Rapport intérimaire - Rapport No. 367, Mars 2013

Cas no 2655 (Cambodge) - Date de la plainte: 16-JUIN -08 - Clos

Allegations: Unfair dismissals, acts of anti-union discrimination and the refusal to negotiate with the trade union concerned by restoration authorities: the Authority for the Protection and Management of Angkor and the Region of Siem Reap (APSARA), the Japan–APSARA Safeguarding Angkor Authority (JASA) and the Angkor Golf Resort

1. 261. The Committee has already examined the substance of this case on three occasions, most recently at its March 2012 meeting where it issued an interim report, approved by the Governing Body at its 313th Session [see 363rd Report, paras 378–387].
2. 262. Since there has been no reply from the Government, the Committee has been obliged to postpone its examination of this case. At its November 2012 meeting [see 365th Report, para. 5], the Committee launched an urgent appeal and drew the attention of the Government to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it may present a report on the substance of this case even if the observations or information from the Government have not been received in due time.
3. 263. Cambodia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 264. In its previous examination of the case, the Committee made the following recommendations [see 363rd Report, para. 387]:
   • (a) The Committee deeply regrets that the Government has not provided the information requested or adopted the measures requested, and urges the Government to be more cooperative in the future and to provide information without delay on the measures taken to implement the Committee’s recommendations.
   • (b) The Committee requests the Government and the complainant to provide information on the implementation of the Arbitration Council’s award issued on 5 February 2010 in relation to the dispute involving the APSARA authority, as well as on any appeal that may have been made to the courts by the workers in relation to the JASA arbitration decision of 22 January 2010. With regard to the case concerning the Angkor Golf Resort, the Committee once again requests the Government to keep it informed of any development regarding the examination by the Arbitration Council of the dispute, and to supply a copy of the decision of the Arbitration Council once adopted. The Committee expects that a decision will be taken without further delay, through an impartial and independent procedure, and that, if the proceeding demonstrates the anti-union character of the dismissals, the dismissed union leaders and activists will be immediately reinstated without loss of pay or benefits. If, while noting the anti-union nature of the dismissals, the Arbitration Council considers that the reinstatement of the dismissed trade union leaders and activists is not possible for objective and compelling reasons, the Committee once again urges the Government to take the necessary measures to ensure that the workers concerned are paid adequate compensation which would constitute a sufficiently dissuasive sanction against anti-union dismissals.
   • (c) The Committee once again recalls that acts calculated to make the employment of a worker subject to the condition that he or she not join a union or shall relinquish their trade union membership constitutes a violation of Article 1 of Convention No. 98, and strongly urges the Government to ensure that any infringement found in this respect will be sufficiently and appropriately sanctioned.
   • (d) As to the elections in the JASA union, the Committee urges the Government to take the necessary measures, including the issuance of appropriate on-site instructions, to ensure that the union may elect its representatives in full freedom, and that the workers may participate in these elections free from fear of dismissal or reprisal of any kind, and to indicate the steps taken in this regard and to inform it as to when the elections of the union officers were held.
   • (e) Furthermore, the Committee urges the Government to take the necessary measures to ensure that both the APSARA and the Angkor Golf Resort engage in good faith negotiations with their respective unions, and to keep it informed in this regard.
   • (f) Finally, the Committee once again urges the Government to take steps without delay to adopt an appropriate legislative framework to ensure that workers enjoy effective protection against acts of anti-union discrimination, including through the provision of sufficiently dissuasive sanctions and rapid, final and binding determinations. The Committee invites the Government to further avail itself of the technical assistance of the Office in this respect.

B. The Committee’s conclusions

1. 265. The Committee deeply regrets that, despite the time that has elapsed since the last examination of the case and given the seriousness of the alleged acts (acts of anti-union discrimination at three workplaces, including dismissals of trade union leaders and activists), the Government has not provided the information requested, despite being invited to do so, including by means of an urgent appeal. The Committee urges the Government to be more cooperative in the future.
2. 266. Under these circumstances and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body], the Committee finds itself obliged to present a report on the substance of the case without the benefit of the information which it had hoped to receive from the Government.
3. 267. The Committee recalls that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating, for objective examination, detailed replies concerning allegations made against them.
4. 268. The Committee deeply regrets that it must once again reiterate the recommendations it made when it examined this case at its meeting in March 2012 [see 363rd Report, para. 387], and urges the Government to provide information without delay on the measures taken to implement these recommendations.

The Committee’s recommendations

1. 269. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee deeply regrets that the Government has not provided the information requested or adopted the measures requested, and urges the Government to be more cooperative in the future and to provide information without delay on the measures taken to implement the Committee’s recommendations.
   • (b) The Committee urges the Government and the complainant to provide information on the implementation of the Arbitration Council’s award (No. 175/09-APSARA) issued on 5 February 2010, in relation to the dispute involving the APSARA authority, as well as on any appeal that may have been made to the courts by the workers in relation to the JASA arbitration decision (No. 177/09-JASA) of 22 January 2010. With regard to the case concerning the Angkor Golf Resort, the Committee urges the Government to keep it informed of any development regarding the examination by the Arbitration Council of the dispute, and to supply a copy of the decision of the Arbitration Council once adopted. The Committee expects that a decision will be taken without further delay, through an impartial and independent procedure, and that, if the proceeding demonstrates the anti-union character of the dismissals, the dismissed union leaders and activists will be immediately reinstated without loss of pay or benefits. If, while noting the anti-union nature of the dismissals, the Arbitration Council considers that the reinstatement of the dismissed trade union leaders and activists is not possible for objective and compelling reasons, the Committee strongly urges the Government to take the necessary measures to ensure that the workers concerned are paid adequate compensation which would constitute a sufficiently dissuasive sanction against anti-union dismissals.
   • (c) The Committee once again recalls that acts calculated to make the employment of a worker subject to the condition that he or she not join a union or shall relinquish their trade union membership constitutes a violation of Article 1 of Convention No. 98, and strongly urges the Government to ensure that any infringement found in this respect will be sufficiently and appropriately sanctioned.
   • (d) As to the elections in the JASA union, the Committee once again urges the Government to take the necessary measures, including the issuance of appropriate on-site instructions, to ensure that the union may elect its representatives in full freedom, and that the workers may participate in these elections free from fear of dismissal or reprisal of any kind, and to indicate the steps taken in this regard and to inform it as to when the elections of the union officers were held.
   • (e) Furthermore, the Committee strongly urges the Government to take the necessary measures to ensure that both the APSARA and the Angkor Golf Resort engage in good faith negotiations with their respective unions, and to keep it informed in this regard.
   • (f) Finally, the Committee strongly urges the Government to take steps without delay to adopt an appropriate legislative framework to ensure that workers enjoy effective protection against acts of anti-union discrimination, including through the provision of sufficiently dissuasive sanctions and rapid, final and binding determinations. The Committee once again invites the Government to further avail itself of the technical assistance of the Office in this respect.