrested ten protesters. Use of the military and the police against a country’s own citizens was never acceptable. The mobilization of the armed forces in response to the wage protests was manifestly excessive and had been condemned categorically by the United Nations. The Government should conduct a thorough and independent investigation into the bloody suppression of the protests and hold those responsible to account. It should also compensate the victims and their families. While the authorities had failed to arrest those responsible for the murder of workers, the Government had wasted no time in arresting and detaining 23 workers for five months without bail. Although they had been released on 30 May 2014, their convictions had incurred penalties, such as a prohibition on serving as union leaders. There had been no inquiry into whether the ten workers arrested had been involved in violence or the damage of property. Indeed, witnesses had stated that one of them, Vorn Pao, had been attempting to calm the situation by urging non-violence. The imprisonment without bail and subsequent convictions and suspended sentences were serious violations of civil rights and were politically motivated. They should therefore be quashed. Impunity for violence against trade union leaders prevailed in Cambodia, allowing the same crimes to be repeated. There needed to be justice, and the need for an independent judiciary was pressing.

The Worker member of the United States recalled that, despite the fact that the Government had long been called upon to adopt a new trade union law so as to comply with the Convention, the situation in the country was deteriorating dangerously. Although, after the circulation of the first draft law in 2011, the trade union movement had succeeded in removing certain restrictions on freedom of association from the proposed law, the enactment of the trade union law had stalled since the beginning of 2014. The Government had recently introduced a new draft which was much worse than the one developed in 2011 in consultation with the trade unions. The new draft had been criticised by the ILO for, inter alia, increasing the minimum number of workers required to register a union from 8 to 20 per cent of the workforce; giving the courts increased power to suspend or revoke union registrations for a wide range of infractions; using vague language in respect of penalties against trade unionists; requiring excessive qualifications for trade union leadership, including age and educational requirements and the absence of a criminal record; specifying the amounts of trade union dues; regulating details about strike ballots; limiting the term of elected trade union leaders, etc. In addition, the new draft only granted collective bargaining and representational rights to the union with the most representative status or the largest federation, thus restricting the rights of minority unions, in violation of Convention No. 98. The Government had failed to remedy the problem despite the concerns expressed by the ILO. Considering that a new trade union law complying with ILO principles was necessary for a sustainable labour relations regime, she strongly urged the Government to take into account the views expressed in detail by trade unions regarding the draft law, and to engage constructively with the ILO.

The Government member of Canada expressed great concern at the reports of violence, murder, torture and intimidation outlined in the 2013 observation of the Committee of Experts, as well as by reports in 2014 of excessive force being used in response to labour demonstrations in Cambodia, and particularly reports of related deaths of striking garment workers. He recalled that trade unionists must be able to engage in their activities in a climate free from intimidation or risk to their personal safety or that of their families, and that workers had the right to participate in peaceful protests to defend their occupational interests. He called for peaceful demonstrations to be allowed to be held safely and without fear of intimidation, detention or excessive use of force by the Cambodian authorities. Noting the observation of the Committee of Experts that there was a prevailing situation of impunity, he called for the investigation of the murders, deaths and other forms of violence against trade union leaders, the bringing forward of all information to impartial courts and the punishment of the guilty parties. He also called on the Government of Cambodia to undertake urgent efforts, in full consultation with the social partners and with ILO assistance, to ensure the rapid adoption of the Trade Union Act. Lastly, in the absence of replies and reports from the Government, he called on the Government of Cambodia to cooperate fully with the supervisory mechanisms of the ILO and with the social partners.

An observer representing the International Trade Union Confederation (ITUC) emphasized that the numerous trade union organizations existing in Cambodia were not treated on an equal footing. Those controlled by the Government, political parties or employers were given priority in terms of registration by the Ministry and recognition by employers, while independent unions were not registered for months or years, and were thus unable to function legally. After freezing union registration at the beginning of 2014, the Government had made it even more difficult for unions to become registered. The Labour Advisory Committee that set new labour policies was only composed of unions loyal to the Government. Almost the entire garment industry refused to engage in collective bargaining with independent trade unions. He added that independent unions faced continued anti-union discrimination and referred to cases examined by the Arbitration Council where, in spite of rulings favourable to the dismissed union leaders, employers never complied with the reinstatement orders. Finally, he expressed concern at the recurrent use of the judicial system to intimidate independent trade unionists when they stood up for workers’ rights.

The Government member of the Netherlands thanked the Committee of Experts for its excellent report and encouraged the Government to fully implement ILO Conventions and particularly Convention No. 87. Welcoming the agreement reached in establishing the list of 25 cases submitted for the Committee’s consideration, he stressed the importance of coherent and consensus-based conclusions and called on all parties to build on the progress achieved in the run-up to the Governing Body of November 2014. He emphasized once again his Government’s commitment to the ILO supervisory mechanism, the effectiveness and credibility of which were of core importance to the Organization. He looked forward to constructive progress, which would need to be accomplished on a tripartite basis at the next session of the Governing Body.

The Worker member of Indonesia quoted a 2013 report by ILO Better Factories Cambodia which indicated that 90 per cent of newly registered factories assessed classify all workers as fixed duration contract (FDC) workers, and that the use of FDCs could result in workers receiving fewer of their legal benefits. The decision by the garment industry to shift from unlimited duration contracts (UDCs) to FDCs had created substantial employment insecurity for many workers and consequently damaged industrial relations. It had had the intended effect of preventing the formation of new trade unions and undermining the power of existing ones. The shift had nothing to do with a drop in the number of full-time regular workers, but rather had been a decision by the garment industry as a whole to simply reclassify workers in order to intimidate them and prevent efforts to form independent unions. The system violated national labour law, yet was widely permitted in practice. Workers with FDCs had fewer rights than those with UDCs in terms of paid annual leave, seniority rights and maternity leave, for example. It was also much easier for them to be dismissed. The move to FDCs was undermining freedom of association and collective bargaining. Workers rightly feared that their contracts would not be renewed if they did not obey their employers, or if they joined a trade union. Despite a memorandum of understanding reached years ago between the Garment Manufacturers’ Association in Cambodia (GMAC) and several trade unions, which included a commitment to address the issue, negotiations had not been initiated.

The Government member of the United States recalled that for many years the ILO supervisory bodies had consistently asked the Government to bring to an end the prevailing situation of impunity regarding violence against trade union leaders, to ensure the trade union rights of workers and the independence and effectiveness of the judicial system and to adopt a Trade Union Act, following full consultation with the social partners, which fully guaranteed the rights enshrined in Convention No. 87. However, over the past year, the situation in Cambodia had worsened and labour conditions had deteriorated significantly. Wages in the garment sector had continued to decline, leading to labour unrest, a lack of government restraint in dealing with the unrest and a general breakdown in industrial relations in the country. Despite the release the previous week of a number of labour activists under suspended sentences, she remained concerned by the fact of their detention in the first place, as well as by the reported irregularities in their trials, their convictions and the continued threat of imprisonment. She urged the Government to convene an independent inquiry into the deaths, assaults and arrests of workers during the January protests. She also expressed concern at the obvious concerted efforts by some employers to take legal action against the leaders of independent trade unions and by possible Government interference in trade union activity. Genuine freedom of association could only be exercised in a climate that was free from violence, pressure and threats of any kind. She firmly urged the Government to adopt and implement a trade union law that was fully consistent with international standards and based on transparent and meaningful dialogue with all of the social partners, as well as with the ILO. It seemed that the Government was disregarding ILO recommendations with respect to its draft Trade Union Act and was moving in the wrong direction with respect to several critical provisions. She urged the Government to make the draft public and to engage in a consultative process with the social partners before submitting it to the Parliament. Finally, she encouraged the Government to intensify its cooperation with the ILO supervisory bodies and to avail itself of ILO technical assistance with a view to bringing the national law and practice in conformity with Convention No. 87. It would be critical for promoting industrial peace and addressing the root causes of the ongoing labour conflicts in Cambodia.

The Government representative indicated that he had taken note of all comments, which were constructive, made during the discussion. The Government would also take note of all recommendations made by the Committee on Freedom of Association. In close cooperation with all stakeholders concerned, and with ILO technical assistance, the Government would finalize the draft law on trade unions, which would guarantee the right to organize and freedom of association in compliance with the relevant international standards. Information on any progress made in those areas would be communicated to the Committee in a timely manner.

The Employer members appreciated the comments made by the Government, Worker and Employer members. The Government had taken measures to address the situation of the independence and effectiveness of the judicial system, including the adoption of draft laws by the national assembly: (1) laws on the organization of the courts; (2) the law on the supreme council; and (3) the law on the status of judges and prosecutors. That was an important first step. The Government had also established an inter-ministerial coordination council, which included the participation of the social partners, to deal with issues related to the Government’s reporting requirements under Convention No. 87. Those were two areas in which the Conference Committee had asked the Government in 2013 to take immediate measures. The Government should provide a full report to the Office concerning those measures and the progress made in that regard. In addition, tripartite negotiations were ongoing concerning a draft trade union law and, while concerns had been expressed concerning the law, it was important for the tripartite consultative process to be completed before the Committee commented on the appropriateness of the legislation. The Government should provide a report to the Office once the negotiations had been completed. The Government also needed to work with the social partners to ensure that violence and harassment, which the Employer members condemned, were eradicated. They also continued to urge the Government to avail itself of ILO technical assistance to fulfil its reporting obligations so that the Committee of Experts would have a clearer picture of progress, or the lack thereof. The Conference Committee’s conclusions should also recognize those areas of progress and highlight where further progress and action were required. The conclusions should also reflect the fact that the Committee did not address the right to strike in that case because the Employer members did not agree that there was a right to strike in Convention No. 87.

The Worker members indicated that it was clear from the previous and present discussions on that case that very serious issues remained unaddressed. Global unions and international brands were trying to address labour issues in the garment sector, which was the largest, but the denial of freedom of association and the right to bargain collectively was not unique to that sector, since most Cambodians worked in other sectors such as the agricultural products, sugar and rubber sectors. The ILO needed to play a much greater role in Cambodia to find solutions that would lead to sustainable jobs and a sustainable economy. While Cambodian workers wanted dialogue in good faith with the Government, they were met by deepening authoritarianism. The Worker members were very concerned about this. They called on the Government to: conduct independent investigations into the killing and wounding of protesters in January 2014 and the murder of trade unionists, and to prosecute the perpetrators; annul the sentences against the 25 persons issued on 30 May 2013; ensure that workers could register freely with trade unions without any prerequisites; ensure that workers who were dismissed for their lawful trade union activities were reinstated and compensated; guarantee freedom of assembly and expression; redraft the current trade union bill in consultation with independent trade unions and in the light of the comments of the ILO supervisory bodies; and consult civil society with respect to the proposed new legislation on the judicial system. They also called on the ILO to facilitate a discussion on fixed-term contracts and their impact in Cambodia on freedom of association, and to send a high-level tripartite mission as soon as possible in view of the seriousness of violations and the lack of progress in the situation. They finally requested that the conclusions of the Committee be placed in a special paragraph.