Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Cambodia (Ratification: 1999)

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 21 September 2020, alleging that the amendments to the Law on Trade Unions (LTU) adopted in December 2019, which are examined in this comment, failed to bring the LTU into conformity with the Convention.

The Committee further notes the observations of Education International received on 1 October 2020, denouncing the arrest of five trade unionists in connection with their activities, including the President of the Cambodian Confederation of Unions (CCU), as well as an attack against the President of the Cambodian Independent Teachers’ Association (CITA) on 10 August 2020. Recalling that trade union rights can only be exercised in a climate that is free from violence and intimidation, and within the framework of a system that guarantees the effective respect of civil liberties, the Committee requests the Government to provide its comments on these serious allegations.

The Committee proceeded with the examination of the application of the Convention on the basis of the observations received from the social partners this year (see legislative issues), as well as on the basis of the information at its disposal in 2019.

The Committee takes note of the comments of the Government in reply to the 2016 and 2017 ITUC observations, including the indication that the provisions in the draft Law on Minimum Wage that had been questioned by the ITUC as prohibiting legitimate trade union activities were subsequently removed from the promulgated law. The Committee further notes the observations submitted by the ITUC received on 1 September 2019, concerning matters examined in this comment, as well as alleging violent repression of strikes by hired criminals and the detention of union leaders organizing strike action in the garment sector. The Committee requests the Government to provide its comments in this respect.

Trade union rights and civil liberties

Murders of trade unionists. With regard to its long-standing recommendation to carry out expeditious and independent investigations into the murders of trade union leaders Chea Vichea and Ros Sovannareth (in 2004) and Hy Vuthy (in 2007), the Committee notes that the Government indicates once again that the relevant ministries and institutions have been working on the cases but that their long-standing nature, coupled with the lack of cooperation from Mr Vichea’s family, renders the investigation even more complicated. The Government further states that in order for the investigation to conclude, all relevant parties, especially the families of victims, need to cooperate fully, and indicates that the investigation was brought up to the annual meeting of the National Commission on Reviewing the Application of the International Labour Conventions ratified by Cambodia (NCRILC). The Committee must express once again its deep concern with the lack of concrete results concerning the investigations, even bearing in mind the suggested lack of cooperation of victims’ families, and the Committee refers to the conclusions and recommendations of the Committee on Freedom of Association in its examination of Case No. 2318 (see 391st Report, October 2019). Recalling the need to conclude the investigations and to bring to justice the perpetrators and the instigators of these crimes, the Committee urges once again the competent authorities to take all necessary measures to expedite the process of investigation.

Incidents during the January 2014 demonstrations. Concerning the trade unionists facing criminal charges in relation to incidents during the January 2014 demonstrations, the Committee notes with interest the Government’s indication that the six trade union leaders that had initially been sentenced to a suspended three years and six months imprisonment and collective payment of compensation equivalent to US$8,750 were acquitted of all charges on 28 May 2019 by the Court of Appeal after the initial judgment was appealed with legal support from the Ministry of Labour and Vocational Training (MLVT) and the Ministry of Justice (MoJ). The Committee further notes the Government’s indication that: (a) as to other trade unionists under judicial procedures, the MLVT and the MoJ have established a working group, which requested trade unions to provide information on their cases, so that the two ministries could follow up with the court in order to expedite the settlement (80 per cent of the criminal cases against trade unionists have been settled so far); (b) out of a total of 121 criminal cases identified as involving trade unionists, 71 cases have been settled (with verdicts issued for 27 cases, filing without processing by the prosecutor for 13 cases and charges dropped by the investigating judge for 23 cases); 33 cases remain under judicial proceedings and 17 cases are not related to freedom of association or labour rights but have also been settled; and (c) out of the 19 civil cases, 11 have been settled (verdicts issued for nine cases and charges dropped for two cases), and eight cases are under court proceedings (two of which are not related to freedom of association or labour rights). The Committee requests the Government to continue providing information on these procedures, in particular on any verdicts issued, as well as undertaking all necessary efforts to ensure that no criminal charges or sanctions are imposed in relation to the peaceful exercise of trade union activities.

Training of police forces in relation to industrial and protest action. In its previous comment, recalling that the intervention of the police should be in proportion to the threat to public order and that the competent authorities should receive adequate instructions so as to avoid the danger of excessive force in trying to control demonstrations that might undermine public order, the Committee encouraged the Government to consider availing itself of the technical assistance of the Office in relation to the training of police forces, with a view, for example, to the development of guidelines, a code of practice or a handbook on handling industrial and protest action. The Committee notes the Government’s indication that: (i) the MLVT has cooperated with the Ministry of Interior to produce documents for the training of police forces to ensure full respect of trade union rights; (ii) in December 2018, the MLVT sent a letter to the ILO requesting technical assistance to provide a training course for police forces; and (iii) in April 2019, its representatives met with ILO officials to prepare the training for the national police and agreed to organize four courses of training of trainers, in cooperation with the Ministry of Interior and the Officer of the High Commissioner for Human Rights to take place in the second semester of 2019. The Committee requests the Government to provide information on developments in this regard, including with respect to completion of the four training courses, their duration, number of participants, and particular subjects covered.

Legislative issues

The Committee takes due note of the information provided by the Government on the process to prepare amendments to the LTU in consultation with the social partners. The Government indicates that: (i) the MLVT submitted a first draft amendment for tripartite consultation; (ii) workers’ and employers’ organizations submitted written comments; (iii) two national tripartite consultative workshops took place on 25 April 2019 and on 2 August 2019, with the technical support of the ILO and during which the social partners could provide additional inputs; (iv) on 9 August 2019 a final draft was submitted to the Council of Ministers, with a view to its further submission to the National Assembly for review and adoption by the end of 2019; and (v) in the meantime, a number of regulations (prakas) have been adopted to simplify the implementation of the LTU, including on the subjects of registration of unions, federations and confederations. The Committee observes that the draft law was approved by the National Assembly on 26 November 2019 and promulgated on 19 December 2019.

Article 2 of the Convention. Rights of workers and employers, without distinction whatsoever, to establish and join organizations. In its previous comments the Committee urged the Government to take appropriate measures, in consultation with the social partners, to ensure that civil servants – including teachers – who are not covered by the LTU are fully ensured their freedom of association rights under the Convention, and that the legislation is amended accordingly. The Committee notes that, while in the Progress Report for the Roadmap on Implementation of ILO Recommendations concerning Freedom of Association submitted to the ILO in June 2019, the Government had indicated that it continued to organize consultative workshops and to finalize draft legislative amendments, no amendments have been drafted in this respect. In its report to the Committee the Government only reiterates that it considers that freedom of association is guaranteed to all workers through two pieces of legislation: (i) the LTU, applicable to the private sector – including domestic workers (the amendments will introduce an explicit reference to domestic workers in section 3 of the LTU on the scope of the law), teachers who are not civil servants, and workers in the informal economy meeting the LTU’s requirements to form a union; and (ii) the Law on Associations and Non-Governmental Organizations (LANGO) providing for the right to organize of civil servants, including teachers who now have such status.

The Committee must recall once again that some provisions in the LANGO contravene freedom of association rights of civil servants under the Convention, as it lacks provisions recognizing civil servants’ associations’ right to draw up constitutions and rules, the right to elect representatives, the right to organize activities and formulate programmes without interference of the public authorities, and the right to affiliate to federations or confederations, including at the international level, and subjects the registration of these associations to the authorization of the Ministry of Interior. In addition, the Committee had noted that workers’ organizations and associations expressed deep concern at: (i) the lack of protection of teachers’ trade union rights (referring in particular to sanctions and threats to teachers seeking to organize); and (ii) the difficulties faced by domestic workers and workers in the informal economy in general seeking to create or join unions, since the LTU provides for an enterprise union model, whose requirements are often very difficult to meet by these workers, and does not allow for the creation of unions by sector or profession. Similarly, the Committee had taken note of the ITUC’s claim that the absence of any structure for sectoral representation results in the exclusion from the right to organize of hundreds of thousands of workers in the informal sector. Regretting the continuing absence of progress in this respect, the Committee must once again urge the Government to take appropriate measures, in consultation with the social partners, to ensure that civil servants – including teachers – who are not covered by the LTU are fully ensured their freedom of association rights under the Convention, and that the legislation is amended accordingly. The Committee further encourages the Government to promote the full and effective enjoyment of these rights by domestic workers and workers in the informal economy and, to this effect, submit to tripartite consultations the possibility of allowing the formation of unions by sector or profession.

Article 3. Right to elect representatives freely. Requirements for leaders, managers, and those responsible for the administration of unions and of employer associations. In its previous comments, the Committee had requested the Government to take the necessary measures to amend sections 20, 21 and 38 of the LTU – requiring those wishing to vote, to stand as a candidate for election, or be designated to leadership or management positions in unions or employer associations to meet a minimum age requirement (18), minimum literacy requirements and make a declaration that they have never been convicted for any criminal offence. On the one hand, the Committee notes with satisfaction that the 2019 amendments to the LTU removed the requirements of making a declaration that they have never been convicted of any criminal offense and, as to Khmer nationals, the literacy requirement. However, the Committee observes that the amended sections 20 and 21 still impose literacy requirements on foreign nationals. Moreover, the Committee observes that the 2019 amendments to the LTU did not modify section 38, on the election of worker representatives in the enterprise or establishment. As the Committee had noted in its previous comments, this section presents similar issues of compatibility with the Convention. Recalling its previous comments the Committee requests the Government to take the necessary measures to amend sections 20, 21 and 38 of the LTU to remove the requirement to read and to write Khmer from the eligibility criteria of foreigners. The Committee requests the Government to provide information on any developments in this respect.

Article 4. Dissolution of representative organizations. In its previous comments the Committee had requested the Government to amend paragraph 2 of section 28 of the LTU, providing that a union is automatically dissolved in the event of a complete closure of the enterprise or establishment. The Committee observes that the 2019 amendments to the LTU retained under paragraph 2 of section 28 the automatic dissolution of a union in the event of a complete closure of its enterprise or establishment, but included an additional condition: complete payment of workers’ wages and other benefits. In this respect, the Committee considers that, while the payment of wages and other benefits may be one of the reasons why a union may have a legitimate interest to continue to operate after the dissolution of the enterprise concerned, there may be other legitimate reasons for it to do so (such as defending other legitimate claims). Recalling that the dissolution of a workers’ or employers’ organization should only be decided under the procedures laid down by their statutes, or by a court ruling, the Committee requests once again the Government to take the necessary measures to amend section 28 of the LTU accordingly by fully removing its paragraph 2.

Grounds to request dissolution by Court. In its previous comments the Committee had requested the Government to take the necessary measures to amend section 29 of the LTU, which affords any party concerned or 50 per cent of the total of members of the union or the employer association the right to file a complaint to the Labour Court to request a dissolution. Observing that the 2019 amendments to the LTU did not modify the provision in question, and noting that members can always decide to leave the union, the Committee must recall once again that the manner in which members may request dissolution should be left to the organization’s by-laws. The Committee once again requests the Government to take the necessary measures to amend section 29 of the LTU to leave to the unions’ or employers’ associations own rules and by-laws the determination of the procedures for their dissolution by their members.

The Committee had further requested the Government to take the necessary measures to remove paragraph (c) of section 29 of the LTU, which provided that a union or an employers’ association shall be dissolved by the Labour Court in cases where leaders, managers and those responsible for the administration were found guilty of committing a serious act of misconduct or an offence on behalf of the union or the employer association. The Committee had recalled that if it is found that trade union officers have committed serious misconduct or offences through actions going beyond the limits of normal trade union activity – including actions carried out on behalf of the trade union – they may be prosecuted under the applicable legal provisions and in accordance with ordinary judicial procedures, without triggering the dissolution of the trade union and depriving it of all possibility of action. The Committee observes with satisfaction that the 2019 amendments removed from the LTU the above-mentioned paragraph.

Application of the Convention in practice

Independent adjudication mechanisms. In its previous comments the Committee had recalled the importance of ensuring the effectiveness of the judicial system as a safeguard against impunity, and an effective means to protect workers’ freedom of association rights during labour disputes, as well as to address the serious concerns raised on the independence of the judiciary and its impact on the application of the Convention. The Committee had welcomed the Government’s commitment to strengthen the Arbitration Council (AC) and trusted that the AC would continue to remain easily accessible and to play its important role in the handling of collective disputes, and that any necessary measures would be undertaken to ensure that its awards, when binding, are duly enforced. The Committee notes that the Government informs that it revoked the draft law on procedure of the labour courts and further notes with interest that the MLVT agreed to continue to provide financial support to the AC and study the possibility and launch a pilot on the settlement of individual labour rights disputes by the AC in 2020. The Committee requests the Government to continue to provide information in this respect, including as to any measures undertaken to ensure that the AC awards, when binding, are duly enforced.

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