Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Cambodia (Ratification: 1999)

The Committee notes the observations submitted by the International Trade Union Confederation (ITUC), received on 1 September 2016, which denounce an overall situation where employers ignore reinstatement awards by the Arbitration Council with impunity and the absence of legal sanctions against employers’ acts of anti-union discrimination and dismissals. According to the ITUC, at least 867 union leaders and workers have been dismissed from 38 companies since 2014 for joining a trade union or for taking part in labour protests. Specific cases concerning the garment industry, the airport sector and a bus company are mentioned in this regard. The ITUC further denounces the persistent use of violence by the police against workers during the protest actions in these cases. The Committee notes with concern the seriousness of these allegations and requests the Government to provide its comments on the observations submitted by the ITUC, and in particular detailed information on the specific cases mentioned.

The Committee takes due note of the promulgation of the Law on Trade Unions in May 2016. The Committee notes the concerns raised by the ITUC in relation to the implementation of the Law and requests the Government to provide its comments thereon. The Committee also draws the Government’s attention to its comments on a number of provisions of the Law in relation to the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

The Committee notes the comments from the Government in reply to allegations made in September 2014 by the ITUC, Education International (EI) and the National Educators’ Association for Development (NEAD) on serious acts of anti-union discrimination, particularly in the context of increased use of fixed-duration contracts, against public sector and other workers on account of their trade union membership or activities, as well as the denial of the right to collective bargaining for teachers and civil servants. The Government refers to the recent promulgation of the Law on Trade Unions in May 2016 as a key text for ensuring better protection for trade unions and their officers. Furthermore, the Government states that the Ministry of Labour and Vocational Training had directly contacted the Cambodian Labour Confederation seeking more information on the alleged dismissals of trade union leaders and that it intends to work closely with the social partners with a view to reviewing the cases and to provide information in this regard. Noting the Government’s commitment to address the cases of anti-union discrimination in a collaborative manner in the framework of the new Law on Trade Unions, the Committee requests the Government to report fully on developments towards their resolution, including on the outcome of judicial or administrative proceedings.

Articles 1 and 3 of the Convention. Adequate protection against anti-union discrimination. In its previous observation, the Committee had urged the Government to ensure adequate protection against all acts of anti-union discrimination, dismissals and other prejudicial acts against trade union leaders and members, including sufficiently dissuasive sanctions. In its reply, the Government indicates that during the process of adoption of the Law on Trade Unions, relevant stakeholders were consulted and solutions were integrated into the Law with regard to the specific protection of trade union leaders against acts of anti-union discrimination, and that the Ministry of Labour and Vocational Training will endeavour to ensure that this protection is ensured. The Committee notes, however, the ITUC’s observations according to which the penalties provided for under the Law on Trade Unions for anti-union practices by employers (Chapter 15 of the Law) are too low (a maximum of 5 million riels, equivalent to US$1,250) and may not be sufficiently dissuasive. In this regard, the Committee recalls that the effectiveness of legal provisions prohibiting acts of anti-union discrimination depends not only on the effectiveness of the remedies envisaged, but also the sanctions provided which should be effective and sufficiently dissuasive (see the 2012 General Survey on the fundamental Conventions, paragraph 193). In the present case, the Committee is of the view that fines for unfair labour practices provided for in the Law on Trade Unions may be a deterrent for small and medium-sized enterprises, but would not appear to be so for high-productivity and large enterprise cases. The Committee, therefore, invites the Government to assess, in consultation with the social partners, the dissuasive nature of sanctions to be introduced into the Law on Trade Unions or any other relevant law in order to protect against anti-union discrimination practices. The Committee requests the Government to provide information on any development in this regard.

Article 4. Recognition of trade unions for purposes of collective bargaining. In its previous observation, the Committee had addressed the means of determining representativeness for the purposes of collective bargaining. The Committee duly notes that, according to sections 54 and 55 of the Law on Trade Unions the most representative organization status within the enterprise or the establishment confers an exclusive right to collective bargaining to the organization concerned. In order to acquire this status, the trade union shall meet certain criteria, including having as members at least 30 per cent of the total of workers in the enterprise or establishment where there is one trade union. Where there are several unions, the most representative organization should have received the highest support rate of at least 30 per cent of the total number of workers. In the event that none of the unions in the enterprise received 30 per cent of support, a specific election is organized towards this goal. The Committee further observes that in the event of multiple local workers’ unions in an enterprise or establishment failing to meet all the criteria stipulated or to secure the most representative status, the negotiation of a collective agreement should be carried out within a bargaining council defined under section 72 of the Law. Noting the Government’s statement that by lowering the threshold to the present level of 30 per cent, the Law encourages the increase of collective agreements, the Committee invites the Government to assess the impact of the implementation of the Law on Trade Unions by providing in its next report statistics on: (i) the number of representative organizations identified based on their having secured at least 30 per cent of workers’ support without an election, and the number of collective agreements concluded by these representative organizations; and (ii) the number of separate elections organized based on no union having secured 30 per cent support, and the number of collective agreements concluded by the organizations so elected. The Committee further requests the Government to specify in the requested statistics, the sectors, and the number of workers covered by collective agreements concluded and disaggregate the information on a calendar year basis.

Articles 4, 5 and 6. Right to collective bargaining of public servants not engaged in the administration of the State. In its previous observation, the Committee encouraged the Government to take the necessary steps to ensure that the right to collective bargaining is guaranteed in law and practice to public servants not engaged in the administration of the State, including teachers. In its reply, the Government indicates that civil servants are governed by the Law on the Common Statute of Civil Servants and, therefore, the Law on Trade Unions is not applicable to them. However, personnel employed by government institutions under contractual basis – who are governed by the Labour Law – fall under the scope of the Law on Trade Union. The Committee is bound to recall that, in addition to the armed forces and the police, only public servants “engaged in the administration of the State” (for example, in some countries, public servants in government ministries and other comparable bodies, and ancillary staff) may be excluded from the scope of the Convention. All other persons employed by the Government, by public enterprises or by autonomous public institutions, should benefit from the guarantees provided for in the Convention and, therefore, enjoy collective bargaining rights by virtue of Article 6 of the Convention. The Committee, therefore, urges the Government to take the necessary measures, in consultation with the social partners, to ensure that public servants not engaged in the administration of the State, including teachers, who are governed by the Law on the Common Statute of Civil Servants and the Law on Education with regard to their right to organize, enjoy collective bargaining rights under the Convention. The Committee requests the Government to report on any measures taken or envisaged in this regard.

The Committee trusts that the Government will make every effort to address its comments, in full consultation with the social partners, and will report on measures taken or envisaged to bring the law and practice into line with the requirements of the Convention.

The Committee is raising other matters in a request addressed directly to the Government.