Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 316, Juin 1999

Cas no 1934 (Cambodge) - Date de la plainte: 08-JUIL.-97 - Clos

Allegations: Violations of the right to form a trade union, the right to strike and collective bargaining; dismissal of trade unionists; pressure on and threats against trade unionists

1. 196. The Committee examined this case at its November 1997 meeting during which it formulated a number of interim conclusions (see 308th Report, paras. 85-138, approved by the Governing Body at its 270th Session in November 1997). At its meeting in November 1998 (see 311th Report, paras. 111-132, approved by the Governing Body at its 273rd Session), the Committee formulated again a number of interim conclusions.
2. 197. The Government sent new observations in a communication dated 21 January 1999.
3. 198. Cambodia has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 199. The World Confederation of Labour (WCL) submitted allegations of violations of the right to organize and the right to strike and of other trade union rights and civil liberties which have occurred since democratic elections were held in Cambodia. The WCL claimed that the country's first trade union organization, the Workers' Free Trade Union of the Kingdom of Cambodia (SLORC), which was established in December 1996, suffered repression by numerous enterprises which have refused to recognize it and has been the target of repressive measures by the State. In addition, the WCL alleged that, during the strikes that took place at three enterprises (Cambodia Garment Ltd., Gennon Manufacturing and Tack Fat Garment), the Government and the employers employed the security forces on a large scale to suppress the strikes and at peaceful demonstrations by striking workers and that people were injured during these violent acts of repression. It is also alleged that several workers were dismissed following the strikes because of their trade union activities.
2. 200. The Government for its part stated that a new Labour Code had been officially promulgated in March 1997 and that the competent minister had been charged with the urgent task of implementing it. With regard to the establishment of SLORC, the Government claimed that, since the promulgation of the Labour Code, the union had not complied with provisions regarding registration. As regards the strikes at the three enterprises, the Government maintained that SLORC's organization of these strikes and demonstrations did not comply with the law and that acts of violence had been committed at the instigation of the union. Finally, the Government stated that, following the Committee's recommendations, the Labour Inspectorate on 18 March 1998 wrote to SLORC asking the union to deposit its rules for the purpose of registration. With regard to the dismissal of 13 workers at the Tack Fat Garment factory, the Government stated that investigations produced no evidence that the dismissals had been carried out for anti-union motives. The Government stated that, in the absence of adequate evidence of any anti-union motives for these dismissals, it settled the disputes through conciliation. Following conciliation, the employer refused to reinstate the workers but agreed to pay compensation to two of the workers concerned.
3. 201. At its November 1998 session, in the light of the Committee's interim conclusions, the Governing Body approved the following recommendations:
   • (a) With regard to the registration of the Workers' Free Trade Union of the Kingdom of Cambodia (SLORC), the Committee urges the Government to indicate without delay whether this trade union organization, which was formed almost two years ago when it deposited its rules with the competent authority, has been registered.
   • (b) With regard to the violations of the right to collective bargaining, the Committee requests the Government to inform it whether negotiations have taken place between SLORC and the employers in the clothing industry.
   • (c) In respect of the right to strike, the Committee requests the Government to ensure that the right to strike is fully respected.
   • (d) With regard to the dismissals of workers, the Committee requests the Government to: (i) adopt measures to reinforce protection against anti-union discrimination and to review the situation of the trade union leaders and workers at the Tack Fat Garment factory and the factory of SAMHAN Fabrics Co. Ltd. within the framework of impartial procedures and, in the event that these dismissals are found to be related to the exercise of legitimate trade union activities, to obtain the reinstatement in their jobs of the workers in question; and (ii) to provide more specific information on the manner in which the cases of the two workers dismissed from the Golden Time and Winner Garment factories were dealt with. The Committee requests the Government to keep it informed in this regard.

B. The Government's new reply

1. 202. In its communication of 21 January 1999, the Government, with regard to the registration of the Workers' Free Trade Union of the Kingdom of Cambodia (SLORC), states that, in response to the recommendations of the Committee, the Ministry of Social Affairs, Labour, Vocational Training and Youth Rehabilitation (MOSALVY) has registered the SLORC on 25 December 1998, despite the fact that this union refused to correct its structure. On this point, the Government is asking for the technical assistance of the ILO in order for the ILO to directly advise the SLORC to modify its structure.
2. 203. With regard to collective bargaining, the Government states that the SLORC has bargained collectively with a number of employers of garment factories, particularly with the employers of Cambodia Garments Ltd. and Integrity Apparels Pte. Ltd. in December 1996 and January 1997 and it has succeeded in concluding collective agreements with these factories. The Government also explains that workers can file their complaints with the MOSALVY through the SLORC and that the MOSALVY has never failed to settle any dispute submitted to it through this trade union.
3. 204. With respect to the right to strike, the Government reiterates its position according to which it has always recognized the right of workers to wage strikes but cannot accept illegal strikes, particularly non-peaceful strikes or strikes waged for purposes other than those serving the interests of the workers. On this issue, the Government, through the MOSALVY, is asking the ILO to indicate its position concerning illegal strikes and what action should be taken by the Cambodian Government in cases of such strikes.
4. 205. With regard to the dismissals of workers, the Government indicates firstly that, in order to promote a more effective protection of workers, the MOSALVY has successively issued ministerial orders and various normative documents on this issue. The MOSALVY has also conducted dissemination courses, training courses and seminars for workers, trade union leaders, shop stewards, employers and competent officials of the MOSALVY, including courses sponsored by the ILO. As for the dismissal of workers and trade union leaders of the Tack Fat Garment factory and the factory of SAMHAN Fabrics Co. Ltd., the Government indicates that the MOSALVY has already made in-depth investigations into these cases and that the matters were settled as it was reported to the Committee in its two previous examinations of the case. No new elements related to these cases have been noted since.
5. 206. Concerning the dismissal of the two workers from the Golden Time and Winner Garment factories, the Government explains that the first complainant was requested to provide information on the dispute on 12 March 1997 at 2.30 p.m., but she failed to appear at the scheduled time. According to the Government, the complainant has not taken the complaint seriously or shown any responsibility. The Government goes on to explain that, according to Ministerial Order No. 145 MSALVA of 21 April 1997, if the complainant fails to provide information without reason the complaint is considered null and void. It states further that, according to article 300 of the Labour Code, the complainant can file its complaint with the Labour Court in the case that settlement of the labour dispute by conciliation procedure fails. This was not done by the first complainant. In the case of the second complainant, the Government indicates that she filed her complaint with the Department of Labour Inspection on 3 March 1997 by accusing the factory manager of dismissing her because she had complained over her wage. For his part, the factory manager declared that he had dismissed her because she was incompetent in her work. The Government indicates that the Department of Labour Inspection had successfully conciliated the parties on 19 March 1997 when the complainant agreed to receive US$50 as indemnity instead of reinstatement. Finally, the Government states that, in trying to settle the above two labour disputes, the MOSALVY had tried to abide by the opinion given by the ILO experts during the training courses for labour dispute conciliators held in February 1997 in Phnom Penh. In this regard, the Government declares that, if the ILO considers that the above settlements are not fair, it is ready to welcome an ILO mission to Cambodia in order to give advice to settle these disputes on a case-by-case basis.

C. The Committee's conclusions

1. 207. The Committee recalls that this case, which it has examined already on two occasions, concerns allegations of violations of the right to freely establish trade unions and the right to strike and collective bargaining, dismissals of trade unionists and pressure on and threats against them. The Committee also recalls that the alleged acts took place during a transitional period when new labour legislation was about to be adopted but did not come into force until several months after the events which gave rise to the complaint.
2. 208. With regard to the recognition of the Workers' Free Trade Union of the Kingdom of Cambodia (SLORC), the Committee notes with interest that the SLORC has been registered on 25 December 1998.
3. 209. With regard to collective bargaining, the Committee notes the statement of the Government according to which the SLORC has bargained collectively with a number of employers of garment factories and that it has succeeded in concluding collective agreements with these factories.
4. 210. Concerning the right to strike, the Committee takes note of the Government's statement as well as its request for the ILO to clarify its position on illegal strikes. In this regard, the Committee recalls that, while it accepts that the right to strike may be restricted or prohibited in certain limited circumstances, the responsibility for declaring a strike illegal should not lie with the Government but with an independent body which has the confidence of the parties involved. The right to strike may be restricted or prohibited in the public service only for public servants exercising authority in the name of the State or in essential services in the strict sense of the term, that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. But in any event, final decisions concerning the illegality of strikes should not be made by the Government, especially in those cases in which the Government is a party to the dispute (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 522, 523 and 526). Thus, the Committee requests the Government to take into account these principles in the future with regard to the exercise of the right to strike.
5. 211. With regard to the dismissal of workers, the Committee takes note of the Government's explanation concerning its review of the situation of these dismissed workers as well as its attempts for conciliation and the results obtained. The Committee can only reiterate what it has stated in its previous examinations of the case, namely that no one should be penalized for carrying out a legitimate strike and that it may often be difficult, if not impossible, for a worker to furnish proof of an act of anti-union discrimination of which he or she has been the victim (see Digest, op. cit., paras. 590 and 740). In this respect, the Committee once again requests the Government to review the situation of the dismissed trade union leaders and workers of the Tack Fat Garment factory and the factory of SAMHAN Fabrics Co. Ltd. within the framework of impartial procedures and, in the event that these dismissals are found to be related to the exercise of legitimate trade union activities, to obtain the reinstatement in their jobs of the workers in question, and to keep it informed in this regard. Furthermore, the Committee has stated in the past that it would not appear that sufficient protection against acts of anti-union discrimination is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker's trade union membership or activities. Moreover, legislation should make express provision for appeals and establish sufficiently dissuasive sanctions against acts of anti-union discrimination (see Digest, op. cit., paras. 707 and 743). In this respect, the Committee requests the Government to introduce in its legislation measures granting effective protection against acts of anti-union discrimination and to keep it informed in this regard.
6. 212. Finally, the Committee notes that the Government indicated its desire to receive technical assistance from the Office. The Committee encourages the Government to request the assistance of the competent units of the Office in order to address the various problems it faces.

The Committee's recommendations

1. 213. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the right to strike, the Committee requests the Government to take into account in the future the principle according to which the decision concerning the illegality of a strike should not be made by the Government but by an independent body which has the confidence of the parties involved.
   • (b) With regard to the dismissal of workers, the Committee requests the Government to review the situation of the dismissed trade union leaders and workers of the Tack Fat Garment factory and the factory of SAMHAN Fabrics Co. Ltd. within the framework of impartial procedures, and in the event that these dismissals are found to be related to the exercise of legitimate trade union activities, to obtain the reinstatement in their jobs of the workers in question and to introduce in its legislation measures granting effective protection against acts of anti-union discrimination and to keep it informed in this regard.
   • (c) Noting the Government's desire to receive technical assistance from the Office, the Committee encourages the Government to request such assistance from the competent units of the Office in order to address the various problems it faces.